ILLINOIS POLLUTION CONTROL BOARD
September 12,
1991
IN THE MATTER OF:
)
R9l—1O
EXEMPTIONS FROM THE
)
(Identical in Substance Rules)
DEFINITION OF VOM
)
ADOPTED RULES.
FINAL ORDER.
OPINION
AND
ORDER OF THE BOARD
(by J. Anderson):1
The Board hereby amends
its rules
in response to USEPA
additions to the list of chemicals exempted from the definition
of volatile organic materials
(VOMs).2
At 56 Fed.
Reg.
11418,
March 18,
1991, USEPA added five compounds and four classes of
compounds to the list of negligibly photoreactive compounds
exempt from regulation under state implementation plans
(SIPS).
Those compounds constitute additions to those compounds exempted
in R89-8, effective January
1,
1990.
The Board directs attention
to that prior docket for information relating to the original
listing of exempted compounds.
The Board adopts this Opinion and Order pursuant to the
identical—in—substance mandate under Section 9.1(e)
of the
Environmental Protection Act,
Ill. Rev. Stat.
1989,
ch.
111½,
par.
1009.1(e).
Section 9.1(e) provides for quick adoption of
regulations that are “identical in substance” to certain pub-
lished federal policy statements.
It further provides that Title
VII of the Act and Section
5 of the Administrative Procedure Act
(APA)
shall not apply.
Because this rulemaking is not subject to
Section 5 of the APA,
it is not subject to first notice or to
second notice review by the Joint Committee on Administrative
Rules
(JCAR).
The Federal Register citation to the revision in
the federal policy statement used in this Opinion and Order is as
follows:
56 Fed. Reg.
11418
March 18,
1991
The Board will delay filing these adopted amendments until
14 days after the date of this Opinion and Order.
This is to
allow time for the filing of supplemental public comments by
interested persons.
The revision to USEPA’s “Recommended Policy on the Control
1The
Board
appreciates
the
contribution
of
Michael
J.
NcCambridge, Board attorney,
in this matter.
2
USEPA consistently designates these “volatile organic
compounds”
or “VOCs.”
Both designations refer to the same
matter,
and all references in this Opinion and Order to “VOM”
refer to what USEPA calls “VOC.”
126—229
2
of Volatile Organic Compounds” adds five compounds and four
classes of compounds to the list of negligibly-photochemically-
reactive compounds exempted from regulation as volatile organic
compounds.
PUBLIC
COMMENTS
The Board submitted its April 11,
199.
Proposed Opinion and
Order for public comment.
It appeared in the Illinois Register
on May 3,
1991, at 15 Ill. Reg. 6385
(Part 211)
and 15 Ill. Reg.
6414
(Part
215).
The statutory public comment period would have
ended on June 17,
1991,
45 days after the date of publication in
the Illinois Register.
However, the hearing officer extended the
deadline for comments to July 8,
1991.
The Board received six
public comments in response to its requests:
PC#1.
5-20-91
Secretary of State, Administrative Code
Division
PC#2.
5-22-91
Joint Committee on Administrative Rules
PC#3.
6-21-91
Illinois Department of Commerce and Community
Affairs
PC#4.
7-5-91
Illinois Environmental Protection Agency
(including supplement filed July 9,
1991)
PC#5.
7-6-91
Illinois Environmental Regulatory Group
(by
Barbara Collins,
Attorney)
PC#6.
7-15-91
Allied—Signal Inc.,
Engineered Materials
Sector
(by Donn Hirschmann,
Pollution COntrol
Manager)
The Board hereby accepts all comments filed.
The Board invited
comment on several specific aspects of the Proposed Opinion and
Order.
The following discussion addresses each of the comments
at the appropriate place.
By PC#3, the Illinois Department of Commerce and Community
Affairs submitted its comments.
DCCA submits that the present
rulemaking will have no significant economic impact on small
businesses in Illinois.
HISTORICAL SUMMARY
The Board adopted the original federal Recommended Policy
statements and several subsequent revisions in October,
1989:
R89—8
104 PCB 505, October 18,
1989;
13
Ill. Reg.
17457,
effective October 27,
1989.
126—230
3
The Federal Register issues included in that docket are recited
in that Opinion and Order.
DISCUSSION
At
56 Fed.
Reg.
11418, March 18,
1991,
USEPA announced a
change in its “Recommended Policy on the Control
of Volatile
Organic Compounds,” adding five halocarbon compounds and four
classes of perfluorocarbon compounds to the list of negligibly
photoreactive compounds exempt from regulation under state
implemerftation plans.
Those compounds are as follows:
1.
2-chloro-1, 1,1,2-tetrafluoroethane (HCFC-l24)
2.
Pentafluoroethane
(HFC—125)
3.
1,1,2,2—tetrafluoroethane
(HFC—134)
4.
1,1,l—trifluoroethane
(HFC—l43a)
5.
1,1—difluoroethane
(HFC-152a)
Those classes of compounds are as follows:
1.
Cyclic,
branched,
or linear, completely fluorinated
alkanes.
2.
Cyclic, branched,
or linear, completely fluorinated
ethers with no unsaturations.
3.
Cyclic, branched,
or linear, completely fluorinated
tertiary amines with no unsaturations.
4.
Sulphur—containing perfluorocarbons with no unsatura—
tions and with sulfur bonds only to carbon and fluo-
rine.
Under this policy,
states may not take credit for controlling
these compounds in their ozone state implementation plans
(SIPs).
USEPA simultaneously proposed to amend the federal implementation
plan
(FIP)
for Chicago and to amend 40 CFR 51 to add a general
definition of VOM consistent with its policy revision.
56 Fed.
Reg.
11387
(Mar.
18,
1991).
USEPA stated that it would withdraw
its policy revision as moot when it finally adopts such a defini-
tion of VOM as a regulation.
56 Fed. Reg. at 11388
& 11419.
USEPA effected part of the revision to its policy statement
in response to a petition by the Alliance for Responsible CFC
Policy.
On January 18,
1989,
at 54 Fed. Reg.
1987,
USEPA par-
tially responded to the petition by adding four non—fully-
halogenated CFCs to the list of negligibly-reactive compounds.
That was,
in part,
the subject of R89-8.
The Alliance stated in
126—23 1
4
justification of its petition that these CFC substitutes are less
photochemically reactive than others already on USEPA’s list of
negligibly—reactive compounds and that USEPA must remove barriers
to the use of CFC substitutes
if the U.S.
is to meet its commit-
ments under the Montreal Protocol on Substances that Deplete the
Ozone Layer.
Minnesota Mining and Manufacturing Co.
(3M) submitted a
petition to USEPA requesting addition of the four classes of
compounds included as the other part of the policy statement
revision.
3M also requested that USEPA take action to include
these classes as part of the Chicago FIP and act to assure that
they become part of any future SIP.
3M justified its petition by
asserting that these classes of compounds are not photochemically
reactive in the troposphere, that they do not deplete strato-
spheric ozone,
that they are generally non-toxic to humans and
the environment, and that they can act as useful CFC substitutes.
In effecting the revision, USEPA stated that only one
compound
(HCFC-124) had any chlorine or bromine atoms which
contribute to stratospheric ozone depletion.
USEPA agreed that
there is
a need to remove barriers to the use of acceptable CFC
substitutes like those
in the petitions.
On this basis, USEPA
revised its policy and exempted the five compounds and four
classes of compounds.
Therefore, USEPA’s policy is not to
enforce or approve controls on these compounds,
and it “will rely
on the revised policy in considering all future approvals or
promulgations of implementation plan provisions
.
.
.
.“
56 Fed.
Reg. at 11419.
Section 9.1(e) Mandate
The federal revision of its Recommended Policy raised an
initial issue relating to whether the Board should proceed with
adoption of the proposed rule pursuant to Section 9.1(e).
As
discussed in the Board’s October 18,
1989 Opinion and Order in
R89-8,
the initial adoption of exemptions from the definition of
VOM resulted from a specific legislative mandate.
At that time,
the legislative mandate arose out of a desire to include in Board
rules the then-current list of chemicals exempted by USEPA under
its Recommended Policy statements.
The language of the authoriz-
ing legislation was open—ended,
mandating future action in
response to any future USEPA policy revisions:
The Board shall exempt from regulation under the State
Implementation Plan for ozone the volatile organic
compounds which have been determined by the U.S. En-
vironmental Protection Agency to be exempt from regula-
tion under state implementation plans for ozone due to
negligible photochemical reactivity.
