THE MATTER OF:

RULE AMENDING THE

II GASOLINE VAPOR RECOVERY

IN THE METRO-EAST AREA.

ILL ADM. CODE 219.586(d)

R93"12

(Aulemaking)

NOTICE

Dorothy Gunn, Clerk

liiinoi5 Pollution Control Board

Sl'ate M

Illinois

C~!nter

W. Rand<.JJ;::,. ••

Sl ::tr;

11-500

Chicago. Illinois 60601

Bill Derham

Research & Planning

Energy & Natural Resources

325 W. Adams

Springfield, IL

62704

Matthew

Dunn.

Chifl~

Environmental

C0Y\~(I~

f)ivision

Office of the

Attor;-)~y

General

100

Randolph

St.,

12th Floor

Chicago, IL 60601

PLEASE T A'<.E NOTICE that I have today filed with the Office of the Clerk of the

Control Board the Response tO,Board Order of May 5. 1993 of the Illinois

Protb0tion

Agency. a copy of which is herewith served upon you.

PROTECTION AGENCY

THE STATE OF ILLINOIS

Rach'al

t4-/Jd,~

t.:

Doctors

Assistant Counsel

Division of Legal COllnsel

May 14. 1993

Box

192/6

Illinois

62794-9276

THIS FlUNG IS SUBMITTED

ON RECYCLED PAPER

IN THE MATTER OF:

EMERGENCY RULE AMENDING THE

STAGE II GASOLINE VAPOR RECOVERY

RULE IN THE METRO-EAST AREA,

R93-12

(Rulemaking)

35 ILL ADM. CODE 219.586(d)

RESPONSE TO BOARD ORDER OF MAY 5,1993

NOW COMES the Illinois Environmental Protection Agency by its attorney, Rachel L.

Doctors, and moves that the Board grant its Motion of April 30, 1993 to file an emergency

rule delaying the compliance date of 35 III. Adm. Code 219.586(d)' In support of the

Motion, the Agency states as follows:

The Board found on May 5, 1993, that it needed additional information

before it can rule on the merits of the Agency's request for emergency rules to delay the

compliance date of 35 III. Adm. Code 219.586(d)(1)' specifically why an emergency

exists.

The authority to promulgate emergency rules for Stage II rests with the

Board. Section 27(c) of the Environmental Protection Act provides:

When the Board finds that a situation exists which reasonably constitutes a threat

to the pubiic interest, safety or welfare, the Board may adopt regulations pursuant

to and in accordance with Section 5.02 [now Section 5-45) of the Illinois

Administrative Procedure Act. [415 ILCS 5/27(c).]

The Admini!>tP' 've Procedure Act leaves the determination of what

constitutes an emergency with the substantive expertise of the agency that promulgates

the rule. The Adrninistrative Procodure Act provides guidance in its del :nition of

"emergency" that there be a threat to public interest. Section 5-45 of the Administrative

Procedure Act provides in pertinent part:

"Emergency" means the existence of any situation that any agency finds reasonably

constitutes a threat to the public interest, safety, or welfare. If any agency finds

that an emergency exists that require'3 adoption of a rule upon fewer days than is

reQuired

by Section 5-40 and states in writing its reasons for that finding, the

agency may adopt an emMgency rule without prior notice or hearing upon filing a

notice of emergency rulernaking with the Secretary of State under Section 5-70. [5

ILCS .100/5-45.J

The Agency emphasizes that control of vapors from gasoline fueling in

Metro-East is necessary, either in the form of Stage /I cont;rols or on board controls. Such

control is required by the Clean Air Act (42 U.S.C.

7511 a(b)(3) and (cl). The question

now, ;n light of the Court's decision in ['JRDe v. ReillY, 983 F2d 259 (D.C. Cir., 1993)1, is

whether imposition of Stage II controls a( this time is necessary. If stage II controls at this

time are not necessary, then compliance with the Stage /I requirements constitutes an

arbitrary and unreasonable hardship to small businesses located in an economically

depressed area

of the state.

As discussed in the Agency's April 30, 1993, Motion, once tile USEPA

promulgates the rules for Onboard Recovery Systems, there is no longer a federal

requirement

for Stage II vapor recovery controls. There are three different complii'nce

dates, depending on the size and age of the facility, at 35 III. Adm. Code 219.586(dl. The

May 1, 1993, deadline applies to facilities modified or built after November 1, 1990.

Therefore, if USEPA promulgates Onboard rules prior to November 1, 1993, Illinois wil! be

in a position where a rule that was intended to apply to a whole group of sources will

apply to only a portion based on when USEPA promulgates Onboard Recovery rules.

Gasoline

stations that do have to install Stage" will be at a competitive disadvantage to

1 USEPA has informed the Agency that it has nct appealed the D.C. Circuit Court's ruling

this case and that it does not intend to.

those that do not. Further, the Agency will have an obligation to enforce this rule only

against a segment of the group to which it was intended to apply. Like sources of

pollution will not be treated the same.

