HB0244 94TH GENERAL ASSEMBLY

LRB094 04204 RSP 34228 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB0244

Introduced 1/14/2005, by Rep. Elaine Nekritz

SYNOPSIS AS INTRODUCED:

415 ILCS 5/10

from Ch. 111 1/2, par. 1010

Amends the Environmental Protection Act. Provides that the Pollution Control Board may not amend or revise its new source review regulations to be less stringent than those that existed on December 30, 2002. Requires the Board, if the Board finds, after a public hearing, that its rules or regulations are not equivalent to or more stringent than the rules or regulations that existed on December 30, 2002, to promptly adopt the rules or regulations that may be necessary to establish, at a minimum, equivalency. Effective January 1, 2006.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning environmental protection.

WHEREAS, For over 25 years, the federal Clean Air Act (42 U.S.C. Sec. 7401, et seq.) has required major new and modified sources of air pollution to be subject to a new source review program for nonattainment areas and for the prevention of significant deterioration, in order to ensure that those sources use the state-of-the-art level of emission control, offset any new emissions, and comply with other requirements, as a means of ensuring that those new and modified sources do not adversely affect air quality; and

WHEREAS, Requiring modern pollution controls and emission offsets for new and modified sources ensures that industrial growth does not result in unacceptable levels of air pollution and that existing sources operate more cleanly over time by applying the latest pollution controls when those sources are overhauled or upgraded; without these limits, air quality would degrade over time, and industrial growth, critical to the economic health of the state, would be foreclosed; and

WHEREAS, The new source review program has been a cornerstone of the State's efforts to reduce pollution from new and existing industrial sources by requiring those sources to use the state-of-the-art level of emission controls based on the attainment status of the area where the source is located; and

WHEREAS, The U.S. Environmental Protection Agency (U.S. E.P.A.) initially promulgated, and subsequently has revised, the new source review program to carry out the requirements of the federal Clean Air Act for preconstruction review of new and modified sources of air pollutants by the states; and

WHEREAS, On December 31, 2002, the U.S. E.P.A., under the direction of the President of the United States, promulgated regulations that substantially weaken the basic federal new source review program (67 Fed.Reg. 80186-80289 (Dec. 31, 2002)); in promulgating the regulatory amendments, the U.S. E.P.A. claims that the new source review program has impeded or resulted in the cancellation of projects that would maintain or improve reliability, efficiency, and safety. This claim is contradicted by Illinois' experience under the new source review programs of the air pollution control and air quality management districts; and

WHEREAS, The amendments promulgated December 31, 2002, will drastically reduce the circumstances under which modifications at an existing source would be subject to federal new source review. The U.S. E.P.A. has also adopted a rule changing the definition of "routine maintenance, repair and replacement", which, if it survives judicial review, will significantly worsen the situation; and

WHEREAS, The newly revised federal new source review reneges on the promise of clean air embodied in the federal Clean Air Act, and threatens to undermine the air quality of the State of Illinois and thereby threatens the health and safety of the people of the State; and

WHEREAS, Section 107 of the federal Clean Air Act (42 U.S.C. Sec. 7407) provides that the State has primary responsibility for meeting ambient air quality standards in all areas of the State, and that the means to achieve the standards must be set out in the State implementation plan; and

WHEREAS, Section 116 of the federal Clean Air Act (42 U.S.C. Sec. 7416) preserves the right of states to adopt air pollution control requirements that are more stringent than comparable federal requirements. Moreover, the recent revisions to the federal new source review regulations provide that the states may adopt permitting programs that are "at least as stringent" as the new federal "revised base program," and that the federal regulations "certainly do not have the goal of 'preempting' State creativity or innovation." (67 Fed.Reg. 80241); and

WHEREAS, It is necessary to protect public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from air pollution; therefore

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Environmental Protection Act is amended by changing Section 10 as follows:

(415 ILCS 5/10) (from Ch. 111 1/2, par. 1010)

Sec. 10. Regulations.