In accordance
with subsection
(b)
of. Section 7.2, the Board shall
adopt regulations identical in substance to the U.S.
126—232
5
Environmental Protection Agency exemptions or deletion
of exemptions published in policy statements on the
control of volatile organic compounds
in the Federal
Register by amending the list of exemptions to the
Board’s definition of volatile organic material found
at 35
Ill. Adm. Code Part 211.
.
.
.
The Board may
consolidate into a single rulemaking under this subsec-
tion all such federal policy statements published in
the Federal Register within a period of time not to
exceed
6 months.
Ill. Rev.
Stat.
1989,
ch.
111½, par. 1009.1(e).
USEPA effected the revision to its Recommended Policy state-
ment and simultaneously proposed a general definition of “vola-
tile organic compound” on the same date.
See 56
Fed.
Reg.
11387
& 11418
(Mar.
18,
1991).
The proposed general definition would
codify the substance of the Recommended Policy statement.
In
both the respective discussions of the policy revision and the
proposed definition, USEPA stated that its intent is to withdraw
the Recommended Policy statement as moot when it adopts the
general definition.
Although withdrawal of the Recommended Policy after final
adoption of the general definition would have no effect on the
status of any of the exempted compounds in the federal scheme,
the prospective withdrawal raised several issues,
including
whether the Board should proceed with adoption of this rulemak-
ing.
On its face,
the mandate of Section 9.1(e) pertains to the
recommended federal policy,
not to federal rules.
If USEPA
withdraws its policy statements as moot,
must the Board then
repeal the exemptions from the definition of volatile organic
materials?
Further,
if USEPA should add or delete exempt com-
pounds by future ruleinakings,
do those actions fall within the
scope of the Section 9.1(e) mandate?
If not, should the Board
seek a revision in the language of Section 9.1(e)?
If the Board
should pursue a legislative amendment, what statutory language
should it pursue?
The Board invited comment on these issues.
In PC#4, the
Agency states “that the purpose underlying
.
.
.
§ 9.1(e)
is to
address the problem which arises when USEPA fails to promulgate a
rule yet expects the states to reflect its policy statements in
their rules.”
The Agency states:
The Board could assume that since the intent of
§
9.1(e)
is that the Illinois rules properly reflect
federal requirements, the fact that USEPA turns its
policy statement into a rule has no effect on any
identical in substance rules adopted by the Board
pursuant to § 9.1(e).
126—233
6
The intent of
§ 9,1(e)
is that Illinois’ rules for the
control of ozone precursors exactly reflect USEPA~s
exemptions from the definition of VOM.
Whether the
exemption is
in a federal rule or a federal policy
statement should make no difference.
.
PC#4 at 3—4.
IER~states, by PC#5, that when it urged the General Assemb-
ly to adopt Section 9.1(e),
“it expected that future exemptions
to the definition of VOC would appear, as they had in the past,
as amendments to Policy Statements on the control of VOC.”
PC#5
at
3.
IERG continues:
While IERG
is troubled by USEPA’s change
in pro-
cedural methods, IERG believes that the Board should,
and indeed must,
adopt the changes announced in the
March 18,
1991 revision of tJSEPA’s policy on the con-
trol of VOC.
IERG further believes that it will not be
necessary to delete the exemptions when and if
a gener-
al definition of VOC is promulgated by USEPA
in final
form, even if the revised Policy Statement is eventual-
ly withdrawn as moot.
While the Board must adopt as (identical-in-substance
those regulations published in Policy Statements, the
underlying mandate of Section 9.1(e)
is simply that the
Board exempt from regulation those compounds which have
been determined by USEPA to be exempt from regulation
due to negligible photochemical reactivity.
Thus,
in
this case,
IERG believes that at this juncture the
Board must adopt the exemptions contained in the re-
vised Policy Statement.
However,
if at some future
date,
the Policy Statement is withdrawn as moot, that
will be because USEPA has,
by regulation,
exempted
certain specific chemicals from the general definition
of VOC.
At that juncture, the Board would be required
to exempt those chemicals from regulation pursuant to
the first sentence of Section 9.1(e)
of the Act.
Thus,
even though the policy statement is withdrawn as moot,
the Board would not need to withdraw or delete the
exemptions,
as the Board would still be required to
exempt those compounds because USEPA has determined
they should be exempted because of negligible photo-
chemical reactivity.
PC#5 at 4—5.
The Board agrees with the Agency and IERG assessments of the
intent of the General Assembly.
One interpretation of the actual
126—234
7
mandate of Section 9.1(e)
is that
it is fully substantively
embodied as follows:
The Board shall exempt from regulation
under
the-.~.State
Implementation Plan for ozone the volatile organic
compounds which have been determined by the U.S. En-
vironmental Protection Agency to be exempt from regula-
tion under state implementation plans for ozone due to
negligible photochemical reactivity.
Ill.
Rev.
Stat.
1989 ch.
111½, par. 1009.1(e).
In all other identical-in-substance mandates, the Board is to
base the rules on federal regulations.
~
Ill. Rev.
Stat.
1989
ch.
111½, par.
1013(c),
1013.3,
1017.5,
1022.4(a),
and 1022.4(d)
(mandates for UIC, pretreatment,
SDWA,
RCRA,
and UST programs,
respectively).
With regard to the exemption of negligibly—
reactive compounds,
however, USEPA has not yet adopted regula-
tions.
Rather, USEPA has used its Recommended Policy Statement
to implement their exemption.
Therefore,
it
is likely that the
Section 9.1(e) mandate continues to require the Board to adopt
regulations based on “exemptions published in policy statements
on the control of volatile organic compounds
in the Federal
Register” because the General Assembly recognized the unorthodox
approach USEPA took to implementing these requirements for state
implementation plans.
Under this analysis, the clear intent of the General Assemb-
ly is that the Board must adopt the federal exemptions by identi-
cal—in—substance rulemaking.
The mandate that the Board apply
federal policy statements to this end is further authorization to
base those regulations on their presently—existing sole source:
federal policy statements.
If USEPA chooses to employ the more
conventional regulatory approach of codifying the exemptions,
the
mandate remains that the Board must adopt those exemptions by
identical—in—substance procedures.
The Board believes that this
is the interpretation that will
best implement the intent of the General Assembly as embodied in
Section 9.1(e).
If the Board errs in its assessment, the General
Assembly is free to further clarify its intent by later legisla-
tive amendment.
However,
the Board believes that by proceeding
with this rulemaking despite USEPA’s prospective change in ap-
proach, we will achieve the benefits for Illinois industry that
the General Assembly desires, and we will attain greater consis-
tency with the federal scheme for ozone control.
Therefore,
the Board is adopting the proposed amendments
without regard to the possibility that USEPA will likely moot the
federal policy statement upon which
it
is based.
The possibility
exists that the Board will face the prospect of basing future
amendments on federal rules,
rather than on the policy statements
126—235
S
referred to in Section 9.1(e).
The Board will address that
ISSUE
when it arises.
Other Parts Affected
The Agency further opines that the Board should ultimately
embody the federal policy statement
(rules)
into the definitions
of VOM in Parts 203,
218, and 219.
PC#4 at 3—4.
Most of this
issue arose subsequent to the original Proposed Opinion and Order
of April 11,
1991, when the Board adopted First Notices in R91-
7:
Chicago Area
RACT
Deficiencies and R9l-8:
Metro-East Area
RACT
Deficiencies on July 25,
1991.
Those rulemakings, final as
of August 16,
1991 (Parts 218 and 219)
and August 19,
1991
(Part
215), ~
15 Ill.
Reg.
12217,
12231
& 12491
(Aug.
30,
1991),
adopted new Parts 218 and 219,
each of which include a separate
definition of “volatile organic material”-—just as proposed by
the Agency in those proceedings.
However, because the Board has
not published
a Notice of Proposed Amendments to Parts 203,
218,
and 219, we cannot adopt amendments to the definitions
in those
Parts in this proceeding at this time.
Thus, the Board has
opened docket R91-24:
Exemptions from the Definition of VOM in
response to the Agency’s comments, to amend the Part 218 and 219
definitions and maintain consistency between the Chicago and
Metro-East RACT areas and the rest of the state.
The Board will
add the 35 Ill.
Adm. Code 203.145 definition to that rulemaking
to complete the amendments to the several definitions of VOM.
The Need for Delay
The Agency advocates that the Board delay action in this
matter to allow USEPA an opportunity to further define the con-
tent of an identical-in-substance rule based on its policy by
taking further rulemaking action, possibly by adopting the pro-
posed 40 CFR 51 definition of “volatile organic material.”3
At
hearing,
Chris Romaine, of the Agency, testified:
The
USEPA is undertaking an action at this point
which is not as simple as listing certain exempt com-
pounds which can be handled by the existing procedures
for dealing with these compounds.
