ILLINOIS POLLUTION CONTROL BOARD
June
25,
1987
IN THE MATTER OF:
PROPOSED AMENDMENTS TO 35 ILL.
)
R86—36
ADM.
CODE 215.204, 215.211,
)
AND 215.212: HEAVY OFF—HIGHWAY
)
VEHICLE PRODUCTS.
)
PROPOSED RULE.
FIRST NOTICE.
OPINION AND ORDER OF THE BOARD
(By R.C.
Flemal):
This matter comes before the Board upon
a proposal of the
Illinois Environmental Protection Agency
(“Agency”)
to amend
certain portions of
35 Ill.
Adm. Code
215 pertaining
to emissions
of volatile organic materials (“VOM”)
from facilities
manufacturing heavy off—highway vehicle
(“HOHV”) products.
Today
the Board
sends to first notice the Agency’s proposed amendments,
with some modifications as discussed herein.
BACKGROUND
The origin
of this proceeding
is rooted
in the requirements
of the Clean Air Act
(“CAA”)
(42 U.S.C.A.
7401 et.
seq.).
Pursuant to
109 of the CAA, the USEPA adopted
a National Ambient
Air Quality Standard
(“NAAQS”) for ozone.
Attainment of this
NAAQS
was
to have been demonstrated for all areas
of the State
by
December
31,
1982, according
to the provisions of
172(a)(1)
of
the CAA.
However,
Illinois was unable
to make such a
demonstration.
It therefore applied
for and received an
extension of this deadline
until December
31,
1987
(pursuant to
the provisions of
172(a)(2)
of the CAA).
As a prerequisite
to
obtaining this extension,
Illinois was required
in the interim to
include
in its State Implementation Plan (“SIP”)
for
areas which
are nonattainnient for ozone “such reduction
in emissions from
existing
sources
in the area as may be obtained through the
adoption,
at a minimum, of reasonably available control
technology”
(
172(b)(3)
of CAA).
“Reasonably available control
technology”
(“RACT”)
is not
defined
in the
CA.A.
However,
USEPA has promulgated industry—
specific “Control Technology Guidelines”
(“CTG5”)
that are
intended
to describe RACT for
a given industry and assist states
in determining RACT.
USEPA has published three groups of CTG5.
On December
30,
1982,
In the Matter
of RACT
II Rules, R80—5,
the Board adopted rules intended
to satisfy the RACT requirements
as specified
in the second group of CTGs.’
However, on July 11,
1985, the USEPA at 50 Fed.
Reg.
28224 proposed to disapprove
certain of
the rules adopted by the Board
in R80—5.
Included
in the proposed disapproval are provisions relating
to coatings applied
to HOHV products.
Specifically,
the rule
adopted
in R80—5 allows a maximum of 4.3 lbs VOM/gallon of
coating for air—dried extreme performance top coat and 4.8 lbs
VOM/gallon for air—dried final repair coating.
USEPA asserts
that th~presumptive norm for both of these
categories
is 3.5
lbs/gal
,
and hence that the current Illinois limitations do not
represent RACT.
The basis
for the conclusion that the presumptive norm for
the coatings
in question
is 3.5 lbs/gal derives from the CTG for
coating
of miscellaneous metal parts and products
(Ex.
3).
Although HOHV products are not identified by that name w~thinthe
CTG, they are presumed
to be
included within
the
“other”
category identified
in Figure 4.1 of the CTG
(Ex.
3 at 4—3).
Figure
4.1 states in part that the presumptive norm of
3.5
lbs/gal applies
to “other” parts and products which are:
Air or forced air—dried
items:
Parts too large or
too
heavy
for practical
size ovens and/or sensitive heat
requirements.
Parts to which heat sensitive
materials are attached.
Equipment assembled prior
to
top coating for specific performance or
quality
standards.
Ex.
3 at 4—3
1 The second group of CTGs covered the following source
categories:
factory surface coating of flatwood paneling;
petroleum refinery fugitive emissions; pharmaceutical
manufacturing; rubber
tire manufacturing; surface coating
of
miscellaneous metal parts and products; graphic arts (printing);
dry cleaning perchioroethylene;
leak prevention
from gasoline
tank trucks and vapor collection systems; petroleum liquid
storage
in external floating roof tanks.
2 Unless otherwise indicated,
3.5 lbs/gal coatings are
hereinafter assumed
to refer
to the VOM content of air—dried
extreme performance top coats and air—dried
final repair coats.
~ Categories listed within the miscellaneous metal parts and
products CTG are can,
coil, wire, auto and light duty truck,
metal furniture,
large appliance, and “other”.
7$$69
—j
—
R86-36 PROCEDURAL HISTORY
The Agency filed
its proposal
on September
2,
1986.
The
original Agency proposal addressed amendments to 35 Ill. Adm.
Code 215.204 plus technical conforming amendments to 215.211.
On
March
30, 1987,
the Agency filed an amended proposal
in which it
also proposes technical amendments to Section 215.212 to bring
this section into conformity with the amendments proposed to
Sections 215.204 and 215.211.
Merit hearings were held on December 9,
1986,
in
Springfield, Illinois,
and on February
26, 1987,
in Romeoville,
Illinois.
Testimony was presented by the Agency and by General
Motors Corporation, Electro—Motive Division (“END”)
at both
hearings, and by Caterpillar,
Inc.
(“Caterpillar)
at the February
26 hearing.
On May 7,
1987,
the Illinois Department of Energy and
Natural Resources issued a “negative declaration”
of economic
impact in this proceeding.
The Economic and Technical Advisory
Committee concurred
in that determination on June
4, 1987.
The Agency filed post—hearing comments on April
6,
1987,
and
on May 13,
1987 (hereinafter “Agency Comment”).
A post—hearing
comment was also filed on May 11,
1987, by END
(hereinafter “END
Comment”).
No other post—hearing comments have been filed.
OUTSTANDING PROCEDURAL MATTERS
EMD Proposal and Severance Motion
Concurrently with the above noted activities,
EMD on
December
8,
1986,
filed what it characterized
as
a site—specific4
exception to the Agency’s proposed rule.
