ILLINOIS POLLUTION CONTROL BOARD

June 20,

1991

IN THE MATTER OF:

)

)

RACT DEFICIENCIES IN THE

)

METRO-EAST AREA:

AMENDMENTS

)

R91-8

TO

35

ILL.ADM.CODE PART 215

)

(Rulemaking)

AND

THE ADDITION OF PART 219

)

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

Backaround

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 Metro-East area.2

The

proposed

regulations

require

the

implementation

of

reasonably

available control technology (RACT) for certain sources of volatile

organic material

(VOl.1).

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

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

the Board

1

The Board wishes to acknowledge the extensive contributions

of attorney assistant Elizabeth Schroer Harvey to this complex and

expedited rulemaking.

2

The

Metro-East

area

is

defined

in

this

rulemaking

as

Madison, Monroe,

and

St.

Clair counties.

(See Section

219.100.)

---

2

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, IJSEPA 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

FIP

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 IndIstry

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

Reaulatory

Groul

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

FIP,

and that

these

proposed

rules

impose

no

further

requirements or restrictions than are included in the FIP.3

Public Comments

The Board received

a

number of public

comments during the

first notice

comment period

in this proceeding.

Comments were

filed by the Administrative Code Unit

(P.C.

#

1), the Department of

Commerce and Community Affairs

(P.C.# 2), IERG (P.C.#

3), and the

Agency (P.C.# 4.)

The Board has considered all of these comments,

as well as the testimony received at hearing.

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”

(MTE).

As originally proposed by

the Agency,

MTE

was defined as the quantity of VOM 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

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

FIP have obtained administrative stays of the FIP rules,

so that

the rules do not become effective as to them until September

1,

1991, or later.

---

3

definition

to

allow

a

limit

to

MTE

for

a particular

source by

imposing conditions in a federally enforceable operating permit.

(Section

219.104.)

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

NTE

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. II

at

16-7.)~

Representatives

of

industry objected to

a

specific

date.

In its motion to amend, the Agency proposed a change to the

compliance

and

applicability

sections.

(Sections

219.103

and

219.106.)

These

sections,

as amended, establish a May

15,

1992

compliance date.

Based on statements by the Agency and IERG, the

Board believes that this 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 219.980(a).)

Subpart TT already provided for a ~

minimis exemption where up to

5

tons per year of VON emissions need not comply with control

requirements.

(Section 219.980(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 required to perform

mandatory testing in order to certify compliance with the rules.

As amended,

the testing rules require compliance certifications,

with

test

data

included

in

the

compliance

demonstration

“as

‘~

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

appropriate”.

Where

the

Agency

determines

that

testing

is

necessary to show compliance,

the facility must test at

its own

expense.

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. Dumelle abstained.

I,

Dorothy N.

Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby

certify

that

the

ab

e

Supplemental

Opinion was

adopt~don the

~tZ

day of

________________,

1991,

by a vote

of

c~-~9

.

~,

~Dorothy

M. G~41n, Clerk

Illinois Pol~tion Control Board