The USEPA is also
evaluating its procedures for handling exempt com-
pounds.
.
Because of the complexity of some of these issues,
we believe it’s appropriate to wait until we see the
final outcome of USEPA’s formal rule-making.
The Agency has submitted a public comment to USEPA in the
federal rulemaking.
In that comment,
the Agency cites a number
of ambiguities in the proposed federal rule and suggests changes
to help alleviate those ambiguities.
~
PC#4, Attachment
1.
126—236
9
Tr. at 7-8.
He concludes:
The
final rules that the USEPA comes up with will be
a much better basis for Illinois to take action on its
definition of Volatile Organic Material otherwise we’re
sort of jumping the gun on a general policy statement.
Tr. at
10.
IERG,
by PC#5,
and Allied-Signal, by (PC#6), disagree with
the Agency and urge the Board to proceed.
IERG highlights the
fact that USEPA simultaneously revised its policy statement and
proposed the its definition of VOM that would codify the exemp-
tions.
IERG maintains that USEPA did so in order to avoid delay
in implementing the exemptions.
IERG argues that the Agency’s
assertions notwithstanding,
USEPA has finalized the exemptions by
revision of its Recommended Policy Statement.
USEPA actually
made the determination that the compounds and classes of com-
pounds are negligibly photochemically-reactive in the policy
statement of March
18,
1991,
at 56 Fed. Reg.
11388.
Allied—
Signal urges that the Board not delay encouraging the use of the
exempted compounds
in place of more deleterious alternatives.
The Board agrees with IERG that the exemptions are final at
the federal level as of March 18,
1991.
Initially,
the fact that
USEPA has proposed codification of the exemptions for the first
time indicates a change in USEPA’s approach, not in its policy.
Second,
the exemptions are final and effective as of March
18,
1991,
when USEPA revised its policy statement.
As stated in the
revised policy:
Pending final action on the general definition of VOC
in 40 CFR 51
.
.
.,
the EPA will rely on today’s re-
vised policy in considering all future approvals or
promulgations of implementation plan provisions desig-
nated to attain of maintain the NAAQS for ozone.
Based
on this revised policy,
EPA anticipates that such
rulemaking actions will contain exemptions for these
and previously listed negligibly-reactive VOMs.
56 Fed. Reg.
11419
(Mar.
18,
1991).
As further stated in the discussion of the proposed definition,
and addressing both these points:
It is important to emphasize that today’s proposal does
not address the general question of VOC reactivity;
it
is strictly limited to whether EPA should codify
in
regulatory form its current reactivity policy as re—
126—23 7
10
vised in a notice published elsewhere
in today’s Feder-
al Register.
56 Fed. Req.
11388
(Mar.
18,
1991)
(emphasis added).
Thus,
the third point is that Illinois must immediately begin to
exempt these compounds because USEPA has given immediate effect
to its revised policy.
The exemptions became a necessary part of
all implementation plans as of March 18,
1991 as a matter of
federal law.
Illinois “may not take credit for controlling these
compounds in
its
ozone SIP control strategy.”
56 Fed.
Reg.
11416
(Mar.
18,
1991).
The Board finds no reason for delay in the fact that USEPA
has simultaneously proposed codification of its policy.
Promptly
proceeding with adoption of these exemptions will serve the
public purpose of encouraging their use in favor of more deleter-
ious alternatives.
However, the Agency raises several other
concerns, some of which are more troublesome.
Among the other
issues Mr. Romaine cited are related to those cited by the Board
in its Proposed Opinion and Order of April
11,
1991:
USEPA may
condition the exemption of any compound from a particular source
on that source monitoring emissions of the compound.
The Federal Monitoring Requirement
The USEPA policy revision raises important issues
for. the
Board.
These relate to the balance between the Board’s identi-
cal—in—substance mandate on the one hand and USEPA’s expressly—
reserved flexibility to deviate from the policy on a case-by-
case basis on the other.
They also relate to the scope of the
federal monitoring requirement and the role it plays
in the
federal exemption scheme and whether the occasional monitoring
requirement falls within the Board’s identical-in—substance
mandate.
The Need for Codification in Illinois
USEPA is free to deviate from its policy,
and to impose
monitoring of emissions of the exempted compounds on a case—by—
case basis,
although USEPA has no present intent to deviate from
its policy.
USEPA stated:
Of course,
because this revised policy statement is not
a binding regulation,
EPA remains free at this time to
depart from it in evaluating the merits of any par-
ticular rule regarding control of tropospheric ozone.
However, because EPA believes that such case—by—case
consideration is unnecessary,
in the proposal being
published today,
EPA is also proposing to codify in
40
CFR 51
a general definition of VOC for all SIP devel-
opment purposes that would exempt all of the compounds
126—23 8
11
on the nonreactive list being revised by today’s policy
statement.
Should EPA adopt that proposal as a final
regulation, there would be no need to consider reac-
tivity of the listed compounds on a case-by-case basis
USEPA further stated:
It
is important to note that the proposed
40
CFR 51
general definition of VOC includes a provision
that allows EPA or the State to require a source owner
or operator,
as a precondition to excluding negligibly-
reactive compounds for purposes of determining com-
pliance, to provide monitoring methods and/or monitor-
ing results demonstrating to the satisfaction of EPA or
the State, the amount of negligibly-reactive compounds
in the source’s emissions.
.
.
.
As discussed in the
preamble to the proposed rule, the situations where
such information may be needed typically involve emis-
sions from streams where
(1) VOC’s and negligibly—
reactive compounds are mixed together,
or
(2)
there are
a large number of negligibly-reactive compounds or the
chemical composition of some of the negligibly-reactive
compounds is not known.
56
Fed. Req.
at 11419—20.
Proposed 40 CFR 51.100(s)
states that volatile organic
compounds include all compounds that participate
in atmospheric
photochemical reactions other than the several listed from the
Recommended Policy statement.
The definition goes on to state:
An
owner or operator may exclude these negligibly—
reactive compounds when determining compliance with an
emissions standard.
However,
USEPA
or the State may
require such owner or operator,
as a precondition to
excluding these compounds for purposes of determining
compliance, to provide monitoring methods and monitor-
ing results demonstrating
.
.
.
the amount of negligib-
ly—reactive compounds in the source’s emissions.
56
Fed. Reg.
at 11390.
A tJSEPA footnote to this Federal Register passage states:
I)n
any situation where a State allows
a source to
exclude any of these negligibly-reactive compounds, EPA
would retain independent authority to request a source
to provide monitoring methods and/or monitoring results
demonstrating,
to the satisfaction of EPA, the amount
of negligibly—reactive compounds in the source’s emis-
sions.
126—239
12
56 Fed. Reg.
at
11419,
note
.1.
Thus,
USEPA can require monitoring for exempted compounds as
a permit condition despite the general exemption, and the states
may reserve such authority in their rules.
Whether or not a
state reserves such authority, USEPA reserves the right to re-
quire monitoring that demonstrates the amount of exempt compounds
in a source’s emissions.
The existence of conditions
in the revised federal policy
and the proposed definition raises the issue as to whether Il-
linois should similarly condition exemptions.
Illinois law
requires the Board to codify its rules of general applicability.
The Board risks appellate court invalidation of any policy the
Agency attempts to apply without the formal process of codifica-
tion.
~
Senn Park Nursing Center
v. Miller,
118 Ill. App.
3d
504, 455 N.E.2d 153
(1st Dist.
1983),
aff’d
104 Ill.
2d 169,
470
N.E.2d 1069
(1984).
Therefore,
application of any general policy
on a case—by—case basis might require codification under Illinois
law.
By its April
11,
1991 Opinion and Order,
the Board raised
these issues and proposed language expressly reserving the Agen-
cy’s prerogative to require monitoring under the conditions
discussed by USEPA.
The Board proposed incorporating this lan-
guage
in a new Section 215.108, among the general provisions of
the Part of the Board’s rules that regulate volatile organic
emissions.
The Board further incorporated into the proposed
amendments to Section 211.122
a Board note that referenced Sec-
tion 215.108 and the Recommended Policy statement
(or, alterna-
tively,
40 CFR 51.100(s)
if this rule is adopted by USEPA) where-
in USEPA reserves the right in itself to require monitoring of
exempted compounds as a precondition to exemption.
