ILLINOIS POLLUTION CONTROL

BOARD

February 27,

1992

IN THE MATTER OF:

)

R90—20

DIESEL VEHICLE EXHAUST

)

 (Rulemaking)

OPACITY LIMITS

)

•ADOPTED RULE.

 FINAL NOTICE.

OPINION

AND

ORDER OF THE BOARD

 (by J. Anderson)’:

On July 19,

 1990,

 the Board adopted an Order establishing

inquiry hearings regarding the possible regulation of diesel

smoke.

 These hearings were held on September 21 and September

28,

 1990.

 As a result of those hearings the Board proposed a

rule for First Notice on July 25,

 1991.

 The proposed rule was

published on August 30,

 1991 at 15

 Ill. Reg.

 12109.

 Hearings

were held on the First Notice Proposal on September 19 and

October

3,

 1991.

On November 27,

 1991,

 the Board voted, to send the proposal,

significantly revised as

 a result of public comments received, to

Second Notice.

 Due to the significant changes in the proposal to

be submitted for Second Notice, the Board withheld submission of

the Second Notice to the Joint Committee on Administrative Rules

(JCAR)

 to allow for public comments on the revised proposal.

On

December 19,

 1992,

 as a result of comments received, the Board

 again revised the proposal

 in a Supplemental Opinion and Order

and directed that the revised proposal proceed to JCAR.

The rule being sent to Final Notice today is substantively

the same proposal submitted for Second Notice.

 Minor

nonsubstantive changes were made in response to comments from

JCAR.

The Board

 wishes

to

 express

 its appreciation

for

the

contribution of Mr. Jacob Dumelle to this rulemaking.

 Mr. Dumelle

initiated this proceeding prior to his retirement from the Board at

the end of 1991.

 Mr. Dumelle had directed this proposal through

the Second Notice Supplemental Opinion and Order.

The Board also acknowledges the contribution of Mr. Timothy

Dwyer, who as Mr. Dumelle’s attorney assistant,

 acted

 as hearing

officer and assisted Mr. Dumelle in the preparation of the First

and Second Notice Opinions and Orders.

 The Board also recognizes

the

 contribution

of

Ms.

 Marie

 Tipsord

as

the

 Board

 attorney

assisting Board Member Anderson in finalizing this rulemaking.

In

addition, the Board expresses its appreciation to Dr. Harish Rao

and

Ms.

 LouAnn Burnett

 of the Board’s

 Scientific and Technical

Section.

130—367

2

This rulemaking generated testimony from many different

 groups.

 In the September 19th hearing, the Board received

testimony from Representative Clem Balarioff and Senator Judy Barr

Topinka.

 In addition testimony was given by the Executive

Director of the Engine Manufacturing Association

 (“EMA”)

and the

Mr. John Sinde,

 President of the Village of Westchester.

 Also

presenting testimony were representatives of the Illinois

Trucking Association, the American Trucking Association, Navistar

Corporation,

 the Chicago Lung Association, the Bosch Corporation,

and concerned citizens.

In the October 3rd hearing, testimony was given by a

representative of the Midwest Truckers Association, the Illinois

Petroleum Marketers Association, the Illinois Truck Stop

Association, the Illinois Movers Association, the Associated

Contractors of Illinois, the Feed and Grain Association of

Illinois and the Illinois Lumber Dealers Association.

In

addition, representatives from Caterpillar Corporation, the

Illinois Environmental Protection Agency (“Agency”), Bosch

Corporation, the Illinois State Police, and the Diesel Injection

Service testified.

In addition to the testimony,

 130 public comments were

received.

 Among the comments received was a comment by State

Representative Barbara Flynn Currie.

 In addition the following

entities presented comments:

 the Village of LaGrange, the Skokie

Board of Health and the Skokie Department of Public Health, the

 DuPage Mayors and Managers Conference,

 the City of Chicago, the

Regional Transportation Authority, the Center for Neighborhood

Technology, the Illinois Farm Bureau, the Department of Commerce

and Community Affairs, the Department of Energy and Natural

Resources,

 the United States Environmental Protection Agency, the

Illinois Environmental Regulatory Group and the Chicago Lung

Association.

 Further,

 over 100 letters were received from

individual citizens.

 Although too numerous to mention

individually,

 the Board thanks all those who wrote as well as

those who participated at hearing.

During the period between the Board’s voting a Second Notice

Proposal and proceeding with that proposal the Board received 5

comments.

 The commenters included Detroit Diesel Corporation

(DDC), Engine Manufacturers Association

 (EMA),

 Illinois

Environmental Protection Agency

 (Agency),. Regional Transportation

Authority,

 (RTA),

 and the Chicago Lung Association and the

Illinois Chapter of the Sierra Club (CLA/ICSC).

DISCUSSION

A.

 Today’s Rui~

The Board today sends to Final Notice a rule which is

significantly different from the rule proposed at First Notice;

130—368

3

however, the changes from the existing regulation are not

extensive.

The

 Board has adopted an opacity standard based on a

 snap idle procedure and described the methodology to be used in

performing ‘the procedure.

 The ‘Board has also eliminated the use

of visual opacity as an enforcement tool as the record clearly

indicates that the Board’s visual opacity standard has been and

is very difficult to apply and enforce against a mobile source.

‘The remaining changes from the existing regulation relate to the

use of the snap idle procedure.

 The following discussion

delineat~sthe changes between the First Notice proposal and

today’s rule and the reasoning behind the changes.

The Board opened this docket in 1990 to assess the need for

regulations concerning emissions from mobile diesel sources.

The

inquiry hearings in this proceeding,

 which led to First Notice,

were primarily concerned with ascertaining the health effects of

diesel smoke and obtaining information in regards to a viable

opacity standard.

