State regulators work to avoid federal Clean Air Act sanctions
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[July 15, 2023]
By PETER HANCOCK
Capitol News Illinois
phancock@capitolnewsillinois.com
SPRINGFIELD – Illinois faces a deadline next month to either change the
way it enforces air pollution emission limits on heavy industries or
face federal sanctions that could eventually result in restricted access
to billions of dollars in federal highway funding.
But state agencies are working to avoid that as they rush to meet an
Aug. 12 deadline imposed by the federal government to put a new
regulatory framework in place that will comply with the federal
government’s current interpretation of the Clean Air Act.
Those rule changes, which come from the Illinois Pollution Control
Board, are up for review on Tuesday, July 18, before the General
Assembly’s Joint Committee on Administrative Rules, a 12-member group
that exercises oversight over the state’s administrative rulemaking
process.
“At this point, any future course for this rulemaking depends entirely
on JCAR’s review and decision-making on this proposal,” IPCB staff
attorney Tim Fox said in a phone message. “The board awaits that review
and decision-making at its meeting on Tuesday.”
At issue is a policy Illinois has had since the 1970s that allows
factories, power plants, and other industries with air pollution
emission permits to exceed their emission limits during startups,
shutdowns, or malfunctions, or SSM events.
The so-called “SSM exemption” is written into a facility’s emission
permit and provides the facility’s owners a level of immunity from civil
lawsuits if they are sued for violating their emission limits.
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The policy is based on the idea that no machine works perfectly all the
time and there are occasionally unforeseeable events such as power
outages or floods that will force a facility to shut down for a period
of time and then restart, which can result in short-term excess
emissions.
But it’s a policy that courts have said since 2008 violates the federal
Clean Air Act, and it’s one that the U.S. Environmental Protection
Agency has been telling Illinois and other jurisdictions since 2015 that
they need to repeal.
Now, Illinois faces an Aug. 12 deadline to repeal the regulations that
allow SSM exemptions and submit to the EPA a new state implementation
plan, or SIP – a document that spells out the policies and regulations
the state will use to implement the Clean Air Act. Otherwise, failure to
comply will trigger federal sanctions against the state.
Jack Darin, executive director of the Illinois chapter of the Sierra
Club, an environmental group that has been pushing for regulatory
changes at both the state and federal level, said in a phone interview
that the change is needed to protect public health.
“The public health can be subjected to a lot more significant pollution
during these events, and that's why the Clean Air Act requires that
facilities have plans in place to deal with that,” he said. “It could be
additional pollution controls or other steps to make sure that we're not
putting even more pollution into the air we breathe during these
startup, shutdown, and malfunction events. And Illinois rules have been
lacking these requirements for over a decade.”
But Donovan Griffith, vice president of government affairs for the
Illinois Manufacturers’ Association, said the issue is not that simple,
and that removing legal protections against SSM events could
dramatically increase the risk of doing business.
“You're going to have companies that are going to have to make a
decision,” he said in a separate interview. “I mean, you can't plan for
a storm to knock out your power. You can't plan for certain things that
happen. They'll have to make the decision whether or not they're going
to restart their operations and just be out of compliance or not operate
at all.”
Years of controversy
Controversy over SSM exemptions goes back as far as the 1970s. But for
Illinois, the issue has been percolating for about the last dozen years,
spanning the course of three presidential administrations.
In 2011, the national Sierra Club filed a petition with the U.S. EPA
asking that it take stronger action to disallow SSM exemptions and
affirmative defense provisions. In 2013, the agency announced that it
was considering taking action on that petition. In 2015, during the
Obama administration, EPA issued an “SIP call” for 36 states and nine
additional local jurisdictions, including Illinois, to submit new state
implementation plans.
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The Illinois Environmental Protection
Agency building is pictured in Springfield. (Capitol News Illinois
file photo)
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That occurred during the early months of Republican Gov. Bruce Rauner’s
administration, which did not immediately respond to the SIP call.
According to testimony filed at a public hearing earlier this year, IPCB
officials said the agency sought additional guidance from U.S. EPA about
how to establish alternative limits for SSM events, but it did not
receive a response before the Obama administration ended in January
2017.
In April 2017, the then-new Trump administration put the SIP call on
hold so it could reevaluate the issue. Three years later, in October
2020, EPA issued what it called a nonbinding “guidance memorandum”
suggesting that policies such as those in place in Illinois and
elsewhere would be permissible in some circumstances.
One month later, however, Democrat Joe Biden defeated Donald Trump for
reelection. Soon after he took office, EPA issued a new memorandum
withdrawing the Trump administration’s memo and reasserting the policy
that SSM exemptions were no longer acceptable.
Looming sanctions
Finally, in January 2022, EPA issued a new SIP call, starting a clock
for Illinois and several other state and local jurisdictions to come
into compliance or face mandatory sanctions.
If the state does not come into compliance by Aug. 12, EPA will impose
what are called “offset sanctions,” meaning any new or significantly
modified sources of pollution for which a permit is required will come
under significantly stricter emission limits.
And if the state does not comply by Feb. 11, 2024, its access to federal
highway funds will be restricted to safety projects, capital programs
for public transit and a select few other categories of funding.
Those sanctions would be lifted once the U.S. EPA determines the state
has submitted an acceptable new SIP.
Because of the looming deadline, the rule change has been put on a “fast
track” schedule, but that has irritated industry officials who say they
haven’t had enough time to submit comments or try to negotiate an
agreement.
“I think we've known since January 2022 that this was coming, which is
why there was a lot of communications from the regulated community to
the agency about discussing this issue,” Griffith, of the Illinois
Manufacturers’ Association, said. “We didn't hear much from them until
November of 2022, when they basically said, ‘here's our proposal that we
plan on filing.’”
The compressed timeline also upset some members of JCAR, which
previously discussed the proposed rule change at its June 13 meeting.
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“It was Nov. 17 that you reached out and asked for comments. That's a
week before Thanksgiving,” Rep. Curtis Tarver, D-Chicago, told IPCB and
IEPA officials during that meeting. “You allowed 10 business days. The
11th, it was due. That's absolutely – I hope that's uncommon.”
Jack Jennings, deputy director of the IEPA, explained that the agencies
at first tried to get clarification from the U.S. EPA about what would
be acceptable, and it wasn’t until later in the year that the agencies
learned that they needed to completely repeal the language allowing SSM
exemptions.
JCAR and the agencies agreed at the June meeting to extend the
rulemaking period for 45 days, during which time they hoped to work with
U.S. EPA and industry groups to reach an agreement.
Capitol News Illinois is a nonprofit, nonpartisan news
service covering state government. It is distributed to hundreds of
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Illinois Press Foundation and the Robert R. McCormick Foundation, along
with major contributions from the Illinois Broadcasters Foundation and
Southern Illinois Editorial Association.
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