ILLINOIS POLLUTION CONTROL BOARD

May 10,

1990

IN THE MATTER OF:

RACT DEFICIENCIES

-

)

R89—16,

Subdocket

(A)

AMENDMENTS TO 35

ILL. ADM.

)

(Rulemaking)

CODE PARTS 211 AND 215

ADOPTED RULE.

FINAL ORDER.

OPINION

AND

ORDER OF THE BOARD

(by J .D. Dumelle):

This matter comes before the Board upon

a September

29,

1989

proposal

for amendments

to

35

Ill.

Adm. Code

201,

211,

and 215

filed by~the Illinois Environmental Protecrion Agency

(Agency)

.

The Board proposed first notice on October

5,

1989,

and the proposal was officially published

in the Illinois

Register on October

20 and

27,

1989

at

13

Ill.

Req.

16285 and

16645.

A total

of five days

of public hearing were held——

December

7 and 8,

1989

in Springfield,

Illinois, December

14 and

15,

1989 and January

19,

1990

in Chicago,

Illinois.

Post—hearing

comments were scheduled

to

be filed on February

9,

1990.

Based

upon the record of R89-6

Subdocket

(A) compiled to date,

the

Board proceeded

to second notice on March

16,

1990,

on

a select

portion of the first

notice proposal.

Thereafter

the rule was

submitted to the Joint Committee On Administrative Rules

(“JCAR”).

JCAR reviewed the rule at its May

8,

1990 meeting and

issued a Certificate of No Objection.

The Board notes

that

certain non—substantive language clarifications were made

in

response to JCAR staff suggestions,

as

well as changes

to reflect

language on file with the Secretary of

State’s Administrative

Code Unit.

The remainder

of the R89-16(A)

proposal,

i.e.,

that

which was not proposed for second notice,

was transferred

to the

subdocket

(B) proposal created

by Board Order

of February

8,

1990.

As

is the Board’s custom,

this final opinion will

set forth

the Board’s discussion

of the issues that were included

in the

first

and second notice opinions.

BAtKGROUND

The Board wishes

to acknowledge

the contributions of

former

attorney assistant Daniel

L.

Siegfried to

the drafting

of

these

rules and the supporting opinion.

*The Board notes

that Deborah Stonich,

new Assistant

to

Board Member

J.

Anderson,

earlier appeared

on behalf of

the

Agency in this proceeding.

Ms. Stonich

has not participated

in

the Board’s deliberations

on this proceeding whatsoever.

111—265

---

—2—

This rulemaking proceeding has its inception,

in part,

in

the settlement agreement submitted

to resolve the lawsuit of

Wisconsin

v. Reilly.

As part

of that submittal,

the State of

Illinois agreed that

it would submit

to the United States

Environmental Protection Agency

(USEPA)

“some

or all

of the

reasonably available control technology

(RACT)

rules and RACT

rule improvements specified

for Illinois

in Exhibit

B,’ which

exhibit includes

a listing

of deficiencies

in the State

Implementation Plan

(SIP).

For its part

in the settlement agreement,

USEPA agreed:

to propose as federal measures RACT rules

in

accordance with an EPA docunent dated May

25,

1988 entitled “Issues Relating

to VOC

Regulation Cutpoints,

Deficiencies, and

Deviations, Clarification To Appendix

t) of

November

24,

1987

Federa

Renister notice

(“Bluebook”)

for Illinois

to

remedy the

deficiencies described

in

Exhibit

B,

by

December

31,

1989 and consistent

;iith federal

laws

(including

the Administrative Procedure

Act),

to promulgate

rules by

the following

dates:

(i) March

18,

1990,

~or rules

that

Illinois fails

to submit

to the Illinois

Pollution Control Board by September

30,

1989,

and for rules

for which,

by December

31,

1989,

Illinois has failed

to meet any one

of the interim milestones specified in

Exhibit

C;

or

(ii)

six months after any 1990

interim milestone specified

in Exhibit

C that

Illinois has failed to meet,

but

in no event

later than December

31,

1990.

(Settlement

Agreement,

p.

13).

Exhibit

C,

referred

to under USEPA’s agreement,

states

in

its

entirety as

follows:

EXHIBIT

C

Action

Deadline

Illinois EPA proposals filed

9—30—89

Illinois Pollution Control Board

decides EcIS question and

publishes

first notice

12—22—89

Pollution Control Board holds

hearing and publishes second

notice

3—16—90

JCAR completes action and PCB

111—266

---

—3—

adopts final rule

5—25—90

As previously

noted,

the Agency filed its proposal on

September

29,

1989,

thereby satisfying the first

“milestone”

date

of Exhibit

C.

In its proposal,

the Agency certified that the

proposed amendments meet the “required rule” definition contained

in Section

28.2 of

the Environmental Protection Act

(Act),

thereby invoking the Section

28.2 rulemaking process.

The Board

notes that this

is one of the first rulemaking proceedings

in

which the Section

28.2

rulemaking process has been invoked.

As

a

result, many of the issues presented herein are of

first

impression.

On October

5,

1989,

the Board adopted the Agency’s proposal

for first notice.

Without addressing

the substantive merits of

the proposal,

the Board proceeded to first notice simply

to begin

the Administrative Procedure Act

(APA)

rulemaking process.

The

Board noted

that previously unregulated sources might

be affected

and took

its action to effectuate

first notice publication

in the

Illinois Register

to alert

the potentially regulated community

to

the existence of

this proceeding

so that comments could

be timely

made.

Also,

while Illinois had in

no way whatsoever committed

in

the settlement agreement

to

be bound by the rulemaking schedule

set forth in Exhibit

C,

the Board stated that

it would handle the

proceeding

on an expedited basis.

Further,

on October

27,

1989,

the Board decided

that an

Economic

Impact Study

(EcIS)

need not

be prepared,

thereby

satisfying

the second “milestone” date of Exhibit

C.

The Board’s

discussion of

the EcIS issue

is

set forth

in the Order of

that

date and will

not

be restated here.

As

a general overview of the

Board’s

reasoning,

the Board stated its belief that there would

be ample potential

for consideration of

the economic

impact

absent the preparation

of the EcIS.

The Board noted that four

days of hearing had been scheduled and that additional days could

be scheduled as

needed thereafter.

Further,

in response

to an

Agency assertion that

there ~as

a very

limited degree

to which

the Board could modify the proposal because

of its “required”

nature,

the Board specifically

noted

the

issue of

the interplay

between Sections

28.2 and

27

of the Act and requested comment

thereon.

On March

16, 1990 the

third “milestone” date was met when

the Board proceeded

to second notice with portions of the

proposal.

The Board did not proceed ~iithportions

of the

proposal which were not supported by economic information

in the

Record of this proceeding

or that

the Board did not find were

“federally

required”,

The Board,

by adopting

this Final Opinion and Order,

will

meet the fourth “milestone” date

set forth by

the USEPA

in

Exhibit

C.

11 1—267

---

—4—

REQUIRED

RULEMAKING

PROCEDURES

As previously noted,

the Agency certified that the proposed

amendments meet the “required

rule” definition

of Section

28.2 of

the Act,

thereby invoking the expedited Section 28.2 rulemaking

process.

Section

28.2 provides:

a.

For the purposes of this Section,

“required

rule” means a rule that

is needed

to meet

the

requirements

of the federalClean

Water Act,

Safe Drinking Water Act, Clean Air Act

(including required submission

of a state

Implementation Plan),

or Resource

Conservation and Recovery Act,

other than

a

rule

required to

be adopted under

subsection

(c)

of Section

13, Section

13.3, Section

17.5,

subsection

(a)

or

(d)

of Section 22.4,

or

subsection

(a)

of

Section

22.7.

b.

Whenever

a

required rule

is needed,

the Board

shall adopt

a

rule which fully meets

the

applicable federal

law,

and which

is not

inconsistent with any substantive

environmental standard or prohibition which

is specifically and completely contained and

fully set forth within any Illinois statute,

except as authorized

by this Act.

In

determining whether the rule fully meets

the

applicable

federal

law,

the Board

shall

consider all relevant evidence

in the record.

c.

Within

21 days of

the date that the Board

accepts

for hearing

a proposal for

a required

rule, any person may request

the Board to

determine

that an economic impact study

should be prepared or

that an economic impact

study should not

be prepared.

Such request

shall

be made

to the Board

in writing and

shall detail

the reasons

for the request.

To

aid the Board

in determining whether

an

economic

impact;

study

is needed,

the person

filing

a request

that

an economic study be

prepared or requesting

that an economic study

not be prepared shall describe

to the extent

reasonably practicable the universe of

affected sources and facilities and the

economic impact

of the proposed required

rule.

Within 60 days

of the date that the Board

accepts

for hearing

a proposal for

a required

111—268

---

—5—

rule,

the Board shall determine whether an

economic impact study should be conducted.

The Board

shall

reach

its decision based

on

its assessment

of

the potential economic

impact

of the

rule,

the potential

for

consideration

of

the economic impact absent

such

a study,

the extent,

if any,

to which

the Board

is free under the statute

authorizing the rule to modify the substance

of the rule based upon the conclusions of

such

a study, and any other considerations

the Board deems appropriate.

The Board may

identify specific

issues to be addressed

in

the study.

d.

If the Board determines

that an economic

impact

study

is necessary,

the Department.

shall prepare an

economic impact study

in

accordance with

“An Act

in relation

to

natural resources,

research, data collection

and environmental studies:,

approved July

14,

1978,

as amended.

The economic

impact study

shall

be prepared within

6 months

of the date

of the Board’s decision that an economic

impact study should be conducted.

If the

economic impact study

is not submitted

to the

Board within that

6 month period,

the Board

may proceed to adopt

a required rule without

an economic

impact study.

If the Board

notifies the Department

that

it will proceed

to adopt

a required

rule without an economic

impact study,

the Department

need not

complete the economic impact study.

To the

extent possible consistent with

subsection

(b),

the Board shall conduct

a hearing on the

economic impact

of the proposed required

rule.

During the course

of

this proceeding,

three fundamental

issues have arisen:

(1)

Is

the Agency certification reviewable?

(2)

Is economic reasonableness and technical

feasibility

considered

in a Section

28.2 rulemaking? and

(3) What

is the

applicable

federal law that the Board’s

rulemaking must fully

meet?

(1)

Agency

Certification

On February

8,

1990,

the Board adopted an Order

in response

to

a motion filed by

the “Industry Group”

to dismiss

or

sever the

proposed changes

to the Generic and SOCM: Leaks rules.

The Board

found

that the proposed amendments

to the Generic Rule and the

SOCMI

Leaks,

rules are not founded upon “federal

law”, granted

111—269

---

—6—

the motion to sever,

and created

a subdocket

(B)

in which to

address those proposed amendments under Section

28 of

the Act.

In its motion,

the Industry Group requested the Board

to

dismiss or

sever from the docket that portion of

the docket which

consists of proposed changes

to the Generic Rule,

(specifically

35

Ill. Adm.

Code

215,

Subparts AA,

PP, QQ, and RR) and proposed

changes

to one

of the rules governing the emissions from the

synthetic organic chemical and polymer manufacturing industry,

(specifically

35

Ill. Adm. Code 215.432,

hereinafter the

“SOCMI

rule”)

In support

of

its request,

the Industry Group argued that

the Agency incorrectly certified its proposed amendments as

“federally required” and,

thus,

the amendments were improperly

proposed pursuant

to Section

28.2 of

the Act.

The Industry •Group

argued that unlike the other

rules proposed

in this docket,

the

USEPA had not disapproved

the Board’s existing Generic Rule

or

the SOCMI

rule, and

that

the Agency’s proposed

rules would not

become federally required until

such time as USEPA takes

final

action on the existing rules.

Further, neither

of

these sets of

rules were mentioned

in the State Implementation Plan call

letter

dated June

17,

1988

(SIP call letter).

The Industry Group pointed out

that

in the Agency’s

Certification of

the

rules as federally

required,

the Agency

noted

that the Generic rule changes and the SOCMI.rule changes

were not based upon deficiencies identified by USEPA in the SIP

call letter,

but rather were identified subsequently.

The

Industry Group argued that

the justification documents provided

to the Board to support the required nature of those changes did

not support the proposition that

those are in fact federally

required rules.

With regard

to the Generic Rule,

the Industry

Group pointed out that

the support provided consists of

a

document

by a “mid—level”

USEPA employee

to his supervisor

stating that he believed that the Illinois Generic Rule was

insufficient.

The Industry Group argued that tJSEPA had not

issued

a SIP call

letter

on the Generic

Rule,

nor had USEPA

disapproved the rule, which had been submitted

to USEPA for SIP

approval.

With

regard

to the SOCMI

rule,

the Industry Group

states that the Agency had offered as sup~ortsimply the Control

Technique Guidelines (CG)

for

SOCMI.

The Industry Group argues

that “as the Board and Agency are

no doubt aware,

the mere fact

that the Illinois

rule deviates from the CTG does not mean that

the Illinois

rule

is deficient.”

The Industry Group next argued that

the additional

support

that the Agency had provided during

the course of

this proceeding

(i.e.,

(1)

the

“Blue Book”,

(2)

a Federal

letter,

and

(3)

the

settlement

agreement)

was insufficient

to support

the required

rule status.

With respect

to the Blue Bock,

the Industry Group

argued:

111—270

---

—7—

The

“Blue Book”

is a USEPA document which was

intended to provide

“additional clarification

of those areas” where SIP deficiencies were

found.

***

The document

itself states that

the clarification neither expands nor

modifies existing federal

regulatory

requirements, but enhances previous

information provided.

With regard to SOCMI,

for example,

“The Blue Book” simply states,

“inaccessible valves are required to be

monitored at

least annually.

***

“The Blue

Book” does not expand on this provision nor

does

it give any justification for the

necessity of this provision.

Further,

the

Industry Group

subit

ts that

no deficiency

in

the Illinois SOCMI Leaks Rule has been

finally determined by USEPA,

thus making the

Blue Book inapplicable.

IERG would submit

that the mere reference

to this

rule

in “The

Blue Book” does not support

the proposition

that

this rule change

is required.

(Industry Group Motion, p.2)

The “Federal letter,”

also used as

justification for the

required nature of these rules,

is

a letter dated September

28,

1989 from USEPA which constitutes USEPA’s review of the

regulations which the Agency subsequently proposed in this

docket.

The Industry Group stated that

it believes that this

letter was solicited

by the

Agency from USEPA to justify

these

rule changes.

