ILLINOIS POLLUTION CONTROL BOARD

May

5,

1988

IN THE MATTER OF:

)

PARTICULATE EMISSION LIMITATIONS,

)

 R82-1

 (Docket B)

35

 ILL. ADM.

 CODE 106 AND 212

)

PROPOSED RULE.

 SECOND NOTICE.

PROPOSED OPINION AND ORDER OF THE BOARD

(by

1.

 D. Dumelle):

The Board today adopts for Second Notice proposed amendments

to

 35 Ill.

 Adm.

 Code 106 and 212, which set forth

 visible

emission opacity standards and procedures for obtaining adjusted

opacity standards.

 Fourth First Notice was proposed on December

17,

 1987,

 and published

 at 12

 Iii.

 Reg.

 1722,

 1729,

 January 15,

1988.

 The first notice comment period concluded on March

1988.

 The Illinois Environmental Protection Agency (Agency)

submitted

 the only comment during the Fourth First Notice on

February 26,

 1988.

 On March

 21, 1988,

 the Department

 of Commerce

and Community Affairs

 filed

 its Impact Analysis stating

 that the

proposed amendments will have

 rio economic effect on small

businesses.

 The Administrative Code Division of the Secretary of

State’s Office filed comments cn February 11,

 988.

 Those

comments have been incorporated

 into the Second Notice Order.

L~ourthFirst Notice Comments and Changes

The Agency commented

 that

 in proposed

 Secti.ori 2l2.l24(d)(1)

certain words were “mistakenly deleted from the Fourth First

Notice” Order.

 The Board can only note that the language

proposed

 to Section 212.124(d)(l)

 at Fourth First Notice was

taken verbatim from the Final Agency Comments filed February 11,

1987,

 at page

5.

 The Board accepts the Agency’s suggestion and

has amended

 “Section 212.123”

 to become “Sections 212.122 and

212.123.”

The Agency commented

 that Section 2l2.124(d)(2) contains

a

reference to Section 212.110.

 The Agency noted

 that

 it has

proposed

 to change this particular provision in Board rulemaking

R79—14

 to the procedures

 of 35

 Ili. Adm. Code 230, Appendix A (40

CFR 60, Method

5).

 Because R79—14 has not yet been sent to First

Notice,

 this proceeding will most likely result

 in finalized

regulations first.

 Therefore,

 the Board will include the

amendment

 in this proceeding.

 However, because

 the Environmental

Protection Act

 (Act)

 no longer authorizes

 the Board

to

peremptorily amend

 35 Ill. Mm.

 Code

 230 and 231,

 the Board will

cite directly

 to the Code of Federal. Regulations for

incorporation

 of procedures therein.

As

 a result,

 “Section

212.110”

 is deleted

 arid the following language is added

to

89- 1t~5

—2—

Sections 212.124(d)(2)(A) and

 (B):

 “Method

5,

 40 CFR 60,

incorporated by reference

 in Section 212.113.”

The Agency suggested the following modifications of Section

212.126(c)

and

(e)

 for clarity:

“Section

 212.126(c):

Any

 request

for

the

determination

of

the

 average

 opacity

of

emissions

 shall

 be made

 in writing,

 including

the

 time

and

 place

of

the

 performance

 test,

all

 test

 specifications

and

 procedures,

and

submitted

to

 the Agency

at

 least

 thirty

 days

before

 the proposed test date.”

“Section

 212.126(e):

The

 owner

or

 operator

shall

 allow

 Agency

 personnel

to

be

 present

during the performance

 test.”

The Board accepts the Section 212.126(e)

 suggestion.

However,

 the Board believes that Section 212.126(c)

 requires

further grammatical clarification.

 The Board thus amends Section

212.126(c)

 as follows:

“Section

 212.126(c):

Any

 request

for

the

determination

of

the

 average

 opacity

of

emissions

 shall

be

in

 writing,

 shall

 include

the time and place of the performance

 test and

all

 test

 specifications

and

 procedures,

and

shall

be

 submitted

to

the

 Agency

at

 least

thirty days before

 the proposed test date.”

The Agency also noted

 its concerns regarding

 the Board’s

amendment

of

35

 Ill. Mm.

 Code 106.Subpart

E:

 Air Adjusted

Standard Procedures.

 The Agency states that although the general

idea of

 a standardized procedure has merit,

 there are currently

at least two regulations other than the opacity rules that

contain important specialized procedures for obtaining an

adjusted air standard.

 The Agency argues

 that these and all

other existing specialized procedures should take precedence over

 a general air adjusted procedure.

 The Board does not dispute the

Agency’s arguments.

 However, the Board does believe that the

general procedures

 for obtaining an adjusted standard should be

located among the Board’s procedural rules.

 Therefore,

 the Board

will retain the 35 Ill. Adm. Code 106 amendments, but will make

them applicable at this time only

 to the 35

 Ill. Mm. Code 212.

Subpart B rules.

 The Board

 is persuaded

 that there

is

insufficient information

 in the record

 to justify utilization of

these

rules

for

other

existing

specialized

procedures.

future

adjusted

standards

provisions

are

adopted,

these

general

procedures can be

 referred to and utilized.

89—166

—3—

In addition

 to providing comments regarding Part 106

procedures

 in general,

 the Agency commented on certain specific

aspects

 of the Part 106 proposal.

 First,

 the Agency opposes

a

certain part of Section 106.503(b).

 The Agency states that it

has “limited access

 to source information and limited procedures

to enforce information gathering,”

 and that “this section should

 not be construed as

 requiring

 the Agency to assist

 in the proof

of the petition,

 as the Agency has the right

 to prioritize

its

use of resources to meet its statutory obligations

 under

the

Environmental Protection Act.”

 The Board notes that Section

106.503(a)

 clearly and explicitly states “the Agency may,

in

its

discretion,

 act as

 a co—petitioner.”

 Thus,

 the Agency will not

be required

 to assist

 in the proof of the petition.

The Agency further argues

 that “to require written

notification of the Agency’s position regarding whether

 or not

it

will

be

 a co—petitioner and

 its underlying reasons

 is unnecessary

and places

 an added burden on the Agency.”

