ILLINOIS POLLUTION CONTROL BOARD
March
22,
1990
IN THE MATTER OF:
)
)
LIMITS TO VOLATILITY
)
OF GASOLINE
)
R88-30
(A)
)
(Rulemaking)
EMERGENCY RULE.
)
PROPOSED OPINION AND ORDER
(by
J.
Oumelle):
On February
15,
1990,
the Board adopted
an Opinion and Order
in R88-30(A)
establishing
a statewide 9.5 pounds per square
inch
(“psi”)
Reid Vapor
Pressure (“RVP”)
standard during
the months
of July and August for this summer
and each summer thereafter.
Subsequent
to that date,
the adopted regulations
were filed with the Secretary of States Administrative Code Division for
publication
in the
Illinois Register and
for official
filing.
On March
16,
1990, the United States Environmental Protection Agency (“USEPA”)
filed
a
motion
to reconsider the Board’s February 15,
1990 decision.
Although
the
response period has not yet expired,
the Board believes that
it must address
this motion today or undue delay or material prejudice would result for
the
reasons discussed below.
The Board
today adopts
an emergency rule which
addresses USEPA’s concern.
IJSEPA’s Motion for Reconsideration
As
a preliminary matter, the Board notes
that the adoption of
the
gasoline volatility rule in R88—30(A) followed ample public notice and
comment.
The Board received comments from many individuals
and incorporated
those comments which the Board found
to be reasonable.
USEPA participated
in
this rulemaking and at
no time communicated any problem with the
language.
Iii
fact,
USEPA specifically noted
its support for the proposed amendments.
That
notwithstanding,
however, USEPA states
in
its motion that two subsections
of
text adopted
by the Board on February 15,
1990, are not consistent with USEPA
requirements
for approval
and
that unless
the Board corrects these “defective”
sections, USEPA “must disapprçve the incorporation of this rule into the
State’s plan.”
The specific concerns are as follows.
First,
Section 215.585(e) allows the measurement
of RVP by
test method
ASTM 0323 which has not been approved
for use
in this fashion by USEPA.
The
other method
of measurement
contained in Section 215.585(e), which
is the
method currently approved by LLSEPA
to measure the RVP of gasoline,
is
the
modification of ASPI D323 known as the “dry method”,
as
set forth
in 40
CFR
Appendix
E.
To comply with
federal requirements, USEPA states
that the
subsection should
be modified
to read:
The Reid vapor pressure of gasoline shall
be measured in accordance
with a modification of ASTM 0323 known as the~.”drymethod”
as set
forth
in
40 CFR, Appendix
E,
incorporated by reference
in Section
215.105.
109—6t9
-2—
Unless this subsectidn
is modified, USEPA states
that
it would have
“no
alternative but to disapprove the Opinion and Order of the Board
in proceeding
R88—30(A).”
Second, Section 215.585(g) grants the
Illinois Environmental Protection
Agency (“Agency”)
authority to approve alternate sampling,
test methods,
or
procedures without USEPA review and approval.
USEPA states that “this broad
discretion violated Federal
requirements contained on page 2-14 of Issues
Relating to VOC Regulation Cutpoints Deficiencies
and Deviation,
Clarification
to Appendix 0 of the November 24,
1987 Federal Register
(52 FR 45044).”
In
support of
this belief, USEPA states:
Based on those requirements, the State was notified on June 17,
1988,
that
it must revise the existing federally approved plan,
removing
this exclusive grant of
discretion from all volatile organic compound
rules; such discretion renders the plan inadequate to attain and
maintain the National Ambient Air Quality Standards (NAAQS)
for
ozone.
(See
the June
17,
1988,
letter
to Michael
J. Hayes,
Manager,
Division of Air Pollution Control,
IEPA,
from David Kee, Director,
Air and Radiation Division, USEPA,...)