This proposal was
docketed as R86—5l.
END’S proposal would create
a new subsection
within Section 215.204 with VOM limitations specific to diesel—
electric locomotive manufacturing plants.
On the same date END
also filed
a motion to consolidate the site—specific exception
with the present proceeding.
By Order
of
December
18,
1987,
the
Board determined that the END “site—specific” proposal can most
reasonably
be construed
as an amendment
to the Agency’s original
proposal.
Accordingly, the Board on the same date ordered that
docket R86—5l be closed and the record
of that proceeding
be
incorporated into the instant proceeding.
As proposed,
the rule
is properly characterized as
a rule of
general applicability,
in that
it would apply
to all
manufacturing facilities of the
type identified.
However,
as
a
practical matter,
there
is only one such facility
in Illinois,
and
to this end it would function as a site—specific rule.
78-570
On January 12,
1987,
the Agency filed
a motion requesting
that the Board reconsider
its incorporation of the END “site—
specific” proposal.
The Agency contended that severance
is
necessary in this instance
in order
to not unduly jeopardize
USEPA approval of the rules promulgated as a result of the Agency
proposal,
if
in fact the Board acts
in that manner.
On January
22,
1987,
the Board denied
the severance motion based on the
determination that joint consideration of the two proposals
allowed for the most convenient, expeditious,
and complete
determination of all claims.
However,
the Board noted that
it
would, after
the hearings
in this matter had been completed,
reconsider
the Agency’s motion
in light of the record as then
developed.
The Board further noted
that the Agency could renew
its severance motion at the proper
time.
The Agency did so renew
the motion
in its filing
of May 13,
1987
(Agency Comment at
10).
END filed a reply on June 19,
1987.
Twice within
its discussion of the END proposal the Agency
notes that
it does not oppose END’S proposed amendment “in
theory”
(Id. at
9 and 10).
Moreover, the Agency notes that END
“has unique problems associated with its
use of coatings”
(Id. at
9)
and that END “does something that is very different from what
other HOHV manufacturers
in Illinois do”
(Id.
at 10).
The Agency
additionally asserts that END “has made the necessary case for
the higher VOM level
in its high—temperature aluminum coating”
(Id. at 9), which is a part of the END proposal.
Finally,
the
Agency requests that the EMD proposal be amended by a change
in
title to insure “that the
total emissions will be limited
to
those of GM”
(Id.)
and by the addition of a limitation for “all
other coatings” because “the Agency believes it
is necessary to
include every possible coating
in the rule,
as the rule
is really
a site—specific for GM”
(Id.
at
10).
Based on the above, the Agency would appear to conceptually
support the substance of
the END proposal. Nevertheless, the
Agency continues to urge that the END proposal be severed from
the instant proceeding.
The reason advanced by the Agency
is
that “the Agency is uncertain whether GM has provided sufficient
justification for
their addition of solvents to satisfy USEPA’s
review”
(Id.,
emphasis added).
The Agency further notes:
If the Board proposes
a rule
for this category with
GM’s amendment as part of the rule,
USEPA will not be
able to disapprove
the GM amendment without
disapproving the entire rule.
(See Bethlehem Steel
Corp.
v.
Gorsuch,
742
F.
2d 1028
(7th Cir.
1984)).
The underlying rule needs to be passed by the Board
in
a form approvable by USEPA in order
to avoid
severe penalties,
as this rule
is based
on a CTG.
Id.
at 10
78-571
The Agency is therefore concerned, and the Board believes
justly so, that,
should the Board find merit in END’S proposal
and therefore promulgate
that rule, the USEPA would not only
disallow the EMD rule, but would also disapprove the entire
Illinois
SIP.
Moreover, the Agency
is concerned, and again
the
Board believes justly so,
that in company with its disapproval of
the Illinois SIP,
the USEPA would
impose major sanctions and
penalties upon the State,
including the withholding of major
federal funding and imposition of construction bans pursuant
to
Sections
110,
113, and 176 of the CAA.
This entire circumstance deeply aggrieves the Board.
Congress through the CAA has seemingly delegated an authority to
the states to develop rules
for control of VON.
Yet this
authority
is apparently a hollow authority,
in that the USEPA has
predetermined what
is “approvable” by
them
and seemingly will not
allow, at enormous hazard
to the states, any departure from that
predecided position.
The Board
in prior RACT proceedings has yielded
to the USEPA
where the harm
to the State caused by promulgation has not been
outweighed
by the harm threatened
by failure
to promulgate.
As
a
case
in point, the Board has recently and reluctantly promulgated
RACT rules
for
industries which do not even exist within the
State because of the overt threat that failure
to do
so would
cause
the USEPA to disapprove
the Illinois SIP.
See In
the
Matter of: Amendments to 35 Illinois Administrative Code 211 and
215, R85—21(A), Adopted Rule,
May 28,
1987.
The Board does indeed want to keep the State
SIP, and
it
does dread
the possibility of sanctions and loss of funding.
However,
at the same time,
it does not believe that it can either
abrogate State authority or deny EMD’s right to be heard.
Although not specifically so stating,
the Agency’s in its
motion
is seemingly asking
the Board to not only sever END’s
proposal, but also
to delay action on
it until some undetermined
future date.
No other course of action would address the
Agency’s concern about the USEPA’s reaction to
inclusion of the
END proposal within the SIP.
Therefore,
the only action which
the Board might take which would be consistent with the Agency’s
argument would be
to both sever
and delay.
This the Board
declines
to do
in the absence of a clear indication that the END
proposal
is not federaly approvable,
and reasons therefore.
EMD,
having presented
its case, has the right to a timely
determination of the merits of that case.
The Board can not
deprive EMD of that right.
The only entity which can waive that
right is END itself.
END has not
so waived,
so the Board will
proceed.
The Agency’s motion
to sever
is denied.
Having
so said, the Board believes that END has made a
showing sufficient
to warrant at least
first notice of
its
proposed amendments in company with the amendments proposed by
75-572
the Agency.
