ILLINOIS POLLUTION CONTROL BOARD

October 11,

1990

IN THE MATTER OF:

)

APPLICATION OF CALIFORNIA

)

R89-17(C)

MOTOR VEHICLE CONTROL PROGRAM

)

(Rulemaking)

IN ILLINOIS

PROPOSED RULE.

FIRST NOTICE.

OPINION

AND

ORDER

OF THE BOARD

(by J. Theodore Meyer):

This matter is before the Board on its own motion.

On October

18,

1989,

the Board opened this docket to gather

information

on

whether Illinois should adopt the California motor vehicle control

program.

An inquiry hearing was held on December 12, 1989,

and the

Board accepted written public comments until January 5,

1990.

On

April 12, 1990, the Board proposed, for first notice, that portions

of the California program be adopted in Illinois.

That proposal,

in subdockets

(A) and

(B), was published in the Illinois Register

on May 11,

1990, at 14 Ill. Reg.

6977.

On May 24,

1990,

the Board

directed the Department of Energy and Natural Resources

(ENR)

to

prepare an economic impact study (EcIS) on the proposal.

ENR filed

its

“Economic

Impact

Statement”

on

June

18,

1990.

The

Board

accepted further public comments on the proposal until August

1,

1990.

Today,

after review

of the record,

the Board creates

an

additional subdocket (C), proposes an additional rulemaking option,

and

sends

that additional proposal to

first notice.

The Board

recognizes that

its action

in proposing an additional subdocket

while still considering earlier proposals is unusual.

However, the

Board takes this course

so

as

to facilitate full comment on,

and

analysis of, the issues involved in this rulemaking,

and to build

a full record in this proceeding.

BACKGROUND

California has historically had stricter emission controls for

mobile sources than the rest of the country.

The other 49 states

are all subject to the same federal standard;

in fact,

the Clean

Air Act

(CAA)

preempts the states from setting emission standards

for new motor vehicles.

42 USC 7543(a).

The

CAJt

also provides for

a

waiver

of

that

preemption

for

California’s

motor

vehicle

emissions standards, however, and allows other states to adopt the

identical California standards.

42 USC 7507 and 7543(b).

In other

words,

a state may choose between the federal standards and the

California standards:

no state can adopt

a third standard.

The

test

in

deciding whether

adoption

of

a

proposed

new

standard

complies

with the

CAA

is

whether

auto

manufacturers

would

be

burdened with additional hardware requirements beyond the federal

115—3

5

3

---

2

and California standards,

i.e. whether a third vehicle would have

to be manufactured in order to comply with the proposed standard.

The

eight

states

which

belong

to

the

Northeast

States

for

Coordinated Air Use Management

(1~ESCAUN)have announced that they

will

seek

to

have

the

California

standards

adopted

by

their

states,1 and the individual NESCAUM states are proceeding through

that adoption process.

Only New York, which recently adopted the

California motor vehicle program effective with 1993 model-year

vehicles, has actually adopted California standards to date.

In

early

1989 NESCAUM commissioned Sierra Research

Inc.

to

assist in an analysis of the feasibility, the air quality benefits,

and the costs

of adopting the

California.. motor vehicle control

program

in the northeast states.

The

report

issued

by Sierra

concludes that the northeast could reduce motor vehicle emissions

of HC by 16,

NOx by 27,

and CO by 39

by the year 2010, when the

current generation of vehicles controlled at the federal standards

is replaced by lower emitting vehicles.

The Sierra report found

that the cost of these reductions would be about $150 per vehicle,

or about $600 per ton of HC and NOx removed.

(Ex.

2A.)

A graph

prepared for the American Lung Association shows that reductions

in Illinois for mobile sources could be approximately 27

for HC,

25

for CO,

and 39

for NOx.

(Ex.

3.)

Because of the requirements of the

CAA

discussed above,

any

adoption by Illinois of the California standards would have to be

made identical to the California standards which are in effect at

the time ~f adoption.

The current federal and the 1993 California

standards

are summarized below:

HC

CO

NOx

Federal

0.41 T*

3.4

1.0

California

0.25 N**

3.4

0.4

(1993)

(Standards are expressed in grams per mile.)

*T means total hydrocarbons.

**N means non—methane hydrocarbons only.

1

The eight states which belong to NESCAUM are Connecticut,

Maine,

Massachusetts, New Hampshire,

New Jersey, New York,

Rhode

Island, and Vermont.

2 The current

CAA

requires the states to adopt standards at

least two years before those standards are effective.

42 U.S.C.

7507.

