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ILLINOIS POLLUTION CONTROL BOARD

March 3, 2005

Proposed Rule. Proposal for Public Comment.

OPINION AND ORDER OF THE BOARD (by A.S. Moore):

This rulemaking is designed to update the definition of volatile organic material(VOM) in the Board’s air pollution regulations (35 Ill. Adm. Code 211.7150). The update is needed to ensure that Illinois’ regulations reflect the United States Environmental Protection Agency’s (USEPA) most recent exemption of chemical compounds from regulation as ozone precursors. Today the Board adopts a proposal for public comment.

Section 9.1(e) of the Environmental Protection Act (Act) (415 ILCS 5/9.1(e) (2002)) mandates this rulemaking. That statutory provision requires the Board to exclude from the definition of VOM those compounds determined by USEPA to be exempt from regulation under the state implementation plans for ozone “due to negligible photochemical reactivity.” 415 ILCS 5/9.1(e) (2002). In addition, Section 9.1(e) of the Act requires the Board to conduct this rulemaking pursuant to the provisions of Section 7.2(b) of the Act (415 ILCS 5/7.2(b) (2002)) for adopting rules that are “identical in substance” to the federal requirements.

Section 9.1(e) also provides that Title VII of the Act and Section 5-35 of the Administrative Procedure Act (APA) (5 ILCS 100/5-35 (2002)) do not apply to this type of rulemaking. Accordingly, the Board will not adopt a “First Notice” proposal, or a “Second Notice” proposal for review by the Joint Committee on Administrative Rules. However, as provided in Section 9.1(e) of the Act, the Board, before adopting final rule amendments, will provide notice of this rulemaking proposal in the Illinois Register, hold one public hearing on the proposal as required by the federal Clean Air Act (33 U.S.C. § 7410(a) (2003)), and allow for public comment.

In this opinion, the Board first sets forth the timetable for completing this rulemaking, followed by a description of the USEPA actions necessitating these rule amendments. The Board then provides information on the hearing and public comment period for this proceeding. Next, the Board discusses miscellaneous “housekeeping” amendments also being proposed in this rulemaking. Finally, the Board summarizes the history of federal and Illinois actions dealing with VOM exemptions. The Board’s proposed rule amendments are set forth in the order following this opinion.

TIMETABLE FOR COMPLETING THIS RULEMAKING

Under Section 7.2(b) of the Act (415 ILCS 5/7.2(b) (2002)), the Board must complete this rulemaking within one year after the date of the earliest set of federal amendments considered in this docket. USEPA adopted such amendments on November 29, 2004. Therefore, the deadline for the Board to adopt these amendments is November 29, 2005.

The Board scheduled the adoption of this “proposal for public comment” for the March 3, 2005 Board meeting, which is well ahead of the date projected as necessary to timely complete this rulemaking. This will allow the Board to adopt final rules approximately six months before the one-year deadline. This scheduling will give the regulated community the earliest opportunity to use the newly-exempt compounds, and allow the State to take advantage as soon as possible of the emissions inventory and improved air quality benefits that may accrue through the new exemptions.

The Board projects the following timetable in completing this rulemaking:

DESCRIPTION OF USEPA ACTIONS AND RESPONSIVE BOARD AMENDMENTS

The amendments proposed today respond to two USEPA amendments to the federal definition of “volatile organic compound” (VOC), which is the same as VOM as used in the Illinois regulations. First, on November 29, 2004, USEPA added four compounds to the list of chemical species that are exempt from the federal definition of VOC and, accordingly, are exempt from regulation for control of ozone precursors. Second, also on November 29, 2004, USEPA excluded an additional compound from the VOC definition, for purposes of emissions limitations and VOC content requirements, but retained the compound as VOC for purposes of recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements.

