ILLINOIS POLLUTION CONTROL BOARD
September 1, 2005
IN THE MATTER OF:
PETITION OF FORD MOTOR COMPANY
FOR AN ADJUSTED STANDARD FROM
35 ILL. ADM. CODE 218.586
)
)
)
)
)
AS 05-5
Adjusted Standard - Air
KATHLEEN C. BASSI, JANE E. MONTGOMERY, and KAVITA M. PATEL of SCHIFF,
HARDIN & WAITE APPEARED ON BEHALF OF PETITIONER; and
CHARLES E. MATOESIAN APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD (by J.P. Novak):
Ford Motor Company (Ford) filed a petition seeking an adjusted standard from the
Board’s air regulations. Ford owns a motor vehicle assembly plant in Chicago at which it
initially fuels newly assembled vehicles. Ford controls the emission of vapor from its gasoline
fueling operations through a Stage II vapor recovery system operating with at least 95% removal
efficiency, as required by Section 218.586 of the Board’s air regulations. At its Chicago plant,
Ford now manufactures and fuels only motor vehicles equipped with onboard refueling vapor
recovery (ORVR) systems. The ORVR systems meet new federal requirements to recover at
least 95% of gasoline fueling vapors. Since the new ORVR systems alone meet the recovery
levels of Section 218.586, Ford seeks an adjusted standard from the Stage II recovery rules and
to require instead that Ford comply only with federal ORVR regulations. The Illinois
Environmental Protection Agency (Agency) recommends that the Board grant the request.
In today’s order, the Board finds on the basis of the record before it that Ford has
provided sufficient justification for an adjusted standard for its Chicago Assembly Plant under
Section 28.1 of the Environmental Protection Act (Act) (415 ILCS 5/28.1 (2004)).
This order will first describe the procedure through which petitioners may seek adjusted
standards before providing the procedural background of this case and taking up a preliminary
matter. The Board then summarizes the factual background of this petition and the standard of
review applicable to it under the Act. In subsequent sections, the order contains both the current
generally applicable standard and the adjusted standard proposed by Ford for this plant. Finally,
the Board evaluates the statutory factors it must address in reviewing this petition before
reaching its conclusion and order.
ADJUSTED STANDARD PROCEDURE
The Act and Board rules provide that a petitioner may request, and the Board may grant,
an environmental standard that is different from the generally applicable standard that would
otherwise apply to the petitioner. The general procedures governing an adjusted standard
proceeding are found at Section 28.1 of the Act and Part 104, Subpart D of the Board’s
2
procedural rules. 415 ILCS 5/28.1 (2004); 35 Ill. Adm. Code 104.400
et seq
. Specifically, the
Board’s rules for the contents of the petition for an adjusted standard and the Agency
recommendation are found at Sections 104.406 and 104.416, respectively. 35 Ill. Adm. Code
104.406, 104.416.
PROCEDURAL BACKGROUND
On February 25, 2005, Ford petitioned the Board (Pet.) for an adjusted standard from 35
Ill. Adm. Code 218.586, the Board’s organic material emission standards and limitations for the
Chicago area with regard to gasoline dispensing and motor vehicle fueling operations. Ford
requested that the Board hold a hearing on this petition in order to satisfy the public participation
requirements of the State Implementation Plan (SIP) required by the federal Clean Air Act. Pet.
at 10; Rec. at 8, citing 42 U.S.C. § 7410;
see
35 Ill. Adm. Code 104.406(j), 218.108.
The Act and the Board’s regulations require publication of notice of a petition for an
adjusted standard in a newspaper of general circulation in the area likely to be affected by the
petitioner’s activity. 415 ILCS 5/28.1(d)(1) (2004); 35 Ill. Adm. Code 104.408(a). Notice must
be published within 14 days of filing a petition for an adjusted standard with the Board.
Id
. As
required, Ford on March 9, 2005 timely filed with the Board proof of publication indicating that
the
Daily Southtown
published notice of the petition on March 4, 2005.
