PAT QUINN, CJOV~KNOR DOUGLAC p. SCOTT, Dil<t( TOR 

21 71782-5544 

2171782-9143 (TDD) 

December 07, 2009 

Cheryl Newton, Director 

Air and Radiation Division 

United States Environmental 

Protection Agency Region V 

77 West Jackson Boulevard, AR-18J 

Chicago, Illinois 60604-3598 

Attn: Jay Bortzer 

Re: R09-20: In the Matter of: Nitrogen Oxide (NOx) Trading Program Sunset Provisions 

For Electri; Generating Units (EGUs): New 35 111. Adm. Code 217.751 

Dear 

I 

Pursuant to Section 110 of the Clean Air Act (CAA),(42 U.S.C. 5 7410), and Sections 4,10,27, and 

28 of the Illinois E~~vironmental Protection Act (415 ILCS 514, 10, 27 and 28), the Illinois 

Environmental Protection Agency (Illinois EPA) submits the enclosed amendment to the Illinois 

State Implementation Plan (SIP): R07-19: R09-20: In tlie Matter of: Nitrogen Oxide (NO3 

Trading Program Sunset Provisions For Electric Generating Units (EGUs): New 35 111. Adm. 

Code 217.751, (hereinafter, "Sunset"). 

United Stales Environnlental Protection Agency's (USEPA's) regulations at 40 CFR 

51.12(bb)(l )(i) provide that states such as Illinois with an approved Clean Air Interstate Rule 

(CAR) program may revise their applicable SP so that the provisions of the NO, SIP Call 

Trading Program regulations do not continue to apply to affected electrical generating units 

(EGUs). In Illinois, regulations for the NO, SIP Call Trading Program are set forth at 35 111. 

Ad~n. Code 217.Subpa1-t W. USEPA approved Illinois' CAR program on August 23,2007. On 

May 7, 2009, the Illinois Pollution Control Board (PCB) accepted the Sunset regulatory proposal 

as R09-20 to sunset the provisions of Subpart W. A Notice of Public Hearing was issued by the 

IPCB on May 13, 2009. The Notice of Proposed Arnendinents was published in the Illinois 

Register, Volume 33, pg. 8880, on June 26,2009. Hearings were held on June 18,2009, in 

Chicago, Illinois, and on July 23, 2009, in Springfield, Illinois. On October 15, 2009, the PCB 

adopted a Final Opinion and Order. The effective date of this amendment is November 2,2009. 

The Notice of Adopted Amendments was published in the Illinois Register* on November 13, 

Rocklord r 431'2 N Muair 5,. Rockfoiii IL 61 1113 F lll15l 9877760 Des Pinines - 951 l W Haitran 5:. Dri Planes. 11 61iIllb- (847) 2cih4000 

Elgin. 591 5 StaLe. ilots,, ILhOi23 .lR47)6083131 Peoria I 'Mi 5 N i!iilvels!ty 5,. Peoria. !I 61hlS * (309) 693-5461 

Bureau of Land .- Peoria 17ii20 I< UnivrrGty St., Peoria, ii 61614 I i30'il 119754b2 Champsign n 2121 1 First St. Chamjlaign, IL 611120. l237i 27U-5800 

Cnliin~uill~- iOfi9 Mall Scree!, Collinrviilii, $1 62234 n (h?H) I4h5120 Marit," n 2300 W Mall8 S!.. Suiie ? 16, Marion. 1L 6L9.'icJr (678) 993-7200 

r,r,t>,cc1 LO" l*c,yc4":l IPapC! 
2009. A full history of the rulemaking, as well as additional background documents are available 

electronically at ~:l/wu~w.ioch.state.il.us/COOUExten1al/CaseView.aspx?case=l3654. 

In order to assist wit11 your review of this SP submittal, two copies of the following documents 

are enclosed, as well as copy on disc: 

Attachment 1 : Illinois EPA's Regulatory Proposal 

Attachment 2: PCB Notice of Public Hearings, dated May 13, 2009. 

Attachment 3: Adopted Rule, Final Order, Opinion and Order of the PCB, dated October 15, 

2009. 

Attachment 4: Illznois Registes Notice of Adopted Amendments, Vol. 33, Page 15754, published 

November 1 3,2009. 

The plan checklists for each rulemaking and a disc are also enclosed to ass~st in your revlew. 

If further information is required, please contact Rachel Doctors of my staff at 2171782-5544. 

Cordially, 

4% 

Laurel L. Kroack, Chief 

Bureau of Air 

Enclosures 
bcc: Laurel Kroack - letter, checklists 

Vicky VonLanken - letter, checklists 

Jim Ross - letter, checklists 

Rob Kaleel - letter, checklists 

AQPS file - letter, checklists, and attaclvnenls 

Racliel Doctors - letter, checklists, and attachments 
STATE IMPLEMENTION PLAN CHECKLISTS 

R09-20: In the Matter of: Nitrogen Oxide (NOx) Trading Program Sunset 

Provisions For Electric Generating Units (EGUs): New 35 111. Adm. Code 

217.751 

Illinois Environme~ltal Protection Agency 

Bureau of Alr 

Division of Legal Coui~sel 

1021 North Grand Ave. East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

; ozone ; particulate matter-; 

Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * 

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

IN THE MATTER OF: 

j 

NO, TRADING PROGRM SUNSET ) R09- 

PROVISIONS FOR ELECTRlC 1 (Rulemaking - Air) 

GENERATING UNITS ("EGUS") 1 

AMENDMENTS TO 35 ILL. ) 

ADM. CODE PART 217.SUBPART W ) 

NOTICE 

TO: 

John Therriault, Assistant Clerk Matthew Dunn, Cliief 

Illinois Poliution Contro! Board Division of Environmental Enforcement 

James R. Thompson Center Office of the Attorney General 

100 West Randolph, Suite 11-500 69 W. Washington St., Suite I800 

Chicago, Illinois 60601 Chicago, Illinois 60602 

Virginia Yang, Deputy Legal Counsel 

Illinois Dept. of Natural Resources 

One Natural Resources Way 

Springfield, Illinois 62702 

PLEASE TAKE NOTICE that 1 have today filed with the Office of the Polluhon Control 

Board the REGULATORY PROPOSAL FOR NO, TRADING PROGRAM SUNSET 

PROVISIONS FOR ELECTRIC GENERATION UNITS f'EGUsi'): AMENDMENTS TO 35 

ILL. ADM. CODE PART 217.SUBPART W, APPEARANCE, MOTION TO EXPEDITE, and 

AFFIRMATION of the Illinois Environmental Protect~on Agency a copy of which is herewlth 

served upon you. 

ILLINOIS ENVIRONMENTAL PROTECTION 

AGENCY 

By: /sf Rachel L. Doctors 

Rachel L. Doctors 

Assistant Counsel 

Division of Legal Counscl 

DATED: April 21,2009 

1021 North Grand Ave. East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

217.782.5544 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * 

BEFORE THE ILLINOIS POI,LUTION CONTROL BOARD 

IN THE MATTER OF: 

1 

NOx TRADING PROGRAM SUNSET ) R09- 

PROVISIONS FOR ELECTRIC 1 (Rulemaking - Air) 

GENERATING UNITS ('%GUS") ) 

AMENDmNTS TO 35 ILL. 1 

ADM. CODE PART 217.SUBPART W ) 

TABLE OF CONTENTS OF REGULATORY SUBMITTAL 

Following is a Table of Coritents of all pleadings and documents included with the proposed 

regulatory actio~l: 

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 Testin~ony 

11. Motion to Expedite 

12. Documents Relied On 

*a. Illinois Environmental Protection Act (415 ILCS Vet, 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 Propram; Revisions to 

the NOx SIP Call; Final Rule, 70 Fed. Reg. 25162 (May 12,2005) 

*d. Approval and Promulgation of Air Quality Implementation Plans; Iliinois; 

Oxides of Nitrogen Regulations, 66 Fed. Reg. 56454 movember 8,2001) 

*e. Approval of Implementation Plans of Illinois; Clean Air Interstate Rule, 

72 Fed. Reg. 58528 (October 16,2007) 

*f. North Carolitza v. USEPA, 531 F.3d 896 (C.A.D.C. Cir. 2008) 

*g. North Carolina v. USEPA, 550 F.3d 1176 (C.A.D.C. Cir. 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 IL,L,INOIS POLLUTION CONTROL BOARD 

IN THE MATTER OF: 1 

) 

NOx TRADING PROGRAM SUNSET ) R09- 

PROVISIONS FOR ELECTRIC 1 (Rulemaking - Air) 

GENERATING UNITS ('%GUS") 1 

AMENDMENTS TO 35 ILL. ) 

AI)M. CODE PART 217.SUBPART Mi ) 

The undersigned, as one of its attorneys, hereby enters an Appearance on behaif of the 

Illinois Environmental Protection Agency. 

ILLINOIS ENVlRONMENTAL PROTECTION 

AGENCY 

By: is1 Rachel L. Doctors 

Rachel L. Doctors 

Assistant Counsel 

Divis~on of Legal Counsel 

DATED: April 2 1,2009 

1021 North Grand Ave. East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

217.782.5544 
Electronic Filing - Received, Clerk's Office, April 22: 2009 

***** R2009-020 * * * * * 

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

IN THE MATTER OF: 1 

1 

NO, TUING PROGRAM SUNSET ) R09- 

PROVISIONS FOR ELECTRIC ) (Rulemaking - Air) 

GENERATING UNITS ("EGUS") ) 

AMENDMENTS TO 35 ILL. 1 

ADM. CODE PART 217.SUBPART W ) 

Il.l,lEOlS EN\'IRONMENTAL PROTECTION AGENCY 

PROPOS;\I. OF REGIJI..4TIOh'S 

The Illinois Environmental Protection Agency moves that the Illinois Pollution 

Control Board adopt the attached regulations. 

Respectfully submitted, 

ILLINOIS ENVIRONMENTAL 

PROTECTION AGENCY 

w Director 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * 

Agency Analysis of Economic and 

Budgetary Effects of Proposed Rulemaking 

Agency: Illinois Pollution Control Board 

ParVTitle: Nitrogen Oxides Emissions (35 Ill. Adm. Codc Part 217) 

Illinois Register Citation: 

Please attempt to provide as dollar-specific responses as possible and feel free to add any relevant 

explanation. 

1. hnticipated effect on State expenditures and revenues 

(a) Current cost to the agency for this programiactivity. $15.000 ver year 

[au~roximateld 

(b) IC this rulemaking will result in an increase or decrease in cost, specify the fiscal year in 

which this change will first occur and the dollar amount of the effect. 

.No change in expense to the Illinois EPA is expected. as the NO, SIP Call Trading 

Proizam has been replaced by the CAR NO, Ozone Season Trading &omam. 

(c) Indicate the funding source, including Fund and appropriation lines, for this 

programlactivity. 

Clean Air Act Permit Program Fund (CAAPP) 

(d) If an innease or decrease in the costs of another State agency is anticipated, 

specify 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 wly State agency that administers the NO, SIP Call 

Trading and CAR NO, Ozone Season Trading Programs. 

(e) Will this rulemaking have any effect on State revenues or expendifares not already 

indicated above? No. 

2. Economic effect on persons affected by the rulemaking: 

(a) Indicate the econcniic effect and specify the persons affected: 

Positive _;?_ Negative - No effect - 

Persons affected: Owners and onerators of eiectnc oenerating units subiect to the 

re~uirements of 35 Ill. Adm. Codc 21 7.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 of this mirmakin~ will eliminate duplicate requirements. 

(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 rulemakine should have no indirect effect that mav 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: 1 

1 

NOx TRADING PROGRANI SUNSET ) R09- 

PROVISIONS FOR ELECTRIC (Rulemaking - Air) 

GENERATING UNITS: 1 

AMENDMENTS TO 35 I1,L. 1 

ADM. CODE PART 217.SURPART W ) 

STATEMENT OF REASONS 

The IIlinois Environmental Protection Agency ("Illinois EPA" or "Agency") hereby 

submlts this Statement of Reasons to the Illinois Pollution Control Board ("Board") pursuant to 

Sections 10,27 and 28 ofthe Environmental Protection Act ("Act") (415 ILCS 5/l0,27 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 websitc. 

I. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S PROPOSAL 

a. Background - The NO, 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 ('LUSEPA") as part of 

the Illinois State Implementation Plan ("SIP") for ozone on November 8, 2001. 66 Fed. Reg. 

56449. Subpart W regulates nitrogen oxides ("NO3 emissions from utility boilers, or electric 

generation units ("EGUs"). Illinois was required to regulate these sources pursuant to USEPA's 

NO, SIP Call. 63 Fed. Reg. 57356 (October 27,1998). Subpart W implemented the NO, 

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 11 0(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 of the 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 tradingprograms addressing annual emissions of NO, and sulfur dioxide. Ruie 

lo Reduce Interstate Trunsport of Fine Particulate Matter and Ozone; Revisions to Acid Ruin 

Program; Revisions to the NO, SIP Call, 70 Fed. Reg. 25 I62 (May 12,2005). Provisions 

implementing CAIR in Illinois were adopted by the Board in 35 Ill. 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 1 through September 30) and thereafter. Part 225.Subpart E 

incorporated in large part applicable provisions from the federal CAR rule as required for 

federal approval. 

While the State regulatory process was pending, the federal CAIR rule was reviewed 

pursuant to anumber of petitions for review. On July 11,2008, the United States Court of 

Appeals vacated the CAR rule in its entirety and remanded the ~ule back to USEPA for revision. 

North Caroiinu 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 CAIR program to USEPA, the provisions of the 
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 cou~ grantea the rehearing and unvacated CAIR 

with iinplementation to begin with the original control period in 2009. North Cur-oiinu v. 

USEPA, 550 F.3d 1176 (C.A.D.C. Cir. 2008). 

c. This Proposal 

With the reinstatement of the CAP. 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 Parl217.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)(l)(i), which provide that states with approved CAIR 

programs may revise their applicable SP so that the provisions of the NO, SIP Call Trading 

Program do not apply to affected EGUs. 

XI. GEOGRAPHIC REGIONS AND SOURCES AFFECTED 

The entire State of Illinois was subject to the NOx SZP 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 theNO, SIP Call Trading Program. For the NO, SF Call 

Trading Program, existing units arc those that comnlenced 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. 

111. 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 217.Subpart W beginning 

with the 2009 control period, consistent with the CAIR rule adopted by the Board in Pan 225. 