 In support of its

argument,

 the Agency states that

 it and potential petitioners are

“well aware” of the identity of each other and that “the Agency’s

position is

 clear from its pleadings and hearing

participation.”

 The Board notes

 that this requirement

 is not new

to adjusted standard procedures.

 Similar requirements can be

found

 in the RCRA adjusted standard procedures

 (35 Ill. Adm~. Code

106.412)

and

 in the CSO exception proceeding

 (35 Ill. Mm. Code

306.352(b)).

 Because this decision

 is discretionary

 (proposed

Section 106.503(a))

 and not appealable to the Board

 (proposed

Section 106.503(c)),

 and because

 the Agency has expressed

opposition

the

requirement

this

context,

the

Board

has

determined

that

 compromise

order.

The

Board

will

retain

the written notification requirement

(1)

 to maintain consistency

with the above—noted regulations and

(2)

 to ensure that the

applicant

 receives

 a prompt response.

 However,

 the Board

believes that it

 is perfectly appropriate for the Agency to

decline

 to co—petition

 in the event that the Agency

 is faced with

a lack of resources with which

 to investigate and co—petition.

Therefore,

 a simple statement

 to that effect

 is the minimum that

would be

 required by Section 106.503(b).

The Agency states that in Section l06.504(b)(2)

 the written

statement should be signed by only the petitioner and

 not the

Agency,

 even

if

 the Agency is a co—petitioner or approves of the

proposed standard.

 The Agency argues that

 it cannot,

 from its

own independent knowledge, verify all

 of the various elements

that this written statement contemplates.

 The Board appreciates

the Agency’s concerns and has revised Section l06.504(b)(2)

to

require only the petitioner’s signature.

As regards the Section 106.505 time for response

 to the

filing of

 a petition, the Agency argued that twenty—one

 (21) days

is too short.

 The Agency believes that

 a minimum of forty—five

(45) days is necessary

for

 an effective evaluation.

 In the

89—167

—4—

absence of any evidence

 to the contrary,

 the Board defers to the

Agency’s knowledge of

 its internal processes,

 and accepts

the

forty—five

 (45) day response period.

In addition,

 the Board has made certain clarifications to

the text of the proposed rules on its own.

 These changes are in

no way intended

 to affect the substance of the proposed rules,

but

rather

are

intended

make

 the language of the rules more

precise.

 First,

 in Section 2l2.2l4(d)(l),

 the Board removed “and

either” and replaced

 it with “but subject to.”

 This action was

taken to correct the internal logic of the subsection.

Second,

 the Board

 notes

 that Section 212.214(d)(1) and

(2)

are defense provisions for different types of sources.

 Section

2l2.2l4(d)(l)

 is applicable

 to sources not subject

 to Sections

212.201 through 212.204,

 but subject

 to 212.122 or

 212.123.

The

Board has added language to clarify that Section

 2l2.l24(d)(l)

does not apply

 to sources subject to New Source Performance

Standards,

 i.e.,

 subject to Section 111

 or 112 of the Clean Air

Act.

 Section 2l2.l24(d)(2)

 is applicable

 to sources subject to

Section 212.201 through 212.204 and either

 212.122 or 212.123.

Language was added here also

 to clarify that Section

212.124(d)(2) does not apply to sources subject to New Source

Performance Standards.

 The difference between Section

212.124(d)(1) and

(2)

 lies

 in the defense mechanism.

 Section

212.124(d)(2)(A) and

(B)

 state:

A)

 An exceedance of

 the limitations of

Section 212.122 or 212.123

 shall

constitute a violation of the applicable

particulate limitations of this Part.

It

shall be

 a defense to a violation of the

applicable particulate limitations

if,

during a subsequent performance test

conducted within

 a reasonable time not to

 exceed 60 days,

 under

 the same operating

conditions for the source and the control

device(s),

and

 in accordance with Method

5,

 40 CFR 60,

 incorporated by reference

in Section 212.113, the owner

 or operator

shows that the source is

 in compliance

with the particulate emission

limitations.

B)

 It shall be

 a defense to an exceedance of

the opacity limit

 if, during

 a subsequent

performance test conducted within a

reasonable

 time not

 to exceed

 60 days,

under the same operating conditions of

the source and the control device(s),

and

in accordance with Method

5,

 40 CFR 60,

incorporated by reference in Section

89—168

—5--

212.113,

 the owner or operator

 shows that

the source

is

 in compliance with the

allowable particulate emissions

limitation while, simultaneously, having

visible emissions equal

 to or greater

than the opacity exceedance as originally

observed.

Section 212.124(d)(l) states

“The

opacity

 limitations

 of Sections 212.122

and 212.123 shall not apply

if

it

 is shown

that the emission source was,

 at the time of

such emission,

 in compliance with the

applicable particulate emissions limitations

of this Part.”

One reason

 for the different defense provision between these two

subsections

 is that the performance

 test conducted

 in accordance

with Test Method

5,

 40 CFR

 60, Appendix

A,

 is clearly designed

for accurate measurement

 of stack particulate emissions from

sources subject

 to Sections 212.201 through 212.204

 (i.e.

 Section

212.124(d)(2)),

 while

 for other sources,

 e.g.,

 process emission

sources, Method

 5 may not

 be applicable because such sources

(1)

may not have

 a stack or

(2)

may be allowed

to

use

 other methods

in lieu of the stack test to show compliance.

 However,

 the lack

in Section 2l2.l24(d)(1)

 of specific defense requirements,

 i.e.,

subsequent performance

 test,

 under same operating conditions,

while having visible emissions greater than or equal to the

opacity exceedance originally observed,

is

 in no way intended

to

imply that those showings would not be appropriate

 to a

demonstration of compliance with the particulate emission

limitations.

In

 fact,

 such showings

 (as prescribed under Section

212.124(d)(2))

 would be the preferred method of demonstrating

compliance under Section 212.l24(d)(1).

Third, subsection 212.124(a) was amended

 to include

exceptions for times of malfunction and breakdown,

 in addition to

start—up.

 This was suggested

 in comment previously received.

