ILLINOIS POLLUTION CONTROL BOARD
April 11,
1991
IN
THE
MATTER OF:
)
R91—1O
EXEMPTIONS FROM THE
)
(Identical
in Substance Rules)
DEFINITION OF VOM
)
PROPOSAL FOR PUBLIC COMMENT
PROPOSED OPINION AND ORDER OF THE BOARD
(by J. Anderson):
The Board hereby proposes to amend its rules
in response to
USEPA additions to the list of chemicals exempted from the
definition of volatile organic materials
(VOMs)1.
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.
This Proposal for Public Comment
is adopted pursuant to the
identical-in-substance mandate under Section 9.1(e)
of the
Environmental Protection Act,
Ill.
Rev.
Stat.
1989,
ch. 1ll~,
par.
1009.1(e).
Section 9.1(e) provides for quick adoption of
regulations which are “identical in substance” to certain
published federal policy statements and 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 revision to USEPA’s “Recommended Policy on the Control
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.
SUBMITTING
PUBLIC
COMMENTS
The
Board
will
submit
this
proposal
for
public
comment
in
the Illinois Register.
The statutory public comment period will
1
USEPA
consistently
designates
these
“volatile
organic
compounds1’ or “VOCs.”
Both designations refer to the same matter,
and all references in this Opinion and Order to “VON” refer to what
USEPA calls
“VOC.”
12 1—557
2
end 45 days after the date of publication in the Illinois
Register.
In the course of the following discussion,
the Board
invites comment on several specific aspects of this proposal.
It
is important that commenters make their submissions promptly and
directly to the Board,
so the Board can obtain the benefit of
their input.
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.
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
implementation
plans.
Those
compounds
are
as
follows:
1.
2-chloro-1,l,1,2—tetrafluoroethane
(HCFC-124)
2.
Pentafluoroethane
(HFC—l25)
3.
l,l,2,2-tetrafluoroethane
(HFC-134)
4.
1,1, 1-trifluoroethane
(HFC-143a)
5.
1,l-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
unsaturations
and
with
sulfur
bonds
only
to
carbon
and
fluorine.
121—558
3
Under
this
policy,
states
may
not
take
credit
for
controlling
these
compounds in their ozone state implementation plans.
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
definition of VOM as a regulation.
56 Fed. Reg.
at 11388
&
11419.
The federal revision of its recommended policy raises 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
authorizing 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.
Environmental Protection Agency to be exempt from
regulation 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. 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
i-nay
consolidate
into
a
single
rulemaking
under
this
subsection
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.
111~, par.
1009.1(e).
USEPA effected the revision to its recommended policy
statement
and
simultaneously
proposed
a
general
definition
of
“volatile
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.
121—559
4
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 withdrawal raises several issues,
including whether the Board
should proceed with adoption of this rulemaking.
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 compounds by future rulemakings, 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
invites comment
on these issues.
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
partially
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
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
commitments
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
stratospheric
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-l24) 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.
121—560
5
Reg.
at
11419.
However,
the
USEPA
policy
revision
raises
other
important
issues for the Board.
These relate to the balance between the
Board’s identical—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.
As
noted
below,
USEPA
is
free
to
deviate
from
it
and
impose
monitoring of emissions of the exempted compounds on a case—by-
case basis, although USEPA has no present intent to do so.
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
particular 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
development
purposes
that
would
exempt
all
of
the
compounds
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 reactivity 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
compliance,
to
provide
monitoring
methods
and/or
monitoring
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 emissions 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.
Reg. at 11419-20.
A
USEPA
footnote
on
this
section
in
the
Federal
Register
states
that
“in
any
situation
where
a
State
allows
a
source
to
exclude
121—561
6
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 emissions.”
56
Fed. Reg.
at 11419,
note
1.
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
monitoring
results
demonstrating
.
.
.
the
amount
of
negligibly-reactive
compounds
in
the
source’s
emissions.
56
Fed.
Reg.
at
11390.
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.
This raises the issue as to whether it is desireable for the
Board to include similar language in the text of its definition
of volatile organic material at 35 Ill.
Adm. Code 211.122.
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 codification.
~
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 policy on a case—by—case basis might require codification
under Illinois law.
If such codification of this case-by-case
reservation is desireable, 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 adopted?
The Board proposes language expressly reserving the Agency’s
prerogative to require monitoring under the conditions discussed
by USEPA.
