Approval and Promulgation of Implementation Plans; Illinois

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IL101-1-6689a; FRL-5249-9]

Approval and Promulgation of Implementation Plans; Illinois

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA is approving the Particulate Matter contingency

measures State implementation plan (SIP) revisions submitted by the

State of Illinois on July 29, 1994. The USEPA made a finding of

completeness in a letter dated December 9, 1994. This submittal

addresses the Federal Clean Air Act requirement to submit contingency

measures for particulate matter with an aerodynamic diameter less than

or equal to a nominal 10 micrometers (PM) for the areas designated as

nonattainment for the PM National Ambient Air Quality Standards

(NAAQS). In the proposed rules section of this Federal Register, USEPA

is proposing approval of and soliciting public comment on this

requested SIP revision. If adverse comments are received on this

action, USEPA will withdraw this final rule and address the comments

received in response to this action in a final rule on the related

proposed rule which is being published in the proposed rules section of

this Federal Register. A second public comment period will not be held.

Parties interested in commenting on this action should do so at this

time.

DATES: This final rule is effective September 11, 1995 unless notice is

received by August 14, 1995 that someone wishes to submit adverse

comments. If the effective date is delayed, timely notice will be

published in the Federal Register.

ADDRESSES: Copies of the State's submittal and other information are

available for inspection at the following address: (It is recommended

that you telephone David Pohlman at (312) 886-3299 before visiting the

Region 5 Office.) U.S. Environmental Protection Agency, Region 5, Air

and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois

60604.

Written comments can be mailed to: J. Elmer Bortzer, Chief,

Regulation Development Section (AR-18J), Regulation Development Branch,

Air and Radiation Division, U.S. Environmental Protection Agency, 77

West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: David Pohlman (312) 886-3299.

SUPPLEMENTARY INFORMATION:

I. Background

The four Illinois PM nonattainment areas are: (1) Lyons Township in

Cook County; (2) The area in Cook County bounded on the north by 79th

Street, on the west by interstate 57 between Sibley Boulevard and

Interstate 94 and by Interstate 94 between Interstate 57 and 79th

Street, on the south by Sibley Boulevard, and on the east by the

Illinois/Indiana State line; (3) Oglesby, LaSalle County including the

following townships ranges and sections: T32N, R1E, S1; T32N, R2E, S6;

T33N, R1E, S24; T33N, R1E, S25; T33N, R2E, S30; T33N, R2E, S31; and

T33N, R1E, S36; and (4) Granite City Township and Nameoki Township in

Madison County. These nonattainment areas will be referred to in this

notice as the McCook, Lake Calumet, LaSalle, and Granite City

nonattainment areas, respectively. These areas were designated

nonattainment for PM and classified as moderate under sections

107(d)(4)(B) and 188(a) of the Clean Air Act, upon enactment of the

Clean Air Act Amendments of 1990. See 56 FR 56694 (Nov. 6, 1991); 40

CFR 81.314. The air quality planning requirements for moderate PM

nonattainment areas are set out in subparts 1 and 4 of part D, Title I

of the Clean Air Act. The USEPA has issued a ``General Preamble''

describing USEPA's preliminary views on how USEPA intends to review

SIPs and SIP revisions submitted under Title I of the Clean Air Act,

including those State submittals containing moderate PM nonattainment

area SIP requirements (see generally 57 FR 13498 (April 16, 1992) and

57 FR 18070 (April 28, 1992)). Because USEPA is describing its

interpretations here only in broad terms, the reader should refer to

the General Preamble for a more detailed discussion of the

interpretations of Title I advanced in this action and the supporting

rationale.

The 1990 Amendments to the Clean Air Act made significant changes

to the Clean Air Act. References herein are to the Clean Air Act, as

amended (the Act). The Clean Air Act is codified, as

[[Page 36061]]

amended, in the U.S. Code at 42 U.S.C. Sections 7401, et seq. Subpart 1

contains provisions applicable to nonattainment areas generally and

Subpart 4 contains provisions specifically applicable to PM

nonattainment areas. At times, Subpart 1 and Subpart 4 overlap or

conflict. The USEPA has attempted to clarify the relationship among

these provisions in the ``General Preamble'' and, as appropriate, in

today's action and supporting information.