 Although conflicting testimony arose regarding.

the seriousness of the potential health hazards, there is no

disagreement that diesel smoke is a health problem.

 (See In the

Matter of Diesel Vehicle Exhaust Opacity Limits, July 25,

 1991,

p. 1~2and R.1 at 55-56).

 When the Board proceeded to First

Notice the proposal was adapted from the California rule.

The

Board incorporated substantial portions of the California rule

and presented the proposal for public comment.

 As a result of

the extensive comments received the Board made numerous changes

 to the proposal, which are reflected in today’s rule.

B.

 Testing Procedures

The Board’s First Notice Proposal set forth two testing

procedures for determining diesel smoke opacity: the snap idle

test procedure for measurement of opacity and the visual opacity

reading.

 The snap idle test procedure uses a sinokemeter to

measure opacity while the vehicle is in neutral with the engine

running.

 This test would require a vehicle stop to perform the

test.

 The snap idle test is clearly more precise due to the fact

that the test can be repeated several times and the opacity is

measured by

 a machine.

 Visual opacity testing takes place

 by a

certified smoke reader examining the smoke being emitted against

the sky to determine opacity.

 Visual opacity was included ~inthe

proposal to allow for enforcement outside the area of inspection

sites.

 In addition,

 the proposal allowed for the truck to be

tested by the snap idle procedure within five days of a citation

being issued by visual opacity if requested by the violator.

However,

 at hearing,

 several concerns were raised by the

regulated community concerning visual opacity insofar as it was

too subjective to be relied upon as the basis for issuing a

130—369

4

citation to a moving truck.

 (R.1 at

512).

 One concern expressed

 was regarding the ability to visually determine opacity from

diesel vehicles which emit smoke from a horizontal pipe.

Specifically, Mr. Alan Schaeffer,

 with the American Trucking

Association, stated that it “would be very difficult to get an

accurate reading at that

 (sic)

 ground level”.

 (R.1 at 121).

In addition, concern that visually determining opacity in a

moving vehicle would be difficult was raised.

 Mr. Berkely Moore,

testifying on behalf of the Agency in support of visual opacity

testing ~id agree that. the more frequently a test is performed

the more accurate the readings.

 Mr. Moore stated that the USEPA

Method 9, adopted by the USEPA for evaluating stationary sources,

requires multiple readings of opacity, “specifically 24 readings

at 15 second intervals over a six minute time period.

 And that

six minute time period seems incompatible with a moving source.”

(R.

 2 at 38).

The trucking community also noted that using a snap idle

test after the issuance of a citation on the basis of

 a visual

opacity reading would.verify the visual reading.

 However,

it

also attacked the practicality of such a measure.

 (R.1 at 163-

164).

 Specifically, the Illinois Trucking Association pointed

out that a vehicle engaged in interstate commerce would not

easily be able to return in order to be tested.

 Mr. Schaeffer

stated that the provision would not be very workable when the

 industry is a “just-in-time delivery” business.

 (R.l at 125).

The Agency and CLA/ICSC both submitted comments on the

revised proposal urging the retention of the visual opacity

standard as an enforcement mechanism’.

 The Agency correctly

states that it was the only participant in this proceeding that

presented a qualified witness to discuss visual opacity,

including both the certification of opacity readers in Illinois

and the historical accuracy of the method.

 (P.C.

 #133,

p.

1).

While the Board carefully considered this testimony,

 the Board is

convinced that, while visual opacity might be useful as a

screening mechanism,

 the underlying methodology for determining

visual opacity is not appropriate for use as an enforcement

mechanism for mobile sources.

For example,

 a great deal of the Agency’s testimony centered

on the “Method 9” procedure.

 This test method uses only

certified smoke readers and was initially adopted for evaluating

stationary sources.

 (R.2 at 40.)

 In fact,

 Mr. Berkely Moore,

testifying for the Agency, stated that:

2

 The transcripts of the hearing are cited

 at “R.l” for the

September

19,

1991

 hearing

and

 “R.2”

for

the

 October

3,

1991

hearing.

130—370

5

Use of the Method

 9 procedure in its entirety with no

changes, however, would likely be precluded for the

opacity limitations which are being considered in this

proceeding because Method

 9 itself requires multiple

readings,

 I should say specifically 24 readings at 15

second intervals over

 a six minute time period.

And

that six minute time period seems incompatible with the

nature of a moving source.

In fact,

 it may be practical to limit the opacity

reaaings to one only.

 In which case,

 no citation

should be given unless the reading is somewhat above

the standard.

I might say in this connection that of the average

positive error,

 and by positive error,

 I mean an

overestimate of opacity as recorded by a visual

observation compared to that which an instrument would

show, never exceeds

-—

 virtually never exceeds seven

and a half percent for 25 readings.

 But if it is

limited to one reading,

 it could be as high as

15

percent, but usually is less than 15 percent.

(R.2 at 38.)

Upon further questioning, Mr. Moore testified that the

existing diesel opacity regulation was not enforced by the Agency

because the Agency was not structured to do so and, further, that

he knows

 of no other entity enforcing the standard.

 (R.2 at 47.)

Moreover, the record indicated that the “Method 9” procedure

would be difficult to apply to a rapidly moving vehicle over the

course of a ten—second timespan.

 (R.2 at 43—45.)

 Finally, the

availability of modern smokemeters its ease of use and its

ability to provide fast,

 accurate and reproducible opacity

readings convince us that the snap idle test using these meters

is superior to the visual opacity test.

 (In the Matter of Diesel

Vehicle Exhaust Opacity Limits, November 27,

 1991,

p.

 2-5.)

Visual readings when conducted by trained and certified

smoke readers are commonly used in air enforcement for stationery

sources and can be reliable.

 (R.2 at 29—50.)

 Visual opacity

readings for mobile sources might be accomplished as the Agency

asserts.