The Federal Register citations for these USEPA revisions, as well as brief listings of the newly-exempt compounds, follow:

69 Fed. Reg. 69290 (Nov. 29, 2004)

USEPA added four compounds to the list of those excluded from the definition of VOC: 1,1,1,2,2,3,3-heptafluoro-3-methoxypropane (empirical formula: n-C₃F₇COCH₃, also called HFE-7000), 3-ethoxy1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl)hexane (also called HFE-7500, HFE-s702, T-7145, and L-15381), 1,1,1,2,3,3,3-heptafluoropropane (also called HFC-227ea), and methyl formate (empirical formula: HCOOCH₃).

69 Fed. Reg. 69298 (Nov. 29, 2004)

USEPA added one compound to the list of those excluded from the definition of VOC for purposes of emissions control and VOC content requirements: tert-butyl acetate (t-BAc). USEPA will continue to consider t-BAc to be VOC for purposes of recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements. t-BAc is used as a gasoline additive and solvent.

The Board today proposes to incorporate these federal amendments into the Illinois regulatory definition of VOM at 35 Ill. Adm. Code 211.7150, with only minor differences from the federal rule text. For example, the Board has capitalized each chemical name in the list of exempt compounds. The table below provides the Board’s proposed deviations from the federal text.

Deviations from the Text of the Federal Amendments

PUBLIC COMMENTS AND PUBLIC HEARING

The Board invites public comment on the proposed amendments. The Board will receive public comments until at least 45 days after a notice of these proposed amendments appears in the Illinois Register. Anyone may file a public comment with the Board at:

Office of the Clerk

Pollution Control Board

James R. Thompson Center

100 W. Randolph Street, Suite 11-500

Chicago, Illinois 60601

This rulemaking’s docket number (R05-16) should be indicated on the public comment.

Additionally, as part of the Board’s voluntary electronic filing pilot project, public comments in this rulemaking may be filed through the Board’s Web-based Clerk’s Office On-Line (COOL) at www.ipcb.state.il.us . Questions about electronic filing through COOL should be directed to the Clerk’s Office at (312) 814-3629.

Please note that all filings with the Clerk of the Board must be served on the hearing officer and on those persons on the Service List for this rulemaking. The service list is available on COOL, but before filing any document with the Clerk, please check with Sandy Wiley at (312) 814-3623 or wileys@ipcb.state.il.us, the hearing officer, or the Clerk’s Office to confirm that you are using the most recent version of the Service List. The hearing officer assigned to this rulemaking is Richard McGill (312-814-6983, mcgillr@ipcb.state.il.us).

As required by the federal Clean Air Act (33 U.S.C. § 7410(a) (2003)), the Board has also scheduled a public hearing in this rulemaking. Hearing information follows:

10:00 a.m., Tuesday, April 12, 2005

James R. Thompson Center

Illinois Pollution Control Board Hearing Room 11-512

100 W. Randolph Street

Chicago

After the hearing and public comment period, the Board will promptly issue an opinion and order adopting final rule amendments.

MISCELLANEOUS HOUSEKEEPING AMENDMENTS

In addition to the proposed amendments related to USEPA’s actions, numerous “housekeeping” amendments are being proposed today. These proposed changes are not based on the federal amendments discussed above. Rather, these are corrections and clarifications needed in the Board’s existing rule text involved in this proposal. For example, the Board has alphabetized the listing of exempt compounds in Section 211.7150(a). The table below lists the Board’s proposed “housekeeping” amendments.

Housekeeping Amendments

HISTORICAL SUMMARY OF THE FEDERAL RECOMMENDED POLICY ON THE CONTROL OF VOLATILE ORGANIC COMPOUNDS AND ITS IMPLEMENTATION IN ILLINOIS

Beginning in 1977, USEPA’s Recommended Policy on the Control of Volatile Organic Compounds (Recommended Policy) exempt certain chemical compounds from the definition of VOC or VOM. ¹ These compounds were exempt due to their negligible photochemical reactivity (i.e., their reduced capacity for partaking in the complex atmospheric chemical reactions that result in the formation in tropospheric ozone). Ultimately, in 1991, USEPA codified its Recommended Policy in the Code of Federal Regulations at 40 C.F.R. 51.100(s) in its definition of VOC.