(A) The Board, pursuant to procedures prescribed in Title VII of this Act, may adopt regulations to promote the purposes of this Title. Without limiting the generality of this authority, such regulations may among other things prescribe:

(a) Ambient air quality standards specifying the maximum permissible short-term and long-term concentrations of various contaminants in the atmosphere;

(b) Emission standards specifying the maximum amounts or concentrations of various contaminants that may be discharged into the atmosphere;

(c) Standards for the issuance of permits for construction, installation, or operation of any equipment, facility, vehicle, vessel, or aircraft capable of causing or contributing to air pollution or designed to prevent air pollution;

(d) Standards and conditions regarding the sale, offer, or use of any fuel, vehicle, or other article determined by the Board to constitute an air-pollution hazard;

(e) Alert and abatement standards relative to air-pollution episodes or emergencies constituting an acute danger to health or to the environment;

(f) Requirements and procedures for the inspection of any equipment, facility, vehicle, vessel, or aircraft that may cause or contribute to air pollution;

(g) Requirements and standards for equipment and procedures for monitoring contaminant discharges at their sources, the collection of samples and the collection, reporting and retention of data resulting from such monitoring.

(B) The Board shall adopt sulfur dioxide regulations and emission standards for existing fuel combustion stationary emission sources located in all areas of the State of Illinois, except the Chicago, St. Louis (Illinois) and Peoria major metropolitan areas, in accordance with the following requirements:

(1) Such regulations shall not be more restrictive than necessary to attain and maintain the "Primary National Ambient Air Quality Standards for Sulfur Dioxide" and within a reasonable time attain and maintain the "Secondary National Ambient Air Quality Standards for Sulfur Dioxide."

(2) Such regulations shall be based upon ambient air quality monitoring data insofar as possible, consistent with regulations of the United States Environmental Protection Agency. To the extent that air quality modeling techniques are used for setting standards, such techniques shall be fully described and documented in the record of the Board's rulemaking proceeding.

(3) Such regulations shall provide a mechanism for the establishment of emission standards applicable to a specific site as an alternative to a more restrictive general emission standard. The Board shall delegate authority to the Agency to determine such specific site emission standards, pursuant to regulations adopted by the Board.

(4) Such regulations and standards shall allow all available alternative air quality control methods consistent with federal law and regulations.

(C) The Board may not adopt any regulation banning the burning of landscape waste throughout the State generally. The Board may, by regulation, restrict or prohibit the burning of landscape waste within any geographical area of the State if it determines based on medical and biological evidence generally accepted by the scientific community that such burning will produce in the atmosphere of that geographical area contaminants in sufficient quantities and of such characteristics and duration as to be injurious to humans, plant, or animal life, or health.

(D) The Board shall adopt regulations requiring the owner or operator of a gasoline dispensing system that dispenses more than 10,000 gallons of gasoline per month to install and operate a system for the recovery of gasoline vapor emissions arising from the fueling of motor vehicles that meets the requirements of Section 182 of the federal Clean Air Act (42 USC 7511a). These regulations shall apply only in areas of the State that are classified as moderate, serious, severe or extreme nonattainment areas for ozone pursuant to Section 181 of the federal Clean Air Act (42 USC 7511), but shall not apply in such areas classified as moderate nonattainment areas for ozone if the Administrator of the U.S. Environmental Protection Agency promulgates standards for vehicle-based (onboard) systems for the control of vehicle refueling emissions pursuant to Section 202(a)(6) of the federal Clean Air Act (42 USC 7521(a)(6)) by November 15, 1992.

(E) The Board shall not adopt or enforce any regulation requiring the use of a tarpaulin or other covering on a truck, trailer, or other vehicle that is stricter than the requirements of Section 15-109.1 of the Illinois Vehicle Code. To the extent that it is in conflict with this subsection, the Board's rule codified as 35 Ill. Admin. Code, Section 212.315 is hereby superseded.

(F) Any person who prior to June 8, 1988, has filed a timely Notice of Intent to Petition for an Adjusted RACT Emissions Limitation and who subsequently timely files a completed petition for an adjusted RACT emissions limitation pursuant to 35 Ill. Adm. Code, Part 215, Subpart I, shall be subject to the procedures contained in Subpart I but shall be excluded by operation of law from 35 Ill. Adm. Code, Part 215, Subparts PP, QQ and RR, including the applicable definitions in 35 Ill. Adm. Code, Part 211. Such persons shall instead be subject to a separate regulation which the Board is hereby authorized to adopt pursuant to the adjusted RACT emissions limitation procedure in 35 Ill. Adm. Code, Part 215, Subpart I. In its final action on the petition, the Board shall create a separate rule which establishes Reasonably Available Control Technology (RACT) for such person. The purpose of this procedure is to create separate and independent regulations for purposes of SIP submittal, review, and approval by USEPA.

