[Federal Register Volume 60, Number 161 (Monday, August 21, 1995)]
[Rules and Regulations]
[Pages 43388-43394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20649]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL 12-40-6888; FRL-5281-4]
Approval and Promulgation of Implementation Plan; Illinois
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: On June 29, 1990, the United States Environmental Protection
Agency (USEPA) promulgated Federal stationary source Volatile Organic
Compound (VOC) control measures representing Reasonably Available
Control Technology (RACT) for emission sources located in six
northeastern Illinois (Chicago area) counties: Cook, DuPage, Kane,
Lake, McHenry and Will. USEPA also took final rulemaking action on
certain VOC RACT rules previously adopted and submitted by the State of
Illinois for inclusion in its State Implementation Plan (SIP). Included
in USEPA's rule was a requirement that paper coating facilities, such
as Riverside Laboratories' (Riverside) Kane County facility, be subject
to specified emission limits. On August 20, 1991, Riverside filed a
petition for reconsideration with USEPA in which it contended, based on
its economic situation, that the Federal rules were not RACT for its
facility. As a result of USEPA's reconsideration, it proposed revised
RACT requirements for Riverside's facility on December 16, 1993. In
this rule the USEPA is promulgating site-specific RACT limits that are
generally the same as those in the proposed rule. USEPA is also
withdrawing the June 23, 1992, stay.
EFFECTIVE DATE: This rule is effective September 20, 1995.
ADDRESSES: The docket for this action (Docket No. A-92-66), which
contains the public comments, is located for public inspection and
copying at the following addresses. A reasonable fee may be charged for
copying. We recommend that you contact Randolph O. Cano (312/886-6036)
before visiting the Chicago location and Rachel Romine (202/245-3639)
before visiting the Washington, DC location.
U.S. Environmental Protection Agency, Region 5, Regulation Development
Branch, Eighteenth Floor, Southeast, 77 West Jackson Street, Chicago,
Illinois 60604.
Office of Air and Radiation Docket and Information Center (Air Docket
6102), U.S. Environmental Protection Agency, Docket No. A-92-66, Room
M1500, Waterside Mall, 401 M Street. SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Steve Rosenthal, Regulation
Development Branch, U.S. Environmental Protection Agency, Region 5,
(312) 886-6052, at the Chicago address indicated above.
SUPPLEMENTARY INFORMATION:
I. Background
In an effort to comply with certain requirements under part D of
the Clean Air Act (Act), 42 U.S.C. 7401 et seq., the Illinois Pollution
Control Board (IPCB) promulgated certain (RACT I) VOC regulations
applicable to sources covered by USEPA's initial round of CTGs 1
(Group I) on July 12, 1979. This requirement is discussed in EPA's
April 4, 1979, General Preamble for Proposed Rulemaking (44 FR 20372).
Although these regulations addressed emissions from paper coating, they
did not explicitly deal with their applicability to operations where
paper is coated by the saturation process, such as at Riverside's
operations. As a result of this perceived ambiguity in its regulations,
the IPCB held, on January 5, 1989, that Riverside was not a paper
coater under the Illinois rules. Riverside Laboratories Inc. v. IEPA,
PCB 87-62.2
\1\ CTGs, which contain information on available air pollution
control techniques, their costs and effectiveness, provide
recommendations on what EPA calls the ``presumptive norm'' for RACT.
EPA has published three groups of CTGs (Group I, Group II and Group
III).
\2\ The Appellate Court of Illinois dismissed IEPA's appeal of
the IPCB Order on November 17, 1989. See Illinois v. Riverside
Laboratories, Inc., Case No. 2-89-0340.
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USEPA's position on the definition of papercoating is contained in
its November 24, 1987, Post-1987 Ozone and Carbon Monoxide Policy (52
FR 45108). Appendix D of this policy, ``Discrepancies and
Inconsistencies Found in Current SIPs,'' states that ``[p]aper and
fabric coating should cover saturation operations as well as strictly
coating operations.''
On May 26, 1988, USEPA notified then Governor James R. Thompson
that the Illinois SIP was substantially inadequate to achieve the ozone
National Ambient Air Quality Standards (NAAQS) in the Chicago and East
St. Louis areas. On June 17, 1988, a follow-up letter was sent to
Illinois which specifically identified its VOC SIP deficiencies. One of
these itemized deficiencies was that the definition of paper coating
needed to include ``saturation operations.''
On April 1, 1987, the State of Wisconsin filed a complaint in the
United States District Court for the Eastern District of Wisconsin
against USEPA and sought a judgment that USEPA, among other requested
actions, be required to promulgate revisions to the Illinois ozone SIP
for northeastern Illinois. Wisconsin v. Reilly, No. 87-C-0395, E.D.