The CAIR rule replaces the NO, SIP Call Trading Progran~ with a program that contains both a 

NO, emissions annual and an ozone season trading program. The Illinois EPA is proposmg to 

sunset any requirements related to the NO, SIP Call Trading Program afler 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 nbt 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 ECONOiMIC REASONABLENlGSS 

The amendments to Part 217.Subpart W are being proposed to ensure consistency with 

the CAD ozone season program and prevent EGUs from being subject to duplicative 

monitoring, reporting, permitting and recordkeeping requirements. USEPA has stopped 

allocating NO, allowances for the NO, SIP Call Trading Program. As this proposal sunsets 

regulatory provisions, it would impose no new requirements or costs 011 affected sources. Hence, 

the proposal is both technically and econon~ically 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 inails to the affected EGUs on 

March 19,2009, and received one comment on an issue that will not he directly affected by the 
Electronic Filing - Received, Clerk's Office, April 22, 2009 ***** R2009-020 * * * * * 

proposal, i.e., the disposition of remainder NO, SIP CalI Trading Progam 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 

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, SIP Call Trading Program after the 2008 

control period. The provisions will remain in effect for violations that occurred in control 

periods prior lo 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 lilinois. 

Respectfully submitted, 

ILLINOIS ENVIRONMENTAL 

PROTECTION AGENCY 

By: Is/ Rachel L. Doctors 

Rachel L. Doctors 

Assistant Counsel 

Division of Legal Counsel 

DATED: April 21,2009 

1021 North Grand Ave. East 

P.O. Box 19276 

Springfield, IL 62794-9276 

217.782.5544 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * llllnois EPAExhibit No. A 

Doctors, Rachel 

From: Kaleel, Rob 

Sent: Thursday, March 19,2009 5:05 PM 

To: Doctors, Rachel 

Subject: FW: Rulemaking Proposal to Sunset the NOx SIP Call for EGUs 

Attachments: Sec217-751 .pdf 

Here's the first email ... 

. - 

From: Kaleel, Rob 

Sent: Monday, March 16, 2009 459 PM 

To: (abigail.rector@exeloncorp.com); (arnold.jenkinsjr@dukeenergy.com); (biII.murray@cwlp.com); 

(bruceparker@electricenergyinc.corn); (Bsteinhauser@ipr-us.com); (U.Saladino@dom.com); (jacobsen@tenaska.com); 

(dale.davis@exeloncorp.com); (dave,farris@cwlp.com); (dfcole@ameren.com); (dfurstenwerth@reliant.com); 

(Diane.Leopold@dom.corn); (djmurphy@pplweb.com); (gkunkel@tenaska.com); (glenn.caIloway@calpine.com); 

(Glenn.P..lohnson@dom.com); [james.eiseman@dynegy.com); (james.r.kipp@dynegy.com); 

(jason.goodwin@calpine.corn); (jim.idzorek@nrgenergy.com); (jmclaurin@sipower.org); (Joseph.C.Wood@dom.corn); 

(jrtaylor@cordovaenergy.corn); (jshimshock@reliant.com); (kirk.millis@dynegy.com); (kjanderson@ameren.com); 

(laboyer@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@dukeenergy.corn); (pj.becker@cwlp.com); (randy.specht@exeloncorp.com); (rfisher@ppi.coop); (robert_crowe@dynegy,com); 

(roger.stegeman@sweci.com); (russel.gilbert@sweci.cornj; (schy.willmore@cwlp.com); (smiller@mwgen.com); 

(sphart@cordovaenergy.com); (stan-sander@dynegy.corn); (ted-lindenbusch@dynegy.com); 

(terrylarbes@eledricenergyinc.com); (timothy.kelley@dynegy.com); (tjonas@tenaska.com); (vbrisinl@reiiant.com); 

(wendell-watson@dynegy.com); Asplund, Bob; Bassi, Kathleen; Kolaz, Dave 

Subject: Rulemaking Proposal to Sunset the NOx SIP Call for EGUs 

Attention CAlR 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 NOxSIP Call (Subpart 

W) affecting electric generating units, as these provisions have been superseded by Illinois' CAlR rule. We don't believe 

this proposal 1s controversial so we will not initiate a formai outreach process before we submit this to the Board. Please 

iet me know if you have any questions or concerns. 

Rob Kaleel 

Air Quaiity Planning 

Bureau of Air 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * llllnois EPA Exhibit ~o.8 , 

Doctors, Rachel 

From: Kaleei. Rob 

Sent: Thursday. March 19,2009 535 PM 

To: aroyden-bioom@4cleanair,org; Baker, David; Bakowski, Ed; Barnes, Donald; Beck. AJ; 

Biaieki, George; Biel, Mark ; Bloomberg, David E.; Bowles, Ryan; Brennan, Jessica; Bressen, 

Craig; Brown, RB; Bugei, Faith; Choi, J; Churchill. Merie; Ciayborn, Becki; Coe, Tom; 

Constantelos, Bili; 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, DK; Hodge, Kathy; Holston, Erik; ilika, anita: Illinois Ciean Energy Foundation; Illinois 

Landfill Gas Coalition; Illinois Manufacturers Association; Illinois Solar; Irwin, Barb; Jenkins, 

Arnold; Johnson, Mike; Jones, Doug; Jouras, Mike; Kaleel, Rob; Kaieel, Rob; Kanczuzewski, 

TJ; Kruse, Andy: Learner, Howard; ieavlt, Brandon; Loll, Brian; Mader, Kelly; Matoesian, 

Charles; Matty, Robert; McFarlan, Doug: McGuire, W.F.; Mcinnis, Michael; Monk, Jim: 

Morgenstern, Roger; Nathan, Ernie; Nilles, B~ce; O'Keefe, Mary Eileen; Oisen, Erik; O'Shea, 

Kevin; Owen, Verena; Parker, James; Pike County Wind; Pilapii, Ray; prohov, rick; Romo, 

Bob; Rosenbaum, David; Ross, Jim; Ruhi, Jeffery; Sanch, Robert; Schneider, Jim ; Sims, 

Jackie; Snider, Donaid; Stanch, Michael; Stanfield, Becky; Swarupa Ganguli; Tickner, Diana; 

Vogl, Bob; Wanninger, Kent; Weis, John; Welis, Bob; Wheatley, D. Blake; White, Jason; 

Whitlock, Bili; Whihvorth, Steve; Wiikerson. Mark; Wind Mail 

Subject: Rulemaking Proposal to Sunset the NOx SIP Call for EGUs 

Attachments: Sec217-751 .pdf 

Attention CAlR Contacts: 

My apoiogies to those of you who are receiving this message a second time. My first email apparentiy 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 ruiemaking. The intent of this proposai 1s to sunset the provisions of the NOx SIP 

Call (Subpart W) affecting electric generating units, as these provisions have been superseded by Illinois' CAlR 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. Piease let me know if you have any questions or concerns. 

Rob Kaieel 

Air Quality Planning 

Bureau of Air 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * 

ILLINOIS REGISTER 

POLLUTION CONTROL BOARD 

NOTICE OF PROPOSED AMENDMENTS 

I) Heading of the Part: Nitrogen Oxides Emissions 

2) Code Citation: Amendments to 35 Ill. Adm. Code Part 217 

3) Section Numbers: 

217.751 

Proposed Action: 

Add 

4) Statutory Authoritv: Implementing and authorized by Sections 10 and 27 of the Illinois 

Environmental Protection Act [415 ILCS 5110 and 271. 

5) A Comnlete Description ofthe Subjects and Issues Involved: This proposal will add a 

provis~on sunsetting the NO, SIP Call requirements as set fortl~ in Subpart W that apulv , 

to electric generating units ("EGUs") andthat have been superseded b; the requirements 

for the Clean Air Interstate Rule ("CAR") 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 promam. The trading. -. program - in Subuart E of 

Part 225 supersedes the interstate ~0;~radin~ Program that is set forth in subpart W of 

Part 2 17 for EGUs. 

6) Will this proposed amendment replace an emervencv rule currentlv in effect? No 

7) Does this rule ma kin^: 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 Proposed Action Illinois Register Citation 

217.386 Amend 32 Ill. Reg. 17075 

. 217.385 Amend 32 Ill. Reg. 17075 

217.390 Amend 32 Ill. Reg. 17075 

217.392 Amend 32 Ill. Reg. 17075 

217.394 Amend 32 Ill. Reg. 17075 

21 7.396 Amend 32 Ill. Reg. 17075 

10) Statement of Statewide Policy Obiectives: These proposed amendments do not create or 

enlarge a state mandate as defined in Section 3@) of the State Mandates Act. [30 ILCS 

805131. 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * 

ILLNOIS 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 of forty-five (45) days after the date of publication in the Illinois Register. 

Comrnenls 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 

21 7-782-5544 

12) Initial Remlatorv Flexibility Analysis: 

A) Types of small businesses, small mur~icipalities and not for profit corporations 

affected: Any small businesses, small municipalities, or not-for-profit 

corporations that are subject to the NO, 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) 

m: 

This rulemakine was not included on either of the two most recent remlatorv ailendas 

This rulemaking was not included in either of the two most recent regulatory 

agendas because of the uncertainty associated with the CARTrading 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 CAR 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 CAE program that the provisions 

of the NOx 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 unvaeated. North Carolina v. USEPA, 550 

F.3d 1176 (C.A.D.C. Cir. 2008). Therefore, pending the remand, the original CAlR as 

adopted at 35 Ill. Adm. Code Part 225, is in effect. 

I4j Uocs rl:ij ancndmcn! r<iluir? rh: revien oithe Proicre~neni f'ol~cv Boz~d as speci.'icd it! 

Seiunn 5-25 ofthe Tllinoi.; Pr~:c~re!r?nr Codc?. [;C, ILCS SUO 5-75; So 

The hll text of the Proposed Amendment(s) begins on the next page: 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * 

ILLINOIS REGISTER 

POLLUTION CONTROL BOARD 

NOTICE OF PROPOSED AMENDMENTS 

TITLE 35: ENVIRONMENTAL PROTECTION 

SUBTITLE B: AIR POLLUTION 

CHAPTER 1. POLLUTION CONTROL BOARD 

SUBCHAPTER C: EMISSION STANDARDS AND LLMITATlONS 

FOR STATIONARY SOURCES 

PART 217 

NITROGEN OXIDES EMISSIONS 

SUBPART A. GENERAL PROVISIONS 

Section 

217.100 Scopc and Organization 

217.101 Measurement Methods 

217.102 Abbreviations and Units 

217.103 Definitions 

217.104 Incorporations by Reference 

SUBPART B: NEW FUEL COMBUSTION EMISSION SOURCES 

Section 

217.121 New Emission Sources 

SUBPART C: EXISTING FUEL COMBUSTION EMISSION SOURCES 

Section 

217.141 Existing Emission Sources in Major Metropolitan Areas 

SUBPART K: PROCESS EMISSION SOURCES 

Section 

217.301 Industrial Processes 

SUBPART 0: CHEMICAL MAMJFACTURE 

Section 

217.381 Nitric Acid Manufacturing Processes 

SUBPART Q: STATIONARY RECIPROCATING DiTERNAL COMBUSTION 

ENGINES AND TURBINES 

Section 

217.386 Applicability 

217.388 Control and Maintenance Requirements 

217.390 Emissions Averaging Plans 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

* * * * * R2009-020 * * * * * 

ILLWOIS REGISTER 

POLLUTION CONTROL BOARD 

NOTICE OF PROPOSED AMENDMENTS 

217.392 Compliance 

217.394 Testing and Monitoring 

217.396 Recordkeeping and Reporting 

SUBPART T: CEMENT KILNS 

Section 

217.400 Applicability 

217.402 Control Requirements 

217.404 Testing 

217.406 Monitoring 

217.408 Reporting 

217.410 Recordkeeping 

Section 

217.450 

217.452 

217.454 

21 7.456 

217.458 

217.460 

217.462 

217.464 

217.466 

217.468 

217.470 

217.472 

21 7.474 

21 7.476 

217.478 

21 7.480 

217,482 

SUBPART U. NO, CONTROL AND TRADING PROGRAM FOR 

SPECIFIED NO, GENERATING UNITS 

Purpose 

Severability 

Applicability 

Compliance Requirements 

Permitting Requirements 

Subpart U NO, Trading Budget 

Methodology for Obtaining NO, Allocations 

Methodology for Determining NO, Allowances horn the New Source Set-Aside 

NO, Allocations Procedure for Subpart U Budget Units 

New Source Set-Asides for 'TJew" 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, Trading Program 

Opt-Ln Units: Change in Regulatory Status 

Allowance Allocations to Opt-In Budget Units 

SUBPART V: ELECTRIC POWER GENERATION 

Section 

217.521 Lake of Egypt Power Plant 

217.700 Purpose 

217.702 Severability 
Electronic Filing - Received, Clerk's Office, April 22, 2009 ***** R2009-020 * * * * * 

ILLINOIS REGISTER 

POLLUTION CONTROL BOARD 

NOTICE OF PROPOSED AMENDMENTS 

217.704 Applicability 

217.706 Emission Limitations 

21 7.708 NO, Averaging 

217.710 Monitoring 

217.712 Reporting and Recordkeeping 

Section 

217.750 

Section 

217.800 

217.805 

217.810 

217.815 

217.820 

217.825 

217.830 

217.835 

217.840 

217.845 

SUBPART W: NO, TRADING PROGRAM FOR ELECTRICAL 

GENERATING UNITS 

Purpose 

Sunset Provisions 

Severability 

Applicability 

Compliance Requirements 

Permitting Requirements 

NO, Trading Budget 

Methodology for Calculating NO, Allocations for Budget Electrical 

Generating Units (EGUs) 

NO, 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, Trading Program 

Opt-In Units: Change in Regulatory Status 

Allowance Allocations to Budget Opt-In Units 

SUBPART X: VOLUNTARY NO, EMISSIONS REDUCTION PROGRAM 

Purpose 

Emission Unit Eligibility 

Participation Requirements 

NO, Emission Reductions and the Subpart X NO, Trading Budget 

Ba~eline Emissions Determination 

Calculation of Creditable NO, Emission Reductions 

Limitatiolls on NO, Emission Reductions 

NO, Emission Reduction Proposal 

Agency Actlon 

Emissions Detcnnation Methods 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * 

ILLINOIS REGISTER 

POLLUTION CONTROL BOARD 

NOTICE OF PROPOSED AMENDMENTS 

217.850 Emissions Monitoring 

217.855 Reporting 

217.860 Recordkeeping 

217.865 Enforcement 

APPENDIX A Rule into Section Table 

APPENDIX B Section into Rule Table 

APPENDLX C Compliance Dates 

APPENDIX D Non-Electrical Generating Units 

APPENDIX E Large Non-Electrical Generating Units 

APPENDIX F Allowances for Electrical Generating Units - 

APPENDLY G Existing Reciprocating Internal Combustion Engines Affected by the NO, 

SIP Call 

Authority: Implementing Sections 9.9 and 10 and authorized by Sections 27 and 28.5 of the 

Environnlental Protection Act i415 ILCS 519.9, l0,27 and 28.5 (2004)l. 