As discussed in the Agency's April

30, 1993

Motion, once an automobile

has onboard recovery equipment, Stage II controls would rE'sult in no further improvements

in air quality. Stage II controls represent duplicative controls.

Mr. William Deustch of the Illinois Petroleum Association has called the

Agency to describe the hardship that would fall on the affected gasoline station owners

ar,d operators. Installing Stage II vapor recovery

~ontrols

imposes a significant hardship on

small businesses. Gasoline

stations operate on a very slim profit margin of two to four

cents a gallon. It will cost each gas station between

$40,000

and

$100,000

to install

Stage II controls. Clearly the cost of the control outweighs the marginal benefit of

immediate reduction in emissions. This expense is cll3arly a hardship on these businesses,

and some

may have to close or reduce staff. The Metro-East area already has

high rate

of unemployment; clearly more is not in the public interest nor is restricting access and

increasing the cost of a necessary commodity. Moreover, with the promulgation of the

onboard I ules, air quality will be improved, as it would be with implementation of Stage /I

fecovery_

This proposal for emergency rulemaking is distinguishable from that in

Citizens for a Better Environment v. Ilrnois Pollution Contro.! Board, (1 st Dist. 1983) 152

III. App. 3d 105, 504 N.E. 2d 166. In that case, the Board adopted emergency rules

which were to guide the implementation of Section 39(h) of the Environmental Protection

Act. Section 39(h) prohibited the deposit of hazardous waste streams in a permitted

hazardous wastesite unless the waste generators and site owners and operators first

obtained specific authorization from the Environmental Protection Agency. The Court

found the administrative economy the clarification represented did not justify an

emergency. Here, emergency rules are being proposed to alleviate a clear and present

threat to the public interest, not merely ad'11inistrative ease.

The Agency understands that individuals cdfected by the rule are filing

comments with the Board in response to the Board's May 5th orde1_ These comments

should demonstrate first-hand the economic hardship that will be suffered by these small

businesses. Further, the Agency understands

(heH 10' .. -

a'1'/

sources affected hy the may

1, 1993,

deadline for implementation of Stage

controls are in compiiance.

WHEREFORE,

for the reasons stated above, the Illinois Environmental Protection

Agency moves that the Board grant the Agency's April 30, 1993 Motion to file with the

Secretary of State an emergency rule that delays the first compliance date for Stage II

gasoline vapor recovery in the Metro East area, found at 35 III. Adm. Code 219.586(di( 1).

for 150 days as provided by the Administrative Procedure Act at Section 5-45.

DATED: May

14,

1993

P.O. Box 19276

Springfield, IIIin01s 62794-9276

217/524-3333

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

/)~

)

,----j---

1~J,~

u/c0~

Rechel . Doctors

Assistant Counsel

Bureau of Air

51" ATE OF ILLlNO!S

)

COUNTY OF SAr.JGAMON

)

AFFIDAVIT

I. RACHEL DOCTORS. having been first duly sworn upon oath, depose and state as

follows:

I am employed by the Illinois Environmental Protection Agency as Assistant

Counsel assigned to the Bumau of Air. Regulatory Development Unit.

As part of my duties, I have been assigned responsibility for the proposal that

the Board adopt an emergency rule in the Metro-East area regarding Stage II gasoline val_

recovery. That proposal is docketed at R93-12.

I have prepared the foregoing Response to Board Order of May [', 1993.

The contents of that Response are true and correct to the best of my

knowledge.

FURTHER AFFIANT SA YETH NOT.

SUBSCRIBED

AND SWORN TO BEFORE

ME THIS 14TH DAY OF MAY. 1993.

UW~~~·~~~·

"Q~'IC;;IA!..

S~"~"

ANN M. 2WICK

Notary Public. State of illinois

; My Commission Expires lin. 31. 1995

STATE OF ILLINOIS

)

SS.

COUNTY

OF SANGAMON )

PROOF OF SERVICE

the undersigned. on oath state that I have served the attached Response to Board

Order of May 5, 1993 upon the person to whom it is directed,

placing a copy in an

envelope addressed

to;

Federal Express;

Dorothy Gunn, Clerk

Illinois Pollution Control Board

State of Illinois Center

100 W. Randolph, Suite 11-500

Chicago, Illinois 60601

First Class Mail:

Matthew

Dunn, Chief

Environmental Control Division

Office of the Attorney General

100 W. Randolph St., 12th Floor

Chicago,

IL 60601

Bill Denham

Research

Planning

Energy & Natural Resources

325 W. Adams

Springfield, IL 62704

and mailing it from Springfield, Illinois on May 14, 1993 with sufficient postage affixed.

SUBSCRIBED AND SWORN TO BEFORE ME

this 14th day of May, 1993

(1~~~jlh.

~'-~

Notary Public

"OFFICIAL SEAL."

ANNE M. ALEXANDER

NOTARY PUBLIC. STATE OF ILLINOIS

MY COMMISSION EXPlflES

10/30/96

..".

/ -

:.~

. <Had?'> '

,c>.,,;.,