ILLINOIS POLLUTION CONTROL BOARD
February 17,
1994
IN THE MATTER OF:
)
)
STAGE II VAPOR RECOVERY IN
)
R93-2B
THE METRO-EAST AREA: REPEAL
)
(Rulemaking)
OF 35 ILL. ADM. 219.586
)
Adopted Rule.
Final Order.
OPINION
AND
ORDER OF THE BOARD
(by RC.
Flemal):
This matter comes before the Board upon a petition from the
Illinois Environmental Protection Agency
(Agency) to repeal the
Stage II vapor recovery controls applicable in the Metro-East
area
(Madison, Monroe, and St. Clair Counties, Illinois).
Repeal of the Stage II regulations is connected with
adoption by the United States Environmental Protection Agency
(USEPA) on January 24,
1994 of rules that govern on-board vapor
recovery (OBVR)
systems (see discussion following).
The
participants in this proceeding believe that the Metro-East Stage
II regulations are unnecessary and unwarranted in the presence of
federal OBVR regulations.
The Board agrees, and accordingly by
today’s action adopts the repealer.
The Board’s responsibility in this matter arises from the
Illinois Environmental Protection Act
(Act)
(415 ILCS 5/1 et
seq.).
The Board is charged under the Act to “determine,
define
and implement the environmental control standards applicable in
the State of Illinois”
(Act at Section 5(b)).
More generally,
the Board’s rulemaking charge is based on the system of checks
and balances integral to Illinois environmental governance:
the
Board bears responsibility for the rulemaking and principal
adjudicatory functions, whereas the Agency is responsible for
carrying out the principal administrative duties.
PROCEDURAL HISTORY
The Agency filed its proposal with the Board on October 21,
1993.
On November 4,
1993 the Board adopted the proposal for
first notice.
Publication occurred at 17 Ill. Reg.
20203,
November 29,
1993.
Hearing was held on December 7,
1993 in Collinsville,
Illinois.
Testimony was presented by representatives of the
Agency, the Illinois Petroleum Marketers Association
(IPMA),
the
Illinois Association of Convenience Stores, Piasa Motor Fuels,
Inc.
(Piasa), Clinton County Oil Company,
Inc.,
and the Illinois
Petroleum Council.
—2—
The 45-day first—notice comment period closed on January 14,
1994.
Comments were filed by the Department of Commerce and
Community Affairs
(DCCA)
(PC #1), IPMA (PC #2), Administrative
Code Division (PC #3), and the Agency
(PC #4).
The Board adopted the repeal proposal for second notice on
January 20,
1994.
On February 15,
1994 the Joint Committee on
Administrative Rules voted “no objection” to the proposal.
STAGE II/OBVR HISTORY
-Stage II vapor recovery systems are designed to control and
capture hydrocarbon vapors during the fueling of motor vehicle
tanks.
Vehicle fuel emissions consist of gasoline vapors
displaced from the vehicle tank by dispensed liquid gasoline as
the tank is filled.
The Stage II system captures these vapors as
they exit the vehicle’s fuel fillpipe, thereby preventing escape
of the vapors into the atmosphere.
Vapor capture is accomplished
by one of several types of devices attached to or part of the
nozzle of the fuel dispensing system.
The Stage II regulations at issue occur at 35 Ill. Adm. Code
219.586.
They were adopted by the Board in August 19921 in
response to requirements of both the federal Clean Air Act and
the Illinois Environmental Protection Act.
In particular, the
Clean Air Act requires that areas classified as “moderate ozone
nonattainment areas” have Stage II regulations in place and
submitted for approval to the USEPA by November 15,
1992.
(42
USC 7511a(b)(3).)
The Metro-East area is classified by the USEPA
as a moderate ozone nonattainment area.
The Clean Air Act, however, does provide for a circumstance
under which Stage II regulations are not required in moderate
ozone nonattainment areas.
That circumstance is that the USEPA
promulgate regulations for on-board vapor recovery (OBVR)
systems
OBVR2.