 However,

 as Mr. Moore indicated in responding to

question by Toby Frevert, using visual readings on a mobile

source could be difficult.

Toby Frevert, from the Agency:

 is it

possible for a trained smoke reader to make

observations of the diesel vehicle moving

down the highway if he is traveling parallel

fashion in an alternate vehicle?

Mr. Moore:

 I would think so.

130—371

6

Mr. Frevert:

 That would give some ability to

deal with the time increment considerations?

 Mr. Moore:

 yes.

(R.

 2 at 45).

We also note, as discussed later in the Opinion, the testing

method for the visual opacity standard has uncertain correlation,

at best, with federal certification.

 The Board also notes that

six states do have a 20 per cent visual opacity standard;

however,

 one of the states has gone to fleet self—certification

using an objective smoke testing.

 (R.l at 157).

 Also of note is

that California uses visual opacity for screening only,

 not for

issuance of a citation.

 (R.1 at 153).

The Board also notes that any entity which wishes to enforce

this rule may use a visual test to screen possible violators.

However, the Board must adopt standards which can be enforced.

The Board cannot adopt a voluntary test used only as an indicator

of a possible violation.

 We have concluded that using the visual

opacity testing methodology for mobile sources

 is either too

inexact or too difficult for enforcement, and that mandating it

for any other purpose, such as a screening device,

is

unnecessary.

The Board has determined that the record supports the use of

smokemeters and opacimeters to determine violation of the

standards.

 However, due to the noted difficulties of use of

visual opacity standards on moving sources, the Board has deleted

that provision.

C.

 Opacity Standard

Another main concern expressed by the trucking industry

 involved the First Notice standard proposed by the Board that

vehicle engines which had a federal peak opacity certification

value over 35

 would have to meet

 a snap idle opacity value of

55.

 All other engines would have to meet a snap idle opacity of

40.

 This meant,

 in effect, that nearly all vehicle engines

would be required to meet the more stringent 40

 snap idle

opacity standard.

Representatives of the EMA,

 Caterpillar, Navistar and the

Bosch Corporation all testified that all engines are tested and

certified according to federal standards using a dynamometer

test.

 A dynamometer test requires the engine

 (sans vehicle)

to

be mounted on a dynamometer stand

 (a dynamoxneter is an apparatus

for measuring the force or power of a mechanical device, in this

case,

 the diesel engine).

 The dynamometer basically drives the

engine, controlling speed and temperature.

 A state—of—art smoke

meter is used, to measure the emissions from the engine.

The

engine is put through various modes

 (lug, acceleration,

 etc.)

so

that a complete charting of its performance is made.

 The federal

certification is based upon this “laboratory” performance.

The

130—372

7

industry maintains that under the First Notice proposal two

different procedures would be used to measure the same event and,

 ‘because one test is for certification under the federal standard

and the other is for enforcement under the proposal, the engine

could fail the enforcement test while passing the certification

test.

 Thus,

 the industry argued that the snap idle test for all

engines certified prior to 1991 should be 55

 and all thOse

certified in 1991 or subsequent years should be tested against a

‘40

 standard in order to insure that the Board’s standard

correlates with federal certification requirements.

 (See

Generall~j, R.l at 53—54,

 123,

 207,

 295—96; R.2 at 16,

 24).

In support of that position,

 Mr. Glenn Keller of the EMA

testified at hearing that based on limited evidence seen through

internal data run by member companies, EMA has found that 55 per

cent is the appropriate correlation to the federal standard.

 (R.l

at 76—78)

Mr. Charles Hudson of Navistar also testified at hearing.

Mr. Hudson presented several charts and graphs illustrating the

differences between federal certification testing results and

smoke opacity results.

 (See Exhibit

 Mr. Hudson also stated

that “because of these differences in tests,

 a significant

difference between the peak opacity values required during in—use

snap acceleration tests may exist.”

 (R.1 at 206).

 Caterpillar,

the Illinois Trucking Association and the American Trucking

Association also testified in support of adopting this standard.

In the interest of avoiding public concern regarding the

stringency of the snap idle test,

 the Board first wishes to

emphasize, that the 55/40

 opacity standard will certainly

address the objectionable opacity levels of diesel smoke observed

by citizens on the street.

 In effect this test represents a more

stringent standard than the Board’s present 30

 visual opacity

standard.

 The snap idle testing procedure,

 for which the 55/40

 standard is established attempts to measure the smoke from an

engine in peak mode, which normally occurs when the vehicle is

accelerated from a full stop.

 (R.1 at 99).

 For a diesel engine

to perform its intended function during acceleration,

 a certain

amount of over—fueling is required to cause the engine speed to

increase.

 (R.l at 113).

 Thus,

 emissions are at the highest in

this mode.

 Properly maintained diesel vehicles operated in other

modes should emit opacity levels of 20

 visual opacity or less,

levels barely visible to an onlooker.

 (R.1 at 99).

 A vehicle,

emitting smoke at greater than 20

 opacity in continuous

operation will almost certainly fail the snap idle test.

Mr. Robert Jasmon also testified on behalf of several

organizations

 (see R.2 at 2—3) concerning the proposal.

Mr.

Jasmon stated that even if the Board were to go with the snap

idle test and drop the visual opacity measure, he would have

 problems with the rule.

 (R.2 at 16).

 First,’ Mr. Jasmon was of

130—373

8

the opinion that any regulation with regard to diesel opacity

should be federally promulgated.

 Second,

 he was concerned about

the safety aspect of stopping and testing trucks.

With respect to a federal rule, the Board is not aware of

any opacity standard for vehicles as they operate on. the roads of

the nation.

 The federal government does issue peak smoke opacity

certifications that are only applicable to newly manufactured.

engines.