In raising the issue of including an express authorization
for the Agency to require monitoring for the exempted compounds
among the general provisio~isof Part 215 for the purposes of
public comment,
the Board raised issues relating to its identi-
cal—in—substance authority under Section 9.1(e).
First,
should
the Board include the express USEPA reservations along with the
general exemption that Section 9.1(e) requires the Board to
adopt?
Second, assuming the Board should include the express
reservation, does the identical-in-substance authority of Section
9.1(e)
extend to adoption of such a reservation, whether based on
the text of the Recommended Policy statement,
see 56 Fed. Reg.
at
11419-20,
or on the text of the proposed federal rule when adopt-
ed?
Third,
does Section 9.1(e) authorize the Board to adopt an
amendment to Part 215 that would embody the USEPA reservations?
Fourth, assuming the Board should include the express reserva-
tion, should that reservation take the form of the conditions
outlined in USEPA’s discussion of the situations in which it
126—240
13
might require monitoring?
The Board’s approach in drafting that proposal for public
comment was the use of limiting terms in Section 215.108, based
on the USEPA discussion of the situations under which it might
impose a requirement for monitoring.
USEPA’s discussion appears
to use those situations as non—limiting examples,
so other situa-
tions could cause USEPA to impose monitoring for the exempted
compounds.
Therefore,
the Board also added a Board Note to the
proposed Section 211.122 definition of “volatile organic mater-
ial” to ‘direct the attention of the regulated community to the
potentially conditional nature of the exemptions.
This raised
the fifth question:
is there an alternative the Board could use
in drafting this Section that would use non-limiting terms that
are acceptable under Illinois administrative law?
Public Comments
The Board invited comment on these issues and the comments
of the Agency
(PC#4), IERG
(PC#5), and Allied—Signal
(PC#6)
addressed them.
The Agency appears to generally support the
approach proposed by the Board,
and IERG and Allied-Signal
strongly disfavors any type of condition to the exemption of any
VOM.
The issues raised by the monitoring requirement and public
comments are complex.
The Agency shares the Board’s concerns over how USEPA in-
tends to implement this conditional monitoring requirement.
The
Agency’s witness at hearing, Mr. Romaine,
asserts that monitoring
methods do not yet exist for some of the newly—exempted com-
pounds.
Further,
the Agency desires USEPA clarification of
whether certain particulate emissions fall within USEPA’s defini-
tion of “volatile organic material.”
Tr.
at 8—10.
As to the non-existent monitoring methods and the USEPA
intent as to how it intends to implement the revised policy,
the
Board addresses these issues below.
However, the Board believes
that these issues should not delay action in this proceeding.
That a monitoring method does not exist for a particular compound
is a substantial impediment to gauging emissions of that materi-
al, but
it does not address the main issue confronting the Board
in this proceeding:
What is the scope of USEPA’s Recommended
Policy on the Control of Volatile Organic Compounds, and how can
the Board best fulfill the intent of the General Assembly by
embodying that federal policy?
As to the underlying definition--i.e., what USEPA considers
a “volatile organic material,” the only part of that definition
that is of any concern here is that pertaining to exemption of
negligibly-reactive compounds.
Whether USEPA considers certain
particulates as VOMs is irrelevant to what Section 9.1(e) author-
izes the Board to do.
Section 9.1(e) mandates that the Board
126—241
14
adopt exemptions from the definition of VON, not correct the
underlying definition in ways unrelated to the exemptions.
The
balance of the 40 CFR 51.100 definition of
“volatile organic
compound” and the Section 211.122 definition of “volatile organic
material” are more properly the subject of
a Section 27 general
rulemaking or a Section 28.2 federally-required rulemaking.
There is no reason to delay final Board action for this reason.
As to USEPA’s intent as to how it will implement the revised
policy, that is not the real issue.
The real issue is how must
the Board implement the revised policy in Illinois.
Of course
USEPA’s plans are instructive as to how Illinois should implement
the policy because they indicate the bounds of the policy that
the Board must adopt.
What really matters here is whether and
when Illinois should itself require monitoring for the exempted
compounds as a precondition to their exemption.
To the extent
USEPA clarifies
its intent as to when it wants the monitoring
data, that guidance is useful to the Board
in fashioning similar
conditions.
However,
no matter what Illinois does,
USEPA is free
to disapprove any SIP revision and require monitoring whenever it
wishes.
USEPA has shed some light in this regard in its discussion
of the proposed policy revision and in its proposed new defini-
tion.
However, nothing short of a full set of federal rules
outlining exactly when and how USEPA will require monitoring
would serve to constrain USEPA’s future exercise of its discre-
tion.
The Board sees nothing but broad generalization by USEPA
in this regard.
Should future USEPA actions shed more light or
indicate a change in approach,
the identical—in—substance proce-
dures of Section 7.2 are available to rapidly amend the Illinois
rules as necessary pursuant to Section 9.1(e).
In fact,
the
Board reads Section 9.1(e)
to require such rapid amendment where
the Board rules are inconsistent with the federally-intended
exemptions from the universe of VOMs.
The Agency states that the proposed rule provided ap-
propriate clarification and reinforcement of the general authori-
ty to monitor the exempted compounds because they are still
organic material.
The Agency further stated that “USEPA policy
allows exemption only if certain criteria are met.”
PC#4 at 5—6
(emphasis in original).
The Agency asserts that those conditions
are as follows:
(A) (1) the applicable test method as a technical matter
also measures exempt compounds,
and
(2) the amount of
such exempt compounds being measured can be quantified.
(B) The second key element is that all test methods
must be approved by USEPA.
PC#4 at
6.
126—242
15
The Agency then expresses its concern over the administration of
these exemptions and over the meaning of “volatile organic com-
pound,”4 which it submitted to USEPA by way of public comment.
IERG asserts that the Board proposed the monitoring require-
ment as a precondition to ~j~yexemption,
in response to the
Federal Register discussion.
IERG maintains that nothing in
Section 9.1(e)
would authorize the Board to impose monitoring
because that provision discusses exemption of negligibly—reactive
compounds,
and not monitoring.
IERG further asserts that nothing
in the March 18,
1991 Federal Register discussion of the revision
to the Recommended Policy requires or authorizes monitoring.
Rather,
IERG states that the proposed monitoring requirement
arises from USEPA’s March 18,
1991 proposed definition of “vola-
tile organic compound.”
IERG also points out that proposed
Section 215.108 goes beyond authorizing the Agency to require
monitoring for the five new exempt compounds and four classes of
compounds,
to allowing the Agency to require monitoring for all
exempt compounds.
PC#5 at 7-8.
IERG concludes:
The Board would be totally unjustified in using
that proposed rulemaking as
a basis for finally adopt-
ing,
as an identical—in—substance regulation,
Section
215.108.
.
IERG submits that at this point in time there is
no reason for the Board to provide IEPA with the un-
limited authority to require monitoring,
and that
should not be the price that industry pays in order to
have these additional exemptions adopted by the Board.
If
IEPA believes that monitoring is necessary and/or
appropriate,
IEPA can initiate a Board proceeding to
amend the definition of VON similar to the amendment
proposed in the Federal rulemaking
.
PC#5 at 8-9.
IERG cites USEPA’s independent authority to require monitoring
for justification of an individual exemption apart from the
states authority to do so.
PC#5 at
9.
Allied—Signal
(PC#6)
concurs in the assertions of IERG.
Allied-Signal further points out the following with regard to a
monitoring requirement structured as
a precondition to exemption:
~
Illinois rules use “volatile organic material,” ~
35
Ill. Adm. Code 211.122
(definition of term)
& generally 35 Ill.
Adm.
Code 215, USEPA uses “volatile organic compound.”
See 56
Fed.
Reg.
11390
(Mar.
18,
1991)
(proposed 40 CFR 51.100(s)
definition of term); generally 40 CFR 60.
126—243
16
A universal requirement of this type would serve only
as a(nother) disincentive to production of CFC alterna-
tives.
IEPA already has the authority to impose permit
requirements for monitoring based on case—by—case
merits.
PC#6 at
2.
However, Allied-Signal does not cite the authority by which it
asserts the Agency could require monitoring for exempted com-
pounds.
Authority to Adopt a Monitoring Requirement
The first
issue confronting the Board is raised by IERG’s
dual contentions that the Board lacks authority to adopt a moni-
toring requirement and that the monitoring requirement is not
actually part of USEPA’s Recommended Policy.
IERG is correct in
its first contention:
if the monitoring
is not part of the
Recommended Policy revision, the Board lacks authority to adopt
such a requirement by the identical-in-substance mandate of
Section 9.1(e).