State law also recognizes that Stage II regulations are
not to be applied in moderate nonattainment areas if OBVR
regulations are promulgated:
Stage
II
regulations shall apply only in areas of the
State that are classified as moderate, serious, severe
1
In the Matter of:
Stage II Gasoline Vapor Recovery Rules:
Amendments to 35 Ill. Adm. Code Parts 215. 218 and 219, R9l—30,
August 13,
1992.
In addition to the Metro-East Stage II
regulations, Stage II regulations for the Chicago ozone
nonattainment area were also adopted in R91—30.
The Chicago area
regulations are not at issue today.
The effective date of the
R91—30 regulations was August 24,
1992.
2
OBVR systems accomplish vapor recovery through devices
built into the vehicle rather than into the fuel pump.
—3—
or extreme nonattainiuent 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
the U.S. Environmental Protection Agency 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, 1992.
(415 ILCS 5/10,
emphasis added)
The Clean Air Act specifies that USEPA was to promulgate the
OBVR regulations by November 15,
1991.
However, TJSEPA did not
comply with this deadline, and had still not done so by November
15,
1992.
On that date, accordingly, the State was required to
implement Stage II because the alternative federal OBVR
regulations did not exist.
Now, however, the OBVR regulations have been promulgated,
and therefore the Clean Air Act requirement to employ Stage II
controls in the Metro—East area no longer applies.
Promulgation
of the OBVR regulations has occurred as a result of a suit
successfully brought against USEPA by the National Resources
Defense Council
(NRDC)
and others (NRDC v. Reilly, No. 92-1137,
D.C.
Cir. Jan.
22,
1993).
The court has found that USEPA did not
have the discretion to forego promulgation of the OBVR
regulations, and accordingly ordered USEPA to proceed with the
regulations.
The latest date for promulgation was set by consent
decree for January 22,
1994.
(See Exh.
1.)
Today’s action was
initiated and pursued under the proposition that USEPA would
timely meet this court-ordered deadline.
Actual promulgation
took place on January 24,
1994, the first working-day following
January 22, 1994.
COSTS
The Agency observes, and the Board concurs, that absent
repeal of the Stage II rules
the specter is raised of a very large capital
outlay in an economically depressed area of the State
to satisfy a Clean Air Act requirement for only a very
short period of time.
Specifically, the Agency
estimated that the capital outlay for installation of
Stage II at the 400 area station would be approximately
$14 million.
In January when the OBVR rules are
promulgated, there is no longer a federal requirement
for Stage II systems to be in place.
(Agency
Statement of Reasons at p.2)
The public hearing and subsequent public comments provided
additional particulars regarding the economic burden of retaining
the Stage II requirements.
—4—
The Agency observed that 377 facilities would be subject to
Stage II control requirements in the Metro-East area absent the
repeal, as follows
(Tr.
at 13):
Madison County
-
188
Monroe County
—
19
St. Clair County
-
170
The Agency also estimates that the capital cost of
implementing Stage II would exceed $8 million
(Tr. at 13):
Throughput
Number of
Capital Cost
Total Cost
(gal./month)
Facilities
Per Facility
By Size
10,000
—
24,999
62
$
9,760
$
605,120
25,000
—
49,999
97
27,480
1,695,560
50,000
—
99,999
133
24,120
3,207,960
100,000 or more
36,710
3.120,990~
Totals
377
$8,361,990~
The Agency estimates that installation costs for Stage II
vapor recovery at a “typical” service station are approximately
$40,000.00.
(Tr. at 17.)
Piasa also has addressed the issue of
installation costs,
including a breakdown of the individual items
and the ranges of costs associated with facilities of different
sizes
(Estimates prepared by Piasa Motor Fuels with help from
Superior Equipment)
(Exh. 3.):
COST ESTIMATE TO
INSTALL
STAGE II VAPOR RECOVERY
AT AN EXISTING LOCATION
4-6 Hose
MPD
6—6 Hose
MPD
24 Hoses
36 Hoses
Nozzles,
hoses, etc.