Those States containing initial moderate PM nonattainment areas

were required to submit, among other things, several provisions by

November 15, 1991. These provisions are described in USEPA's rulemaking

on the LaSalle moderate PM nonattainment area SIP (58 FR 54291, October

21, 1993) and in the rulemaking on the McCook, Lake Calumet, and

Granite City moderate PM nonattainment areas SIP (59 FR 59653, November

18, 1994). Such States were also required to submit contingency

measures by November 15, 1993 (see 57 FR 13543). These measures must

become effective, without further action by the State or USEPA, upon a

determination by USEPA that the area has failed to achieve reasonable

further progress (RFP) or to attain the PM NAAQS by the applicable

statutory deadline. See section 172(c)(9) and 57 FR 13510-13512 and

13543-13544.

II. Analysis of State Submittal

Section 110(k) of the Act sets out provisions governing USEPA's

review of SIP submittals (see 57 FR 13565-13566). The Illinois

Environmental Protection Agency (IEPA) submitted a requested SIP

revision to the USEPA with a letter dated July 29, 1994. The submittal

contains revisions to Title 35 of the Illinois Administrative Code

(IAC), Parts 106 and 212. Specifically, the following sections are

added:

Subpart J: Culpability Determinations

Section 106.930 Applicability

Section 106.931 Petition for Review

Section 106.932 Response and Reply

Section 106.933 Notice and Hearing

Section 106.934 Opinion and Order

Subpart U: Additional Control Measures

Section 212.700 Applicability

Section 212.701 Contingency Measure Plans, Submittal and Compliance

Date

Section 212.702 Determination of Contributing Sources

Section 212.703 Contingency Measure Plan Elements

Section 212.704 Implementation

Section 212.705 Alternative Implementation

A. Procedural Requirements

The Act requires States to observe certain procedural requirements

in developing implementation plans and plan revisions for submission to

USEPA. Section 110(a)(2) of the Act provides that each implementation

plan submitted by a State must be adopted after reasonable notice and

public hearing. Section 110(l) of the Act similarly provides that each

revision to an implementation plan submitted by a State under the Act

must be adopted by such State after reasonable notice and public

hearing. Also section 172(c)(7) of the Act requires that plan

provisions for nonattainment areas meet the applicable provisions of

section 110(a)(2).

The USEPA also must determine whether a submittal is complete and

therefore warrants further USEPA review and action (see Section

110(k)(1) and 57 FR 13565). The USEPA's completeness criteria for SIP

submittals are set out at 40 CFR part 51, appendix V. The USEPA

attempts to make completeness determinations within 60 days of

receiving a submission. However, a submittal is deemed complete by

operation of law if a completeness determination is not made by USEPA

six months after receipt of the submission.

The State of Illinois, after providing adequate notice, held a

public hearing on February 22, 1994, regarding the PM contingency

measures. Following the public hearing, the contingency measure rules

were adopted by the Illinois Pollution Control Board on June 23, 1994,

and published in the Illinois Register on July 22, 1994. The State

rules became effective on July 11, 1994.

The submittal was reviewed by USEPA to determine completeness in

accordance with the completeness criteria set out at 40 CFR part 51,

appendix V. The submittal was found to be complete and a letter dated

December 9, 1994, was sent to the State indicating the completeness of

the submittals and the next steps to be taken in the review process.

B. Contingency Measures

The Clean Air Act requires States containing PM nonattainment areas

to adopt contingency measures that will take effect without further

action by the State or USEPA upon a determination by USEPA that an area

failed to make RFP or to timely attain the applicable NAAQS, as

described in section 172(c)(9). See generally 57 FR 13510-13512 and

13543-13544. Pursuant to section 172(b), the Administrator has

established a schedule providing that states containing initial

moderate PM nonattainment areas shall submit SIP revisions containing

contingency measures no later than November 15, 1993. (See 57 FR 13543,

n. 3.)