On the other hand, however,
if the monitoring
requirement
is part of USEPA’s Recommended Policy on the Control
of Organic Compounds,
the Board must adopt such a requirement
pursuant to the mandate of this provision.
Related to this issue
is that of the scope of any such federal requirement:
does the
monitoring extend only to the five new compounds and four classes
of compounds,
or does
it extend to all exempt compounds?
Initially,
the Board disagrees with IERG’s assertion that
USEPA imposes the monitoring only as part of the proposed rule,
rather than as part of the revised policy.
USEPA stated
in its
discussion of the revised policy that
it would impose monitoring
to show compliance:
Where
a state proposes to allow an individual source
to use a test method for including negligibly—reactive
compounds that is different from or not specified in
the approved SIP, such change must be submitted to EPA
for approval as a SIP revision.
56 Fed.
Reg.
11419
(Mar.
18,
1991).
USEPA also ties this discussion with its discussion of monitoring
under the proposed definition:
In addition to the above procedures for using new
or modified test methods,
it
is also important to note
that the proposed part 51 general definition of VOC
includes
a provision that allows EPA or the State to
require a source owner or operator,
as a precondition
126—244
17
to excluding negligibly-reactive compounds for purposes
of determining compliance,
to provide monitoring meth-
ods and/or monitoring results demonstrating
.
.
.
the
amount of negligibly-reactive compounds in
the
source’s
emissions.
In order to accurately determine compliance
with emissions limitations under this revised policy
statement,
EPA will follow this procedure as
a matter
of policy pending final action on
Ithe proposed defini-
tion of VOC1.
56 Fed. Reg.
11419
(Mar.
18,
1991)
(emphasis added).
USEPA then proceeds to outline that it anticipates the need to
monitor only under limited circumstances.
Those limited cir-
cumstances are identical to those outlined
in the discussion of
the proposed general definition.
See 56
Fed. Reg.
11419—20
(Mar.
18,
1991).
Finally,
the discussion of the proposed new 40 CFR 51.100(s)
definition of “volatile organic compound” makes it clear that
what USEPA intends to codify only its present policy.
USEPA
states in the summary:
The
notice of the revised policy
adds five halocarbon
compounds and four classes of perfluorocarbons to the
list of organic compounds which are negligibly reactive
and thus may be exempted from State implementation
plans
.
.
..
This notice
of
proposed rules
proposes
to make regulatory changes to EPA’s new source review
rules
.
.
.
consistent with this revised policy.
The
notice of the proposed new definition
would have the
effect of exempting the five compounds and four classes
of compounds from the new source review
(NSR) require-
ments
.
56
Fed. Reg.
11387
(Mar.
18,
1991).
The historical discussion outlines how USEPA codified the
Recommended Policy Statement exemptions from the definition of
VOC at 40 CFR 51.165 and 51.166
in 1989,
56
Fed.
Reg.
11419
(Mar.
18,
1991)
(citing
54 Fed.
Reg.
27286
(June 28,
1989)), and in
1990 adopted a federal implementation plan for Chicago that
included the exemptions
in the definition of VOC.
56 Fed.
Reg.
11419
(Mar.
18,
1991)
(citing
55 Fed.
Reg.
26814
(June 28,
1989)).
It cites that USEPA
is actually adopting the exemptions
as part of its Recommended Policy,
56
Fed. Reg.
11419
(Mar.
18,
1991)
(“in the notices section of today’s Federal Register”),
and
USEPA incorporates the discussion of the Recommended Policy
revision into the discussion of the proposed rule by reference.
USEPA states with regard to the proposed definition:
The definition,
to be codified at 40 CFR 51.100(s),
126—245
18
tracks the definition of VOC currently promulgated in
various sections of both parts 51 and 52
.
.
.
by
excluding the
15 chemicals EPA has previously deter-
mined to be negligibly reactive and by adding the
chemicals listed in the
revised
policy statement.
The definition of VOC in each of the above sections is
replaced by a reference to the general definition at
§
51.100(s).
.
It is important to note that today’s proposal
is strictly limited to whether EPA should codify
in regulatory form its current reactivity policy as
revised elsewhere in today’s Federal Register.
.
56 Fed. Reg.
11419
(Mar.
18,
1991)
(emphasis added).
Based on USEPA’s discussion,
the Board concludes that the
Recommended Policy revision actually adopted
~
the USEPA re-
quirements for exempted compounds.
The proposed new definition
does not attempt to revise that policy.
Rather, the proposed
definition merely reflects that policy.
Therefore,
the Board is
justified in referring to portions of the discussion of the
proposed new definition to shed light on that policy.
IERG’s assertions are not correct that in proposing monitor-
ing requirements the Board proposed something that is not a
present part of the Recommended Policy on the Control of Volatile
Organic Compounds.
First,
the context of both the Federal Regis-
discussion of the proposed policy revision and the contem-
poraneous discussion of the proposed definition make it clear
that the two actions are actually one.
This disarms IERG’s
argument that the Board cannot proceed to adopt any monitoring
requirement because it
is only
a proposed rule,
and not part of
the Recommended Policy.
The proposed rule is
a codification of
the present policy.
Second,
as
is evident by the above-cited
portions of the discussions and others, USEPA has inextricably
linked the two discussions by cross—reference on the issue of
monitoring.
Intent of the Monitoring Requirement
Before considering the issues raised about the substance of
the monitoring requirement,
the Board feels that it is necessary
to explain the context in which USEPA may require monitoring
before further consideration of the merits of the public com-
ments.
That context sheds light on USEPA’s intent and on the
scope of the Recommended Policy.
In that context, the Board
disagrees with certain assertions in each of the Agency’s,
IERG’s, and Allied-Signal’s comments.
The impact of the exemptions from the definition of VON is
twofold:
the exemption means
a source cannot be charged with
126—246
19
emitting a VOM when it emits an exempt compound,
and
it means a
source cannot take credit for control of an exempt compound.
As
USEPA states
in the preamble summary to the March
18,
1991 revis-
ion of its Recommended Policy:
This
notice adds five halocarbon compounds and four
classes of perfluorocarbons to the list of organic
compounds which are negligibly-reactive and thus may be
exempt from regulation under State implementation plans
(SIP’s) to attain the national ambient air quality
standards
(NAAQS)
for ozone.
States may not take
credit for controlling these compounds in their ozone
SIP control strategies.
56 Fed. Reg.
11418
(Mar.
18,
1991).
Monitoring
is necessary to demonstrate compliance with the
provisions of the Illinois and federal VOM regulations.
If a
compound is exempt from regulation,
it
is not desireable that
methods used to measure VON reductions or emissions also measure
exempt compounds.
The appendices to 40 CFR 60 provide the basic
test methods USEPA authorizes to monitor VOM emissions.
See,
e.g.,
40 CFR 60.316(a)
(Method 24 for surface coating of furni-
ture); 60.466(a) (1)
(Method
24 for metal coil surface coating);
60.547
(Method 24 or 25 for rubber and tire manufacturing);
60.614
(Method 18 for synthetic organic chemical manufacturing).
The Board has incorporated those methods by reference into Part
215 at 35 Ill.
Adxn. Code 215.105(g).
These methods cannot always
distinguish between exempt compounds and volatile organic mater-
ials.
For example,
the basic principle behind Method 24 and
Method 24A is simple volatilization,
and that behind Method 25
is
oxidation to carbon dioxide.
See 40 CFR 60,
App.
A, Methods
24,
24A
& 25.
The exempt compounds could undergo the same reactions
in the course of these methods as do VOMs.
They could thereby
interfere with the results.
For Method 18,
the chemist must know
the chemical
identity of the compound before analysis
is pos-
sible.
~
40 CFR 60,
App.
A, Method 18.
For these reasons,
USEPA states in its Federal Register
discussion of the proposed
40 CFR 51.100(s) definition of VOC:
USEPA’s
normal test method for determining compliance
with coating emission limits
(Method 24
in 40 CFR part
60) does not include an approach to adjust the results
to account for negligibly-reactive,
exempt compounds.
Method 24 does contain provisions to adjust the results
to account for the mass of water in the volatile por-
tion of a coating and while a specific methodology is
not specified in Method
24,
a similar adjustment for
negligibly—reactive compounds is also acceptable.
While an appropriate adjustment to the total VOC meas-
ured by Method 24
is possible
if only a few specifical—
126—247
20
ly—known exempt compounds are in the coating, this may
not be possible,
or may be much more difficult,
if the
coating contains a large number of exempt compounds
(or
the chemical species are not precisely known)
.