See
35 Ill. Adm. Code
104.410. No party other than Ford requested that the Board hold a hearing in this matter.
In a March 17, 2005 order, the Board found that Ford’s petition did not fully satisfy the
informational requirements contained in Section 28.1(c) of the Act.
Petition of Ford Motor
Company for an Adjusted Standard From 35 Ill. Adm. Code 218.586, AS 05-5, slip op. at 2-3
(Mar. 17, 2005);
see
415 ILCS 4/28.1(c) (2004). Accordingly, the Board directed Ford to
provide three items of information, without which it would not be able to grant the petition for an
adjusted standard.
Petition of Ford Motor Company for an Adjusted Standard From 35 Ill. Adm.
Code 218.586, AS 05-5, slip op. at 3 (Mar. 17, 2005).
On April 12, 2005, the Agency filed its recommendation (Rec.). The Agency
recommended granting Ford’s petition and requested that the Board adopt specific language as
part of an adjusted standard for Ford’s initial fueling operation. Rec. at 5 (suggesting six
conditions).
The Board held a hearing in matter before Hearing Officer Bradley Halloran on June 28,
2005 (Tr.). One witness, John C. Baguzis, appeared for Ford, and two witnesses, Jerry Clark and
Darwin Burkhart, were present from the Agency. On July 22 2005, Ford filed its post-hearing
brief (Ford Brief). On the same date, Ford filed a motion to correct transcript. On August 9,
2005, the Agency filed both its post-hearing brief (Agency Brief) and a motion to correct the
transcript of the hearing. On August 15, 2005, Ford filed a reply brief (Reply Brief). Although
the hearing officer set a deadline of July 25, 2005 for public comment, the Board did not receive
any public comment with regard to this matter.
PRELIMINARY MATTER
3
On July 22, 2005, Ford filed a motion to correct transcript. In that motion, Ford requests
that the Board order 27 specific corrections to the transcript of the hearing held June 28, 2005 in
this matter. To date, the People have not filed a response to the motion to correct. If a party files
no response to a motion within 14 days, the party will be deemed to have waived objection to
granting the motion. 35 Ill. Adm. Code 101.500(d). The Board hereby grants Ford’s motion to
correct the transcript as set forth in the motion.
On August 9, 2005, the Agency filed its own motion to correct the transcript of the
hearing. In that motion, the Agency requests that the Board order seven specific corrections to
the transcript of the hearing held June 28, 2005 in this matter. To date, Ford has not filed a
response to the motion to correct. If a party files no response to a motion within 14 days, the
party will be deemed to have waived objection to granting the motion.
See
35 Ill. Adm. Code
101.500(d). The Board hereby grants the Agency’s motion to correct the transcript as set forth in
the motion.
FACTUAL BACKGROUND
Ford owns a motor vehicle assembly plant, the Chicago Assembly Plant (Plant), located
at 12600 South Torrence Avenue within the Chicago ozone nonattainment area. Pet. at 3. The
Plant, constructed in 1924, occupies 2.7 million square feet and employs approximately 2,700
persons.
Id
. Although the Plant is located in an industrial area, its vicinity includes a residential
area.
Id
.
At the Plant, Ford assembles vehicles from parts manufactured at other locations. Pet. at
3. Final assembly includes providing the vehicle with enough fuel to move it from the assembly
area to a holding area before it is transported to the customer.
Id
. Pursuant to the Clean Air Act
Permit Program (CAAPP), the Agency issued Ford a permit for the Plant, and the permit remains
in effect.
Id
.;
see
415 ILCS 5/39.5 (2004). Ford’s permit allows it annually to dispense as much
as 3.93 millions of gasoline at the Plant. Pet. at 3. Without any control, initial fueling would
emit approximately 21.62 tons of volatile organic material (VOM).
Id
.; Pet., Exh. 4, Attachment
1 (attributing 11 pounds of VOM per 1000 gallons of gasoline).
