ILLINOIS POLLUTION CONTROL BOARD

June 20,

1991

IN THE MATTER OF:

)

)

RACT DEFICIENCIES IN THE

)

CHICAGO AREA:

AMENDMENTS

)

R91-7

TO 35 ILL.ADM.CODE PART 215

)

(Rulemaking)

AND THE ADDITION OF PART

218

)

PROPOSED RULE.

SECOND NOTICE.

SUPPLEMENTAL OPINION OF THE

BOARD

(by J. Theodore Meyer):

On June 11, 1991, this Board proposed, for second notice, the

rules in this docket.

The Board issued an opinion setting forth

the

procedural

history

of

this

rulemaking,

and

ruled

on

the

Illinois Environmental Protection Agency’s (Agency) motion to amend

its proposal.

Because of the short time between the filing of the

Agency’s motion to amend its proposal and Board action,, the opinion

issued on June 11 did not respond to the public comments received

on

this

proposal.

The

Board

stated

that

it

would

issue

a

supplemental

opinion.

This

supplemental

opinion

will

briefly

discuss the background of the proposal and will respond to the

public comments.

For the procedural history of the proceeding and

the text of the

rules themselves,

see the June

11,

1991 second

notice opinion and order.1

Background

The Agency filed this regulatory proposal on January 17, 1991.

The proposal seeks to correct deficiencies identified by the United

States Environmental Protection Agency

(USEPA)

in Illinois’ state

implementation plan

(SIP)

for ozone

in the Chicago

area.2

The

proposed

regulations

require

the

implementation

of

reasonably

available control technology (RACT) for certain sources of volatile

organic material (VOM).

Section 182(a) (2) (A) of the federal Clean

Air Act

(CAA),

as amended

in

1990,

requires

states

to

submit

corrections to its RACT rules to USEPA by May 15, 1991.

(The Board

once again points out that it was prepared to proceed to emergency

rulemaking in order to meet the May 15 deadline.

However, on the

~The Board wishes to acknowledge the extensive contributions

of attorney assistant Elizabeth Schroer Harvey to this complex and

expedited rulemaking.

2

The Chicago area

is defined

in this rulemaking

as

Cook,

DuPage,

Kane,

Lake,

McHenry,

and Will

counties.

(See Section

218.100.)

---

2

motion of the Agency, with support from IERG and USEPA, the Board

suspended its consideration of the rules as emergency rules.

See

the June 11, 1991 second notice opinion and order.)

Illinois needs

to make corrections to its RACT rules because the Illinois ozone

SIP was disapproved by USEPA on

September 30,

1988.

(Ex.

J.)

USEPA had notified Illinois of deficiencies in the SIP by letters

dated May

26,

1988 and June

17,

1988.

(Ex.

A

and

B.)

This

rulemaking

will

fulfill the

CAA

requirement that Illinois submit

RACT

corrections.

On June 29,

1990, USEPA promulgated a federal implementation

plan

(FIP)

pursuant to Section 110(c)

of the

CAA

and a settlement

agreement entered in Wisconsin v. Reilly, No. 87—C--0395

(U.S. Dist.

Ct., E.D. Wis.).

(55 Fed.Reg. 26814

(June 29, 1990); Ex.

E.)

The

Fl?

contains

regulations

imposing

RACT on

VOM

sources

in

the

Chicago

area.

Several

industry

groups,

such

as

the

Illinois

Environmental Regulatory Group (IERG) and the Printing Inthistry of

Illinois/Indiana (Printing Industry), as well as several individual

industries,

filed appeals of the FIP~in

the

United States Circuit

Court

of

Appeals

for

the

Seventh

Circuit.

(See

Illinois

Environmental

Regulatory

Group

v.

USEPA,

No.

90-2778

(and

consolidated

cases)

(7th

Cir.).)

The Agency contended in

its

statement

of

reasons

in

support

of

this

proposal

that

these

proposed rules are substantively identical to the rules contained

in the

Fl?,

and

that

these proposed

rules

impose

no

further

requirements or restrictions than are included in the Fl?.

Because

the FIP has

a

compliance deadline

of July

1,

1991

for covered

sources

in the

Chicago

area,

the Agency

maintained

that these

proposed rules have no further economic or technological effect on

covered sources.3

Public Comments

The Board received a

number of public

comments during the

first

notice

comment period

in this proceeding.

Comments were

filed

by

Alusuisse

Flexible

Packaging,

Inc.

(P.C.#

2),

the

Administrative Code Unit

(P.C.

4t

3), Riverside Laboratories

(P.C.

#

4 and 10), the City of Chicago (P.C. #5),

the

Department of Commerce

and Community Affairs (P.C.# 6), IERG (P.C.# 7), the Department of

Energy and Natural Resources (P.C.#

1 and 8), the Agency (P.C.# 9),

Viskase Corporation

(P.C.#

11), the Printing Industry

and R.R.

Donnelley & Sons, Inc.

(P.C.# 12), Duo—Fast Corporation (P.C.# 13),

Alisteel Incorporated (P.C.# 14), Stepan Company (P.C.# 15), USEPA

(P.C.

#

16),

and Ford Motor Company

(P.C.

#

17).

The Board has

considered all of these comments, as well as the testimony received

at hearing.

~ Several of the appellants in the federal court appeal of the

FIP have obtained administrative stays of the Fl? rules,

so that

the rules do not become effective as to them until September

1,

1991, or later.

---

3

Several of the major areas

of dispute have apparently been

resolved during negotiations between USEPA, the Agency,

and IERG.

These resolutions are reflected in the Agency’s June

3 motion to

amend

its proposal.

(The Board granted that motion to amend on

June

11,

and the rules proposed for second notice reflect those

amendments.)