The commentor stated that 35 Ill. Mm.

 Code 201.Subpart

 I allows

for permission to be granted

 to operate during any of these three

events.

The

commentor pointed out that,

 to be consistent,

Section 212.214(a)

 should include exception for malfunction and

breakdown.

 The Board agrees and has added

 the exceptions at

Second

Notice.

Fourth,

 the Board agrees with the Agency’s comments and will

retain the upper

 limit of 60

 in the adjusted opacity

standards.

 The Board also notes

 that sources obtaining an

adjusted opacity limit pursuant to 2l2.121(a)(6) are allowed

to

exceed the standard for one six—minute averaging period

 in any

60—minute period rather

 than pursuant

 to the exception

in

89—169

—6--

existing Sections 212.122 and 212.123.

 The adjusted opacity

limitation exception contained in Section 2l2.l26(a)(4)

is

 consistent with the measurement methods of Method

9,

 40 CFR 60,

Appendix

A.

Finally,

 the Board notes that it has made other minor, non—

substantive changes throughout Section 212.126, solely

for

purposes of clarification.

Pre—Fourth First Notice Comments

In the Fourth First Notice Order

 the Board

 stated:

“The

 Board

 believes

 that

the

 revisions

may

affect

the

 continued

 applicability

of

the

previously filed comments and

 requests further

comment

on

 these

 issues.

For

the

 sake

of

efficiency,

 the Board notes that comments need

not

be

 duplicated.

 Previous

 comments,

if

still

 applicable,

may

be

 incorporated

by

reference.”

As noted above, only the Agency filed comments on the Fourth

First Notice Order.

 Despite the Board’s clear request

for

additional comment, none of the previous commenters opted

to

address the Fourth First Notice proposal.

 As the Board cannot

and will not second—guess those commenters,

 the Board can only

assume that the Fourth First Notice proposal does not meet with

disapproval other than that noted by the Agency.

Third First Notice History

On August

 14, 1986 the Board issued

 the Third First Notice

Order

 in this Docket

 (R82—1(B)).

 The Board noted that several

issues remained from the Fourth Second Notice Order and requested

comment on them.

 On October

2,

 1986,

 the Administrative Code

Division of the Secretary of States Office filed comments.

On

November 20,

 1986,

 the Agency submitted a revised opacity

proposal.

 The final hearing was held on November

24,

 1986.

Seven comments were filed between May,

 1986 and February,

 1987.

In the Third

 First Notice Order, the Board asked whether

“Reasonable Time”

 in Section 212.124(c)

 (now renumbered

to

subsection

 (d)) should be defined.

 At hearing on November

24,

1986,

 the Agency suggested the language

 “a reasonable time not

to

exceed

 60 days.”

 This was

 the language proposed at Fourth First

Notice.

 In reviewing previous comments,

 the Board determined

that this language could be clarified further.

 The Board added

“after written notification from the Agency

 of a violation” after

“60 days.”

 The Board

 takes this action consistent with the

expressed intentions of the Agency.

 (Tr.

 16, November

24,

 1986).

89—170

—7—

In

Third

First Notice, the Board asked whether “similar

operating conditions”

 should be defined.

 At hearing on November

24,

 1986,

 the Agency agreed

 that “similar operating conditions”

is vague.

 Further, the Agency noted that there might be similar

operating conditions that would decrease mass emissions but not

opacity.

 This,

 the Agency noted, could be viewed as

 a relaxation

of

 the State Implementation Plan (SIP) without a demonstration

that

 the National Ambient Air Quality Standards would not be

jeopardized.

 The Agency proposed, therefore,

 to amend

 “similar”

to “same.”

 The Board did

 so at Fourth First Notice, and received

no comment on this action.

 As the Board believes that the “same

operating conditions”

 at the time of the violation is more

definite than “similar operating conditions,” the Board will

retain

 the language as proposed at Fourth First Notice.

At Third Fist Notice,

 the Board asked whether levels of

justification must be established under

 then Section 212.126(1)

regarding how the factors

 of Section 27(a)

 of the Environmental

Protection Act

 (Act) will be considered

 in deciding whether

to

adopt

 an adjusted standard.

 JCAR had indicated

 that such levels

of justification were necessary.

 The Board notes

 that this

subsection no longer exists

 in Part 212,

 rather

 a similar section

was proposed

 in the Part 106 procedures

 for an adjusted

standard.

 Section 106.507, requires the Board

 to adopt an

opinion and order consistent with Section 27(a)

 of the Act.

As

the text

 of this Section was based on Section 106.416,

 already

adopted and already past JCAR review,

 the Board does not

anticipate any further problem with the language proposed at

Fourth First Notice.

As previously noted,

 after Third First Notice,

 several

comments were submitted on the proposed rules.

As

 a result

of

changes made at hearing and thereafter,

 the Board believes that

many concerns raised

 in the comments have been resolved.

However, one

 of the commenters

 took the position that

“there

is

no

 statutory mandate

 that the Board

adopt

 opacity

 as an

 independently enforceable

air emission standard.

 Furthermore,

 there

is

no

 federal requirement under

 the Clean Air Act

that

the

 Illinois

 State

 Implementation

 Plan

(SIP)

 contain

an

 independently

 enforceable

opacity

 standard.

In

any

 event,

the

 Record

does

 not support

 such

 a standard.”

 (P.C.

No.

42,

 filed February

19,

 1987).

The Board does not agree.

 By Interim Order dated March 14,

1986,

 the Board noted

 that

 a letter was filed by Mr.

 Steve

Rothblatt of United States Environmental Protection Agency

(USEPA),

 indicating USEPA’s position that the rule as then

proposed

were

unapprovable.

The

Board

stated

that

89—17 1

—8—

“these communications from USEPA place

 a cloud

over the opacity

 rules:

 the state

 is required

to

 comply

 with

the

 Clean

Air

Act

and

regulations

 adopted

 thereunder,

and

 USEPA’s

interpretation

of

 its own rules must be given

some deference.”