Ford uses a Stage II vapor recovery system to capture and control gasoline vapors
displaced during fueling at the plant. Pet. at 3,
see
35 Ill. Adm. Code 218.586 (implementing
Section 182(b)(3)(A) of the Clean Air Act). The system uses a specialized gasoline-dispensing
nozzle to capture vapors, which are then piped to an afterburner on the roof of the plant. The
afterburner ignites and combusts the vapors using a natural gas-fired pilot. Pet. at 4;
see
Pet.,
Exh. 5 (diagram of Stage II system);
but see
Rec. at 3 (describing typical system capturing
vapors into storage tank).
Ford now manufactures at the Plant only vehicles equipped with ORVR systems. Pet. at
4; Pet., Exh. 4. ORVR systems retain displaced gasoline vapors in a carbon canister located in
the vehicle. Pet. at 4. “Over time, as the engine runs, the vapors are desorbed by engine heat
and used as fuel for the engine.” Pet. at 7. Ford designs and certifies its ORVR systems to
provide 98% capture efficiency. Pet. at 3-4. The ORVR systems annually capture 21.19 tons of
VOM from the Plant. Pet., Exh. 4. The remaining annual emissions of 0.43 tons of VOM are
4
routed to the Stage II system. At 95% removal efficiency, the Stage II system destroys
approximately 0.408 tons of VOM per year. Pet., Exh. 4.
STANDARD OF REVIEW
Section 218.586 does not specify a level of justification or other requirements that Ford
must satisfy in order to obtain an adjusted standard.
See
35 Ill. Adm. Code 218.586; Pet. at 2;
Rec. at 7. Therefore, under Section 28.1 of the Act (415 ILCS 5/28.1 (2004)), the burden of
proof is on Ford to demonstrate that:
1.
Factors relating to that petitioner are substantially and significantly
different from the factors relied upon by the Board in adopting the general
regulation applicable to that petitioner;
2.
The existence of those factors justifies an adjusted standard;
3.
The requested standard will not result in environmental or health effects
substantially and significantly more adverse than the effects considered by
the Board in adopting the rule of general applicability; and
4.
The adjusted standard is consistent with any applicable federal law. 415
ILCS 5/28.1(c) (2004); 35 Ill. Adm. Code 104.426(a).
CURRENT APPLICABLE STANDARD
The regulations applicable to Ford’s vehicle fueling operations are set forth at 35 Ill.
Adm. Code 218.586, which provides in pertinent part:
a)
For the purposes of this Section, the following definitions apply.
1)
Average monthly volume means the amount of motor vehicle fuel
dispensed per month from a gasoline dispensing operation based
upon a monthly average for the 2-year period of November, 1990
through October 1992 or, if not available, the monthly average for
the most recent twelve calendar months. Monthly averages are to
include only those months when the operation was operating.
2)
Certified means any vapor collection and control system which has
been tested and approved by CARB [California Air Resources
Board] as having a vapor recovery and removal efficiency of at
least 95% (by weight) shall constitute a certified vapor collection
and control system. CARB testing and approval is pursuant to the
CARB manual, incorporated by reference at 218.112 of this Part.
* * *
8)
Gasoline dispensing operation means any operation where motor
vehicle fuel is dispensed into motor vehicle fuel tanks or portable
5
containers from a storage tank with a capacity of 2176 liters (575
gallons) or more.
* * *
11)
Motor vehicle fuel means any petroleum distillate having a Reid
vapor pressure of more than 27.6 kilopascals (kPa) (four pounds
per square inch) and which is used to power motor vehicles.
12)
Owner or operator means any person who owns, leases, operates,
manages, supervises or controls (directly or indirectly) a gasoline
dispensing operation.
* * *
14)
Vapor collection and control system means any system certified by
CARB which limits the discharge to the atmosphere of motor
vehicle fuel vapors displaced during the dispensing of motor
vehicle fuel into motor vehicle fuel tanks.
b)
The provisions of subsection (c) below shall apply to any gasoline
dispensing operation which dispenses an average monthly volume of more
than 10,000 gallons of motor vehicle fuel per month. * * *
c)
No owner or operator of a gasoline dispensing operation subject to the
requirements of subsection (b) above shall cause or allow the dispensing
of motor vehicle fuel at any time from a motor fuel dispenser unless the
dispenser is equipped with and utilizes a vapor collection and control
system which is properly installed and operated as provided below:
1)
Any vapor collection and control system installed, used or
maintained has been CARB certified.