It is not clear whether the amendments to the

CAA

currently

pending before the U.S. Congress would affect that provision in any

way.

115—35 4

---

3

The California program also includes other provisions relating to

production

line

testing,

certification

of

conformity,

nonconformance penalties,

tampering,

useful

life,

inspection and

maintenance testing, on—board diagnostics, and recall.

The

Board

is

aware

that

the

United

States

Congress

is

currently considering various proposals to adopt the California

standards

as nationwide

requirements,

as

a part

of the current

action on amending the CAA.

Both the House of Representatives and

the Senate passed bills which contained parts

of the California

1993 program, although the two bills differ in several

ways.

The

CAA

amendments,

including

action

on

motor

vehicle

emission

standards,

are presently before

a conference committee.

Because

of the uncertainties of when,

and if,

a bill will be agreed upon,

what the bill will contain on the issue of motor vehicle emission

standards,

and whether

the President will sign such a bill,

the

Board will proceed with first notice action in this new subdocket.

PRIOR BOARD PROPOSALS

As noted above,

on April

12,

1990,

this Board proposed that

portions of the California motor vehicle control program be adopted

in Illinois.

The April 12 opinion and order contained two slightly

different proposals.

The docket

(A) proposal includes regulations

on testing, certification procedures, importation, and tailpipe and

evaporative emission standards for 1993 and subsequent model year

motor vehicles, motor vehicle engines, and aftermarket parts.

The

docket

(B) proposal is identical,

except that it does not contain

the

three-year

phase-in

provisions

of

docket

(A).

Those

two

proposals have been published for

first notice,

and the comment

period has closed.

The Board takes no further action on dockets

(A) or

(B)

today,

but those proposals still remain “alive”.

The

Board intends to consider further action on this docket, including

all subdocket proposals, after federal action

(or inaction) on the

pending

CAA

amendments occurs.3

TODAY’S REGULATORY PROPOSAL

Initially, please note that the proposal set forth today does

not

include

adoption

of

the

California program

for

heavy—duty

vehicles.

Heavy—duty

vehicles

are

defined

as

those

having

a

manufacturer’s gross vehicle weight rating of greater than 8500

pounds.

(See Section 241.101(b).)

The proposals in dockets

(A)

The Board notes that

if no final

action

is taken on the

pending

CAA

amendments during this Congress,

that bill

(5.

1630)

will die and the next Congress would have to begin the process of

amending the

CAA

from scratch.

Therefore,

the Board will

know

whether Congress and/or the President will act by the time the next

U.S. Congress is seated, in January 1991.

11.5—35

5

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4

and

(B)

also do not cover heavy duty vehicles.

While the opinion

in

those

subdockets

stated

that

heavy

duty

vehicles

are

not

included in the proposal, the actual language of those subdockets

does not specifically exclude those vehicles.

If the Board decides

to proceed further with those subdockets,

clarifying language will

be added.

Docket

(C) prohibits the sale, use, possession

(for those in

the business of

selling,

renting,

or

leasing new motor vehicles)

or registration of any vehicle which does not conform with proposed

Part

241.

The

emission

standards,

required

diagnostic

and

malfunction

systems,

and

warranty

requirements

are

those

“established by the State of California pursuant to Section 209 of

the Clean Air Act.”

In essence, docket

(C) would require the sale

and

registration

of

only

those

vehicles

which

comply

with

California standards in effect at the time of the manufacture

of

the individual vehicle.

Docket

(C)

would become effective with

1993 model-year vehicles.

Subpart

A

is

entitled

“Purpose,

Applicability,

and

Definitions”.

Section 241.100 “Purpose” states that the purpose

of Part 241 to place controls on emissions from motor vehicles so

as

to

reduce

ozone

levels,

thus

“restoring,

maintaining,

and

enhancing the purity of the air of this state.”

(Ill.Rev.Stat.

1989, ch. 111 1/2, par. 1008.)

Section 241.101 provides that this

Part applies to all 1993 and subsequent model—year motor vehicles,

motor vehicle engines, and air contaminant emission control systems

offered for sale or sold for registration in Illinois.

However,

subsection

(b)

states that these rules do not apply to heavy-duty

vehicles or to motor vehicle engines designed for installation in

a heavy-duty

vehicle.

Section

241.102

contains

definitions

of

terms used

in the

rules,

and Section

241.103

is

a

severability

clause.

Proposed

Subpart

B

“Prohibitions”

includes

sections

prohibiting the sale, use, or possession of vehicles which are not

in compliance with this Part.