Specifically, on July 8, 1977, USEPA established its Recommended Policy in the Federal Register at 42 Fed. Reg. 35314. At that time, USEPA stated that the following compounds should be exempt from regulation due to their negligible photochemical reactivity:

methane;

ethane;

methylene chloride (dichloromethane) ² ;

1,1,1-trichloroethane (methyl chloroform); and

trichlorotrifluoroethane (CFC-113 or Freon 113).

USEPA clarified its policy on June 4, 1979, at 44 Fed. Reg. 32043, and May 16, 1980, at 45 Fed. Reg. 32424.

USEPA later amended its Recommended Policy by adding exempt compounds. On July 22, 1980, at 45 Fed. Reg. 48941, USEPA added five chlorofluorocarbons (CFCs) and one fluorocarbon (FC) ³ :

trichlorofluoromethane (CFC-11);

dichlorodifluoromethane (CFC-12);

chlorodifluoromethane (CFC-22);

trifluoromethane (FC-23);

dichlorotetrafluoroethane (CFC-114); and

chloropentafluoroethane (CFC-115).

On January 18, 1989, at 54 Fed. Reg. 1987, USEPA added four hydrohalocarbon compounds (HFCs and HCFCs) to the list of those exempt:

dichlorotrifluoroethane (HCFC-123);

tetrafluoroethane (HFC-134a);

dichlorofluoroethane (HCFC-141b); and

chlorodifluoroethane (HCFC-142b).

Finally, on March 18, 1991, at 52 Fed. Reg. 11418, USEPA revisited certain compounds earlier denied exemption and revised the Recommended Policy for the last time, to exclude five additional hydrohalocarbon compounds and four classes of fluorocarbon compounds. The five hydrohalocarbon compounds were:

2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124);

pentafluoroethane (HFC-125);

1,1,2,2-tetrafluoroethane (HFC-134);

1,1,1-trifluoroethane (HFC-143a); and

1,1-difluoroethane (HFC-152a).

The four classes of fluorocarbon compounds were:

cyclic, branched, or linear, completely-fluorinated tertiary amines with no unsaturations; and

sulfur-containing perfluorocarbons with no unsaturations and with sulfur bonds only to carbon and fluorine.

On March 18, 1991, at 56 Fed. Reg. 11387, USEPA proposed codifying the Recommended Policy in its definition of VOC at 40 C.F.R. 51.100(s). This proposed action was undertaken in conjunction with the last amendments to the Recommended Policy discussed above. USEPA adopted the amended definition of VOC on February 3, 1992, at 57 Fed. Reg. 3945. This USEPA codification included all the compounds and classes of compounds previously included as exempt in the Recommended Policy. It also included test methods for determining compliance with the VOC emissions limits, and a provision addressing situations where the test method also measured exempt compounds.

USEPA subsequently amended the 40 C.F.R. 51.100(s) definition of VOM on a number of occasions. Those are summarized as follows:

THE ILLINOIS DEFINITION OF VOM

ORDER

The Board directs the Clerk to provide notice in the Illinois Register of the following proposed amendments to the definition of VOM at 35 Ill. Adm. Code 211.7150:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE B: AIR POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER c: EMISSION STANDARDS AND LIMITATIONS FOR STATIONARY SOURCES

PART 211

DEFINITIONS AND GENERAL PROVISIONS

SUBPART A: GENERAL PROVISIONS

Section

SUBPART B: DEFINITIONS

Section

Appendix A  Rule into Section Table

Appendix B  Section into Rule Table

AUTHORITY: Implementing Sections 9, 9.1, 9.9 and 10 and authorized by Sections 27 and 28.5 of the Environmental Protection Act [415 ILCS 5/9, 9.1, 9.9, 10, 27 and 28.5].

