ILLINOIS POLLUTION CONTROL BOARD

Nay 5, 1993

IN THE MATTER OF:

)

EMERGENCY RULE AMENDING

)

 R93-12

THE STAGE II GASOLINE VAPOR

)

 (Rulemaking)

RECOVERY RULE IN THE METRO-

EAST AREA,

 35 ILL.

 ADM. CODE

219.586(d)

)

ORDER OF THE BOARD

(by

R.

C.

 FleTrial):

This matter comes before the Board on a motion, dated April

30,

 1993 and filed with the Board Nay 3,

 1993,

 submitted by the

Illinois Environmental Protection Agency (Agency).

 The Agency

petitions the Board to adopt an emergency rule that extends for

150 days the May 1,

 1993 compliance deadline for implementation

of Stage II vapor recovery systems in the Metro—East area,

a

moderate ozone nonattainment area consisting of Madison, Monroe

and St. Clair counties.

 The Agency seeks to amend 35

 Ill.

 Adm.

Code 219.586(d)

 so that gasoline dispensing facilities

 located in

the Metro—East area which commenced construction after November

1,

 1990 have an extension of time until September 28,

 1993 in

which to install vapor collection and control equipment.

The

Agency concludes its motion by stating that it “offers whatever

support for the emergency rule that the Board may require”.

 (Motion,

p.

4.)

For the reasons stated below,

 the Board cannot rule on the

motion today.

 The Board instead solicits additional information

and comments from the Agency, the Attorney General, the United

States Environmental Agency

 (USEPA)

 and other interested persons.

The Board will consider any information and comments received on

or before May

17,

 1993.

 The Board presently anticipates ruling

on this motion at its May 20,

 1993 meeting.

The Stacie II VaPor Recovery Rules

Prior to presentation of the substance of the Agency’s

motion, the Board will provide a brief background concerning the

circumstances of our adoption of the Stage II rules at issue

here.

On August 13,

 1992,

 the Board adopted the Stage II rules in

Docket R91-30,

 In the Matter of:

 Stacie II Gasoline Vapor

Recovery Rules: Amendments to 35 Ill. Adm.

 Code Parts 215, 218

and 219.

 These were regulations for the installation and

operation of systems for recovery of gasoline vapor emissions

from the fueling of motor vehicles.

 These regulations are

effectuated through amendments to th~Board’s r~asonab1y

~2-OL~9

2

available control technology

 (RACT) regulations found at

 35 Ill.

Adm. Code 215,

 218, and 219’.

 Pursuant to Section 182(b) (3)

of

the Federal Clean Air Act Amendments of 1990, Public Law 101-549

(CAAA),

 Illinois was to submit these regulations for the recovery

of gasoline vapors as a revision to its state implementation plan

(SIP)

 by November 15,

 1992.

The

CAAA

require that owners or operators of gasoline

dispensing facilities located in nonattainment areas for ozone

designated as moderate or above

 (i.e.,

 serious, severe,

or

extreme)

 install and operate gasoline vehicle refueling vapor

recovery systems

 (Stage II systems).

 The Chicago nonattainment

area has been designated by USEPA as “severe”,

 and the Metro—East

nonattainment area has been designated by USEPA as “moderate”.

The

CAAA

require in pertinent part:

(3)

 GASOLINE VAPOR RECOVERY

(A) GENERAL RULE

Not later than 2 years after November 15,

1990,

 the State shall submit a revision to

the applicable implementation plan to require

all owners or operators of gasoline

dispensing systems to install and operate, by

the date prescribed under subparagraph

 (B),

a

system for gasoline vapor recovery of

emissions from the fueling of motor vehicles.

*

* *

 (42 USC 7511a(b)(3)).

To enable the State of Illinois to comply with these

requirements, the state legislature amended Section

 10 of the Act

to mandate that the Board adopt gasoline vapor recovery

regulations2:

The Board shall adopt regulations requiring

the owner or operator of a gasoline

dispensing system that dispenses more than

10,000 gallons of gasoline per month to

install and operate a system for the recovery

of gasoline vapor emissions arising from the

fueling of motor vehicles that meets the

requirements of Section 182 of the federal

1

 The Chicago area RACT regulations are found at Part 218;

the Metro—East

 area RACT regulations occur at Part 219; Part 215

contains

 RACT

 regulations

 applicable

to

 areas

 other

 than

the

Chicago and Metro—East nonattainment areas.

2

The

Act

at

 Section

10

had

 previously

 contained

a

prohibition against Board adoption of regulations requiring Stage

II systems in Illinois.

 That prohibition remained in effect until

the legislature’s action in response to the

CAAA

noted here.

3

Clean Air Act

 (42 USC 7slla).

 These

regulations shall apply only in areas of the

State that are classified as moderate,

serious,

 severe or extreme nonattainment

areas for ozone pursuant to Section 181 of

 the federal Clean Air Act

 (42 USC 7511), but

shall not apply to areas classified as

moderate nonattainment areas for ozone

 if the

Administrator of USEPA

 promulgates

standards for vehicle—based

 (onboard) systems

for the control of vehicle refueling

emissions pursuant to Section 202(a) (6)

of

the federal Clean Air Act

 (42 USC 7521(a) (6)

by November 15,

 19923.

