On Thursday, January 16, 2013, the Illinois Environmental Protection Agency (IEPA) filed a proposal and motion for emergency rulemaking regarding the containment of coke (also referred to as petroleum coke, or petcoke) and coal at bulk terminals with the Illinois Pollution Control Board (Board).  In the proposed rule, IEPA asserts that fugitive emissions emanating from several outdoor storage areas at bulk terminals in Cook County are not properly controlled and, therefore, constitute a threat to the public interest, safety, or welfare.  The rule requires sources to engage in a number of management activities, take immediate measures to suppress fugitive emissions, and totally enclose all coke and coal piles. ^[1]

The rule applies to coke and coal bulk terminals which are defined as sources, sites, or facilities that store, handle, blend, process, transport, or otherwise manage coke or coal.  A number of these bulk terminals are located along shipping channels and waterways such as the Calumet River, Illinois River, and the I&M Canal.  Excluded from the rule are sources, sites, or facilities that “produce” or “consume” the coke or coal, such as mines or coal-fired power plant sites.  We highlight a few key requirements and deadlines included in the proposal below, but this is not an exhaustive list.  To see the entire proposal, please click here.

• Within 60 days, all coke and coal that has been at the source for more than a year must be moved to a location that complies with the requirements of the Act and Board regulations.

• All other coke and coal must be used or removed within a year from the date it was received.

• Within 45 days, sources must submit a plan to IEPA for the total enclosure of all coke and coal within two years.

• Within 45 days, sources must submit to IEPA and follow a Coke and Coal Fugitive Dust Plan.

• All plans submitted pursuant to the proposed rules will be posted on IEPA’s website and subject to a 30-day public comment period.

• Beginning 60 days after the effective date, new setback requirements apply in Cook County, municipalities, and their immediate surroundings requiring coke and coal piles that are not totally enclosed to be located at least 200 feet inside the property line of the source.

• Beginning 60 days after the effective date, all coke and coal piles must be on impermeable pads and located at least 200 feet from waters of the U.S., public water supply reservoirs and intakes, and any potable water well.

• No loading or unloading or otherwise “disturbing” coke and coal piles when wind speeds exceed 25 miles per hour.

• Sources must discontinue the use of non-paved roads within 90 days

Owners or operators of sources subject to the emergency rules will have to implement a number of other operational measures to comply with the rules.  In addition, the rule proposes rigorous recordkeeping and reporting requirements that impose, at minimum, monthly certification and reporting requirements.

The Illinois economy relies on shipping canals and water systems on a daily basis as transportation corridors so we are further reviewing this proposal to ensure the end result does not impede commerce.  The proposal raises several questions such as whether it is economically reasonable or even technically feasible to totally enclose all of these areas in the manner prescribed in the rules especially given the short timeframes for compliance.  This rule could also be reaching unintended entities.  Finally, we are reviewing whether IEPA has adequately supported that an emergency exists.  The Agency’s proposal as filed does not provide clear answers to these questions and we intend to work closely with the IEPA to help identify areas where the regulatory approach may be improved.  The Board will address IEPA’s motion at the January 23, 2014 Board meeting, but the Board can take a number of actions and the outcome is unknown.  Nonetheless, the rulemaking docket is now open to accept public comments through noon on Tuesday, January 21.  This is the time to begin educating the State and others as to the importance of the coke and coal industry to the State and nation, and to ensure that the difficulties presented by the rule are known.  Since emergency rules, once effective, have a limited effective period, the next step for the State will be to develop a more permanent framework for regulation, either through a full rulemaking or legislation.  Industry must be mindful of the need to participate fully in order to ensure any framework developed is achievable and sensible.

_{^{[1] Generally, “coke” is derived from the distillation of coal, including metallurgical coke, or “metcoke” or from oil refinery coker units or other cracking processes, including petroleum coke, or “petcoke.”  Coke is primarily used as a fuel.}}