ILLINOIS

POLLUTION

CONTROL

BOARD

Tanuary

7,

1993

IN

THE MATTER

OF:

)

)

APPLICATION

OF

CALIFORNIA

)

R89-17(C)

MOTOR

VEHICLE

CONTROL

PROGRAM

)

(Rulemaking)

IN

ILLINOIS

)

ProDosed Rule.

Dismissal Order.

OPINION AND

ORDER

OF THE BOARD

(by R.C. Flemal):

In the instant proceeding the Board has,

since

late 1989,

investigated whether it would be warranted for the State of

Illinois to adopt, as an alternative to fM.ralregulations, the

motor vehicle amissions control program

developed

by

the Stat.

of

California.

Motor vehicle emissions contain a number of pollutants.

Thus, their control• is a matter germane to both environmental

quality and human health.

The

issue befor. the

Board

is

how to

most practically achieve this control.

California, spurred by its severe air quality problems,

historically has needed stricter vehicle

emission

controls than

has the rest of the country.

In recognition thereof the Clean

Air Act

(CAA)

has provided for a dual ~øt of standar4~s,one for

California and one for the remaining 49

states.

The C~does

provide, however, that individual states may choose to adopt the

more stringent California standards

as

an alternative to the

federal standards.

(42

usc

SS7507

and 7543(b).)

Upon due deliberation, the Board determines that at this

time the federal regulations of the Clean Air Act.

Amendments

of

1990

(CAAA) constitute the vehicle emissions program most

appropriate for Illinois.

Accordingly,

the Board today takeS no

action on the California program and dismisses this proceeding.

BACKGROUND

This

docket

was

opened

on

October

18,

1989

for

the

purpose

of exploring motor vehicle emission control programs,

and in

particular the program of the State of California’.

An initial

The California agency responsible for the promulgation of

that state’s vehicle emissions program is the California Air

Resources Board.

It is generally known by the acronym “CARB”.

0138-0357

---

2

inquiry hearing was held on December 12,

1989.

Based upon the

record of that hearing and written public comment, the Board on

April 12,

1990 proposed for first notice2 and further

consideration that those portions of the California program known

as Tier I standards be adopted in Illinois.

During the first notice tenure of the Tier I proposal, the

United States Congress began serious consideration of the

adoption of California Tier I standards

as

nationwide

requirements

urder

the

CAAA.

This action was indeed

subsequently

taken and on November 15, 1990 President Bush signed the CUA

into

law

as

P.L

101-549.

In

pertinent pert the CAM provide

that

a

version

of

the California Tier I standards become the

federal standards, beginning with model year

1994’.

(42

USC

S7521.)

The

federal

adoption

of

the

Tier

I

standards

obviated

any

need for the

Board

to

independently

adopt

them.

Accordingly,

the

Board

proceeded

to

dismiss

those

portions

of

its

investigation

dealing with Tier

I matters’.

However,

during

the pendency

of

the

Tier

I

matters

befOre

Congress, the

issue

arose

as

to

whether

Illinois

ml4ht

adopt

portions

of

the

California

program that

go

beyond the Tier I

program.

To investigate this possibility,

the

Board created the

instant

subdocket,

R89—l7 (C).

It

is

this subdocket that the

Board

today

dismisses,

thereby

dismissing

the

last

of

its

considerations

under

R89—17.

SUBSTANCE AND

d

.I.J~1l1IiZ~li

HISTORY

OF

R89-17(C)

The Board in the various

stages

of

its investigation of. the

California motor vehicle program

has

sought

to

stimulate

discussion and investigation by tendering concrete regulatory

2

Publication occurred in the Illinois Reaister on May 11,

1990, at 14 Ill. Reg. 6977.

The material was presented in two

subdockets, R89-17(A) and R89—17(B).

~Principal features of the Tier I standards are the

establishment

of

emission

limitations

for

non—methane

hydrocarbons, the lowering ~

allowable emissions of nitrogen

oxides, and modification

of

emission standards for

carbon

monozjde and particul te matter.

je

c~

also provide for ~Tier

II” standards, which if adopted would provide for modified

controls for model year 2004 and beyond..