It must be realized
by all that this does not
constitute
final action,
and that separating out or modify the
END proposal could yet occur depending upon resolution of matters
still extant
(see following) plus new matters which might be
raised during
first notice.
Other
Motions
The Agency Comment of May
13,
1987, contains renewals of two
additional motions made at hearing.
Both concern admissions to
the record.
In the first
the Agency moves that testimony
concerning requirements of the
CAA
as given by Mr. Bill Compton,
a witness called by Caterpillar, be stricken
(Agency Comment at
2).
The Agency argues that Mr. Compton is not a lawyer,
and
hence should
not have been permitted
to make what the Agency
characterizes as a legal analysis.
In the second the Agency
moves that the testimony of Mr. Sidney Harder
in R86—l8, which
has been incorporated into this record,
be stricken (Agency
Comment at 4).
It
is to
be noted that a Board
regulatory proceeding
is
a
quasi—legislative proceeding.
Thus, the standards of evidence
which control
in
a judicial or quasi—judicial setting
do not
apply.
In fact,
in considering admission of materials into the
record of its regulatory proceedings the Board has historically
taken a liberal stance parallel
to the stance employed by full
legislative bodies.
As
to the particular
issues at hand,
the Board
is aware of
Mr. Compton’s background, which has been well developed in the
record
(R.
at 284—7;
328—31).
The Board also realizes that
interpretations of the
CAA
which differ from that expressed by
Mr. Compton do exist.
The Board also notes that it is not itself
unacquainted with the CAA,
and may therefore be
in a position
to
properly weigh Mr. Compton’s analysis.
Much the same can also be
said regarding the testimony of Mr. Marder.
That testimony was
presented
in another RACT proceeding before the Board,
so
it is
therefore material familiar
to the Board.
Moreover,
it treats
some issues common
to the RACT proceedings.
The Board will have
to weigh those
issues in the instant matter,
and
to the extent
that Mr. Marder’s testimony might provide some guidance,
the
Board welcomes the attention brought to the testimony by its
incorporation.
Accordingly, both Agency motions
to strike are
denied.
As
a final procedural matter, the Agency asks that,
if the
Marder
testimony be allowed into the record,
the Board permit the
Agency leave to incorporate
the cross—examination of Mr.
Kauper
from R86—l8 “as well as the comments on that subject that the
Agency will
be submitting
in R86—18”
(Agency Comment at
5).
The
request is granted.
75-573
EXISTING AND PROPOSED RULE
The principal existing regulations relating
to VON emissions
from HOHV facilities are found at 35 Ill. Adm. Code Subpart F,
Coating Operations, Section 215.204(k).
These
rules are
applicable throughout the State.
The Agency’s proposed amendments would retain
the present
rule for
the majority of the State, but would lower the maximum
allowable limitations
in two coating categories, extreme
performance topcoat air—dried and final repair coat air—dried
from current limitations to 3.5 lbs/gal
in
a ten—county area.
The ten counties are Cook,
DuPage, Kane,
Lake, Macoupin, Madison,
McHenry, Monroe,
St. Clair,
and Will.
The complete proposal
is a follows5:
Section 215.204
Emission Limitations
for Manufacturing Plants
No owner
or operator
of
a coating line shall cause
or allow the
emission of volatile organic material
to exceed
the following
limitations on coating materials,
excluding water, delivered to
the coating applicator:
kg/i
(lbs/gal)
k)
Heavy Off—Highway Vehicle Products
1)
In
Cook,
DuPage, Kane,
Lake, Macoupin, Madison,
McHenry, Monroe,
St.
Clair
and Will Counties
Extreme performance prime coat
0.42
(3.5)
Extreme performance top coat—air
dried
0.42
(3.5)
Final
repair coat—air dried
0.42
13.5)
fl
In the remaining counties
~
Extreme performance prime coat
0.42
(3.5)
~
Extreme performance top coat—air
dried
0.52
(4.3)
The Board has made some minor form modifications
to the
Agency’s proposal as presented here.
All of these changes are
intended
to conform the proposal
to the proper
format for
regulatory amendments
and language.
No substantive changes have
been made.
78-574
3-)
Final repair coat—air dried
0.58
(4.8)
Section 215.211
Compliance Dates and Geographic Areas
a)
Except as otherwise stated
in subsection
(b), every
major
owner
or operator of an emission source subject to
Section 215.204(j),
(k), and
(1)
shall comply with those
sections
in accordance with the following dates:
1)
For Section 215.204(j) and
(k)(2) Extreme
performance prime coat and Final
repair coat
—
air
dried,
by December
31,
1983.
jj
For Section 215.204(k)(l),
by December 31,
1987.
~3)
For Section 2l5.204(k)(2) Extreme performance top
coat
—
air dried,
in accordance with Section
215. 210.
34)
For Section 215.204(1), by December
31,
1985.
Section 215.212
Compliance Plan
a)
The owner
or operator of an emission source subject to
Section 2l5.21l(a)(l) or (~3)shall submit
to the Agency
a compliance plan on or before August 19,
1983.
b)
The owner
or operator of
an emission source subject
to
Section 215.211(a)
(34)
shall submit
to the Agency a
compliance plan on or before October 31,
1985.
c)
The owner or operator of an emission source subject
to
Section 2l5.2ll(a)(2) shall submit
to the Agency a
compliance plan no later
than August
19,
1987.
ed)
The owner or operator of
an emission source subject
to
Section 215.211(b)
shall submit
to the Agency a
compliance plan no later
than December
31,
1986.
de)
The owner
or operator of an emission source subject
to
Section 215.211(c) shall submit
a compliance plan within
90 days after
the redesignation, but in no case later
than December
31,
1986.
ef)
The owner
or operator
of an emission source subject
to
Section 215.211(c)
shall not be required
to submit
a
compliance plan
if redesignation occurs after December
31,
1986.
~)
The Plan and schedule shall meet the requirements of
35
Ill. Adm. Code 201.
78-575
As noted previously, the EMD proposal would added
a new
subsection to Section 215.204 specifically related to diesel—
electric locomotive manufacturing plants.