 An engine family will pass or fail that certification

based upon laboratory dynamometer testing.

 In terms of safety,

the avaiLability of portable smokemeters will greatly simplify

the process enumerated in the First Notice Proposal to nothing

more than a routine traffic stop.

 Since trucks are stopped as a

matter of course for other reasons, the Board does not anticipate

that this will be a problem.

 Finally, since any initial

enforcement will necessarily take place on a local scale,

the

Board is confident that those local authorities will be in a

better position to adequately assess the safety issues.

The record clearly supports the adoption of a 55/40

 standard.

 Therefore,

 the Board adopts the 55/40

 standard in

the rule.

D.

 Enforcement Structure

The Board’s First Notice proposal included placing

inspection and enforcement authority with the Illinois State

Police.

 As noted in the First Notice Opinion (In the Matter of

Diesel Vehicle Exhaust Opacity Limits, July 25,

 1991,

p.

 7), this

measure was included because other programs of other states have

done so.

 In addition, as previously stated, the Board was

proposing the California regulation so as to assess whether its

provisions

 in whole or in part,

 would be adaptable for Illinois.

This provision was a part of the California regulation.

 Also,

the inquiry hearings had focused on the health effects of diesel

smoke, not enforcement of a standard.

 Thus,

 the Board was not

sure how the State Police and Agency in particular viewed this

provision.

In the Board’s hearings following the First Notice proposal,

both the State Police and the Agency participated.

 Stating that

regulations in the area appear both appropriate and necessary,

the State Police commended the Board for its efforts tO address

the health and environmental issues relating to diesel engine

exhaust.

 (R.2 at 72).

 Jim Redlich, testifying on behalf of the

State Police, supported the concept that opacity standards must

be established and enforced.

 (R.2 at 72).

 However, Mr. Redlich

stated that the listing of the State Police as an enforcement

entity is “counterproductive”.

 (R.2 at 72).

 Mr. Redlich

maintained that the State Police lacked the resources to carry

out inspections and that using existing structures such as weigh

stations would not work.

 (R.2 at 73—74).

 In addition, the

130—374

9

citation procedures included in the First Notice proposal are

significantly different from the type of citations generally

issued by the State Police,

 in that the proposal used a civil

penalty basis whereas current State Police citations are issued

on a criminal basis.

 The State Police therefore recommended that

the “it be deleted or the

 proposal) b~rewritten with the

participation of the law enforcement community.”

 (R.2 at 78).

Therefore,

 the Board deleted the provision when revising the

proposal at Second Notice.

The’ Board notes that today’s rule dan be enforced in several

different ways.

 First,

 any entity may file an enforcement action

under the Act before the Board.

 For example,

 local governments

doing truck stop inspections could make violation determinations

and file actions before this Board.

 Second, any agency of state

government using the technical standards articulated in this rule

may take whatever action is or may be authorized under their own

controlling statutes.

 Third, the new regulatory language may

provide a technical basis’ for local governments to adopt

 standards that might be enforced through the municipal legal

system.

 The Board is not making pronouncements on the scope of

local government or municipal powers.

 And it is up to the local

government to do by ordinance what its ordinance dictates.

However,

 if a local government chooses to adopt a standard using

today’s Board action as a technical justification,

 it should

adopt the standard articulated by the Board today.

The Board did receive a comment from CLA/ICSC objecting to

the Board’s reliance on local government,

 other state agencies or

the legislature to secure enforcement of the standard.

In

addition, the CLA/ICSC maintained that the Board’s Second Notice

proposal lacked guidance as to what types of enforcement

mechanisms would be most effective.

 In this regard, CLA/ICSC

asserted that the Second Notice proposal should outline the

Board’s expectations of the Agency or any other state agencies

that need to be involved.

 The comment concluded by stating that

the proposal will discourage local government,

 state agencies or

the state legislature from taking the necessary action to enforce

the revised opacity standard.

The CLA/ICSC comment states that “the Board lacks the

authority to require an inspection and enforcement program

 (P.C.

135 at

1).

 In this context we agree.

 For enforcement,

 here,

we

burn to the powers in the enabling statues of the various

 agencies.

The Board notes that at hearing several entities expressed

~n interest

 in enforcing the Board standard.

 Mr. John Sinde,

?resident of Westchester and the immediate past president of the

“est Central Municipal Conference

 (WCMC), testified that he was

5ure that the communities would be willing to take the time and

3pend whatever monies were necessary to train personnel and to

130—375

10

purchase equipment to enforce the rule.

 (R.1 at 34-35).

In

addition, Senator Topinka indicated that she believes that “once

this type of a program gained impetus,

 I am sure that you would

see the municipal)

 conferences working at large and they would

be a tremendous network to.put something like this together for

you.”

 (R.1 at 36).

Although the enforcement mechanisms discussed here are

theoretically possible, the Board notes that the enforcement of

diesel opacity poses some unique problems.

 The enforcement of

today’s tule requires that vehicles be detained in order to be

tested.

 Consequently, the Board does not anticipate citizen

enforcement actions such as those the Board sees with respect to

some of the Board’s other standards

 (e.g.

 noise).

 Even assuming

that there

 is no question of statutory authority the Agency must

decide whether alone or in conjunction with other entities it is

 equipped to undertake a program so different in scope relative to

its existing operation.

 The record clearly indicates that

enforcement of today’s regulation would be most effective if

those entities already engaged in traffic stops of motor vehicles

were involved.

 In this regard,

 it is possible that the Board’s

promulgation of an updated standard may provide a basis for

action by the General Assembly as it pertains to enforcement

mechanisms.

E. Penalty Provisions

At First Notice the Board proposed a civil penalty schedule.

Many comments were received on this issue.

 (e.g.,

 Comment 127 by

the Illinois Environmental Regulatory Group).