The Industry Group argued that while this letter

states that the rule changes being proposed are federally

required,

this letter

is neither

a SIP call letter nor the

disapproval of

the present Illinois Generic

rule or

SOCMI

rule.

The settlement agreement,

also relied upon as justification

for

the required nature of

these

rules,

is an agreement entered

into between

the State of Wisconsin,

USEPA,

and the State of

Illinois,

which settled

the law suit brought

by the State of

Wisconsin against USEPA claiming that USEPA had not acted

in

accordance with the Clean Air Act

in regard to the Illinois

SIP.

In the settlement agreement,

fifteen outstanding

Illinois

volatile organic compound deficiencies were listed,

including

deficiencies

in

the SOCMI rule and the Generic

rule.

The

Industry Group believes that the mere fact

that

the deficiencies

were noted

in

a voluntary settlement

does not make these rules

required rules

for purposes of

Section

28.2

of the Act.

The

Industry Group argues

that:

If any time that USEPA entered

into

a

settlement agreement

or a voluntary agreement

of any sort which contemplated

rule changes,

111—271

---

—8—

when those

rules were proposed,

IEPA would

take the position that those rules are

required even though

they were the product

of

a voluntary negotiated settlement and not the

product

of either

a disapproval,

a SIP call

letter,

or any definitive,

final USEPA action

of that sort.

The Industry Group submits

that

in that way, any and all rules could

become required rules simply

by agreement.

(Industry Group Motion,

p.

3)

Finally,

the Industry Group noted that

in

a Federal Register

dated December

27,

1989, USEPA,

for the first

time, proposed

to

take Federal action regarding

the Illinois Generic

rule and the

SOCMI

rule by proposing

to disapprove the rules.

The Industry

Group argued that the mere proposal by USEPA

to disapprove these

rules was insufficient

to elevate

these

rules

to required rule

status for purposes

of this

rulemaking. The Industry Group argued

further

that

(1)

a proposal

to disapprove

is not final action,

(2)

such action

is not appealable,

and

(3)

it

is an open question

whether USEPA will ultimately

finally disapprove the

rules.

The Industry Group also commented

on other substantive

issues pending

in this docket,

i.e., whether economic

reasonableness and technical feasibility must

be considered

in

a

Section

28.2 rulemaking.

The Board addresses

that

issue below.

In its response

to the Industry Group motion,

the Agency

stated as follows:

(1)

The IEPA does not object

to creating a

separate docket

for

the Generic Rule and the

SOCMI Leaks

Rule.

However,

this separate

docketed proceeding

should be

in accordance

with Section

28.2

of the Act.

The IEPA

properly certified

these regulations as

federally required and the Board referenced

the certification

in

its First Notice Order,

dated October

5,

1989.

Therefore,

even

if

docketed separately,

the proceeding should

continue

to be

considered

a federally

required

rulemaking under Section

28.2 of the

Act.

(2)

The IEPA strongly objects

to the request

to dismiss

that portion

of the R89—16 docket

which consists of changes

to the Generic Rule

and the SOCMI Leaks Rule.

The IEPA has

repeatedly stated that these proposed

regulations are federally required rules

pursuant

to Section

28.2 of the Act.

111—272

---

—9—

This constitutes the entire substance of the Agency response to

the Industry Group’s motion.

The Board noted that this

is not the first

time

it has been

called upon

to determine whether proposed rules which have been

certified as

“required rules” by the Agency are

in fact required

rules

for purposes of proceeding pursuant

to Section

28.2

of the

Act.

The Board addressed similar issues

in R88—2l,

(Water Toxics

Control),

First Notice,

August

31,

1989,

wherein after

a review

of the federal law identified by the Agency,

the Board found that

the proposed rules were federally

required for purposes of

Section

28.2

of the Act.

When the Agency filed its proposal on

September

29,

1989,

the Agency certified that the proposed

amendments met the “required

rule” definition,

noted above.

In

the first

notice,

published October

27,

1989,

at

13

1.l.

Reg.

16645,

the Board referenced the Agency’s certification.

Publication of the first notice was effectuated within one month

of the date

the Agency filed its proposal.

Thus,

the procedural

provisions of

Section 28.2(e)

have been satisfied.

Now,

the regulated community has challenged the Agency’s

certification of a portion of these

rules as

“required rules.”

The Board noted that Section 28.2

is silent

on any methods or

procedures

by which

an Agency’s certification

is

to be

challenged.

It

is apparently the Agency’s position that such

silence

is

to be

interpreted as meaning

that there

is

no

challenge

to an Agency certification.

In other

words,

the Agency

apparently believed that once

it

certifies

a proposal

as

a

“required rule”,

the Section

28.2 rulemaking procedures

automatically apply and there

is

no review of this certification.

However,

the potentially

regulated community strenuously

opposed

that position.

The Board stated that

it believes that

the reason for such strong opposition,

at least

in this

proceeding,

is closely intertwined with the Agency’s articulated

position as

to the scope of a Section 28.2 rulemaking.

The

Agency’s interpretation of Section

28.2 seems

to

be that once

it

certifies

a

rule as

a “required

rule,”

the Board must adopt

a

rule without any consideration

of economic reasonableness

or

technical

feasibility.

Moreover,

the Agency has stressed

that

whatever

the Board adopts must

be

in “approvable form.”

The

Agency pointed to USEPA’s

filing

of September

29,

1989,

in which

David Kee,

Director of USEPA’s Air and Radiation Division,

stated

that

if the Agency’s proposed regulations were adopted by

the

Board, USEPA’s intent was

to approve

the regulations

as

a SIP

revision

in lieu of

federal promulgation.

Based upon this

statement,

the Agency stated

that the Board must adopt

the rules

as written,

or

threaten the approvability

of the SIP revision.

As

a preliminary matter on the issue of the Agency

certification,

the Board noted that

it had on February

8,

1990

111—27 3

---

—10—

proceeded

to Second Notice

in the Board Procedural Rules

rulemaking R88—5.

In that Second Notice,

the Board addressed the

issue of the reviewability of an Agency certification

in proposed

amendments

to 35 Ill.

Adm.

Code l02.Subpart

F.

Although those

proposed

rules are not yet effective,

the Board’s action of

February

8,

1990, was intended to be consistent with that

discussion.

The Board found

that,

although Section

28.2

is silent

on the

issue,

an Agency certification that

it believes

a proposed

rule

is a “required rule”

is an Aqency final

determination on the

issue and,

thus, pursuant

to Section

5(d)

of

the Act,

it

is

reviewable by the Board.

The Board believes that this

is

the

only possible interpretation of Section

28.2 that allows

it

to

be

read consistently with the remainder

of the Act.

Sections

5,

27,

and

28

of

the Act make

it quite clear

that the Board

is the

rulemaking body

in Illinois

for substantive regulations

that

implement

the various provisions

of the Environmental Protection

Act.

To allow the Agency unfettered discretion

in certifying

a

proposed rule as

a “required

rule” would give

to the Agency a

profound ability,

at

the outset,

to influence or pre—define

the

scope of what

is relevant evidence

in a

rulemaking proceeding.

The Board does not believe

that this was the intent of

the

General Assembly

in adopting Section

28.2.

Further,

the Board

notes generally that under the regulatory and enforcement scheme

created

by the Act,

the Board

is

the agency authorized

to review

the decisions

of the Agency.

Of what legal significance,

then,

is an Agency

certification?

The Agency certification

is the official

statement

that

it believes its proposed rule

is a required rule

and the formal identification

of the federal law to which the

Agency believes the proposed rule will respond.

As

such,

the

Board finds

that the certification

is simply the formal

prerequisite required

to invoke the Section

28.2 expedited

rulemaking procedure.

Further,

because the certification

requires

(1)

only the Agency’s

“belief” and

(2)

the specific

identification

of the federal law requiring

the proposed rule,

the Board

finds

that the Agency certification

is not entitled to

any deference or presumption

of correctness.

The Board,

as

the

State’s authorized rulemaking agency,

can independently verify,

based upon the record,

whether

or not the federal law relied upon

by the Agency actually requires the proposed rule and,

thus,

utilization of

the Section

28.2 process.

Having found the authority

to review certifications,

the

Board further found

that the proposed amendments

to the Generic

rule and the SOCMI

rule are not founded upon “federal

law”

as

that

term

is used

in Section

28.2 of

the Act.

The Board was

persuaded by the thorough analysis

submitted

in the Industry

Group motion, which

is discussed above.

The Board was also

persuaded by the lack

of analysis

in the Agency’s response.

The

111—274

---

—11—

Board can find nothing

in the record to directly support

the

characterization of

the Generic rule and SOCMI

rule proposed

amendments as

“required rules.”

As a result,

the Board

found

that those proposed sections must

be removed from the existing

docket.

Rather than dismissing

those portions of the proposal

outright,

the Board determined that the wisest course was

to open

up

a subdocket

(B)

in which

to consider

the amendments proposed

to the Generic

rule and the SOCMI

rule.

That which remained

of

the existing proposal and the record attendant thereto

shall

constitute R89—l6,

subdocket

(A).

The Board recognized

that

at first blush the order

of

February

8,

1990 may seem

to imperil certain portions of the

Wisconsin

v.

Reilly settlement agreement.

It does not.

The

relevant portion

of the settlement agreement

states “that

it

Illinois

will submit

to EPA

some or all

of

the reasonable

available control technology

(“RACT”)

rules and RACT rule

improvements specified

for Illinois

in Exhibit

B.”

(Emphasis

added).

(Settlement Agreement,

p.

12).

First,

it was entirely

up

to the Agency’s discretion which,

if

any,

of

the rules would

be proposed

to the Board to satisfy

this provision

of the

settlement

agreement.

As this was entirely

a discretionary

decision by the Agency and

as the Agency has not proposed all of

the rules specified in Exhibit

B,

removing the Generic

rule and

SOCMI rule portions will simply place them in the same position

as

the other

rules

the USEPA

is promulgating, and thus will not

offend the settlement

agreement.

Second,

the rules which

Illinois submits

to USEPA

must, be properly adopted under the

Environmental Protection Act and the Administrative Procedure

Act.

The Board does

not believe that the amendments proposed to

the Generic

rule and the SOCMI

rule will

be properly adopted

under Section

28.2,

and the Board wants all concerned

to

be aware

of

this determination

as

soon as possible.

Finally, today’s

Board action

in no way affects the federal rulemaking currently

pending——USEPA itself proposed on December

27,

1989,

all of the

RA~Trules and RACT rule improvements,

including the Generic and

SOCMI rules,

specified for Illinois

in Exhibit

B.

The federal

promulgation will continue,

at

its own pace,

without

regard

to

this action.

On March

15, 1990 the Agency filed

a motion

to reconsider

the Board’s

February

8,

1990 Order.

On April

4,

1990,

the Board

issued an Order

granting the Agency’s motion

to reconsider

but

declining

to grant the Agency relief.

In support

of

its motion,

the Agency argued that the Board erred

in deciding

(1)

that

it

possesses the authority

to review an Agency certification of

a

proposed rule as

“federally

req.uired” and

(2)

that the proposed

changes

to the Generic

rule and the SOCMI

rule are not “required”

within the meaning

of Section

28.2

of

the Act.

111—275

---

—12—

(1)

Agency Certification

The Agency argued that the Board does not have the authority

to review an Agency certification of

a proposed rule as

a

required rule pursuant

to Section 28.2 of

the Act.

First,

the

Agency stated that there

is

no specific grant

of authority to the

Board to reject and dismiss

the Agency certification.in a Section

28.2 proceeding and that the Board

is an administrative body

subject

to the statutory

rule that without

a specific grant

of

authority,

such authority does not exist.

Village of Lombard

v.

Pollution Control Board,

66 Ill.

2d 503,

363 N.E.2d 814,

6

Ill.

Dec.

867

(1977);

Illinois Power Company

v.

Illinois Pollution

Control Board,

137

Ill. App.

3d

449,

448 N.E.2d

898,

92

Ill.

Dec.

167

(4th Dist.

1985);

Chemetco,

Inc.

v.

:llinois Pollution

Control Board,

140

Ill. App,

3d

283,

488 N.E.2d

639,

94

Ill.

Dec.

640

(5th

Dist.

1986).

The Board does not disagree with these cited cases.

However,

the Board notes that the courts have also held that

where there

is an express grant

of

authority,

there is

likewise

the clear and express grant

of power

to do all that

is reasonably

necessary to execute

the power or perform the duty specifically

conferred.

Chemetco,

488 N.E.2d 639,

at

643.

As discussed

in

the Order of February

8,

1990,

under

Section

5 of the Act,

the

Board

is

the’ environmental rulemaking Agency for the State of

Illinois.

In other words,

the General Assembly has made an

express grant of

rulemaking authority

to the Board,

Along with

that express grant of

rulemaking authority goes the power

to do

all that

is

reasonably necessary to perform that duty.

The Board believes that,

in Section

28.2

rulemaking

proceedings,

reviewing the correctness of

the Agency’s

certification may

in certain instances

be

a reasonably necessary

step

in performing the duty of adopting

“a rule which fully meets

the applicable

federal law,...”.

Where,

as here,

(1)

the

federal

law to which the proposed rule is alleged to respond

is

of such

a

general nature and/or

(2)

the underlying subject matter

has been

the source

of controversy,

the Board must discern exactly what

is

required before

it can adopt

a rue

which fully meets

the

applicable

federal

law.

In other words,

discerning what

is

“required”

goes hand

in hand with adopting

a

rule which

fully

meets the applicable federal

law.

Thus,

to perform the duty of

adopting

a rule which fully meets the applicable

federal

law,

the

Board must

have the power

to determine what the requirements of

the applicable

federal

law are; and

if that differs from what

the

Agency certifies

as being

required,

the Board must have the power

to review the Agency certification for correctness.

The Agency next argued that the Board’s reliance upon

Section

5(d)

of

the Act

is misplaced.

Section

5(0)

states:

d.

The Board shall

have authority

to conduct

111-276

---

—13-

hearings upon complaints charging violations

of this Act

or

of regulations

thereunder,

upon

petitions

for variances;

upon petitions

for

review of

the Agency’s denial

of a permit

in

accordance with Title

X of this Act;

upon

petition

to remove

a seal under Section

34

of

this Act;

upon other petitions

for review of

final determination which are made pursuant

to

the Act or Board

rule and which involve

a

subject which

the Board

is authorized

to

regulate;

and such other hearings

as may

be

provided by

rule.

