By Jeryl L. Olson and Craig B. Simonsen

The Illinois Pollution Control Board just rejected Illinois Environmental Protection Agency’s (IEPA) proposed “emergency” rules that would have imposed additional Statewide requirements on the handling of coke and coal, including petroleum coke or “petcoke,” at bulk terminals and other specified facilities. Opinion and Order, January 23, 2014.

The IEPA had filed the emergency rulemaking on January 16, 2014, docketed as In the Matter of: Emergency Rulemaking Regarding Regulation of Coke/Coal Bulk Terminals: New 35 Ill. Adm. Code 213 (R14-20). With the proposal IEPA sought to require numerous immediate measures, including road paving, dust suppression systems, setbacks, containment of stormwater, and disposal of any coke or coal that has been on-site for more than one year.

The Board allowed public comments on the proposal, and allowed the IEPA to respond. The Board received 34 comments. “After careful consideration of the record, the Board determined that it could not adopt IEPA’s proposed emergency rules because the statutory test for an “emergency” had not been met.” Specifically, the Board found that IEPA failed to prove “that a situation exists which reasonably constitutes a threat to the public interest, safety or welfare.” 415 ILCS 5/27(c) (2012). The Board did allow IEPA’s proposal to continue under the Board’s general rulemaking process.

While the rule is ostensibly aimed at a controversial coke pile in the City of Chicago, the proposed emergency rule would have addressed coal, coke, and petcoke facilities throughout the state, with significant regulatory and economic impacts on those with existing stockpiles. In the meantime, the City of Chicago is working on its own rule to address coal, coke and petcoke sites within the City.