One of the areas of controversy had been the area of

“maximum theoretical emissions”

(lifE).

As originally proposed by

the Agency,

MTE

was defined as the quantity of VON emissions which

could theoretically be emitted by a source based on the design or

maximum production capacity of the source and 8760 hours per year

of

operation.

The

Agency

subsequently

amended

that

proposed

definition

to allow

a

limit

to

MTE

for a particular source by

imposing conditions in a federally enforceable operating permit.

(Section

218.104.)

USEPA

does

not

currently

recognize

air

operating permits issued by the Agency as federally enforceable.

However, the Agency stated that the changes in the definition of

MTE

and the addition of a definition of “rolling limit” are steps

towards ensuring the federal enforceability of operating permits.

Additionally,

the Agency

has committed to taking

other actions

outside of this rulemaking to meet federal requirements to have

Illinois’

operating

permit

system

recognized

as

federally

enforceable.

Until USEPA finally determines that Illinois permits

are federally enforceable, permittees can limit the applicability

of

lifE through established Board practices of adjusted standards

or site-specific rulemakings, followed by a SIP revision.

Another area of great controversy at hearing and in comments

involved the question of when compliance with these rules would be

required.

The original Agency proposal tied the compliance date

of the rules to final action in the federal court appeal of the

FIP.

However,

at

hearing

a

representative

of

USEPA,

Stephen

Rothblatt,

stated

that

while

he

believed

that

the

rules~are

generally federally approvable,

the compliance and applicability

provisions must

include specific

dates,

independent of

federal

court action, when compliance with the rules is required.

(Tr.

I

at

27-8.)~

Representatives

of

industry objected to

a

specific

date.

For example, IERG commented that if the rules are adopted

by the Board with

a compliance date certain,

and the rules

are

approved by USEPA,

the Fl? would no longer be necessary.

IERG

contended that if USEPA then decided to withdraw the FIP rules, the

federal court challenges to those rules would be mooted.

IERG thus

maintained that Board action

in setting a specific date certain

would deprive IERG and the other federal court petitioners of their

right to litigate their positions.

(P.C.# 7.)

In its motion to amend,

the Agency proposed a change to the

‘

The

transcript

of

the

April

10,

1991

hearing

will

be

designated

“Tr.

I”,

and

the

transcript

of the April

15,

1991

hearing will be indicated by “Tr.

II”.

---

4

compliance

and

applicability

sections.

(Sections

218.103

and

218.106.)

These sections,

as amended, establish a July

1,

1991

compliance

date.

(The Fl? also requires compliance on July

1.)

There are several exceptions to that July

1 date,

however.

The

rules require compliance on September 1,

1991 for all appellants,

including

the

members

of

appellants

which

are

associations,

involved in the federal court Fl? appeal.

That September

1 date

is a result of an administrative stay of the Fl? rules granted to

the appellants by USEPA.

(Tr. I at 37—9; P.C.# 16.)

Additionally,

the effectiveness of the rules as to any appellant is stayed to the

extent

that

an

individual

source

or

category

of

sources

has

received a stay of the Fl? from USEPA or the federal court.

There

are several individual sources which have received such stays from

USEPA.

Finally,

these rules do not apply to Viskase,

Allsteel,

Stepan,

or Ford to the extent that these sources have previously

obtained an adjusted standard from the Board or an exclusion from

the Illinois General Assembly for any subpart of Part 218 or

Part

215.

The

Board

accepted

these

proposed

changes.

Based

on

statements by the Agency and IERG,

the Board believes that these

changes will address the compliance and applicability problems.

The Agency’s suggested amendments also included changes to the

non—CTG

rule

in Subpart

TT

for

“other”

emission sources.

As

amended, Subpart TT does not apply to operations for which a permit

is not required by 35 Ill.Adin.Code 201.146.

(Section 218.980(a).)

Subpart TT already provided for a ~g minimis exemption where up to

5

tons per year of VON emissions need not comply with control

requirements.

(Section 218.980(c).)

A number of specific industry

categories are also exempted from Subpart TT.

The Agency also suggested changes to testing requirements for

non—CTG categorical sources covered by Subparts PP,

QQ,

RR, and TT.

As originally proposed, sources would have been requi~redto perform

mandatory testing in order to certify compliance with the rules.

The Agency agreed, however, that “mandatory testing for the variety

of emission sources conglomejated under the

generic

rule, many of

which are individually quite small,

is expensive and burdensome.”

(Motion to amend at

8.)

As amended, the testing rules

require

compliance

certifications,

with

test

data

included

in

the

compliance

demonstration

“as

appropriate”.

Where

the

Agency

determines

that

testing

is

necessary

to

show

compliance,

the

facility must test at its own expense.

The Board once again points out that these proposed rules are

identical in effect to the rules promulgated by.USEPA in the Fl?.

Because

those

Fl?

rules

become

effective

on

July

1,

1991,

regardless of what action is taken by the Board in this rulemaking,

industries in the Chicago area will be required to comply with the

rules as of July

1.

Thus,

the Board finds that its proposal of

these rules,

and the expected subsequent adoption of the rules,

impose no further requirements on covered sources in the Chicago

area.

Thus,

these rules themselves have no economic effect, and

---

5

therefore are economically reasonable.

Finally,

the

Board

again

points

out

that

the

procedural

history of this proceeding and the text of the rules are contained

in the June 11,

1991 second notice opinion and order.

J.D. Duinelle abstained.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby

certify that the

a

e

Supplemental

Opinion was

adopted on the

~

day of

________________,

1991, by

a vote

of

~—o

.

£76~~27ih

/j~I

Dorothy N. G)z~n, Clerk

Illinois Pollx(tion Control Board