Further,

 the Board set another hearing and requested testimony

regarding

the

“legal

requirements

the

state

implementation

 plan

 regarding

 visual

emissions,

 what

 type

or

 types

of

 rules

 would

or

 should

be

 federally

 approvable,

the

adequacy

of

 the present

 record

 to support

the

adoption

 of such rules

...

.“

 (Interim Order,

March 14,

 1986,

p.

2).

Hearing was held on April

28,

 1986,

 at which William L.

 Macflowell

testified on behalf of USEPA.

 It was Mr. MacDowell’s testimony

that Federal regulations,

 40 CFR 51.19(c)

 (now codified at

 40 CFR

51.212(b)) require enforceable visible emissions limitations in

order

 to ensure that particulate control equipment

 is properly

operated and maintained on a continuing

 basis.

 Mr. MacDowell

offered much testimony to support the notion that opacity rules

are federally required.

 Further,

 in its comments on the Fourth

First Notice,

 (P.C.

No.

 44),

 the Agency submitted a letter dated

November

6,

 1987, from Mr. Michael Hayes, Manager

 of the the

Division of Air Pollution Control,

 to Jacob

 Durnelle, Chairman of

the Pollution Control Board.

 The letter notes that the previous

First Notice

 in the rulemaking, R82—l(B),

 expired on September

5,

1987 and urges the Board

 to promptly promulgate opacity standards

because it believes that such standards remain necessary.

To

support this belief,

 the Agency also submitted an Agency

memorandum from Dan D’Auben to Susan Schroeder

 on the necessity

issue.

 The memo states:

“The

 State

of

 Illinois

 will

be

 submitting

three

 types

of

 PM10

 SIPS.

The

 first,

for

Group

I

 areas,

may

 include

new

 process

and

fugitive

 emission

 rules

for

 sources

in

 S.E.

Chicago,

 S.W.

 Cook

 County,

 Oglesby,

and

Granite

 City.

 These

 areas,

 because

of

previous

TSP

 monitoring,

 PM10

 monitoring,

or

previous

 studies

are

 presumed

to

not

be

in

compliance

 with

 PM10

 NAAQS.

The

 second

 type

of

 PM10

SIP

 (Group

II)

is

for

 areas

the

compliance

 with

the

 NAAQS

is

 uncertain.

The

last type of PM10 SIP (Group III)

is

 for areas

that

it

is

 assumed

 that

the

TSP

SIP

is

adequate to protect the

PM3~0

NAAQS.

 This type

of

 SIP would

 cover

 the majority

of

the

 State

89—172

—9—

of

 Illinois.

A

 major

SIP

 requirement

for

Group

II

and

III

 areas

is

 that

the

TSP

SIP

must

be

 viable

and

 enforceable.

 This

is

required

 because

it

is

 assumed

 that

the

TSP

emission

 regulations

are

 adequate

 to protect

the

 PM10

 NAAQS.

If

an

 opactiy

 rule

is

not

promulgated

for

TSP

 (R82—l)

we

 feel

 that

the

tJSEPA will hold

 that portions

of

 our TSP SIP

are unenforceable

and

 therefore

 the PM10

SIP

is not viable.”

 (Agency’s Fourth First Notice

 Comments,

 P.C.

No.

44,

 filed

 February

26,

1988, Attachment

2).

The Board believes that the Record

 is sufficient to support

the adoption of these opacity

 rules.

Finally,

 the Board notes that, despite

 the lengthy and

complicated history of this rulemaking proceeding and the many

incarnations previous Opinions and Orders have taken,

all

previous discussions relating to the opacity rules

 in this docket

(R82—l)

 remain applicable and are incorporated herein.

ORDER

The Board hereby directs the Clerk

 of the Pollution Control

Board

submit

the

following

proposed

amendments

the

Joint

Committee

Administrative

Review

for

Second

Notice:

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE A:

 GENERAL, PROVISIONS

CHAPTER I:

 POLLUTION CONTROL

BOARD

PART 106

HEARINGS PURSUANT TO SPECIFIC RULES

SUBPART A:

 HEATED EFFLUENT DEMONSTRATIONS

Section

106.101

 Petition

106.102

 Requirements for Petition

106.103

 Parties

106.104

 Recommendation

106.105

 Notice and Hearing

106.106

 Transcripts

106.107

 Opinion and Order

SUBPART B:

 ARTIFICIAL COOLING LAKE DEMONSTRATIONS

Section

106.201

 Petition

106.202

 Notice and Hearing

89—173

—10—

SUBPART C:

 SULFUR DIOXIDE DEMONSTRATIONS

Section

106.301

106.302

106.303

106.304

106.305

106.306

Section

106.401

106 .402

106.403

106.404

106.405

106.406

106.407

106.408

106.410

106 .411

106.412

106.413

106.414

106.415

106.416

Petition

Requirements for Petition

Parties

Recommendation

Notice and Hearing

Transcripts

SUBPART D:

 RCRA ADJUSTED STANDARD PROCEDURES

Petition

 (Repealed)

Notice

 of Petition

 (Repealed)

Recommendation (Repealed)

Response (Repealed)

Public Comment (Repealed)

Public Hearings

 (Repealed)

Decision

 (Repealed)

Appeal

 (Repealed)

Scope and Applicability

Joint or Single Petition

Request

 to Agency

 to Join as Co—Petitioner

Contents of Petition

Response and Reply

Notice and Conduct of Hearing

Opinions and Orders

SUBPART

E:

 AIR ADJUSTED STANDARD PROCEDURES

________

 Scope and Applicability

________

 Joint or Single Petition

________

 Request

 to Agency To Join

 As Co—Petitioner

________

 Contents

 of Petition

Response and Reply

________

 Notice and Conduct of Hearing

________

 Opinions and Orders

Appendix ~

Old

 Rule Numbers Referenced

AUTHORITY:

 Implementing Sections

5,

 22.4,

 27, 28 and 28.1 and

authorized by Section

 26 of the Environmental Protection Act

(Ill. Rev.

 Stat.

 1985,

ch.

 11J1/~ pars.

 1005,

 1022.4,

 1027,

 1028,

1028.1

and

1026).

SOURCE:

 Filed with Secretary of State January

1,

 1978;

 amended

at

4

 Ill.