As a result, the proposed part 51 general definition of
VOC includes a provision that allows USEPA
or the
State to require a source
.
.
.,
as a precondition to
excluding these compounds for purposes of determining
compliance,
to provide monitoring methods and/or moni-
toring results demonstrating
.
.
.
the amount of negli-
gibly—reactive compounds in the source’s emissions.
56
Fed.
Reg.
11389
(Mar.
18,
1991)
USEPA continues in the Federal Register discussion of the Recom-
mended Policy revision:
Pending final action on the general definition of VOC
in 40 CFR 51
.
.
.,
the EPA will rely on today’s re-
vised policy in considering all future approvals or
promulgations of implementation plan provisions de-
signed to attain or maintain the NAAQS for ozone.
Based on this revised policy,
EPA anticipates that such
rulemaking actions will contain exemptions for these
and previously listed negligibly-reactive VOC’s.
.
W)here
a state proposes to allow an individual source
to use a test method for including negligibly—reactive
compounds that
is different from or not specified in
the approved SIP, such change must be submitted to EPA
for approval as a SIP revision.
56 Fed.
Reg.
11419
(Mar.
18,
1991).
Thus, not only must Illinois exempt the compounds in all
future SIP submittals, but
it also cannot take credit for reduc-
tions in their emissions,
and
it must be able to show that moni-
tored emissions and emissions reductions do not include the
exempted compounds.
Therefore,
the ability to require monitoring
in limited instances is integral to the federal scheme of regula-
tion.
In this context, the circumstances in which USEPA states it
may decide to require monitoring have greater clarity:
1.
when VOMs and exempt compounds are mixed together in
the emissions;
2.
when there is a large number——i.e., there
is a complex
mixture——of exempt compounds in the emissions; and
3.
when the chemical composition of the exempt compounds
in the emissions is not known.
126—248
21
There is a unity among these USEPA-cited circumstances that
manifests USEPAs intent far more lucidly than did any single
passage of the Federal Register discussions.
Each of these
situations
is one where interference with chemical analysis for
VOMs is possible using the USEPA-approved methods.
The Method 24
example cited by USEPA bolsters this conclusion.
The importance the Agency places on the asserted lack of
analytical methods for many of the exempt compounds
is slightly
misplaced.
It is not a cause for further delay.
Rather,
it is
cause to proceed.
Use of current USEPA methods to measure VOM
contents and emissions also measure exempt compounds.
The flaw
is in the USEPAmethods,
not in the lack of methods for analyzing
exempt compounds.
The search for methods to analyze exempt
compounds is actually
a quest
for accurate measurement of emis-
sions VON contents.
The Board does not desire to inaccurately
quantify VOM emissions and thereby burden Illinois industry with
unnecessary control of compounds that cannot be used for emis-
sions netting,
offsetting,
or trading.
See
56 Fed. Reg.
11388
(Mar.
18,
1991)
(citations omitted).
Flaws also become apparent in part of IERG’s position.
Monitoring
is not “the price that industry pays in order to have
these additional exemptions adopted by the Board.”
If industry
chooses to engage in operations that emit VOMs,
it must accurate—
~
monitor emissions of those environmental contaminants.
If
industry chooses to use exempt compounds
in such a way that
quantification of VON emissions
is not readily possible,
it must
provide some way of demonstrating its actual VON emissions.
This
is true even if the analytical method employed measures combined
VON and exempt compound emissions, and the owner or operator must
demonstrate the quantity of emissions of exempt compounds
in
order to prove its VON emissions.
The Board emphasizes:
~
object of monitoring is quantification of VOM emissions,
not
quantification of exempt compounds.
The text of the adopted rule attempts to make this point
more clearly than did that of the proposed rule.
The Board has
added limiting language that makes it clear that the Agency may
require monitoring for exempt compounds only where necessary to
quantify VON emissions.
The Board has further retained the three
situations discussed by USEPA as examples of when it may require
monitoring for exempt compounds.
Thus,
with the revised lan-
guage,
it is clear that the Agency does not have unfettered or
“unlimited” authority to require monitoring for exempt compounds.
The Board believes that this structure better embodies the re-
vised federal policy.
Scope of the Monitoring Requirement
The question remains as to what is USEPA’s intent as to the
126—249
22
extent of the monitoring.
Does the
USEPA
revised policy include
the previously-listed compounds
in the monitoring,
or will USEPA
require monitoring only for the five newly-listed compounds and
four newly-listed classes of compounds?
First, the Board notes the method USEPA used to revise its
policy:
it outlines only the changes, without reiterating the
existing policy.
USEPA published its “Policy Statement on Use of
the Concept of Photochemical Reactivity of Organic Compounds in
State Implementation Plans for Oxidant Control” on January 29,
1976.
41 Fed.
Reg. 5350
(Feb.
5,
1976).
USEPA published its
Recommended Policy on Control of Volatile Organic Compounds on
June 29,
1977,
42
Fed. Reg.
35314
(July 8,
1977).
In this Recom-
mended Policy, USEPA implemented the substitution-based-on—
reactivity concept of the earlier policy statement, by expressly
exempting four compounds from ozone SIP regulation based on their
low photochemical reactivity.
USEPA further clarified its policy
as to one of the initially-listed compounds on May 25,
1979,
44
Fed.
Reg.
32042
(June
4,
1979),
and.May
9,
1980.
45 Fed. Reg.
32424
(May 16,
1980).
On July 16,
1980, USEPA expanded the list
of exempt compounds and summarized the pre—existing policy.
45
Fed. Reg.
48941
(July 22,
1980).
USEPA did the same on January
5,
1989,
54
Fed.
Reg.
1987
(Jan.
18,
1989) and March
6,
1991,
56
Fed.
Reg.
11418
(Mar.
18,
1991), both times broadly summarizing
the entire policy and outlining the revisions.
In each instance
where USEPA initially implemented the Recommended Policy and
every time it revised it, USEPA does not reiterate the Policy in
its entirety.
Rather, each discussion
is limited to outlining
the prior action and elaboration of the change.
In this latest instance of revision, now the subject of this
proceeding,
USEPA broadly introduced the concept of monitoring
for exempt compounds where necessary to accurately gauge actual
VON emissions.
The first mention of the possibility of monitor-
ing immediately following this passage:
EPA interprets
its prior control of SIP’s that contain
measures to control VOC’s as not extending to the
compounds listed today.
.
.
.
Based on this revised
policy, EPA anticipates that all
state and federal SIP
revision
rulemaking actions will contain exemptions
for these and previously listed negligibly reactive
VOC’s.
.
56
Fed. Reg.
11419
(Mar.
18,
1991)
Thus, when USEPA introduced the possibility of monitoring,
it had
already shifted from consideration of the newly-added compounds
and classes of compounds to a general discussion of how it an-
ticipates its policy to work as to all compounds and classes of
compounds, both old and new.
Further,
in the initial elaboration
on monitoring,
USEPA introduced the full paragraph with the
126—250
23
words,
“In addition to the above procedures
.
.
.
,“
56 Fed. Reg.
11419
(Mar.
18,
1991), which indicate discussion independent of
the prior addition of new exempt compounds.
Nowhere in the ensuing discussion of monitoring is there any
mention of the new compounds or classes of compounds,
let alone
any limitation of monitoring only to them.
The only limitations
to monitoring that USEPA mentioned are those discussed above.
Based on the fact that monitoring on an as—needed basis is
an integral part of the entire federal Recommended Policy, the
Board must conclude that monitoring on an as—needed basis applies
to all newly-listed compounds and those previously on the list.
One other aspect of the purpose behind the monitoring bolsters
this conclusion:
the monitoring is intended only where necessary
to quantify non-exempt VOMs, not to quantify exempt compounds p~
~.
The previously—listed compounds can impose the same impedi-
ment to monitoring VOMs as can the newly-listed ones.
It makes
little sense to actuate this general purpose only as to the
newly—listed compounds and classes of compounds.
Existing Authority to Require Monitoring
Addressing the Agency’s and Allied-Signal’s contentions that
the Agency possesses authority to monitor the exempted compounds
as “organic material,” even if exempted from the Section 211.122
definition of “volatile organic material,” the Board disagrees
that any such authority would satisfy the USEPA Recommended
Policy.
35
Ill. Adm. Code 215.301 prohibits excessive emissions
of organic material5
(defined at Section 211.122
in such a way
that it includes the exempt compounds).
However,
a proviso to
that section states:
“If no odor nuisance exists the limitation
of this Subpart shall apply only to photochemically reactive
material.”