‘

In the Matter of: Application of California Motor Vehicle

Control Proaram in Illinois, R89—27(A & B), February 7, 1991,

118

PCB 327.

0138-0368

---

3

proposals for consideration.

This was the

case

with

the

Tier

I

proposals, as

well as with the trans—Tier I matters

considered in

R87—17(C).

In is initial versions, the Board offered a proposal that

would have made the standards established by California for

emission standards, diagnostic and malfunction systems, and

warranty requirements the standards also required in Illinois.

In addition, the proposal would have limited vehicle

sales

and

registration in Illinois to only those vehicles

that

complied

with these “California standards” in

.1feót at

the tim. of the

manufacture of the individual vehicle.

Public hearing on the initial version of

the

R89—17(C)

proposal

was

held

on

July

23,

1991’.

Based

on this

record

and

the record developed during public

comment,

the Board offered a

second

verajon’ of a trans—Tier

I regulatory proposal.

This

revised proposal focused on the California Low

~ission

Vehicle

(LEV)

Program.

The

proposed

rules

included

specific

emission

standards and other requirements,

as

opposed to simply requiring

the

sale

of

vehicles

that

conform

to

California

standards.

The

California

LEV

program

is

comparatively new, having been

first adopted in California in September 19~9O.

The centerpiece

of

the

program

is

the

designation

of

vehicles

according

to

their

emission

levels,

and

the

required

progressive

phase—in

of

the

lower

emission

vehicles~.

In

California

the

phase—in

is

to

begin

with model-year

1994

vehicles

and

.xtendthrough

2003;

any state

adopting the California LEV

program

is

required

by

the CM

to

make the adoption two years prior to the

beginning

model year.

~ In the Matter •of: A~~lication

of

California Motor Vehicle

Control

Proarain

in

Illinois,

R89-17(C),

October

11,

1990,

115

PCB

353.

Publication

occurred

in

the

Illinois

Recister

on

November

2, 1990, at 14 Ill.Reg.

17812.

‘At

several

stages

in

the

overall

R89-17

proceeding

the

pace at which these investigatory

hearings could be

attended to

was

governed by a limited hearing budget and the

priority

necessarily

attendant

upon

required

rulemakings

and

contested

case matters.

This circumstance determined the

timing

of

this.

first R87l7(C) hearing.

‘

In the Matter of: A~plicationof California Motor Vehicle

Control Proaram in Illinois, R89—17(C), November 21,~1991,

127

PCB 273.

First notice publication occurred in the Illinois

Register on December

13,

1991, at 15 Ill.Reg. 17863.

$

LEV

vehicles include the transitional low emission vehicle

(TLEV), the ultra-low emission vehicle (ULEV), and zero am3.ssxon

vehicle (ZEV).

0138-0369

---

4

On January 9,

1992, the Board denied a request that it order

the preparation of an economic impact study

(EcIS), but directed

the hearing officer to schedule further hearings on

the

LEV

proposal.

The Board subsequently noted, on February 6, 1992,

that a lack of hearing funds

forced

a

delay

of

further

proceedings

in this docket.

Those additional hearings were then

held in summer 1992.

The July 21

hearing was devoted to the

merits of the proposal, and the

August

26

bearing

was limited to

testimony on the economic issues raised by

the

p~oposal~.A

written public comment

period

followed

the

bearings.

DISCUSSION

Tha

instant

proceeding

has generated a

great

deal

of

public

interest.

Testimony

and

public

comment

has

been

provided

by

the

potentially regulated community, including

the

Illinois

Petroleun

Council, various oil companies, the Engine Manufacturers

Association,

the

Motor

Vehicle

Manufacturers

Association,

the

Association

of

International

Automobile

Manufacturers, various

automobile

and

truck

lanufacturing companies,

and

the Illinois

New

Car

and

Truck

Dealers

Association;

by

the public

interest

community,

including

the

American

Lung

Association,

the

Chicago

Lung Association, and the

Illinois

Chapter

o’~

the Sierra Club;

and by units of government, including

Depertasnt

of

Environmental

Conservation of the State of New York, the Attorney General

of

the State of Illinois,

the

city of

Chicago,

and

the Illinois

Environmental

Protection

Agency

(Agency).