This proposal was
originally offered in the R86—5l docket by filing of December
8,
1986, and has remained unaltered by END since.
However,
as also
previously noted,
the Agency in its comment of May 13, 1987,
recommends certains changes to the END proposal.
These are
in
the title of the subsection and the inclusion
of a limitation of
3.0 lbs/gal for “all other coatings”
(Agency Comment at 9—10).
The Board further notes that EMD recommended placing its proposal
at 215.204(1),
but that this subsection
is already in use and
hence is not available.
Accordingly,
an alternative subsection
location would
be required, with the next open subsection,
“rn”,
being the most logical location.
For the present purpose of
first notice, the Board adopts
the various alterations of the EMD proposal as discussed in the
above paragraph.
The Board specifically requests that the Agency
and END address during the first notice comment period whether
these changes are
as intended.
With these changes,
the END
proposal
is as following:
m)
Existing Diesel—Electric Locomotive Coating Lines
in
Cook County
~J
Extreme performance prime coat
0.42
(3.5)
.iL
Extreme performance top coat—air
dried
0.52
(4.3)
~J
Final repair coat—air dried
0.58
(4.8)
4)
High—temperature aluminum coating
0.72
(6.0)
5)
All other coatings
0.36
(3.0)
Finally,
the Board
notes that adoption of the END proposal
would
require
a conforming modification to Section 215.211,
similar to that proposed
as an accompaniment
to the Agency’s
proposal.
The Board will not fully write out that change here,
but rather notes that it consists
of identification of Section
215.204(m)
within the Agency’s proposed Section 215.211(a)(2).
This change
is made in the Order herein.
A parallel modification
to Section 215.212 is not required given the structure of the
Agency’s proposed modifications to Section 215.211 and 215.212.
RATIONALE
FOR
PROPOSED
AMENDMENTS
Overview
As
noted
above,
the
purpose
of
the
proposed
amendments
is
to
overcome the objections of the USEPA to certain rules promulgated
78-576
by the Board
in the original RACT II proceeding, R80—5.
The
basis of the USEPA’s objection is that the existing limitations
for coatings in the HOHV category do not represent RACT in that
coatings meeting 3.5 lb/gal
are presently available and
in
commercial use
(R.
at 43).
In order
for Illinois
to overcome the USEPA’s objection
without changing
the present rule,
it would
be necessary to
demonstrate
to the USEPA that 3.5 lbs/gal coatings are not
reasonably available to HOHV manufacturers.
However,
the Board
does not believe that this demonstration can
be made.
Ample
evidence exists that 3.5 lbs/gal coatings are available,
and that
at least some fraction of the HOHV industry can and does use them
(see
following).
For
this reason the Board will today send to
first notice those amendments proposed by the Agency which would
limit HOHV air—dried extreme performance
top coatings and final
repair coatings to 3.5 lbs/gal.
This
is not to say, however, that the Board believes that
3.5 lbs/gal coating are necessarily available for all HOHV
products or
for all facilities within the HOHV category.
The
miscellaneous metals parts and products CTG in fact contemplates
this circumstance, noting:
It must be cautioned
that the limits reported
in
this
report
are necessarily based on a general
consideration of the capabilities and problems of the
hundreds of industries which coat their products.
It
(sic) will not be applicable
to every plant
or even
every industry within the many industries which coat.
For example,
the level
of controlwhich is herein
recommended for
a particular source may be based on a
type of coating which cannot meet the specifications
required of another product from a similar source.
Ex.
3 at iv
(emphasis added)
The CTG further notes:
Current technology does not provide low—polluting
coatings which can successfully replace conventional
coatings for all the specialty items coated by the
many industrial categories covered by
Ithis CTG...
There will
be
...
situations where low—polluting
coatings may never
be applicable...
Ex.
3 at 4—2
The CTG thus allows that the State may demonstrate that 3.5
lbs/gal coatings are not reasonably available for some portion
of
the
industries, plants,
or products included within the HOHV
category.
The Board believes that END has made a satisfactory
demonstration that 3.5 lbs/gal coatings are not reasonably
78.577
—11—
available for certain of its products (see following), and
accordingly,
the Board will send to first notice special
limitations
for EMD’s locomotive coating
line.
Finally, the Board believes that the present amendments need
be applied only to those areas within which there
is
a
demonstrated need for further reductions
in VON.
Accordingly,
the Board will send to first notice
the proposal
of
the Agency
that the amendments apply only in a ten—county area
(see
following).
Availability of Coatings to the HOHV Industry
in General
A central
issue in the instant matter
is whether
3.5 lbs/gal
coatings constitute RACT for the HOHV industry.
A coating
is
RACT if
it
is reasonably available
to
a manufacturer.
Reasonable
availability apparently means not only that formulations which
meet the 3.5 lbs/gal limitation exist, but also that the
formulations
(1)
are commercially available,
(2)
are not
prohibitively expensive, and
(3) are capable of meeting the
specifications for particular jobs and products.
In addition to the documentation provided
in the CTG, the
Agency has provided independent documentation that 3.5
lbs/gal
coatings are RACT for the HOHV industry in general.
The
principal portion of this evidence
is provided
in a study jointly
commissioned by the USEPA and the Agency and conducted
by Pacific
Environmental Services
(Ex
2;
hereinafter “PES”
Study)6.
The PES
Study consists principally of surveys of coatings suppliers and
of HOHV manufacturing facilities.
The conclusion of the study is
that 3.5 lbs/gal coatings are both available to and are being
used by segments of the Illinois HOHV industry
(Id.
at 6—1).
As evidence of availability, the PES Study cites
a variety
of
3.5 lbs/gal coatings which are commercially available from
eight different suppliers
(Id.
at 3—2).
The Study also cites 27
coating suppliers who are “investigating low—VOC coatings”
(Id.
at 3—3),
as apparent evidence of suppliers’
interest in
developing additional compliant coatings.
6 The PES study was commissioned
in
September 1985.
A draft copy
of the study was submitted to the Agency in October
1985.