Wis. On January 18, 1989, the District Court ordered USEPA to
promulgate an ozone implementation plan for northeastern Illinois
within 14 months of the date of that order. On September 22, 1989,
USEPA and the States of Illinois and Wisconsin signed a settlement
agreement in an attempt to substitute a more acceptable schedule for
promulgation of a plan for the control of ozone in the Chicago area. On
November 6, 1989, the District Court vacated its prior order and
ordered all further proceedings stayed, pending the performance of the
settlement agreement.
The settlement agreement called for the use of a more sophisticated
air quality model, allowed more time for USEPA to promulgate a Federal
Implementation Plan (FIP) using the
[[Page 43389]]
model 3 and requires interim emission reductions while the
modeling study is being performed. The interim emission reductions were
to be achieved through Federal promulgation of required Volatile
Organic Material (VOM) 4 RACT rules which remedy deficiencies in
Illinois' regulations.
\3\ USEPA is no longer required to promulgate a FIP using the
modeling results because the settlement agreement relieves USEPA of
such responsibility in the event that amendments to the Act
establish new deadlines for States to achieve attainment of the
ozone standard. The primary responsibility for developing any
remaining revisions to Illinois' SIP belongs to Illinois because the
Clean Air Act Amendments of 1990 establish such new deadlines.
\4\ The State of Illinois uses the term ``VOM'' in its
regulations. For the purposes of this RACT analysis, this term is
considered equivalent to USEPA's use of the term ``VOC.''
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On December 27, 1989 (54 FR 53080), USEPA proposed to disapprove a
number of Illinois rules for their failure to meet RACT requirements.
This included the definition of paper coating, which did not address
saturation operations. On that date, USEPA also proposed its own RACT
rules, including a definition of paper coating to include the
``application of coatings by impregnation and/or saturation.'' On June
29, 1990 (55 FR 26814), USEPA took final action to disapprove the
Illinois rules and promulgate the proposed Federal rules, including the
proposed definition of paper coating.
On August 30, 1990, Riverside filed a petition for review of
USEPA's June 29, 1990, rulemaking in the United States Court of Appeals
for the Seventh Circuit. Nine other parties filed petitions for review,
which were ultimately consolidated by the Court as Illinois
Environmental Regulatory Group (``IERG'') et al. v. Reilly, No. 90-
2778.
On August 20, 1991, Riverside filed a petition for reconsideration
with the Agency in which it contends that its economic status prevents
the Federal rules from being RACT for its facility. Riverside further
amended that petition on September 5, 1991. In support of its
contention, Riverside has submitted new information to USEPA concerning
its financial situation. Based on this information, USEPA agreed to
reconsider the RACT rules for Riverside.
On November 6, 1991, USEPA issued a 3-month stay pending
reconsideration of the applicable FIP rules for Riverside (and one
other petitioner). This stay was published on November 20, 1991 (56 FR
33712). On June 23, 1992 (57 FR 27935), USEPA published an extension of
the stay, but only if and as necessary to complete reconsideration of
the subject rules (including any appropriate regulatory action),
pursuant to USEPA's authority to revise the Federal rules in sections
110(c) and 301(a) of the Act, 42 U.S.C. 7410(c) and 7601(a).
II. Riverside's Operations
Riverside's Kane County facility produces thermoset laminating
paper products. These products, which include kitchen cabinets and
laminated furniture, are produced by saturating materials composed
mainly of cellulose fibers with a resin and solvent mixture in a dip
tank, i.e., a trough filled with resin.
Prior to 1989, Riverside operated four lines--one solvent-based
fabric coating line and three solvent-based polyester lines. These
lines emitted (and continue to emit) VOCs. The fabric coating line is
not a part of this action.
Since the purchase of Riverside by its current owner in 1986, the
company has investigated VOC compliance options, including
reformulation of noncompliant coatings and the installation of
pollution control equipment. Riverside contends that none of the
options investigated was technically feasible or economically
reasonable.
In December 1988, Riverside purchased a new water-based coating
technology intended (according to Riverside) to reduce plantwide
emissions while increasing production. This process, known as the
melamine resin process, is utilized on one additional line, and
produces no VOC emissions.
III. Proposed Rule
As a result of USEPA's decision to reconsider the Federal rules as
applicable to Riverside, USEPA conducted a review of economic
information submitted by Riverside. In addition to the information
provided in its August 20, 1991, petition for reconsideration, the
documentation which Riverside submitted to USEPA concerning its
financial situation included the following:
1. A March 27, 1991, table which contains Riverside's annual sales
figures for the years 1987 through 1990. This table is an attachment to
an April 8, 1991, letter from Riverside's Counsel to USEPA.