The General Preamble further explains that contingency measures for

PM should consist of other available control measures, beyond those

necessary to meet the core moderate area control requirement to

implement reasonably available control measures (see Clean Air Act

sections 172(c)(1) and 189(a)(1)(C)). Based on the statutory structure,

USEPA believes that contingency measures must, at a minimum, provide

for continued progress toward the attainment goal during the interim

period between the determination that the SIP has failed to achieve

RFP/provide for timely attainment of the NAAQS and the additional

formal air quality planning following the determination (57 FR 13511).

Section 172(c)(9) of the Act specifies that contingency measures

shall ``take effect * * * without further action by the State, or the

[USEPA] Administrator.'' USEPA has interpreted this requirement (in the

General Preamble at 57 FR 13512) to mean that no further rulemaking

activities by the State or USEPA would be needed to implement the

contingency measures. In general, USEPA expects all actions needed to

affect full implementation of the measures to occur within 60 days

after USEPA notifies the State of its failure to attain the standard or

make RFP.

The USEPA recognizes that certain actions, such as notification of

sources, modification of permits, etc., may be needed before some

measures could be implemented. However, States must show that their

contingency measures can be implemented with minimal further

administrative action on their part and with no additional rulemaking

action such as public hearing or legislative review.

The Illinois PM contingency measure rules require sources in PM

nonattainment areas with actual annual source-wide emissions of PM of

at least 15 tons per year to submit, by November 15, 1994, two levels

of contingency measure plans. The Level I contingency plans are to

contain measures that would reduce total annual source-wide fugitive

emissions of PM by at least 15 percent. The Level II plans are to

contain measures to reduce fugitive PM emissions by 25%. The rules

require that these plans become Federally enforceable permit

conditions.

Following a monitored exceedance of the 24 hour PM NAAQS, IEPA will

determine the source or sources which

[[Page 36062]]

are likely to have contributed to the exceedance. Depending on the

magnitude of the monitored exceedance, IEPA will require culpable

sources to implement either Level I or Level II contingency plans

within 90 days.

Upon a finding by USEPA that an area has failed to attain the PM

NAAQS, all sources in that PM nonattainment area subject to the rules

would be required to implement Level II measures within 60 days.

C. Enforceability Issues

All measures and other elements in the SIP must be enforceable by

the State and USEPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR

13556). The USEPA criteria addressing the enforceability of SIPs and

SIP revisions were stated in a September 23, 1987 memorandum (with

attachments) from J. Craig Potter, Assistant Administrator for Air and

Radiation, et al. (see 57 FR 13541). State implementation plan

provisions also must contain a program to provide for enforcement of

control measures and other elements in the SIP [see section

110(a)(2)(C)].

The specific measures contained in the Illinois contingency plan

are addressed above. The Illinois regulations, as included in the SIP,

are legally enforceable by IEPA. Also, the specific Level I and Level

II contingency plans will be enforceable by IEPA as operating permit

conditions. Further, after culpable sources are determined the State

will revise operating permits to include additional control measures

and these Federally enforceable operating permits will be submitted to

USEPA. The USEPA believes that the State's existing air enforcement

program will be adequate to enforce PM contingency plans.

III. Final Action

The USEPA approves Illinois' PM contingency measure rules,

submitted by IEPA on July 29, 1994. This submittal addressed PM

contingency measure plans that were due on November 15, 1993. The State

rules require two levels of contingency measures which would be

triggered either by a monitored exceedance of the PM NAAQS or by a

finding by USEPA that an area has failed to attain the PM NAAQS.

Culpable sources would be determined, the State would revise operating

permits to include additional control measures, and these Federally

enforceable operating permits would be submitted to USEPA.

