ILLINOIS POLLUTION CONTROL BOARD
SUMMARY OF PROPOSAL
1. DISCUSSION AND CONCLUSIONS

ILLINOIS POLLUTION CONTROL BOARD

August 6, 2009

IN THE MATTER OF:

REASONABLY AVAILABLE CONTROL

TECHNOLOGY (RACT) FOR VOLATLE

ORGANIC MATERIAL EMISSIONS FROM

GROUP II CONSUMER & COMMERCIAL

PRODUCTS: PROPOSED AMENDMENTS

TO 35 ILL. ADM. CODE 211, 218, and 219

)

R10-08

(Rulemaking - Air)

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

On July 9, 2009, the Illinois Environmental Protection Agency (Agency or Illinois EPA)

filed a proposal under the general rulemaking provisions of Sections 27, 28, and 28.2 of the

Environmental Protection Act (Act).

See

415 ILCS 5/27, 28, 28.2 (2008). Generally, the

Agency proposes to adopt air pollution regulations to control emissions of volatile organic

material (VOM)

for Group II Consumer & Commercial Products in ozone nonattainment areas

classified as moderate and above. Group II products include industrial cleaning solvents, flat

wood paneling coatings, flexible packaging printing materials, lithographic printing materials,

and letterpress printing materials. Accompanying the Agency’s proposal were a motion for

waiver of copy requirements (Mot. Waive) and a motion for expedited review (Mot. Expedite).

The Board today accepts the Agency’s proposal for hearing and grants the Agency’s

request for waiver of copy requirements but denies the Agency’s motion for expedited review.

The Board also directs the hearing officer to expeditiously schedule and proceed to hearing in

this matter.

SUMMARY OF PROPOSAL

The Agency characterizes VOM as “a primary precursor to the formation of ground-level

ozone.” Statement at 2-3. In 1997, USEPA revised the National Ambient Air Quality Standard

(NAAQS) for ozone by instituting an 8-hour standard.

. at 3, citing 62 Fed. Reg. 38856 (July

18, 1997). Two Illinois areas, Chicago and St. Louis/Metro East, have been designated as

moderate nonattainment areas for the 8-hour ozone standard.

Statement at 3.

The Agency states that VOM and volatile organic compounds (VOC) are “effectively the

in1. cludes the following jurisdictions: Cook, DuPage, Kane,

Lake, McHenry, and Will Counties, Goose Lake and Aux Sable Townships in Grundy County,

and Oswego Township in Kendall County. Statement at 3, citing 40 C.F.R. 81.314. The St.

Louis/Metro East nonattainment includes the following Illinois counties: Jersey, Madison,

Monroe, and St. Clair. Statement at 3, citing 40 C.F.R. 81.314.

The Agency states that its proposal intends to satisfy Illinois’ obligation under the Clean

Air Act (CAA) to submit a State Implementation Plan addressing VOM emissions in areas

designated as nonattainment for the NAAQS for ozone. Statement at 1, 6, citing 42 U.S.C. §§

7502, 7511a. Specifically, the Agency states that Illinois must revise its SIP to include

reasonably available control technology (RACT) for sources of VOM emissions covered by a

USEPA control technology guideline (CTG). Statement at 2, citing 42 U.S.C. § 7511a(b)(2).

The Agency reports that, on October 5, 2006, USEPA issued final CTGs for Group II Consumer

and Commercial Products. Statement at 4. USEPA required submission of SIP revisions

responding to the CTGs within one year.

. at 4, 5, citing 71 Fed. Reg. 58745-53.

In addition, the Agency states that “Illinois is required to submit these SIP revisions

before the USEPA can redesignate the Chicago and Metro East nonattainment area as attaining

the 1997 ozone NAAQS, regardless of whether the VOC reductions obtained by the SIP

revisions are actually necessary to achieve attainment of the NAAQS.” Statement at 6. The

Agency notes that, on July, 2, 2007, it “submitted to the USEPA an attainment demonstration for

the Metro East nonattainment area for the 1997 8-hour ozone NAAQS.”

. at 7. The Agency

further notes that, on March 19, 2009, it submitted an attainment demonstration for the Chicago

nonattainment area.

. The Agency argues that “[t]hese areas cannot be redesignated to

attainment of the ozone NAAQS, however, unless and until the Illinois EPA submits SIP

revisions in response to the Group II CTGs and the USEPA approves such revisions.”