Source: Adopted as Chapter 2: A~T Pollution, Rule 207: Nitrogen Oxides Emissions, R71-23,4 

PCB 191, April 12,1972, filed and effective April 14, 1972; amended at 2 Ill. Reg. 17, p. 101, 

effective April 13, 1978; codified at 7 111. Reg. 13609; amended in R01-9 at 25 Ill. Reg. 128, 

effective December 26,2000; amended in R01-11 at 25 Ill. Reg. 4597, effective March 15,2001; 

amended in R01- 16 and R01-17 at 25 111. Reg. 59 14, effectivc April 17,2001; amended in R07- 

18 at 31 Ill. Reg. 14254, effective September 25,2007; amended in R09- at 111. Re% 

effective 

SUBPART W: NO, TRADING PROGRAM FOR ELECTRICAL 

GENERATlNG UNITS 

Section 217.751 Sunset Provisions 

The provisions of this Subpart W shall not ap~ly for my control period in 2009 or thereafter. 

Noncompliance with the provisions of this Subpart that occurred prior lo 2009 is subject to the 

9plicable provisions of this Subpart. 

(Source: Added at __ 111. Reg. , effective 1 
Eiectronic 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 fo'oilowing: 

* The NOx SIP Call NOx Trading Program for Electrical Generating Units in 35 111. 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 Subparl 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. 

0 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: 1 

1 

NO, TRADING PROGRANl SUNSET ) R09- 

PROVISIONS FOR ELECTRIC 1 (Rulemaking - Air) 

GENERATING UNITS: ) 

AMENDMENTS TO 35 ILL. 1 

ADM. CORE 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 Ill. Adm. Codc 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 boiiers, 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 ofreplacing the NO, SIP Call Trading Program beginning with the 2009 

control period. Rule to Redrtcc interstate Transport of Fine Pa~iculate Matter and Ozone; 

Revisions to Acid Rain Program; Revisions to [lie NO, SIP Call, 70 Fed. Reg. 25162 (May 12, 

2005). Provisions implementing CAE in Illinois were adopted by the Board in 35 111. Adnl. 

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 conhol of NO, 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * 

emissions during the ozone season that repiaces the provisions in Part 217.Subpart W for EGUs 

beginning with the 2009 controi period (May 1 through September 30) and thereafier. 

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 CAR rule was 

the subject of court review. On July 11,2008, the United States Court of Appeals vacated the 

CAlR rule in its entirety and remanded the rule back to USEPA for revision and lei? the 

provisions of the NO, SIP Cail Trading Progam in place. North Carolitta v. USEPA, 531 F.3d 

896 (C.A.D.C. Cir. 2008). 

4. The same parties in Nortii Carolirta, 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 CAR with implementation to begin with the original 

control period in 2009. North Carolir~a v. USEPA, 550 F.3d 1176 (C.A.D.C. Cir. 2008). 

5. With the reinstatement of the CAlR program, Illinois' EGUs must now comply 

with duplicative administrative requirements (e.g., permitfing, 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. 

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 he adopted in an 

expedited manner. 

7. In light of the foregoing, it is necessary to expedite review in this matter. 

8. Therefore, the Illinois EPA requests that the Board proceed to First Notice under 

the Illinois Administrative Procedure Act, 5 ILCS 10011 -1 el 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 Illinois EPA in this nilemaking 

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 Illlnois Environmental Protection Act, 

415 ILCS 5/28(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. If more information is needed, the Illinois EPA will fully cooperate to 

expeditiously provide the same to the Board and its hearing officer. 

1 I. As required by 35 111. 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 respecthlly requests that 

the Board grant its Motlon and expedite review in this matter. 

Respectfully submitted, 

ILLINOIS ENVIRONMENTAL 

PROTECTION AGENCY 

By: lsl Rachel L. Doctors 

Rachel L. Doctors 

Assistant Counsel 

Division of Legal Counsel 

DATED: April 2 1,2009 

1021 North Grand Avenue, East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

217.782.5544 
Electronic Filing - Received, Clerk's Office, April 22, 2009 

***** R2009-020 * * * * * 

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

IN TEE MATTER OF: ) 

f 

NO, TRADING PROGlPPJM SUNSET ) R09- 

PROVlSIONS FOR ELECTRIC 1 pulemaking - Air) 

GENERATING UNITS: 1 

AMENDMENTS TO 35 ILL, ) 

ADM. CODE PART 217.SUBPART W ) 

I, Rachel L. Doctors, under other, hereby state and afftrm 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. ,- 

Assistant Counsel 

Division of Legal Counsel 

SUBSCRIBED AND SWORN TO BEFORE ME 

Notary Public 
Electronic Filing - Received, Clerk's Office, April 22, 2009 ***** R2009-020 * * * * * 

STATE OF ILLINOIS ) 

1 SS 

COUNTY OF SANGAMON 1 

1 

CERTIFICATE OF SERVICE 

I, the undersigned, an attorney, state that 1 have served electronically the attached 

'LA.I:OKY PROPOSAI. FQR.-~~.~~T~~uc;.PKQGR~.I.~s_~s~RO~QNS~

-- EI.ECTRIC - C &ZL.. 

' -RATION LiNITS(xG.L~"~. AhIZL>;\.lETNS '1'0 35 ILL .&DM. COD5 -. 

PAR I' 2: 7 SCHPAKT \<'. .M=!CE, MOTIOK TO ESPEDII'E .4ND .AFFIKMA'IIOK OF 

the Illinois Environn~ental Protection Agency upon the following persons: 

3ohn Themault, Assistant Clerk 

Illinois Pollution Control Board 

James R. Tho~npson Center 

100 West Randolph, Suite 11-500 

Chicago, Illinois 60601 

Matthew Dunn, Chief 

Division of Environmental Enforcement 

Office of the Attorney Genera1 

69 W. Washington St., Suite 1800 

Chicago, Illinois 60602 

Virginia Yang, Deputy Legal Counsel 

Illinois Dept. of Natural Resources 

One Natural Resources Way 

Springfield, Illinois 62702 

ILLINOIS ENVIRONMENTAL PROTECTION 

AGENCY 

lsi Rachel L. Doctors 

Rachel L. Doctors 

Assistant Counsel 

Division of Legal Counsel 

Dated: April 21,2009 

1021 North Grand Avenue East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

217.782-5544 
ILLINOIS POLLUTION CONTROL BOARD 

May 13,2008 p2 fg- c. fi E% ;:# ciC?Rw~ OfFICE 

IN THE MATTER OF: 1 

) H;&( 1 2@J3 

NITROGEN OXIDE (NO,) TRADING ) R09-20 

STATE OF ILLINOIS PROGRAM SUNSET PROVISIONS FOR ) (Rulemaking - Air) potiuinn controt 

ELECTRIC GENERATING UNITS (EGUs): ) 

NEW 35 ILL. ADM. CODE 217.751 ) 

NOTICE OF HEARING 

DATES, TIMES, PLACES: 

Thursday, June 18,2009,1:00 p.m. Thursday, July 23,2009 1:00 p.m. 

JAMES R. THOMPSON CENTER IEPA OFFICE BUILDING 

Room 11-512 Room 1244N, First Floor 

100 W. Randolph-Room 11-512 1021 N. Grand Avenue East 

Chicago, IL 60601 Springfield, IL 62794 

PURPOSE OF HEARING: Merit and economic 

ATTENDING BOARD MEMBER: Dr. Shundar Lin 

HEARING OFFICER: Kathleen M. Crowley 

HEARING OFFICER ORDER 

Procedural Historv 

On April 21,2009, the Illinois Environmental Protection Agency (Agency) filed a 

proposal for rulemaking under Sections 10.27 and 28 of the Environmental Protection Act (Act), 

415 ILCS 5/10,27,28 (2006). The proposal would add a single new section, 35 Ill. Adm. Code 

217.751 to 35 111. Adm. Code 217.Subpart W. Beginning with any control period in 2009, the 

new section would "sunset", or render inapplicable, the provisions of the Nitrogen Oxides (NO,) 

Trading Program for electrical generating units (EGUs) found at 35 111. Adm. Code 217.Subpm 

W. But, the Agency proposes that the provisions 35 Ill. Adm. Code 217.Subpart W will remain 

in effect for violations that occurred in control periods prior to 2009. 

In a May 7,2009 order, the Board accepted the proposal for hearing. The Board also 

authorized publication of the proposal (without comment on the proposal's merits) in the Illinois 

Register as required by the Illinois Administrative Procedure Act (MA), 5 ILCS 100 et seq. 

(2006). 

In camplimce with the Amencans With Disabilities Act and other applicable federal and Stzte laws, the hearings will be accessible ro individuals 

with dirabilities. Persons reaulnne auiliarv aid! should contact John T Therrisult. Assisrant Clak of the Board. IW West Randoloh Sat. 
On May 13,2009, as required mder Section 27(b)(l) of the Act, 415 LCS 

5/27(b)(1)(2006), the Board requested that the Department of Commerce and Economic 

Opportunity (DCEO) conduct a study of the economic impact of the proposed rules. The Board 

requested a response no later than June 30,2009, so that the economic impact study (EcIS) 

issue could be addressed at the July 23,2009 hearing. 

The Bearings 

The Board will conduct two hearings in order to allow the proponent and any other 

interested participants the opportunity to present testimony on the merits and economic impact of 

the rulemaking proposal. At hearing, all persons who testify will be sworn in and subject to 

questioning. The Board will also receive any testimony on any EcIS conducted by DCEO on the 

proposed rules or on DCEO's decision not to perform an EcIS. 

As indicated above in the notice of hearings, the first hearing will begin on Thursday, 

June 18, 2009 and will continue until the day's business is completed, but in no event later than 

5:00 p.m. The second hearing is scheduled to begin Thursday, July 23,2009 and will 

and will continue, continue until the day's business is completed, but in no event later than 4:30 

p.m. 

Pre-Filin~ Deadlines 

Participants who intend to testify must pre-file their testimony and serve the testimony on 

the hearing officer and all persons on the Service List. Before filing pre-filed testimony or any 

other document with the Clerk, please check for the most recent version of the Service List with 

the hearing officer or the Clerk's Office. 

Paxticipants in the first hearing are directed to pre-file all of their testimony and any 

related exhibits no later than Friday, June 5,2009. Under Section 27 of the Act (415 ILCS 5/27 

(2006)), the first hearing is not limited to the testimony of the proponent. But, the hearing officer 

presently intends to allow the Agency as proponent to present the testimony of all of its 

witnesses before hearing the testimony of other participants. Therefore, any other person wishing 

to testify at the first hearing should also pre-file their by June 5, 2009. Participants wishing to 

testify at the second hearing are directed to pre-file all of their testimony and any related exhibits 

no later than Friday, July 10, 2009. 

The "mailbox rule" at 35 Ill. Adm. Code 101.300(b)(2) does not apply to the filing of this 

pre-filed testimony, and the Board's Clerk must therefore receive these documents before the 

close of business on the specified dates. However, pre-filed testimony and other documents 

maybe filed electronically though the Clerk's Office On-Lie (COOL) from the B03ldls Web site 

at www.ipcb.state.il.us. Any questions about electronic filing through COOL should be directed 

to the Clerk's Office at (3 12) 8 14-3629. 

Order of Hearings 

All pre-filed testimony will be, entered into the record as if read. See 35 Ill. Adm. Code 

102.424(f). A brief summary of testimony will be allowed if a witness wishes to provide one 
before responding to questions. Participants who do not pre-file testimony will be allowed to 

testify as time permits only after the conclusion of pre-filed testimony and questions based upon 

it. Similarly, any participant who wishes to offer a public comment will be allowed to do so as 

time permits at the close of pre-filed testimony and the questions based upon it. Consequently, 

any person wishing to testify at either of the two hearings is urged to pre-file their testimony in 

order to ensure that they have an opportunity to testify. In addition, the Board's procedural rules 

provide that "[tlhe Board will accept written comments from any person concerning the 

proposed regulations during the first notice period." 35 Ill. Adm. Code 102.604. 

The hearing scheduled to begin on June 18,2009, will begin with the Agency's 

presentation of its case as the proponent. After the Agency has answered all questions from other 

participants, and if time permits before the conclusion of the first hearing, other persons who 

have pre-filed may testify. The Board has reserved sufficient time for each hearing and 

anticipates that any person who wishes to testify will have an opportunity for testimony and any 

cross-examination. In the event that any person who pre-files testimony for the first hearing 

cannot testify on June 18,2009, because time does not allow it, that person will be given priority 

to testify on July 23,2009. 

The July 23,2009 hearing will begin with any testimony from any participant who prefiled testimony for the first hearing and who was not able to testify at that time. Participants who 

pre-filed testimony for the second hearing will then present that testimony. Any participant who 

wishes to offer a public comment at either hearing will be allowed to do so if time permits at the 

close of pre-filed testimony and the questions based upon it. Again, written public comments 

may be submitted to the Board. See 35 Ill. Adm. Code 102.604. 

Finally, the hearing officer, upon agreement of the participants or upon motion to the 

hearing officer, may change the order of testimony at these hearings. See 35 Ill. Adm. Code 

102.420, citing 35 Ill. Adm. Code 101.Subpart F. 

Service and Notice Lists 

The Service List for this rulemaking is the list of persons who wish to participate actively 

in this proceeding and receive not only the Board's opinions and orders but also other filings 

such as pre-filed testimony and public comments. 

The Notice List includes participants who wish to receive only the Board's opinions and 

orders and hearing officer orders. The Board adopted the Part 217 NOx Trading Program Rules 

nearly 9 years ago in Pr 

Program for Electrical Generating Units, and Amendments to 35 Ill. Adm. Code 211 and 217, 

ROl-9 (Dec. 21,2000). The R01-9 notice list began with each of the approximately 229 

potentially affected EGUs who were part of the Board's service list in the R01-9 proceeding in 

which the Part 217 NOx Trading Program rules were adopted. This notice list is too dated to 

serve as the basis for the notice list here. 
Instead, the Board will begin its notice list in this proceeding with the notice list in the 

still-pending, but currently inactive, docket which the Agency proposed to amend these rules: 

NOx Tradm~ Promam: Amendments to 35 Ill. Adm. Code Part 217, R06-22 (Feb. 2, 

2006)(Agency proposal accepted for bearing). 

While the Board will mail a copy of this hearing officer order to each of the entities on 

the R06-22 notice list, the Board will mail copies of any subsequent opinions and orders only to 

those who specifically indicate that they wish to remain on the Notice List for this proceeding. 

Any entity wishimg to remain on the Notice List must provide the information requested in the 

form attached to this order as Attachment A and return the completed form to the Board by 

Friday, March 7,2008. In order to clarify the record in this proceeding, Attachment B to this 

order contains the names and addresses of all of the entities to which the Board has mailed this 

first hearing officer order. 