2. A July 15, 1991, letter from Riverside's Counsel to USEPA, and
enclosures to this letter titled ``Technical Justification for Phased-
RACT for Riverside Laboratories, Inc.'' and exhibit B to this Technical
Justification, which is an ``Annual Statistical Report for Calendar
1990'' by the Laminating Materials Association, Inc.
3. A September 11, 1991, letter from Riverside's Counsel to USEPA,
and Attachment C to this letter titled ``Riverside Laboratories, Inc.
Pounds/Batch and VOC Content of Coatings.''
4. An October 1, 1991, letter from Riverside's Counsel to USEPA,
and an attached July 12, 1990, table titled ``Riverside Laboratories
Compliance Plan (Polyester Production).''
5. A February 5, 1992, letter from K. J. Guillette, President of
Riverside, to Louise Gross, Assistant Regional Counsel, Office of
Regional Counsel, USEPA, Region 5.
USEPA reviewed these documents, copies of which are available in
the docket. USEPA's analysis is presented in a February 18, 1992,
memorandum from Tom Walton of USEPA's Cost and Economic Impact Section,
to Steve Rosenthal of USEPA's Region 5 Air and Radiation Division (a
copy of which is also available in the docket).
According to these documents, for Riverside to control its three
polyester lines, an annualized control cost would be incurred of at
least $283,000 per year. In addition, based upon the polyester and
melamine sales figures for 1987-90, Riverside would have had to
increase its polyester prices significantly to offset this annualized
control cost. The declining market in polyester sales and the
elasticity of that market, however, would impede Riverside's ability to
raise its prices by the full per unit cost of control without reducing
its sales. In addition, the information provided by Riverside supported
its assertion that it had limited, if any, ability to obtain capital
through conventional means in order to finance additional pollution
control equipment.
Based on this review, USEPA proposed revised RACT rules for
Riverside on December 16, 1993 (58 FR 65688). The proposed site-
specific RACT limitations for Riverside's three polyester lines, Lines
C, D, and E are as follows. First, Lines C, D, and E shall comply with
a VOC emission limitation of 2.9 pounds per gallon (lbs./gal.) no later
than December 31, 1996. Prior to December 31, 1996, Lines C, D, and E
shall comply with an emission limitation of 3.5 lbs./gal., with the
following exception: the VOC content of some specified solutions on
Line E may exceed the 3.5 lbs./gal. limitation so long as these
coatings do not exceed the 1990 maximum emission levels provided in the
rule. Finally, the proposed rule establishes annual limits or ``caps''
on polyester production. Riverside's July 15, 1991, letter documents
that the company will be able to achieve a VOC RACT level of 2.9 lbs./
gal., at least in part due to the
[[Page 43390]]
decline in the polyester market, by December 31, 1996.
IV. Response to Comments
In response to the proposal, comments were submitted by Riverside
on January 18, 1994. In addition, on January 5, 1994, Pioneer Plastics
Corporation (PPC) requested a hearing, which was held on April 6, 1994.
Comments were submitted at the hearing and after the hearing by PPC.
Additional comments were submitted after the hearing by Riverside.
A. Riverside January 18, 1994, Comments
(1) Riverside Comment
Riverside requests that the provision contained in proposed 40 CFR
52.741(e)(10)(iii), establishing a square feet-per-year production cap
on coating lines C, D, and E be clarified to include only production
involving coatings which are not controlled to the 2.9 pounds/gallon
limitation. Riverside believes that this interpretation is implicit in
the rule.
USEPA Response. USEPA disagrees with Riverside's ``clarification
request.'' The purpose of the production cap is to achieve interim VOC
emission reductions for the period (through the end of 1996) during
which Riverside is to receive less stringent emission limits than other
paper coaters. The cap is based on annual production limits, which are
a more enforceable surrogate for annual emissions. The July 12, 1990,
table upon which the interim production limits are based was supplied
by Riverside and is clearly based on total polyester production. If
only polyester production involving coatings greater than 2.9 pounds/
gallon coatings was considered for the cap, then total VOC emissions
could increase during this period. Furthermore, Riverside did not
present any alternative (to polyester production) limits that would
ensure interim emission reductions.
(2) Riverside Comment
Riverside does not believe that PPC has standing to request a
public hearing on this matter, since it is not an ``interested person''
under the statute.
USEPA Response. USEPA disagrees with Riverside's position that PPC
lacks standing to request a public hearing in this rulemaking. USEPA
has broad discretion in determining whether a party is an ``interested
person'' under section 307(d)(5)(ii) of the Act. USEPA believes that
PPC's position as a competitor of Riverside provides a sufficient basis
for its status as an ``interested person'' entitled to request a
hearing.