Section 241.120 bars any person,

dealer,

or person

who

is

engaged

in the

business

of

selling,

renting,

or

leasing motor

vehicles

from,

selling,

renting,

or

leasing

a

1993

or

subsequent model—year vehicle which does not

conform with the emission standards,

equipment requirements,

and

warranty provisions of the Part.

Subsection

(d)

of that section

requires a seller to certify to the purchaser,

in writing, that the

motor vehicle conforms with the requirements of the Part.

Section

241.121 prohibits any person who is a resident of or operates an

established

place

of

business

in

Illinois

from

importing,

delivering, purchasing,

renting,

leasing, acquiring,

or receiving

a

1993

or

subsequent

model—year

motor

vehicle

for

use,

registration,

or resale

in Illinois unless the vehicle complies

with this Part.

Finally, proposed Section 241.122 precludes any

person in Illinois who

is in the business of selling, renting,

or

leasing motor vehicles

or motor vehicle engines from importing,

115—

3

56

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5

receiving, or otherwise acquiring a 1993 or subsequent model—year

vehicle

or

motor

vehicle

engine

which

is

intended

for

use,

registration,

leasing or rental

in Illinois unless

that vehicle

complies with this Part.

Subpart C contains exemptions,

set forth in proposed Section

241.140,

to

these

proposed

rules.

That

section

allows

for

replacement of vehicles which are damaged, become inoperative, or

are stolen while an Illinois resident was out of state, and exempts

vehicles transferred

by

inheritance,

or

transferred

by

a

court

decree of divorce, dissolution, or legal separation.

(Subsections

(a)

and

(b).)

Subsection

(b)

also contains an exception for any

vehicle sold after the effective date of this Part,

if that vehicle

was registered in Illinois before that effective date.

Subsection

(C)

exempts

vehicles

owned

by

a

rental

vehicle

company

and

registered

in

another

state,

if

that

vehicle

is

operated

in

Illinois only on a temporary basis.

“Temporary basis”

is defined

as a period of 21 days or less.

Finally, subsection

(d) allows for

bona fide moves to Illinois from another state.

Subpart D contains the standards which all vehicles regulated

under this Part must meet.

Section 241.160 provides that all 1993

and subsequent model—year motor vehicles registered

in Illinois,

as well as motor vehicle engines, must meet the emission standards

established by the State of California pursuant to Section 209 of

the

CAA

(42 U.S.C.

7543)

and effective at the time of the motor

vehicle’s

manufacture.

Proposed

Sections

241.161

and

241.162

require

that

1993

and

subsequent

model—year

motor

vehicles

registered in

Illinois,

and motor vehicle engines, also meet the

malfunction

and

diagnostic

system

requirements

and

warranty

provisions established by the State of California.

In sum,

only

those motor vehicles and motor vehicle engines which comply with

the California standards in effect at the time of the manufacture

of the vehicle or engine could be registered in Illinois.

By tying

the Illinois

standards directly to

the manufacture

of

vehicles

which meet the California standards,

Illinois will avoid the rule

updating

process

which

would

otherwise

be

required,

since

California

updates

its

regulations

very

frequently.

In

this

manner,

Illinois citizens will be assured of the most up—to—date,

least polluting cars available.

CONCLUSION

The Board’s goal in proposing these

separate subdockets for

first notice and subsequent consideration is to raise several legal

issues

for comment, and to explore the best way for Illinois to

improve air quality by controlling emissions from mobile sources.

The opinion proposing subdockets

(A) and

(B),

issued on April

12,

1990,

contained

several

issues

upon which

the

Board requested

comment.

Likewise,

the Board requests comment on several

issues

raised by today’s proposal.

First,

the Board recognizes that its

proposal to require the sale, use, and registration in Illinois of

115—357

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6

only those motor

vehicles manufactured to California standards,

whatever

those

standards may

be at

the

time

of

the

vehicle’s

manufacture, represents a departure from past practice.

The Board

requests comment and analysis on the legality and practicality of

such action.

Second, the Board will explore the option of making

the rules in subdocket (C) effective with 1992 model-year vehicles,

rather than waiting until

1993.

If the Board were to take that

action,

the

rules

would

become

effective

in

Illinois

almost

immediately after final adoption.

The Board requests full comment

on

this possibility,

including discussion

of the

environmental

benefits and technical feasibility

of

a

1992

effective date,

as

opposed to

a

1993

effective

date.

Of

course,

the Board

also

requests comment on all other aspects of today’s proposal.