2)
Any vapor collection and control system utilized is maintained in
accordance with the manufacturer's specifications and the
certification.
3)
No elements or components of a vapor collection and control
system are modified, removed, replaced or otherwise rendered
inoperative in a manner which prevents the system from
performing in accordance with its certification and design
specifications.
4)
A vapor collection and control system has no defective,
malfunctioning or missing components.
5)
Operators and employees of the gasoline dispensing operation are
trained and instructed in the proper operation and maintenance of a
vapor collection and control system.
6
6)
Instructions are posted in a conspicuous and visible place within
the motor fuel dispensing area and describe the proper method of
dispensing motor vehicle fuel with the use of the vapor collection
and control system.
* * *
35 Ill. Adm. Code 218.586.
FORD’S PROPOSED ADJUSTED STANDARD
In its petition, Ford proposed an adjusted standard providing:
The Ford Motor Company Chicago Assembly Plant is not subject to the
requirements of Section 218.586, effective immediately, so long as the vehicles
fueled at the Chicago Assembly Plant are equipped with onboard vapor recovery
systems certified by the U.S. Environmental Protection Agency to capture a
minimum of 95% of the gasoline vapors displaced during fueling. Pet. at 5.
In its recommendation, the Agency requested that “the Board adopt the following
language as part of an adjusted standard for Ford’s initial fuel fill operations at the Plant:”
1.
The Ford Motor Company Chicago Assembly Plant shall not be subject to
the requirements of 35 Ill. Adm. Code § 218.586, so long as the vehicles
fueled at the Chicago Assembly Plant are equipped with onboard vapor
recovery systems certified by the USEPA to capture a minimum of 95% of
the gasoline vapor displaced during fueling.
2.
Ford shall file an application to revise its CAAPP permit to reflect the
presence of ORVR in all assembled vehicles in lieu of the existing Stage II
vapor recovery system.
3.
Ford shall operate in full compliance with all other applicable provisions
of 35 Ill. Adm. Code Part 218, including but not limited to, Subpart Y.
4.
The relief granted in this proceeding shall be limited to the Stage II
recovery system at the Plant as of April 8, 2004.
5.
Ford shall operate in full compliance with the Clean Air Act, Illinois
Environmental Protection Act and other applicable regulations not
otherwise discussed herein.
6.
Ford shall continue to report all annual emissions to the Illinois EPA
commensurate with the requirements of 35 Ill. Adm. Code Part 254.
Rec. at 5. At the hearing, Ford’s counsel stated that “those conditions are acceptable.”
Tr. at 33.
7
Ford addressed these conditions in its reply to the Agency’s post-hearing brief. In
response to the first condition, Ford agreed that only vehicles equipped with ORVR
systems certified with a minimum capture efficiency of 95% would be fueled at the Plant.
Reply Brief at 1. In response to the second, Ford states that it “will file an application to
revise its CAAPP permit upon issuance of the Board’s order granting the Adjusted
Standard.” Reply Brief at 2
.
Ford also agreed to the third condition, stating that all
provisions of Part 218, including Subpart Y, would remain applicable to it and that it
would continue to comply with them.
Id
. Ford also agreed to the fourth, applying this
adjusted standard to the Stage II system only at the Chicago Assembly Plant as of April
8, 2004.
Id
. With regard to the fifth condition, “Ford agrees that it will continue to
comply with the Clean Air Act, Illinois Environmental Protection Act and all other
applicable regulations.”
Id
. Finally, with regard to the sixth, Ford “agrees that it will
continue to follow the requirements of 35 Ill. Adm. Code Part 254 and report all annual
emissions to the Illinois EPA.”
Id
.