B. PPC April 6, 1994, and Riverside May 16, 1994, Comments
PPC presented both oral testimony and written comments on April 6,
1994. It also submitted comments clarifying an Appendix to its April 6,
1994, written comments on April 7, 1994, and additional comments on May
5, 1994 (which are discussed in a later section). PPC's comments are
intended to support its position that USEPA should reject Riverside's
Petition for Reconsideration and Riverside should not be given interim
relief from the paper coating limit in paragraph 52.741(e). Riverside
submitted a May 16, 1994, supplemental comment to respond to PPC's
April 6, 1994, comments. PPC's comments are followed by Riverside's
rebuttal to PPC's comments, which are in turn followed by USEPA's
response to PPC's comments.
(1) PPC Comment
PPC claims that the ``Background Document on Riverside Laboratories
Issues'' (Background Document), May 1990, should have been in the
rulemaking docket on December 16, 1993, and available to the public at
that time.
USEPA Response. The relevant portion of that document, the
annualized cost of add-on control for Riverside, was included in the
docket (in the February 18, 1992, Tom Walton memorandum). This was the
only information from the Background Document on which EPA relied in
developing its proposed action. Furthermore, the Background Document,
which established these costs, was available to any interested parties
as part of the docket for the Federal rules promulgated on June 29,
1990. USEPA referred to this rulemaking action and that docket in the
proposed rule. PPC admitted to receiving this document on March 24,
1994, or over seven weeks prior to the close of the public comment
period. Therefore, any harm allegedly caused by EPA's failure to
include the entire document in the docket as of the time the proposed
rule was published was cured because PPC had a longer period to review
this document than was originally provided in the NPR.
(2) PPC Comment
On November 20, 1991, USEPA announced a three-month stay pending
reconsideration of the Federal RACT rules as they apply to Riverside.
This stay expired on February 6, 1992. A stay beyond this date is in
violation of the Act.
USEPA Response. On November 20, 1991, USEPA proposed to extend the
3-month stay pending reconsideration, but only if and as long as
necessary to complete reconsideration of the rule (56 FR 58528). No
public comments were received on this proposal. On June 23, 1992 (57 FR
27935), USEPA published the final rule extending the stay. The time for
seeking judicial review of the stay expired on August 22, 1992. The
stay is not at issue in this current rulemaking action. Furthermore, as
stated in the proposed and final rulemaking actions, USEPA believes
that sections 110(c), 301(a) and 307(d)(1)(B) of the Act provide
sufficient statutory support for extending the stay, since the
extension was deemed necessary in order to complete action on the
reconsideration request.
(3) PPC Comment
The USEPA has failed to perform the required conformity analysis.
Section 176 of the Act requires all Federal actions to conform to an
applicable implementation plan. PPC disagrees with USEPA's position
that 40 CFR 93.153(c)(2)(iii) automatically exempts rulemaking actions
from the requirement to perform a conformity analysis.
USEPA Response. PPC is mistaken in its interpretation of the
requirements of section 176 of the Act and of the conformity
regulations in 40 CFR Part 93. The applicability portion of the
conformity regulations exempt ``Actions which would result in no
emissions increase or an increase in emissions that is clearly de
minimis.'' (40 CFR 93.153(c)(2)). ``Rulemaking and policy development
and issuance'' are specifically identified (40 CFR 93.153(c)(2)(iii))
as a category of activities that are exempt because they do not cause
an increase in emissions--which is different than not requiring as much
reductions as would be required by RACT. This rulemaking action is,
therefore, clearly exempt from the requirement to perform a conformity
analysis.
(4) PPC Comment
Riverside has failed to submit an acceptable RACT demonstration
necessary to justify a relaxed RACT emission limit. The USEPA has
established guidelines in its November 9, 1988, Easco proposed
rulemaking regarding what constitutes an acceptable RACT investigation.
USEPA outlined in Appendix A (53 FR 45287-88) to the Easco proposed
rulemaking action a
[[Page 43391]]
detailed discussion of what it considers to be an acceptable RACT
investigation. Riverside's RACT investigation fails to meet the
``reasonable efforts standard'' (in Appendix A) and, therefore, USEPA
should reject Riverside's Petition for Reconsideration.
Riverside Response. The procedure contained in Appendix A to the
Easco rulemaking does not apply to the Riverside rulemaking. USEPA was
not required to follow the procedure outlined in Appendix A in
determining whether Riverside should have a different RACT standard
than other paper coating operations. Even if one accepts PPC's premise,
PPC's conclusion does not follow. Riverside has demonstrated to USEPA
that it could qualify for an ``adjusted RACT'' standard in two ways.
