ILLINOIS

POLLUTION CONTROL BOARD

December

6,

1989

IN THE

MATTER

OF:

THE SITE-SPECIFIC PETITION

)

R88-19

OF ROADMASTER CORPORATION

PROPOSED RULE.

SECOND

NOTICE

OPIN:ON AND ORDER OF THE BOARD

(by B.

Forcade):

This matter

is before the Board on

a petition for

a site—

specific

rulemaking filed July

19,

1988

by Roadciaster Corporation

(“Roadmaster”).

Roadmaster seeks relief from the Board’s RACT

II

limitations on the maximum permissible volatile organic matter

(“VON”)

emissions from two flowcoater units at

its manufacturing

facility near Olney,

in Robinson County,

Illinois.

The Board proposed new section

35

Ill.

Adm.

Code 215.206(d)

for

first

notice publication on July

13, 1989.

That publication

occurred on July

28,

1989.

S~e 13 Ill.

Reg.

12384

(July

28,

1989).

The Board invited public comment

on the proposed rule,

specifically requesting

a

response to issues concerning

(1)

the

number of paint vendors

to oe contacted;

(2)

the “substantial

likelihood”

of successful use that should prompt testing of

a

paint;

(3) what constitutes a “compliant paint

that

it

can

successfully use”;

(4)

a price per gallon or other

trigger

requiring converting

to the compliant paint;

and

(5) use of a

five—year sunset provision.

The Board received five public comments as follows:

1.

Secretary of State Office, Administrative

Code Division;

2.

Roadmaster Corporation;

3.

Illinois Environmental Protection Agency;

4.

Illinois Environmental

Regulatory

Group;

and

5.

Illinois

Department

of

Commerce

and

Community Affairs.

In the First Notice Opinion and Order,

the Board opted for

certain

anguage,

not stipulated by the Participants,

in

anticipation

of possible problems that might arise before the

Joint Committee

on Administrative Rules (“JCAR”) regarding the

lack of

specificity

in the proposed regulation.

To some extent,

11)6-- 149

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the Board now retreats from that position in response to the

parties’ asse~tions that their stipulations,

as

to acceptable

language, most accurately represent the agreement between the

Agency and Roadmaster.

After reviewing the record and comments,

the Board

finds that certain revisions are appropriate.

Thirty-day Opportunity

to

file Motion

for Reconsideration

The Board will withhold

submitting

the pr•o~osed rule

to the

J-;int Committee on Adminiscrative Rules through January

8,

1990

in order

to allow either participant

to file

a motion

for

reconsideration

as

to the sole issue of

a proposed change

in the

lanquage regarding item

(4) above,

i.e.,

a price per gallon cr

other trigger

requiring convert;~ng to the compliant paint.

As

described more fully below,

the Board now proposes

to adopt

Roadmaster’s comment suggesting

that finding

a compliant paint,

whose application costs are within

10 percent of current

expenses,

shall trigger Roadmaster’s converting

to the use of

the

new paint.

Section 2l5.206(d)(l) Unchanged From First Notice

At first notice,

the Board modified the language proposed by

the Agency and Roadmaster concerning Roadmaster’s continuing

effc rts to find a compliant coating.

Reference to

a

“compliant

coating”

is meant

to denote paint

~hich would generate VON

emissions within compliance levels permitted under

Section

2l5.204(k)(2).

instead

of a “reasonable number,” the Board

specified that

“at least

three paint vendors

shall be contacted

annually by Roadmaster

in an effort

to locate

a compliant

coating.

The Board intended to quantify the effort required of

Roadmaster and

in first notice

comments,

both

the

Agency

and

Roadmaster

found this acceptable.

They further agreed

to the

first notice language proposed by the Board

that Roadmaster shall

also contact any other vendors suggested by the Agency

specifically by certified mail.

This,

too,

is intended to

clarify the continuing effo~ required of Roadmaster.

Section 2l5.206(d)(2) Unchai~gedFrom First Notice

The

requirement that Roadmaster shall

test a paint where

laboratory results “demonstrate

a substantial likelihood that

Roadmaster might successfully use a paint...