ORDER

The

Board

hereby

directs the

Clerk

of the

Board

to cause

publication in the Illinois Register of the first notice of the

following proposed regulations, contained in docket

(C):

PART 241

EMISSION STANDARDS FOR MOTOR VEHICLES

AND

MOTOR VEHICLE ENGINES

SUBPART A:

PURPOSE, APPLICABILITY,

AND

DEFINITIONS

Section 241.100

Purpose

The

General Assembly

of

the

State

of

Illinois

has

found

that

Illinois should RESTORE,

MAINTAIN,

AND

ENHANCE THE PURITY OF THE

AIR OF THIS STATE IN ORDER TO PROTECT HEALTH,

WELFARE,

PROPERTY,

AND

THE QUALITY OF LIFE.

One threat to good air quality in the

State

is the formation of ozone.

Mobile sources are the largest

source

of

carbon

monoxide

and

hydrocarbon

emissions,

and

significant

sources

of

nitrogen

oxide

emissions,

all

of

which

contribute to the formation of ozone.

It is the purpose of this

Part to place controls on emissions from motor vehicles so as to

reduce ozone levels, thus RESTORING, MAINTAINING, AND

ENHANCING THE

PURITY OF THE AIR OF THIS STATE.

(Ill.Rev.Stat. 1989,

ch. 111 1/2,

par.

1008.)

Section 241.101

Applicability

a)

This Part shall apply to all 1993 and subsequent model-

year

motor

vehicles,

motor

vehicle

engines,

and

air

contaminant emission control systems offered for

sale,

or sold, for registration

in this state.

b)

Notwithstanding subsection

(a), this Part does not apply

to

any

motor

vehicle

having

a

manufacturer’s

gross

vehicle weight rating of greater than 8500 pounds, or to

115—35

8

---

7

any motor vehicle

engine designed for

installation

in

such vehicle.

Section 241.102

Definitions

The definitions of the Environmental Protection Act (Ill..Rev.Stat.

1989,

ch.

111

1/2,

par.

1001

et seq.)

apply to this

Part.

The

following definitions also apply to this Part:

“Act”

means

the

Environmental

Protection

Act

(Ill.Rev.Stat.

1989,

ch.

111 1/2, par. 1001 et seq.)

“Air contaminant emission control system” means equipment

designed for

installation on

a motor vehicle or motor

vehicle

engine

for

the

purpose

of

reducing

the

air

contaminants

emitted from the motor

vehicle

or motor

vehicle engine,

or a system or engine modification on

a

motor vehicle

or motor

vehicle

engine

which

causes

a

reduction

of

air

contaminants

emitted

from the motor

vehicle

or

motor

vehicle

engine,

including

but

not

limited

to exhaust

control

systems,

fuel

evaporation

control systems and crankcase ventilating systems.

“Dealer” means

a person registered as a dealer under the

Illinois Vehicle Code

(Ill.Rev.Stat.

1989,

ch.

95

1/2,

pars.

5—101 and 5—102).

“Model year” means the manufacturer’s annual production

period which includes January

1 of

a calendar year

or,

if the manufacturer has no annual production period, the

calendar

year.

In

the

case

of

any

motor

vehicle

manufactured

in

two

or

more

stages,

the

time

of

manufacture

shall

be

the

date

of

completion

of

the

chassis.

“Motor vehicle”

is

a vehicle which

is

self-

propelled.

“New motor vehicle” means a motor, vehicle, the

equitable

or

legal

title to which has never

been transferred to the ultimate purchaser.

“Sale” means the transfer of title to a motor

vehicle or motor vehicle engine to the ultimate

or subsequent purchaser, or the lease or rental

of a new motor vehicle to a person.

“Used motor vehicle” means

any motor vehicle

which is not a new motor vehicle.

“Vehicle” means

a device by which any person

or property may be propelled,

moved,

or drawn

115—359

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8

upon

a

highway,

except

a

device

moved

exclusively by human power or used exclusively

upon stationary rails or tracks.

Section 241.103

Severability

Each Section of this Part shall

be deemed severable,

and in the

event that any Section of this Part

is held to be invalid,

the

remainder of this Part shall continue in full force and effect.