First, Riverside has demonstrated that it could qualify for an
``adjusted RACT'' standard through the use of ``cross-line averaging''
and the ``plant-wide bubble'' concept. Second, Riverside has made
``reasonable efforts'' to demonstrate that an alternative RACT standard
is appropriate and has provided USEPA with all the economic and
technical information requested by USEPA. Contrary to PPC's assertions,
the actions listed in Appendix A are only examples of ``reasonable
efforts'' and are not the sole means by which a source can demonstrate
that an alternative RACT standard is appropriate.
USEPA Response. Appendix A in the Easco proposal presents a policy
(not regulatory) discussion of what constitutes an acceptable
investigation of the availability of complying low-solvent coatings. It
does not establish the full range of procedures for determining whether
alternative RACT is appropriate for a specific source. USEPA agrees
that similar facilities were using add-on control but determined that
use of such add-on controls was not economically feasible for Riverside
prior to the end of 1996.
According to PPC, there are three sources in the country that
produce polyester saturated papers (see pp. 12-13 of the April 6, 1994,
hearing Transcript). These companies are Riverside, PPC and Dyno. On
pp. 64-66 of the Hearing Transcript, PPC states that low-solvent
complying polyester resins do not exist. Therefore, Riverside's
contention that low VOC complying coatings are unavailable was
confirmed by PPC. Since that fact has been firmly established, the
extent to which Riverside documented that it performed the actions laid
out in Appendix A is of no consequence.
(5) PPC Comment
Riverside has failed to demonstrate that the ``presumptive norm''
is not economically feasible. PPC does not consider Riverside's
purchase of a new melamine paper coating line as a valid reason for not
purchasing pollution control equipment. Riverside's decision to enter a
new market cannot be used as an argument to obtain a RACT relaxation on
the polyester lines. Riverside had the capital in 1988 and could have
easily made the business decision to invest in pollution control
equipment for the polyester lines and comply with the RACT limitations.
This decision should not now be rewarded by the USEPA in the form of an
extension to comply with the presumptive norm. PPC also believes that
Riverside's economic condition has improved since 1991.
Riverside Comment. Riverside has demonstrated that the RACT
limitation applicable to other paper coating operations is not
economically feasible for its facility. Riverside submitted to USEPA
extensive economic information and completed an economic analysis
pursuant to USEPA's economic guidance. In a March 18, 1991, letter to
USEPA, Riverside provided USEPA with a revised economic analysis of its
operations pursuant to USEPA policy. This analysis demonstrated that a
significant impact would result if Riverside were required to install
pollution control equipment at its facility.
In 1989, Riverside was a small operation with approximately 25
employees and annual sales of approximately $5.5 million. Currently,
Riverside has approximately 31 employees, and in 1993, Riverside had
annual sales of approximately $6 million. Contrary to PPC's claims that
Riverside's economic condition has drastically improved, these figures
demonstrate that Riverside is in a similar position to its position in
1989.
USEPA Response. USEPA maintains that its economic analysis, which
was presented in a February 18, 1992, memorandum was an adequate basis
for allowing Riverside additional time to comply with the paper coating
limits in the FIP. This economic analysis is discussed in the December
16, 1993, proposed rule. Although purchase of a melamine line--and
subsequent melamine production--may not directly replace polyester
production, there appear to be undeniable benefits from shifting to a
zero emitting coating technology.
(6) PPC Comment
Riverside has failed to demonstrate that the proposed limit
(including the increasingly more stringent annual production caps) is
the most stringent limit that is technologically and economically
feasible.
Riverside Comment. As stated in its initial request for site-
specific relief, Riverside intends to continue to decrease its
polyester production and does not believe that a revision of the
polyester production cap is necessary. Riverside believes that the
proposed rule reflects the most stringent RACT limitation which is
currently achievable at its facility and that the proposed compliance
plan will guarantee that Riverside is in full compliance with RACT
requirements contained in the FIP by 1996.
USEPA Response. USEPA has only temporarily relaxed the control
requirements for Riverside and expects it to fully comply with the FIP
paper coating limits at the end of the extension that was proposed and
is being established by today's final action. USEPA disagrees with PPC
about the merit of cheaper, and less effective, control scenarios that
would reduce the feasibility of fully controlling VOC emissions from
all three paper coating lines at the end of the proposed extension. In
other words, mandatory partial controls in the interim would likely
interfere with subsequent full control of Riverside's three lines (in
the event that Riverside is unable to switch to low VOC coatings).
USEPA rejects PPC's scenario of shutting down two lines and
increasing production on a third line with add-on control. USEPA does
not consider scenarios that involve shutting down lines to be
reasonable approaches to establishing ``the most stringent limit that
is technologically and economically feasible''.
USEPA also disagrees with PPC about the increasingly more stringent
production caps that were proposed. These will ensure lower production,
and VOC emissions, than have occurred in the past.