,“

shall

be the same

as at

first

notice.

Both the Agency and Roadmaster favored this

language.

Despite the lack of

specificity,

the Board intends

that the compliant paint, which Roadmaster might “successfully

use”

(as referenced

in Section

2l5.206(d)(2)

and

(4)),

would meet

common industry standards.

Such standards are not

to be repeated

in the regulation or incorporated by reference,

but should be

used by the Age

cy and Roadmaster to interpret the regulation on

what would constitute

a substantial likelihood

of successful

use.

As Roadmaster put forth

in its first notice comments, the

1~-151)

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—3—

American Society of Testing Methods

(“ASTM”) provides guidelines,

which the Agency and Roadmaster may utilize

in evaluating the

regulatory lancuage.

Roadmaster suggests that the types

of paints

it

will

seek

to

test will possess the following attributes:

1.

Comply with ASTM F—963—4.3.5

(contents);

2.

Pass

an

intrusion

and

extrusion

impact

test

of

30

inch—pounds according

to ASTM

D—2794;

3.

Pass

an

adhesion

tape

test

with

a

classification

of

4B

or

5B

according

to

ASTM D—3359;

4.

Possess

a

minimum

gloss

of

80

when

measured

with

a

60

degree

angle

of

deflection according

to ASTM D—523;

and

5.

Color match with existing coating Pantone

System.

Section 215.206(d)(3) Unchanged From First Notice

Neither the Agency

nor Roadmaster objected

to the Board’s

first notice addition of

a definite date

(March

1)

for

the annual

reporting of compliance efforts previously agreed

to by the

participants.

The provision will be unchanged from first notice.

Section 215.206(d)(4) Revised

to replace cost per gallon standard

In order

to achieve more specific regulatory language, the

Board will propose for second notice the recommendation of

Roadmaster

that the compliant paint

shall be adopted for use

if

not more than

10 percent more costly than the paint currently

used.

The test to determine whether Roadmaster must come into

compliance

is whether

it has found

a paint, which would bring

its

VOM emissions within permitted limits, while also being an

economically reasonable alternative.

However,

in lieu

•of

the

“economically reasonable”

language proposed at first notice,

Roadmaster has offered the more specific language:

“the net

annual expense

of using the compliant paint

is not more than

10

percent greater than the net annual expense incurred in the

current painting process.”

The Board prefers this more definite

standard, which would mandate compliance automatically.

At

second notice,

therefore,

the Board will propose this modified

version

of the Roadmaster suggestion:

“the net annual expense of

using the compliant paint

is not more than 10 petcent greater

than the then current net annual expense incurred in the existing

painting process

(changes underlined).

The Board recognizes that

11)6-151

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—4—

no paint,

at any cost, has become available since Roadmaster

began

its search

in 1986.

As noted

in the First Notice Opinion

and Order, Roadmaster asserts

that

a wholesale price increase

of

as little as

4 or

5 cents would impact sales and

a

13

cent

increase would cut sales by

50.

Roadmnasters continuing

operations are thus highly sensitive

to the effective cost of

compliant

paints, whose

costs

to purchase and ap~lyare unknown

because

of

technological unavailability.

For these

reosons,

the

Board accepts Roadmaster’s

10 percent figure,

althcigh

the

language ~s somewhat atypical

of other

rulemakings.

The Board also add.d at

first notice the requirement

that,

when an economically acceptable compliant paint becomes

available, Roadmaster

must convert

to using

tnat paint within 180

days,

rather than

“within a reasonable

time”

as the parties

stipulated.

The Agency and Roadmaster agreed

to the Board’s

“tightening” of the regulatory

language

in their

first

norice

comments.

IERG takes exception to the Board’s use ci the sunset

provision described below,

as

w~~las

to the above—referenced

requirements

in subsections

(1)

througi

(4).

IERG argues

Lt’iat

(1)

Section

27

of the

Illinois Environnental Protection Act

(“Act”) does not specifically authorize compliance conditions

in

site-specific rulemaking;

(2)

such Board action would be

arbitrary; and

(3)

the record does not support

the conditions.