 The commenters

questioned the Board’s authority to impose by rule a penalty for

violation of rules.

 The proposal was adapted from the California

rules,

 and this provision is a part of the California rules which

the Board sought comment on.

The Board finds merit in the comments regarding this

provision and will accordingly delete the civil penalty schedule.

~bsent statutory amendments the Board will rely on its existing

powers to assess civil penalties under Title VIII of the Act.

F.

 Adjusted Standard

The Detroit Diesel Corporation

 (DDC)

 submitted a comment

after the Board revised the proposal at Second Notice.

 DDC,.

while supporting the rule, alleges that an anomaly has been

liscovered during the California Roadside Smoke program that

 nakes it likely that the entire family of DDC’s 1987—1990 series

50 engines will fail the 55

 opacity snap acceleration test.

tndeed, DDC claims that the engine family will fail any opacity

3tandard less’ than about 85.

 DDC asserts, however, that the

angines which emitted 89

 over the snap acceleration test emitted

Dnly 13-18

 over the EPA federal smoke test,

 and that the

130—376

11

engines have very low smoke levels under most other operating

conditions.

DDC states that, while the engines can be recalibrated, it

requires connecting each engine to a computer for reprogramming,

a “logistically difficult” task for all existing engines.

 (P.C.

#131,

p.

1.)

 DDC notes that,

 for 1991,

 this anomaly has been

corrected with revisions to the engine control software.

DDC proposes that the Board add the language that the

Cal~forn1aAir Resources Board adopted to address this problem.

The language DDC proposed is as follows:

Exemptions from the opacity standards in Paragraph

(a) (2) may be granted for engine families that cannot

meet the standard because of inherent engine design

characteristics or nonàdjustable fuel metering

parameters.

 Exemptions may be based on the voluntary

submission of technical information by engine or

vehicle manufacturers.

 Such technical information may

 include certification test and/or snap idle test

opacity data.

 Alternative opacity standards would

thereupon be established for the exempted engine

families.

 (P.C.

 #131,

p.

2.)

The Board first notes that DDC’s submittal is significantly

at odds with the prior testimony in this proceeding of the EMA,

which DDC states in its comment that it helped prepare and.fully

supports.

 However, DDC’s comments also appear

 to, be asserting

that it has only recently discovered its problem, and the Board’s

following discussion and proposed amendment are based on this

assumption.

The Board declines to accept the amendment proposed by DDC.

The language is much too broad,

 and DDC fails to justify the

sweeping language.

 The amendment,

 as drafted,

 is not tailored to

DDC’s

 660 series problem.

 It does not even provide that the

problem be recently discovered.

 Rather,

 it sets up

 a mechanism

of standard by exception, with rather loose justifications,

of

general applicability to all pre—1991 engine families.

 In other

words,

 exemptions from the 55

 standard may be granted, and

alternative standards established,

 for “engine families that

cannot meet the standard because of inherent engine design

characteristics or nonadjustable fuel metering parameters”.

The

record of this proceeding already fully supports the Board’s

 conclusion that the standard was overwhelmingly supported by, and

justified for, the engine families generally, and the Board

declines to,

 in essence,

 open up this standard at the back end of

this rulemaking.

 The Board notes that under the Illinois system

there are relief mechanisms available for asserting special

circumstanOes should they occur after these regulations are

adopted.

130—377

12

However, DDC arguably has timely placed its own newly

discovered problem in the record of this proceeding for Board

consideration.

 The problem is that DDC has not provided enough

information at this juncture for the Board to even consider its

request for relief, much less act upon it.

On balance, the Board believes that the best way to solve

this problem is to add to the regulation at Section 240.141

 a new

subsection

 (d).

 This subsection utilizes the adjusted standard

procedure found at Section 28.1(b)

 of the Act and establishes

levels o~justification in the rule of general applicability.

Section 28.1(b)

 states:

In adopting a rule of general applicability, the Board

may specify the level of justification required of a

petitioner for an adjusted standard consistent with

this Section.

The Board notes that the new subsection

 (d) requires

information addressing the uniqueness of the problem,

 submittal

of all test data regarding USEPA certification and the snap idle

test,

 economic and technical data regarding logistical problem

such as those noted by DDC above, the alternative opacity

standard proposed, and the environmental effects.

Finally,

 the Board strongly advises DDC to file for an

adjusted standard promptly; Section 28.1(e)

 of the Act provides

for

 a stay of the applicability of the regulation only if “any

person files a petition for an individual adjusted

standard.

.within 20 days after the effective date of the

regulation.”

The comment submitted by ENA seeks to implement the same

language as proposed by DDC.

 (P.C.

 #132,

p.

 1-2.)

 For the

aforementioned reasons, the Board declines to adopt this

provision.

 While

EMA

does not refer to DDC specifically,

 it sets

forth an identical example.

 Absent more specification the Board

declines to further address the issue in this proceeding.

G. Other Concerns

Mr. Fred Serpe of the Illinois Trucking Association raised

the issue of the effective date of the rules.

 Mr. Serpe was

concerned that some lead time be established.

 (R.1 at 108-109.)

Citing storm water run—off regulations now applicable to most

trucking firms,

Mr.

 Serpe was troubled by. the possibility that

the industry may not know how the proposed rule would apply to

 them.

 (R.1 at 140—142.)

Mr.

 Serpe stated that many companies

are not even aware they fall under the storm water regulations

and the same could be true for the diesel rule without lead—time

in conjunction with an outreach program.

 The Board finds this

argument to be unpersuasive.

 First,

 any vehicle emission which

130—378

13

comports with federal requirements should not exceed 55

 opacity

in a snap idle test.

 This is universally accepted by the

‘regulated community.

 (R.l at 73.)