This
draft was reviewed by and comment solicited from the USEPA,
the
Agency,
coating suppliers,
and members of the regulated community
(R.
at
44; Ex.
4 to
8; Ex 13b
to l3h;
Ex.
15, attachment 4).
A
final draft was then composed by PES and submitted to the Agency
in January 1986 under
the title “Study of Low—VOC Coatings
Available for Use
in the Illinois Heavy—Duty Off—Highway Vehicle
Manufacturing Industry”
(Ex.
2).
78-578
—12—
As evidence of use,
the PES Study cite~six HOHV facilities
that currently use 3.5 lbs/gal top coatings’
(Id. at 3—5).
These
include some Illinois
facilities which would not be required
to
use 3.5 lbs/gal coatings because they are not located
in the ten—
county area within which th~proposed rule would
be applicable.
However,
of the five active
facilities located within the ten—
county
area,
3.5 lbs/gal coatings are reported to be in use by
two and
in partial use by a third
(R.
at 52,
135,
140).
This
information
is summarized
in the following table, which includes
the facilities and their location, compliance status relative
to
the 3.5 lbs/gal limit as purported to by the Agency, and
types of
products:
“Compliance”
with 3.5 lbs/
Facility/Location
gal limitation
Types
of Products
Allis—Chalmers Industrial
In
Industrial forklifts
Truck Division Matteson
Compliance
(Cook County)
International Harvester
In
6—cylinder diesel
Melrose Park (Cook
Co)
Compliance
engines for agricul-
tural and construction
equipment and trucks
Dresser
Industries
Partial
Heavy—duty tractors
&
Libertyville (Lake
Co)
Compliance
construction equipment
Caterpillar,
Inc.
Not in
Components
to heavy—
Joliet
(Will
Co)
Compliance
duty equipment; e.g.,
hydraulic valves,
bulldozer blades,
push
arms, and scrapers
It
is not clear
from the PES Study that 3.5 lbs/gal final
repair coatings are also available
to and used by these
facilities.
Additionally, one of the
six facilities was later
indicated to have given
up use of 3.5 lbs/gal top coatings
(R.
at
46;
Ex.
5).
8 The PES Study identified
a sixth facility within the ten—county
area, Allis—Chalmers Engine Division, Harvey and Phoenix
(Cook
County).
The record
indicates that this facility subsequently
ceased operations
in May
1986
fR. at
50, 67; Ex.
11).
7$-579
General Motors, Electro—
Not
in
Electro—motive engines
Motive Div LaGrange
Compliance
and locomotives
(Cook County)
Modified9
from Ex.
2
Of the five facilities, testimony was presented in the
instant record on behalf of only the latter two, Caterpillar and
EMD.
The Agency asserts that Dresser, which did not appear at
hearing, currently uses some 3.5 lbs/gal coatings
(R.
at 48,
140), but that the Dresser facility “is not now in daily
compliance with the present regulation and that this non-
compliance status will certainly not improve
if the facility uses
paints that are above
the 3.5 pounds per VOC gallon limit”
(R. at 49).
The Agency opines that Dresser’s failure
to present
opposition to the Agency’s proposal signifies that Dresser has
the ability to comply and
is not presently complying simply
because
it is not required
to comply (Agency Comment at 7—8).
On the basis of the above, the Board
concludes that there
are generally available,
if not universally available, 3.5
lbs/gal coatings for use
in the HOHV industry.
For this reason,
3.5 lbs/gal coatings constitute
the general RACT for HOHV
facilities.
Special
rules
for END
As noted
above, the CTG allows that 3.5 lbs/gal RACT
coatings may not exist for all miscellaneous metals parts and
products.
END contends that this is1~hecase for the diesel
locomotives produced at its facility
This table was originally presented at 2—4
of the PES Study
(Ex.
2).
A modified version was presented during the testimony
of
Dr.
John Reed
of the Agency
(R. at 47)
as Ex.
15, Attachment
1.
The version presented here
is modified further based
on
information present
in the record.
The latter modifications
include change
in ownership of the Dresser Industries facility,
which was previously owned by International Harvester
(R.
at 47.
67; Ex.
4); change
in “compliance status” of
the Dresser
Industries facility from “in compliance”
to
“partial compliance”
(R.
at 135);
change
in name of the Caterpillar facility from
Caterpillar Tractor Company to Caterpillar,
Inc.
(R.
at 218); and
addition of “scrapers”
to the list of Caterpillar products
(Ex.
5
at
2).
10 END produces products other than diesel locomotives at its
LaGrange facility, including engines and generators
(R. at 268;
END Comment at
5).
However, the discussion here, unless
otherwise noted,
as well as the rule proposed for
the END
78-580
—i
q
—
The EMD position that
3.5 lbs/gal coatings do not constitute
RACT
is based on several characteristics associated with its
product, method
of production, production specifications, and
coating availability.
Major
elements include the large size and
complex configuration of the locomotives, difficulty of access to
painted surfaces, and complex paint patterns and large variety of
colors which are required.
Locomotives are fully assembled when they are painted
(R.
at
194).
This occurs because each locomotive must be painted
according
to the color and logo specifications of the individual
railroad which has purchased it
(R. at 190; Ex.
C2 to C4, C36—
40).
Purchasers include both domestic and foreign railroads
(R.
at 189—192), each of which has special color and pattern
specifications.
Because locomotives are fully assembled when they are
painted,
a large variety of surfaces are encountered
(R. at 194),
including cut—ins, doors,
hinges, grilles,
fans,
ducts, etc.
(R.
at 202,
212).
This,
in combination with the complex paint
pattern required by the purchasers, additionally requires that
all locomotives be painted manually.
Painters wearing protective
“moon suits”
(R. at 201) must stand on and move around the
locomotive or special scaffolding dur~.ngthe painting operation
(R.
at 194—5);
some surfaces must be sprayed from distances of
six
to eight feet
fR. at 195).
All painting occurs
in one of two confined paint booths
(R.
at 200).