IERG suggests that

the Board is granting Roadmaster

a variance,

in effect,

rather than permanent relief and requiring the

equivalent

of

a compliance plan.

In summary,

IERG recommends

the

approval of the site—specific limitations without the

five

requirements delineated

in subsections

(1)

through

(5).

Section

27(a)

of the Act grants the Board the authority to

allow for site—specific regulatory

relief.

In making its

determination, the Board

is directed to consider

the technical

feasibility and economic reasonableness of measuring or

reducing

the particular type

of pollution.

Since these considerations are

by no means static,

the Board

is not persuaded by IERG’s

assertion that site—specific relief must

be absolute and open—

ended.

The decision of the Board to include various requirements

in the granting of site—specific relief

is consistent

with

past

Board decisions,

is not contrary

to. statute,

and

is consistent

with the Act’s purpose, stated

in Section 8(a),

“to restore,

maintain,

and enhance the purity

of the air

of this State.”

In R85—ll,

Petition for Site—Specific Exception to Effluent

Standards for the Illinois—American

Water Company,

East

St. Louis

Treatment Plant,

the Board granted site—specliic relief

at

35

111. Adm. Code 304.220

from the effluent standards of

35

Ill.

Adm. Code 303.124.

In that

rulemaking the Board

required that

(1) petitioner use only biodegradable coagulants and that

(2)

petitioner would conduct

a comprehensive, multi-faceted study

106—152

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—5—

with regard to the coagulants.

Furthermore, the new section

expires automatically

on January

1,

1992.

Similarly,

the relief

to be granted

to Roadmaster

is predicated upon Roadinaster’s

meeting the above—outlined requirements.

While,

in the absence of available technology,

this type of

regulation may be

in the

nature

of

a

“technology forcing”

regulation,

the Illinois Supreme Court

has held that such Board

action

to meet environmental goals

is

within

the Board’s

statutory authority:

It

is

well within

the

power

of

the

Board,

in

safeguarding

the public

health,

to

determine

what

is

the maximum

pollution

tolerable

from

any

one

source,

and

to

refuse

to

permit

deviations

from

that

maximum

even when

faced

with protestations

of

impossibility.

A con-

comitant

of

this

absolute

power

is

the com-

monly

exercised

prerogative

of

the

Board

to

promulgate

“technology

forcing”

standards.

That

is,

to hasten ultimate compliance with

a

statewide standard,

the Board may establish an

interim

standard which,

though

not

impossible

to

satisfy,

is

beyond

the polluter’s

present

technical

capability.

In

short,

it

is

not

necessarily

arbitrary

and

capricious

conduct

for

the

Board

to

set

a

standard

which

a

petitioner

cannot

adhere

to

at

the

present

time,

or,

if

absolutely

necessary

to

protect

the

public,

set

a

standard

with

which

there

can

be

rio

foreseeable

compliance

by

petitioner.

Monsanto

Company

v.

The

Pollution

Control

Board,

67

Ill.2d 276,

292,

293,

367 N.E.2d 684

(1977)

This reasoning was also relied upon by the Fifth District,

which

upheld the Board’s “technology forcing” authority

in The

Flintkote Company v. Pollution Control Board,

53 Ill.App.3d

665,

368 N.E.2d 984,

987,

988

(Fifth District,

1977).

Sunset Provision Increased to Ten Years from Five Years

The Agency, Roadmaster and

:ERG have requested that the

sunset provisicn be completely deleted.

The parties noted

that

the regulation already provides for automatic mandatory

compliance within 180 days when

that

is technologically possible

at

a

reasonable cost.

The Board added

the sunset provision,

which originally gave Roadmaster up to five years

to comply,

because the Board observed that technological developments might

allow compliance to be achieved within that timeframe.

The

11)6—153

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—6—

burden would be on Roadmaster to meet the timetable

or petition

the Board to extend the deadline as

it approaches.

The Board has

previously used sunset provisions,

and

it finds the present

circumstances appropriate

for limiting the regulatory

relief.

The Board now

is extendin

the timefrarr.e to ten years

in

response

to concerns that

five yea:~may be an inadequate amount

of time

to achieve coopliance.