OPW Nozzle $155
Dayco Hose
105
Whip Hose
44
Breakaway
96
$400
$
9,600
$14,400
Labor to Retrofit Dispenses
4,000
6,000
~ These are the figures contained in the record.
The Board
believes that the figures are intended to be $3,120,350
(85 x
$36,710) and $8,628,990 (sum of last column),
respectively.
The
differences are
do minimus
in the context of these estimates.
—5—
Underground Piping
-
Materials
labor,
excavation, paving
20,000
25,000
Vacuum Assist Kits $3480/each
13,920
20,880
$47,520
$66,280
Piasa states that estimating costs for retrofitting Stage II
is difficult for a “typical” location, because every location and
situation is different.
(u.)
In addition to installation costs,
each facility would incur
an annual operations cost.
The Agency estimates that operations
costs would average about $7,000 per station per year.
(Tr. at
17.)
Piasa estimates that annual maintenance cost for hoses,
nozzles, and bellows is in the range of $150-$200 per hose plus
labor.
(Exh.
3.)
No facilities to date have registered Stage II systems with
the Agency or have applied for any associated construction and
operating permits.
Ten to 15 percent of the area retail stations
have probably installed the underground vapor recovery lines
during station upgrades in the past few years.
STATUTORY CONSIDERATIONS
The Board observed at first notice that the Act at Section
10 specifies that Stage II
“...
regulations
...
shall not apply
if
USEPA
...
promulgates
OBVR
standards
...
by November
15,
1992”
(see full quotation above).
In light of this language,
the Board at first notice asked interested persons to comment on
whether USEPA’s failure to promulgate OBVR regulations by
November 15,
1992 constitutes an impediment to the Board’s moving
forward with repeal of the Metro-East Stage II regulations.
At hearing, the Agency observea that in promulgating the
Stage II regulations in 1992 the State was acting in accord with
the requirements of the Clean Air Act.
The Agency further
observes that in now repealing Stage II in the Metro-East
moderate nonattainment area, the State would be continuing to act
in accord with the Clean Air Act, the Court’s order and the
consent decree in NRDC v. Reilly, and the clear legislative
intent of implementing Stage II only if
OBVR
regulations were not
in place.
(Tr. at 37.)
(See also PC #4 at ¶1.)
Other
participants at hearing agreed that the timeframes in the state
legislation were intended to be consistent with the federal
requirements.
(Tr. at 35,
36,
20.)
IPMA also stated that it
believes that the current language in the statute is not an
impediment to the current action to repeal the Stage II
requirements
(Tr. at 35.)
IPMA
further states that the
legislative history of SB 1241
(see full quotation of 415 ILCS
5/10,
above)
which changed the requirements for Stage II vapor
—6—
recovery was intended to bring the State into conformance with,
but to be no more stringent than, the requirements of the federal
CAA.
(PC #2 at 9.)
ENVIRONMENTAL CONSIDERATIONS
OBVR is intended to control essentially the same emissions
as is Stage II.
(Tr. at 11.)
Accordingly,
in the presence of
OBVR,
Stage II promises to produce little,
if any, enhancement of
environmental quality.
As the Agency observes:
These Stage II systems would provide redundant control
when onboard canisters are present, and would provide
little additional vapor recovery at great cost.
(Tr.
at 14.)
Although implementation of OBVR will require some phase-in
time, the State can and will,
in the moderate non-attainment area
of the Metro-East,
achieve its goals reducing VOM emissions by
controls far less costly than Stage II.
(Tr. at 31—4.)
CONCLUSION
Based on consideration of the statutory,
economic, and
environmental basis for Stage II in the Metro—East area, the
Board believes that it is necessary that the Stage II vapor
recovery rules be repealed.
The rules requiring Stage II vapor
recovery are not required by federal law, are contrary (in the
presence of OBVR rules) to the intent of State
law, are not
economically reasonable, and produce no significant environmental
improvement over that afforded by OBVR.