The Agency argued that the only basic grant

of authority

to

the Board

in Section

5(d)

is the authority to “conduct

hearings”.

The Agency stated that there

is

no decision—making

or

review authority granted

to the Board

in Section

5(d),

other

than

the authority to conduct

a hearing.

Further,

the Agency focuses

on the language “and ~which involve

a subject which

the Board

is

authorized

to

regulate”.

The Agency contended that the Agency,

certification was not

a subject which the Board

is authorized

to

regulate.

In its response,

IERG noted

that the Agency takes

the

position

that the Board does not have the authority

to review or

dismiss

a certification and that,

as

a result,

any rule the

Agency

so designates as a required rule automatically becomes

a

“required

rule”

within the meaning of

Section

28.2.

IERG argued

that should this contention prevail,

taken

to

its logical

extension,

the Agency could certify any proposed rule as

a

required rule and the Board would have

to

so treat

the rule,

regardless

of whether the Agency’s position

is with or without

merit.

IERG argued that this position

is without legitimate

basis.

Further,

IERG argued that Section

5(d) grants

to the

Board the authority

to review the Agency certification,

and

further

the Board has,

under

Section

5(b)

of

the Act,

general

powers

to make and implement rules.

It

is this broad grant of

rulemaking authority that

IERG relied upon

to support

its view

that the Board possesses

the authority

to review Agency

certifications.

The Board

r~ias

not persuaded

by the Agency on

this point.

First, with respect

to the Section 5(d)

grant

of authority to the

Board to

“conduct hearing”,

the Board believes that the Agency

construes this language much

too narrowly.

Implicit

in the grant

subject matter

of the hearing.

The Board construes

this

subsection

as a general

grant

of authority

to conduct hearings

and

to act

in ways

that reasonably flow from the holding of

such

a hearing.

In this proceeding,

the relevant language

is:

The Board shall have authority

to conduct hearings

.upon petitions for review of final

111—277

---

—14—

determinations which are made pursuant to the Act

or Board rule and which involve a subject which

the Board

is authorized

to regulate;...

The Board notes

that the Industry motion filed January

24, 1990,

constitutes

a petition for review of

a final determination of the

Agency made pursuant

to Section 29.2

of the Act.

With respect

to

the second part

of

this provision,

i.e.,

“and which involves

a

subject which the Board

is authorized to regulate”,

the Board

believes that,

there

too,

the Agency construes this language too

narrowly.

Whereas the Agency would construe the “subject”

as

being

the Agency certification separate and distinct from

anything else,

the Board construes the “subject”

as being

the

subject matter

of the proposed amendments,

i.e.,

requirements

of

the federal Clean Water Act,

Safe Drinking Water Act,

Clean Air

Act

(including required submission of

a State Implementation

Plan),

etc.

Clearly

the emission of air pollution

is

a subject

which

the Board is authorized

to regulate.

Thus,

the Board’s

reliance upon Section

5 of

the Act

is proper

to base the

authority

to review an Agency certification.

The Agency next stated that

is

is not asserting

that, under

Section

28.2,

the Agency certification

is beyond judicial

review.

The Agency contended

that after

the Board’s

final

decision, any participant with

a legitimate interest in the

outcome of the proceeding may appeal.

The Agency stated that

such an appeal could

raise

the

issue of whether

the proceeding

is

a required rule proceeding pursuant

to Section

28.2 of

the Act.

In its response,

IERG noted

that

in

an appeal from the

adoption

of an administrative

regulation,

the one who attacks the

regulation bears the burden

of establishing

its invalidity.

IERG

argued that a reviewing court may set aside

an administrative

regulation only

if

it

is

clearly arbitrary,

capricious,

or

unreasonable.

Midwest Petroleum Marketers Association

v.

City of

Chicago,

82

Ill. App.

3d

494,

402 N.E.2d 709 (ll.

App.

1980).

Further,

IERG argued that

issues which are not objected

to in

the

original administrative proceedings are waived and cannot

be

raised on appeal.

Waste Management

v.

Pollution Control

Board,

530 N.E.2d

682,

695,

125

Ill.

Dec.

524,

537

(Ill.

App.

2d

1988).

Thus,

IERG argued that

if the Board

is not permitted to

decide the issue

of whether

a

rule

is

a

required

rule pursuant

to

Section

28.2 of

the Act at

the administrative level,

the

Appellate Court cannot and will not decide that issue

on appeal.

On this point,

the Board agrees with IERG.

Notwithstanding

the Agency’s assertions,

the courts have been quite clear on the

issue.

Issues that have not been presented or passed upon

in

an

administrative hearing will not be considered on

review.

Village

of Cary

v.

Pollution Control Board,

38

Ill.

Dec.

68,

403 N.E.2d

83,

82

Ill. App.

3d 793

(1980).

In light of these holdings,

the

Board is persuaded

that

it must address appeals

to the Agency

I 11—278

---

—15—

certification during the course of the rulemaking proceeding.

In

this way the appellate court will have a complete record

to

review on appeal.

Moreover,

the Board believes that were

it

to

subscribe

to the Agency’s theory,

it would be

required to proceed

through

a lengthy rulemaking proceeding on the possibly shaky

ground of an erroneous Agency certification.

It would be

a waste

of scarce State resources to have the Board,

and all

participants, expend the necessary time,

energy,

and resources

to

complete

a rulemaking only to have the appellate court

find on

appeal that

the Agency certification was erroneous,

thereby

voiding

the entire rulemaking proceeding and any regulations

resulting therefrom.

2.

Generic and SOCMI

rules status

The Agency argued

that the proposed changes

to the Generic

and SOCMI

rules are required rules

as defined

in Section 28.2(s)

of the Act.

The Agency pointed

to the language

in the Board’s

February

8,

1990 Order, wherein

it states:

Havin

found

the authority

to review

certifications,

the Board further

finds

that

the proposed amendments

to the Generic

rule

and the SOCMI

rule are not founded upon

“federal

law” as that

term is used

in Section

28.2

of

the Act.

The Board

is persuaded by

the thorough analysis submitted

in the

Industry Group motion,

which

is discussed

above.

The Board

is also persuadeo

by the

lack of analysis

in the Agency’s

response.

The Board can find nothing

in the record

to

directly support

the characterization of

the

Generic rule and SOCMI

rule proposed

amendments

as “required rules.”

As

a result,

the Board finds

that these proposed sections

must be removed from the existing docket.

With respect

to the lack of analysis

in the Agency’s response,

the Agency stated that

its comments on the issue

of the proper

interpretation of Section

28.2 were not due until February

9,

1990.

The Agency stated that

it

requested and received an

extension of time

to February

9,

1990,

to respond

to the motion

to strike

filed by Stepan.

The Agency stated further

that

it had

every expectation

that

this issue would be decided

on the basis

of all available information and arguments,

Therefore,

the

Agency stated that

it believed

that having acted

on February

8,

1990,

the Board acted on an

issue of great importance before the

Board’s own deadline had passed.

In its

response,

IERG noted

that

the Agency never requested

an extension of time

to respond

to the Industry Group’s motion

to

dismiss.

IERG stated that the Board waited for the allowable

111—279

---

—16—

time for responses

to pass before acting on the motion.

IERG

stated that

it believes the the Board acted expeditiously after

that time.

IERG further

stated:

IEPA appears to be claiming that the Board

acted

too expeditiously

in ruling on the

Motion, even though the Board had no way of

knowing

that the IEPA ever intended

to respond

to that Motion.

Indeed,

the IEPA does

not

State

that

it ever

intended to respond to the

Motion of the Business Group Industry

Group

which was decided by the Board.

(IERG Response, pp.

3—4)

To put this matter

into perspective,

the Board noted

that

the Agency did, on January

31,

1990,

file

a

response to the

Industry Group’s motion—-in

fact,

the complete substantive

response by the Agency was fully reprinted

in the Board’s Order

of February

8,

1990.

The Board understood this filing

to be the

Agency’s response to the Industry Group’s motion.

Although the

Agency stated at the conclusion of that

response that

it

“reserves the

right

to brief or

comment on the issues contained

in the Industry Group’s Motion prior

to the close of

the comment

period”,

the Board notes

that

its procedural

rules allow

participants

7 days

to file a response

to

a motion.

35

Ill. Adm.

Code 101.241(b).

No participant can extend a properly adopted

procedural deadline simply by

“reserving the right”

to file

a

subsequent document.

Further,

the Agency’s

reliance on its

extension of

time

to respond to Stepan’s motion

is not

persuasive——the extension was simply for that limited purpose,

a

response

to Stepan’s motion.

The Board noted that Stepan’s

motion and the Industry Group’s motion were two separate and

distinct motions.

Had the Agency requested additional time

to

respond

to the Industry Group’s motion,

as

it had with

respect

to

the Stepan motion,

and had the Board granted

the motion,

then the

Agency’s post hearing comments could have and would have been

considered before

the decision on the motion.

However,

as

the

Agency filed

a response

that was complete

in and of itself within

7 days

of the filing of the motion,

the motion was ripe

for

decision.

The Agency cannot

now argue

that the motion was not

ready

for decision;

the Agency’s own action made the motion

ripe.

The Agency next argued that the Generic and SOCM

rule

amendments

fall within the definition

of

“required

rule”

in

Section 28,2(a)

of

the Act.

The Agency notes

that the Board

relied upon the term “federal law”

in finding

that the Generic

and SOCMI rule amendments were not required,

and apparently

argued ‘that,

in

so doing,

the Board erroneously interpreted

Section 28.2(b) when

it

should have interpreted Section

28,2(a).

The Agency stated:

11 1-28(~

---

-17-

The term “federal law”,

which the Board relies

onin making this decision,

has nothing

to do

with determining

whether

a rule

is

a

required

rule;

in

fact,

the term “federal

law”

appears

in Section

28.2(b)

and specifically refers to

the Board’s obligation

to adopt

a rule which

“fully meets

the applicable

feder-al law”.

On this point,

the Agency appears

to be splitting hairs.

Either

a rulemaking

is “required” under

federal law or

it

is

not.

The terms “required rule” and “federal

law” are two sides

of the same coin.

In other words,

it

is the result

of

a

federal

law which makes

a proposed rule

“required’.

Further,

the

Agency’s statements

ignore Section 28.2(e), wherein

it states

in

pertinent part:

When the Agency proposed a rule which

it

believes

to be

a required rule,

the Agency

shall

so certify

it its proposal,’ identifying

the federal law to which the proposed

rule

will

respond.

(Emphasis added.)

This Section,

too,

references “federal law,”

and in the specific

context

of the Agency certification.

Thus,

the Board disagrees

with the Agency when

it asserts

that

“federal

law” has nothing

to

do with determining whether

a rule

is a required rule——it has

everythi:;g

to do with

it.

Finally,

the Agency argued that its certification “clearly

establishes” the Generic and SOCMI

rules

as required rules.

Further,

the Agency argued that the federal

requirement

is not

contained

in the SIP call letters,

the

“blue book”,

federal

letters or settlement agreements,

but rather

in the Clean Air

Act.

The Agency then proceeded

to argue against

the analysis

offered by the Industry Group

in its motion and relied upon by

the Board

in its February

8,

1990 Order.

In its response,

IERG noted

that

the “:EPA appears

to be

filing what would have been its response

to the Industry Group’s

Motion.”

IERG submitted

that

there

is

nothing contained

in the

Agency’s motion that provides any support

for

its position that

the Generic and SOCMI

rules are required rules.

IERG argued that

the Agency’s motion

is basically

a lengthy quotation

from the

Agency certification,

which was reviewed by the Board and found

to be inadequate

support

for the position that

the rules are

required.

Finally,

IERG argued that

the Clean Air Act does not

require any particular rule content

to

be adopted

by the states,

but rather leaves

it

to each State

to determine the proper mix of

controls

to achieve and attain the National Ambient Air Quality

Standards

(“NAAQA”).

As a

result,

IERG argued

that

none

of

the

Clean Air Act rules are required rules pursuant

to Section

28.2

simply because the

rule will be

a part

of the State

111—281

---

—18—

Implementation

Plan.

IERG argued that

for

a

rule under

the Clean

Air Act to become a required rule,

for purposes of Section

28.2

of the Act,

the rule must

be adopted by the Board,

submitted

to

USEPA,

and disapproved as

a SIP revision for a particular

deficiency.

The Board agreed that the Agency’s motion contained

arguments which should have been timely

raised

in its response

to

the Industry Group’s motion.

The Board has already determined

that under

the procedural

rules

the Agency’s two-paragraph

resporlse constituted its complete response

to the motion.

To the

extent that

the Agency now raises new arguments,

i.e., arguments

not raised

in

its response

to the Industry Group motion,

the

Board found

those arguments waived.

Arguments cannot be raised

on reconsideration

that were not offered during consideration of

the underlying Order, without

specific justification for the

failure

to raise those arguments earlier.

In this case,

the

Agency failed

to provide such justification.

However, even

if the Agency’s arguments were not

found

to

be

waived,

the Board would still decline

to reverse its February

8,

1990 decision.

As the Board discussed at

length in

its March

16,

1990 Second Notice Order,

Reasonably Available Control Technology

(“RACT”)

rulemakings are extraordinary rulemakings

in that

a

State

is

to decide

for itself what constitutes reasonably

available control technology based

upon the circumstances found

within its borders.

Then the state’s decision,

i.e.,

its

regulations,

are submitted to USEPA

for approval as part of

the

State Implementation Plan.

The Board agrees,

to a certain

extent, with IERG that the Section

28.2

r.equired rule proceeding

does not lend itself well

to the RACT rulemaking

requirements of

the Clean Air Act——simply because RACT rulemakings are inherently

State decisions.

Thus,

in the first

instance,

there

is not clear

federal requirement except that the State adopt

rules which

it

believes

to be RACT.

In this case,

the State of Illinois has

already adopted Generic and SOCMI

rules

that

it believes

to be

RACT for Illinois.

Those

rules were adopted

in R86-18 and R86—

39,

respectively,

in

late

1987 and early

1988.

Further, those

rules were submitted

to USEPA as revisions

to the

SIP.

However,

when the Agency proposed this rulemaking

on September

29,

1989,

USEPA still had not acted upon those SIP submittals.

In other

words, although USEPA had had the rules

for approximately

a year

and a half,

it had not proposed

to approve or disapprove

the

rules,

nor had

it formally adopted an approval

or disapproval

of

those

rules.

