ILLINOIS POLLUTION CONTROL BOARD
March
5,
1981
IN THE MATTER OF:
AMENDMENT TO CHAPTER
2, AIR POLLU-
)
R79-3
TION CONTROL RULES AND REGULATIONS
)
(PROPOSED RULE
203(j)).
)
OPINION AND ORDER OF THE BOARD
(by I. Goodman):
On January
29,
1979 the Illinois Environmental Protection
Agency filed a proposal to amend Rules
101,
103, and 105 of
Chapter
2, the Board’s Air Pollution Control Rules and Regulations,
regarding permits, maintenance programs, replacement of control
equipment,
and related changes
in definitions.
The proposal was
consolidated for purposes of hearing with two proceedings, R78-10
(fugitive particulate emission limitations) and R78—11
(particulate
emissions
from steel mills).
Three merit hearings, and three later economic impact hearings,
were held as follows:
March
13,
1979
Chicago
March 14,
1979
Springfield
March
23,
1979
Chicago
August
6,
1979
Chicago
August
7,
1979
Springfield
August 21, 1979
Chicago
On January
6,
1981 the hearing officer granted the Agency’s
November 21,
1980 motion to withdraw the permit- and maintenance-
related amendments, but to retain the replacement—related amend-
ment (Rule 105(a)(3), reproposed as Rule 203(j)).
The record
closed on February 13,
1981.
No post—hearing public comment has
been received relating to this proceeding.
The Agency proposes that, in certain townships containing
total
suspended particulate
(TSP) primary national ambient air
quality standard
(NAAQS) nonattainment areas,
“no person shall
replace the air pollution control equipment on any source or
particulate matter with a less effective kind of control equip-
ment.”
Several townships within eleven counties are specifically
listed.
In the original proposal, the Agency sought to “cap” all
emission rates after July
1,
1979 at the actual hourly maximum
rates emitted from the source or the control equipment in the year
1977,
although a year after
1975 could be used upon a showing that
4
1—67
1977 was an atypical year.
All future operating petmits
wouli
contain the emission limitations so referenced.
The Agency stated in its January 25,
1979 letter filing the
proposal that
“uriless
existing sources
in
areas
with high
concentrations of sources
which have found
it possible to keep
their emission rates at current overcompliance levels
are
requirel
to continue to do so,
additional, more stringent requirements
will
have to be imposed upon them,
as well
as upon new sources seekin~j
to locate in those areas.”
“This need to ‘codify overcompliance’
has arisen because the Agency’s air quality modeling has been done
on the basis of projected actual emission rates rather than max-
imum allowable emission rates.
Theoretically,
thisi
could perr~it
an air quality standard violation if a source
should, upon occasion,
emit more than projected actual but less than the maximum allow-
able.”
This same statement, although made with reference to the
maintenance—related regulatory proposal, applies equally to the
“capping” of control equipment in proposed Rule 203(j)
as a stat;~-
ment of the reason for the Agency’s proposal.
TECHNOLOGICAL FEASIBILITY
Most of the testimony upon the merits of the proposed rule
concerned whether it would prohibit sources from replacing equip-
ment if emissions were increased not because of the efficiency of
the equipment, but because of changes in production volume, pro-
duction processes,
or hours of operation (R.133—7,
423,
624—7).
Other industry concerns were that it was unnecessary for an apprD\’-
able State Implementation Plan
(SIP),
see
42 U.S.C.
§7401
(R.651,
70_1(E)*); that it should not be applied in TSP attainment areas
(R.644—5);
that is interfered with business management and decisiou-
making
(R.643—4,
732—4,
28—9(E),
34—5(E));
that it penalized sources
who are
in compliance with TSP emission limitations
(R.784,
18(E),
35—8(E)); and that
it may make offsets unavailable for the location
of new or modified sources and may withdraw credits from the off-
setting sources (R.68—9,
225—7,
61—2(E)),
Similarly, written
comments received from various industries objected that the pro-
posed rule would deter future overcompliance, that no improvement
in air quality would result,
that it
is redundant of existing
Agency permitting authority,
and that it is inconsistent with
USEPA’s promotion of the use of bubbles in quantifying emission
limitations.
The Agency’s closing statement
(R.159—0) makes
it clear
that
the rule
is intended to keep emission levels below those which
;irc
allowed by regulations
in those instances in which sources
prcsent1.~.’
located
in nonattainment areas are
“overcomplying”.
The Agency
offered no testimony material to industry’s concerns.