SUBPART B:

PROHIBITIONS

Section 241.120

Prohibitions Against Sale

a)

No dealer shall sell a 1993 or subsequent model year new

or used motor vehicle which is not

in compliance with

this Part, unless the vehicle is sold to another dealer,

sold for the purpose of being wrecked or dismantled, sold

exclusively for off—highway use, or sold for registration

and use out of state.

b)

No person shall sell, offer

or deliver for sale,

to the

ultimate purchaser or to any subsequent purchaser a 1993

or subsequent model year new or used motor vehicle

for

registration in this state,

which

is not in compliance

with the rules and regulations as adopted in this Part

on

emission

control

standards

and

emission

control

systems and devices.

c)

No person who

is engaged in this state

in the business

of selling to an ultimate purchaser or renting or leasing

motor vehicles or

motor vehicle engines (including but

not

limited

to,

manufacturers,

distributors,

and

dealers),

shall

sell,

or offer to sell,

to an ultimate

purchaser who is a resident of or doing business in this

state, or lease,

offer to lease, rent,

or offer to rent,

in this

state

a

1993

or

subsequent

model

year motor

vehicle,

motor

vehicle

engine,

or

vehicle with

a

new

motor vehicle engine, which is intended primarily for use

in or for registration in this state, unless that vehicle

is in compliance with the Act and this Part.

d)

Prior to or at the time of delivery or sale,

the seller

shall

certify

to

the purchaser,

in writing,

that the

motor vehicle

conforms with the requirements

of this

Part.

Section 241.121

Prohibition Against Use

a)

No

person

who

is

a

resident

of

or

who

operates

an

established place

of business within this state

shall

import,

deliver,

purchase,

rent,

lease,

acquire,

or

115—360

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9

receive

a 1993

or subsequent model year motor vehicle,

motor vehicle engine, or motor vehicle with a new motor

vehicle engine for use, registration, or resale in this

state unless such motor vehicle engine or motor vehicle

is in compliance with the Act and this Part.

b)

“Established place of business”, as used in this Section,

means

a place actually occupied either continuously or

at regular periods.

Section 241.122

Prohibition Against Possession

No person who

is engaged in this state in the business of selling

to an ultimate purchaser,

or renting or leasing motor vehicles or

motor

vehicle

engines

(including,

but

not

limited

to,

manufacturers, distributors, and dealers),

shall import,

deliver,

purchase, receive, or otherwise acquire a 1993 or subsequent model

year motor vehicle,

motor vehicle engine,

or vehicle with a new

motor vehicle engine which

is intended for use primarily

in this

state,

for

sale

or

resale

to

an

ultimate

purchaser who

is

a

resident of or doing business in this state,

or for registration,

leasing or rental in this state, unless that vehicle or engine is

in compliance with this Part.

SUBPART

C:

EXEMPTIONS

Section 241.140

Exemptions

a)

This Part

does not apply

to

a vehicle

acquired by

a

resident

of this state

for the purpose of replacing a

vehicle registered to such resident which was damaged or

became inoperative beyond reasonable repair or was stolen

while out of this state; provided that such replacement

vehicle

is

acquired

out

of

state

at

the

time

the

previously

owned

vehicle

was

damaged

or

became

inoperative or was stolen.

b)

This Part shall not apply to

a vehicle transferred

by

inheritance,

or by a decree of divorce, dissolution,

or

legal

separation

entered

by

a

court

of

competent

jurisdiction, or to any vehicle sold after the effective

date of this Part if the vehicle was registered in this

state before such effective date.

c)

This Part does not apply to vehicles owned by

a rental

vehicle company and registered in another state,

if such

vehicle

is operated

in Illinois on

a temporary basis.

“Temporary basis” means a period of

21 days or less.

d)

This Part does not apply to any motor vehicle having a

certificate of conformity issued pursuant to the Clean

115—361

---

10

Air

Act

(42

U.S.C.

§7401

et

seq.)

and

originally

registered in another state by a resident of that state

who subsequently establishes residence in Illinois.

SUBPART D:

STANDARDS

Section 241.160

Emission Standards

All

1993 and subsequent model—year motor vehicles registered

in

Illinois shall meet the emission standards established by the State

of California pursuant to Section 209 of the Clean Air Act

(42 USC

7543) and effective at the time of the motor vehicle’s manufacture.

Section 241.161

Malfunction and Diagnostic Systems

All

1993

and subsequent model—year motor vehicles registered

in

Illinois

shall

meet

the

malfunction

and

diagnostic

system

requirements established by the State

of California pursuant to

Section 209 of the Clean Air Act

(42 USC

7543)

and effective at

the time of the motor vehicle’s manufacture.

Section 241.162

warranty Provisions

All

1993 and subsequent model

year motor vehicles registered

in

Illinois

shall

meet the warranty provisions

established

by the

State of California pursuant to Section 209 of the Clean Air Act

(42 USC

7543)

and effective at the time of the motor vehicle’s

manufacture.

IT IS SO ORDERED.

J.D. Dumelle was not present.

I,

Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was adopted

on

the

//~Z

day

of

~

,

1990,

by

a

vote

of

~7.

Dorothy N. 9~n, Clerk

Illinois Po~,2’utionControl Board

115—362