Interested persons may now request electronic notice of filings by providing their e-mail 

address through COOL under this docket number: R09-20. This electronic notice includes notice 

of the filing of documents that are not typically provided to persons on the Notice List. In 

addition, COOL provides links to documents filed with the Board, and those documents can be 

viewed, downloaded, and printed free of charge as soon as they are posted to the Board's Web 

site. For more information about the option of electronic notice or COOL, consult either the 

Board's Web site at www.ipcb.state.il.us or John Theniault, the Board's Assistant Clerk, at 

(3 12) 814-3629. 

At the close of the second hearing, the hearing officer will set a date by which the record 

will close and all public comments must he submitted. See 35 Ill. Adm. Code 102.108. As the 

Board is aware that the Agency would appreciate Board decision making as soon as possible, the 

post-hearing comment period will not be lengthy unless unanticipated circumstances dictate 

otherwise. 

IT IS SO ORDERED, 

Kathleen M. Crowley 1 

Hearing Officer, Illinois Pollution Control Board 

100 West Randolph Street, Suite 11-500 

Chicago, Illinois 60601 

(312) 814-6929 crowlek@iucb.state.il.us 
ATTACHiMENT A 

To Hearing Officer Order of May 13, 2009 

Nitrogen Oxide (NOxl Trading Program Sunset Provisions for Electric Generating Units 

[EGU's): New 35 111. Adm. Code 217.751, R09-20 

I wish to remain on the Notice List in the Pollution Control Board rulemaking proceeding listed 

above: 

Name 

Organization or Company 

Address 

City, State, Zip 

PLEASE RETURN THIS FORM BY MONDAY JUNE 1,2009 TO: 

Lynn Delaney 

E-mail: 

de1aneylipcb.state.il.u~ 

Fax: 

3 12-814-3669 

Mail: 

100 W. Randolph St., Suite 11-500 

James R. Thompson Center 

Chicago, Illinois 60601 
ATTACHMENT B 

To Hearing Officer Order of May 13,2009 

Nitrogen Oxide (NOx) Trading Program Sunset Provisions for Electric Generating Units 

JEGU's): New 35 111. Adm. Code 217.751, R09-20 

Attachment B consists of the Service List from the Board's proceeding in NOx Trading 

Prosam: Amendments to 35 Ill. Adm. Code Part 217, R06-22, and begins on the next page: 
R2009-020 

Rachel L. Doctors 

IEPA 

1021 North Grand Avenue East 

P.O. Box 19276 

Springfield, IL 62794-9276 

R2009-020 

Matthew J. Dunn 

Office of the Attorney General 

Environmental Bureau North 

69 West Washington Street, Suite 1800 

Chicago, IL 60602 

R2009-020 

Kathleen C. Bassi 

Schiff Hardin, LLP 

6600 Sears Tower 

233 South Wacker Drive 

Chicago, IL 60606-6473 

R2009-020 

Hodge Dwyer & Driver 

3150 Roland Avenue 

Post Oftice Box 5776 

Springfield, IL 62705-5776 

R2009-020 

Alec M. Davis 

Illinois Envimnmental Regulatory Group 

215 East Adams Street 

Springfield, IL 62701 

R7.009-020 

Virginia Yang 

Illinois Department of Natural Resources 

One Natural Resources Way 

Springfield, IL 62702-1271 

Page 1 of 1 
ILLINOIS POLLUTION CONTROL BOARD 

October 15,2009 

IN THE MATTER OF: 1 

1 

NITROGEN OXIDE (NO,) TRADING ) R 09-20 

PROGRAM SUNSET PROVISlONS FOR ) (Rulemaking - Air) 

ELECTRIC GENERATING UNITS (EGUs): ) 

NEW 35 ILL. ADM. CODE 217.751 1 

Adopted Rule. Final Opinion and Order. 

OPINION AND ORDER OF THE BOARD (by S.D. Lin): 

On April 21,2009, the Illinois Environmental Protection (Agency) filed this proposal for 

rulemaking under Sections lO,27, and 28 of the Environmental Protection Act (Act), 415 ILCS 

5110, 27,28 (2008). The proposal would add a single new section, 35 Ill. Adm. Code 217.751, to 

35 Ill. Adm. Code 217.Subparl W. Beginning with any control period in 2009, the new section 

would "sunset", or render inapplicable, the provisions of the Nitrogen Oxides WO,) Trading 

Program for electrical generating units (EGUs) found at 35 ISl. Adm. Code 217.Subpart W. But, 

the provisions of 35 Ill. Adm. Code 217.Snbpart W will remain in effect for violations that 

occurred in control periods prior to 2009. 

By order of May 7,2009, the Board denied the Agency's motion for expedited 

consideration. But, as the Agency had also requested, the Board ordered immediate publication of 

the rilles for first notice in the Illinois Register under the Illillois Administrative Procedure Act 

(APA), 5 lLCS 10011-1 et seq (2008). See, respectively, 35 Ill. Ad~n. Code Sections 102.202(g) and 

101.512. The proposal was publislied at 33 111. Reg. 8880 (June 26, 2009). The Board held 

hearings on the proposal on June 18,2009 and July 23, 2009, and received three public 

comments on or before August 25,2009. 

The Board adopted its second notice opinion and order on September 17,2009, adopt~ng 

the first notice proposal without substantive change. The Joint Committee on Administrative 

Rules voted a certificate of "no objection" at its October 14,2009 meeting. 

By today's action, the Hoard adopts new Section 217.751 as a final rule, and directs that the 

adopted rule be filed with the Secretary of State, to become effective upon filing. The Board finds 

that this record demoilstrates that the proposed mle if adopted is tecl~nically feasible, 

economically reasonable, and, in the words of Section 27 (b) of the Act, will have no "adverse 

economic impact on the people of the state of Illinois." 415 ILCS 5!27(b) (2008). The proposal 

contains no substantive changes fro111 the first notice proposal. However, the table of contents of 

Part 217 has been revised to include Subparts D through 34, due to the recent colnpletioll of other 

air rulemakings. See, Section 27 Proposed Rules for Nitrogen Oxide (NO,) Emissions From 

Various Source Categories, Amendments to 35 Ill. Adm. Code Parts 21 1 and 21 7, R08-19 (Aug. 
20,2009). Adoption of the final rules today grants the request of the Agency and other 

participants that this rulemaking be completed by the end of November 2009. 

This final opinion will set out the proposal for the adopted anlendmeiit and its background, 

and discuss the evidence presented and public comments made concenli~lg the economic 

reasonableness and technical feasibility of the rule. 

TEE PROPOSAL 

In the proposal's six-page statement of reasons (SR), the Agency states that the Board 

adopted the Part 217 NO, Trading Program rules in Proposed New 35 111. Adm. Code 217. 

Subpart W, The NO, Trading Program for Electrical Generating Units, and Amendments to 35 

Ill. Adm. Code 21 1 and 217. R 01-9 (Dec. 21,2000). SR. at 1. Part 217.Subpart W regulates 

NO, emissions from utility boilers or EGUs. Part 217.Subpart W received approval by the 

United States Environmental Protection Agency (US EPA) as part of the Illinois State 

Inlplementation Plan (SIP) for ozone on November 8,2001. See 66 Fed. Reg. 56449 (Kov. 8, 

2001). Illinois was required to regulate these sources pursuant to USEPA's NO, SIP Call for 

EGUs pursuant to Sections 110(a) (2) and 126 of the federal Clean Air Act (CAA) and 40 CFR 

51.121. See also 63 Fed Reg. 57356 (Oct. 27, 1998). SR at 1-2. IEPA reports that the emissions 

reductions helped the two Illinois ozone nonattainment areas in Illinois to attain tile 1997 8-hour 

ozone National Ambient Air Quality Standard (NAAQS). In addition, the continued 

implementation of the federal NO,, Trading Program was required under Phase I of the 8-hour 

ozone implementation rule. See 40 CFR 51.905(f). Id. at 2. 

On May 12,2005, USEPA adopted the federal Clean Air Interstate Rule (CAIR) to 

replace the NO, SP Call Trading Program beginning with the 2009 control period and to add 

two new trading programs addressing annual elnissio~ls of NO, and sulfi~r dioxide. See Rule to 

Reduce Interstate Transpovt ojmFilze Particulate Matter and Ozone: Revisions to Acid Rain 

Progi,anz; Revisions to the NO, SIP Call, 70 Fed. Reg. 25162 (May 12,2005). SR at 2. While 

the IEPA states that the Board adopted the CAIR rules in the still-pending R06-22 proceeding, in 

fact the CAIR rules were adopted by the Board in Proposed New Clean Air Interstate Rule 

CAIR) SOz. NOx A- Ozone Season Trading Programs, 35 Ill, Adm. Code 225, 

Lubparts AIC, 6 E and F, R 06-26 (Aup.23.2W7) The CAIR rules, by their terms, were to 

replace the NO, Trading rules in 2009. The Illinois CAIR rules were approved by USEPA on 

October 16,2007, See 72 Fed. Reg. 58528(Oct. 16, 2007). 

The CAR provisions as set forth in 35 111. Code Paxt 225 .Subpart E include a trading 

program for control of NO, emissions during the ozone season that replaces the provisions in 

Part 21 7.Subpart W for EGUs beginning wit11 the 2009 control period (May 1 through September 

30) and thereafter. Part 225.Subpart E incorporated in large part applicable provisions from the 

federal CAIR n~le as required for federal approval. SR at 2. 

After the adoption of Illinois CAIR, the United States Court of Appeals reached a 

decision on a number of petitions for review it had received concerning the federal CAIR rule. 

On July 11, 2008, the Court of Appeals vacated the federal CAIR rule in its entirety and 

remanded the rule to CSEPA for revision. North Carolina v. USEPA, 531 F.3d 896 (C.A.D.C. 

Cis. 2008). The court's July 2008 opinion stated that pending the remand of the CAIR program 
to USEPA, the provisions of the federal NO, SIF' Call Trading Program would remain in place. 

But, the parties petitioned the court for rehearing on the decision to vacate and requested that the 

federal CAIR rule be reinstated during the remand. On December 23, 2008, the court granted the 

rehearing and "unvacated" the federal CAIR rule with ilnplelnelltation to begin with the original 

control period in 2009. Novtlz Caroli~za v. USEPA, 550 F.3d 1176 (C.A.D.C. Cir. 2008). SR at 2- 

3,' 

The Board's Past 21 7 NO, Trading Program rules have continued to be in full force and 

effect. The Agency states that, with the reinstatement of the federal CAIR program, Illinois' 

EGUs must now comply with two sets of duplicative administrative requirements (e.g., 

permitting, reporting) for the 2009 ozone season and beyond: namely, the Illinois CAIR rule 

requirenlents at Part 225 and the Illinois NO, Trading Program at Par1 217. 

In 40 CFR 51.123(bb)(l)(i), USEPA has provided that states such as Illinois with 

approved CAIR programs may revise their applicable SIP so that the provisions of the NOx SIP 

Call Trading Program do not apply to affected EGUs. IEPA's proposal requesting the Board to 

amend the Illiliois rules is the first step to revision of the SIP. Upon completion of this 

rulemaking, IEPA may then submit rules to USEPA for formal approval and SIP inclusion. 

To address and remove this duplication, the proposal would "sunset" the provisions of the 

NO, Trading Progran~, by adding a new Part 21 7.751. The full text of the proposed rule is: 

Section 217.751 Sunset Provisions 

The provisions of this Subpart W shall not apply for any control period in 2009 or 

thereafter. Nollcompliance with the provisions of this Subpart that occursed prior 

to 2009 is subject to the applicable provisions of this Subpart. 

(Source: Added at 33 Ill. Reg. - L ~ffective ) 

The Agency states that this proposal is consistent with the provisions of 40 CFR 

51.123@b)(I)(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. SR at 3. 

As to the scope of the rule, the Agency states that the entire State of ifli~lois was subject 

to the NO,, SIP Call and is now subject to CAIR. The proposed regulatiolls will affect existing 

EGUs. There are approximately 229 existing EGUs tllat are currently subject to the NO, SIP Call 

Trading Program. For the NO, SIP Call Trading Progra~n, existing units are those that 

commenced operation before May 1, 2006. Of these units, 170 are gas and oil fired boilers, 50 

are coal-tired boilers, and ihe remainder are gas and oil-fired combustion turbines. SR at 3. 

' There has been no final action by USEPA on its CAIR rules. The Board has never been asked 

to construe what effect, if any, the status of the federal CAIR rules has on the Board's Part 225 

CAIR NO, rules. 
The statement of reasons indicates that the Agency did an electronic e-mail outreach to 

the 229 existing EGUs tl~at are subject to tile Part 217 NO, Trading Program mles, and has 

identified no significant issues. SR. at 4-5. 

The Agency accordingly concludes that 

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 

illjury 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. 

The amendments to Part 217.Subpali W are 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, allowances for the NO, 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. SR at 5. 

PROCEDURAL HISTORY 

As previously stated, the Agency filed this proposal on April 21, 2009. The Agency also 

filed a motion (Mot.) requesting the Board to expedite consideration of the proposal. See 415 

ILCS 5128 (2008); 35 Ill. Adin. Code 102.202(g) and 101.512. The motion to expedite requested 

that the Board cause immediate first notice publication of the proposal under the APA, 5 ILCS 

100 et seq. (ZOOX), without Board comment on the merits and schedule public hearings as so011 

as possible. Mot. at 2-3. 

By order of May 7,2009, the Board denied the Agency's motion for expedited 

consideration, but did authorize first-notice publication of the proposal in the Illinois Registev 

without comment on the proposal's merits, and directed the hearing officer to promptly schedule 

hearings. Nitrogen Oxide (NO,) Trading Program Sunset Provisions for Elechic Generating 

Units (EGUts): New 35 111. ~dm. Code 217.751, R09-20 (May 7, 2009). 

By heariilg officer order of May 13,2009, hearings wene set for June 18, 2009 in Chicago 

and July 23,2009 in Springfield. "he hearing officer order also set deadlines for the pre-filing 

of testimony. By letter of October 18, 2008, the Board requested the Director of the Departnlent 

of Coinmerce and Economic Oppo~tunity (DCEO) to request an economic impact study (EcIS) 

concenling this rulemaking as required by Section 27 (b) of the Act. 415 ILCS 5/27(b) (2008). 

DCEO has not responded to the Board's request at any time. 

The first hearing was held in Chicago on June 18, 2009, conducted by Hearing Officer 

Kathleen M. Crowley. At the first hearing, the Agency presented testimony timely pre-filed on 

The transcripts for these hearings are not sequentially numbered. The transcript for tile first 

hearing will he cited as "6118109 Tr." and the second as "7123109 Tr." 
June 1,2009 hy Mr. Yoginder Mahajan. Mr. Mahajan has been employed by the Agency since 

March 1992 as an Environmental Protection Engineer in the Air Quality Planning Section in the 

Bureau of Air. This testimony was also entered into the record as Exhihit 1. 6118109 Tr. at 8. 