 Second, the regulation

articulated today conforms to the existing Illinois regulatory

framework, with numerical limitations that substantially comport

with federal requirements; thus the need for an extended

effective date

 is minimized or eliminated.

 In sum, the industry

should have ample time to conform to what is essentially an

already existing standard.

 Further, the EMA indicated that

adoption of the 55

 opacity standard for pre—1991 vehicles “will

minimize’ inappropriate citation of well maintained vehicle”,

(R.

1 at 53).

In terms of repairs,

 Mr. Adams of Bosch and Mr.

 Schey of

Diesel Injection Service advocated that repair centers be

designated.

 They found troublesome the possibility that

unqualified technicians might benefit from working on vehicles

 which violated the standard.

 They urged the Board to designate

qualified stations that meet manufacturers’ requirements for

training.

 This the Board declines to do.

 While the Board

 ..is

sympathetic to these concerns, the Board will not endorse certain,

mechanics over others.

 Apart from the legality of such a rule,

the Board’s main emphasis remains that trucks in violation come

into compliance.

 Accordingly, this request will not be

incorporated into the rule.

Finally, the EMA, the RTA, the Illinois Steel Group and the

John Deere Company all commented as to whether the Board’s intent

was to regulate off-road vehicles.

 Citing Section 240.140,

 these

cominenters pointed out that “on—road” should be inserted to avoid

the potential regulation of farm implements and other machinery

which was not intended to be regulated.

 The Board agrees and

adds the requested language so as to clarify the provision.

Finally, the RTA commented that Section 240.241(c)

 should be

modified to indicate that testing should occur at the normal

operating temperature of the engine.

 This section is revised in

order to make this clear.

CONCLUSION

The Board sends this rule to Final Notice

 in a substantially

different from than when first proposed.

 The Board has

eliminated the civil penalties schedule as well as the visual

opacity standard.

 In addition, the Board adopted a 55/40

 standard for diesel engines.

 The health effects of diesel smoke

have been thoroughly discussed in this proceeding.

The

enforcement of the standard adopted today will hopefully

ameliorate those effects.

 The record clearly supports the

Board’s actions today.

130—3 79

14

ORDER

The Board hereby adopts for Final Notice the following

amendments to 35 Ill. Adm. Code 215.

 The Clerk of the Board is

hereby directed to cause the publication of these amendments in

the Illinois Register and to cause the filing of these amendments

with the Administrative Code Unit of the Secretary of State’s

Office:

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE B:

 AIR POLLUTION

CHAPTER

I:

 POLLUTION CONTROL BOARD

SUBCHAPTER k:

 EMISSION STANDARDS

AND

LIMITATIONS

FOR MOBILE SOURCES

PART 240

MOBILE SOURCES

SUBPART A:

 DEFINITIONS AND GENERAL PROVISIONS

Section

240.101

 Preamble

240.102

 Definitions

240.103

 Prohibitions

240.104

 Inspection

240.105

 Penalties

240.106

 Determination of Violation

240.107

 Incorporations by Reference

SUBPART B:

 EMISSIONS

Section

240.121

 Smoke Emissions

 240.122

 Diesel Engine Emission Standards for Locomotives

240.123

 Liquid Petroleum Gas Fuel Systems

240.124

 Vehicle Exhaust Emission Standards

240.125

 Compliance Determination

SUBPART C:

 HEAVY-DUTY DIESEL SMOKE.OPACITY STANDARDS

AND

TEST PROCEDURES

Section

240.140

 Applicability

240.141

 Heavy Duty Diesel Vehicle Smoke Opacity Standards and

Test Procedures

240.Appendix A

 Rule into Section Table

240.Appendix B

 Section into Rule Table

130—380

15

AUTHORITY:

 Implementing Sections

9,

 10 and 13 and authorized by

Section 27 of the Environmental Protection Act

 (Ill. Rev.

 Stat.

1989,

ch.

 111—1/2, pars.

 1009,

 1010,

 1013 and 1027).

SOURCE:

 Adopted as Chapter

2:

 Air Pollution,

 Part Vii:

 Mobile

Sources,

 filed and effective April

 14,. 1972;

 codified at

 7 Ill.

Reg.

 13628;

 amended in R85—25, at 10 Ill. Reg.

 11277, effective

June 16,

 1986;

 amended in R90—20 at 16 Ill. Reg.

______________

effective _____________________________

NOTE:

 Capitalization denotes statutory language.

SUBPART A:

 DEFINITIONS AND GENERAL PROVISIONS

Section 240.102

 Definitions

All terms which appear in this Part have the definitions

specified in this Part and 35 Ill.

 Adm. Code 201 and 211. Where

conflicting definitions occur the definitions of this Section

apply in this Part.

“Diesel Engine”:

 All types of internal-combustion engines

in which air is compressed to a temperature sufficiently

high to ignite fuel injected directly into the cylinder

area.

“Diesel Locomotive”:

 A diesel engine vehicle designed to

move cars on a railway.

“Driver”:

 The same meaning as defined in the Illinois

Vehicle Code,

 Ill. Rev.

 Stat.

 1989,

ch.

 95—1/2, par.

 116.1.

“Fleet”:

 Five or more vehicles.

“Full Power Position”:

 The throttle position at which the

engine fuel delivery is at maximum flow.

“Heavy Duty Vehicle”:

 A motor vchiclc rated at more than

8000 pounds gro~vehicle wcightA vehicle with 8,000 pounds

or greater manufacturer’s maximum gross vehicle weight

rating

 (GVWR).

“High Idle”:

 That portion of a two—speed idle test

conducted with the engine operating at a speed of

approximately 2500

PRM.

“Idle Mode”:

 That portion of a vehicle emission test

procedure conducted with the engine disconnected from an

external load and operating at minimum throttle.