Furthermore,
in that recent case law indicates that such State
discretionary approvals would modify the State Implementation Plan
without Federal
comment or rulemaking, USEPA cannot approve Section
215.585(g)
as
it
is now written.
(See for example United States of
America v.
Allsteel
Inc.
(No. 87C4638 ND
iLLINOIS, August 30,
1989).
(USEPA Motion,
p.
2)
To comply with federal requirements, USEPA states that the following
language
must be added
to subsection
(g)
to complete the
section:
Upon approval
of the alternate sampling or test methods or procedures
contained
in subsections
(d),
(e), and
(f),
the Agency will
submit
the methods or procedures
to the United
States Environmental
Protection Agency (USEPA)
as
a revision
to the State plan.
Alternate
methods or procedures become effective only upon approval of the
incorporation
of the alternative method
or procedure in the State
plan by USEPA.
Procedural Aspects
The Board notes that motidns
to reconsider rulemaking decisions pose
significant procedural problems under the Illinois Administrative Procedure
Act (“APA”).
Once the Board files adopted amendments with the Secretary of
State,
the Board cannot simply amend those
amendments without adherence to one
of
the rulemaking processes set forth
in the APA,
i.e., General Rulemaking or
Emergency Rulemaking.
In fact, once the Board proceeds~tosecond notice
fri a
rulemaking proceeding,
the substance of
the prdposed amendment
is established
and cannot
be amended except
as
in response to~aquestion or suggestion of the
Joint Committee
on
Administrative Rules.
See Ill. Rev. Stat.,
ch.
127, par.
1005.1(b).
Thus, the changes suggested by USEPA’s motion, whether
109—620
—3—
substantively valid or not, present the following challenge—-how does the
Board adopt the changes
in time for the gasoline volatility rule
to
be
effective and enforceable come July
1, 1990?
The reasons that this rule must be enforceable by July
1, 1990,
are fully
discussed
in the Board’s Opinion
of February 15,
1990.
Generally, the
reduction of volatile organic material
(“VOM”) emissions estimated
to result
from the operation of the gasoline volatility rule
is approximately 200 tons
per day in the Chicago metropolitan area alone.
In other words,
if this rule
is enforceable,
it can reduce the emission of ozone forming materials by about
200 tons per day
in the Chicago area.
As the Board stated
in the R88-30
proceeding:
Ozone pollution is one of the nation’s most serious and complex air
pollution problems.
Ozone
is a photochemical oxidant and
the major
component of smog.
Unlike other pollutants,
ozone
is
not emitted
directly
into the atmosphere but is formed through chemical reactions
among precursor emissions (volatile organic compounds or VOCs,
nitrogen oxides, carbon monoxide and other compounds)
in the presence
of sunlight.
The rate of ozone production
is
increased when
atmospheric temperatures are warmer.
The hot
summers of
1987 and 1988 resulted
in high levels of ozone
in
the Chicago
and Metro East non-attainment
areas.
Readings
as high as
0.22 ppm by
volume were recorded, which
is some 83
above the federal
and Illinois air quality standard of 0.12 ppm by volume.
However,
the ozone problem is not specific to
Illinois.
The United States
Environmental Protection Agency (USEPA) estimates that there are more
than 80 urban areas where the ozone air quality standard is being
exceeded.
New and emerging scientific data
is shedding more
light on the effect
high levels of ozone have on the general public.
Ozone severely
affects individuals with chronic heart,
lung,
and circulatory system
diseases.
Otherwise healthy individuals who exercise while ozone
levels are high can experience reduced functioning of
the lungs,
leading to chest pains, coughing, wheezing, and pulmonary
congestion.
In addition to the health effects, ozone has been
estimated to cause two to three billion dollars worth of crop damage
nationally each year.
Also, because the Chicago area
has exceeded
the ozone standard repeatedly, USEPA has imposed
a construction ban
on the Chicago non— attainment area which prohibits the construction
or modification of major air pollution sources and thus restricts the
economic development of the Chicagoland area.