35 Ill.
Adm. Code 215.301; see
35
Ill. Adm.
Code
211.122
(definition of “photochemically reactive material”).
There
is no assurance that the exempted compounds are photochemi—
cally reactive materials.
Therefore, any authority to monitor
pursuant to provisions regarding the regulation of organic mater-
ials may not authorize monitoring exempt compounds in the way the
~
Most other substantive provisions of
35 Ill.
Adm. Code
215 specify “volatile organic material” emissions.
~
35
Ill.
Adm. Code 215.Subparts E,
F,
N,
P,
Q,
5,
T,
U,
V,
Y,
Z, AA,
BB,
PP,
QQ
& RR;
see also 35
Ill. Adm. Code 215.Subpart X
(specifying
emissions of “photo—chemically reactive material” from construc-
tion).
35
Ill. Adm. Code 215.Subpart K
is a general provision
that applies to the use of “organic material.”
See also 35
Ill.
Adm. Code 215.101
(clean-up and disposal operations);
35
Ill.
Adm. Code 2l5.Subpart B
(storage and loading operations);
35
Ill.
Adm. Code 2l5.Subpart C
(miscellaneous equipment);
35
Ill.
Adm.
Code 215.Subpart B
(petroleum refining and related industries)
126—25 1
24
USEPA Recommended Policy requires to determine VON emissions.
The subject of this rulemaking
is codification of that Policy,
nothing more and nothing less.
Conclusions re Monitoring.
As discussed above,
the Board interprets Section 9.1(e)
as
mandating that we adopt rules identical-in-substance to the USEPA
policy that exempts negligibly—reactive compounds——in a manner
that is identical in substance to the way USEPA chooses to imple-
ment that policy.
The Board further interprets the provision
referring to the 35
Ill. Adm. Code 211 definition of “volatile
organic material” as directing the Board as to how it should
implement that policy:
by excluding those exempted compounds
from definition as VOMs.
Contrary to IERG’s assertions,
the
Board does not believe that this segment of Section 9.1(e) pre-
cludes the Board from embodying portions of that policy in other
locations in its rules——so long as those compounds are no longer
considered VOMs on a basis that is identical-in-substance to that
used by USEPA,
and especially where restriction to amendment of
the Section 211.122 definition renders the Board’s basis for
exclusion fl.Q~identical-in—substance to that of USEPA.
Therefore,
the Board will adopt the federal monitoring
requirement.
The Board will use
a note to the general definition
of VON to alert the regulated community to the possibility of
monitoring, whether by the Agency or,
independently, by USEPA.
However, Part 211
is not the most likely location for an actual
rule that embodies the federal requirement and authorizes the
Agency to require monitoring on
a limited basis.
The Board
believes that the general provisions of Part 215
is the best
location for such
a rule.
Part 215 imposes the substantive
requirements for control of VOMs.
That Part indicates the ap-
plicability of its own rules and imposes on the regulated com-
munity,
among all else, monitoring and reporting requirements.
The Board believes that a new Section 215.108
is the best choice
for this new provision--even
if
it is part of
a federal policy
whose corpus lies at the Section 211.122 definition of “volatile
organic material.”
However,
in light of the comments received from the Agency
and IERG the Board believes it must more thoroughly outline the
conditions under which the Agency may impose monitoring.
The
Board intends that the monitoring occur only where necessary to
quantify actual VOM emissions.
We have revised the text of
proposed Section 215.108 to reflect this limitation.
Corrections to Text of the Proposed Rule
In the interest of cleaning up the present text of the
definition, the Board notes that the names of compounds listed in
the present definition appear in alphabetical order with one
126—252
25
exception:
Dichlorornethane.
This compound is out of order
because the Board amended the entry in R89-8
to use the IUPAC
name for Methylene Chloride,
the pre-existing entry.
In the
course of placing the instant five compounds in alphabetical
order, the Board also places Dichloromethane in the proper order.
PC#6,
from Allied Signal
Inc. observed that the Board under-
lined six compounds in the text of the proposed rule, and only
five new compounds are added to the list of those exempt.
one of
those cited by Allied-Signal as newly added is dichloromethane,
which is only re—listed as explained above.
The other compound,
cited as erroneously underlined, was trichlorotrifluoroethane
(CFC-1l3), when trifluoroethane
(HFC-143a)
should have appeared
underlined instead.
The Board corrects this error in response to
this comment.
Corrections of Errors in Unrelated Definitions
In PC#l,
the Secretary of State points out that under the
definition of “major population area” the definition includes
“Plato” Township.
There
is a Plano Township, but no township by
the name of “Plato.”
This Opinion and Order makes this correc-
tion.
Similarly, JCAR points out
in PC#2 that the text of certain
definitions was missing.
This raises a problem created in the
R89-16(A):
RACT Deficiencies proceeding, propagated in the R88-
30(B):
Gasoline Volatility proceeding,
and improperly corrected
in the R88-l4:
Pharmaceutical VON Emissions proceeding.
By this
Opinion and Order,
the Board makes the corrections cited by JCAR
and
a small number of others discovered upon detailed examination
of the definitions
in Section 211.122:
“Coating”:
Entire definition,
erroneously deleted from the
text of the rule filed in R88-30(B),
is restored.
“Component”:
Format of citation to
35 Ill.
Adm. Code 215.
Subpart
Q
corrected.
“Enclose”:
Format of citation to 35 Ill. Adm. Code 215.
Subpart T corrected.
“Excessive release”:
“and/or” changed to “or.”
“Fabric coating”:
Partial text of definition,
erroneously
deleted from the text of the rule filed in R88—30(B),
is restored.
“Miscellaneous metal parts and products”:
“-“
changed to
“through” in citation format for greater clarity.
“Miscellaneous organic chemical manufacturing process”:
126—253
26
Format of citation to 35
IlL
Adm.
Code
215.Appendix
D
corrected.
“Restricted area”:
Location of statutory citation changed.
“Sandblasting”:
“and/or” changed to “or.”
“Shotblasting”:
“and/or” changed to “or.”
“Vapor collection system”:
“and/or” changed to “or.”
“Vinyl coating”:
Partial text of definition,
erroneously
deleted from the text of the rule filed in R88—30(B),
is restored; spelling of
“organosol”
is corrected.
“Volatile organic material”:
Partial text of definition-—
i.e., definition of “volatile organic material con-
tent,” erroneously added as part of this definition in
the text of the rule filed in R89-l6(A), then subse-
quently improperly deleted from the text of the rule as
filed in R88-30(B),
is restored for proper deletion by
strikeout in this docket.
ORDER
The Board hereby proposes the following amendments to its
definition of volatile organic material at 35
Ill. .Adm.
Code
211.122 and new section 35
Ill. Adm. Code 215.108:
Section 211.122
Definitions
“Coating”:
For purposes of this Part,
a coating in-
cludes a material applied to a substrate for decora-
tive, protective or other functional purposes.
Such
material shall include but not ~limited
to paints,
varnishes,
sealers, adhesives,
diluents and thinners.
“Component”:
Any piece of equipment which has the
potential to leak volatile organic material including,
but not limited to, pump seals,
compressor seals,
seal
oil degassing vents, pipeline valves, pressure relief
devices, process drains and open ended valves.
This
definition excludes valves which are not externally
regulated,
flanges, and equipment in heavy liquid
service.
For purposes of 35
Ill.
Adm. Code 215.—
Subpart Q, this definition also excludes bleed ports of
gear pumps in polymer service.
126—254
27
“Enclose”:
with respect to 35
Ill. Adm.
Code 215.
Subpart
T, to cover any volatile organic liquid surface
that is exposed to the atmosphere.
“Excessive Release”:
A discharge of more than 295g
(0.65 pounds) of mercaptans and/or hydrogen sulfide
into the atmosphere in any five minute period.
“Fabric Coating”:
The coating of a textile substrate
including operations where the coating impregnates the
substrate.
“Major Population Area (MPA)”:
Areas of major popula-
tion concentration in Illinois,
as described below:
The area within the counties of Cook;
Lake;
DuPage; Will;
the townships of Burton, Richmond,
McHenry,
Greenwood, Nunda,
Door, Algonquin, Graf-
ton and the municipality of Woodstock, plus
a zone
extending two miles beyond the boundary of said
municipality located in McHenry County; the
townships of Dundee, Rutland,
Elgin, Pla~~o,St.