To assist drying,
heated air enters through filters at
the top of the paint booth and flows down along the sides of the
locomotive
and
is exhausted through filters at the lower walls
(R.
at
200).
The velocity of air flow is maintained at
approximately 150 feet per minute, pursuant to OSHA regulations,
which results
in a total exhaust volume of one million cubic feet
per minute
(R.
at 195).
The breezes thus created
in the paint
booths present further difficulties
in spray painting
to
specification.
The complexity of painting patterns also requires
that portions of the locomotive be masked before additional
coatings and colors can be applied
(R. at 205).
This in turn
requires that previously applied coatings be dry so that they are
not damaged by the masking
(R.
at 205).
A futher facet of the requirement upon END of painting each
locomotive individually to the color specifications of the
purchaser
is that there
be available
a broad range of colors
(R.
at 187).
EMD presently uses six different prime coatings and
fourteen top coats in approximately 75 colors
(R.
at 194,
216).
END contends that paint suppliers are reluctant to attempt to
develop compliant formulations
in this broad range of required
colors given the small usage of the paints
(R. at 264).
facility,
goes specifically to just the diesel locomotive
operations.
78-581
END has achieved compliance with existing Section 215.204(k)
for
all of the top and final repair
coatings
(R. at 184—5).
EMD
has also converted all
of its prime coatings to
3.5 lbs/gal
paints, pursuant to existing Section 215.204(k)
(R. at 201).
EMD
contends, however, that the latter
change has presented problems,
including
increase in film thickness from
1
to
2 mils to
2
to
4
mils on flat surfaces and
to as much as
6 mils on non—flat
surfaces
(R. at 202).
Moreover, prime coating usage has
increased by a factor of 1.5,
so that the expected reduction
in
VON emissions has not occurred
(R. at 202).
END concedes that 3.5 lbs/gal coatings are available,
in the
sense that they can be purchased
(R.
at
203).
However, END
contends that they are not “available”
to locomotive
manufacturers because the existing coatings can not be
successfully applied
(Id.).
As evidence thereto,
END draws
on
experience from “extensive
tests of 3.5 pound coatings both on
test panels and fully assembled locomotives”
(Id.).
END contends that the tests have shown that there are four
primary reasons why high—solids coatings can not be used on
locomotives.
These are
(1)
film builds are excessive,
(2) finish
appearance is unsatisfactory,
(3) dry—to—tape times are
unacceptably long,
and
(4) sprayable pot life
is
too short
to
enable painting an entire locomotive
(R.
at 203—13).
These
problems remain
in spite of EMD’s efforts to modify application
methods
to accommodate high—solids coatings
(R.
at 217—20).
EMD also contends that it has explored waterbourne coatings,
but opines that the only available waterbourne coatings durable
enough
for
use on a locomotive require baking rather than air—
drying
(R.
at 216).
However,
a fully assembled locomotive can
not be baked both because of its size and because the presence of
electrical wiring and rubber parts which can not withstand
extremely high temperatures
(R.
at 216—7).
Finally, END has explored achieving compliance via add—on
controls
(R. at 225—35).
The principal problem
is that the
amount of reduction
in VON emissions required from EMD
is small11
so that even
a moderately costly control system produces a very
large cost per ton of reduction.
Costs
for various possible add—
on systems as cited by END range upward from $89,000 per
ton
(R.
at 233—4), based on its own estimates that its required reduction
is
16 tons per year
(R. at 233).
11 The Agency estimates the required reduction
to
be 5.62 tons
per year
(R. at 111).
At the time of the hearing END estimated
it be
be
16 tons per year
(Ex.
H), which was later
corrected to
34 tons per year (END Comment at 5).
78-582
END—LaGrange
is the only diesel locomotive manufacturer
in
Illinois, and
is one of only two
in the United States
(R. at 187,
245).
The second
is the General Electric facility in Erie
County, Pennsylvania
(Id.).
Erie County is nonattainment for
ozone
(END Comment at
2).
The Pennsylvania RACT rules provide
for a 4.3 lbs/gal
limit on top coats for locomotives
(Ex.
E at
129.52),
the same limitation here requested by EMD.
The
Pennsylvania SIP has been approved by the USEPA
(R. at 246; END
Comment at
3).
The preceding discussion has focused on the top coatings and
final repair coatings available to EMD.
END also raises the
issue of a specialty coating used in small quantity.
That is the
high—temperature (“Hi—Temp”)
aluminum coating used
to paint the
turbo exhaust duct and adapter screen assembly used on the
locomotives
(R.
at 199).
Both components must withstand
temperatures up
to 1,000 degrees Fahrenheit.
END contends that
because use of the Hi—Temp aluminum coatings
is small,
65 gallons
or less per year, suppliers have no interest
in developing
a
compliant coating
(R.
at 214).
END further contends that
it has
been unable to obtain
a Hi—Temp aluminum coating with
a VOM
content below
6.0 lbs/gal, and that this situation is not
expected
to change
(Id.).
The Agency itself accedes that END has
“made the necessary case for
the higher VON level
in its high—
temperature aluminum coating”
(Agency Comment at
9).
The Board
has faced the matter of use of Hi—Temp aluminum
coatings at END’s facility before.
This occurred
in the
proceeding PCB 86—195,
in which EMD sought and the Board granted
a variance for use of the 6.0 lbs/gal Hi—Temp aluminum coating
until December
31, 1987,
or until
the Board makes a final
determination
in the instant rulemaking, whichever occurs first
(General Motors Corporation (Electro—Motive Division)
v.
IEPA,
PCB 86—195,
February
19,
1987).
The record of
the PCB 86—195
proceeding
has been incorporated into that of the instant matter
(R.
at
214,).
In PCB 86—195 the Board was impressed with the arbitrariness
which would, be associated with requiring END to comply with
existing regulations given the unavailability of a compliant Hi—
Temp aluminum coating, and the de minimus environmental impact
associated with continued use by END of the existing 6.0 lbs/gal
Hi—Temp aluminum coating.