ORDER
The Board directs the Clerk of the Board to submit the text
ofithe~following~amendmentsto the Secretary of State for final
notice pursuant to Section 6 of the Illinois Administrative
Procedure Act.
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE B:
AIR POLLUTION
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER
C:
EMISSIONS STANDARDS
AND
LIMITATIONS
FOR STATIONARY SOURCES
PART 219
ORGANIC MATERIAL EMISSION STANDARDS
AND
LIMITATIONS
FOR THE METRO EAST AREA
SUBPART
Y:
GASOLINE DISTRIBUTION
Section
219.581
Bulk Gasoline Plants
—7—
219.582
Bulk Gasoline Terminals
219.583
Gasoline Dispensing Facilities
—
Storage Tank Filling
Operations
219.584
Gasoline Delivery Vessels
219.585
Gasoline Volatility Standards
219.586
Gasoline Dispensing Operations
-
Motor Vehicle Fueling
Operations
(Repealed)
AUTHORITY:
Implementing Section 10 and authorized by Section
28.5 of the Environmental Protection Act
(Ill. Rev. Stat.
1991,
ch.
111½,
par.
1010)
(P.A.
87—1213, effective September 26,
1992)
(415 ILCS 5/10 and 28.5).
SOURCE:
Adopted at R9l—8 at 15
Ill. Reg.
12491, effective August
16,
1991; amended in R91—24 at 16 Ill. Reg.
13597, effective
August 24,
1992; amended in R9l—30 at 16
Ill. Reg.
13883,
effective August 24,
1992; emergency amendment in R93—12 at Ill.
Reg. 8295, effective May 24,
1993, for a maximum of 150 days,
amended in R93-9 at 17 Ill.
Reg.
16918,
effective September 27,
1993 and October 21,
1993; amended in R93-28 at 18 Ill. Reg.
,
effective _________________________
SUBPART Y:
GASOLINE DISTRIBUTION
Section 219.586
Gasoline Dispensing Operations
—
Motor
Vehicle Fueling Operations
(Repealed)
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
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 219.112 of
this Part.
3)
Completion of installation means the successful
passing of one or more of the following tests
applicable to the installed vapor collection and
control system:
Dynamic Backpressure Test,
Pressure Decay/Leak Test, and Liquid Blockage
—8—
Test,
incorporated by reference at 219.112 of this
Part.
4)
Constructed means fabricated, erected or
installed; refers to any facility, emission source
or air pollution control equipment.
5)
CARB
means California Air Resources Board, P0.
Box 2815,
Sacramento, CA 95812.
6)
Employee means any person who performs work for an
employer.
7)
Operation means any building, structure,
installation, operation or combination thereof
located on contiguous properties and under common
ownership that provides for the dispensing of
motor vehicle fuel.
8)
Gasoline dispensing operation means any operation
where motor vehicle fuel is dispensed into motor
vehicle fuel tanks or portable containers from a
storage tank with a capacity of 2176 liters
(575
gallons) or more.
9)
Modification means any change, removal or
addition, other than an identical replacement, of
any component contained within the vapor
collection and control system.
10)
Motor vehicle means any self—propelled vehicle
powered by an internal combustion engine
including, but not limited to, automobiles and
trucks.
Specifically excluded from this
definition are watercraft and aircraft.
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.
13)
Reid vapor pressure for gasoline,
shall be
measured in accordance with either the method ASTM
D323 or a modification of ASTM D323 known as the
“dry method” as set forth in 40 CFR 80, Appendix
E, incorporated by references in 35 Ill.
Adin.
Code
219.112 of this Part.
—9—
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.
Compliance shall be
demonstrated in accordance with the schedule provided
in subsection
(d) below.
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)
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.
d)
In conjunction with the compliance provisions of
Section 219.105 of this Part,
operations subject to the
—10—
requirements of subsection
(C)
above shall demonstrate
compliance according to the following:
1)
Operations that commenced construction after
November
1,
1990, must comply by May
1,
1993.