Most

of

the

testimony,

evidence

end c~ants

with

the

exception

of

those

from

the public interest community and the

State

of

New

York,

urges

the Board not to adopt

any

additional

elements

of

the

California

program

at this time, or at the

minimum

to

first

resolve

some

issue

of

concern.

Among

issues

cited

are

uncertainties

associated

with

availability

of

required

technology,

effectiveness

in

reducing

harmful

emissions,

fuel

implications,

and

economic

costs.

There

are

also

unanswered

questions regarding the appropriateness of

California

air

standards to Illinois geography and

climate,

whether

up—dating

of

the California standards could be

accomplished

short

of

delegating rulemaking authority to California, and

whether,

‘On cepteinher 38,

1992,

the

flhinois Environmental

Protection Agency filed a motion to correct

the

tram..

ript

of

the

August 26, .1992

hearii..j.

The Agency contends that re~arkson

pag~299 and 300 attributed to Darwin 3’. Burkhart of the Agency

were not made by Mr. Burkhart,

and

should

probably

b~attributed

to Ronald Burke of the Chicago Lung Association.

The Agency

attached Mr. Burkhart’s affidavit in support of its motion.

The

motion to correct the August 26,

1992 transcript is granted.

0138-0370

---

5

absent other elements of

the

California

program,

the LEV

program

alone would be sufficient to meet

CMA

requirements,

Finally,

there are a variety of questions

raised regarding problems likely

to arise

if Illinois were the only state in

the

region .to

require

California standards, including questions regarding enforcement

of the standards and

impairment of competitiveness of Illinois

businesses.

The Board will not attempt to recite

the

specifics of all of

these

arguments here.

It

is

not in

fact

any

one

argument

that

persuades

the

Board

of

the

correctness

of

today’s

action,

but

rather

their

sum.

Neither

will

the

Board

attempt

to

summarize

the

perspective

and

observations

of

all

the.

participants in

the

quite

extensive

record

in

this

proceeding;

interested

persons

are

directed to the

record itself.

There are a special

few~however,

which bear

note.

Among these is the perspective

of

the

Illinois Environmental

Protection

Agency.

The

Agency

is

the

lead

Illinois

agency

responsible for analyzing

and

assessing

the

quality

of

the

State’s air environment,

and

for

developing

and proposing to

the

Board

those

regulatory

strategies

that.

are

necessary

to

restore,

maintain,

and

enhance

the

purity of the

air

of

this state

•

The

Agency

thus

has a

broad

perspective on the mix of

programs

and

regulations that

will most effectively

achieve

equality

air

environment.

The Agency has consistently opposed adoption of a.

California

stahdards program in. Illinois,

at this

time,

for a

range

of

reasons.

As

regards

the

ability

of

the

California

program

to help

Illinois

achieve volatile organic material

(VOM) emissions

reductions,

the

Agency concludes that ~when placed in

the

larger

context

of

the

emission

reductions

landated by the

Clean

Air Act,

the

Agency

believes

that

the

projected

benefit.

provide

marginal

progress,

toward

the

required

goals”

(Exh.

44

at

.3).

VOM

reductions

are

the

principal

raison

d’.tr.

for

the

California

standards.

As regards the economic feasibility of adopting the

California

program,

in

a report conducted in cooperation with the

Illinois Department of

Energy

and Natural Resources

(DENR) the

Agency concludes:

The Agency recommends that the Board not adopt the

California standards at

this time.

Since much of

the

technology necessary to implement the program is not

yet

in

production,

much

less

proven,

it

is

difficult

to

project

with

great accuracy either

the

costs

or

the

0138-0371

---

6

emission reduction benefits to the State.

However,

reasonable estimates of potential emission reductions

suggest

that the

environmental benefit will be slight

in comparison to

the economic

and

administrative burden

associated with

this

program.

As

technological

advances and program

development

proceed

in

California

and

in

the

Northeast

states,

the California 1EV Program

may become a more justifiable

component

of Illinois’

air

quality

strategy,

but

it

is

not

justified

at

present.