(Emphasis added.)
Thus,
the Board
is quite concerned about effectuating
an enforceable rule
by July 1,
1990.
However,
the Board also noted
in the R88-30 proceeding that
enforcement
of the rule is contingent upon approval of the rule
by USEPA
as
a
revision to the State Implementation Plan (“SIP”).
See American Petroleum
Institute
v.
New York State Department of Environmental Conservation,
29 ERC
1457 (D.N.Y. April
4,
1989).
USEPA will also require some time to approve the
State
rule as
a SIP revision.
109—621
—4—
Obviously, the APA general rulemaking processes (i.e., first notice,
second notice, and final
adoption) are not appropriate to address USEPA’s
concerns
in time to have an enforceable rule in place
by July
1,
1990.
However, both the Environmental Protection Act (Act)
and the APA contemplate
the existence of exceptional
situations which can appropriately be handled
only by adoption of
rules
in a shorter-than—usual time period.
The Board
believes that addressing the noted concerns in this rulemaking
is one of those
situations which requires
such expedited rulemaking.
Pursuant to Section 27(c)
of the Act and Section 5.02 of the APA,
the
Board may adopt
a temporary emergency rule effective for 150 days without
utilizing the usual
rulemaking procedural
steps.
The
150 days will encompass
the regulatory control
period
of July and August
of this year and allow time
for consideration
of other steps
to address USEPA’s concerns for next year.
The APA terms this type of rulemaking
as an “emergency rulemaking”, and
defines “emergency”
as
“the existence of any situation which
an agency
finds
reasonably constitutes
a threat
to the public interest, safety, or welfare.”
The Board believes that the ozone problem
in Illinois reasonably constitutes
such
a threat~,thatthe gasoline volatility rule,
if approved
by USEPA, would
result
in a significant reduction of ozone precursors,
and that the only means
by which the Board can effectuate
an enforceable gasoline volatility rule
under the circumstances presented herein and
in time to realize the benefits
therefrom
is
by emergency rulemaking pursuant to Section 5.02 of
the APA.
Thus, the Board will proceed pursqant to the emergency rulemaking
procedures
to address USEPA’s concerns’-.
As a preliminary matter, the Board
notes that the changes USEPA requests are of
a substantive nature.
Unfortunately, USEPA did
not raise these
concerns during the R88—30(A)
proceeding, although
it was kept apprised of the Board’s progress during
that
rulemaking
and although
it participated actively.
As USEPA’s concerns were
not aired previously,
the Board does not have much of
a record upon which
it
can determine what effect these changes will have.
Further,
the Board
is not
today proposing a general rulemaking to address USEPA’s concerns
on
a
permanent
basis.
Rather,
as subdocket
(B)
has already been proposed, and is
awaiting the preparation of
an
Economic Impact Study, the merits
of USEPA’s
1The Board notes
that under Section 27(c), paragraph
1,
of the Act, the
Board may promulgate
a permanent regulation that “shall
take effect without
delay and the Board
shall
proceed with hearings
and studies required by
this
Section while
the regulation continues
in effect.”
This procedure may be used
“when the Board finds that
a severe public
health emergency exists.”
The
Board does not believe that
the present situation regarding ozone constitutes
a “severe public health emergency”.
2The Board
notes two recent
situations
in which the emergency rulemaking
authority was invoked:
R86-9, Hazardous Waste Prohibition, October 23,
1986,
and R88-12, Managing Tire Accumulations to
Limit
the Spread of the Asian Tiger
Mosquito,
April 21,
1988.
R86-9 was the subject
of appeal
in Citizens For A
Better Environment
v.
Illinois Pollution
Control
Board 504
N.E.2d
166
(Ill.
App.
1 Dist.
1987).
The Board’s action today
is consistent with the appellate
decision and with the action taken
in R88—12.
109—622
—5—
comments can be addressed in subdocket
(8) for implementation during the
regulatory control period
in
1991.