Charles,
Campton, Geneva, Blackberry,
Batavia,
Sugar Creek and Aurora located in Kane County; and
the municipalities of Kankakee, Bradley and Bour-
bonnais,
plus a zone extending two miles beyond
the boundaries of said municipalities in Kankakee
County.
The area within the municipalities of Rockford and
Loves Park, plus
a zone extending two miles beyond
the boundaries of said municipalities.
The area within the municipalities of Rock Island,
Moline, East Moline, Carbon Cliff, Milan,
Oak
Grove,
Silvis, Hampton, Greenwood and Coal Valley,
plus a zone extending two miles beyond the boun-
daries of said municipalities.
The area within the municipalities of Galesburg
and East Galesburg,
plus
a zone extending two
miles beyond the boundaries of said
municipalities.
126—255
28
The area within the municipalities of Bartonville,
Peoria and Peoria Heights, plus a zone extending
two miles beyond the boundaries of said
municipalities.
The area within the municipalities of Pekin, North
Pekin,
Marquette Heights,
Creve Coeur and East
Peoria,
plus
a zone extending two miles beyond the
boundaries of said municipalities.
The area within the municipalities of Bloomington
and Normal, plus a zone extending two miles beyond
the boundaries of said municipalities.
The area within the municipalities of Champaign,
Urbana and Savoy, plus a zone extending two miles
beyond the boundaries of said municipalities.
The area within the municipalities of Decatur, Mt.
Zion,
Harristown and Forsyth, plus a zone extend-
ing two miles beyond the boundaries of said
municipalities.
The area within the municipalities of Springfield,
Leland Grove,
Jerome,
Southern View,
Grandview,
Sherman and Chatham, plus
a zone extending two
miles beyond the boundaries of said
municipalities.
The area within the townships of Godfrey,
Foster,
Wood River,
Fort Russell, Chouteau, Edwardsville,
Venice, Nameoki, Alton,
Granite City and
Collinsville located in Madison County; and the
townships of Stites,
Canteen, Centreville,
Caseyville,
St.
Clair,
Sugar Loaf and Stookey
located in St. Clair County.
“Miscellaneous Metal Parts and Products”:
For the
purpose of 35
Ill.
Adm. Code 215.204, miscellaneous
metal parts and products shall include farm machinery,
garden machinery,
small appliances,
commercial
machinery,
industrial machinery,
fabricated metal
products and any other industrial category which coats
metal parts or products under the Standard Industrial
Classification Code for Major Groups
33,
34,
35,
36,
37,
38 or 39 with the exception of the following:
coating lines subject to 35
Ill. Adm. Code 215.204 (a)—
through
(i) and
(k),
automobile or light-duty truck
refinishing, the exterior of marine vessels and the
customized top coating of automobiles and trucks if
126—256
29
production is less than thirty-five vehicles per day.
“Miscellaneous Organic Chemical Manufacturing Process”:
A manufacturing process which produces by chemical
reaction,
one or more of the following organic
compounds or mixtures of organic compounds and
which
is capable of emitting volatile organic
materials:
Chemicals listed
in 35
Ill. Adm. Code 215.
Appendix D.
Chlorinated and sulfonated compounds
Cosmetic,
detergent,
soap or surfactant
intermediaries or specialties and products
Disinfectants
Food additives
Oil and petroleum product additives
Plasticizers
Resins or polymers
Rubber additives
Sweeteners
Varnishes
The storage and handling of formulations
associated with the process described above.
The use and handling of organic liquids and other
substances for clean—up operations associated with
the process described above.
“Restricted Area”:
The area within the boundaries of
any “municipality” as defined in the Illinois Municipal
Code
(ch.
24,
par 1-1-1
et seq.), plus a zone extending
one mile beyond the boundaries of any such municipality
having a population of 1000 or more according to the
latest federal census.
(ch.
24,
par 1-1
1 ct 3eq.)
126—257
30
“Sandblasting”:
The use of
a mixture of sand and air
at high pressures for cleaning and/or polishing any
type of surface.
“Shotblasting”:
The use of a mixture of any metallic
or non—metallic substance and air at high pressures for
cleaning and/or polishing any type of surface.
“Vapor Collection System”:
All piping,
seals, hoses,
connections, pressure-vacuum vents,
and other possible
sources between the gasoline delivery vessel and the
vapor processing unit and/or the storage tanks and
vapor holder.
“Vinyl Coating”:
The application of a topcoat or
printing to vinyl coated fabric or vinyl sheets;
provided, however, that the application of an
organ±Qsolor plastisol
is not vinyl coating.
“Volatile Organic Material” or “Volatile Organic
M-~1-r’rL-~i
(~rrni-~~r~t
(‘~7rmic”i”
th~~
~m
rirIr~
nf
vr~lr~ti1~
organic material which would result from thc exposure
of a coating, printing ink, fountain solution, tire
spray,
dry cleaning waste or othcr similar material to
thc air,
including any drying or curing,
in the absence
of any control cguipmcnt.
VOMC is typically exprcssed
as kilogram
(kg) VON/liter
(lb VON/gallon)
of coating
or coating solids,
or kg VON/kg
(lb VOM/lb)
of coating
material.
Any organic material which participates
in at-
mospheric photochemical reactions unless specifi—
cally exempted from this definition.
Volatile
organic material emissions shall be measured by
the reference methods specified under 40 CFR 60,
Appendix A
(1986)
(no future amendments or edi-
tions are included),
or,
if no reference method is
applicable,
may be determined by mass balance
calculations.
For purposes of this definition,
the following are
not volatile organic materials:
Chlorodifluoroethane
(HCFC-142b)
126—258
31
Chlorodifluoromethane
(CFC-22)
Chloropentafluoroethane
(CFC-1l5)
2—Chloro-1,l,l,2-tetrafluoroethane (HCFC—124)
Dichlorodifluoroniethane
(CFC-12)
Dichlorofluoroethane
(HCFC—l41b)
Dichloromethane (Methylene chloride)
Dichiorotetrafluoroethane
(CFC-114)
Dichlorotrifluoroethane
(HCFC-l23)
1, 1—Difluoroethane
(HFC—152a)
Ethane
Methane
fli~h1~~i-hnn~
(Mrtlwlpr,p
r~h1rn-idc~
Pentafluoroethane(HFC-125)
Tetrafluoroethane (HFC-134a)
1, 1,2
,
2-Tetrafluoroethane (HFC—13~
Trichloroethane
(Methyl chloroform)
Trichlorofluorornethane
(CFC—ll)
Trichlorotrifluoroethane
(CFC—1l3)
1,1,1-Trifluoroethane
(HFC-l43a)
Trifluoromethane. (FC-23)
and the following classes of compounds:
Cyclic, branched,
or linear, completely
fluorinated alkanes.
Cyclic, branched,
or linear, completely
fluorinated ethers with no unsatura—
tions.
Cyclic, branched,
or linear, completely
fluorinated tertiary amines with no
unsaturations.
Sulphur—containing perfluorocarbons with
no unsaturations and with sulfur bonds
only to carbon and fluorine.
BOARD NOTE:
USEPA or the Agency may
require monitoring to demonstrate the
amount of an exempted compound in a
source’s emissions on a case—by—case
basis as
a pre-condjtion to exemption of
that comPound under certain circumstan-
ces, such as where VOMs and exempted
compounds are mixed together, there are
a large number of exempted compounds,
or
the chemical composition of the exempted
comPounds is not known.
See
35
Ill.
Adm. Code 215.108;
56 Fed Beg.
11419—
20.
126—259
32
Section 215.108
Nonitorin~for Negligibly-Reactive Compounds
Any provision of 35
Ill. Adm. Code 211 notwithstanding,
the
Agency may require monitoring for any of the compounds
listed at
35
Ill. Adm. Code 211.122 as exempted from the definition of
“volatile organic material,” as
a precondition to such exemption
where direct quantification_of volatile organic material emis-
sions is not possible due to any of the following circumstances
which ma’ke
it necessary to quantify the exempt compound emissions
in order to quantify volatile organic material emissions:
~j
VOMs and exempted compounds are mixed together in the
same endssionsj
~j
There are a
~
enum1~er
of exempted compounds in the
same emissions;
or
gj
The chemical composition of the exempted compounds in
the emissions is not known.
The Board directs the Clerk of the Board to delay filing
these adopted amendments until
14 days after the date of this
Opinion and Order to allow time for the filing of supplemental
public comments by interested persons.
IT IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, do hereby certif
that the abo~O~p~nionand Order was
adopted on the
/~
day of
L~~L~c~)1991,
by a
vote of
7—o
.
I
Control Board
126—260