Counsel for Midwest Generation, ICathleen Bassi of SchifMardin, LLP, posed questions 

concerning enforcement and distribution of unused allowances that Mr. Mahajan was not 

prepared to answer. 6118109 Tr. 8-15. Counsel for the Agency, Rachel Doctors, stated that 

a~~other witness would he provided at the second hearing: David Bloomherg. 611 8/09 Tr. 9. Ms. 

Bassi represented that she might file additional questions for the Agency to answer at the next 

hearing. 

First notice pnhlicatioll of these rules appeared in the Illinoi~s Register on June 26,2009. See 

33 Ill. Reg. 8880 (June 26,2009). This publication started the 45-day public comment period 

under the APA, requiring the Board to accept all comments filed through August 10,2009. 

By e-mail of July 8,2009, Ms. Bassi informed Ms. Crowley that she would not be filing 

any additional questions, and that Ms. Bassi might not he in attendance at hearing. On July 10, 

2009, the Agency pre-filed the testimony of another witness, Mr. David E. Bloomberg. No other 

pre-filed testimony was received. 

The second hearing was held on July 23, 2009 in Springfield, conducted by IIearing 

Officer ~ehb.~ At the hearing, the Agency presented testimony timely pre-filed by Mr. 

Bloomberg. Mr. Bloomberg, an Agency e~nployee for nearly 18 years, for the last five years has 

beell the Compliance Unit Manager in the Compliance Section within the Agency's Division of Air 

Pollution Control. The Bloomherg testimony was also entered into the record as Exhibit 2. 

7123109 'rr. at 8. No questions were asked of Mr. Blooinherg. 

The hearing officer noted that DCEO had not responded to the Board's May 13,2009 

Ecls letter. The hearing officer relayed that Section 27(b) requires the Board to hold a hearing 

on the economic impact of the rules, any EcIS submitted, and on any explanation DCEO 

provides for not conducting an EcIS. The hearing officer also explained that Section 27(h) 

allows the Board to dovetail the economic impact healing with any other hearing. 7/23/09 Tr. at 

5-6. The hearing officer asked whether any person wished to address EcIS issues, and no one 

responded. 7/23/09 Tr. at 8-9. 

Section 102.108 (b) of the Board's procedural rules also provides that the Board will 

accept comments for 14 days after the receipt of the heanng transcript, or at any other date set by 

the hearing officer. The close of the comment period was set for Friday, August 21,2009. 

7/23/09 Tr. at 14. 

The first post hearing comment (PC 1) was timely filed by Southem Illinois Power 

Cooperative (SIPC) on August 21,2009. SIPC suggested changes lo the proposal that would 

have required the Agency to disburse allowances. The Agency filed a comment and response in 

opposition to the SIPC comment on August 25,2009 (PC 2); this was accoinpanied by a motion 

' I-Iearing Officer Crowiey explained that the second hearing might he conducted by Springfieldbased Hcariilg Officer Carol Webb, to economize on Board travel expenses. 6/18/09 Tr. at 23. 
for leave to file, which is here granted. Also on August 25, 2009, SIPC responded by e-mail to 

the Agency's query as to whether it would accept e-mail service. SIPC agreed that it would, but 

disagreed with the Agency's statement of facts; this e-mail was docketed as PC 3 to allow for 

consideration of SIPC's substantive remark. 

The Board adopted its second notice opinion and order on September 17,2009. JCAR 

coilsidered the rule at its October 14, 2009 meeting, and voted a certificate of no objection. 

HEARING TESTIMONY 

Mahaian Testimony 

As previously stated, the only witness at the first hearing was the Agency's Yoginder 

Mahajan. Mr. Mahajan has been employed since March 1992 as an Environmental Protection 

Engineer in the Air Quality Planning Section in the Bureau of Air. He worked for various metal 

fabrication companies for nine (9) years. Mr. Mahajan's educational background includes a 

Bachelor of Engineering Degree in Mechanical Engineering horn Bhopal University at Bhopal. 

India. Prior to his employment by the Agency, Mr. Mahajan worked for various metal 

fabrication companies for nine years. Exh. 1 at 1. 

As part of his regular duties in the Air Quality Planning Section, Mr. Mahajan has been 

involved with preparing emissions estimates for various source categories used in the 

development of the 1990 ozone season weekday emissions inventories; evaluating control 

technologies applicable to VOM emissions sources utilized in the preparation of the Rate-ofProgress plans for the Chicago and St. Louis ozolle nonattainment areas; and assisting in the 

develop~nent of regulations for the control of VOM emissions from the source categories 

included in the Rate-of-Progress plans. Regarding the R09-20 proposal, Mr. Mahajail testified 

that he has been involved in the development of the regulations to control nitrogen oxides (NOx) 

emissions from electrical generating units. Exh. 1 at 1. 

Mr. Mahajan related that the rules adopted in Proposed New 35 Ill. Adm. Code 217. 

Subpart W. The NO, Trading Propram for Electrical Generatinp Units. and Amendments to 35 

Ill. Adm. Code 21 1 and 217, R 01-9 (Dec. 21,2000) were intended to comply with the NOx SIP 

Call promulgated by USEPA in October 1998. See 63 FR 57356 (October 27,199S). The NOx 

SIP Call Trading Program was an ozone season trading program administered by USEPA. 

USEPA adopted the federal CAIR rules in 2005. See 70 FR 25162, May 12,2005. The 

Board adopted Illinois CAlR rules in Proposed New Clean Air Interstate Rule (CAIR) SOz,PdOn 

Annual and NO, Ozone Season Trading Promams. 35 Ill. Adm. Code 225, Subparts A. C, D, E 

&, R 06-26 (Aug.23,2007). The sources affected by CAlR are the same electrical generating 

units that were affected by the NO, SIP Call rules in Subpart W of 35 Ill. Adm. Code 21 7. The 

NOx SIP Call rules and CAIR are cap and trade programs that require affected sources to hold 

NOx allowances equal to their NO, emissions. The monitoring and reporting of NO, emissions 

in both programs are substantially identical. 

Mr. Mahajan testified that, for Illinois, USEPA allocated 30,701 NO, allowances in 

Phase I of the CAIR ozone season NOx trading budget. This is the same number of NO, 
allowances allocated in the NOx SIP Call trading budget. After deducting 30% of the 

allowances for the new unit set-aside and clean air set-aside, the Agency allocated 21,491 NO, 

allowances for each ozone season in 2009 through 201 1 to the 249 affected units pursuant to 

procedures set forth at Part 225. Subpart E. The estimated NO, enlissions reductions from NO, 

SLP Call were 85,777 per year from 2007 base year NO, emissions. In Phase 11 of CAIR, starting 

with the 2015 ozone season, USEPA allocated 28,981 NO, allowances per ozone season. Mr. 

Mahajan stated that the Agency believes that the CAIR NO, ozone trading will provide 

reductions in NO, emissions equal to or greater than the estimated reductions in NO, emissions 

achieved from the NO, SIP Call rules. 

In the preamble to the CAIR rule published at 70 FR 25162 (May 12,2005), USEPA 

stated that 11 would not administer the NO, SIP Call Ozone Season Trading Program after 

September 30,2008. CAIR provided for the NO, SIP Call Tradmg Program to be replaced by 

the CAIR Ozone Season NO, Trading Program. 

As to the specifics of the R09-20 proposal, Mr. Mahajan noted that the proposed Sunset 

Provisions, Section 217.751 of 35 Ill. Adm. Code would require that the provisions of Subpart W 

not apply for any control period in 2009 or thereafter. Noncompliance with the provisions that 

occurred prior to 2009 would remain subject to the applicable provisions of Subpart W. 

Adoption of this proposal will eliminate duplicate requirements for the affected sources. Mr. 

Mahajan stated that the Agency that this proposal is consistent with U.S. EPA's requirements 

and it will not adversely impact the affected sources or the air quality in Illi~lois. 

Counsel for Midwest Generation, Kathleen Bassi of Schiffllardin, LLP, posed questions 

concemillg enforce~nent and distxibution of unused allowances that Mr. Mahajan was not 

prepared to answer. 6/15/09 Tr. 8-15. Counsel for the Agency, Rachel Doctors, stated that 

another witness would be provided at the second hearing: David Bloomberg. 611 8/09 Tr. 9. 

Mr. Mahajan clarified units of measurement in his testimony in response to questions 

from the Board. After the close of questioning, counsel for the Agency stated that the Agency 

"hoped" that the rule could be "fully adopted" no later than November 30,2009 Tr. at 20. 

Counsel for Midwest Generation stated the client 

does support this sunsetting rule proposal. And we appreciate the Agency's 

concern with the double -- the duplicative requirements that would apply 

otherwise. And so, November 30th is a really good target date, so there's not 

double recordkeeping to be done. Tr. at 21. 

Bloombere Testimonv 

Mr. David E. Bloomberg appeared at the second hearing to provide testimony regarding 

questions that arose during the first hearing on this matter. Mr. Bloomberg remarked that, while 

the issue of distribution of allowances goes beyond the intended scope of this rulemaking, he was 

providing background testimony at the request of the Board. Mr. Bloomberg has served for the 

last 5 years as the Compliance Unit Manager in the Compliance Section within the Agency's 

Division of Air Pollution Control. He was previously an Environmental Protection Engineer in 
the Air Quality Planning Section for twelve and a half years. Mr. Bloomberg's academic 

credentials include a Bachelor of Science degree in ceramic engineering from the University of 

Illinois at Champaign-Urbana, as well as coinpletion of all graduate coursework required for a 

Master's dcgree in the same field. Exh. 2. at 1. 

Mr. Bloomberg stated that, among other duties, he supervised Illinois' portion of the 

now-defunct NO, trading program run under the NO, SIP Call, as well as supervising Illinois' 

portion of the current CAIR NO, trading program. Both of these programs involved determining 

or approving the detes~nination of which sources are eligible to receive certain types of 

allowances, such as early reduction credits and new source set-asides; determining or approving 

the determination of apportionment of allowances given to such sources or to other sources 

eligible to receive allowances; collecting or overseeing the collection of monies for sales of 

certain NO, allowances; informing USEPA how to distribute NO, allowances to Illinois sources; 

serving as the designated account representative Car the State of Illinois; answering questions 

concerning the Illinois NO, rules; and related tasks. Exh. 2. at 1. 

Mr. Bloomberg relayed that, in addition, as manager of the Compliance Unit, he approves 

Agency reviews of esnissions and ~nonitors testing conducted for sources subject to NO, 

regulations, participates in decisions regarding enforcement of the Board's air pollution 

regulations, interacts with USEPA regarding federal enforcement cases in Illinois, and oversees 

the process of sending out Violation Notices and elated activities. During his tenure at the 

Agency, Mr. Bloomberg has been involved in designing, writing, implementing, and enforcing a 

wide variety of air pollution regulations, including those for NO, trading, CAIR, mercury, the 

Emissions Reduction Market System (ERMS), and several industry-specific rules. Exh. 2. at 1. 

Mr. Bloomberg first addressed whether the last truly applicable provisions of 35 Ill. Adm. 

Code.Subpart W occurred at the end of the 2008 ozone season. Mr. Bloomberg stated that "The 

answer to this is yes, if this rulemaking goes through." With CAlR replacing the NO, SIP Call 

trading program, there are no more NO, SIP Call allowa~~ces and thus no requiremeslts relating to 

such. However, Mr. Bloomberg clarified that there are recordkeeping and reporting requirements 

which would be duplicative and potentially contradictory with CAIIi requirements for affected 

sources, which is a major reason the Agency has proposed this sunset rulemaking. Exh. 2. at 1. 

Mr. Bloomnberg next addressed the question of whether the Agency presently knows, or 

would know within a shod time period whether or not there have been violations under 35 111. 

Adm. Code.Subpart W. Mr. Bloomberg in the negative, stating there is no guarantee the 

Agency would know in a shod time period whether or not there were violations. Sometimes, it 

may take several years to determine that such a violation took place. For example, in one case, 

an emissions test had been completed incorrectly hut the problcms were not determined for two 

or three years. Once they were, the source's NO, enlissions for the past several years had to be 

recalculated, causing the source to be in noncompliance with the NO, SIP Call trading program 

ror those previous years. At least one other case similarly involved noncompliance that was 

discovered two or more years afler the NO, allowances should have been provided. For this 

reason, Mr. Bloomberg believes it is necessary to retain the Subpart W regulations in order to 

preserve the Agency's ability to enforce these regulations, should situations arise where it 

becomes necessary. Mr. Bloomberg believes this is a fairly standard practice when revising air 
pollution regulations, and stated tliat he has been involved in several rulemakings where 

regulations were changed but older versions of the regulations were maintained on the books for 

precisely this enforcement purpose. Exh. 2. at 2. 

Mr. Bloomberg then testified as to whether all allowances that have been provided by 

USEPA to Illinois under the NO, SIP Call program been distributed to EGUs. Mr. Bloomberg 

said that 

The answer to that is no, because the current regulatio~ls do not provide for such 

distribution. The correct number of allowances greater than three percent (3% ) of 

the New Source Set-Aside PSSA) is in the process of being distributed to EGUs, 

pursuant to 35 Ill. Adm. Code 217.764 and 217.768. However, that is the only 

pertinent distribution provided for under these regulations. As such, this also answers 

another question, which is wheil the other allowances will be distributed - they will 

not, until and ullless the Agency makes a decisioli to do so and a new regulation is 

passed by the Board to provide for such. However, the Agency is not seeking 

authority to distribute such allowances at this time and, as noted previously, such 

allowance distribution falls outside the scope of this rulemaking. 

The same answer also applies to the final question that was raised, asking if there are 

other allowances falli~~g outside the umbrella of those already described. There are 

some other allowa~~ces that reside in Illiiiois' account for which no distribution is 

currently planned. Some of these are from the non-EGU trading budget under Part 

21 7.Subpart U , some are for allowances that were part of some other distribution but 

were left over due to rounding when allocating on a pro-rata basis. These allowances 

would presumably be addressed in the sane manner as described earlier. 

Exh. 2. at 2. 

Finally, Mr. Blooml>erg gave verification that NO, SIP Call allowances indeed became 

CAIR allowances. Exh. 2. at 2. 

PUBLIC COMMENTS 

In its public comment, signed by Leonard F. Hopkins, P.E., Southern Illinois Power 

Cooperative (SIPC) stated that SIPC is an entity affected by the proposed rulemaking which 

participated in the Agency's pre-proposal out~each program. SPC operates a coal-fired power 

plant located near Marion, niinois, and is subject to the NO, Tradiug Program rules at 35 Ill. 

Adm. Code Part 217.Subpart W as well as the Illinois CAIR rules at 35 Ill. Adni Code Part 225, 

Subparts D and E, and the Illinois mercury rule, 35 Ill. Adm. Code Part 225.Subpart B. PC 1 at 

SII'C generally supports the Agency's proposal to sunset the provisions of Part 217. 