The Board notes that, with respect to the test method, the “dry method”
was added to subsection
(e)
in response to comments received from industry.
As USEPA wants this method specified as the only method, the Board does not
anticipate that this change will have an unreasonable impact.
With respect to the subsection
(g) alternate test method language
requiring test method submission to USEPA and approval
as
a SIP revision, the
Board does not know what effect this may have on the regulated community.
However, the Board notes that there
is
a federal regulation governing the
gasoline volatility, which apparently specifies which
test method
is
applicable.
Thus,
the regulated community
is already subject
to a USEPA
approved test method.
Given this particular situation,
the Board does not
believe that requiring USEPA approval of alternate test methods
is
unreasonable.
However, the Board notes that this determination
is made solely
on the peculiar facts
of this proceeding and is not intended to
be
precedential
in nature.
The Board has serious questions about the authority
of USEPA to require these changes; however,
the Board believes
it
in the best
interest of the environment and the State
to add the requirement here and
adopt
an unquestionably approvable rule so
as
to obtain the benefits resulting
therefrom.
Finally, the Board notes that after the filing of R88-3O(A) with the
Secretary of State,
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
to file corrections
in this situation, the
Board must correct the language of
those subsections by other means.
As those
subsections were adopted pursuant to proper
notice and comment, the Board
is
adding the correct language to this Order, where not amended by USEPA’s
changes,
so
as
to have the correct
language on the Secretary of State’s files
during the regulatory control
period.
These changes are necessary to obtain
an approvable rule and therefore meet the emergency standard.
Permanent
corrections
to those subsections are currently pending.
Finally,
the Board notes
that as time
is
short
it has not scheduled
a
hearing or requested comment before adopting these emergency rules.
That
notwithstanding,
the Board
is aware that some interested member of the public
may wish
to file written comments on some aspect of today’s action.
So
as
to
afford
an opportunity for comments,
the Board will withhold filing the
emergency rule with the Secretary of State’s Office
for approximately
10 days-
—until April
3,
1990.
Interested persons may file comments on this Order
until
that date.
If the Board
is persuaded to take additional
action or to
reconsider this Order,
it can take appropriate action after that date.
If
the
Board believes
it appropriate
to continue on the course contemplated by this
Order, no further Orders will
be
issued.
ORDER
1O9-~-623
-6-
Having found that the existing situation reasonably constitutes a threat
to the public interest, safety or welfare,
the Board hereby adopts
the
following amendments pursuant
to and in accordance with Section 5.02 of the
Illinois Administrative Procedure Act.
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE
B:
AIR POLLUTION
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER c:
EMISSIONS STANDARDS AND LIMITATIONS FOR
STATIONARY SOURCES
PART 215
ORGANIC MATERIAL EMISSION STANDARDS
AND
LIMITATIONS
SUBPART Y:
GASOLINE DISTRIBUTION
Section
215.581
Bulk Gasoline Plants
215.582
Bulk Gasoline Terminals
215.583
Gasoline Dispensing Facilities
215.584
Gasoline Delivery Vessels
215.585
Gasoline Volatility Standards
215.586
Emissions Testing
Section 215.585
Gasoline Volatility Standards
a)
No person shall
sell, offer for sale,
dispense, supply, offer for
supply, or transport for use in Illinois gasoline whose
Reid vapor
pressure exceeds the applicable
limitations
set forth
in subsections
(b)
and
(c) during the regulatory control periods, which
shall
be
July
1 to August
31 for retail outlets, wholesale purchaser—consumer
facilities,
and all other facilities.
b)
The Reid vapor pressure of gasoline,
a measure of its volatility,
shall not exceed 9.5 psi
(65.5 kPa) during
the regulatory control
period
in 1990 and each year thereafter.
c)
The Reid vapor pressure
of ethanol
blend gasolines
shall
not exceed
the limitations
for gasoline set forth
in subsection
(b) by more than
1.0
psi
(6.9 kPa).