 Reg.

2,

 page 186, effective December 27,

 1979;

 codified

106.203

106.204

Transcripts

Effective Date

Section

106

501

106.502

106.

503

106.504

106.505

106.506

106.

507

89—174

—11—

at

6

 Ill.

 Reg. 8357;

 amended

 in R85—22 at 10

Ill.

Peg.

992,

effective February

2,

 1986;

 amended

 in P86—46

at 11

 Ill.

 Reg.

13457,

 effective August

4,

 1987; amended

 in R82—l

 at ______Ill.

Reg.

_______

 effective

______________

SUBPART

E;

 AIR ADJUSTED STANDARD PROCEDURES

Section 106.501

 Scope and Applicability

This Subpart

 applies only whenever an adjusted standard,

as

provided

 in Section

 28.1

of

 the Environmental Protection Act

(Act),

 is sought pursuant to 35

 Ill. Mm.

 Code 212.126.

(Source:

 Added

at

 Ill.

 Peg.

________,

 effective

__________

Section 106.502

 Joint

 or Single Petition

A person may initiate an adjusted standard proceeding either by

filing a petition jointly wfE~ the Illinois Environmental

Protection Agency

 (Agency), or

 by filing

 a petition singly.

(Source:

 Added at

 Ill.

 Peg.

________,

 effective

)

Section 106.503

 Request

 to Agency To Join As Co—Petitioner

a)

 The Agency

 may,

in

 its discretion,

 act as

 a co—

petitioner

 in any adjusted standard proceeding.

b)

 Any person may request Agency assistance

 in initiating a

petition for adjusted standard.

 The Agency may require

the person to submit

 to the Agency any background

TF~formationin the person’s possession relevant

 to the

adjusted standard which

 is sought.

 The Agency shall

promptly notify

 the person in writing of its

determination either

 to join

as

 a co—petitioner, or

to

decline

 to join as

 a co—petitioner.

 If the Agency

declines

 to join as

 a co—petiti~ner,the Agency shall

state the basis for this decision.

c)

 Discretionary decisions made by

 the Agency pursuant

to

this Section are not appealable

 to the Board.

(Source:

 Added at

 Ill. Peg.

_________,

 effective

Section 106.504

 Contents of Petition

a)

 The petitioner

 shall file ten copies

 of the petition for

adjusted standard with the Clerk

 of the Pollution

Control Board

 (Board),

 and shall serve one copy upon the

~gency.

89—175

—12—

b)

 The petition shall contain the following information:

 Identification of the regulation of general

applicability for which an adjusted standard

is

sought

2)

 A written statement,

 signed by the petitioner,

 or an

authorized representative,

 outlining the scope of

the evaluation,

 the nature of,

 the reasons for and

the

basis

the

ad~usted

standard,

consistent

with

the level of justification contained

 in the

regulation of general applicability

 The nature

 of the petitioner’s operations and

control

equipment;

and

Any

 additional information which may

required

the regulation of general applicability.

(Source:

Added

____

Ill.

Reg.

_________,

 effective

___________)

Section 106.505

 Response and Reply

Within

days

after

the

filing

petition,

the

Agency shall

 file a response to any petition

 in which

it

has not joined as

 a co—petitioner.

 This response shall

include the Agenc~”scomments concerning

 the Board’s

action on the petition.

The

petitioner

may

file

within

days

after

the

filing of any Agency response.

(Source:

 Added at

 Ill. Peg.

_________,

 effective

___________

Section 106.506

 Notice and Conduct

 of Hearing

a)

 The Board will hold at least one public hearing prior

to

granting an adjusted standard.

The

hearing

officer

 will schedule the hearing.

The

Clerk

will

give

notice

hearing

accordance

with

Ill.

 Adrn.

Code

102.122.

c)

The

proceedings

will

accordance

with

 35 Ill.

Mm.

Code 102.160 through 102.164.

(Source:

Added

Ill.

Peg.

________,

effective

__________)

89—176

—13—

Section 106.507

 Opinions and Orders

The

Board

will

adopt

order

and

opinion

stating

the

facts

 and reasons leading to the final Board

determination, consistent with any considerations which

may

 be specified

 in the regulation of general

applicability or Section

 27(a)

 of the Act.

b)

 The Board will

 issue such other orders as the Board

deems appropriate,

 including,

 but not limited

to,

accepting or

 rejecting the petition,

 requiring the

submission of further information or directing

 that

further hearings be

 held.

c)

 SUCH BOARD ORDERS AND OPINIONS WILL BE MAINTAINED FOR

PUBLIC INSPECTION BY THE CLERK OF THE BOARD AND A

LISTING OF ALL DETERMINATIONS MADE PURSUANT TO THIS

SUBPART WILL BE PUBLISHED IN THE ILLINOIS REGISTER AND

THE ENVIRONMENTAL REGISTER AT THE END OF EACH FISCAL

YEAR.

d)

 A FINAL BOARD DETERMINATION MADE UNDER THIS SUBPART MAY

BE APPEALED PURSUANT TO SECTION

41

 OF THE ACT.

(Source:

 Added at

 Ill.

 Peg.

________,

 effective

)

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE

B:

 AIR POLLUTION

CHAPTER I:

 POLLUTION CONTROL BOARD

SUBCHAPTER

c:

 EMISSION STANDARDS AND LIMITATIONS

 FOR STATIONARY SOURCES

PART 212

V~SUAhVISIBLE AND PARTICULATE MATTER EMISSIONS

SUBPART

A:

 GENERAL

Section

212.100

Scope

and

Organization

212.110

 Measurement Methods

212.111

Abbreviations

and

Units

212.112

 Definitions

212.113

 Incorporations by Reference

SUBPART B:

 S~3A~

 VISIBLE EMISSIONS

Section

212.121

Opacity

Standards

212.122

 Limitations

 for Certain New Sources

212.123

Limitations

for

All

Other

Sources

89—17 7

—14—

212.124

 Exceptions

212.125

 Determination

 of Violations

212.126

 ~4justed

 Opacity Standards Procedures

SUBPART D:

