On January 23, 2014, the Illinois Pollution Control Board (“IPCB”) denied a motion for emergency rulemaking regarding coal and coke processing, transport, storage, and handling, which was submitted by the Illinois Environmental Protection Agency (“IEPA”) only a week earlier.  Within the several days between the filing and ruling, the IPCB received 34 written comments from industry groups, environmental groups, the City of Chicago, Illinois House Representatives, and others, all voicing their opinions for and against the proposed emergency rules.  Criticisms and critiques were plentiful.  Many industry groups expressed their concerns about the economic feasibility of abiding by such rules and did not believe the circumstances necessitated an “emergency.” Conversely, environmental groups applauded the rules and offered  potential suggestions for additional improvement.  Additionally, in its response, the City of Chicago expressed that it is currently seeking comments (until February 7, 2014) on its own proposed regulations regarding petroleum coke.  In the end, the motion was denied, primarily because the issues described were not deemed to be an “emergency” according to IPCB Rules and case precedent.  However, in denying the IEPA’s motion, the IPCB was clear that such rules, in a future form, may soon be promulgated through the regular rule-making process.

As background, as defined by the IEPA, “coke” is “solid, carbonaceous material derived from the distillation of coal,” including metallurgical coke (“metcoke”).  The term “coke” is also used to describe materials derived from “oil refinery coker units or other crackling units or other crackling processes,” including petroleum coke (“petcoke”).  Coke is used as alternative fuel in coal-fired power plants and cement kilns. 

In its motion, the IEPA asserted that dust from both coke and coal is a type of fugitive particulate matter (“PM”) that is subject to National Ambient Air Quality Standards (“NAAQS”), and that exposure to PM can lead to serious health consequences, including cardiovascular and respiratory effects.  The IEPA asserted that an emergency existed to warrant its motion, because:

  • large clouds of black dust had travelled beyond the boundaries of coal/coke facilities into nearby neighborhoods and schoolyards;
  • coke and coal dust had accumulated on lawns, pools, vehicles, building siding, and furniture; and
  • coke and coal dust had been blown onto residences, schools, and businesses on a daily basis, which would make residents avoid opening windows or engaging in outdoor activities. 

Although the proposed rules would have applied State-wide, the catalyst for these proposed regulations appears to have been several bulk storage terminals located in Cook County.  The emergency rules (which would have been temporary, expiring after 150 days) were aimed at providing 1) fugitive dust controls, 2) water pollution controls, and 3) hazardous waste determinations.  For example, these rules would have required that all coke and coal storage piles be enclosed within two years (with an enclosure plan to be submitted to the IEPA within 45 days of the rule effective date), the creation of a Coke and Coal Fugitive Dust Plan within 45 days, piles of coal and coke would have to meet certain height and width restrictions, coal and coke would have to be placed on impermeable pads with certain setbacks from water sources within 60 days, necessary wastewater and storm water runoff permits would have to be applied for within 45 days, only paved roads could used for transport within 90 days, there would be cover, wind, and speed restrictions on when and how coal and coke could be transported, and there would be additional monitoring and equipment modification requirements.

In the IPCB’s Opinion and Order of the Board (the “Opinion”), which thoroughly summarized the IEPA’s motion, the comments received, and the IPCB’s analysis, the IPCB decided unanimously (4-0) to deny the IEPA’s motion to enter the proposed emergency rules. The IPCB held that the IEPA had failed to demonstrate that a situation existed which constituted a threat to the public interest, safety, or welfare.  However, the IPCB admitted that “the rules governing bulk terminal operations for petcoke and coal could be improved” and that the IEPA’s proposal would benefit by proceeding through the regular rulemaking process. Thus, it appears that these emergency rules may provide a starting point for further non-emergency rulemaking regarding the processing, transport, storage, and handling of coal and coke materials in Illinois in the near future.