Notwithstanding this limitation, blenders of
ethanol blend gasolines whose Reid vapor pressure
is less than 1.0
psi
above the base stock gasoline immediately
3fter blending with
ethanol
are prohibited from adding butane or
any product that will
increase the Reid vapor
pressure of
the blended gasoline.
d)
All sampling of gasoline required pursuant to the provisions
of this
Section shall
be conducted by one or more of
the following approved
methods or procedures which are incorporated
by reference in Section
215.105.
1)
For manual
sampling, ASTM 04057;
lOq—624
—7—
2)
For automatic sampling, ASTM D4177;
3)
Sampling Procedures for Fuel Volatility,
40 CFR 80 Appendix
0.
e)
The Reid vapor pressure of gasoline shall
be measured in accordance
with e4the~test i~etho~A~TMD~2~
o~4,~ the ease of gaso44ne-
oxygenate b3en~swh4eh ?o~ta4nswate~-ext~aetab4eoxyge~ates~
a
modification of ASTM D323 known as the “dry method”
as set forth
in
40 CFR 80, Appendix
E,
incorporated
by reference in Section
215.105.
~9F
~aso44Re
-
oxygenate b4eRds wh4?b ?oRta4R water-
extFaetab3e oxy~e~ates~
the Re4~vapor p~ess~e
sha4 be Reasu~ed
~s4-n~
the th~ymethod
testy
f)
The ethanol content of ethanol blend gasolines shall
be determined by
use of one of
the approved testing methodologies specified
in 40 CFR
80, Appendix
F,
incorporated by reference in Section 215.105.
g)
Any alternate to the sampling or testing methods or procedures
contained
in subsections
(d),
(e), and
(f) must be approved
by the
Agency, which
shall
consider data comparing the performance of
the
proposed alternative to the performance of one or more approved test
methods or procedures.
Such data shall accompany any request for
Agency approval
of an alternate test procedure.
If the Agency
determines that such data demonstrates
that the proposed alternative
will achieve results equivalent
to the approved test methods or
procedures,
the Agency shall
approve the proposed alternative.
Upon
approval of the alternate sampling’ or test methods or procedures
contained
in subsections
(d),
(e),
and
(f), the Agency will submit
the methods or procedures
to the United
States Environmental
Protection Agency (USEPA)
as
a revision to the
State plan.
Alternate
methods or procedures become effective only upon approval
of the
incorporation of
the alternate method or procedure in the State plan
by USEPA.
h)
Each refiner or supplier that distributes gasoline or ethanol blends
shall:
1)
During the regulatory control
period, deew~e~t
ard e3ea~3y
des4g~atestate that the Reid vapor pressure of all gasoline or
ethanol
blends leaving the refinery or distribution facility for
use
in Illinois complies with the Reid vapor pressure
limitations set forth
in Section 215.585(b) and
(c).
Any
facility receiving this gasoline shall
be provided with
a copy
of the aeco~aRy4p~de?~eAtspee4~y~g
the Re4~va~o~
~ess~’e
an
invoice, bill of
lading,
or other documentation used
in
normal business practice stating that the Reid vapor pressure of
the gasoline complies with
the State Reid vapor pressure
standard.
2)
Maintain records for a period of two one years on the Reid vapor
pressure, quantity shipped
and date of delivery of any gasoline
or ethanol
blends leaving
the refinery or distribution facility
109—625
-8—
for
use
in
Illinois.
The
Agency shall
be provided with copies
of
such
records
if
requested.
IT
IS SO ORDERED.
I, Dorothy M. Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby
cer~ifythat the above Opinion and Order was adopted on the
~‘J?
~
day
of ~l:~~L-,
1990 by
a vote of
7
(~
.
-
—~
-
~
,-
/,
.
.~
Dorothy M.
Gu~’n,Clerk
Illinois Pollution Control Board
109--62 6