 (Ill.

 Rev.

 State.

1989,

ch.

 111 1/2, par.

 1010)

The Agency proposed the Stage II rules on January 22,

 1992.

The Board expedited the rulemaking proceeding,

 and adopted the

amendments seven months later on August

13,

 1992.

The adopted amendments apply to gasoline dispensing

facilities located in the Chicago nonattainment area counties of

Cook,

 DuPage,

 Kane,

 Lake, McHenry, and Will,

 as well as Oswego

Township in Kendall County and Aux Sable and Goose Lake Townships

in Grundy County and in the Metro—East moderate nonattainment

area,

 consisting of Madison, Monroe and St. Clair Counties.

The Emerciency Motion

In support of its motion, the Agency recites that at Section

202(a) (6), the

CAAA

requires the United States Environmental

Protection Agency

 (“USEPA”) to promulgate rules for onboard vapor

recovery systems by November 15,

 1991.

 USEPA failed to do so.

Rather, USEPA determined that Stage II accomplished the same or

nearly the same reduction in emissions of volatile organic

materials (“VON”)

 as onboard vapor recovery and was safer.

(57

Fed.

 Reg.

 13200,

 April 15,

 1992.)

As explained in more detail above,

 Section 182(b) (3) of the

CAAA

 (42 USC

 75l1a(b) (e)) requires implementation of Stage II

vapor recovery in moderate nonattainment areas by November

15,

1992.

 However,

 Section 202(a) (6) provides that Stage II shall

not apply in moderate nonattainment areas once USEPA has

promulgated onboard vapor recovery rules.

 Because USEPA did not

promulgate the onboard vapor recovery rules by the date required

in the CAAA, the Agency proposed and the Board adopted Stage II

vapor recovery rules for Metro—East in R91—30 in accordance with

the requirements of the CAA.

The National Resources Defense Council

 (“NRDC”)

 and others

brought suit against USEPA for its failure to promulgate the

U

4

onboard vapor recovery rules.

 The Court found in NRDC v. Reilly,

No. 92—1137,

 slip op.

 (D.C. Cir. Jan.

22,

 1993)

 that USEPA did

 not have discretion with regard to promulgating or not

promulgating onboard vapor recovery rules and ordered USEPA to

proceed with its obligation.

Section 202(a) (6)

 of the

CAAA

does not excuse implementation

of Stage II vapor recovery in moderate nonattainment areas until

such time as USEPA promulgates the onboard vapor recovery rules.

The Agency asserts that:

This raises the specter of very large capital

outlay in an economically depressed area of

the State for what theoretically should be a

relatively short period of time.

Specifically, the Agency estimates that the

capital outlay for installation of Stage II

vapor recovery systems at the Metro—East’s

approximately 400 affected stations to be

approximately $14 million.

 Once the onboard

vapor recovery rules are merely promulgated,

there

 is no longer a federal requirement that

those Stage II vapor recovery systems be

there.

 Moreover, once onboard vapor recovery

begins penetrating the market, the Stage II

systems in Metro-East will be duplicative

controls in an area that does not require

them.

 (Motion, p.

2)

On March 25,

 1993, the Director of the Agency wrote a letter

to USEPA Administrator Browner (Attachment 2).

 After relating

the cost estimates stated above, the Director states:

Therefore,

 I request that you immediately

develop national guidance in light of the

 Court’s order.

 In the meantime, absent

national guidance, the Illinois Environmental

Protection Agency must assume that USEPA is

leaving the discretion to the states whether

to implement the initial phase Stage II vapor

recovery, which is due Nay 15,

1993

 (sic),

in

the moderate ozone nonattainment areas.

Illinois intends to invoke emergency measures

to delay the initial implementation date for

the Metro—East area unless we receive

national guidance by mid-April.

(a.,

p.

2)

The Agency asserts that USEPA has not issued definitive guidance

with regard to this problem; the Director has not received a

response to her letter.

 (Motion,

p.

3)

Under these circumstances,

 it is the Agency’s opinion that

L:.2-QL~.9j~.

5

“enforcement of compliance with the Stage II rules

 in the Metro—

East area,

 at this time,

 is onerous and not in the best interests

of the welfare of the people of the State”.

 (Motion,

p.

3)

In its motion,

 the Agency further notes that Illinois

 is the

first state in the nation, according to Region V, to have adopted

its Stage II rules pursuant to the

CAAA

requirement3.

 Other

states, not having proceeded as far as Illinois in this area, are

 in the position of being able to sit back and wait and see what

transpires regarding the promulgation of the onboard vapor

recovery rules.

 They have no compliance dates facing their

sources,

 forcing their sources into possibly duplicative and

unnecessary control measures.