(G) Subpart FF of Subtitle B, Title 35 Ill. Adm. Code, Sections 218.720 through 218.730 and Sections 219.720 through 219.730, are hereby repealed by operation of law and are rendered null and void and of no force and effect.

(H)(1) Notwithstanding any other provision of law to the contrary, the Board may not amend or revise its new source review regulations to be less stringent than those that existed on December 30, 2002. If the Board finds, after a public hearing, that its rules or regulations are not equivalent to or more stringent than the rules or regulations that existed on December 30, 2002, then the Board must promptly adopt the rules or regulations that may be necessary to establish, at a minimum, equivalency.

(2) In amending or revising its new source review rules, the Board may not change any of the following that existed on December 30, 2002 if the amendments or revisions would exempt, relax, or reduce the obligations of a stationary source for a pertinent requirement:

(a) The applicability determination for new source review.

(b) The definition or "modification", "major modification", "routine maintenance", or "repair or replacement".

(c) The calculation, methodology, thresholds, or other procedures of new source review.

(d) Any definitions or requirements of the new source review regulations.

(3) For purposes of this subpart (H):

(a) A "pertinent requirement" means:

(i) Any requirement to obtain new source review or other permits to construct, prior to commencement of construction.

(ii) Any requirement for best available control technology.

(iii) Any requirement for air quality impact analysis.

(iv) Any requirement for recordkeeping, monitoring and reporting in a manner that would make recordkeeping, monitoring, or reporting less representative, enforceable, or publicly accessible.

(v) Any requirement for regulating any air pollutant covered by the new source review rules and regulations.

(vi) Any requirement for public participation, including a public comment period, public notification, public hearing, or other opportunities or forms of public participation, prior to issuance of permits to construct.

(b) "More stringent" means that the application of the source review rules increases the obligations of stationary sources under the pertinent requirements.

(c) "Equivalent to" means that the application of the source review rules does not alter the obligations of stationary sources under the pertinent requirements.

(d) "Less stringent" means that the application of the source review rules reduces the obligations of stationary sources under the pertinent requirements.

(4) Notwithstanding subdivisions (1) and (2), the Board may amend or revise a regulation if, at the time the amendments or revisions are adopted, the Board makes its decision based upon substantial evidence in the record and each of the following conditions is met:

(a) The amended or revised rule or regulation:

(i) will replace an existing rule or regulation that caused a risk to public health or safety from exposure to a toxic material, a dangerous condition, or an infectious disease with a rule or regulation that provides greater protection to public health or safety; and

(ii) is a temporary rule or regulation necessary to respond to an emergency consisting of a sudden, unexpected occurrence and demanding prompt action to prevent or mitigate loss of or damage to life, health, property, or essential services and the temporary rule or regulation does not extend beyond the reasonably anticipated duration of the emergency; and

(b) The amended or revised rule or regulation will not exempt, relax, or reduce the obligation of any stationary source under the rules or regulations of the Board, as those rules or regulations existed on December 30, 2002, to obtain a permit or to meet best available control technology requirements. This paragraph applies only to a source that constituted a major source under the rules or regulations of a district that existed on December 30, 2002 and does not apply to any individual best available control technology determination; and

(c) The amended or revised rule or regulation is otherwise consistent with this subpart (H).

(I) Notwithstanding any preexisting delegation agreement under which Illinois administers the federal new source review program in attainment or unclassified areas, the Board must, no later than 60 days after the effective date of this amendatory Act of the 94th General Assembly, adopt final and immediately-effective emergency rules that apply to those areas and that are identical to the rules applicable to those areas on December 30, 2002.

After adopting the emergency rules, the Board may revise them only if the Board determines, after a public hearing based on substantial evidence in the record, that the application of any new rules would be more beneficial to and more protective of the public health and the environment.

(Source: P.A. 88-381; 89-79, eff. 6-30-95.)

Section 99. Effective date. This Act takes effect January 1, 2006.