However,

on December

27,

1989,

at the same

time

that USEPA published

its notice of proposed regulations

constituting

a federal

implementation plan for Illinois,

54

Fed.

Reg.

53080, USEPA also published a notice

of proposed disapproval

comment period.

To date, USEPA

has still

not proceeded

to final

adoption

‘of those disapprovals.

Thus,

Illinois’ Generic and

SOCMI’rules have not been officially disappr.oved

as

yet.

Given

this particular

State of affairs,

the Board does not believe

that

111—282

---

—19—

the Generic and SOCMI rules can be said

to be required until

USEPA officially adopts a disapproval of

them as SIP revisions.

In additi~n to the aforementioned motions

the Stepan Comapny

on January

10, 1990,

filed

a motion to strike and motion for

application of Section

28

rulemaking, arguing essentially that

the Agency’s proposal fails

to identify the “law”

to which the

proposed amendments will respond.

On January

23,

1990,

the

Agency filed a motion for extension of time

to respond to the

motion.

The Board granted the Agency’s motion on January

25,

1990.

In its post—hearing comments,

however, Stepan indicated that

the Agency would,

in its comments,

provide written confirmation

of

its “interpretation of

the statutory provision Section

10

and of

the inapplicability

of

the Generic Rule to Stepan by

virtue thereof.”

Stepan further

stated that

in light

of that

understanding,

the issue as

to the status of the Agency proposal

as

a required rule under federal law as

raised

in its motion

is

moot.

On February 22,

1990,

the Board adopted an order

noting this

language and noting that the Agency had

in fact filed comments

confirming Stepan’s assertions.

The Board construed Stepan’s

statement

that

the issue

is moot as a request

to withdraw its

motion and granted the motion.

As a result of

the substantive

actions taken in the Board’s Order

of March 16, 1990,

which are

discussed below, the Board does not believe

it necessary

to look

further

into the “required” nature of

the remainder

of

the

proposed amendments,

beyond

that which

is

discussed under number

3,

below.

(2)

Economic Reasonableness and Technical Feasibility

By far the most controversial issue

raised in this

proceeding

is whether or not economic reasonableness and

technical feasibility are

to b~considered

in a Section

28.2

rulemaking.

This issue

was

touched upon

in the Board’s Order

of

February

8,

1990;

however,

as post-hearing comments were

scheduled

to be filed on February

9,

1990,

the Board opted

to

await all comments before addressing

the

issue.

The Board

determined that economic

reasonableness and technical feasibility

are necessary considerations

in

a Section

28.2 rulemaking.

As discussed above,

the Board decided on October

27,

1989

that an EcIS would

not be conducted.

Such decision was made

pursuant

to the second paragraph of Section

28.2(c).

The reasons

for such decision are addressed

in the Order dated October

27,

1989.

As an aside,

the Board notes

that another consideration

also presented

itself.

The Exhibit

C schedule of “milestone”

dates has been previously

noted.

The Board notes

that that

schedule does not contemplate

the preparation

of an

EcIS.

In

111—283

---

—20—

fact,

the only way for the Board

to meet the “milestone”

dates

is

for an EcIS to not be prepared.

In an attempt

to cooperate with

and demonstrate good faith to the other parties of the Wisconsin

lawsuit and in recognition

of the fact that economic and

technical information have traditionally been introduced during

the hearing process, and fully expecting

that

such would be

submitted during the hearings

in this proceeding,

the Board chose

to attempt to meet the Exhibit

C schedule over

requiring the

EcIS.

Had the Board known what would transpire, perhaps

that

decision would be different.

On the first day of hearing, December

7,

1989,

an Agency

representative

stated:

The Agency

is not offering testimony on the

technical

feasibility of compliance,

the

economical reasonableness

of these proposed

regulations or

the affected facilities.

This

regulatory package contains corrections to

deficiencies

in the RACT rules

identified by

USEPA.

According

to the Settlement

Agreement,

if

the Board fails

to timely adopt

the

corrections

in an approvable

form,

USEPA will

promulgate

federal corrections.

In either

case,

emission sources will

be required

to

come into compliance with rules

implementing

these corrections.

In addition,

this

information is not necessary for the Board

to

adopt

a rule that

fully meets

the applicable

federal

law.

(Emphasis added.)

(R.

14—15.)

At

no time before that date was

the Board

ever given an

indication

by the Agency that

it subscribed

to this position.

In

fact,

the Board notes that

in another “required”

rulemaking, R88—

21, Water

Toxics,

adopted January

25,

1990,

an EcIS was prepared

and economic reasonableness was considered.

That

notwithstanding,

however,

the Agency chose

to let its proposal

stand

or

fall with this position on the scope of

a Section

28.2

rulemaking proceeding.

The remainder

of the December

7 and

8

hearings was devoted

to Agency testimony on the federal

justification of the proposed amendments and Agency statements

that

it was not prepared

to respond

to questions involving

economic

or technical

justification.

On December 13,

1989,

the Hearing Officer

issued an Order

directing

the Agency,

and requesting USEPA,

to be prepared

to

respond to certain questions at

the December

14,

1989 hearing.

The specific questions are as foflows:

1.

Describe,

to the extent

reasonably practicable,

the

types of Illinois sources and facilities that are within

“the universe of affected sources and facilities”

subject

to

the proposed required rules.

111—284

---

—21—

2.

Describe,

to the extent reasonably practicable,

by type,

approximately how many such sources and facilities would

be

affected by the proposed required rules.

3.

Describe,

to the extent reasonably practicable,

the

anticipated economic effects of

the proposed required rules

on sources and facilities.

Will the effect and timing

of

these rules

result

in more stringent standards

in Illinois

than elsewhere?

4.

Has either the IEPA or USEPA determined, formally or

informally,

whether

the proposed required

rules are

technically feasible?

Economically reasonable?

5.

If either answer

to

#4

is “yes”, what was the nature of

the determination,

and when and how was

it made?

6.

Is

it the position of either the IEPA or

the USEPA that

the substance of

the proposed required rules cannot

be

altered or modified

in any significant substantive way

(excluding typographical errors and other

non—substantive

matters)

if USEPA is

to grant

its approval?

.

If

so,

what

is

the authority

for this position?

Has this authority been

asserted in writing?

7.

If the answer to

#6

is

“no”,

what procedure(s)

and what

USEPA official(s) determine whether

a modification

is

approvable?

At hearing on December 14,

1989,

the Agency offered certain

responses

to these questions on

a deficiency

by deficiency

basis.

The substance

of such responses

is addressed below under

the specific deficiencies.

These responses constitute the extent

of the information submitted

by the Agency regarding

economic

reasonableness and technical feasibility.

At hearing on December

14,

1989,

the Board received

testimony from Mr.

Sidney Marder, Executive Director of the

Illinois Environmental Regulatory Group

(IERG), on the issue of

considering economic reasonableness and technical

feasibility

in

a Section 28.2 proceeding.

Mr. Marder noted

that he participated

in the drafting

of Section

28.2,

along with many others.

Mr.

Marder stated his view that:

There

is no way that

the business community

would have agreed to

a change

in the

Environmental Protection Act that would have

incorporated

a provision

that would have

allowed

the Agency

to categorically say that

a

federally mandated

rule does not require

the

inclusion or the consideration of economic

impact or

technical feasibility.

(R.

261.)

111—285

---

—22—

Mr. Marder further noted his view that Industry representatives

traded off the need

for

an EcIS as a formal document

in certain

cases,

but specifically retained the right

to economic and

technical data pursuant to Section

27

of the Act.

(R.

262.)

At hearing on December

15,

1989,

the Board received

testimony from Mr. James Harrington,

appearing on behalf

of the

Illinois Steel Group and the Illinois Manufacturers

Association.

Mr. Harrington

testified on the history of Section

28.2

of the Act.

After providing background

information,

Mr.

Harrington stated

During this time,

it was never

suggested by

the Governor’s Office,

Ms. Witter,

or

Mr.

Haschemeyer

for the Agency,

or from anyone

else that the requirement

for economic

reasonableness, technical

feasibility

consideration.s would be deleted from

rulemaking pursuant

to Section

28.2.

Indeed,

in phone conversations,

I believe

industry was

assured

that these

requirements would continue

in effect.

And that,

therefore,

industry

would

be protected

from the adoption of rules

without

the consideration of

economic

reasonableness, or

technical feasibility.

(R.

496—497.

On January

18,

1990,

the Illinois Steel Group

filed a Memorandum

of Law Regarding Adoption of RACT Rules, which provided argument

in support of Mr. Harrington’s position.

In post-hearing comments,

most if not all of the industry

participants stated that

a Section

28.2

rulemaking proceeding

must

include a consideration of economic reasonableness and

technical feasibility.

In post—hearing

comments,

the Agency submitted

a brief

regarding

its interpretation of Section

28.2

of the Act and an

affidavit

of Mr. Delbert Haschemeyer.

The Agency offers

the

affidavit

of Mr. Haschemeyer,

Deputy Director

of the Agency,

in

response

to the positions stated

by Mr. Marder and Mr.

Harrington,

noted above.

In his affidavit,

Mr. Haschemeyer

states that the basic agreement between

the participants which

formed the foundation

for Section

28.2(c) and

(d)

included:

That the economic impact study

(EcIS)

process with the

involvement

of Economic Technical Advisory Committee

(ETAC)

was cumbersome,

time consuming and frequently non-

productive.

That

a new process was needed which offered

greater flexibility

for

the development and consideration of

economic information

to the extent such information was

relevant and necessary

to the Board’s consideration.

111—286

---

—23—

That the role of economic

information in

a required rule and

the Board’s ability to consider economic information would

vary depending on the nature of the Federal requirements and

the nature of the proposed rule....

The question presented

is whether

economic information

is

relevant to the Board’s consideration of the substance of

the rule.

That

is, would consideration of economic

information change the substance of

the rule.

If

not,

then

the Board could proceed without such consideration.

(Affidavit pp.

2—3)

Finally, Mr. Haschemeyer states that the Board’s need to consider

economic information

in required rulemakings

is contained

entirely and exclusively

in Section

28.2 and that depending

on

the nature

of’ the Federal

requirement and the nature of the

proposed

rule,

that need can vary from none at all

to the need

for a

full

blown EcIS and consideration thereof.

The Agency’s brief argues basically as follows.

The first

issue

is whether

the rules proposed are indeed needed to meet

the

requirements

of federal

law.

It

is the Agency’s position that

the rules proposed herein are needed

in order

for Illinois

to

meet the requirements of Sections 110(a)

and 172(b)

of the Clean

Air Act

(CAA).

Thus,

it argues that the applicability

requirements of Section

28.2 have

been met.

The second issue

is

whether

the rules prop.osed fully meet the applicable federal law

under

Section

28.2 and whether

they,

or some other

rules which

fully meet the applicable federal

law,

should be adopted

by the

Board.

The Agency notes

that

if

a rule

is needed to meet the

requirements of

the federal

CAA,

the Board is mandated by Section

28.2

to adopt

a rule which fully meets

the applicable federal

law.

The Agency continues:

Several arguments have been offered asserting

that

the Board

must consider the economic reasonableness,

economic impact

and technical

feasibility of proposed regulations

in

a

proceeding pursuant

to Section 28.2

of the Act.

Under

the

plain language of the section,

this depends upon whether

there

is more that one alternative which “fully meets

the

applicable

federal

law”,

since

the Board must adopt

a rule

which does so.

If there

is only one alternative that th~

Board can determine will satisfy

the standard for

a required

rule,

the Board must adopt

that proposal.

Obviously

consideration of other factors would be unnecessary and

irrelevant

in such

a situation.

*

*

*

A review of the record establishes that the Agency has

provided a substantial body

of relevant evidence

to the

111—287

---

—24—

Board to support

its assertion that adoption of its proposed

rules will

fully meet

the applicable

federal law,

including

the CAA.

Such evidence

includes written documentation and

sworn testimony by USEPA representatives.

The USEPA

testimony was that the Agency proposals,

if adopted by the

Board, will meet

the requirements of applicable federal

law....

Nothing comparable

has been provided for any

alternatives

to this Agency’s proposal.

In the absence

of

specific competing proposals,

with supporting evidence

in

the record showing alternatives which meet the applicable

federal

law,

the Board has no choice but

to comply with

its

statutory mandate and adopt

the Agency’s proposals.

(Agency

Brief pp.

4—5.)

Finally,

the Agency believes that

resort

to the legislative

history behind the enactment of Section

28.2

is unnecessary

because the statute

is clear and unambiguous on its face.

With this final comment

the Board concurs.

The Board does

not believe

it necessary

to look beyond the language of Section

28.2

of the Act

to determine whether economic reasonableness

and

technical feasibility are

to be considered

in

a Section 28.2

rulemaking.

Section

28.2 specifically contemplates

the potential

for

preparation of an EcIS.

The fundamental distinction between

the

rulemaking procedures

of Section

28.2 and the regular

rulemaking

procedures

is that

if an EcIS

is requested

in a Section

28.2

rulemaking

the Board can proceed after

6 months

•of the date the

EcIS was requested whether

or not

the EcIS

is submitted.

Nowhere

in Section 28.2 does

it say that economic reasonableness and

technical feasibility,

which are required by Section

27, are not

to be considered

in

a

required rule proceeding.

It

is

a basic

rule of statutory construction

that,

if reasonably possible

to do

so without violence

to the spirit and language of the statute,

the provision being construed should be

interpreted so as

to give

the statute efficient operation and effect as

a whole.

See,

e.g.

Pliakos

v.

Illinois Liquor Control Commission,

143 N.E.2d

47,

11

Ill.

2d 456

(1957).

In order

to give all provisions of Title VII

of the Act

there intended effect,

the Board believes that

it

is

required to consider economic reasonableness and technical

feasibility

in any rulemaking unless the statutory authority

for

that

rulemaking explicitly exempts

those issues from

consideration, such as

in Section

17.5

of the Act,

or unless the

statutory language clearly indicates

that those issues need not

be considered,

such as

in Section 7.2 of the Act.

Section 27* has been construed by the courts as

a

*Section 27(a)

of

the Act states

in relevant part:

111—288

---

—25—

broad requirement that the Board

“take

into

account” certain factors

in promulgating its

pollution control regulations reflects a

legislative

recognition of

the complexities of

pollution control technology

and of the

differing levels

of sophistication of control

methods associated with various

types of

pollution.

The requirement of

Section

27

is

a

flexible one and of necessity requires

that

a

great

deal of discretion

be exercised by the

Board.

Shell Oil Co.

v.

IPCB,

37

111.

App.

3d

264

346 N.E.2d

212

221

(1976).

In the context

of cases affirming

the Board’s adoption

of

a

prior

set

of RACT rules adopted

by the Board,

the appellate

courts have stated that

the Section does not mandate any

particular standards with which the Board must comply,

and does

not establish

that the Board must

support its regulatory

conclusions with any given, specified quantum of evidence.

Illinois State Chamber

of Commerce

v.

IPCB,

177 Ill. App.

3d 923,

532 N.E.2d

987

(1988);

Stepan Co.

v.

IPCB,

N.E.2d

,

Ill.

App.3d

(no.

3—88—004,

Third Dist., February

8,

1990),

(slip

op.as

8), Section

27 does,

however,

require the Board

to “take

into account” economic reasonableness when making

its

decisions.

There

is no conflict between

the mandates

of Section

27 and 28.2, although Section

28.2 may limit Section

27’s

broadest scope.

Thus,

economic reasonableness and technical feasibility will

be taken

into account

in a Section

28.2 proceeding,

as any other

consideration required by Section

27 of

the Act.

However,

the

weight

that will be given

to those considerations can depend upon

certain variables,

which include but are not limited

to,

the

nature of the subject matter,

the specifity of the federal

requirements,

and any federal deadline.

This proceeding, entitled “Reasonably Available Control

In promulgating

regulations under

this Act,

the Board shall take into account

the

existing physical

conditions,

the character

of surrounding land uses,

zoning

classifications,

the nature

of the existing

air quality,

or

receiving body of water,

as

the case may be, and the technica

feasibility and economic

reasonableness of

measuring or

reducing the particular

type of

pollution.

111—289

---

—26—

Technology Deficiencies”,

is a somewhat unusual proceeding.

It

is

a proceeding

in which economic reasonableness considerations

are inherent in the subject matter.

Further,

it

is a proceeding

involving the same issues as

the Board has considered

in previ.ous

rulemakings.

During the past several years,

the Board has

conducted many rulemakings resulting

in the adoption of

Illinois’

existing RACT rules.

The Board determined,

based on

records

that

included Economic Impact Studies,

that the existing

regulations

constitute RACT in Illinois.

Thus,

the Board

is being asked

to

reevaluate those prior determinations, which themselves involved

considerations

of economic reasonableness and technical

feasibility.

The Board

is not persuaded

to now completely ignore

those considerations

in correcting

the deficiencies

in those

rules.

The Agency’s arguments concerning economic reasonableness

and technical

feasibility will,

therefore,

be directed

to the

“weight” that

those considerations should

receive.

To support

its view that economic information

is not necessary

for the Board

to adopt

the proposed rules,

the Agency relies upon the language

in Section 28.2(c), which states:

.the extent,

if any,

to which

the Board

is free under

the statute authorizing

the rule

to modify the substance

of the rule based upon

the conclusions of

such

a

study,...

The Board notes that

this language

is relevant

to the Board’s

decision as

to whether

an EcIS shall

be prepared,

and only

to

that issue.

This language

is not relevant

to, and does not

affect,

the Board’s underlying authority

to consider economic

reasonableness and technical feasibility

in promulgating

regulations under

Section

28.2.

Further,

the Board notes that

identical language

is also found

in Section

27(a), paragraph

1 of

the Act, and has not been interpreted to

limit

the scope of

the

Board’s obligations

in rulemaking.

Further, the Agency apparently believes that because USEPA

has stated that

the proposal,

if adopted, would be approved and

because no other participant

has ~ffered

an alternative

to which

USEPA has made the same statement

,

its proposal

is the only

alternative and must therefore be adopted.

‘The Agency appears

to

equate the number

of proposals with the number of potential

*The Board notes

the Agency’s reliance upon USEPA’s letter

to support its proposal but

is troubled by the Agency’s reliance

on

the letter

to argue against any alternatives.

The Board

questions how a USEPA letter addressing alternatives would be

forthcoming.

In otner

words,

what

is the likelihood of

any

participant other

than

the Agency obtaining such

a letter

in

a

timely manner?

111—299

---

—27—

alternatives.

The Board cannot and does not accept this

argument.

First,

the Board notes

that

the Agency itself has

proposed

a number of alternatives

to its original proposal

as

the

record developed and as

it better understood the ramifications of

its proposal.

Second,

it

is the province of the Board

to

determine whether alternatives

exist based upon the information

In a given record.

The Board’s determination cannot be limited

in this respect solely by the number of proposals

filed

in a

rulemaking proceeding.

Again,

under Section 28.2

of the Act,

the

Board

is

to determine whether

the proposed rule fully meets the

applicable

federal

law.

To yield

to the procedure suggested

by

the Agency would be a clear abdication of the Board’s mandate

under

the Act.

The Board

is not persuaded that

the Agency’s proposal

is the

only alternative which would

be approvable.

USEPA has stated

that the Agency’s proposal

is approvable.

However,

this does not

mean that ipso facto other alternatives would not also be

approvable.

In

fact,

a representative of USEPA,

in response to a

question regarding whether

the substance of the proposal could

be

altered,

testified

at hearing as

follows:

I

think our position would be

that

there

is

a set

of

words and substance

that we have evaluated and indicated

to the Board

is acceptable.

I mean, you can rewrite

that a zillion different ways, depending on how you

choose

to rewrite

it.

It

is possible that

the substance

has been changed inadvertently,

or whatever.

I think

that our position would be

if somebody wants

to take

that risk they are certainly

free

to do so.

If on the

other hand they choose not

to take that risk,

they have

before them

a set

of words and substance that we have

determined

to be acceptable.

So

I would say that,

yes,

it

carl be changed

but somebody runs

a

risk when they

change

It.

(R.

311.)

USEPA itself recognizes

that there could be other approvable

alternatives.

Herein lies the problem.

The Board

is

not persuaded by the

record that other alternatives do

not exist.

USEPA recognizes

that other alternatives may

in fact exist.

‘The Agency

itself

argues that

If alternatives do exist, the Board must consider

economic reasonableness and technical feasibility.

But

the

Agency decided early on

that its proposal,

and only its

proposal

,

would fully meet the applicable federal

law:

therefore,

the Agency concluded that

its proposal was the only

*Query how the Agency could know,

on December

7,

1989,

that

no other participant would obtain a similar letter from USEPA by

the close of the record on February

9,

1990.

111—291

---

—28—

alternative;

therefore,

the Agency determined

not

to offer

evidence of economic impact,

economic reasonableness,

or

technical feasibility.

Without information

in the record on

economic impact and technical feasibility,

the Board

is precluded

from considering,

in any meaningful way, alternatives

to the

Agency proposal.

It would appear, therefore,

that

the Board and

the Agency are at an impasse.

The Board therefore adopts

a construction of the Act which

comports with the plain direction of

the legislature

to decide

that proposed rules fully meet the applicable Federal

law.

Consistent

with its above—described construction

of Section

28.2

of

the Act,

the Board will proceed to second notice with the

proposed amendments

to the extent that the Board can take into

account, based upon the record,

those considerations

required

under Section

27(a)

of the Act and to the extent

that the Board

can determine

that the proposed amendments fully meet the

applicable

federal

law.

(3) Applicable Federal Law

Section 28.2(b)

of the Act states that

“whenever

a

required

rule

is needed,

the Board shall adopt

a rule which fully

meets the applicable federal law,...”

The third significant

issue in

this proceeding

is: what will fully meet the applicable

federal

law?

Note that

this issue

is closely related to, but

is

distinguishable

from,

the issue of what forms the basis

for an

Agency certification of a proposal as

“required.”

In its Certification the Agency stated that several

sections

of

the

CAA

support

the “general”

basis

for this

regulatory

package.

The Agency stated:

Section 110

of

the

CAA

requires that each state adopt

and submit

to USEPA

a plan which provides

for the

implementation, maintenance and enforcement

of national

ambient air quality standards

(NAAQS)

for criteria

pollutants.

Ozone

is

a criteria

pollutant with a

primary NAAQS adopted

by USEPA on February

8,

1979.

Section llO(a)(2)(h)(ii)

gives

the Administrator

of

USEPA the authority to require revisions

to the State

Implementation Plan

(SIP)

whenever

it

is determined

to

be substantially inadequate

to achieve

the national

ambient air quality primary

or secondary standard.

The

proposed regulations are to be part

of the Illinois

SIP

for ozone.

The proposed revisions address regulations

that have been identified

as deficient

by

USEPA

(Agency Certification,

p.

2).

Further,

the Agency states:

I 11—2q2

---

—29—

Additional

federal

justification establishing

this

regulatory package as

a

“required rule” differs widely

for each deficiency.

A description of the additional

federal justification for

each deficiency

is provided

in

attached Table

1.

(Agency Certification,

p.

3).

The Agency submitted a list of

the justification documents

as

part of its proposal.

Included

in

this

list of

“justification”

documents are:

the SIP call

letter;

USEPA’s proposed post-1987

ozone and carbon monoxide plan,

published November

24,

1987;

the

clarification of Appendix D of the November

24,

1987 publication

(Blue Book),

and various

other correspondence and memoranda.

While

the Board

has generally accepted the required nature

of

this proce~dingas being based upon certain sections of

the

Clean Air Act

and the SIP Call Letter,

the Board notes

that

it

is troubled by the Agency’s reliance upon some of these other

documents

to support

the substantive aspects of

the proposed

amendments.

The Board

has serious questions about how much

weight

to give

to these “justification”

documents.

For example,

the November

24,

1987

Federal Register——entitled “State

Implementation Plans; Approval

of Post—1987 Ozone and Carbon

Monoxide Plan Revisions

for Areas Not Attaining

the National

Ambient Air Quality Standards;

Notice”——is

simply that,

a Notice

of Proposed Policy.

Nowhere

in the record

is there any

indication

that this document was approved,

or

finalized, after

the consideration of public comment.

In other words,

this

is

merely a proposal that has not been adopted.

Moreover,

the Blue

Book, which has been cited widely in this proceeding,

is a

“clarification” of the appendix

to the November 24,

1987,

“proposed policy.”

If the Federal Register notice

is “one step

removed” from being

a

federal requirement,

is

the Blue Book

two

steps removed?

The Board realizes that

this question seems

awkward,

but the record gives little

insight into the relative

merit of

each document.

The Illinois Steel Group’s

(ISG) Memorandum of Law Regarding

Adoption

of the RACT Rules

(P.C.

#9),

filed January

18,

1990,

addresses

the Board’s concerns

to

a certain extent.

‘The ISG

argues,

in part,

that:

*The Board

notes

that,

on February

15,

1990,

it

completed

the rulemaking

of R88—30,

Limits to

the Volatility of Gasoline,

which has the potential

to result

in the reduction of

200

tons

per day of ozone precursor emissions during

the months

of July

and August

in the Chicago metropolitan area alone.

Compliance

with this new regulation should do much

to assist

the state

in

demonstratina compliance with the NAAQS

for ozone.

11 1—2~1

---

—30—

the

IEPA has confused federal

“law” with federal”

guidelines”, when the two are not the same.

Federal

“law”

clearly encompasses statutory provisions,

as well

as administrative provisions enacted through legal

procedure.

Federal agency findings lack the force of

law when they are arrived at through procedures

other

that those required by

law.

(ISG Memo,

at

10).

The Board agrees.

Therefore,

in reviewing the proposed

amendments which the Board will proceed with after considering

economic reasonableness and technical feasibility,

the Board will

look

to ensure satisfaction of the requirements of

federal

law,

not federal guidance.

The Board will address

this more

specifically, where appropriate, under

the individual

deficiencies.

Finally,

the Board notes

that after

the December

15,

1990

hearing, USEPA sent

to the Board

(P.C.

8)

some materials which

included

a draft report of

“Technical Support Documentation For

Federal RACT Rules

For Illinois”.

This document contains

information which purports

to address technical

support,

environmental impacts and costs of

control

for USEPA’s proposed

amendments

to Illinois’

SIP.

The Board notes

that under

some of

the Deficiencies

involved in this proceeding,

this federal

document suggests extremely high cost per ton of VOM reduced.

However,

the Board cannot place great reliance upon this

information.

The Board notes

that this information is part

of

a

“Draft Report” subject

to public comment

in the federal

rulemaking and that the Board had no one

to question as

to the

contents of the draft document.

In other

words,

this document

is

equivalent

to unsworn testimony.

As

such,

the Board will give

little weight

to its contents.

THE DEFICIENCIES

Some general remarks concerning

the Board’s economic

analysis

in this proceeding are

in order,

prior

to discussing

particular deficiencies.

As has been previously discussed,

the

Board must consider the broad duty and authority dictated by

Section 27(a)

to

“take

into account” various

factors

in light

of

“the specifications

of, particular

classes of

regulations

elsewhere

in

the

Act”.

Aaain,

as earlier discussed,

the

specifications

of

Section 28.2(b) are that the Board “adopt

a

rule which fully meets

the applicable law”,

“which

is not

inconsistent with any substantive environmental standard”,

and

that the Board

“consider all relevant evidence

in the record.”

It

is clear

from the prior

case law interpreting Section

27 that

the Board need not “produce direct evidence that the control

technologies necessary to meet...standards are technically

feasible and economically

reasonable

for

a substantial number

of

the sources throughout

the state,

as

thi~

would necessarily

liii—2

q

i~

---

-31—

limit

the Board’s regulations to a contemplation of existing

technology only.”

Shell Oil,

supra,

346 N.E.2d 221.

What level

of consideration lesser than this

is sufficient

to avoid the

invalidation of

rules as

“clearly arbitrary,

unreasonable

or

capricious”

(Illinois Coal Operator’s Association

v.

Pollution

Control Board,

59

Ill.

2d 305,

310,

3l9N.E.2d 782,

785, by

a

reviewing court

has not been clearly articulated

in the case

law.

The Board must

then,

on

a case—by—case basis, determine what

level of consideration of what quantity of

information

is

necessary

to reasonably support adoption of

a

rule.

A~the Board has noted throughout

this Opinion,

the record

supporting many of the proposed rules

is

thin, and much of

the

economic information which

is

in this record can be afforded

little weight.

Because of the mandate

of Section

28.2

(which the

Board also construes as

including

a directive

to act consistent

with the milestone dates of the Wisconsin settlement),

the Board

has

no

time,

in this docket,

to itself strengthen

this record or

to direct and allow the participants

to do

so.

The Board must

“take the record as

it finds

it.”

*

Giving the words

“take

into account”

their ordinary meaning,

in some deficiency areas

the Board

is simply unable

to fulfill

its statutory directive based on this record.

While

the Board

is

highly aware that

rulemaking decisions must be made on less

than

perfect information

in order

to timely comply with federal

deadlines,

the Board will not presently proceed

to adopt rules

whose reasonableness,

for the State of Illinois,

cannot be

determined

by

this technically qualified Board even

in light of

the long history of these proceedings.

Where

the Board cannot,

in all good conscience, presently proceed

to make the required

findings,

the Board will defer further consideration

to a Docket

B, which was opened on February

8,

1990.

The Board wishes

to emphasize that its approach

in this

particular proceeding should not

be taken

as representative

of

the approach

to be taken

in all future Section

28.2 rulemakings;

each must

be handled based on the specifics of the mandate

to

implement the federal program involved.

Finally,

the Board notes

that because of the limited

time

available

to review the extensive

record and

to prepare this

opinion,

the Board

is only addressing those issues which are

dispositive

of

a given proposed amendment.

:n other words, where

*The Shell

Oil court, quoting

from J.E.

.qodale, The Synonym

Finder,

described

the phrase

in

its general

sense

as meaning

“allow for, make allowances

for,

weigh carefully, consider,

take

into consideration,

bear

in mind,

remember,

realize, appreciate,

have

in one’s mind.”

346 N.E.2d at

219.

lit

I —3~)’~

---

—32—

the Board has determined not

to proceed with an amendment based

upon insufficient information

in the record for the Board

to take

into account the economical reasonableness,

the Board’s analysis

stops at that point.

That

is not

to imply that the proposed

amendment stands or falls on economic reasonableness

alone.

It

is simply the attempt

to expedite this proceeding

to meet

the

schedule

in the Settlement Agreement

that the Board does not go

on

to address the other Section

27(a)

considerations.

DEFICIENCY

1

—

Surface Coating Exemption

To correct this deficiency,

the Agency’s proposed amendments

included revisions

to Sections 20l.l46(~), 215.206, and

215.211.

Those revisions are discussed in detail below.

Revisions

to Section 201.146(g) would have eliminated

the

exemption from permit requirements

for painting lines using

5,000

gallons per year

or less at

facilities

in the state

that will be

subject

to the coating requirements

in Part

215,

Subparts

F an

PP.

Revised Sections 215.206(a)

and

(b) pertained

to the

counties of Cook,

DuPage,

Kane,

Lake,

McHenry, Will, Macoupin,

Madison, Monroe and St. Clair

for coating categories other

than

wood furniture coating.

Subsection

(a)

would have reduced

the

exemption

for

the different RACT categories

of coating

lines from

25 T/yr

for the coating plant

to

15

lb/day for each RACT grouping

of coating lines.

Subsection

(b) would have stated that any

coating line that has ever been subject

to

the limitations of

Section 215.205 cannot use reductions

in emissions

to qualify

for

the exemption under Section 215.206(a).

Section 215.206(a)(3) would have deleted an exemption for

National Can Corporation as

it

is no longer operating

in Loves

Park,

Illinois.

Section 215.206(d) would have continued the current

25 T/yr

exemption level

for wood furniture coating facilities

in the

state.

The requirement that emissions

be limited

by an operating

permit

is deleted.

The exemption

is also altered by

the addition

of

a provision that

a wood furniture coating plant will continue

to remain subject to Subpart

F

in certain counties once

it

becomes subject

to this Subpart.

New Section 215.211(d) was added

to allow newly subject

facilities

one year from

the date of adoption

to achieve

compliance with the regulations.

At hearing

on December 14,

1989,

in response

to the Hearing

Officer Order questions noted above,

the Agency offered

the

following responses.

The proposed changes conceivably would go

111—296

---

-33-

to plants that are involved in automobile or

light duty truck

coating, can coating, coil coating, fabric coating, vinyl

coating, metal furniture coating,

large appliance coating, magnet

wire coating, miscellaneous metal parts and products coating,

and

heavy off highway vehicle products as those operations are

defined

in the Board’s

rules.

In response to question

2 relating

to which sources would be

affected,

the Agency stated:

This

is

a very hard question

to answer, because we are

trying

to predict the effect for facilities

that we

really don’t

have very good records on.

Obviously,

we

have concentrated our efforts

on the larger

facilities.

That

is where we have detailed permit

application information.

.

.

.Roughly,

I have

to say,

that

if

we are going from

25 tons per year

to an

applicability that

is on

the order

of one

ton per year,

you could not

sic)

double the number of affected

facilities.

It might

be triple.

It might

be fifty

percent

increase.

(R.

168—169.)

In response

to the question regarding anticipated economic

effects,

the Agency stated:

All

I can say is sort of

a broad statement

that the

effects could be variable.

There are some facilities

who

I would expect already comply with the rule

or would

have

to have minimum changes

in operations... .There are

others that would have to make minor changes, switch

coatings,

maybe

some coincidental equipment changes

that

they might want

to make anyway,

or

some other changes

in

operations.

.

.There are also others where

there could be

significant changes.

I mean,

they might have

to

undertake expenditures

to alter

their process

equipment

or

to install control equipment.

Process equipment

changes would

be necessary in some cases

to allow

compliant coatings

to be

used.

(R.

170.)

Based upon the record,

the Board found

that this amendment

will have an effect.

In light of

the generality

of

this

information and the

lack of economic information

in the record,

the Board was not persuaded

that this amendment

is RACT for

Illinois.

The Board,

therefore,

did not proceed with any of

these proposed amendments,

except

for one.

The Board

found

that

the exemption

for National Can Corporation’s Loves Park facility

can be deleted as

it

is no longer

in operation.

The Board

has,

therefore,

retained this deletion.

The Board also changed

the language from

the

first notice

proposal

to properly reflect the language of

Section 215.206

currently on file with the Secretary of State’s Administrative

iii,—

3(17

---

—34—

Code Division.

This change was made in response

to suggestions

made by JCAR staff.

DEFICIENCY 4(a)

—

Fabric Coating Definition

The Agency’s proposal also included

a

revised definition of

“fabric coating” which clarifies

that coating operations

include

saturation

of the substrate.

At hearing on December

14,

1989,

in response to Hearing

Officer Order,

the Agency’s response

to the questions

noted above

includes the following:

I don’t know of any sources

that would be affected by

the proposed rules.

I also doubt

the proposed

rule

would lead

to a significant change..

Well,

based on my previous answer

I would expect

there

to be no

economic

effect

on facilities.

Of course,

there might be somebody out there

that could be

significantly affected

if they had

to install control

equipment.

(R.

172—173.)

Based upon this testimony,

the Board proceeded with the

proposed amendment,

as written.

Taking into account

the Section

27(a) considerations,

the Board found

that proceeding with the

proposed amendment was appropriate.

DEFICIENCY 4(b)

—

Paper Coating Definition

The revised definitio’n of

“paper coating” offered

by the

Agency,

would have specified

that

coating operations

include

saturation

of the substrate.

At hearing on December

14,

1989,

in response to the Hearing

Officer Order,

the Agency states:

At this point,

I

am only aware of one facility that

would be affected by

the proposed rule,

and that’s

Riverside Laboratories.

That’s the only operation where

I know that

the change

in the language by

including the

term saturation

as

a means of how paper

coating can

be

applied would bring that

facility into

the scope of

the

Board’s paper coating rules...

the effect on Riverside can certainly

be significant

if

it had to install control equipment.

(R.

174—175.)

The Board notes

that Riverside has been an active

participant

in

this proceeding——Riverside participated

at hearing

and submitted post-hearing comments,

i.e.,

Public Comment

#20.

Generally, Riverside objected

to the Agency’s proposed

111—298

---

—35—

modification because

it argued that

there

is no basis

for

including saturation operations

in the definition

of paper

coating.

Riverside argued that the Agency failed

to support the

modification by appropriate technical

or economic data and has

chosen to ignore the technical feasibility and economic

reasonableness requirements

of the Act.

In addition, Riverside

argued

that its process

is unique and

is

not comparable

to paper

coating as envisioned

by the Agency or

the Board.

Riverside

suggested that the Board should follow

its previous

rulings and

the rulings of the State and Federal Courts and reject the

modification proposed by the Agency.

Based upon the record,

the Board found

that this amendment

will have an effect.

However, because

the information

in

the

record indicated

that

at least Riverside will

be affected by

this

change,

and because the only information

in the record relating

to economic reasonableness and technical feasibility of the

Agency’s propos~lwas submitted by Riverside

in opposition

to the

Agency proposal

,

the Board was not persuaded that these

rules

are RACT

for Illinois.

The Board notes as an aside

that

it

is

aware of

its prior rulings

in this area and that its prior

rulings need not preclude,

in and of

themselves,

a rulemaking

whereby Riverside’s operations are brought within the purview of

the paper coating

rules.

In other words,

the Board held that

Riverside does not fall within the existing definition

of

paper

coating, based upon the history of

that term’s adoption.

PCB 87-

62, January

5,

1989.

That does not mean that Riverside’s

operations are forever precluded from being brought within that

definition.

If a rulemaking

record supports

including

Riverside’s operations

in the definition of paper coating,

then

the Board can so promulgate.

However,

in

this proceeding,

the record does

not support

proceeding with the Agency’s proposed amendments.

DEFICIENCY 4(c)

—

Transfer Efficiency

The revised definition of “transfer

efficiency”

changed

the

transfer efficiency calculation from a

total coating volume basis

to

a coating solids basis.

At hearing on December

14,

1989,

in

res~onse to the Hearing

Officer Order,

the Agency stated:

.only two categories

of coatings are

in

that

universe.

The first

is automobile coating which

*The Board notes

that the information and argument

in the

Agency’s post—hearing comments

is generally directed towards

Riverside’s alternate proposal and the information offered

by

Riverside at hearing.

ll1-29~)

---

—36—

specifically includes transfer efficiency

in certain

footnotes

for adjusted standards.

There is only one

automobile manufacturing plant

in nonattainment areas

and that

is Ford Motor Company on Torrence Avenue.

The

other category

is wood furniture coating, which again

requires a minimum transfer efficiency of

65 percent

for

application of surface—-whatever,

wood furniture surface

coating.

I don’t believe any of the facilities would be affected

by the proposed rule.

Based upon my previous analysis,

I don’t

think

it will

have any

economic

effect.

(R.

177—178.)

Based upon this testimony,

the Board did proceed with the

proposed amendments,

as written.

Taking into account

the Section

27(a)

considerations,

the Board

found

that proceeding with the

proposed amendment

is appropriate.

DEFICIENCY 4(d)

-

Coating Definition

Revised Section

211.122 specified

a new definition

for

“coating”

that included materials applied

to

a

substrate

for

decorative,

protective or other functional purposes.

This

section also c’hanged the statewide definition

of “can coating”,

“coating”,

“coil coating”,

“large appliance coating”,

“prime

coat”,

“prime surface coat”,

and

“

topcoat”

so they are

consistent with the definition of coating and

to clarify

that

coating operations include saturation of the substrate.

Finally,

revised Section 215.104 changed

the definition

of “furniture

coating application”

so that

it

is consistent with

the definition

of coating

in Section 211.122.

At hearing on December

14,

1989,

in response

to

the Hearing

Officer Order,

the Agency stated:

This change conceivably could apply to all the coating

categories

in

the Board’s

rules.

As a practical matter,

the type of situation where this change has become

important

is

for applications where a coating

is applied

for something other

than appearance purposes,

that

is

decoration or corrosion resistance,

what

is otherwise

known as

a functional coating.

My belief

is that

functional coatings appear

to most commonly arise

in the

paper coating category and miscellaneous metal parts.

If there

is somebody out there who

is affected

I would

have to classify the effect

as variable.

Returning

to

the discussion

for general coating applicability,

there

might be minimal

costs,

there might

be some minor costs

if some changes have to be made.

But they are not

111—300

---

-37—

particularly difficult.

Or there could be significant

cost or efforts required.

(R.

179—181.)

On February

9,

1990, Comment

#19 was

filed by Modine

Manufacturing (Modine).

Modine stated

that under

the current

Board rules

it

is not subject

to the Board’s coating

regulation.

Modine stated that

it does not believe that this new

definition of coating which expands

the coverage of the term from

that understood

in the USEPA’s Control Technology Guideline

(CTG), will

impose additional

compliance costs on Modine.

Based upon the record,

the Board found

that

this amendment

will have an effect.

In light

of the generality of this

information and the lack of economic

information

in the record,

the Board was not persuaded

that this amendment

is RACT

for

Illinois.

As

a result,

the Board did not proceed with

this

proposed amendment.

DEFICIENCY 4(e)

—

Vinyl Coating

Revised Section 211.122 changed the definition of

“vinyl

coating”

to exclude organisols and plastisols.

At hearing on December

14,

1989,

in response to the Hearing

Officer Order,

the Agency stated:

I am not aware

of anyone that would actually be affected

by the proposed rule.

I am not aware of any

circumstance where organisols

or plastisols

have been

applied and given credit toward compliance

for

a vinyl

coating plant.

(R.

182—183.)

Based upon this testimony,

taking into account the Section

27(a) considerations,

the Board did proceed with

the proposed

amendments,

as written.

As the record

indicates

that

it will

or

should have

no economic effect upon

the people of the State of

Illinois,

the Board found

that proceeding

with

the proposed

amendment

is consistent with

the statutory requirements.

DEFICIENCY 4(f)

—

Automobile

or Light Duty Truck Refinishing

This definition was added

in Section 211.122

to indicate

that the term includes

the repainting of used automobiles or

light duty

trucks.

At hearing on December

14,

1989,

in response

to the Hearing

Officer Order,

the Agency stated:

.1 would say that the onlyperson

who might

be

affected would have been Ford Motor Company

in Illinois,

or

in the Chicago area,

who manufactures

automobiles.. .Mv understanding

is

that refinishing

of

ii l-3fl1

---

—38—

automobiles

at Ford Motors has been considered as

a part

of the automobile coating operation.

So

I don’t believe

they are affected by the rule.

Based on my analysis there should be no

economic

effects.

(R.

184—185.)

Based upon this testimony,

taking into account the Section

27(a)

considerations,

the Board did proceed with the proposed

amendments,

as written.

As the record indicates

that

it will or

should have no economic effect upon the people

of the State

of

Illinois,

the Board found that proceeding with the proposed

amendment

is consistent

with the statutory requirements.

DEFICIENCY 9

-

Test Methods

This deficiency contains the bulk of

the proposed

amendments.

Generally,

the test methods and procedures define

the manner

in which measurements

to determine compliance with an

emission limit or other control requirement

shall

be conducted.

Provisions addressing testing are located throughout

35

Ill. Adm.

Code

215.

For test measurements

to be consistent and

reliable,

the methods and procedures should be well—defined,

standardized,

and up—to—date.

Numerous changes are proposed to accomplish

this

general objective.

For convenience,

the Board will address

the

proposed amendments

in the numerical order used by the Agency

in

its Statement of Reasons,

filed with

the proposal.

At hearing on December

14,

1989,

in response to

the Hearing

Officer Order,

the Agency discussed the amendments proposed to

the test methods

in

a general context,

rather that on an item by

item basis.

As

to all of

the proposed changes under deficiency

no.

9,

the Agency stated:

Testing deficiency covers several different

aspects.

The first one

is sort

of the tightening of

testing

methods.

I would like

to describe that as an

incremental effect that will affect

everybody,

if and

when they have

to test.

~

The tightening

of the test

procedures will add some percentage

to those costs.

Whether

it

is ten percent or

20 percent,

I don’t know

exactly.

Now,

turning again

to another general category with

regard to test methods,

that

is discretion,

elimination

of discretion with regard

to test methods, elimination

of discretion with regard to emission limits.

Based on

my experience,

the Agency has exercised

its discretion

rarely,

if

at

all,

so with those particular categories

of eliminated discretion

I would not expect to see

a

significant impact.

111-302

---

-39-

The final point of testing

is what

I would

call

the

other changes, some of

the changes

to compliance

procedures,

applicability levels.

Again,

for those

things where

it

is affected, where those particular

sources or categories are affected,

I would

not see a

significant

change based on current practice.

We have

not been interpreting the rules

or carrying out the

rules significantly different

than the way they are

proposed to be changed.

(R.

186—189.)

1.

Section 211.122 Definition of Alternative Test Method

The Board deleted

this definition at First Notice because

the definition

as written

“was too vague to meet APA

Administative

Procedure Act

requirements”.

A reference

to

40

CFR 60.2 was inserted

in the one section where this definition

was used.

2.

Section 211.122 Volatile Organic Material Content

A new definition

of “volatile organic material content” was

proposed for inclusion

in Section 211.122.

This term

is used

in

and supports the following sections dealing with the volatile

organic material content of substances:

Sections

215.208,

215.409, 215.467 and 215.614.

The volatile organic content of

a

coating or similar material

is defined as

the emissions of

volatile organic material which would result

from the use

or

release

of the material without control equipment.

Taking into account

the Section

27(a)

considerations,

the

Board determined

that

it did not believe

that this definition,

in

and of

itself, would have any economic effect on the people of

the State of

Illinois.

It

is simply

a definition of

a

term used

in the rules.

Thus,

the Board did proceed

to second notice with

the definition

as proposed at first notice.

At second notice the Board added “Volatile Organic Material”

to the definition and spelled out

the abbreviation

“Kg”

the first

time

it was used.

These changes were made

in response

to

suggestions made by JCAR staff.

3.

Sections 215.102(a)

‘Testing Methods

for VOM Emissions

Section 215.102(a)

was proposed

to provide current methods

for testing organic material and volatile organic material

emissions.

The section was expanded to include measurement of

vent flow rate as well as concentration

to address emissions

in

quantitative

terms.,

i.e.,

kg/hour.

The accepted methods

for

measurement are all USEPA methods.

This section

is

referenced by

Section 215.127(a),

215.410(a),

215.463(a),

215.585(a),

215.615(a) and 215.886(a).

(The Board notes

that Section 215.585

has been used

in R88—30,

Limits

to Gasoline Volatility,

adopted

II 1-3fli

---

—40—

February 15,

1990.

Thus,

the changes proposed to Section 215.585

in this proceeding have been moved to

Section 215.586.)

The Board notes that

these proposed changes specify

that

testing

is

to be conducted

in accordance with Section

215.102.

As

this

is basically an updating of the test methods,

taking

into

account the Section

27(a)

considerations, the Board determined

that

it does not believe

that

it would have a significant

economic effect upon the people of the State of Illinois.

Therefore,

the Board retained the proposed amendments,

as

revised

in accordance with the discussion under number

6 below,

at second

notice.

The Board notes

that

in post—hearing

comments, Abbott

Laboratories

(P.C.

21) proposed that the Board amend Section

215.l02(b)(2).

While Abbott’s proposal may have merit,

the

Agency specifically requested that any other proposals

be

processed separate from this proceeding.

Thus,

the Board does

not address Abbott’s proposal’at this time.

Further,

the Board

notes

that Abbot

has a pending site—specific rulemaking

(R88—l4)

in which the proposed amendment can be considered.

4.

Section 215.105

Incorporations

by Reference

Section 215.105 was revised

to update the edition or

issuance date of certain materials incorporated by reference and

to add three new items:

American Society

for Testing and

Materials Methods D2504—83,

D2382—83 and D4457.

This

is simply a matter

of updating

the incorporations

by

reference section.

The Board retained the proposed amendments

at

second notice.

5.

Deletion of Equivalent Control Requirements

This proposed section would have eliminated the Agency’s

authority

to approve equivalent control measures which are not

specifically identified

in the rule.

Similar

changes were also

proposed

to eliminate, equivalent control requirements

in Sections

215.124,

215.241, and 215.601.

The Board received objections

to this amendment.

On

February

9,

1990, Allsteel,

Inc.,

filed

its comments which

include the following statement:

The Agency’s proposal narrows

the Agency’s own authority

to approve alternative test methods and requires all

such changes

to be

treated as SIP revisions subject

to

USEPA approval.

This proposal

is extremely unrealistic

given

the time frames of the SIP approval process and

leaves open the question

of enforcement while approval

is pending.

The proposal should

be rejected.

(P.C.

14,

111— 304

---

—41—

at p.4.)

Also on February

9,

1990,

‘Stepan Company stated:

Stepan would also like

to reiterate and underscore

the

comments of other industry representatives

relating

to

the necessity of insuring flexibility with regard to the

selection of test methods.

The selection

of an

appropriate test method

is

by nature site—specific.

A

regulatory prescription of

a single test methodology

under

these regulations

is unduly burdensome and must be

rejected by the Board.

(P.C.

12,

at

3—4.)

The Board did not proceed with these proposed changes at

second notice.

Taking into account the considerations of

Section

27(a), the Board was not persuaded that the proposed changes

constitute RACT

in Illinois.

The Board has

no idea

of what the

Agency has approved

in the past.

If

the Agency has approved

certain equivalent controls, what will be the status

of those

approvals?

Further,

the Board was concerned by

the comment

that

test methods are by nature site—specific.

Before the Board

adopts a specific test method

for a class of operations,

the

Board must have information indicating that

it

is the appropriate

test.

Finally,

the Board questioned

the necessity of deleting

alternate equivalent controls.

So long as equivalency

is

demonstrated, what difference does

it make how the controls are

implemented?

As

the Board was not persuaded

that the proposed changes

constitute RACT

in Illinois,

the Board did not proceed with the

changes

in this subdocket.

6.

Deletion of Test Procedures as “Approved by the Agency”

The proposed revisions deleted the use of unspecified

procedures

as “approved by the Agency”

for determination of

compliance.

A new section, Section 215.128 was proposed

to

provide

a specific compliance method.

This new method was

adopted by USEPA

for

its New Source Performance Standard,

40 CFR

60, Subpart Kb.

Similar

changes were proposed

to Sections

2l5.124(a)(8),

215.208(a),

215.447(a)(1)

and

(2),

215.364(a),

215.582(b)

and 215.586(a),

215.603(c).

The Board notes

that the comments discussed above also apply

to these proposed actions.

However,

the Board did proceed with

these proposed changes, as amended at

second notice.

Generally,

the Board has no objection

to specifying

test methods

for certain

processes.

However,

the

record does

not support limiting the

potential universe of

test methods.

The Board added

a provision

in

the sections which specify

test methods allowing

for alternate

test method~.

The language

that

the Board has added

is basically

as follows:

11 1-~~rYi

---

—42—

Any alternate test method must

be approved by the

Agency, which

shall consider data comparing the

performance

of the proposed alternative to the

performance of the approved test method(s).

If the

Agency determines

that

such data demonstrates

that the

proposed alternative will achieve results equivalent

to

the approved test method(s),

the Agency shall approve

the proposed alternative.

The Board was not persuaded by the record

to

limi,t the types

of

test methods

that may be employed.

The Board’s concern was that

the test results be accurate.

If an alternate method is at least

as accurate as’the specified method and someone prefers

to use

it,

so be

it.

USEPA’s concern appears

to be that

the most current methods

be employed and that all methods be specified

in the SIP.

(See

Blue Book,

p.

2—12).

Where equivalency

is demonstrated,

the

alternate

test method may be the most current.

As far as

the

test method being

specified in

the SIP,

if

a specification of

test methods

in an operating permit does not suffice,

the Board

can,

if

so requested,

update its

rules periodically

to

include

the alternate test methods

the Agency has approved.

7.

Request

by the Agency for Testing

Several sections provided for formal demonstrations

of

compliance by testing upon a reasonable request

by the Agency.

Those provisions were proposed to be deleted and replaced by

paragraph

(b)

in new Section 215.127 and Section 215.128.

These

proposed sections addressed test methods and procedures.

The

wording

of the new paragraph only addressed

a request

by the

Agency for a formal demonstration of compliance

by testing.

It

did not address

the method of

testing

or other means by which

compliance or noncompliance may be determined.

Sections involved are as follows:

Sections

215.124(a)(8),

2l5.404(a),/215.4l0(b),

2l5.464(a)/215.464(b)

,

215.565(b),

215.615(b), and 215.886(b).

Basically,

the new language proposed was similar

to the

language being deleted.

The differences were as follows——(l)

a

“reasonable request”

is now a

“request”,

and

(2)

“methods

approved by the Agency” has been changed

in accordance with

the

*The Board notes

that virtually

identical language was added

to Section 215.585(g)

in R88—30,

Limits

to Gasoline Volatility,

adopted February

15,

1990.

As the language was the

result

of

an

agreement with the Joint Committee on Administrative

Rules

(JCAR),

the Board does not anticipate an objection from JCAR.

111—3n6

---

—43—

discussion under Paragraph

no.

6,

above.

The Board was concerned by the deletion of

the word

reasonable

in these sections.

Although

the word “reasonable”

has

been

the source of many a discussion with the Joint Committee on

Administrative Rules

(JCAR),

the Board

found

that

this

is a

situation where “reasonable” must remain.

“Reasonable” adds

to

this provision the notion that an unreasonable request may be

the

subject

of an appeal.

Were

it

not

to be included, any and all

requests by

the Agency would require compliance.

The Board was

not persuaded

to make such a change based upon

this

record.

Thus,

the term “reasonable”

was added

to each

of the sections

involved

to maintain the status quo.

The Board sees

no reason

why this should threaten federal approvability.

8.

Advance

notice

to the Agency

for testing

Certain of

the existing sections require advance notice

to

the Agency

for emissions testing

to demonstrate compliance.

These sections were proposed

for deletion.

New sections were

proposed which required

the same notice

to the Agency.

Again,

the Board did not see any substantive change.

It appeared

to be

primarily

a clean—up of

the rules.

Sections involved are as

follows:

Sections 2l5.124(a)(9),

215.127(c),

215.128(b),

215.410(c),

215.464(c),

215.586(c), and 215.615(c).

As

there

is little,

if

any,

difference

from the present

language,

the Board did proceed

to second notice with the

proposed amendments.

9.

Addition of

emission test methods

New sections were proposed which provided current

test

methods and procedures

for determination of

compliance with these

requirements.

The

test method

is provided

in paragraph

(a),

which refers

to Section 215.102(a).

The sections involved were

the same as

those noted

in the two preceding paragraphs

above.

The Board did proceed

to second notice with these changes.

The language

in issue here merely refers

to the

test methods

in

Section 215.102.

Miscellaneous

Much of

the remainder

of

the proposed amendments were

specific references

to the up—dated test methods.

‘The Board

retained the specific references; however,

as noted above,

the

Board added language providing

for alternate test methods.

In Section

215.602, Exemptions,

the Board retained the

prooosed amendment which translated

the gallons

per month

into

liters per month.

However,

the Board did not proceed with the

11

1~~)7

---

—44—

proposed sentence that stated:

If a perchloroethylene dry cleaning operation

is ever

subject to the requirements

of

this Subpart,

the

requirements of the Subpart will continue

to apply to

the operation notwithstanding

a reduction

in emissions

so as

to qualify

for exemption.

The record did not provide substantive reasons why the provision

was included

in the proposal.

The Board was troubled by what

could result from this provision.

It would appear that

of

two

separate operations,

both doing

the same smount

of business,

one

could be subject

to the rules and the other would not.

The Board

requires more

information before

it will promulgate

a

rule

to

have such an effect.

DEFICIENCY

11

—

Petroleum Refinery Monitoring Program for Leaks

Revised Section

215.447(b)(l) removed the present exemption

from leak monitoring requirements

for inaccessible valves

at

petroleum refineries

statewide.

New Section 215.447(b)(2)

provided

for inaccessible valves

at petroleum refineries

statewide to be

tested at least once each calendar year.

Refineries must provide an identification

of these valves and a

reason why these valves are inaccessible.

Any valve not

identified under

this section falls instead under

the normal

monitoring program for leaks given

in Section 215.447.

At hearing on December

14,

1989,

in response to the Hearing

Officer Order, the Agency stated:

This

rule applies

to petroleum refineries.

I believe

there are six

in the state:

Clark,

Blue Island;

Mobil,

Joliet; Union Oil, Lemont;

Clark, Wood River;

Shell,

Wood River;

and Marathon,

Robinson.

Texaco,

Lawrenceville

is currently

in a shut down status.

I am

not sure

if

it would start

up again.

~‘~*

I believe

they

would all

be affected.

All would be affected,

as

I

believe all

of them would have

at least

one so—called

inaccessible valve.

(R.

190—191.)