Indeed,
the author of the Institute of Natural Resource’s economic iIipi~ct
study stated that he could not obtain an Agency response as to
whether the rule would apply
if production was increased,
or if
other changes independent of equipment replacement increased
emis-
sions, even if the increased emissions did not exceed the allowa’le
limitation.
There was disagreement within the Agency on this
oi~t
(R.55—7,
68—9(E)).
*“E” designates the economic hearing transcript.
4
1—68
The Board finds
from a reading of the record that the Agency
did not show that the rule was
feasible technologically.
The
scope of the term in the proposed rule,
“less effective,”
as
applied to the substituted equipment, was inadequately defined.
It was not intended to refer to the efficiency of the equipment
(R.55,
119—20, 398—410,
615—8),
although that was industry’s under-
standing
(R.703—1,
732—4).
If
it is not to refer to efficiency,
the Board
is constrained to ascertain what the term is
to indicate.
Although the Board could adopt
a rule specifying “efficiency”
instead of “effectiveness”,
and could even prohibit replacements
of any kind where emission levels would increase yet not exceed
allowable levels,
the
Board concludes that
such
rule would he
inequitable from a number of viewpoints.
First,
the rule could inhibit the testing
of newly marketel
or innovative control equipment which involves replacement of
existing equipment.
Secondly,
the rule would unfairly penalize
those sources which are in compliance with
the
applicable TSP
emission
limitation.
It would be unreasonable for the State to
usurp
the business decisions of sources which have adopted control
strategies
in reliance on the Board’s regulations and consequently
are operating well within the law;
for the
State to so actively
impinge on business management would he an unwarranted invasion of
the rights of corporate citizens.
Thirdly,
the rule would limit
modifications of major complying sources located
in nonattainment
areas by eradicating credits presently available due to their
aye;:-
compliance; which,
under Rule 10.3 of the Agency’s Rules
for
Issuance of Permits to New or Modified Air Pollution Sources
Affecting Nonattainment Areas
(Rules)
(~9.1(e) of the Act;
see
45
Fed.Reg.
58896),
are
property rights; similarly,
it would prohibit
fTIë T5~ationof new industry
in nonattainment areas.
Such
mattecs
are more properly addressed by
an
Agency proposal pursuant to
§9.1(d)
of the Illinois Environmental Protection Act, as amended
September
4,
1980.
Finally,
the rule apparently was proposed to facilitate
the
Agency’s air quality demonstrations submitted with the 1979 TSP :$I~
revision
(R.45—7,
108—11,
419—20,
427—8).
However, the USEPA
has
stated that the rule was not necessary to approval of
the
1979 T’~P
SIP.
45 Fed.~a. 11480; see 45 Fed.~. 58896.
Even
if
the ruln
were to facilitate air quality demonstrations for future
TSP SI~’’;
the adverse effects of the rule upon those sources
it would
3pply
to——those in overcompliance——are more compelling.
The Agency
itself recognizes this question of equity
(R.420-1).
Furthermore,
the Agency’s Rules do not necessarily prohibit a definition of
allowable rates which encompasses
that level actually emitted, as
it provides for maximum operation and includes estimates of emis-
sions during malfunctions,
etc.
In cases where replacement of
equipment constitutes a “modification” of the source
for purposes
of these Agency Rules,
proposed Rule
203(j)
is duplicative of
the
Agency’s authority.
In the remainder of the cases,
~
nonmajor
sources in nonattainment areas,
the ~:ictthat unacceptable TSP
ai.r
quality
is due in an unquantifiable measure to dust from farm
lend,
roads, and other nonstationary, nontraditional sources
(R.47-2,
10~8, 236,
257—2,
273—8,
282—5) militates against the Board’s
adoption of the rule.
41—69
ECONOMIC REASONABLENESS
Even assuming that technological feasibility could be shown,
there is no reliable evidence
in the record of
the
costs to indu~tr;,
Illinois government or Illinois citizens of the proposed rule.
The
author of the impact study,
although explaining that dollar
figures
were difficult to calculate,
stated that his results were not reli-
able because the sample of twelve sources was statisticall.y insiq-
nificant
(R.13—9,
89—91).
The Agency offered no evidence of its
own of the economic impact of the rule.
The
Board finds that the
record is insufficient for purposes of
a finding as
to economic
reasonableness.
This Opinion constitutes the findings of fact and conclus~ns
of law of the Board in this matter.
ORDER
It
is the Order of the Illinois Pollution Control Board that
proceeding R79—3 be and hereby is dismissed.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board,
hereby certify that the above Opinion and Order
w~readopted on the
~
day of
~
,
1981 by a vote of
Illinois Poll
Boarci
4 1—70