Section

be known

as Section 215.214 Roadsaster Emission

Limi tation ~

:n response

to suGgestions from toe Secretary

of State’s

Office,

the Board

w.

l renumber Section 215.206(d),

as Section

25.214.

Since

the proposed regulation has an automatic repeal

date,

pursuant

to

1

Ill. Adm. Code 100.335,

the section must be

a

complete and new section.

Section

215.214

shall

be labeled

Roadmaster Emission Limitations.

In addition, Section 215.214(e)

will state

“This Section shall expire..

.“,

instead of

“Subsection.

215.206(d)

shall expire...

.“

The subsections are renumbered

accordingly

(a) through

(e).

ORDER

The Board hereby proposes

the following

rule for second

notice pub1icatic~and directs

the Clerk of

the Board to file

it

with

the Office of

the Secretary

of State.

TITLE

35:

ENVIRONMENTAL PROTECTION

SUBTITLE

B:

AIR iOLLUTION

CHAPTER

I:

POLLUTION CONTROL BOARD

SUBCHAPTER

C:

EMISSIONS

STANDARDS AND LIMITATIONS FOR

STATIONARY SOURCES

PART 215

ORGANIC MATERIAL EMISSION STANDARDS AND LIMITATIONS

SUBPART F:

COATING OPERAIONS

Section

215.202

215.204

215.205

215.206

215.207

215.208

215.209

215.210

215.211

215. 212

215.213

215.214

Compiiance Schedules

Emission Limitations for Manufacturing Plants

Alternative Emission Limitations

Exemptions from Emission Limitations

Compliance by Aggregation of Emission Sources

Testing Methods

for Solvent Content

Exemption

from General Ru1~

on Use of Organic

Material

Alternative Compliance Schedule

Compliance Dates and Geographical Areas

Compliance Plan

Special Requirements for Compliance Plan

Roadmaster

Emissions Limitations

11)6-154

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—7—

Section 215.214

Rcadrnaster Emissions Limitations

Notwithstanding

the limitations of

Section 2l5.204(j)(3),

the

Roadmaster Corporation,

Olney,

Illinois,

shall

not cause

or

permit the emission of volatile organic material from its

existing black and white flowcoating operations

to

exceed

a

weekly average of 5.9 lb/gal;

Headmaster

shall fulfill

all

of

the

following conditions:

a)

Headmaster

shall contact

at

least three paint vendors

each year

in

a continuing search

for

a

com~liant coating

that

it can successfully use

in its existing ilowcoat—

ing/oven operations,

including any paint vendors

~ggested

by the Agency

in

a writing delivered to

Roadmaster

by certified mail

b)

If any vendor provides Roadmaster

with laboratory test

resrlts which demonstrate

a substantial likelihood

that

Roadrnaster might su~essfully use a paint

in its

existing flowcoater and oven,

Headmaster

will conduct

p~gductiontests

of that paint

c)

Roadmnaster will submit

a

report

to the Agency

by March

1

of

each

year that

includes

a summary of its efforts

during the preceding calendar year,

as those efforts

relate

to Roadmaster’s compliance

with the foregoing

conditions contained

in subsections

(1) and

(2), above

d)

If Roadmaster locates

a compliant paint

that

it can

successfully use

in its existing flowcoatinc operations,

and the net annual expense

of using

the compliant paint

is not more than

10 percent greater

than the then

current

net annual expense incurred

in the existing

painting process,

Headmaster

shall convert

its present

flowcoating operations

to the use

of that paint within

180 days after

the final

successful testing of such a

~and

~

This Section shall expire on January

1,

2000,

at which

time Roadmaster

shall comply with the provisions that

generally apply

to VON emissions.

(Source:

Added at

Ill.

Reg.

_____

,

effective

______________

IT

IS SO ORDERED.

11)6 155

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—8—

I,

Dorothy M.

Gunn,

Clerk

of the Illinois Pollution Contro

Board, hereby certify

that the above

Secojid Notice Opinion and

Order was adopted on the

c~

day

of

.Lc~’’-~~•

1989,

by

a vote of

~

Dorothy

N.

~inn,

Clerk

Illinois Pollution Control Board

1O6--15f~