Subpart W, and agrees that the duplicative recordkeeping and reporting created by the NO, 

Seasonal CAE are unnecessary and burdensome. PC 1 at 1. However, as SIPC told the Agency 
during outreach, SIPC believes that 

if the Board is going to sunset Subpart W, it should do it completely. That is, the 

Board should, in this rulemaking, address the distribution of NO, Budget 

allowances renlaining in the Agency's account. . . .Since the authority to 

distribute allowances lies in the Board's rule, then the Board can alter that 

authority in this sunset rulemaking by providing that the Agency distribute all 

remaining NO, allowances. To accomplish this, SIPC suggests the following 

language: 

The provisions of this Subpart W shall not apply for any control period in 

2009 or thereafter. All allowances remaining in the Agencv's accounts shall be 

distributed pursuani to the provisiolls of Section 217.7641h)(4)(A) and (B) of this 

Subpart. Noncompliance with the provisions of this Subpart that occurred prior to 

2009 is subject to the applicable provisions of this Subpart. PC 1 at 1-2 

(underlining of new proposed language in original). 

SfPC contends that if the Board does not address distribution of the remaining NO, 

allowances in this rulemaking, then either the Board will have to hold a second rulemaking to 

address this deficiency in this proposed rule or the allowances will, effectively through neglect, 

be subject to the retirement provisions of the CAIR rules, citmg 35 111.Adm.Code 225.545(i) and 

225.575@)(4). PC 2 at 2. SIPC suggests tl~at Subpart W generally provided for distribution of 

excess allowances to existing electric generating units, while CAIR focuses on the retirement of 

excess ailowances. Icl. SIPC states that 

These are dianletrically opposed means of addressing excess allowances. The 

Agency's direction in Subpart W should continue to apply to the remaining NO, 

Budget allowances rather than allowing the Agency to apply the direction of the 

CAIR by not addressing disposition of the remaining ailowances at this time. 

This issue is properly before the Board at this time, as the question of the 

unallocated allowances was raised at the first hearing and addressed in testimony 

at the second hearing (citations omitted). There are a total of at least 1,212 New 

Source Set-Aside ("NSSA") allowances remaining plus a number of allowances 

from the general pool not distributed due to rounding. See Agency Trading 

website: <www.epa.state.il.us/airinoxi> and 

<www. epa.state.il.us/air/~~ox/allowances.hhnl. In 2007 and 2008, the Agency 

set aside 614 allowances into the NSSA~. 35 Ill. Adun. Code 5 217.760(a)(2). 

011ly 16 allowances were distributed from the NSSA in 2007, and none were 

distributed in 2008, leaving 1,212 nndistributed allowances in the NSSA. PC 1 at 

4 PC 1 contains a footilote 1 at this point in the original tcxt which reads "This 

information was on the Agency's website shortly after the June 18 hearing, but has siuce 

apparently been removed." PC 1 at 3. 
SIPC concludes that it is timely and appropriate for the Board to address the issue of the 

undishibuted NO, Budget allowances remaining in the Agency's account, and SIPC requcsts that 

the Board amend the proposed rulemalting with the addition of direction to the Agency to 

distribute the remaining NOx Budget allowa~~ces. PC1 at 3. 

PC2: the Aeencv 

In PC 2, the Agency responds to SIPC's assertions in PC l (referring to the 

commenter as SLPCo). In summary, the Agency requests that the Board adopt the rule as 

proposed at first notice. The Agency states that 

SIPCo is requesting that Board address the distribution of NOx Budget 

allowa~~ces remaining in the Illinois EPA's account. SIPCo raises the specter 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 NO, SIP Call allowances &om the Illinois EPA's NO, 

budget account to its Clean Air Interstate Rule ("CAIR") NO, Ozone Season 

account by the United States E~lvironmental Protection Agency ("USEI'A") does 

not confer any additional authority on the Illi~lois 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 NO, SIP Call allowances. Section 

225.545(i) applies to allowances from the CAlR New Unit Set-Aside ('?\IUSA"). 

As the NO, SIP Call allowances are not part of the CAIR NO, 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@)(4) refers to allowances that have been 

portioned from the CAIR NO, Ozone Season Budget for the Clean Air-Set Aside 

("CASA"). As the NO, SIP Call allowances are not part of the CAIR budget, tiley 

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 NO, SIP Call does not make tllem 

allowances in the NUSA under Illinois' CAIR program. There is no provision for 

such allowances to he hailsfel-red into the NUSA category, because there is no 

provisioll for how these allowances will be treated under the CAIR program. PC 

2 at 1-2. 

The Agency does not believe that a second rulemaking will be needed if the allowances 

that were not allocated under the NO, SIP Call trading program are not addressed in this docket. 

The Agency states that it will he reopening Part 225 after USEPA addresses the vacatur and 

remand of the CAIR rule under the North Cn~,olina v. EPA, No. 05-1244 (D.C. Cir. 2008) 

decisioil. PC 2 at 2. 
The Agency strongly disagrees with SIPC's contention that this rulemaking provides an 

appropriate vehicle for considering the issue of the u~lallocated allowances. The Agency reminds 

that it has repeatedly stated that the unallocated allowances are outside the scope of its proposal 

here. The Agency argues that SIPC has never put forth a proper justification for this proposal at 

the appropriate point in this rulemaking, and has failed to nlake any assertion that it would be 

prejudiced by waiting for the Agency to address this issue in a later proposal. The Age~lcy 

suggests that interested persons have had no opportunity to address the merits of SIPC's 

proposal, suggesting the proposal is faulty: 

Further, it should be noted that SIPCo's proposed amendment that provides 

"All allowances remaining in the Agency's accounts shall be distributed pursuant 

to the provisions of Section 21 7.764(b)(4)(A) and (B)," does not address the issue 

as it applies only to the 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. PC 2 at 3. 

The Agency urges 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 a future Agency proposal for 

amendments to Part 225, The Agency continues to believe that SIPC's proposed amendment 

falls beyond the scope of the current rulemaking. The Agency requests that the Board adopt the 

proposed rules to address substantive and duplicative requirements that face both the Agency and 

affected EGUs. PC 2 at 3 

PC3: SIPC 

When filing PC2, the Agency addressed electronic copies to persons on the service list, 

stating that it would supply hard copies to anyone who objected to such service. SIPC replied to 

the Agency and the Board; the reply was docketed as PC 3 due to the name of the reply. PC3 

states in its entirety: 

The electronic service is fine. 

While I disagree with your opinion of the facts, there is no need to waste paper with a 

hard copy for the sake of service. Also, there certainly was no intent on the part of SIPC 

to wait until the last minute with these comments, but there have been a large number of 

environmental issues this summer that has absorbed the time of our VERY small staff 

(2). PC3 

DISCUSSION Ah73 CONCLUSION 

The facts presented here are clear. The entire State of Illinois was subject to the NO,, 

SIP Call and is now subject to CAR. The proposed amendment to 35 111. Adm. Code 

217.Subpart W will affect existing EGUs. There are approximately 229 existing EGUs that are 

cun-ently 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. SR at 3. 

Only two of the 229 EGUs affected have commented in this rulemaking: Midwest 

Generation and SLPC. Both support the language of the Agency proposal, although SIPC argues 

that it does not go far enough. While economic benefits have not been quantified in this record, 

the Agency and commenters agree that removal of duplicative requirements will present an 

economic benefit in the form of reduced recordkeep~ng and reporting. 

The Board finds that the facts presented in support of the Agency's proposal are 

uncontroverled. USEPA has stopped allocating NO, allowances for the NO, SIP Call Trading 

Program. The amendments to Part 217.Suhpart W are being proposed to ensure colisistency with 

the CAIR ozone season program and prevent EGUs froin being subject to duplicative 

monitoring, reporting, pennitting and recordkeeping requirements. As this proposal sunsets 

regulatory provisions, it would impose no new requirements or costs on affected sources. The 

Board accordingly finds that this record demonstrates that the proposed rule if adopted is 

technically feasible, economically reasonable, and, in the words of Section 27 (b) of the Act, will 

have no "adverse economic impact on the people of the state of Illinois." 415 ILCS 5127(b) 

(2008). 

The 2009 ozone season control period (May 1,2009, through Septe~nber 30,2009) is 

over. But, the record is also clear that it would be beneficial if the proposed rules are adopted 

and effective on or before November 30, 2009. The Board finds that it would be impossible to 

conclude this sulemaking under that timetable if the Board were to consider the issue of 

unallocated allowances now. The Board declines to add the language proposed by SIPC. 

As the Agency points out, the regulated community and members of the public have had 

no meaningful opportunity to comment on whether the issue of unallocated allowances should be 

addressed in Part 217 at all, let alone by insertion of the language as proposed by SIPC. SIPC 

has failed to supporl its proposed additional language with convincing evidence and argument. 

If SIPC believes that it cannot wait for the Agency to address this issue in some future 

rulemaking to amend 35 Ill. Adn~. Code Part 225, SIPC is free to file a regulatory proposal tlmt 

complies with the requirements of Section 27 of the Act and the Board's procedural mles at 35 

Ill. Adm. Code 102. 

For all of the foregoing reasons, the Board adopts as a final nlle Section 217.751 set forth 

below. The rule text itself is unchanged since first notice publication. But, the table of contents 

of Part 217 now lists Subparts D through M, added in rulemakings completed during the 

pelldelicy of this R09-20 proceeding. See, Section 27 Proposed Rules for Nitrogen Oxide (NOx) 

Emissions From Stationa~ Reciprocating Internal Combustion Engines and Turbines: 

Amendments to 35 Ill. Adnl. Code Parts 21 1 and 217, R07-19 (July 23,2009) and Nitrogen 

Oxides Emissions From Various So~~rce Categories, Amendmei~ts to 35 Ill. Adm. Code Parts 21 1 

a, R08-19 (Aug. 20, 2009). 
ORDER 

The Board directs the Clerk to submit the following adopted rules to the Secretary of 

State for filing, to become effective upon the date of filing: 

TITLE 35: ENVIRONMENTAL PROTECTION 

SUBTITLE B: AIR POLLUTION 

CI-IAPTER 1: POLLUTION CONTROL BOARD 

SUBCHAPTER c: EMISSION STANDARDS AND LIMITATIONS 

FOR STATIONARY SOURCES 

PART 217 

NITROGEN OXIDES EMISSIONS 

SUBPART A: GENERAL PROVISIONS 

Section 

217.100 Scope and Organization 

217.101 Measurement Methods 

217.102 Abbreviations and Units 

217.103 Definitions 

217.104 Sncorporations by Reference 

SUBPART B: NEW FUEL COMBUSTION EMISSION SOURCES 

Section 

217.121 New Emission Sources (Repealed) 

SUBIJART C: EXISTING FUEL COMBUSTION EMISSION UNITS 

Section 

217.141 Existing Emission Sources in Major Metropolitan AI-eas 

SUBPART D: NO, GENERAL REQUIREMENTS 

Section 

217.150 Applicability 

217,152 Compliance Date 

217.154 Performance Testing 

217.155 Initial Compliance Certification 

217.156 Recordkeeping and Reporting 

217.157 Testing and Monitoring 

217.158 Emissions Averaging Plans 
SUBPART E: INDUSTRIAL BOILERS 

Section 

217.160 Applicability 

217.162 Exemptions 

217.164 Emissions Limitations 

217.165 Combination of Fuels 

217.166 Methods and Procedures for Combustion Tuning 

SUBPART F: PROCESS HEATERS 

Section 

217.180 Applicability 

217.182 Exemptions 

217.184 Emissions Limitations 

217.185 Combination of Fuels 

217.186 Methods and Procedures for Combustion Tuning 

SUBPART G: GLASS MELTWG FURNANCES 

Section 

217.200 Applicability 

217.202 Exemptions 

21 7.204 Emissions Limitations 

SUBPART 11: CEMENT AND LIME KII.NS 

Section 

217.220 Applicability 

217.222 Exemptioils 

217.224 Emissions Limitations 

SUBPART I: IRON AND STEEL AND ALUMINUM MANUFACTURING 

Section 

217.240 Applicability 

217.242 Exemptions 

2 17.244 Emissions Limitations 

SUBPART K: PROCESS EMISSION SOURCES 

Section 

217.301 Industrial Processes 
SUBPART M: ELECTRICAL GENERATING UNITS 

Section 

217.340 

217.342 

217.344 

217.345 

Section 

217.381 

Section 

217.386 

217.388 

217.390 

217.392 

217.394 

217.396 

Section 

217.400 

217.402 

21 7.404 

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 

Applicability 

Exemptions 

Emissions Limitations 

Combination of Fuels 

SUBPART 0: CHEMICAL MANUFACTURE 

Nitric Acid Manufacturing Processes 

SUBPART Q: STATIONARY RECIPROCATING 

INTERNAL COMBUSTION ENGINES Ah'D TURBINES 

Applicability 

Control and Maintenance Requirelnents 

Emissions Averaging Plans 

Compliance 

Testing and Monitoring 

Recordkeeping and Reporting 

SUBPART T: CEMENT KILNS 

Applicability 

Control Requirements 

Testing 

Monitoring 

Reporting 

Recordkeeping 

SIJBPART U: NO, CONTROL AXD TRADING PROGWM FOR 

SPECIFIED NO, GENERATING UNITS 

Purpose 

Severability 

Applicability 

Compliance Requirements 

Permitting Requirements 

Subpart U NO, Trading Budget 

Methodology for Obtaining NO, Allocations 

Methodology for Determining NO, Allowances f'orn the New Source Set-Aside 

NO, Allocations Procedure ihr Subpart U Budget 'CJnits 
Section 

217.521 

217.700 

217.702 

217.704 

217.706 

217.708 

21 7.710 

217.712 

Section 

217.750 

217.751 

217.752 

217.754 

217.756 

217.758 

217.760 

217.762 

New Source Set-Asides for "New" Budget Units 

Early Reduction Credits (ERCs) for Budget Units 

Low-Emitter Requirements 

Opt-In Units 

Opt-ln Process 

Opt-In Budget Units: Withdrawal from NO, 'Trading Program 

Opt-ln Units: Change in Regulatory Status 

Allowance Allocatio~ls to Opt-In Budget Units 

SUBPART V: ELECTRIC POWER GENERATION 

Lake of Egypt Power Plant 

Purpose 

Severability 

Applicability 

Emission Linlitations 

NO, Averaging 

Monitoring 

Reporting and Recordkeepillg 

SUBPAR?' W: NO, TRADING PROGRAM FOR 

ELECTRICAL GENERATING UNITS 

Purpose 

Sunset Provisions 

Severability 

Applicability 

Co~llpliance Requirements 

Permitting Requirements 

NO, Trading Budget 

Methodology for Calculating NO, Allocations for Budget Electrical Generating 

Units (EGUs) 

NO, 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, Trading Program 

Opt-In Units: Change in Iiegulatory Status 

Allowance Allocatioi~s to Budget Opt-In Units 
Section 

217.800 

217.805 

217.810 

217.815 

217.820 

217.825 

217.830 

217.835 

217.840 

217.845 

217.850 

217.855 

217.860 

217.865 

SUBPART X: VOLUNTARY NO, EMISSIONS REDUCTION PROGRAM 

Purpose 

Emission Unit Eligibility 

Participation Requirements 

NO, Emission Reductions and the subpart X NO, Trading Budget 

Baseline Emissions Determination 

Calculation of Creditable NO, Emission Reductions 

Limitations on NO, Emission Reductions 

NO, Emission Reduction Proposal 

Agency Action 

Emissions Determination Methods 

En~issions 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 Colnbustion Engines Affected by the NO, 

SIP Call 

Compliance Dates for Certain Emissions Units at Petroleum Refineries 

AUTHORITY: Implel~lenting Sections 9.9 and 10 and authorized by Sections 27 and 28.5 of the 

Et~vironmental Protection Act [415 ILCS 519.9, 10,27 and 28.5 (2004)l. 