(7) PPC Comment
The USEPA's economic analysis is too limited and no longer
accurate. USEPA should not rely on this economic analysis for two
reasons. First, the analysis is limited to the affordability of a RACT
``presumptive norm'' scenario. There is no analysis as to the economic
feasibility of less expensive control scenarios which would achieve VOC
control. Second, the analysis drafted in February of 1992 is now
outdated and
[[Page 43392]]
no longer accurately reflects the polyester market nor Riverside's
economic position in this market.
Riverside Comment. While Riverside's financial condition has
improved since 1989, PPC's claims that Riverside can now afford control
technology are based on an incomplete understanding of this rulemaking.
The purpose of this proposed rule was to allow Riverside to maintain
employment while taking steps to attain compliance with the general
RACT standards applicable to paper coating operations. Under the
proposed rule, it was anticipated that Riverside's financial condition
would improve as it increased melamine production. Eventually, due to
this improved financial condition, Riverside could either phase out its
polyester production lines or mechanically alter these lines to comply
with the paper coating limitation.
PPC claims that Riverside's share of the polyester market rose from
43 percent to 90 percent in the years 1989 through 1992. PPC's
production information is incorrect and--based on more accurate
reporting methods--Riverside's market share has dropped from 40 percent
to approximately 25 percent. In addition, there is no proof that
Riverside has used its extension to decrease its prices below the
market rate.
USEPA Response. First, USEPA restates its response (regarding the
lack of merit of partial controls) to the previous comment. In
addition, USEPA's economic analysis, which was based on an adequate
level of information on Riverside's financial status, established that
Riverside may not have been able to obtain capital through conventional
means and, even if it could obtain the capital, the inability to
completely recover the control cost might have made remaining in
business unattractive. USEPA proposed additional time for Riverside (to
comply with the FIP papercoating limits) to enable its financial
position to improve sufficiently for it to both remain in business and
afford to comply at the end of the proposed extension. In fact, USEPA
would not have proposed to grant additional time to Riverside had the
company not demonstrated that it would be able to comply at the end of
the proposed extension. It is, therefore, to be expected that
Riverside's financial position would be better now than in 1992.
However, there is insufficient basis for revising Riverside's final
compliance date.
C. PPC May 5, 1994 Comment
On April 16, 1992, USEPA published the General Preamble for future
proposed rulemaking for the implementation of Title I of the Act
Amendments of 1990. 57 FR 13498, April 16, 1992. The Appendices to the
General Preamble containing important supporting materials referenced
throughout the General Preamble were published in the Federal Register
a short time later. 57 FR 18070, April 28, 1992. PPC quotes from
Appendix C4 (57 FR 18074) as follows:
Economic feasibility rests very little on the ability of a
particular source to ``afford'' to reduce emissions to the level of
similar sources. Less efficient sources would be rewarded by having
to bear lower emission reduction costs if affordability were given
high consideration. Rather, economic feasibility for RACT purposes
is largely determined by evidence that other sources in a source
category have in fact applied the control technology in question.
PPC added that other similar facilities control their VOC emissions
through thermal incineration meeting the RACT presumptive norm
limitation. It also added that Riverside had not provided the USEPA
with the required supporting data--listed in Appendix C4--necessary for
an economic feasibility exemption petition.
USEPA Response. The Clean Air Act requires that implementation
plans for nonattainment areas must provide for, inter alia, the
implementation of RACT as expeditiously as practicable. See
Sec. 172(c)(1). USEPA has defined RACT as the lowest emission
limitation that a particular source is capable of meeting by the
application of control technology that its reasonably available
considering technological and economic feasibility. 44 FR 53762
(September 17, 1979) (emphasis added). In its June 29, 1990
promulgation of the Chicago FIP, USEPA reiterated this definition. It
also acknowledged that for certain sources the RACT ``presumptive
norm'' may not be appropriate, due to the source's particular economic
and/or technical circumstances. See 55 FR 26832.5
\5\ ``However, recommended controls are based on capabilities
and problems which are general to the industry; they do not take
into account the unique circumstances of each facility. * * * States
are urged to judge the feasibility of imposing the recommended
controls on particular sources, and adjust the controls accordingly.
* * *'' 55 FR 26832, fn 15.
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In the June 29, 1990 rulemaking, EPA also addressed a comment
submitted by Riverside that it was ``unfair and unreasonable to require
a small business such as Riverside, which has just made a substantial
investment in order to reduce its rate of emissions, to place add-on
controls on production lines which may be shut down in the near
future.'' 55 FR at 26843. In response, EPA stated its concern about the
economic impact that the FIP's regulatory requirements could have on
small businesses; and indicated its willingness to evaluate individual
cases if it were provided with sufficient data on each business seeking
to be exempted based on unreasonable economic impacts. EPA further
noted that Riverside had not provided such information, but could in
the future in connection with a site-specific SIP revision. 55 FR
26844.6 As a result, in conjunction with its petition for
reconsideration, Riverside has provided substantial documentation
concerning the economic feasibility of the FIP limits. See 58 FR at
65889-65890. Based upon this information, EPA determined in the
December 16, 1993 proposal that Riverside had made a sufficient
showing, and proposed to defer the final compliance date to December
31, 1996.