 PARTICULATE MATTER EMISSIONS FROM INCINERATORS

Section

212.181

Limitations

for

Incinerators

212.182

Aqueous

Waste

Incinerators

212.183

Certain

Wood

Waste

Incinerators

212.184

Explosive

Waste

Incinerators

SUBPART

PARTICULATE

MATTER

EMISSIONS

FROM

FUEL

COMBUSTION

EMISSION

SOURCES

Section

212.201

 Existing Sources Using

 Solid Fuel Exclusively Located

the

Chicago

Area

212.202

 Existing Sources Using Solid

 Fuel Exclusively Located

Outside the Chicago Area

212.203

 Existing Controlled Sources Using Solid Fuel

Exclusively

New

Sources

Using

Solid

Fuel

Exclusively

Existing

Coal—fired

Industrial

Boilers

Equipped

with

Flue Gas Desulfurization Systems

Sources Using Liquid Fuel Exclusively

Sources

Using

Than

One

Type

Fuel

Aggregation

Existing

Sources

SUBPART

K:

 FUGITIVE PARTICULATE MATTER

Fugitive

Particulate

Matter

Geographical

Areas

Application

Storage

Piles

Conveyor

Operations

Traffic

Areas

Materials

Collected

Pollution

Control

Equipment

Spraying

Choke—Feeding

Required

Operating

Program

Minimum

Operating

Program

Amendment to Operating Program

 Emission Standard for Particulate Collection Equipment

Exception

for

Excess

Wind

Speed

Covering

for

Vehicles

SUBPART L:

 PARTICULATE MATTER EMISSIONS

FROM PROCESS EMISSION SOURCES

212.204

212.205

212.206

212. 207

212.208

Section

212. 301

212. 302

212.304

212.305

212.306

212. 307

212. 308

212. 309

212.310

212.312

212.313

212.314

212. 315

89—178

—15—

Section

212.321

 New Process Sources

212.322

Existing

Process

Sources

212.323

Stock

Piles

SUBPART

FOOD

MANUFACTURING

Section

212.361

Corn

Wet

 Milling Processes

SUBPART

0:

 PETROLEUM REFINING,

 PETROCHEMICAL

AND

CHEMICAL

MANUFACTURING

Section

212.381

Catalyst

Regenerators

Fluidized

Catalytic

Converters

SUBPART

Q:

STONE,

CLAY,

GLASS

AND CONCRETE MANUFACTURING

New Portland Cement Processes

 Portland Cement Manufacturing Processes

SUBPART

R:

 PRIMARY AND FABRICATED METAL

PRODUCTS AND MACHINERY MANUFACTURE

Steel Manufacturing Processes

Beehive Coke Ovens

By—Product Coke Plants

Sinter Processes

Blast Furnace Cast Houses

Basic

Oxygen

Furnaces

Hot Metal Desulfurization Not Located

 in the BOF

Electric

Arc

Furnaces

Argon—Oxygen

Decarburization

Vessels

Liquid Steel Charging

Hot

Scarfing

Machines

Measurement Methods

Highlines on Steel Mills

Certain Small Foundries

Certain Small Iron—melting Air Furnaces

SUBPART

AGRICULTURE

Section

212.461

Grain

Handling

and

Drying

General

Section

212.421

212.422

Section

212.441

212.442

212.443

212.444

212.445

212.446

212.447

212.448

212.449

212.450

212.451

212.452

212.455

212.456

212.457

89—179

—16—

212.462

Grain

Handling

Operations

212.463

 Grain Drying Operations

SUBPART

T:

 CONSTRUCTION AND WOOD PRODUCTS

Section

212.681

 Grinding, woodworking, Sandblasting and Shotblasting

Appendix

Rule

into

Section

Table

Appendix

B

 Section into Rule Table

Appendix C

 Past Compliance Dates

Illustration A

 Allowable Emissions from Solid Fuel Combustion

Emission Sources Outside Chicago

Illustration B

 Limitations

 for all New Process Emission Sources

Illustration

C

 Limitations

for

 all Existing Process Emission

Sources

AUTHORITY:

 Implementing Section

 10 and authorized

by

Section

27

of the Environmental Protection Act

 (Ill.

 Rev. Stat.

 1985,

ch.

111 1/2, pars.

 1010 and 1027)

SOURCE:

 Adopted as Chapter

2:

 Air Pollution, Rules 202 and

203:

 Visual and Particulate Emission Standards and Limitations,

P71—23,

PCB

 191,

 filed and effective April

14,

 1972; amended

in

P77—15,

PCB

403,

3

Ill.

Peg.

5,

p.

798,

effective

February

3,

 1979; amended

 in P78—10,

 35 PCB 347, at

 3 Ill.

 Beg.

39,

184,

effective

September

28,

1979;

amended

P78—li,

PCB

505,

Ill.

Peg.

45,

100,

effective

October

26,

1979;

amended

P78—9,

PCB

411,

Ill.

Peg.

24,

514,

effective

June

1980;

amended

P79—il,

PCB

481,

Ill.

Reg.

11590,

effective

October

19,

1981;

codified

Ill.

Reg.

13591;

 amended in R82—l

 (Docket

A)

 at 10

Iii.

Reg.

12637,

effective

July

1986;

amended

R85—33

Ill.

Reg.

18030,

effective

October

1986;

amended

P84—48

TIll.

Peg.

691,

effective December

18,

 1986;

 amended in P84—42 at 11

 Ill. Peg.

1410,

effective

December

30,

1986;

amended

R82—1(Docket

_____

Ill.

Reg.

_________,

effective

______________________

Section 212.113

 Incorporations by Reference

The

following

materials

are

incorporated

reference:

ASME

Power

Test

Code

27—1957,

Determining

Dust

Concentration

Gas

Stream,

American

Society

Mechanical

Engineers,

United

Engineering

 Center,

345

E.

47th

Street,

New

York,

10017.

89—180

17—

b)

 Ringelmann Chart,

 Information Circular

833

 (Revision of

IC7718), Bureau of Mines, U.S. Department of Interior,

May 1,

 1967.