SOURCE: Adopted as Chapter 2: Ail. 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 R01-9 at 25 Ill. Reg. 128, 

effective December 26,2000; amended in ROl-I l at 25 Ill. Reg. 4597, effective March 15,2001; 

amended in R01-16 and R01-17 at 25 Ill. Reg. 5914, effective April 17,2001; amended in R07- 

18 at 31 Ill. Reg. 14271, effective September 25, 2007; amended in R07-19 at 33 Ill. Reg. 11999, 

effective August 6, 2009; amended in R08-I9 at 33 Ill. Reg. , effective 

amended in R09-20 at 33 Ill. Reg. . effective 
SlJBPART W: NO, TRADING PROGRAM FOR ELECTRICAL 

GENERATING UNITS 

Section 217.751 Sunset Provisions 

applicable wovisions of this Subpart. 

(Somce: Added at 33 111. Reg. -, effective - 1 

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that 

the Board adopted the above opillio~l and order on October 15,2009, by a vote of 5-0. 

John T. Theniault, Assistant Clerk 

Illinois Pollut~on Control Board 
BEFORE THE ILLINOIS POLLUTION CONTROL BOARE) 

IN THE MATTER OF: 1 

1 

NOX TRADING PROGRAM SUNSET ) R09- 

PROVISIONS FOR ELECTRIC ) (Rulemaking - Air) 

GENERATING UNITS (('EGUS") 1 

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. First Notice 

8. Proposed Amendments to 35 111. Adm. Code Part 217.Subpart W: 

9. Synopsis of Testimony 

10. Motion to Expedite 

11. Outreach Exhibits: 

I. First e-mail sent from Rob Kaleel dated March 19, 2009 

ii. Second e-mail sent from Rob Kaleel dated March 19. 2009 

12. Documents Relied 011 

"a. Illinois Environmental Protection Act (415 ILCS 5let. seq.) 
*b. The Clean Air Act, as amended in 1990 (42 U.S.C. $7401 et seq.) 

kc. Rule to Reduce Interstate Transport of Fine Parliculate 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 of I~nplementation Plans of Illinois; Clean Air Interstate Rule, 

72 Fed. Reg. 58528 (October 16,2007) 

"f. North Cavolina v. USEPA, 531 F.3d 896 (C.A.D.C. Cir. 2008) 

"g. Novth Carolina v. USEPA, 550 F.3d 1176 (C.A.D.C. Cir. 2008) 

13. Certificate of Service 

"Copies of documents with an asterisk beside the letter have not been provided 
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

IN THE MATTER OF: 1 

1 

NO, TRADING PROGRAM SUNSET ) R09- 

PROVISIONS FOR ELECTRIC 1 (Rulemaking - Air) 

GENERATING UNITS ("EGUS") 1 

AMENDMENTS TO 35 ILL. 1 

ADM. CODE PART 217.SUBPART W ) 

NOTICE 

TO: 

John Therriault, Assistant Clerk Matthew Dunn, Chief 

Illinois Pollut~on 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, Illiilois 60601 

Virginia Yang 

Deputy Legal Counsel 

Illinois Dept. of Natural Resources 

524 South Second Street 

Springfield, Illinois 62701-1787 

PLEASE TAKE NOTICE that I have today filed with the Office of the Pollution Control 

ILL. ADM. CODE PART 21 7.SUBPART W, APPEARANCE, MOTION TO EXPEDITE, and 

AFFIRMATION of the Illinois Env~ronmental Protectiot~ Agency a copy of which is herewith 

served upon you. 

ILLlNOIS ENVIRONMENTAL PROTECTION 

AGENCY 

DATED: 

P.O. Box 19276 

Springfield, Tllinois 62794-9276 

By: 

Rachel I,. Doctors 

Assistant Cou~isel 

Division of Legal Counsel 

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

IN THE MATTER OF: ) 

1 

NO, TRADING PROG SUNSET ) R09- 

PROVISIONS FOR ELECTRIC 1 (Rulemaking - Air) 

GENERATING UNITS ("EGUS") ) 

AMENDMENTS TO 35 ILL. 1 

ADM. CODE PART 217.SUBPART W ) 

APPEARANCE 

The undersigned, as one of its attorneys, hereby enters ail Appearance on behalf of the 

Illinois Environmental Protection Agei~cy. 

ILLINOIS ENVIRONMENTAL PROTECTION 

AGENCY 

By: 

Rachel L. Doctors 

Assistant Counsel 

Division of Legal Couilse! 

DATED : 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

21 71782.5544 
Agency Analysis of Economic and 

Budgetary Effects of Proposed Rulemaking 

Agency: Illinois Pollution Control Board 

PartJTitle: 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 

explaxation. 

1. Anticipated effect on State expenditures and revenues. 

(a) Current cost to the agency for tl-~is programiactivity. $15.000 Der year 

(approximatelv) 

(b) If this rulemaking will result in an increase or decrease in cost, speciy the fiscal year in 

which this change will first occur and the dollar amount of the effect. 

.No change m expense to the Illinois EPA 1s expected, as the NO, SIP Call Trading 

Program has been replaced by tile CAIR NOx Ozone Season Tradm~ Promam. 

(c) Indicatc the funding source, mcludmg Fund and appropriation imes. for this 

pro grandactivity 

Clean Air Act Permit Program Fund (CAAF'P) 

(d) If an increase or decrease in the costs of anotl~er State agency is anticipated, 

specify the fiscal year in which this change will iirst occur and the estimated dollar 

amount ofthe 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 CAR NO, Ozone Season Trading Programs. 

(e) Will this nilemal&g have any effect on State revenues or expenditures not already 

indicated above? & 

2. Econom~c effect on persons affected by thc rulemaking: 

(a) Indicate the economic effect and spec& the persons affected: 

Positive x Negative ___ No effect - 

Persons affected: Owners and onerators of electric generatmg Lrnlts sublect to the 

requirements of 35 Ili. Adm. Code 217.Subparl W. 

Dollar amount per person: - 

Total statewide cost: 
(b) If an economic effect is predicted, please briefly describe how the effect will occur. 

Adoption of this rulemaldnr! will eliminate duplicate requirements. 

(c) Will the rulemaking havc 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 rulemalting should have no indirect effect that may result in increased administrative * 
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

IN THE MATTER OF: ) 

1 

NO, TRADING PROGUM SUNSET 1 R09- 

PROVISIONS FOR ELECTRIC 1 (Rulemaking - Air) 

GENERATING UNITS: ) 

AMENDMENTS TO 35 ILL. 1 

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 Illillois Pollution Col~trol Board ("Board") pursuant to 

Sections l0,27 and 28 of the Environmental Protection Act ("Act") (415 ILCS 5/10,27 and 28) 

and 35 Ill. Adm. Code 102.202(b)) in support of the attached proposed amendments. Included in 

this proposal are anendinents to 35 111. Adin. Code Part 217, Subpart W. This proposal amends 

the most recent version of Par! 217.Subpart W as found on the Board's website 

I. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S PROPOSAI, 

a. Background -The NO, Trading Prograrn 

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 ("USEPA") as part of 

the Illinois State Implementation Plan ("SIP") for ozone on November 8,2001. 66 Fed Reg. 

56449. Subpat 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, SIP Call. 63 Fed. Reg. 57356 (October 27,1998). Subpart W implemented the NO, 

Trading Program for EGUs in Illinois to reduce ozone transport and meet Illinois' obligations 
pursuant to Sections 110(a) (2) and 126 of the Clean '4ir Act ("CAP) 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 inlplementation of the federal NO, Trading Program was required under Phase I of the 

&hour ozone implementation rule. (40 CFR 51.905(f)). 

b. The New NO, Ozone Season Trading Prograin 

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 Interstale Transport of Fine Particulate Matter and Ozone; Revisions to Acid Rain 

Pvogvam; Revisions to the NO, SIP Call, 70 Fed. Reg. 25162 (May 12,2005). Provisions 

implementing CAIR in Illinois were adopted by the Board in 35 111. 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, en~issions during the 

ozone season that replaces the provisions in Part 217.Subpart W for EGUs beginning with the 

2009 control period (May 1 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 nrle in its entirety and remanded the n~le back to USEPA for revision. 

Novth Carolina v. USEPA, 531 F.3d 896 (C.A.D.C. Cir. 2008). The court in its July 2008 

opinion stated that pending the ren~and of the CAIR program to USEPA, the provisions of the 
NO, SIP Call Trading Prograln 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 11 76 (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 beyoud ~mtil the provisions of the NO, Trading Program are sunsetted; namely, the 

duplicative requirements that appear in Part217.Subpa1-t 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)(l)(i), which provide that states with approved CAIR 

programs nlay revise their applicable SIP so that the provisions of the NO, SIP Call Trading 

Program do not apply to affected EGUs. 

11. GEOGRAPHIC REGIONS AND SOURCES AFFECTED 

The entire State of Illinois was subject to the NO, SIP Call and is now subject to CAR. 

The proposed regulations will affect exlstlng EGUs. There are approximately 229 existlng 

EGUs that are currently subject to the NO, SIP Call Trading Program. For the NO, SIP Call 

Trading Program, existing units are those that comn~e~lced 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 conibustion turbines. 

111. PURPOSE AND EFFECT OF THE PROPOSAL 
The purpose of this proposal is to sunset the provisio~ls 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 CAR rule replaces the NO, SIP Call Trading Program wit11 a program that contains both a 

NO, en~issions annual and an ozone season trading program. The Illinois EPA is proposing to 

sunset any requirements related to the NO, SIP Call Trading Program after the 2008 control 

period as set forth in S~~bpart 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 iinplemented 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 

ofthis proposal is appropriate to prevent a burden on affected EGUs. 

IV. TECHNICAL FEASIBILITY AND ECONOMIC REASONABLENESS 

The amendments to Part 217.Subpart W are being proposed to ensure consistency with 

the CAR ozone season program and prevent EGUs from being subject to duplicative 

monitoring, reporting, permitting and recordkeeping requirements. USEPA has stopped 

allocating NO, allowances for the NO, SIP Call Trading Program. As this proposal sunsets 

regulatory provisioils, 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 arc being proposed after representatives of industry and 

environmental groups have had an opportunity to review the proposed changes and provide 

comnlents to the IlIinois 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 
proposal, i.e., the disposition of remainder NO, SIP Call Trading Program allowances. 

Therefore, it is the Illinois EPA's understailding that tliere are no significant issues identified by 

interested parties. 

VI. THE ILLINOIS EPA'S PROPOSAL 

35 111. Adm. Code 217: SUBPART VV: NO, TRADING PROGRAM 

FOR ELECTRICAL GENERATING UNITS 

Section 21 7.751 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, SIP Call Trading Program after the 2008 

control period. The provisions will remain in effect for violations that occurred in controi 

periods prior to 2009. 
VTI. CONCLUSION 

For the reasons stated above, tile Illiilois EPA hereby submits this regulatory proposal 

and respectfully requests that the Board expeditiously adopts these rules for the State of Illinois. 

Respectfully submitted, 

ILLINOIS ENVIROMEKTAL 

PROTECTION AGENCY 

By: 

Rachel L. Doctors 

Assistant Counsel 

Division of Legal Counsel 

DATED: 

1021 North Grand Ave. East 

P.O. Box 19276 

Springfield, IL 62794-9276 
Synopsis of Testimony 

Yoginder Mahajan, Enviromnental 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 CAR 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 lo 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 teclmological and econoinic impacts are anticipated. 
BEFORE THE ILLIlVOIS POLLUTION CONTROL BOARD 

IN THE MATTER OF: 1 

1 

NO, TRADING PROGRAM SUNSET ) R09- 

PROVISIONS FOR ELECTRlC 1 Wulemaking - Air) 

GENERATING UNITS: 1 

AMENDMENTS TO 35 ILL. ) 

ADM. CODE PART 217.SUBPART W ) 

MOTION FOR EXPEDITED REVIEW 

NOW COMES Proponent, the Illinois Environniental Protection Agency ("Illinois 

EPA"), by one of its attorneys, and pursuant to 35 Ill. Adm. Code 101.512, respectfully subrnits 

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 pursuait to USEPA's NO, SIP Call. 63 Fed. Reg. 

57356 (October 27, 1998). 

2. On May 12,2005, USEPA pronlulgated the Clean Air Interstate Rule ("'CAIR") 

with the purpose of replacing the NO, SIP Call Trading Progra~n beginning with the 2009 

control penod Rule to Reduce Inter.stute Transport of Fzne Partzculute Matter and Ozone, 

Revisions to Acid Rain Pvogmin; Revisions to the NO, SIP Call, 70 Fed Reg. 25162 (May 12, 

2005). Provisions inlpleinenting CAIR in Illinois were adopted by the Board in 35 111. Adm. 

Code 225 (R06-22) and approved by IJSEPA on October 16,2007.72 Fed. Reg. 58528. The 

CAR provisions as set forih m Part 225.Subpart E ~nclude a trad~ng program for control of NO, 
emissions during the ozone season that replaces the provisions in Part 217.Subpart W for EGGS 

beginning with the 2009 control period (May 1 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 CAIR rule was 

the subject of court review. On July 11,2008; the 'United States Cowt of Appeals vacated the 

CAIR rule in its entirety and remanded the rule back to USEPA for revision and left the 

provisions ofthe NO, SIP Call Trading Program in place. North Carolina v. USEPA, 53 1 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 

Decembe~ 23,2008, the court unvacated CAIR with implementation to begin with the original 

control period in 2009. North Cavolina v. USEPA, 550 F.3d 1176 (C.A.D.C. Cir. 2008). 