. The

Agency claims that its proposal seeks “to implement the recommendations contained in the

CTGs to the extent that such recommendations are consistent with, and impose stricter

requirements than, existing regulations.”

The Agency also notes that USEPA recently strengthened the ozone standard. Statement

at 7, citing 73 Fed. Reg. 16436 (Mar. 27, 2008). The Agency considers it “likely” that areas

designated as nonattainment for the current standards will be designated nonattainment for the

revised standards as well, with the exception of Jersey County. Statement at 7; Mot. Expedite at

3. The Agency argues that “[w]hile attainment of the revised standard is not the purpose of this

rulemaking, it should be noted that any reduction in VOM emissions in the nonattainment areas

resulting from these proposed amendments will likely help Illinois achieve the revised NAAQS.”

MOTION FOR WAIVER OF REQUIREMENTS

The Agency notes that the Board’s procedural rules require filing the original and nine

copies of its regulatory proposal with the Board’s Clerk. Mot. Waive at 1, citing 35 Ill. Adm.

Code 102.200. The Agency further notes that that Act requires it also to file information

supporting its proposal. Mot. Waive at 1, citing 415 ILCS 5/27(a) (2008). The Agency states

that it has supplied with Board with seven documents on which it directly relied in drafting the

proposed regulations. Mot. Waive at 1-2. Because its entire proposal consists of more than 700

pages, the Agency “requests that the Board waive the normal copy requirements and allow

Illinois EPA to file the original and four copies” of its proposal and the documents relied upon in

the development of the proposal.

. at 2.

MOTION FOR EXPEDITED REVIEW

The Agency states that it has submitted demonstrations that the Chicago and St.

Louis/Metro East nonattainment areas now attain the 1997 8-hour ozone standard. Mot.

Expedite at 2. The Agency argues that USEPA cannot redesignate those areas as attaining that

standard “unless and until the Illinois EPA submits SIP revisions in response to Group II CTGs

and the USEPA approves such revisions.”

Also as noted above, USEPA has strengthened the 8-hour ozone NAAQS. Mot. Expedite

at 3, citing 73 Fed. Reg. 16436 (Mar. 27, 2008). The Agency states that, in March of 2009, it

“recommended to the USEPA that the same areas in Illinois that are currently designated as

nonattainment for the 1997 standard be designated as nonattainment for the revised standards as

well, with the exception of Jersey County.” Mot. Expedite at 3. The Agency further states that

USEPA is expected make nonattainment designations by March of 2010, at which time “USEPA

will issue guidance for states transitioning from the 1997 standard to the revised standard.”

The Agency argues that, if either of the two of the two nonattainment areas violate the

1997 ozone standard before it is formally redesignated as attaining that standard, then “it is

possible that such area would be ‘bumped up’ from its current ‘moderate’ nonattainment

classification to a ‘serious’ or higher classification.” Mot. Expedite at 3, citing 42 U.S.C. §

7511a(c). The Agency states that “[a]reas designated as ‘serious’ are subject to more stringent

requirements, including a lower major source threshold, enhanced monitoring requirements, and

a stricter emission offset ratio.” Mot. Expedite at 3, citing 42 U.S.C. § 7511a. The Agency

further states that a violation of the 1997 standard occurring after redesignation would not result

in reclassification. Mot. Expedite at 3. Instead, “[t]he area in which the violation occurred

would merely be required to implement targeted control measures pursuant to contingency

provisions contained in the area’s maintenance plan.”

., citing 42 U.S.C. § 7505a. The

Agency claims that “[r]edesignation is therefore necessary to foreclose the risk that a future

violation of the 1997 standard will implicate reclassification and, in turn, heightened control

measures.” Mot. Expedite at 4.

The Agency further argues that transition from the 1997 ozone standard to the revised

standard “will most likely impose additional obligations upon areas that are still designated as

nonattainment for the 1997 standard at the time final designations for the revised standard are

made.” Mot. Expedite at 4, citing 40 C.F.R. 51.905(a)(1). The Agency claims that, although the

USEPA’s transition policy and the risk of complications such as legal challenges resulting from

that policy are uncertain, an expeditious redesignation would relieve Illinois of having to comply

with such a policy and contend with its consequences.

See

Mot. Expedite at 4-5. Consequently,

the Agency requests that the Board grant its motion for expedited review.