SUBSTANTIALLY DIFFERENT FACTORS
Ford states that Section 218.586 of the Board’s air regulations provides for Stage II
control of vapors from gasoline fueling operations. Pet. at 1. Specifically, “[t]he regulations
require that affected dispensers of gasoline install, use, and maintain a vapor collection and
control system certified by the California Air Resources Board. . . .”
Id
. Certification requires
vapor recovery and removal efficiency of at least 95%. 35 Ill. Adm. Code 218.586(a)(2). Ford
further states that the Board in 1992 adopted Stage II regulations in
Stage II Gasoline Vapor
Recovery Rules: Amendments to 35 Ill. Adm. Code Parts 215, 218, and 219, R91-30 (Aug. 13,
1992). Pet. at 2. The United States Environmental Protection Agency (USEPA) approved the
Board’s Stage II regulations as part of Illinois’ SIP for ozone. Pet. at 2; Pet., Exh. 1 (approving
revisions in R91-30 on Jan. 12, 1993, at 58 FR 3841). In his testimony at hearing, John Baguzis
of Ford stated his understanding that, at the time these rules were contemplated and enacted,
ORVR systems did not exist. Tr. at 27;
see
57 FR 13220 (Apr. 15, 1992) (announcing USEPA
decision not to promulgate ORVR requirements).
Ford states that Section 202(a)(6) of the Clean Air Act requires automobile manufacturers
to incorporate ORVR system in new passenger vehicles. Pet. at 2; Pet., Exh. 2 (providing text of
42 U.S.C. § 7521(a)(6)). USEPA adopted the final rule implementing the ORVR requirement on
April 6, 1994. Pet., Exh. 3 (providing text of 59 FR 16262). All of the vehicles manufactured at
the Plant are equipped with ORVR systems designed and certified with 98% capture and control
efficiency. Pet. at 4; Tr. at 27; Pet., Exh. 4 (affidavit of John Baguzis).
Ford argues that the U.S. Congress anticipated that, as the manufacture of new cars
equipped with ORVR expanded, Stage II recovery would no longer be necessary. Pet. at 2.
“The Clean Air Act provides that Stage II would not apply in moderate nonattainment areas once
USEPA had adopted ORVR regulations. . . .”
Id
., citing 42 U.S.C. § 7521(a)(6). The Clean Air
Act further provides that the USEPA Administrator may revise or waive Stage II requirements in
serious, severe, and extreme nonattainment areas when ORVR systems had attained widespread
use.” Pet. at 2, citing 42 U.S.C. § 7521(a)(6).
8
The Agency in its recommendation notes that USEPA has not determined that ORVR has
attained widespread use in the Chicago nonattainment area. Rec. at 6. Nonetheless, the Agency
notes that, because Ford manufactures only vehicles equipped with ORVR at the Plant, Ford is
“ahead of the curve.” Rec. at 6. Since Ford has effectively reached the point of “widespread
use” contemplated by the Clean Air Act, the Agency believes that adequate justification exists
for the adjusted standard.
See
Rec. at 7; 42 U.S.C. §7521(a)(6).
Ford states that, in adopting Section 218.586, the Board sought to address the issue of the
emission of VOM released during vehicle fueling. Now that vehicles’ ORVR systems
effectively capture those emissions, the factors considered and addressed by the Board in
adopting Stage II requirements no longer exist. Ford Brief at 2. In his testimony at hearing,
John Baguzis asserts that, with an equivalent if not superior control device now in place to
control refueling vapor, the regulatory environment is “substantially different today” from that at
the time of adopting Stage II regulations. Tr. at 27.
EFFORTS TO ACHIEVE COMPLIANCE AND ALTERNATIVES
The Plant’s Stage II vapor recovery system is approaching the end of its life. Pet. at 4.
Although Ford in 1994 improved the system, it needs to be replaced if it is to continue
complying with the requirements of the Board’s motor vehicle fueling regulations.