\6\ See, also, response to ``affordability'' comments submitted
by Viskase. 55 FR 26846.
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The paragraph quoted by PPC in the April 28, 1992 Appendices to the
General Preamble does not preclude the establishment of a site-specific
RACT determination based on economic (in)feasibility. Rather, it
recognizes that affordability can, in certain cases, be considered.
More importantly, the language following the paragraph excised by PPC
contains a discussion of the types of cost information which EPA would
use in addressing an affordability claim. 57 FR 18074. EPA's analysis
of the FIP's impact on Riverside was based on similar parameters,
including capital and annualized costs, sales figures and its debt/
asset ratio. See February 18, 1992 memorandum from Tom Walton of EPA's
Cost and Economic Impact Section (available in the docket, and
discussed in greater detail in the December 16, 1993 proposal).
For these reasons, EPA has concluded that the current FIP RACT
limits are not economically feasible for the Kane County facility at
this time; and that Riverside should have additional time--until
December 31, 1996--to comply.
V. Photochemical Reactivity of Acetone
USEPA requires that VOCs be regulated because of their contribution
to ground level (tropospheric) ozone. Accordingly, USEPA specifically
excludes any organic compounds from the definition of VOC which it has
determined to have negligible contribution to tropospheric ozone
formation. On September 30, 1994, (59 FR 49877)--in response to
petitions filed by three parties--USEPA proposed to add acetone to the
list of compounds that are excluded from the definition of
[[Page 43393]]
VOC. On June 16, 1995, USEPA took final action (60 FR 31633) on the
exclusion of acetone from the definition of VOC.
A variety of scientific materials were submitted to USEPA
supporting the assertion of several petitioners that acetone is of
negligible photochemical reactivity. The petitioners based their
request for the exclusion of acetone on a demonstration that the
photochemical reactivity of acetone is not appreciably different from
that of ethane, which is the most reactive compound on the current list
of compounds which are named in the definition of VOC as being of
negligible reactivity. Based on the scientific data presented in the
materials submitted by the petitioners, demonstrating that acetone is
not appreciably different from ethane in terms of photochemical
reactivity and is therefore negligibly reactive and should be excluded
from the definition of VOC, and after USEPA's review and consideration
of all comments received during the public comment period, USEPA added
acetone to the list of compounds that are excluded from the definition
of VOC (60 FR 31633). As stated in this final rule, ``The revised
definition will also apply in the Chicago ozone nonattainment area
pursuant to the 40 CFR 52.741(a)(3) definition of volatile organic
material or VOC compound.''
Mr. Ken Guilette, President of Riverside Laboratories, provided
information about Riverside's solvent use in a September 23, 1994,
letter to USEPA. In this letter, Mr. Guilette stated that, as of about
five years ago, ``all solvents except acetone were eliminated from the
formulations. Any purchased raw materials or additives which contain
VOCs use acetone exclusively.'' Mr. Guilette added that acetone is the
only VOC emitted by Riverside Laboratories.
V. Summary and Conclusions
This rule establishes revised RACT limitations for Riverside's Kane
County facility. Under this rule, Lines C, D and E will be required to
comply with a VOC limit of 2.9 lbs./gal. no later than December 3l,
l996. Prior to that time, interim emission limits are established for
both VOC emissions and polyester production. In addition, any paper
coatings which contain any VOC other than acetone are required to
comply with a VOC limit of 2.9 lbs./gal. upon publication of this rule
in the Federal Register. These requirements are based upon the
information contained in the notice of proposed rulemaking, USEPA's and
Riverside's responses to comments, USEPA's exclusion of acetone from
the definition of VOC, and Riverside's statement that it uses no VOCs
except acetone.
This action completes USEPA's reconsideration proceedings.
Consequently, USEPA is withdrawing the June 23, 1992, stay.
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, USEPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000. This action involves only one source, Riverside Laboratories,
Inc. Therefore, USEPA certifies that this RACT promulgation does not
have a significant impact on a substantial number of small entities.
Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,
USEPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estmated
costs of $100 million or more to the private sector, or to a State,
local, and/or tribal government(s) in the aggregrate.
These apply to a single private sector source located in the
Chicago ozone nonattainment area. To the extent that the rules being
promulgated by this action will impose any mandate upon this source,
such a mandate will not result in estimated annual costs of $100
million or more to that source.