. at 5.

DISCUSSION AND CONCLUSIONS

First, the Board finds that the rulemaking proposal meets the content requirements of 35

Ill. Adm. Code 102. The Board accepts this proposal for hearing and directs the assigned

hearing officer to proceed to hearing under the rulemaking provisions of the Act and the Board’s

procedural rules. 415 ILCS 5/27, 28, 28.2 (2008); 35 Ill. Adm. Code 102.

Next, the Board grants the Agency’s motion for waiver of requirements and allows the

Agency to file an original and four complete copies of its proposal and the documents upon

which it directly relied in drafting the proposal.

Finally, turning to the Agency’s motion for expedited review, the Board notes that

Section 101.512 of its procedural rules addresses requests of this nature.

See

35 Ill. Adm. Code

101.512. Such requests must include, among other elements, “a complete statement of the facts

and reasons for the request.” 35 Ill. Adm. Code 101.512(a). In acting on a motion for expedited

review, the Board considers, at a minimum, “all statutory requirements and whether or not

material prejudice will result from the motion being granted or denied.” 35 Ill. Adm. Code

101.512(b). In addition, the Board will only grant a motion for expedited review consistent with

available resources.

See

35 Ill. Adm. Code 101.512(c).

As a matter of its various resources and decision deadlines, the Board cannot expedite

consideration of every case or rulemaking proposal. In denying a recent motion for expedited

review filed by the City of Galva, the Board stated that its “limited resources in light of its

current and future decision deadlines render the granting of a motion for expedited review

unlikely in all but the most dire circumstances.” In the Matter of: City of Galva Site-Specific

Water Quality Standard for Boron Discharges to Edwards River and Mud Creek: 35 Ill. Adm.

Code 303.447 and 303.448, R9-11, slip op. at 3 (Feb. 5, 2009) (denying motion for expedited

review);

see also

In the Matter of: Ameren Ash Pond Closure Rules (Hutsonville Power

Station): Proposed 35 Ill. Adm. Code Part 840.101 through 840.144, R09-21, slip op. at 9-10

(June 18, 2009) (same); In the Matter of: Petition of Westwood Lands, Inc. for an Adjusted

Standard from Portion of 35 Ill. Adm. Code 807.104 and 810.103 or, in the Alternative, a

Finding of Inapplicability, AS 09-3, slip op. at 10 (May 21, 2009) (same).

As noted above, expedited review is granted consistent with the Board’s decision

deadlines and available resources.

See

35 Ill. Adm. Code 101.512(c). The Board currently has a

number rulemaking dockets requiring immediate attention, as well as pressing cases of other

types. As a result of attrition, the Board has fewer staff than it has had in many years. These

circumstances have not meaningfully changed since the Board denied the City of Galva’s motion

for expedited review. These limited resources, particularly in light of current and future decision

deadlines, continue to make it unlikely that the Board will grant a motion for expedited review in

all but the most dire circumstances.

The Board did recently grant two Agency motions to expedite consideration of proposed

rules in which the Agency described the risk of USEPA sanctions in the event that the State

failed to remedy deficiencies in the SIP for ozone attainment. In each of these two rulemaking

proceedings, the Board found that the USEPA implementation deadline of September 24, 2009,

and the risk of federal sanctions, including those related to new source offsets and highway

funding, constituted “dire circumstances.” Section 27 Proposed Rules for Nitrogen Oxide (NO

)

Emissions From Stationary Reciprocating Internal Combustion Engines and Turbines:

Amendments to 35 Ill. Adm. Code Parts 211 and 217, R07-19, slip op. at 4 (Apr. 2, 2009); In the

Matter of: Nitrogen Oxides Emissions from Various Source Categories, Amendments to 35 Ill.

Adm. Code Parts 211 and 217, R08-19, slip op. at 4 (Apr. 2, 2009).

The Board does not discount the Agency’s arguments regarding redesignation of the

nonattainment areas. However, these arguments do not necessarily constitute “material

prejudice” sufficient to allow the Board to grant the Agency’s motion. Accordingly, the motion

to expedite is denied. However, the Board commits to reaching a prompt decision in this matter

as soon as the record is complete and directs its hearing officer to take any necessary steps to

avoid delay in scheduling the required hearings and completing the record.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above opinion and order on August 6, 2009, by a vote of 5-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board