BOARD
NOTE:
The Board adopted an emergency rule
in R93-12,
extending the compliance date in
Section 219.586(d) (1)
from May 1,
1993 to October
15,
1993.
This emergency rule became effective on
May 24,
1993 and will expire on October 21,
1993.)
2)
Operations that commenced construction before
November 1,
1990, and dispense an average monthly
volume of more than 100,000 gallons of motor fuel
per month must comply by November 1,
1993.
3)
Operations that commenced construction before
November 1,
1990, and dispense an average monthly
volume of less than 100,000 gallons of motor fuel
per month must comply by November 1,
1994.
4)
New operations constructed after the adoption of
this Section shall comply with the requirements of
subsection
(c) above upon startup of the
operation.
5)
Existing operations previously exempted from but
which become subject to the requirements of
subsection
(c) above after May 1,
1993 shall
comply with the requirements of subsection
(c)
above within six calendar months of the date from
which the operation becomes subject.
e)
Any
gasoline dispensing operation that becomes subject
to the provisions of subsection
(C)
above at any time
shall remain subject to the provisions of subsection
(c)
above at all times.
f)
Upon request by the Agency, the owner or operator of a
gasoline dispensing operation which claims to be exempt
from the requirements of this Section shall submit
records to the Agency within 30 calendar days from the
date of the request which demonstrate that the gasoline
dispensing operation is in fact exempt.
g)
Recordkeeping and reporting:
1)
Any gasoline dispensing operation subject to
subsection
(C)
above shall retain at the operation
copies of the registration information required at
subsection
(h)
below.
—11—
2)
Records and reports required pursuant to this
subsection shall be made available to the Agency
upon request.
Records and reports which shall be
maintained by the owner or operator of the
gasoline dispensing operation shall clearly
demonstrate:
A)
That a certified vapor collection and control
system has been installed and tested to
verify its performance according to its
specifications.
B)
That proper maintenance has been conducted in
accordance with the manufacturer’s
specifications and requirements.
C)
The time period and duration of all
malfunctions of the vapor collection and
control system.
D)
The motor vehicle fuel throughput of the
operation for each calendar month of the
previous year.
E)
That operators and employees are trained and
instructed in the proper operation and
maintenance of the vapor collection and
control system and informed as to the
potential penalties associated with the
violation of any provision of this Section.
h)
Any gasoline dispensing operation subject to subsection
(c)
above shall be exempt from the permit requirements
specified under 35 Ill.
Adin. Code 201.142, 201.143 and
201.144 for its vapor collection and control systems,
provided that:
1)
Upon the installation of a vapor collection and
control system, the owner or operator of the
gasoline dispensing operation submits to the
Agency a registration which provides at minimum
the operation name and address, signature of the
owner or operator, the
CARB
Executive Order Number
for the vapor collection and control system to be
utilized, the number of nozzles (excluding diesel
or kerosene) used for motor vehicle refueling,
the
monthly average volume of motor vehicle fuel
dispensed,
the location
(including contact
person’s name, address, and telephone number)
of
records and reports required by this Section, and
the date of completion of installation of the
vapor collection and control system.
—12—
2)
The registration is submitted to the Agency within
30 days of completion of such installation.
3)
A copy of the registration information is
maintained at the gasoline dispensing operation.
4)
Upon the modification of an existing vapor
collection and control system, the owner or
operator of the gasoline dispensing operation
submits to the Agency a registration that details
the changes to the information provided in the
previous registration of the vapor collection and
control system and which includes the signature of
the owner or operator.
The registration must be
submitted to the Agency within 30 days of
completion of such modification.
(Source:
Repealed at 18 Ill.
Reg.
__________,
effective
_______________________________________________________________
)
IT IS SO ORDERED.
Board Member J. Theodore Meyer concurred.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above o inion and order was
adopted on t4e
/7~Z-~
day of
___________________,
1994, by
a vote of
~,
0
.
Dorothy N. 4inn, Clerk
Illinois Pjl.ution
Control Board