As regards the latter, the Board notes
that the
total VON emissions related to END’s Hi—Temp aluminum
coating operation in 1986 was 0.195 tons or 391 pounds,
and that
the anticipated 1987 emissions are 0.12 tons or 240 pounds
(PCB
86—195, February 19, 1987,
at 5).
The Board
believes that the
instant record continues to support special consideration of
the
use of Hi—Temp aluminum coatings by END.
As the final matter relating
to the END proposal, END
contends that the engines and generators which
it produces should
likewise be excluded from the 3.5 lbs/gal coating limitation (END
78-583
—.I_
I—
Comment at 5—6).
EMD contends that its engines and generators,
like its locomotives, have complex configurations which makes
them difficult
to coat evenly, that they are painted
in
a “job
shop” mode,
that their
appearance
is important to customers, and
that they require extreme performance coatings (Id.).
However,
the Board does not believe that these features alone
are
sufficient
for
a finding that 3.5 lbs/gal coatings do not
constitute RACT for the engines and generators.
Clearly,
difficulty of coating evenly, complexity of configuration,
appearance,
and the need for extreme performance coating are not
attributes peculiar
to END’s engines and generators,
but rather
attributes held by many miscellanous metal parts and products for
which compliant coatings are demonstratively available.
Similarly, END has made no demonstration that the job shopping of
products
is by itself sufficient to determine RACT.
Conversely,
some of the elements that the Board
finds compelling
for
excepting the locomotive line,
including the complexity of
painting patterns and surfaces, dry—to—tape times
(R. at 278),
and the lack of available coatings, have not been demonstrated
here.
The Board accordingly believes that there is insufficient
justification for exception other
than for
the locomotive line.
For all the reasons discussed above, the Board believes that
EMD has successfully demonstrated that RACT for its locomotive
operations consists of the rule as proposed herein.
RACT at Caterpillar
—
Joliet
Caterpillar also contends that 3.5 ~bs/gal coatings do not
constitute RACT for
its Joliet facility1
.
The Agency contends
that it has explored with Caterpillar
the grounds upon which the
Agency might support Caterpillar’s contention
CR. at
51; Ex.
l2d,
l2e,
121, 12j,
17),
but that
it has received only “very limited
information” from Caterpillar
(R. at 51).
On this basis the
Agency believes that Caterpillar has not made
a demonstration
sufficient to meet the test of alternative RACT
fR.
at 137, 155—
6;
Ex.
17).
The Caterpillar situation differs
in one critical regard
from that faced by END,
in that Caterpillar currently uses only
one coating which does not meet the 3.5 lb/gal limitation
(R.
at
357).
Thus, Caterpillar would seemingly need to identify only
one compliant coating
to meet the requirements of the proposed
rule.
The Agency’s principal observation
relative to Caterpillar
is
an alleged admission by Caterpillar that it has
in fact been
supplied with a 3.5 lbs/gal compliant coating that meets
12 Unless otherwise
indicated, discussion of the Caterpillar
facility refers
to the Caterpillar plant at Joliet.
78-584
a
~
Caterpillar’s specifications
(R.
at 317)
and that various other
compliant coatings are undergoing
tests
(R.
at 317).
The Agency
therefore contends that the question of whether
3.5 lbs/gal
coatings constitute RACT for Caterpillar
is moot (Agency Comment
at
6).
The Agency further contends that Caterpillar’s testimony
regarding the cost of add—on control equipment is irrelevant “in
light of the fact that Caterpiller has located
a compliant
coating, obviating the need for add—on control”
(Id. at 7).
Caterpillar, conversely,
contends that 3.5
lbs/gal coatings are
not actually available to it
(R. at 340—50), given that
it
requires
up to two years to test and to obtain approval for use
of a paint after
it has been supplied
(R.
at 313).
The Board believes that the principal shortcoming
in
Caterpillar’s argument
is that it has not countered the
observation that other HOHV manufacturers which produce products
similar
to those of Caterpillar are currently using compliant
coatings (see PES Study;
R.
at 391—3).
Therefore,
the Board does
not believe that Caterpillar
has successfully demonstrated that
compliant RACT coatings for its facility and products are other
than 3.5 lbs/gal coatings.
In the context, the Board notes that
Caterpillar
argues that it made such
a demonstration as part of
the record developed in the R80—5 proceeding.
However, such
earlier demonstration
is irrelevant
to the matter
at hand, since
it
is the current availability of 3.5 lbs/gal coatings which is
at issue.
Geographic Applicability
The Agency proposal would have
the amended VOM limitations
apply within a specified
ten counties.
These consist of one
county
(Macoupin) which
is included solely because of its
nonattainment status, and nine counties which are included
because they are nonattainment on their own account and/or are
part of major urbanized areas which are nonattainment.
The
latter
includes the six counties which comprise
the Chicago urban
area
(Cook, DuPage,
Kane,
Lake, McHenry,
and Will)
and the three
counties which comprise the Illinois portion of the
St. Louis
urban
area (Madison,
Monroe,
and St. Clair).
The Board believes that the Agency proposal represents an
appropriate scope of geographic applicability.
The Board so
concludes fully mindful o~the questions that have been raised
regarding why Will County
~,
an attainment county,
should be
included within
the scope of the proposed rule
(R.
at 294—301,
304—6,
335—7).
13 McHenry County
is a second attainment county
in which the
currently proposed rules would
apply.
There are no affected
facilities within McHenry County.
The Caterpillar
facility
is
located
in Will County.
—19—
It is required, at at minimum, that
RACT
rules
be applied
within counties which are nonattainment for ozone.
However,
there are compelling
reasons that the rules also apply
in some
counties
in addition to those which are classified as
nonattainment.
The Board believes that the most important of
these
is that emissions in certain attainment counties can
impact
on the ozone
air quality in adjacent nonattainment counties via
the phenomenon of transport.
The significance of the transport
phenomenon has been extensively developed in the instant record
(R.
at 16,
29—40,
45; Agency Comment, April
6,
1987), as well as
in prior
Board RACT proceedings.
The Board does not see that
anything new has been presented in the instant record which would
justify a change
in the Board’s prior determinations regarding
the significance of transport.