“Light Duty Truck”:

 A’motor vehicle rated at 8000 pounds

 gross vehicle weight or less, which is designed for carrying

130—38 1

16

more than 10 persons or designed for the transportation of

property, freight or cargo,

 •or is a derivative of suàh a

vehicle.

“Light Duty Vehicle”:

 A passenger car designed to carry not

more than 10 persons.

“Model Year”:

 The year of manufacture of a motor vehicle

based upon the annual production period as designated by the

manufacturer and indicated on the title and registration of

the vehicle.

 If the manufacturer does not designate a

production period for the vehicle, then “model year” means

the calendar year of manufacture.

“Motor Vehicle”:

 As used in this section “motor vehicle”

shall have the same meaning as in the Illinois Vehicle Code

(Ill.

 Rev.

 Stat. 1985~,ch.

95

 1/2, par.

 1—146).

“Opacity”:

 A condition which rcndcr~material partially of

wholly impervious to the tranomittance of light,

 and cauce~

the obotruction of an obccrver’~viewThat fraction of light,

expressed in percent, which when transmitted from a source

through a smoke—obscured path,

 is prevented from reaching

the observer or instrument receiver.

“Pcroono Liable”:

 All poroons owning, operating or

in

charge or control of any equipment who ohall cauoc or permit

or participate

 in any violation of theoc ruleo and

rcgulationc either ac owner,

 operator,

 leocce or lcooor.

“Smokeineter or Opacimeter”:

 An’ optical instrument designed

to measure the opacity of smoke or diesel exhaust gases

using the light extinction method.

“Snap idle Cycle”:

 Rapidly depressing the accelerator pedal

from normal idle to the full power position, holding the

pedal

 in the position for no longer than ten seconds or

until the engine reaches maximum speed,

 and fully releasing

the pedal

 so that the engine decelerates to normal idle.

“Test Procedure”:

 The preparation, preconditioning sequence

and smoke opacity measurement processes using the snap idle

cycle for determining compliance with Section 240.141.

“Two—Speed Idle Test”:

 A vehicle emission test procedure

consisting of the measurements of exhaust emissiOn in high

idle and idle modes.

(Source:

 Amended at

 16 Ill. Reg.

_____________,

 effective

_________________________________________

130—382

Section .240.107

 Incorporations by Reference

The following materials are incorporated by reference and include

no later editions or amendments:

,~j

 Society of Automotive Engineers

 (SAE),

 400 Commonwealth

Drive,

Warrendale,

15096:

Report

J255a

Diesel

Engine Smoke Measurement

 (August.

 1978).

~

 International Standards Organization

 (ISO),

 Case

Postale

56,

 1211 Geneve 20,

 Switzerland: ISO 393

jWorking Draft, January 1991).

 Also available from

American National Standards Institute

 (ANSI).,

 11 West

42nd Street, New York, NY

 10036.

(Source:

Added

Ill.

Reg.

—

.)

effective

SUBPART B:

 EMISSIONS

Section 240.122

 Diesel Engine Emission Standards ~

Locomotives

a)

 The vi3ible cmi~ion3tandard in Section 240.121 ohall not

apply to die~clenginec.

manufacturod bcfore January

i,

 1970, chailnotbo operated

in Guch a manner ao to emit omoke which

i~

equal to or

greater than 30

 opacity except for individual omoke puff3.

Individual puffo of omokc r~hallnot exceed 15 ocoondo in

duration.

1)

 Dicoel

eng1..-

 shall be oper—~-~-~

 only

fuel..~. ~

3~ccified

the

spccificationo

for

 that opecific engine,

 or on fuclo

exceeding

engine

manufacturero’

opcaificationo.

I_.

2)

 Per~onoliable for operating dieocl engine flceto

wholly within otandard metropolitan otatiotical areac

shall furnioh to the Environmental Protection Agency,

once

each

year,

proof

 that the fuel purcha~cdand uocd

their

opcrationo

conform

3uboeotion

(a)

(1).

ci)

All

diecol

cnginco

operated

public

highwayo

Illinois

coming

from

 out of the State ohall conform to 3ubscction

(b).

I ‘~fl—’~R’~

18

~

 No person shall cause or allow the emission of smoke from

any diesel locomotive in the State of Illinois to exceed

thirty percent

 (30)

 opacity.

2+~j~.

 Subsection

 (c) (1)j~shall not apply to:

A-)-jj. Smoke resulting from starting a cold locomotive:

 for a

period of time not to exceed 30 minutes.

~-)-2~

 Smoke emitted while accelerating under load from a.

throttle setting other than idle to a higher throttle

setting:

 for a period of time not to exceed 40

 seconds.

G)-,~j,,. Smoke emitted upon locomotive loading following idle:

for a period of time not to exceed

 2 minutes.

~-)~j)Smoke emitted during locomotive testing, maintenance,

adjustment, rebuilding,

 repairing or breaking in:

for

a period of time not to exceed

 3 consecutive minutes

and an aggregate of 10 minutes in any 60 minute period.

~

 Smoke emitted by a locomotive which because of its age

of design makes replacement or retrofit parts necessary

to achieve smoke reductiOn unavailable.

 These

locomotives shall be retired at the earliest possible

time.

(Source:

 Amended at 16

 Ill. Reg.

_____________,

 effective

SUBPART C:

 HEAVY-DUTY DIESEL SMOKE OPACITY STANDARDS AND

TEST PROCEDURES

Section 240.140

 Applicability

This Subpart applies to all on-road diesel—powered vehicles with

8,000

pounds

greater

manufacturer’s

maximum

gross

vehicle

weight

rating

(GVWR)

operating

the

State

Illinois.

(Source:

Added

—

Ill.

Req.

____________,

effective

_________________________________________

.)