The Board proposes incorporating this language in a
new Section 215.108, among the general provisions
of the Part of
the Board’s rules that regulates volatile organic emissions.
The
Board further incorporates into the proposed amendments to
Section 211.122 a Board note that references Section 215.108 and
the recommended policy statement
(or, alternatively,
40 CFR
121—562
7
51.100(s)
if this rule is adopted by USEPA) wherein USEPA
reserves the right
in itself to require monitoring of exempted
compounds as a precondition to exemption.
In including an express authorization for the Agency to
require monitoring for the exempted compounds among the general
provisions of Part 215 for the purposes of public comment, the
Board raises two issues relating to its identical—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
Section 9.1(e)
authorize the Board to adopt an amendment to Part
215 that would embody the USEPA reservations?
Third, assuming
the Board should include the express reservation, should that
reservation take the form of the conditions outlined in USEPA’s
discussion
of the situations in which it might require
monitoring?
The Board’s approach in drafting this 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 situations could cause USEPA to impose monitoring for the
exempted compounds.
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?
The Board
invites comment on these issues.
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
exception:
Dichloromethane.
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.
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
“Volatile Organic Material” or “Volatile Organic
Material Content (VONC)”:
the emissions of volatile
organic material which would result from
the
exposure
of a coating, printing ink, fountain solution, tire
spray, dry cleaning waste or other similar material to
121—563
8
the air, including any drying or curing,
in the absence
of any control equipment.
VOMC is typically expressed
as kilogram
(kg) VOM/liter
(lb VON/gallon)
of coating
or coating solids,
or kg VON/kg
(lb VOM/ib)
of coating
material.
Any organic material which participates in
atmospheric photochemical reactions unless
specifically 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 editions 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)
Chiorodifluoromethane
(CFC-22)
Chloropentafluoroethane (CFC-1l5)
2—Chloro—1 ,1,1, 2-tetrafluoroethane (HCFC—l24)
Dichlorodifluoromethane (CFC-l2)
Dichlorofluoroethane
(HCFC-l4lb)
Dichloromethane
(Methylene chloride)
Dichiorotetrafluoroethane (CFC-1l4)
Dichlorotrifluoroethane (HCFC-l23)
1, 1-Difluoroethane
(HFC—152a)
Ethane
Methane
Dichioromethane
(Mcthylenc chloride)
Pentafluoroethane
(HFC-125)
Tetrafluoroethane
(HFC-l34a)
1,1,2,2—Tetrafluoroethane
(HFC-l34)
Trichloroethane
(Methyl chloroform)
Trichlorofluoromethane
(CFC-11)
Trichlorotrifluoroethane (CFC-113)
1,1,1-Trifluoroethane (HFC-l43a)
Trifluoromethane
(FC-23)
and the following classes of compounds:
Cyclic,
branched,
or linear, completely
~luorinated alkanes.
Cyclic, branched,
or linear, completely
fluorinated ethers with no
unsaturations.
Cyclic,
branched,
or linear~comp1e~~y
fluorinated tertiary amines with no
12 1—564
9
unsaturations.
Sulphur—containing perfluorocarbons with
no unsaturations and with sulfur bonds
only to carbon and fluorine.
BOARD NOTE:
USEPA or the Agency may
reguire monitoring to demonstrate the
amount of an exempted compound in
a
source’s emissions on a case—by—case
basis as a pre—condition to exemption of
that compound under certain
circumstances,
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
Reg. 11419—20.
121—565
10
Section 215.108
Monitoring for Negligibly-Reactive Compounds
~y
provision
of
Part 211 notwithstanding,
the Agency may require
monitoring
for any of the compounds listed at 35
Ill.
Adm. Code
211.122 as exempted from the definitioD of “volatile organic
material,” as a precondition to such exemption,
under any of the
following circumstances:
~j
Where VOMs and exempted compounds are mixed together in
the
same
emissions
ki
Where
there
are
a
large number of exempted compounds
in
the same emissions;
or
gj
Where the chemical composition of the exempted
compounds
in the emissions is not known.
IT IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
do
hereby
certif~j
thji
the above Order was
adopted
on
the
//~~
day
of
_____________,
1991,
by a vote of
________
~7o~i~1
~
/LI
Dorothy N.
9~(nn, C erk
Illinois
Pc~Ylution Control
Board
121—566