5. With the reinstatement of the CAD2 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 Parl217.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 Illinois EPA requests that the Board proceed to First Notice under 

the Illinois Administrative Procedure Act, 5 ILCS 10011-1 et seq., without reaching a decision on 
its merits, by accepting the regulatory language proposed by the Illinois EPA in this rnlernak'ing 

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 5/28(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 coutained in the 

Statement of Reasons. If more 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 forlh above, the Illinois EPA respectfully requests that 

the Board grant its Motion and expedite review in this matter 

Respectfully submitted, 

ILLINOIS ENVIRONMENTAL 

PROTECTION AGENCY 

By: Is/ 

Rachel L. Doctors 

Assistant Counsel 

Air Regulatory Unit 

Division of Legal Counsel 

DATED: 

1021 North Grand Avenue, East 
P.O. Box 19276 

Springfield, Illinois 62794-9276 

217.782.5544 

217.782.9143 (TDD) 

217.782.9807 x) 
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

STATE OF ILLINOIS 1 

1 SS 

COUNTY OF SANGAMON 1 

i 

CERTIFICATE OF SERVICE 

I, the undersigned, an attorney, state that I have served eleetro~~lcally 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 AFFRMATION of 

the Illlnois 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, Illiilois 60601 

Virginia Yang 

Deputy Legal Couilsel 

Illinois Dept. of Natural Resources 

524 South Second Street 

Springfield, Illinois 62701 -1 787 

SEE ATTACHED SERVICE LIST 

ILLINOIS ENVRONMENTAL PROTECTION 

AGENCY 

Rachel L. Doctors 

Assistant Couilsel 

Air Regulatory Unit 

Division of Legal Counsel 

Dated: April 21, 2009 

102 1 North Grand Avenue East 

Springfield, Illinois 62794-9276 

(217) 782-5544 

217.782.9143 (TDD) 
RULES 

OF GO'dERNMEi\?TAl 

AGENCIES 

Volume 33, Issue 46 

November 13,2009 

Pages 1 5300- 1 5925 
ILLINOIS REGISTER 15754 

09 

POLLUTION CONTROL BOARD 

NOTICE OF ADOPTED AMENDMENT 

1) Heading of tile Part: Nitrogen Oxides Emissions 

2) Code Citation: 35 Ill. Adm. Code 217 

3) Section Number: 

217.751 

Adopted Action: 

New 

4) Statutory Authority: 415 ILCS 5127 and 28 

5) Effective Date of Amendment: November 2,2009 

6) Does this rulemaking contain an automatic repeal date? No 

7) Does this rulemaking contain incomorations by reference? No 

8) A copy of the adopted amendment, including any material incorporated by reference, is 

on file in the Board's Chicago office at the James R. Thompson Center, 100 W. 

Randolph, Suite 11-500 and is available for public inspection. 

9) Notice of Proposal Published in Illinois Register: 33 Ill. Reg. 8880; June 26, 2009. 

10) Has JCAR issued a Statement of Objection to this amendment'? No 

11) Differences between proposal and final version: 'The text of the added 35 111. Adm. Code 

217.751 contains no substantive changes from the first notice proposal. However, the table of 

contents of Part 217 has been revised to include Subpasts D through M, due to the recent 

completiotl of other air rulemakings. See, Section 27 Proposed Rules for Nitrogel1 Oxide 

(KO,) Emissions From Stationary Reciprocating liltemal Colnbustiou Engines aud Turbines: 

Amendn~e~its lo 35 111. Adm. Code Parts 21 1 and 217. R07-19 (July 23, 2009) and Nitrogen 

Oxides Emissions From Various Source Categories, Ainendments to 35 Ill. Adm. Code Pasts 

21 1 and 217, R08-19 (Aug. 20,2009). 

12) Have all the changes aweed up011 by the agency and JCAR been made as indicated in the 

agreements letter issued by JCAR? No agreements were necessary. 

13) Will this rulemalting replace any emergency rulemalting currently in effect? No 

14) Are there any amendments uending on this Part'? No 
ILLINOIS REGISTER 15755 

09 

POLLUTION CONTROL BOARD 

NOTICE OF ADOPTED AMENDMENT 

15) Summary and Purpose of Amendment: The Board's May 7,2009 first notice opinion and 

order in In the Matter of Nitrogen Oxide (NO,) Trading Program Sunset Provisions for 

Electric Generating Units (EGU's): New 35 Ill. Adm. Code 217.751, RO9-20 discusses in 

detail the amendments to Part 217.Subpart W proposed in this iulemaking. 

On May 7, 2009, the Illinois Pollution Colltrol Board authorized first notice publication, 

without comment on the merits, of an Illinois Environmental Protection Agency (IEPA) 

proposal that would sunset the provisions of the Nitrogen Oxides (NO,) Trading Program 

rules for electrical generating units (EGUs). IEPA filed this proposal with the Board on 

April 21,2009, seeking to add a single new section, 35 Ill. Adm. Code 217.751 to 35 Ill. 

Adm. Code 217.Subpart W. The Board has expedited this proceeding as requested by the 

IEPA. 

In its statement of reasons, the IEPA states that Illinois adopted both the NOx rules at 35 

Ill. Adm. Code 217 and the Clean Air Interstate Rule (CAR) at 35 Ill. Adm. Code 225 

after adoption of similar rules by the United States Environmental Protection Agency 

(USEPA). USEPA has approved both sets of rules for inclusion in the State 

Implementatioll Plan (SIP) for ozone attainment. As do the USEPA rules, the CAIR 

provisions, as set forth in 35 Ill. Code 225.Subpart E, include a trading program for 

col~trol of NO, enlissions during the ozone season that replaces the provisions in Part 

217.Subpart W for EGUs beginning with the 2009 control period (May 1 through 

September 30) and thereafter. To address this duplication, the proposal would "sunset" 

the provisions of the NO, Trading Program by adding a new Part 21 7.75 1. 

The Board adopted its second notice opinion and order on September 17,2009, adopting 

tile first notice proposal without substantive change. Tile Joint Committee on 

Adnlinistrative Rules voted a Certificate of No Objection at its October 14, 2009 

meeting. Tbe Board adopted its final opinion and order on October 15,2009. 

For the above reasons, the Board adopted as a final rule R09-20 

16) Information and questions regarding this adopted amendment shall be directed to: 

Kathleen Crowley 

Illillois Pollution Control Board 

100 \V. Randolph St., Suite 11-500 

Chicago, IL 60601 
ILLINOIS REGISTER 15761 

09 

POLLUTION CONTROL BOARD 

NOTICE OF ADOPTED AMENDMENT 

Section 

217.800 

217.805 

217.810 

217.815 

217.820 

217.825 

217.830 

217.835 

217.840 

217.845 

217.850 

217 855 

217.860 

217.865 

Severability 

Applicability 

Compliance Requirements 

Permitting Requirements 

NO, Trading Budget 

Methodology for Calculating NO, Allocatiol~s for Budget Electrical Generating 

Units (EGUs) 

NO, 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-Ln Units: Withdrawal from NO, Trading Program 

Opt-In Units: Change in Regulatory Status 

Allowance Allocations to Budget Opt-In Units 

SUBPART X. VOLUNTARY NO, EMISSIONS REDUCTION PROGRAM 

Purpose 

Emission Unit Eligibility 

Participation Requirements 

NO, Emission Reductions and the Subpart X NO, Trading Budget 

Baseline Emissions Determination 

Calculation of Creditable NO, Emission Reductions 

Limitations on NO, Emission Reductions 

NO, Emission Reduction Proposal 

Agency Action 

Emissions Determination Methods 

Emissions Monitoring 

Reporting 

Recordkeeping 

Enforcement 

217.APPENDIX A Rule into Section Table 

217.APPENDIX B Section into i<nle Table 

21 7 .APPENDIX C Compliance Dates 

21 7.APPENDIX D Non-Electrical Generating Units 

217.APPENDIX E Large Non-Electrical Generating Units 
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 

217.704 

217.706 

217.708 

217.710 

217.712 

Section 

217.750 

917 -;1 1 

ILLINOIS REGISTER 15760 

09 

POLLUTION CONTROL BOARD 

NOTICE OF ADOPTED AMENDMENT 

SUBPART U: NO, CONTROL Ah'D TRADING PROGRAM FOR 

SPECIFIED NO, GENERATING UNITS 

Purpose 

Severability 

Applicability 

Compliance Requirements 

Perrnittii~g Requirements 

Subpart U NO, Trading Budget 

Methodology for Obtaining NO, Allocatio~ls 

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, 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 

Sevel-ability 

Applicability 

Emission Limitations 

NO, Averaging 

Monitoring 

Reporting and Recordkeeping 

SUBPART W: NO, TRADING PROGRAM FOR 

ELECTRICAL GENERATSNG UNITS 
Section 

217.301 

Section 

217.340 

217.342 

217.344 

217.345 

Section 

217.381 

Section 

217.386 

217.388 

217.390 

217.392 

217.394 

217.396 

Section 

217.400 

217.402 

217.404 

217.406 

217.408 

217.410 

ILLINOIS REGISTER 15759 

09 

POLLUTION CONTROL ROAKD 

NOTICE OF ADOPTED AMENDMENT 

SUBPART K: PROCESS EMISSION SOURCES 

I~idustrial Processes 

SUBPART M: ELECTRICAL GENERATING UNITS 

Applicability 

Exemptions 

Emissions Limitations 

Combination of Fuels 

SUBPART 0: CHEMICAL MANUFACTURE 

Nitric Acid Manufacturing Processes 

SUBPART Q: STATIONARY RECIPROCATNG 

INTERNAL COMBUSTION ENGINES AND TURBINES 

Applicability 

Control and Maintenance Requirements 

Elnissions Averaging Plans 

Coinpliance 

Testing and Monitoring 

Recordlteeping and Reporting 

SUBPART T: CEMENT KILNS 

Applicability 

Control Requireme~its 

Testing 

Monitoring 

Reporting 

Recordkeeping 
ILLTNOIS REGISTER 15758 

09 

POLLUTION CONTROI, BOARD 

NOTICE OF ADOPTED AMENDMENT 

SUBPART E: INDUSTRIAL BOILERS 

Section 

217.160 Applicability 

217.162 Exe~nptio~ls 

217.164 Emissioiis Limitations 

217.165 Combination of Fuels 

217.166 Methods and Procedures for Combustion Tuning 

SUBPART F: PROCESS HEATERS 

Section 

217.180 Applicability 

217.182 Exemptions 

217.184 Emissions Limitations 

217.185 Combination of Fucls 

217.186 Methods and Procedures for Combustion Tuning 

SUBPART G: GLASS MELTING FUIWANCES 

Section 

217.200 Applicability 

217.202 Exemptions 

217.204 Emissions Limitations 

SIJBPART H: CEMENT AND LIME KILNS 

Section 

217.220 Applicability 

217.222 Exemptions 

217.224 Emissions Limitations 

SUBPART I: IRON AND STEEL AND ALUMINUM MANUFACTUI<ING 

Section 

217.240 Applicability 

21 7.242 Exemptions 

217.244 Etnissions Li~nitatioils 
Section 

217.100 

217.101 

217.102 

217.103 

217.104 

Section 

217.121 

Section 

217.141 

ILLINOIS REGISI'ER 15757 

09 

POLLUTION CONTROL BOARD 

NOTICE OF ADOPTED AMENDMENT 

TITLE 35: ENVIRONMENTAL PROTECTION 

SUBTITLE B: AIR POLLUTION 

CHAPTER I: POLLUTION CONTROL BOARD 

SUBCHAPTER c: EMISSION STANDARDS AND LIMITATIONS 

FOR STATIONARY SOURCES 

PART217 

NITROGEN OXIDES EMISSIONS 

SUBPART A: GENERAL PROVISIONS 

Scope and Orga~lization 

Measurement Methods 

Abbreviations and Units 

Defmitions 

Incorporatiolls by Reference 

SUBPART B: NEW FUEL COMBUSTION EMISSION SOURCES 

New Emission Sources (Repealed) 

SUBPART C: EXISTING FUEL COMBUSTION EMISSION UNITS 

Existing Emission Units in Major Metropolitan Areas 

SUBPART D: NO, GENEML REQUIREMENTS 

Applicability 

Complia~~ce Date 

Performance Testing 

Initial Colnpliance Certification 

Recordkeeping and Reporting 

Testing and Monitoring 

Einissiolis Averaging Plans 
ILLNOIS REGISTER 15756 

09 

POLLUTION CONTROL BOARD 

NOTICE OF ADOPTED AMENDMENT 

Copies of the Board's opinions and orders may be requested from the Clerk of the Board 

at the address listed in #8 above or by calling 3 121814-3620. Please refer to the docket 

number R09-20 in your request. The Board's opinions and orders are also available from 

the Board's Web site (www.ipcb.stale.il.us). 

The full text of the Adopted Amendment begins on the next pa%: 
ILLINOIS REGISTER 15762 

09 

I'OLLUTION CONTROL BOARD 

NOTICE OF ADOPTED AMENDMENT 

217,APPENDIX F Allowances for Electrical Generating Units 

2 17.APPENDIX G Existing Reciprocating Internal Combustion Engines Affected by the NO, 

SIP Call 

21 7.APPENDIX H Conlpliance Dates for Certain Emissions Units at Petroleum Refineries 

AUTHORITY: Imple~nenting Sections 9.9 and 10 and autl~orized by Sections 27 and 28.5 of the 

Environmental Protection Act [415 ILCS 5/9.9, 10, 27 and 28.5 (2004)l. 

SOURCE: Adopted as Chapter 2: Air Pollution, Rule 207: Nitrogen Oxides Emissions, R71-23, 

4 PCB 19 1, April 13, 1972, filed and effective April 14, 1972; amended at 2 111. Reg. 17, p. 101, 

effective April 13, 1978; codified at 7 ill. Reg. 13609; amended in Ii01-9 at 25 Ill. Reg. 128, 

effective December 26,2000; amended in R01-11 at 25 Ill. Reg. 4597, effective March 15,2001; 

amended in R01-16 and R01-17 at 25 Ill. Reg. 5914, effective April 17, 2001; amended in R07- 

18 at 3 1 Ill. Reg. 14271, effective September 25, 2007; amended in R07-19 at 33 Ill. Reg. 11999, 

effective August 6,2009; amended in R08-19 at 33 Ill. Reg. 13345, effective August 31,2009; 

amended at 33 Ill. Reg. 15754, effective November 2, 2009. 

SUBPART W: NO, TRADING PROGRAM FOR 

ELECTRICAL GENERATING UNITS 

. , 1 hc pro~.~isj(>i?s ofthis Subg,art >I/ siia11 IIO~ a.~,jv for C~IIV ionIro1 veriod ii~ 2009 or tl?creaP~c~', 

~oncom~lia~~cc wit11 thc ~rovisions of.~~j&~.g!~an t11t occnrrcd 13rior to 2009 is s~~bicc~ to thc

~r?~Li.~bL~.~~~~:$~~~..of_1.iii~Su.bparC 

(Source: Added at 33 Ill. Reg. 15754, effective November 2,2009)