Fixing what ain't broke II: Clean Air Act requirements survive with limited damage

A few weeks back, I blogged in this space about Illinois industry efforts to dismantle a Clean Air Act permitting system in the name of "streamlining" it. Their expressed concern was that the program's system for citizen challenges to air pollution permits was "inefficient," which translated from industry-speak means way too efficient in smacking down industry permitting shenanigans.

Well, they somewhat got away with it, but only in limited part and with many public protections built in, thanks to a strong team effort by a coalition of environmental groups (NRDC, Illinois Environmental Council, Environmental Law & Policy Center, and the Sierra Club) working together with Attorney General Lisa Madigan's office, and aided by the steadfast leadership of House sponsor Representative Elaine Nekritz and Senator Dave Koehler.

At issue is the Clean Air Act's Prevention of Significant Deterioration (PSD) program, which requires that major new or modified sources of air pollution install the best available control technology to limit their emissions, and take other measures to protect air quality. For a long time, Illinois has used the federal PSD regulatory program, which had the dual benefit of both limiting state resource expenditures and providing a strong set of citizen participation requirements and public protections. These include, among other things, the right of any citizen who comments on a PSD permit to appeal it to the US EPA's Environmental Appeals Board, and a requirement that effectiveness of any permit appealed to US EPA's Board be automatically stayed, so as to make sure no project is built until the Board can ensure the permit complies with law.

We strongly preferred to simply keep that well-functioning system in place. But Illinois EPA and regulated industry, after having lost several citizen appeals in which the EPA Board found serious problems with their permits, pulled out all the political stops to put an end to it. It became their top Springfield agenda item, with the Illinois Chamber of Commerce saying, "I don't know of any bill that actually passed that's more important to the business community." The versions of the bill that industry proposed initially were a crazy bad deal for the public - they would have required that Illinois EPA never again adopt any measure more stringent than the federal program, while eliminating major public participation rights contained in that program. Our coalition fought back with our own efforts to ensure that any Illinois program put in place continues the public rights and protections from the federal program. And we succeeded to a significant degree.

Here are some of the key features of Senate Bill 1672, the measure that passed the General Assembly:

  • Standing to appeal. While the legislation does not contain the breadth of citizen standing to appeal that the federal system does - that is, anyone who comments on a draft permit can appeal it - the bill's standing provisions ended up at our urging being still quite broad. Anyone who "is aggrieved or is or may be adversely affected," and who submitted comments, can bring an appeal - which will now go to the Illinois Pollution Control Board. There are also provisions ensuring as well that, if the final permit contains significant changes to the draft or if new information has come to light after the comment process closed, people can raise concerns about that new information even if they didn't initially comment.
  • Stay of permit effectiveness. The permit stay is no longer automatic, as it was in the federal system, but thanks to the coalition's efforts it will still be possible for citizens to seek a stay before the Pollution Control Board based on a reasonably limited set of criteria. Specifically, citizen appellants will need to show that preserving the status quo is necessary (which it almost always is when the alternative is construction of a project based on an unlawful permit), that it won't endanger the public or violate public policy, and that there's some merit to the appeal. We also beat back industry's efforts to require the stay to lapse regardless of whether there was any resolution of the permit challenge. The stay now has to remain in effect until the Pollution Control Board renders its decision (although permittees are allowed to take some measures to speed up that decision).
  • Public participation. The legislation requires regulations to be put in place assuring that citizens can comment on draft permits and receive a response from Illinois EPA; and that there will be an opportunity for public hearings.
  • More stringent Illinois requirements. The original industry-backed provisions mandating that the Illinois program never be more stringent than the federal program are gone, replaced with language that says more or less the exact opposite: the Pollution Control Board may adopt regulations more stringent than the federal regulations as it sees fit, and Citizens can propose even more stringent regulations to the Board at any time.

Ultimately, it will be up to US EPA - as the authority over Clean Air Act implementation in states - to determine whether to approve the more limited version of public rights embodied in the legislation, once the Pollution Control Board issues the required regulations. From our standpoint, while the legislation is far from perfect, it is a darn sight better than the wholesale stripping away of public rights that industry made every effort to foist on Illinois citizens. Now that we are headed for an Illinois PSD program rather than the federal one, we will continue to work within that program to ensure that its purpose of preventing deterioration of our state's air quality is achieved.

About the Authors

Ann Alexander

Senior Attorney, Midwest program

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