By Kathleen C. Bassi

At the end of July 2007, the Illinois Environmental Protection Agency ("EPA") posted on its website a draft rule that requires annual reductions of emissions of nitrogen oxides ("NOx") at certain types of sources, statewide, that emit 100 tons per year ("TPY") or more of NOx or that have an individual emission unit that emits 10 TPY or more. NOx is a precursor for ozone and fine particulate matter. The proposed compliance deadline for sources in the Chicago and Metro-East/St. Louis metropolitan areas (the ozone and fine particulate matter nonattainment areas) is January 1, 2009; the proposed compliance deadline for the rest of the state is January 1, 2011. The types of sources that Illinois EPA has targeted with this draft rule are those with industrial boilers; process heaters; glass melting furnaces; non-metal manufacturing processes; primary, secondary, and fabricated metal products and machinery manufacturing; and electrical generating units.

Illinois EPA claims that the reductions identified in the draft rule are necessary for the state to attain the ozone and fine particulate matter national ambient air quality standards and invites comment on its draft rule prior to proceeding with the formal process of proposing the rule to the Illinois Pollution Control Board for adoption. However, in a highly unusual move at least partially in response to pressure from Schiff Hardin regarding the validity of Illinois EPA's claims about the necessity of statewide NOx emissions reductions, Illinois EPA recently requested that the Pollution Control Board suspend hearings in a rulemaking affecting large stationary internal combustion engines because updated air quality modeling will become publicly available in October 2007. This updated air quality modeling will project more accurately the levels of reductions necessary for the state to attain and where those reductions would be most beneficial. Therefore, the draft rule may require reductions that exceed those necessary for attainment.

We encourage our clients to participate in this rulemaking — before Illinois EPA formally proposes it as well as after it has been submitted to the Pollution Control Board. The rule can be viewed at the following web address: www.epa.state.il.us/air/rules/nox/index.html.

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Schiff Hardin's Environmental Practice Group has extensive experience in rulemaking. Please contact any of the following attorneys for assistance: