ILLINOIS POLLUTION CONTROL BOARD
February 8, 1990
IN THE MATTER OF:
PACT DEFICIENCIES
-
)
R89-l6
AMENDMENTS TO 35 ILL. ADM.
)
(Rulemaking)
CODE PARTS 211 AND 215
ORDER OF THE BOARD (by J.D. Dumelle):
This matter comes before the Board upon a January 24, 1990
motion to dismiss or sever proposed changes to the Generic Rule and
SOCMI Leaks Rule filed by the “Industry Group.” On January 25,
1990, the Board adopted an Order which noted that the Stepan
Company had filed a motion to strike and motion for application of
Section 28 rulemaking and granted the Illinois Environmental
Protection Agency (Agency) an extension of time to February 9, 1990
to respond to the motion. On January 31, 1990, the Agency filed
a motion in response to the Industry Group’s motion to dismiss or
sever. Although entitled a “motion,” the Board construes this
filing as a response to the Industry Group’s motion. As a result,
the Industry Group’s motion is ripe for decision. The Board today
finds that the proposed amendments to the Generic Rule and the
SOCMI Leaks Rule are not founded upon “federal law”, grants the
motion to sever, and creates a subdocket (B) in which to address
these proposed amendments under Section 28 of the Act.
In its motion, the Industry Group requests the Board to
dismiss or sever from this docket that portion of the docket which
consists of proposed changes to the Generic Rule, (specifically 35
Ill. Adin. 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 argues 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 Illinois Environmental Protection
Act (Act). The Industry Group argues that unlike the other rules
proposed in this docket, the United States Environmental Protection
Agency (USEPA) has not disapproved the Board’s existing Generic
Rule or the SOCMI rule, and that the Agency’s proposed rules will
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 points 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
iOS—163
2
letter, but rather were identified subsequently. The Industry
Group argues that the justification documents provided to the Board
to support the required nature of these changes do not support the
proposition that these are in fact federally required rules. With
regard to the Generic Rule, the Industry Group points 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 argues
that USEPA has not issued a SIP call letter on the Generic Rule,
nor has USEPA disapproved the rule, which has been submitted to
USEPA for SIP approval. With regard to the SOCNI rule, the
Industry Group states that the Agency has offered as support simply
the Control Technique Guidelines (CTG) 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 argues that the additional support
that the Agency has provided during the course of this proceeding
(i.e., (1) the “Blue Book”, (2) a Federal letter, and (3) the
settlement agreement) is insufficient to support the required rule
status. With respect to the Blue Book, the Industry Group argues
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 r.egulatory 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 submits 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 believes that this letter was solicited by the
Agency from USEPA to justify these rule changes. The Industry
Ios_1,:~
3
Group argues 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,
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 beco~ne
required rules simply by agreement.
(Industry Group Motion, p. 3)
Finally, the Industry Group notes 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 argues that the mere proposal by USEPA to disapprove these
rules is insufficient to elevate these rules to required rule
status for purposes of this rulemaking. The Industry Group argues
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 commented on other substantive issues
currently pending in this docket, i.e., whether economic
reasonableness and technical feasibility must be considered in a
Section 28.2 rulemaking. The Board addresses this issue below.
In its response to the Industry Group motion, the Agency
states as follows:
j~l~—
1
(~S
4
(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-l6 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.
This constitutes the entire substance of the Agency response to the
Industry Group’s motion.
The Board notes 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. The relevant portions of Section 28.2 are as follows:
a. For the purposes of this Section, “required
rule” means a rule that is needed to meet the
requirements of the federal Clean 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
108—1
‘~
5
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.
***
e. When the Agency proposes a rule which it
believes to be a required rule, the Agency
shall so certify in its proposal, identifying
the federal law to which the proposed rule
will respond. The Board shall reference such
certification in the first notice of the
proposal published in the Illinois Register
pursuant to the Illinois Administrative
Procedure Act. First notice of the proposal
shall be submitted for publication in the
Illinois Register as expeditiously as is
practicable, but in no event later that 6
months from the date the Board determines
whether an economic impact study should be
conducted.
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 Ill. Req. 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 notes 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 believes 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
opposes this position. The Board 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. At hearing on December 7, 1989, a
representative of the Agency stated:
108—I (7
6
The Agency is not offering testimony on the
techncal feasibility of compliance, the
economical reasonableness of these proposed
regulations or the affected facilities. This
regulatory package contains corrections to
deficiencies in the PACT 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.)