The Stage II rules adopted by the Board establish a phased-

in compliance schedule for sources affected by the rule.

The

first phase of the compliance schedule requires operations that

commenced construction after November 1,

 1990,

 to have installed

and begun operating its Stage II equipment by May

1,

 1993.

The

second compliance date is November

1,

 1993,

 for operations that

commenced construction before November

1,

 1990,

 and dispense an

average monthly volume of more than 100,000 gallons of gasoline.

Given the uncertainty of USEPA’s position with regard to onboard

vapor recovery, the Agency requests that the first compliance

date be delayed by the 150 days provided by emergency rules

pursuant to Section 5.02 of the Administrative Procedure Act

5

ILC 100/5—45.

BOARD RESPONSE

The Agency concludes its motion by stating that it “offers

whatever support for the emergency rule that the Board may

require”

 (Motion,

p.

4).

 For the reasons stated below,

 the Board

finds that it needs additional information before

 it can rule on

 the merits of the Agency’s request.

Section 27(c)

 of the Environmental Protection Act provides:

When the Board finds that a situation exists

which reasonably constitutes

 a threat to the

public interest, safety or welfare, the Board

may adopt regulations pursuant to and in

accordance with Section 5.02 of the Illinois

Administrative Procedure Act.

~

 Other states that have employed Stage II for

 a number of

years have’done

 so at their discretion:

 that

is,

 Stage

II

 is a

control measure

 they chose

to

 implement rather than some other

control measure; it was not required by the

CAAA

at the time these

states adopted the Stage II rules.

6

Section 5.02 Illinois Administrative Procedure Act provides

in pertinent part:

“Emergency” means the existence of any

situation that any agency finds reasonably

constitutes a threat to the public interest,

safety, or welfare.

 If any agency finds that

an emergency exists that requires adoption of

a rule upon fewer days than is required by

Section 5-40 and states in writing its

reasons for that finding, the agency may

adopt an emergency rule without prior notice

or hearing upon filing a notice of emergency

rulemaking with the Secretary of State under

 Section 5-70.

 Subject to applicable

constitutional or statutory provisions,

an

emergency rule become effective immediately

upon filing under Section 5-65 or at a stated

date less than 10 days thereafter.

The

agency shall take reasonable and appropriate

measures to make emergency rules known to the

persons who may be affected by them.

An emergency rule may be effective for a

period of not longer than 150 days,

 but the

agency’s authority to adopt an identical rule

under Section 5—40 is not precluded.

Emergency rules are scrutinized by both the Joint Committee on

Administrative Rules and by the courts to determine whether

“there exists a situation which reasonably constitutes a threat

to the public interest, safety or welfare”.

 Citizens for a

Better Environment v. Illinois Pollution Control Board,

 (1st

Dist.

 1983)

 152 Ill. App.3d 105,

 504 N.E. 2d 166,

169

 (emphasis

in original)

 (vacating rules on the basis that no emergency

existed).

The Board may only adopt rules on the basis of the record

before it, and this record contains no information or legal

argument to support the Agency’s conclusion that an emergency

exists.

 While the Agency states that it estimates there are some

400 affected gas stations in the Metro-East area and that

required capital expenditures are estimated at $14 million,

its

unsworn motion contains no information to lead the Board to

conclude that any of these stations were out of compliance as of

Nay 1.

 The Board itself has received no petitions for variance

or adjusted standards which could lead it to conclude that non-

compliance exists. The Agency motion as worded speaks of “the

specter of a very large capital outlay”, rather than of a

reality.

 While the Agency may well have identified or been

approached by sources who have yet to comply with the Stage II

requirements, evidence of this has not been submitted into this

~L2-O~96

7

record.

 The Board accordingly invites the Agency to supplement

its motion by any appropriate filing to be received by the Board

on or before May 17,

 1993.

The Board also notes that this motion has been served only

upon the Board.

 It was not served upon the Attorney General and

the Department of Energy and Natural Resources as required by the

Board’s procedural rules in 35

 Ill.

 Adm. Code 102.120, or upon

any of the approximately 50 participants in the R9l-30

proceeding.

As the Board does not feel that it can proceed today in this

matter based on the record before

 it, and as the Nay

 1 compliance

date had already passed before the Board’s May

 3 receipt of this

motion, the Board believes

 it would be prudent to solicit comment

 from those potentially affected by the proposed rule change.

The

Board accordingly directs the Clerk to serve copies of this order

on all persons on the R91-30 notice list.

 The Board will

consider any public comment on whether it should adopt the

proposed emergency rule that is received by the Board on or

before Nay 17,

 1993.

 The Board presently anticipates ruling on

this matter at its May

20,

 1993 meeting.

IT IS SO ORDERED.

I,

 Dorothy N. Gunn,

 Clerk of the Illinois Pollution Control

Boar~hereby certify that the above order was adopted on the

day of

_________________,

 1993,

 by a vote of

______

Dorothy M.,4unn, Clerk

Illinois P~lutionControl Board

Li ~ ~

 UL.~