Section

240.141

Heavy—Duty

Diesel

Vehicle

Smoke

Opacity

Standards and Test Procedures

,~j

 The standard for heavy-duty diesel vehicle smoke

opacity is as follows:

,~j

 No 1991 or later model year heavy—duty diesel-

powered vehicle with a federal peak smoke engine

certification operating on the roadways within the

130—384

19

State

Illinois

shall

exceed

forty

percent

(40).

peak

smoke

opacity

when

tested

accordance

with

subsections

(b)

and

(c).

21.

Except

for

subsection

(a)

(1),

heavy-duty

diesel—powered

vehicle

operating

the

roadways

within

the

State

Illinois

shall

exceed

fifty—

five

percent

(55)

peak

smoke

opacity

when

tested

accordance

with

subsections

(b).

and

(c).

The

smoke

opacity

measurement

shall

carried

out

using

light-extinction

type

opacimeter

capable

measuring

and

recording

opacity

continuously

during

the

snap

idle

testing

cycle.

strip

chart

recorder

equivalent

better

recording

device

shall

used

concert

with

the

opacimeter

record

opacity

continuously,

including

peak

values.

The

opacimeter

shall be capable of providing opacity readings with

sufficient resolution to obtain 0.5 second—averaged

values.

The

peak

0.5

second—averaged

value

shall-~be

used

for

showing

compliance

with

the

standard

subsection

(a)..

Where

the

response

time

the

instrument

such

that

opacity

being

measured

smaller

than

0.5

second

intervals,

the

meter

shall

have

the

capability

providing

allowing

the

calculation

0.5

second—averaged

values.

fl

 The opacimeter shall be either an in-line full-

flow

opacimeter;

end-of-line

plume

 type

full—

flow opacimeter;

or

 a sampling type partial flow

~paciineter.

The

opacimeter

and

recording

devices

shall

calibrated

according

manufacturers’s

specifications.

Corrections

for

the

effect

exhaust stack diameter shall apply to opacity

measurements made using an end—of—line full—flow

opacimeter;

and

21

 The opacimeter and recorder shall comply with

specifications in the International Standards

Organization

ISO

393

and

Society

Automotive

Engineers

 (SAE)

 report number J255a entitled

“Diesel

Engine

Smoke

Measurement”,

incorporated

reference

Section

240.107.

ç~

 The test procedure using the snap idle cycle shall

occur under when the engine is at normal operating

temperature.

 The test shall consist of preparation,

preconditioning.

 and testing phases.

fl

In

the preparation phase,

 the vehicle shall be

placed at rest,

 the transmission shall be placed

in neutral, and the vehicle wheels shall be

130—385

properly restrained to prevent any rolling motion.

In the event of a roadside test,

 it shall be

acceptable under this Section’ for the driver to

apply

the

brakes

during

the

test.

21.

the

preconditioning

phase,

the

vehicle

shall

put

through

snap

idle

cycle

three

times

until

successive

measured

smoke

opacity

readings

are

within

ten

percent

(10)

each

other.

The

opacimeter

shall

rechecked

prior

the

preconditioning

sequence

determine

that

its

zero_and span setting are adjusted to

manufacturer’

specifications.

fl

the

testing

phase,

the

vehicle

shall

put

through

the

snap

idle

cycle

three

 times.

~j..

The

smoke

opacity

shall

measured

during

the

preconditioning

and

testing

phases

with

an opacimeter meeting the reauirements of

subsection

 (b) and shall be recorded

continuously on the recorder during each snap

idle cycle.

 The maximum 0.5 second

 averaged

value

recorded

during

each

snap

idle

cycle

shall

the

smoke

opacity

reading.

~j.

The

average

the

three

smoke

opacity

readings

shall

used

determine

compliance

with

the

opacity

standard

subsection

(a).

,~j,

Pursuant

Section

28.1(b)

the

Act

and

Ill.

Adm.

Code

l06.Subpart

any

person

petitioning

for

adjusted

standard

from

the

peak

smoke

opacity

standard

paragraph

(a)

(2)

for

DDC

1987-1990

Series

engines

shall

establish

its

justifications

providing

the

following

information

minimum:

fl

The

specific

characteristics

common

only

all

the

1987—1990

Series

engines

that

result

noncompliance

with

the

555

opacity

standard.

21

All

USEPA

certification

and

snap/idle

test

data.

fl

Economic

and

technical

data

the

logistical

other

perceived

difficulties

encountered

that

may

encountered

the

existing

1987—1990

Series

engine

software

were

reprogrammed

come

into

compliance.

il

The

alternative

opacity

standard

proposed

and

supporting

data.

130—386

Supporting

data

showing

that

THE

REQUESTED

STANDARD

WILL

NOT

RESULT

ENVIRONMENTAL

HEALTH

EFFECTS

SUBSTANTIALLY

AND

SIGNIFICANTLY

ADVERSE

THAN THE EFFECTS CONSIDERED BY THE

BOARD

ADOPTING

THE

RULE

GENERAL

APPLICABILITY.

(Section

28.1(c).

(3).

the

Act).

(Source:

Added

Ill.

Reg.

‘

effective

___________________________________________

.)

IT IS SO ORDERED.

R.

 C. Flemal dissented.

Section 41 of the Environmental Protection Act

 (Ill. Rev.

Stat.

 1990 supp.,

ch.

 111 1/2,

 par.

 1041) provides for appeal of

final Orders of the Board within 35 days.

 The Rules of the

Supreme Court of Illinois establish filing requirements.

I, Dorothy M.

 Gunn, Clerk of the Illinois Pollution Control

 Board, hereby testifythat the above Qp,.inion and Order was

adopted on the

 ~‘7~

 day. of

___________________,

 1992 by a

vote of________________

.

‘

Dorothy M. ~nn,

 Clerk

Illinois Po~1utionControl Board

130—38