Id
.;
see
35
Ill. Adm. Code 218-586. Ford estimates the total capital and operating costs of a new Stage II
system to be more than $81,000 per year. Pet., Exh. 4 (relying on USEPA Cost Control
Manual);
see also
Tr., Pet. Exh. 1.
To its petition, Ford attached an exhibit estimating the cost of removing through Stage II
those vapors not captured by the required ORVR systems. Pet., Exh. 4. Because a new Stage II
system would cost more than $81,000 to control 0.408 tons of VOM each year, the cost per ton
of VOM removed would be nearly $200,000.
Id
. Ford argues that this “is clearly extraordinary
and far beyond what the Board has already concluded is a reasonable cost for installation of
Stage II vapor recovery.” Pet. at 6, citing
Stage II Vapor Recovery in the Metro-East Area:
Repeal of 35 Ill. Adm. Code 219.586, R93-28 (Feb. 17, 1994).
In its recommendation, the Agency accepted Ford’s calculation of these costs and
characterization of them as “inordinately expensive.” Rec. at 4-5. Considering the cost of
replacing the Stage II system and the minimal environmental impact of relying solely on ORVR,
the Agency “believes Ford makes a reasonable request for an adjusted standard.”
Id
.
In his testimony for Ford at hearing, John Baguzis explained that Ford in its petition
based its cost calculations on a 98% capture efficiency in line with the ORVR systems in the
vehicles manufactured at its plant. Tr. at 19. Baguzis further explained that, because the federal
statute requiring ORVR systems and language Ford proposed for an adjusted standard both refer
to 95% efficiency, Ford re-calculated those costs based on that 95% figure. Tr. at 19-20. That
re-calculation showed that the ORVR systems would annually remove 20.54 tons of VOM,
allowing 1.08 tons of VOM potentially to be released on an annual basis into the environment.
Tr., Pet. Exh. 1. Also operating with a capture efficiency of 95%, a Stage II system would
annually remove 1.03 tons of VOM, allowing 0.054 tons of VOM annually to be emitted to the
9
environment.
Id
. Again based on annual costs for the system of more than $81,000, a new Stage
II system would still result in an annual cost per ton of VOM removed of more than $79,000.
Id
.
Baguzis characterized this as “an exorbitant sum to reduce a small amount of VOC [VOM].” Tr.
at 25.
IMPACT ON THE ENVIRONMENT
Ford states that the Stage II and ORVR systems compete with one another to capture
gasoline vapor displaced during vehicle fueling, which renders each less effective. Pet. at 7. The
Agency notes that these two systems “can be incompatible if operated simultaneously,” with the
result that gasoline vapors are not effectively captured or controlled. Rec. at 4. As one specific
example, the Agency notes that, when an ORVR-equipped vehicle is fueled where there is a
Stage II system, then saturated gasoline vapors are not available at the fill spout because the
ORVR system captures nearly all of them.
Id
. As a result, fresh air is drawn into the storage
tank, resulting in increased evaporation and vapor pressure (
Id
.), and “[i]ncreased pressure in the
tank causes excess vapors to be released into the atmosphere.”
Id
. Jerry Clark of the Agency
generally echoed this observation in his testimony at hearing. Tr. at 34-35. In his testimony at
hearing, Baguzis described a different form of this competition between the two systems. Tr. at
28. If, as a result of the operation of the ORVR system, the vapor concentration is too low to
trigger a flame when it enters the Stage II system’s flare, then gasoline vapors could be emitted
directly into the atmosphere.
Id
. In addition to the gasoline vapors, the Stage II system also
releases emissions of nitrogen oxides and carbon monoxide from constant use of a pilot light that
burns natural gas.
Id
.; Pet. at 7-8.
Ford notes that new federal emissions models apply a 95% refueling emissions reduction
credit for ORVR-equipped vehicles. Pet. at 8; Pet., Exh. 8 (MOBILE6.1 and MOBILE6.2 mobile
source emissions model). In its previous MOBILE5 emissions model, USEPA noted that,
“where Stage II is in place and on-board-equipped vehicles begin to enter the fleet, the control is
dominated by onboard, which is generally more effective than Stage II.” Pet., Exh. 9 at 2-37.