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 20, 1995. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purpose of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone.
Dated: August 7, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 52, chapter I, title
40 0f the Code of Federal regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart O--Illinois
2. Section 52.741 is amended by adding new paragraph (e)(10) and
removing and reserving paragraph (z)(4) to read as follows:
Sec. 52.74l Control strategy: Ozone control measures for Cook, DuPage,
Kane, Lake, McHenry and Will Counties.
* * * * *
(e) * * *
(10) Until December 31, 1996, the control and recordkeeping
requirements in this paragraph apply to the three solvent-based
polyester paper coating lines (Lines C, D and E) at Riverside
Laboratories' Kane County, Illinois facility, instead of the control
requirements in paragraphs (e)(1) and (e)(2) of this section and the
recordkeeping requirements in paragraph (e)(6) of this section.
Compliance with this paragraph must be demonstrated through the
applicable coating analysis test methods and procedures specified in
paragraph (a)(4)(i) of this section. The requirements in paragraphs
(e)(1), (e)(2), and (e)(6) of this section shall apply to Riverside on
and after December 31, 1996.
(i) After December 21, 1995, no coatings shall at any time be
applied on Lines C, D or E which exceed 3.5 pounds (lbs.) volatile
organic material (VOM) per gallon of coating (minus water and any
compounds which are specifically exempted from the definition of VOM),
except as provided in paragraph (e)(10)(ii) of this section.
(ii) After December 21, 1995, the following specifically identified
coatings may exceed 3.5 lbs. VOM per gallon of coating (minus water and
any compounds which are specifically exempted from the definition of
VOM) only if they are applied on Line E and they do not exceed the
limits indicated below (minus water and any compounds which are
specifically exempted from the definition of VOM):
EXP-5027--4.34 lbs./gallon
[[Page 43394]]
PD 75 CLR--4.19 lbs./gallon
PD 75 BRN--4.18 lbs./gallon
SQZ-54--3.88 lbs./gallon
SPX-34GL--3.51 lbs./gallon
(iii) That portion of Riverside's polyester production which is
manufactured with the use of any VOC, from Lines C, D, and E, may not
exceed the following levels: 35 million square feet per year during and
after 1992, 29 million square feet per year during and after 1994, and
25 million square feet during 1996. Compliance with this requirement
shall be determined by adding the polyester production from any 12
consecutive months during and after the years indicated, through 1996.
That is, the polyester production for any 12 consecutive months
starting with January 1992 cannot exceed 35 million square feet; the
polyester production from any 12 consecutive months starting with
January 1994 cannot exceed 29 million square feet; and the polyester
production for the twelve months from January through December 1996
cannot exceed 25 million square feet. Only those square feet of
polyester whose production involves the use of VOC need to be
restricted by the production levels in this paragraph (e)(10)(iii) of
this section.
(iv) By December 21, 1995, Riverside shall certify to the
Administrator that its polyester coating operations will be in
compliance with paragraphs (e)(10)(i), (e)(10)(ii), and (e)(10)(iii) of
this section. Such certification shall include the following:
(A) The name and identification number of each coating as applied
on coating lines C, D and E.
(B) The weight of VOM per volume of each coating (minus water and
any compounds which are specifically exempted from the definition of
VOM) as applied on each coating line.
(v) The Administrator must be notified at least 10 days prior to
the use of any polyester coating not previously identified pursuant to
paragraph (e)(10)(iv) of this section. This notification must include
the information specified in paragraphs (e)(10)(iv)(A) and
(e)(10)(iv)(B) of this section.
(vi) On and after December 21, 1995, Riverside shall collect and
record all of the following information each day for each coating and
maintain the information at the facility for a period of 3 years:
(A) The name and identification number of each coating as applied.
(B) The weight of VOM per volume of each coating (minus water and
any compounds which are specifically exempted from the definition of
VOM) as applied each day.
(C) Any record showing a VOM content in excess of the emission
limits in paragraph (e)(10)(i) or (e)(10)(ii) of this section shall be
reported by sending a copy of such record to the Administrator within
30 days following its collection.
(D) Any VOM besides acetone used in any coating must be identified.
(vii) Starting with the first full month after December 21, 1995,
Riverside shall collect and record the figures on polyester production
(in square feet), for each month and maintain the information at the
facility for a period of at least 3 years.
(viii) Regardless of any other provision of paragraph (e)(10) of
this section, after August 21, 1995 no coating which contains any VOM
other than acetone shall at any time be applied on Line C, D, or E
which exceeds 2.9 lbs. VOM per gallon of coating (minus water and any
compounds which are specifically exempted from the definition of VOM).
* * * * *
[FR Doc. 95-20649 Filed 8-18-95; 8:45 am]
BILLING CODE 6560-50-P