CFR

607

Apper

Fe~7 Reg-~-4~7~S4

t~gti~

~87

9~+~(1987)

d)

 ASAE Standard 248.2, Section

9,

 Basis for

 Stating Drying

Capacity

 of Batch and Continuous—Flow Grain Dryers,

American Society of Agricultural Engineers,

 2950 Niles

Road,

 St. Joseph,

MI

 49085.

e)

 U.S. Sieve Series, ASTM—Ell, American Society of Testing

Materials,

 1916 Race Street,

 Philadelphia, PA

 19103.

f)

 This Part

 incorporates no future editions

 or amendments.

(Source:

 Amended at

____

 Ill.

 Peg.

_________

effective

___________

Section 212.121

 Opacity Standards

For the purposes

 of this Subpart,

all

v4~sue~

visible

emission

opacity standards and limitations shall be considered equivalent

to corresponding Ringelmann Chart readings,

 as described under

the definition of opacity

 (35 Ill.

Mm.

Code 211.122).

fBea~

Ne~e~

P~S S~pa~a~~

 p~4e~~e se~ee~ g~e~

~y

S~pa~

 ~eer~

~t~e8

the

~~rto49

S~p~e~te

?et~t~7

?e~o~e~~

v~ ~P?B

e~ ~

9ee~ ~987

44~ N~E-2~

(Source:

 Amended at

___

 Ill.

 Peg.

________

effective

)

Section 212.123

 Limitations for All Other Sources

a)

 No person shall cause or allow the emission of smoke or

other particulate matter, ~em

ft1~~

ethet em4~iense~ee

4t~ethe ~l~espl~efe e~with an opacity greater

 than 30

percent,

 into the atmosphere from any emission source

other

 than those sources subject

 to Section 212.122.

b)

 Exception:

 The emission of smoke or other particulate

matter from any such emission source may have an opacity

greater

 than

30

percent but not greater than

 60 percent

for

 a period or periods aggregating

 8 minutes

 in any 60

minute period provided that such more opaque emissions

permitted during any 60 minute period shall occur from

only one such emission source located within

 a 305 m

(1000

 ft) radius from the center point

 of any other such

emission source owned

 or operated by such person, and

89—18 1

—18—

provided

 further that such more opaque emissions

permitted from each such emission source shall be

limited

to

 3 times

 in any

 24 hour period.

(Source:

Amended

____

Ill.

Reg.

________

effective

___________)

Section

212.124

Exceptions

Startup,

Malfunction

and

Breakdown.

Sections

212.122

and

212.123

 shall apply during times

 of startup,

malfunction

and

breakdown

except

provided

the

operating permit ~grantedin accordance with

Ill.

Mm.

Code

201.

Emissions

water

and

water

vapor.

Sections

212.122

and

212.123

shall

not

apply

emissions

water

vapor

from

emission

source.

c)

 Adjusted standards.

 An emission source which has

obtained

 an adjusted opacity standard pursuant

to

Section 212.126

shall be subject to that standard rather

than the limitations of Section 212.122 or

 212.123.

de)

 Compliance with the particulate regulations of this Part

shall constitute a defense.

1)

 For all emission sources which are not subject

to

 Chapters 111 or 112 of the Clean Air Act and

Sections 212.201, 212.202,

 212.203 or 212.204 but

which are subject

 to Sections

212.122 or 212.123:

The opacity limitations

 of Sections 212.122

and 212.123 shall not apply

 if it

 is shown

that the emission source was,

 at the time of

such

emission,

compliance

with

the

applicable particulate emissions limitations

this

Part.

For

all

emission

sources

which

are

not

subject

Chapters

111

112

the

Clean

Air

Act

but

which

are

subject

Sections

212.201,

212.202,

212.203

212.204

 and either Section

212.122

212.123:

exceedance

 of the limitations of Section

212.122

212.123

 shall constitute

a

violation

the

applicable

particulate

limitations

this

Part.

shall

defense

violation

the

applicable

particulate

limitations

if,

during

subsequent performance

 test conducted within

a

reasonable

time

not

exceed

days,

under

89—182

—19—

the same operating conditions

 for the source

and the control device(s),

and

 in accordance

with Method

5,

 40 CFR 60,

 incorporated

by

reference

 in Section 212.113, the owner

or

operator shows that the source

is

in

compliance with the particulate emission

limitations.

B)

 It shall

 be a defense to an exceedance of the

opacity limit

 if, during

 a subsequent

performance

 test conducted within a reasonable

time not to exceed

 60 days,

 under

 the same

operating conditions

 of the source and the

control device(s),

and

 in accordance with

Method

5,

 40 CFR 60, Appendix

A,

 incorporated

~y~reference

 in Section 212.113, the owner or

operator shows that the source

is

in

compliance with the allowable particulate

emissions limitation while,

 simultaneously,

having visible emissions equal

 to or greater

than

the opacity exceedance

 as originally

observed.

(Source:

 Amended

at

____

 Ill.

Reg.

effective

___________)

Section

212.126

Adjusted

Opacity

Standards

Procedures

Pursuant

Section

28.1

the

Act,

and

accordance

with

35

Ill.

Mm.

Code

 l06.Subpart

E,

 adjusted visible

emissions standards for emission sources subject to

Sections 212.201, 212.202, 212.203,

or

 212.204 and

either Section 212.122

or

 212.123 shall be granted by

the Board

 to the extent consistent with federal law

based upon a demonstration by such a source that the

results

performance

test

 conducted pursuant to this

Section,

Section

212.110,

and

Methods

and

CFR

60,

Appendix

incorporated

 reference in Section

212.113,

show

that

the

source

meets

the

applicable

particulate

emission

limitations

the

same

time

that

the

visible

emissions

exceed

the

 otherwise applicable

standards.

 Such adjusted opacity limitations:

1)

 Shall

 be specified as

 a condition

 in operating

p~çmits issued pursuant

to

35

 ill. Mm.