Furthermore, Ford notes that USEPA has determined, for sites used exclusively for the fueling or
refueling of ORVR-equipped vehicles, “ORVR fully displaces the need for Stage II vapor
recovery.” Pet. at 8; Pet., Exh. 10 (67 FR 45909 (July 11, 2002)). Ford concludes on the basis
of these authorities that the ORVR system is at least as good as, if not superior to, the existing
Stage II system satisfying the requirements of Section 218.586. Pet. at 8.
In addition, Ford argues that ORVR-equipped vehicles inherently improve the
environment. Their onboard systems remove gasoline vapors even in areas that are not required
to implement Stage II systems. Pet. at 8. In addition, Ford argues that an adjusted standard
would allow it to discontinue the use of its Stage II flare, which would eliminate the emissions
resulting from its operation.
Id
.
Ultimately, the Agency accepts Ford’s position that, even after removal of the existing
Stage II system, “100% use of ORVR [in] initial fuel fill operations will not have a negative
impact on air quality.” Rec. at 6,
see
Pet. at 8. The Agency further notes that, because the plant
is an assembly facility, Ford can guarantee that all vehicles fueled there are ORVR-equipped.
Rec. at 7.
10
CONSISTENCY WITH FEDERAL LAW
The Agency notes in its recommendation that the Board may grant the proposed adjusted
standard consistent with federal law allowing states to implement and revise air quality standards
subject to USEPA approval. Rec. at 8, citing 42 U.S.C. § 7410. The Agency further notes that
the Board exercises authority given to the states under the Clean Air Act when it follows its
adjusted standard procedure in the area of air emission regulations. Rec. at 8. The Agency states
that it will further comply with federal law by submitting an adjusted standard granted by the
Board to USEPA as a SIP revision.
Id
.;
see
Pet. at 10.
BOARD DISCUSSION AND ANALYSIS
Substantially Different Factors
Based on the record in this matter, the Board finds that the “factors relating to the
petitioner are substantially and significantly different than the factors relied upon by the Board in
adopting the general regulation applicable to the petitioner.” 415 ILCS 5/28.1(c)(1) (2004). As
Ford notes, when the Board adopted Section 218.586 to control vapor during gasoline
dispensing, ORVR systems were not required and were not installed on vehicles built at the
Plant. Ford Brief at 2;
see
Pet. at 2. Ford consequently installed and upgraded a Stage II vapor
recovery system in order to comply with the regulation. Pet. at 4. Since that time, federal law
has required that Ford incorporate ORVR into new passenger vehicles. Pet. at 2. Now that all
vehicles produced by Ford at the Plant contain ORVR (Pet. at 3), that vapor is recovered with at
least 95% efficiency by the systems onboard those vehicles. Accordingly, the Board finds that
Ford’s compliance with federal law requiring ORVR systems to control vapor during gasoline
refueling of the vehicles it manufacturers is a factor substantially and significantly different than
the factors relied upon by the Board in adopting Stage II requirements at 35 Ill. Adm. Code
218.586. Moreover, the possibility of simultaneous operation and incompatibility of the Stage II
and ORVR systems was not addressed in the 1992 proceeding with which the Board adopted
Section 218.586.
See
Stage II Gasoline Vapor Recovery Rules: Amendments to 35 Ill. Adm.
Code Parts 215, 218, and 219, R 91-30, slip op. at 5-8 (Aug. 13, 1992).
Efforts to Achieve Compliance and Alternatives
Particularly in light of the findings below with regard to environmental impact, the Board
finds that Ford has demonstrated that there is no economically reasonable and technically
feasible means now available for Ford to comply with the regulation of general applicability.