With

respect

to anticipated economic affects,

the Agency stated:

This

I

can’t really answer.

I

can only say it would

depend on some of

the inaccessible components they have,

the degree

of inaccessibility,

and their capabilities

to

reach those inaccessible components.

In

general,

because we are talking about changes

in practices,

not

installing

new equipment necessarily,

I would

characterize

these as sort

of

at most an intermediate

level of impact.

(R.

191.)

111—308

---

-45-

This proposed amendment poses

a somewhat more difficult

analysis.

On the one hand,

noone has challenged

or objected

to

the proposed amendment.

On the other

hand,

the testimony

suggests that

there will

be

impact, but the extent of that

impact

appears

to be uncertain,

yet not minimal.

Arguably, based upon this testimony,

the Board could have

assessed economic

reasonableness considerations.

However,

the

Board noted that the difficulty of reaching these “inaccessible”

components could differ from source to source.

Unfortunately,

the record did not provide much guidance.

Further,

the Board was

aware

that

requiring monitoring

of inaccessible valves could

raise health and safety concerns.

In light

of these uncertainties,

the Board was not persuaded

to proceed with the proposed amendment.

Although the Board was

aware of

the documents

the Agency submitted

in support of

this

amendment

(i.e.,

the SIP Call Letter;

the Blue Book, page

2—13;

the Federal Letter; and the Settlement Agreement),

the Board

noted that none of these documents specifically address

the

economic

or

technical implications of complying with the rule.

Based upon the record,

taking into account

the

considerations

of Section

27(a),

the Board was not persuaded that

the proposed amendment

is RACT for Illinois.

DEFICIENCY

13

—

Bulk Gasoline Plant Exemption

Revised Section 215.581(e)(2) changed

the statewide

exemption

level

of 350,000 gallons per year

for “load

in” vapor

balance systems

(Stage

I)

at

bulk gasoline plants throughput

to

4000 gallons per day as determined

by

a

30 day running average.

Revised Section

215.581(f)(l) changed the applicability

level

for throughput

for “load out”

vapor balance systems

(Stage

I)

at bulk gasoline plants from 1,000,000 gallons

per year

to

4000 gallons per day as determined

by

a

30 day running average.

The rule will apply

to bulk plants that either

(1) distribute

gasoline to gasoline dispensing

facilities requiring

load

in

vapor balance

(Stage

I)

or

(2) are located

in Boone,

Cook,

DuPage,

Kane,

Lake,

Madison, McHenry,

Peoria,

Rock :sland,

St.

Clair,

Tazewell,

Will or Winnebago counties.

New Section

215.581(h)

provided that newly subject bulk

gasoline plants will have one year

from the date of adoption of

the revised sections

to achieve compliance.

New Section

215.581(i)

added a provision

that

a bulk gasoline plant will

continue

to remain subject

to Section

215.581

once

it becomes

subject

to this section.

At hearing on December

14,

1989,

in response

to the Hearing

Officer Order,

the Agency stated:

I 1l-3~

---

—46—

Bulk gasoline plant is

a defined

term

in

the Board’s

rules.

It

is a facility that

receives gasoline

from a

terminal and then distributes i.tto smaller

facilities.

I believe there

is somewhere between

five

hundred and a thousand of those facilities

in the

State.

Many of those already comply with

the Board’s

rules.

‘~‘~

Dr. Reed has already testified

that the

change

in the applicability level doesn’t appear

to

•be

a

very significant

change.

We are going from 350,000

gallons per

year

to four thousand gallons per day.

Those seemed pretty comparable.

However,

there might be

a couple of

facilities where

that moves from not being

subject

to being subject.

~

In terms

of

if somebody

becomes

subject

to the rule,

they would have

to

install

a vapor

valve system

if not already

installed.

I don’t

know how much one of those

costs.

I think

I would

qualify

it as

something

intermediate.

It

is hardware

that

is installed as operational equipment.

(R.

192—

193.

Although this proposed amendment would not appear to have

much

impact,

the Board did not proceed.

The testimony indicated

that there may be some new facilities

brought within the purview

of

the regulation.

These new facilities

would have

to install

a

vapor valve system,

if one

is not already

installed.

However,

the record gives no guidance as to how much such a system would

cost.

The record fails

to persuade the Board that these rules

are RACT for Illinois.

As

a

result,

the Board did not proceed

with these proposed amendments

in this subdocket.

DEFICIENCY

15

—

Solvent Metal Cleaning

Revised Section 215.181

removed

the exemptions from control

and operating

requirements

for cold cleaners,

open top vapor

degreasers and conveyorized degreasers

for certain counties.

New

Section 215.186 allowed newly subject

cold cleaners,

open top

vapor degreasers and conveyorized degreasers one year

to achieve

compliance from the date of adoption of

revised Section 215.181.

At hearing

on December

14,

1989,

in

response to the Hearing

Officer Order,

the Agency stated:

We are talking

about going from applicability level

of

15 pounds per day to eliminating

that essentially

as

zero

in VOM emissions.

We are looking at a category of

sources

that we haven’t

really focused our attention

on.

So

it

is hard

to speculate.

***

There could be

quite a few degreasers which currently have not been

required to comply

with

the Board’s

rule that would be

required

to comply with the Board’s

rules.

~

I would

have

to go back

to the general description of variable

111—319

---

—47—

economical

effects.

There may be some degreasers

that

already comply with the Board’s

rules

but are not

subject

to those limitations at the present

time.

There

may

be other sources which have

to make minor changes,

installing shut off operating practices.

There may be a

few sources out there who have to make significant

changes,

either

replacing a degreaser or

installing

control equipment.

(R.

195—196.)

Here

too,

the record did not persuade the Board

that

these

rules are RACT for Illinois.

The Board was unable

to determine

who might be affected and what effect there might be.

The Agency

itself admits that this

is

a category of

sources

that has not

been focused

upon.

As

a

result,

the Board did not proceed

to

second notice with this proposed amendment

in this subdocket.

STATEWIDE APPLICABILITY

In its final comments,

the Agency stated

that the following

proposed

rules apply statewide:

all the definitions

for Part

211,

35

Ill.

Adm. Code

215.447,

215.581, and the sections

correcting

the test methods deficiency

(deficiency 9).

The

Agency noted that both

it and USEPA acknowledged

that statewide

applicability

is not federally required.

However,

in this

proceeding,

as well as all other

regulatory proceedings,

the

Agency asserted that

the Board may adopt

rules

that go beyond

what

is federally required.

Apparently,

the Agency

requests that

the Board adopt

the proposed amendments

so as

to apply on

a

statewide basis.

While

the Board does not necessarily agree

that

it may adopt

a rule which goes

beyond what is federally required

in

a Section

28.2

proceeding,

the Board notes

that the Agency’s request

is not

germane

in light

of

the amendments with which

the Board

proceeded.

The definitional changes and test method up—dates do

not lend themselves

to application

in geographical areas

less

than state—wide.

The proposed amendments which specify

applicability

in certain geographical areas have been transferred

to subdocket

(B);

thus,

the Board

is not here presented with the

question of whether

to make

them apply state—wide.

SECTION 215.585

The Board notes

that

the Order of March

16

,1990,

included

amendments

to Section

215.585 which were adopted on

February

15,

1990,

in R88—30(A),

Limits

to Gasoline Volatility.

After

the

filing of those adopted amendments with the Secretary ~f Stare,

the Board discovered that

two subsections were incorrect;

subsections

(e) and

(h) contained

the first notice language

without the changes made

in

response to comments

received during

the first notice period.

As

the Secretary

of State’s

Administrative Code Division’s regulations

do not allow

the Board

111-311

---

—48—

to file corrections,

the Board must correct the language of

those

subsections by regular rulemaking procedures.

As those

subsections were adopted pursuant

to proper notice and comment

and as Section 215.585 was proposed for amendment in this

proceeding,

the Board simply added

the correct language

to the

Order

of March

16 ,1990,

so

as

to effectuate

filing of the

correct

language with

the Secretary of State.

This was not

a

substantive change to this proceeding

or

to R88—30(A).

It was

simply to get what the Board adopted on February 15,

1990 onto

the Secretary of

State’s official files.

The language proposed

as Section 215.585

in this proceeding has accordingly been

renumbered to Section

215.586.

This opinion supports the following Order.

ORDER

This directs

the Clerk

to

final notice publication

in

the

Illinois Register

of the following

rules.

TITLE 35:

ENVIRONMENTAL

PROTECTION

SUBTITLE

B:

AIR POLLUTION

CHAPTER

I:

POLLUTION CONTROL BOARD

SUBCHAPTER

c:

EMISSION STANDARDS AND LIMITATIONS FOR

STATIONARY SOURCES

PART

211

DEFINITIONS AND GENERAL PROVISIONS

SUBPART A~ GENERAL PROVISIONS

Section

211.101

Incorporations by Reference

211.102

Abbreviations and Units

SUBPART

B:

DEFINITIONS

Section

211.121

Other Definitions

211.122

Definitions

Appendix A

Rule

into Section Table

Appendix

B

Section into Rule Table

AUTHORITY:

Implementing Sections

9 and

10 and authorized

by

Section

27

of the Environmental Protection Act

(Ill.

Rev.

Stat.

1987,

ch. 1ll~,pars.

1009,

1010 and 1027).

SOURCE:

Adopted as Chapter

2:

Air Pollution,

Rule

201:

Definitions,

R7l—23,

4 PCB 191,

filed and effective April

14,

1972;

amended in R74—2 and R75—5,

32 PCE

295,

at

3

Ill.

Reg.

5,

p.

777, effective February

3,

1979;

amended in R78—3 and

4,

35

PCB

75 and

243,

at

3

Ill.

Reg.

30,

p.

124, effective July

28,

111—312

---

—49—

1979;

amended

in R80—5,

at

7

Ill.

Reg.

1244, effective January

21,

1983;

codified at

7

Ill.

Reg.

13590;

amended

in R82—1

(Docket

A)

at

10

Ill.

Reg.

12624, effective July

7,

1986; amended

in R85—

21(A)

at

11

Ill.

Reg.

11747, effective June

29,

1987;

amended

in

R86—34 at

11

Ill. Reg.

12267, effective July

10, 1987;

amended

in

R86—39 at

11

Ill.

Reg.

20804, effective December

14,

1987;

amended

in R82—14 and R86—37 at

12

Ill.

Reg.

787,

effective

December

24, 1987;

amended

in R86—l8 at

12

Ill.

Reg.

7284,

effective April

8,

1988;

amended

in R86—10 at

12

Ill Reg.

7621,

effective April

11,

1988;

amended in R88—23 at

13

Ill.

Reg.

10862,

effective June

27,

1989;

amended

in R89—8 at

13 Ill.

Reg

17457,

effective January

1,

1990;

amended in R89—16 at

____

Ill.

Reg.

_________

,

effective _________________________

SUBPART

B:

DEFINITIONS

Section 211.122

Definitions

“Accumulator”:

The reservoir

of

a condensing unit

receiving the condensate from

a surface condenser.

“Acid Gases”:

For

the purposes of Section

9.4

the

Environmental Protection Act

(the Act)

(Ill.

Rev.

Stat.

1987,

ch.

111

~,

par.

1009.4), hydrogen chloride,

hydrogen fluoride and hydrogen bromide, which exist

as

gases,

liquid mist,

or any combination thereof.

“Actual Heat Input”:

The quantity

of heat produced by

the combustion

of fuel using

the gross heating value of

the fuel.

“Aeration”:

The practice of

forcing air through bulk

stored grain

to maintain the condition of

the grain.

“Afterburner”:

A device

in which materials

in gaseous

effluents are combusted.

“Air Dried Coating”:

Coatings that dry by the use of

air or forced air

at temperatures

up to 363.15°K (l94~

F).

“Annual

Grain Through—Put”:

Unless otherwise shown

by

the owner

or operator, annual grain through—put

for

grain—handling operations,

which have been

in o~eratton

for three consecutive years prior

to June

30,

1975,

shall be determined by adding grain receipts and

shipments

for

the three previous fiscal years and

dividing the total

by

6.

The annual’ grain through-put

for grain—handling operations

in operation

for

less than

three consecutive years prior

to June

30,

1975,

shall

be

determined

by

a

reasonable

three—year

estimate;

the

owner

or operator shall document the reasonableness of

his three—year

estimate.

11 1-313

---

—50—

“Architectural Coating”:

Any coating used for

residential

or commercial buildings or their

appurtenances,

or for industrial buildings which

is site

applied.

“Asphalt”:

The dark—brown

to black cementitious

material

(solid,

semisolid or liquid

in consistency)

of

which

the main constituents are bitumens which occur

natrually or

as a residue of petroleum refining.

“Asphalt Prime Coat”:

A low—viscosity liquid asphalt

applied to an absorbent

surface as the first

of

more

than one asphalt

coat.

“Automobile”:

Any first division motor vehicle as that

term

is

defined

in the Illinois Vehicle Code

(Ill.

Rev.

Stat.

1987,

ch. 95~,pars

1—100 et seq.).

“Automobile or Light—Duty Truck Manufacturing Plant”:

A

facility where parts are manufactured

or finished

for

eventual inclusion into

a finished automobile or light-

duty truck ready

for sale

to vehicle dealers,

but not

including customizers,

body shops and other

repainters.

“Automobile

or Light Duty Truck Refinishing”:

the

repainting of

used automobiles or light duty trucks.

“Batch Loading”:

The process of loading

a number

of

individual parts

at the same time

for degreasing.

“Bead—Dipping”:

The dipping of an assembled tire bead

into a solvent—based cement.

“British Thermal Unit”:

The quantity of heat

required

to raise one pound of water

from 600 F to 610

F

(abbreviated

btu).

“Bulk Gasoline Plant”:

Any gasoline storage and

distribution

facility that receives gasoline from bulk

gasoline terminals

by delivery vessels and distributes

gasoline

to gasoline dispensing facilities.

“Bulk Gasoline Terminal”:

Any gasoline storage and

distribution facility that

receives gasoline

by

pipeline,

ship or barge, and distributes gasoline

to

bulk gasoline plants

or gasoline dispensing facilities.

“Can Coating”:

The application of

a coating material

to

a single walled container

that

is manufactured

from

metal sheets thinner

than

29 gauge

(0.0141

in).

111-3.1

L

---

-51—

“Certified Investigation”

A report signed by Illinois

Environmental Protection Agency

(Agency) personnel

certifying whether

a grain—handling operation