 Code 201

2)

 Shall substitute

 for that limitation otherwise

applicable

3)

 Shall not allow

 an opacity greater

 than

 60 percent

at any time;

and

89—183

—20—

4)

 Shall allow opacity

 for one six—minute averaging

period

 in any

60 minute period

 to exceed the

adjusted opacity standard.

b)

For

the

purpose

establishing

adjusted

opacity

standard,

any

owner

operator

 of an emission source

which

meets

the

requirements

subsection

(a),

above,

may

request

the

Agency

 determine the average opacity

of the emissions from the emission source during any

performance test(s)

 conducted pursuant to Section

212.110 and Methods

 5 and

 9 of

 40 CFR 60, Appendix A,

incorporated by reference in Section 212.113.

The

Agency may refuse

 to accept the results of emissions

tests if not conducted pursuant to this Section

c)

 Any request for the determination of the average opacity

of emissions shall be made

 in writing, shall include the

time and place of the performance test and test

specifications and procedures,

 and shall

 be submitted to

the Agency at least thirty days before the proposed test

date.

d)

 The Agency will advise the owner or operator

 of an

emission source which has requested an opacity

determination

any

deficiencies

the

proposed

test

specifications

and

 procedures

 as expeditiously as

practicable but no later

 than

days

prior

the

proposed

 test date so as

 to minimize any disruption of

the proposed testing schedule.

e)

 The owner or operator shall shall allow Agency personnel

to be present during

 the performance test.

f)

 The method

 for determining an adjusted opacity standard

is

 as follows:

1)

 A minimum of

 60 consecutive minutes

 of opacity

readings obtained

 in accordance with USEPA Test

Method

9,

 40 CFP 60, Appendix

A,

 incorporated by

reference in Section 212.113, shall be taken during

each sampling

 run.

 Therefore,

 for each performance

test

 (which normally consists of three sampling

runs),

 a total of three sets of opacity readings

totaling three hours or more shall

 be obtained.

Concurrently,

 the particulate emissions data from

three sampling runs obtained

 in accordance with

USEPA Test Method

5,

 40 CFR 60, Appendix

A,

incorporated by reference

 in Section 212.113, shall

also

 be obtained.

89—184

—21—

2)

 After

 the results of the performance

 tests are

received from the emission source,

 the status of

compliance with the applicable particulate

emissions limitation shall

 be determined by the

Agency.

 In accordance with USEPA Test

 Nlethod

5,

40

CFR

60,

Appendix A,

 incorporated by reference

in

Section 212.113,

 the average of the results

 of the

three sampling runs must be less than the allowable

 particulate emission rate in order

 for the source

to be considered

 in compliance.

 If compliance

is

demonstrated, then only those

 test runs with

results which are less

 than the allowable

particulate emission rate shall be considered as

acceptable

 test runs for

 the purpose of

establishing

 an adjusted opacity standard.

3)

 The opacity readings for each acceptable sampling

run shall

 be divIded into sets of

 24 consecutive

readings.

 The 6—minute average opacity for each

set shall

 be determined by dividing the sum of the

24 readings within each set by

24.

4)

 The second highest six—minute average opacity

obtained

in

 (f)(3)

 above shall

 be selected as the

adjusted opacity standard.

~j

 The owner or operator shall submit

 a written report of

the

results

 of the performance test to the Agency at

least

 30 days prior

 to filing

 a petition for

 an adjusted

standard with the Board.

h)

If,

 upon review of

such owner’s or operator’s written

~port

 of the results of

 the performance test(s),

the

Agency determines

 that the emission source

 is in

compliance with all applicable emission limitations for

 which

 the performance tests were conducted, but fails

to

comply

with

the

requirements

Section

212.122

212.123,

the

Agency

shall

notify

 the owner

 or operator

as expeditiousl~ras practicable,

 but no later

 than

20

days

after

receiving

 the written report of any

deficiencies

the

 results

 of the performance tests.

i)

 The owner or operator may petition the Board

for

an

adjusted visible emission standard pursuant

 to 35

 Ill.

Adrn.

 Code 106.Subpart

E.

 In addition

 to the

requirements of

35

 ill. Mm.

 Code 106.Supart

E

the

petition shall include

 the following information:

1)

 A description of

 the business or activity of the

petitioner,

 including

 its location and relevant

pollution control equipment

89—185

—22—

2)

 The quantity and type of materials discharged from

the source or control equipment

 for which the

adjusted standard

 is requested

3)

 A copy of any correspondence between the petitioner

 and the Agency regarding the performance

 test(s)

which form the basis of the adjusted standard

request

4)

 A copy of the written report submitted to the

Agency pursuant to subsection

 (g) above

5)

 A statement that the performance test(s) were

conducted

 in accordance with this Section and the

conditions and procedures accepted by the Agency

pursuant

 to Section 212.110

6)

 A statement regarding the specific limitation

requested; and

statement

whether

the

Agency

has

sent

notice

 of deficiencies

 in the results of the

performance

test

pursuant

subsection

(h)

above

and a copy of said notice.

In order

 to qualify for

 an adjusted standard the owner

operator

must

justify

 follows:

1)

 That the performance test(s) were conducted

in

accordance

with

USEPA

Test

Methods

and

CFR

60,

Appendix

incorporated

reference

Section

212.113,

and

the

conditions

arid

 procedures

accepted

the

Agency

pursuant

Section

212.110

That

the

emission

source

and

associated

air

pollution

control

equipment

were

operated

and

maintained

manner

minimize

the

opacity

 of the emissions during

 the performance

test(s); and

3)

 That the proposed adjusted

opacity standard was

determined

accordance

with

subsection

(f).

k)

 Nothing

 in this Section shall prevent any person

 from

initiating or participating

in

 a rulemaking, variance,

permit

appeal

proceeding

before

the

Board.

(Source:

Amended

Ill.

Peg.

_________

effective

___________)

IT

 IS SO ORDERED.

Board Member

B.

 Forcade dissented.

89—186

—23—

I, Dorothy M.

 Gunn, Clerk

 of the Illinois Pollution Control

 Board, hereby certify that the above Proposed Opinion and Order

was adopted on the

_____________

 day of

1988

vote

of

 ~.—/

.

~.___

Dorothy M. Gum, Clerk

Illinois Pollution Control Board

89—187