Ford notes that the ORVR required by the Clean Air Act has made the Stage II system required
by Section 218.586 obsolete. Ford Brief. at 2. Nonetheless, the one alternative to the proposed
adjusted standard is replacement of the existing Stage II system that Ford states is nearing the
end of its life. Pet. at 4. Assuming that the ORVR system controls 95% of potential VOM
emission, that alternative would result in annual costs of more than $79,000 per ton of VOM
removed. The Agency in its recommendation concurs that the cost of removing the gasoline
vapors not captured by the ORVR system would be “inordinately expensive.” Rec. at 4. The
11
Board thus finds that the substantially and significantly different factors relating to Ford justify
the proposed adjusted standard.
See
415 ILCS 5/28.1(c)(2) (2004).
Impact on the Environment
Based on the record in this matter, the Board concludes that the granting of an adjusted
standard will have no adverse environmental impact. Because both the Stage II and ORVR
systems are designed to capture at least 95% of gasoline vapors resulting from motor vehicle
fueling, and because competing systems may compromise one another’s effectiveness, relying
exclusively on ORVR is at least the equivalent of, and possibly superior to, the Stage II system
now required by the Board’s regulations. The Agency concurs that ORVR and Stage II serve the
same function. Consequently, the Board finds that the requested standard will not result in
environmental or health effects substantially and significantly more adverse than the effects
considered by the Board in adopting Section 218.586.
See
415 ILCS 5/28.1(c)(3) (2004).
Consistency with Federal Law
The Board finds that federal law is no bar to granting the requested relief. The Board
notes that it exercises authority given to the states under the Clean Air Act when it follows its
adjusted standard procedure in the area of air emission regulations. The Board further notes that
the Agency acknowledges that revising the Illinois SIP requires USEPA approval. The Agency
has stated that, “[i]f the requested adjusted standard is adopted by the Board, Illinois EPA has the
authority and will submit the adjusted standard to USEPA as a SIP revision, thus complying with
federal law.” Rec. at 8. Accordingly, the Board finds that granting the adjusted standard is
consistent with federal law.
See
415 ILCS 5/28.1(c)(4) (2004).
CONCLUSION
For the reasons described above, the Board finds that Ford has provided sufficient
justification under Section 28.1 of the Act for an adjusted standard. 415 ILCS 5/28.1 (2004).
The Board grants Ford relief from Section 218.586 of the Board’s air quality regulations (35 Ill.
Adm. Code 218.586) at Ford’s Chicago assembly plant as described in the order below.
While the Agency proposed a condition requiring that “Ford shall operate in full
compliance with the Clean Air Act, Illinois Environmental Protection Act and other applicable
regulations not otherwise discussed herein” (Rec. at 5), and Ford has agreed to its terms (Ford
Reply at 2), the Board finds that the proposed condition is unnecessary and declines to include it
in its order below. Ford is obligated to comply with all relevant statutes and regulations whether
or not the Board makes that obligation explicit in an order granting a petition for an adjusted
standard.
This opinion constitutes the Board’s findings of fact and conclusions of law.
ORDER
12
Effective September 1, 2005, the Board grants Ford Motor Company an adjusted standard
from 35 Ill. Adm. Code 218.586 for its Chicago Assembly Plant located at 12600 South Torrence
Avenue, Chicago, subject to the following conditions:
1.
The Ford Motor Company Chicago Assembly Plant shall not be subject to
the requirements of 35 Ill. Adm. Code 218.586, so long as the vehicles
fueled at the Chicago Assembly Plant are equipped with onboard vapor
recovery systems certified by the United States Environmental Protection
Agency to capture a minimum of 95% of the gasoline vapor displaced
during fueling.
2.
Ford shall file an application to revise its Clean Air Act Permit Program
permit to reflect the presence of onboard refueling vapor recovery in all
assembled vehicles in lieu of the existing Stage II vapor recovery system.
3.
Ford shall operate in full compliance with all other applicable provisions
of 35 Ill. Adm. Code 218, including but not limited to, Subpart Y.
4.
The relief granted in this proceeding is limited to the Stage II recovery
system at the Plant as of April 8, 2004.
5.
Ford shall continue to report all annual emissions to the Illinois EPA as
required by the requirements of 35 Ill. Adm. Code 254.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2004);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on September 1, 2005, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