Obviously, the Agency’s interpretation of Section 28.2 is 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
points to USEPA’s filing of September 29, 1989, in which David Kee,
Director of USEPA’s Air and Radiation Division, states that if the
Agency’s proposed regulations were adopted by the Board, USEPA’s
intent is to approve the regulations as a SIP revision in lieu of
federal promulgation. Based upon this statement, the Agency states
that the Board must adopt the rules as written, or threaten the
approvability of the SIP revision.
In its motion, the Industry Group offers comment and argument
strenuously opposing the Agency’s position as to whether economic
reasonableness and technical feasibility are to be considered in
a Section 28.2 rulemaking. The Board notes, also, that a good deal
of hearing time was dedicated to a discussion of whether Section
28.2 of the Act requires or excuses a consideration of economic
reasonableness and technical feasibility. Further, on January 18,
1990, the Illinois Steel Group filed a Memorandum of Law Regarding
Adoption of PACT Rules, which addresses these very issues. In this
Memorandum, the Steel Group argues very strenuously that the Board
has full authority under federal and state law, including Section
28.2, to consider economic reasonableness and technical
feasibility.
The Board notes that post—hearing comments are scheduled to
be filed on February 9, 1990, and the Board expects further comment
and argument on this issue of whether economic reasonableness and
technical feasibility are to be considered in a Section 28.2
rulemaking. As a result, the Board does not today render a
108-~-i68
7
decision on whether economic reasonableness and technical
feasibility are to be considered in a Section 28.2 rulemaking. The
Board will address this issue in detail in a forthcoming opinion.
As a preliminary matter on the issue of the Agency
certification, the Board notes that it has today proceeded to
Second Notice in the Board Procedural Rules rulemaking R88-5. In
that Second Notice, the Board addresses the issue of the
reviewability of an Agency certification in proposed amendments to
35 Ill. Adm. Code 102.Subpart F. Although those proposed rules are
not yet effective, the Board’s action today is intended to be
consistent with that discussion.
The Board finds 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 Agency 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 finds that the proposed amendments to the Generic rule and
the SOCMI rule are not founded upon “federal law” as that term is
lOS--i 6~)
8
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 persuaded 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.
Rather than dismissing these portions of the proposal
outright, the Board believes that the wisest course is to open up
a subdocket (B) in which to consider the amendments proposed to the
Generic rule and the SOCMI rule. The Board hereby opens subdocket
çB) and directs that the proposed amendments to the Generic rule
and the SOCMI rule be placed therein. That which remains of the
existing proposal and the record attendant thereto shall constitute
R89—16, subdocket (A). As a result of this separation of dockets,
the Agency must, in essence, re—propose the amendments to the
Generic rule and the SOCMI rule. The Board notes that in light of
the timeframes associated with these proposed amendments and in
light of the federal parallel processing, the Agency may or may not
wish to re-propose the subdocket (B) rules. The Agency is hereby
instructed to inform the Board on or before February 20, 1990,
whether or not it wishes to proceed with the subdocket (B) proposed
rules under the Section 28 rulemaking process, and if so, whether
or not it believes that an EcIS should be done.
The Board recognizes that at first blush this order 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 (“PACT”) rules and
PACT rule improvements specified for Illinois in Exhibit B.”
(Ertiphasis 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 PACT rules and PACT rule
improvements, including the Generic and SOCMI rules, specified for
Illinois in Exhibit B. The federal promulgation will continue, at
108—172
9
its own pace, without regard to this action.
The Board further recognizes that this Order, and the
circumstances surrounding this proceeding, may be of such a nature
that the Agency might find it more expedient to appeal the holdings
herein directly to the appellate court. If this is the Agency’s
wish, the Board would be willing to certify the issue for purposes
of appeal pursuant to 35 Ill. Adm. Code 101.304.
Any issues remaining after today’s order will be addressed
when the Board proceeds on the remainder of the R89-16, subdocket
(A) proposal.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the a,bove Opinion and Order was adopted
on the
__________
day of
~
,
1990, by a vote of
7-~
.
/~ ~- ~Z~i
Dorothy i’~/Gunn, Clerk,
Illinois ~ollution Control Board
IOS—171