(?~.

~

~

Illinois, Exh. 45 at xiii.)

In

its

most

recent

comments

the

Agency

observes:.

The

Agency

reaffirms

its

recommendation

that

the

Board

not

adopt

the

California

Motor’

Vehicle

Control

Program

at

this

time.

Despite

attempts

to

fully

valuate

the

program,

many

uncertainties

remain.

.-

The

program

requires technological innovation,

that

are

not

yet

in

production, much less

time-tested.

Estimates vary

widely for emission

reductions,

cost

per ton

of

emission reduction, additional

cost

per vehicle, fuel

requirements and

costs, and

costs

of

implementation

‘and

administration.

Viewed

in this

context,

the benefits

attributable,to

the

adoption of

the

california

standards

are

marginal

when

compared

lith the benefits

to

be

obtained

from

the.

Federal

Tier

I

standards and

the

Federal

Tier

II standards, if the

Tier

II

standards

are

implemented in

model year

2004.

(PC #59 at 1-2.)

me

Agency also concludes:

The benefits to

the

State of Illinois

from

the

adoption

of

the

California

standards

are

margina3~given

the

facts

that

1)

the

program

would

have to

be

implemented

and

administered

state-wide

while

the

primary

benefits

are

restricted

to

the

ozone nonattainment

ireas.

and

2)

there

are

a

large

number

of

uncertainties

surrounding

many elements of the program.

Therefore,

the

Agency

concludes that the Board

should not adopt the

California Motor Vehicle Control Program at this time.

(PC

#59 at 15—16.)

Chicago is among

the

areas

c

t the

state with

the

most severe

air

quality

problems.

Therefore,

the

C4ty

of

Chicago has also

extensively

involved

itself

in assessiny control strategic.

As

regards ~e

California standards,

the City of Chicago observes:

The evidence

shows

that there are significant

uncertainties with respect to the California

Program’s

technical feasibility,

the cost of administering the

Program, and the level of emission reduction that is

0138-0372

---

7

expected to be achieved,

Furthermore, there are

serious concerns with the

legality of

the

rule,

as

proposed.

Accordingly

•..

the City supports the

conclusion of the Illinois Environmental Protection

Agency

(IEPA) that the adoption of

the rule

is

not

justified at this time.

(PC #57 at 1.)

Those groups that argue for the adoption now

of

the

California program believe that

the

remaining

uncertainties

of

the program do not rise to

the

level

of

fatal

flaws.

They

contend also that the various economic analyses, including that

jointly

conducted

by

the

Agency

and

DEHR

(Each.

45),

exaggerate

the costs of compliance.

As

regards

the

matter

of

where

we

proceed from here,

the

Board

finds

that

it

shares

the

final

perspective

of

the

Agency

(PC #59 at 16), which we repeat here with our additions

in

brackets:

The Agency’s recommendation and

the Board’s

decision

today) does not foreclose the State’. options, however,

because states may adopt the California standards at

any time so long as it is done at

least

two years

before the first affected model year.

As California

proceeds with the implementation of

its

program and

manufacturers develop their technologies and production

operations, currently unresolved

issues will be

addressed.

In addition, the Agency (and the Board

will have a better

opportunity

to assess the emission

reductions achievable from

the

programs

mandated

by.the

CAAA and to determine

the

extent

to

which

addition

reductions will be necessary.

While

the basic

emission

reduction potential of the Californiaprogram may not

change significantly, economic

and

program

administration implications certainly will become

less

speculative than they are now.

If Illinois later

decides that further emission reductions

are

necessary,

it can turn once again to the California

program

and

proceed to adoption with much greater certainty than is

now possible.

ORDER

The Board’s rulemaking proceeding R89-17(C) is hereby

dismissed.

IT

IS

SO ORDERED.

01.38-037.3

---

8

Board Member J. Theodore Meyer dissents.

I, Dorothy N. Gunn, Clerk of the Illinois Pollution

Control

Board, hereby certify that

the ,bqve opinion

and

order

was

adopted on the

?~

day of

1993, by a vote

0138-03713

Il.

Control

Board