This notwithstanding, the Agency advances several additional
reasons for
including Will County within the list of counties to
which the proposed rule would apply.
These are that Will County
is a part of the Chicago urbanized area
(R.
at 13—15;
21—22;
45);
that emissions reductions from Will County have already been
included
in previous SIP analyses and are necessary to
demonstrate ozone attainment
(R.
at 16;
23—26;
45);
that controls
as proposed are necessary to maintain Will County’s attainment
status
(R. at 19);
and that exclusion of Will County would place
an even greater burden on the adjacent nonattainment counties
to
reduce VON emissions
in order
to reach attainment of the ozone
NAASQ (Agency Comment,
April
6, at 2).
ENVIRONMENTAL BENEFIT
The first—order environmental benefit which would follow
upon adoption of the proposed regulation is a reduction in
atmospheric loading
of VOM.
However,
it
is difficult to exactly
quantify the amount of
reduction which would be expected.
This
occurs for
several reasons, including uncertainty as to how many
gallons of coating will be required by a given facility
in its
future production, the degree
to which coating use will be
affected by a change in coating availability, and the possibility
that a given facility will achieve compliance by a method other
than use of low—VON coatings.
The firmest
figure within the record
is the emission
reductions expected from Caterpillar, which
to the best judgement
of the Agency would amount
to approximately
29
tons per year
(R.
at ill).
Reductions to be expected from Dresser are
significantly less certain.
The Agency estimates that for
various days
in September 1986 Dresser’s emissions exceeded that
allowable under the proposed rule at rates from 33 to
98 tons per
year
(Ex.
15, Attachment
6).
However, these emissions apparently
include some exceedances of the present rule
(R.
at 49),
50
that
their elimination could not be fully attributed
to adoption of
the proposed rule.
78-586
—20—
Promulgation of the proposed rule would also provide a
safeguard against those facilities which currently use 3.5
lbs/gal coatings from reverting to higher—VON coatings.
However,
there is nothing
in the record which allows the Board to estimate
what atmospheric loadings would thus be prevented by adoption of
the proposed rule.
ORD
ER
The Board hereby proposes the following amendments for first
notice publication.
The Clerk shall cause first notice
publication of these proposed amendments
in the Illinois
Register:
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE B:
AIR POLLUTION
CHAPTER
1:
POLLUTION CONTROL
BOARD
SUBCHAPTER
C:
EMISSION STANDARDS
AND
LIMITATIONS
FOR STATIONARY SOURCES
PART 215
ORGANIC MATERIAL EMISSION STANDARDS
AND
LIMITATIONS
SUBPART
F:
COATING OPERATIONS
Section 215.204
Eaission Limitations for Manufacturing Plants
No owner
or operator of a coating line shall cause or allow the
emission of volatile organic material to exceed the following
limitations on coating materials, excluding water, delivered to
the coating applicator:
kg/i
(lbs/gal)
k)
Heavy Off—Highway Vehicle Products
1)
In Cook,
DuPage, Kane,
Lake, Macoupin, Madison,
McHenry, Monroe, St. Clair and Will Counties
Extreme performance prime coat
0.42
(3.5)
Extreme performance top coat—air
dried
0.42
(3.5)
Final repair coat—air dried
0.42
(3.5)
2)
In the remaining counties
~+
Extreme performance prime coat
0.42
(3.5)
~-
Extreme performance top coat—air
dried
0.52
(4.3)
78-587
—21—
~+
Final
repair
coat—air
dried
0.58
(4.8)
m)
Existing Diesel—Electric Locomotive Coating Lines
in
Cook County
1)
Extreme performance prime coat
0.42
(3.5)
2)
Extreme performance top coat—air
dried
0.52
(4.3)
3)
Final repair coat—air dried
0.58
(4.8)
4)
High—temperature aluminum coatin~g
0.72
(6.0)
5)
All other coatings
0.36
(3.0)
Section 215.211
Compliance Dates and Geographic Areas
a)
Except
as otherwise stated in subsection
(b), every
major owner
or operator of an emission source subject to
Section 215.204(j),
(k), end
(1), and
(m)
shall comply
with those sections in accordance with the following
dates:
1)
For Section 215.204(j)
and (k)(2)
Extreme
performance prime coat and Final repair coat
—
air
dried,
by December 31, 1983.
2)
For Section 215.204(k)(l) and
(m),
by December 31,
1987.
~3)
For Section 2l5.204(k)(2) Extreme performance top
coat
—
air dried, in accordance with Section
215. 210.
~4)
For Section 215.204(1),
by December 31, 1985.
Section 215.212
Compliance Plan
a)
The owner or operator of an emission source subject to
Section 2l5.2ll(a)(l)
or
(23) shall submit
to the Agency
a compliance plan on or
before August 19, 1983.
b)
The owner
or operator of an emission source subject to
Section 2l5.2l1(a)(34) shall submit to the Agency a
compliance plan on or before October 31,
1985.
c)
The owner or operator of an emission source subject to
Section 2l5.2l1(a)(2)
shall submit to the Agency a
compliance plan no later than August 19,
1987.
ed)
The owner
or operator of an emission source subject to
Section 215.211(b) shall submit to the Agency a
compliance plan no later than December
31, 1986.
78-588
de)
The
owner
or
operator
of
an
emission
source
subject
to
Section 215,211(c) shall submit
a compliance plan within
90 days after
the redesignatiori, but
in no case later
than December
31,
1986.
ef)
The owner
or operator of an emission source subject to
Section 215.211(c)
shall not be required
to submit a
compliance plan if redesignation occurs after December
31, 1986.
~j)
The Plan and schedule shall meet the requirements of
35
Ill. Adm. Code 201.
IT IS SO ORDERED.
Board Members .Jacob
D. Dumelle dissented and Bill Forcade
concurred.
I,
Dorothy
N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the ab ye Opinion and Order was
adopted on the
,~c~dayof
______________,
1987,
by a vote
of
.5—f
Dorothy
N.
G
nn,
Cle~k
Illinois Pollution Control Board
75.559