SOURCE: Adopted as Chapter 2: Air Pollution, Rule 201: Definitions, R71-23, 4 PCB 191, filed and effective April 14, 1972; amended in R74-2 and R75-5, 32 PCB 295, at 3 Ill. Reg. 5, p. 777, effective February 3, 1979; amended in R78-3 and 4, 35 PCB 75 and 243, at 3 Ill. Reg. 30, p. 124, effective July 28, 1979; amended in R80-5, at 7 Ill. Reg. 1244, effective January 21, 1983; codified at 7 Ill. Reg. 13590; amended in R82-1 (Docket A) at 10 Ill. Reg. 12624, effective July 7, 1986; amended in R85-21(A) at 11 Ill. Reg. 11747, effective June 29, 1987; amended in R86-34 at 11 Ill. Reg. 12267, effective July 10, 1987; amended in R86-39 at 11 Ill. Reg. 20804, effective December 14, 1987; amended in R82-14 and R86-37 at 12 Ill. Reg. 787, effective December 24, 1987; amended in R86-18 at 12 Ill. Reg. 7284, effective April 8, 1988; amended in R86-10 at 12 Ill. Reg. 7621, effective April 11, 1988; amended in R88-23 at 13 Ill. Reg. 10862, effective June 27, 1989; amended in R89-8 at 13 Ill. Reg. 17457, effective January 1, 1990; amended in R89-16(A) at 14 Ill. Reg. 9141, effective May 23, 1990; amended in R88-30(B) at 15 Ill. Reg. 5223, effective March 28, 1991; amended in R88-14 at 15 Ill. Reg. 7901, effective May 14, 1991; amended in R91-10 at 15 Ill. Reg. 15564, effective October 11, 1991; amended in R91-6 at 15 Ill. Reg. 15673, effective October 14, 1991; amended in R91-22 at 16 Ill. Reg. 7656, effective May 1, 1992; amended in R91-24 at 16 Ill. Reg. 13526, effective August 24, 1992; amended in R93-9 at 17 Ill. Reg. 16504, effective September 27, 1993; amended in R93-11 at 17 Ill. Reg. 21471, effective December 7, 1993; amended in R93-14 at 18 Ill. Reg. 1253, effective January 18, 1994; amended in R94-12 at 18 Ill. Reg. 14962, effective September 21, 1994; amended in R94-14 at 18 Ill. Reg. 15744, effective October 17, 1994; amended in R94-15 at 18 Ill. Reg. 16379, effective October 25, 1994; amended in R94-16 at 18 Ill. Reg. 16929, effective November 15, 1994; amended in R94-21, R94-31 and R94-32 at 19 Ill. Reg. 6823, effective May 9, 1995; amended in R94-33 at 19 Ill. Reg. 7344, effective May 22, 1995; amended in R95-2 at 19 Ill. Reg. 11066, effective July 12, 1995; amended in R95-16 at 19 Ill. Reg. 15176, effective October 19, 1995; amended in R96-5 at 20 Ill. Reg. 7590, effective May 22, 1996; amended in R96-16 at 21 Ill. Reg. 2641, effective February 7, 1997; amended in R97-17 at 21 Ill. Reg. 6489, effective May 16, 1997; amended in R97-24 at 21 Ill. Reg. 7695, effective June 9, 1997; amended in R96-17 at 21 Ill. Reg. 7856, effective June 17, 1997; amended in R97-31 at 22 Ill. Reg. 3497, effective February 2, 1998; amended in R98-17 at 22 Ill. Reg.11405, effective June 22, 1998; amended in R01-9 at 25 Ill. Reg. 128, effective December 26, 2000; amended in R01-11 at 25 Ill. Reg. 4597, effective March 15, 2001; amended in R01-17 at 25 Ill. Reg.

5900, effective April 17, 2001; amended in R05-16 at 29 Ill. Reg. ________, effective ______________________.

BOARD NOTE: This Part implements the Illinois Environmental Protection Act as of July 1, 1994.

SUBPART B: DEFINITIONS

“Volatile organic material (VOM)” or “volatile organic compound (VOC)” means any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which that participates in atmospheric photochemical reactions.

1.  Cyclic, branched, or linear, completely fluorinated alkanes;