The USEPA is publishing this action without prior proposal because

USEPA views this action as a noncontroversial revision and anticipates

no adverse comments. However, USEPA is publishing a separate document

in this Federal Register publication, which constitutes a ``proposed

approval'' of the requested SIP revision and clarifies that the

rulemaking will not be deemed final if timely adverse or critical

comments are filed. The ``direct final'' approval shall be effective on

September 11, 1995, unless USEPA receives adverse or critical comments

by August 14, 1995. If USEPA receives comments adverse to or critical

of the approval discussed above, USEPA will withdraw this approval

before its effective date by publishing a subsequent Federal Register

document which withdraws this final action. All public comments

received will then be addressed in a subsequent action. Please be aware

that USEPA will institute another comment period on this action only if

warranted by significant revisions to the rulemaking based on any

comments received in response to today's action. Any parties interested

in commenting on this action should do so at this time. If no such

comments are received, USEPA hereby advises the public that this action

will be effective on September 11, 1995.

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from Executive Order 12866 review.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. USEPA shall consider each request for revision to the SIP in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, the

USEPA must prepare a budgetary impact statement to accompany any

proposed or final rule that includes a Federal mandate that may result

in estimated costs to State, local, or tribal governments in the

aggregate; or to the private sector, of $100 million or more. Under

Section 205, the USEPA must select the most cost-effective and least

burdensome alternative that achieves the objectives of the rule and is

consistent with statutory requirements. Section 203 requires the USEPA

to establish a plan for informing and advising any small governments

that may be significantly or uniquely impacted by the rule.

The USEPA has determined that the approval action promulgated today

does not include a Federal mandate that may result in estimated costs

of $100 million or more to either State, local, or tribal governments

in the aggregate, or to the private sector.

This Federal action approves pre-existing requirements under State

or local law, and imposes no new Federal requirements. Accordingly, no

additional costs to State, local, or tribal governments, or the private

sector, result from this action.

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.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements, but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP-approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the Federal-State relationship

under the Act, preparation of a regulatory flexibility analysis would

constitute Federal inquiry into the economic reasonableness of the

State action. The Clean Air Act forbids USEPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. USEPA., 427 U.S.

246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by September 11, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes 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)).

[[Page 36063]]

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter.

Dated: June 14, 1995.

David Kee,

Acting Regional Administrator.

For the reasons stated in the preamble, part 52, chapter I, title

40 of 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 52.720 is amended by adding paragraph (c)(111) to read

as follows:

Sec. 52.720 Identification of plan.

* * * * *

(c) * * *

(111) On July 29, 1994, Illinois submitted regulations which

require adoption and implementation of particulate matter contingency

measures for Illinois' four moderate particulate matter nonattainment

areas. Sources in the nonattainment areas which emit at least 15 tons

of particulate matter must submit two levels of contingency measures,

which will then become Federally enforceable. Sources will be required

to implement the contingency measures if an exceedance of the National

Ambient Air Quality Standard for Particulate Matter is measured, or if

the United States Environmental Protection Agency finds that an area

has failed to attain the National Ambient Air Quality Standards.

(i) Incorporation by reference.

Illinois Administrative Code Title 35: Environmental Protection,

Subtitle B: Air Pollution, Chapter I: Pollution Control Board;

(A) Part 106 Hearings Pursuant to Specific Rules, Section 106.930--

Applicability, Section 106.931--Petition for Review, Section 106.932--

Response and Reply, Section 106.933--Notice and Hearing, Section

106.934--Opinion and Order. Amended at 18 Ill. Reg. 11579-11586.

Effective July 11, 1994.

(B) Part 212 Visible and Particulate Matter Emissions, Section

212.700--Applicability, Section 212.701--Contingency Measure Plans,

Submittal and Compliance Date, Section 212.702--Determination of

Contributing Sources, Section 212.703--Contingency Measure Plan

Elements, Section 212.704--Implementation, Section 212.705--Alternative

Implementation. Added at 18 Ill. Reg. 11587-11606. Effective July 11,

1994.

[FR Doc. 95-17216 Filed 7-12-95; 8:45 am]

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