Approval of Section 112(l) Program of Delegation; Illinois

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[IL135-1-7205(a); FRL-5332-7]

Approval of Section 112(l) Program of Delegation; Illinois

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving, through ``direct final'' procedure, a

request for delegation of the Federal air toxic program pursuant to

section 112(l) of the Clean Air Act of 1990. The State's mechanism of

delegation involves the straight delegation of all existing and future

section 112 standards unchanged from the Federal standards. The actual

delegation of authority will occur automatically upon EPA's

promulgation of the standards. This request for approval of a mechanism

of delegation encompasses all sources not covered by the part 70

program.

DATES: This action is effective January 22, 1996, unless adverse or

critical comments not previously addressed by the State or EPA are

received by December 22, 1995, in which case this rulemaking action

will be taken as the proposed rule published in the proposed rules

section of this Federal Register. If the effective date is delayed,

timely notice will be published in the Federal Register.

ADDRESSES: Copies of the State's submittal and other supporting

information used in developing the approval are available for

inspection during normal business hours at the following location: EPA

Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois 60604.

Please contact Jennifer Buzecky at (312) 886-3194 to arrange a time if

inspection of the submittal is desired.

FOR FURTHER INFORMATION CONTACT: Jennifer Buzecky, AR-18J, 77 West

Jackson Boulevard, Chicago, Illinois 60604, (312) 886-3194.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

Section 112(l) of the CAA enables the EPA to approve state air

toxic programs or rules to operate in place of the Federal air toxic

program. The Federal air toxic program implements the requirements

found in section 112 of the CAA pertaining to the regulation of

hazardous air pollutants. Approval of an air toxic program is granted

by the EPA if the Agency finds that the State program: (1) Is ``no less

stringent'' than the corresponding Federal program or rule, (2) the

State has adequate authority and resources to implement the program,

(3) the schedule for implementation and compliance is sufficiently

expeditious, and (4) the program is otherwise in compliance with

Federal guidance. Once approval is granted, the air toxic program can

be implemented and enforced by State or local agencies, as well as EPA.

Implementation by local agencies is dependent upon appropriate

subdelegation.

On August 17, 1995, Illinois submitted to EPA a request for

delegation of authority to implement and enforce the air toxic program

under section 112 of the CAA. On September 8, 1995, EPA found the

State's submittal complete. In this document EPA is taking final action

to approve the program of delegation for Illinois.

II. Review of State Submittal

A. Program Summary

Requirements for approval, specified in section 112(l)(5), require

that a State's program contain adequate authorities, adequate resources

for implementation, and an expeditious compliance schedule. These

requirements are also requirements for an adequate operating permits

program under part 70 (40 CFR 70.4). On March 7, 1995, EPA promulgated

a final interim approval under part 70 of the State of Illinois'

Operating Permit Program. 60 FR 12478. Included in that notice was the

approval of a mechanism for delegation of all section 112 standards for

sources subject to the part 70 program. Sources subject to the part 70

program are those sources that are operating pursuant to a part 70

permit issued by the State, local agency or EPA. Sources not subject to

the part 70 program are those sources that are not required to obtain a

part 70 permit from either the State, local agency or EPA. Because

Illinois' August 17, 1995, request for delegation encompasses all

existing and future standards as they apply to sources NOT subject to

part 70, this action supplements the earlier part 70 rulemaking in that

Illinois can now implement and enforce the section 112 air toxic

program regardless of a source's part 70 applicability.

The Illinois program of delegation for sources not subject to part

70 will not include delegation of section 112(r) authority. The program

will, however, include the delegation of the 40 CFR part 63 general

provisions to the extent that they are not reserved to the EPA and are

delegable to the State. Furthermore, Illinois' request for delegation

includes the delegation of all existing National Emission Standards for

Hazardous Air Pollutants (NESHAP) standards, 40 CFR part 61, with the

exception of radionuclides.

An example of an existing NESHAP is the asbestos standard, 40 CFR

part 61, subpart M. Implementation of this standard includes the

primary responsibility for accepting asbestos notifications. Sources in

Illinois subject to the asbestos standard should henceforth submit

their notification forms to the Illinois Environmental Protection

Agency (IEPA).

As stated above, this document constitutes EPA's approval of

Illinois' program of straight delegation of all existing and future air

toxic standards, except for section 112(r) standards as they pertain to

non-part 70 sources. Straight delegation means that the State will not

promulgate individual State rules for each section 112 standard

promulgated by EPA, but will implement and enforce without changes the

section 112 standards promulgated by EPA. The Illinois program of

straight delegation will operate as follows: Upon promulgation of a

section 112 standard, the State of Illinois automatically receives the

authority and assumes responsibility for the timely implementation and

enforcement required by the standard, as well as any further activities

agreed to by IEPA and EPA. Some activities necessary for effective

implementation of the standard include receipt of initial

notifications, recordkeeping, reporting and generally assuring that

sources subject to the standard are aware of its existence. When deemed

appropriate, IEPA will utilize the resources of its Small Business

Assistance Program to assist in general program implementation. The

details of this delegation mechanism are set forth in a series of

letters between EPA and IEPA, copies of which are located in the docket

associated with this rulemaking.

B. Criteria for Approval

On November 26, 1993, EPA promulgated regulations to provide

[[Page 57835]]

guidance relating to the approval of State programs under Section

112(l) of the CAA. 40 FR 62262. That rulemaking outlined the

requirements of approval with respect to various delegation options.

The requirements for approval of a program to implement and enforce

Federal section 112 rules as promulgated without changes are found at

40 CFR 63.91. The specific elements required for approval in Sec. 63.91

were promulgated to address the procedures required for approval

pursuant to section 112(l)(5) of the CAA. Any request for approval must

meet all section 112(l) approval criteria, as well as all approval

criteria of Sec. 63.91. A more detailed analysis of the State's

submittal pursuant to Sec. 63.91 is contained in the Technical Support

Document included in the docket of this rulemaking.

Under section 112(l) of the CAA, approval of a State program is

granted by the EPA if the Agency finds that it: (1) Is ``no less

stringent'' than the corresponding Federal program, (2) that the State

has adequate authority and resources to implement the program, (3) the

schedule for implementation and compliance is sufficiently expeditious,

and (4) the program is otherwise in compliance with Federal guidance.

C. Analysis

EPA is approving Illinois' mechanism of delegation because the

State's submittal meets all requirements necessary for approval under

section 112(l). The first requirement is that the program be no less

stringent than the Federal program. The Illinois program is no less

stringent than the corresponding Federal program or rule because the

State has requested straight delegation of all standards unchanged from

the Federal standards.

Second, the State has shown that it has adequate authority and

resources to implement the program. The Illinois Environmental

Protection Act authorizes IEPA to issue operating permits to part 70

and non-part 70 sources of regulated pollutants. 415 ILCS 5/1 et seq.

The authority to issue permits includes the authority to incorporate

permit conditions that implement Federal section 112 standards.

Furthermore, Illinois has the authority to implement and enforce each

section 112 regulation, emission standard or requirement (regardless of

part 70 applicability), perform inspections, request compliance

information, incorporate requirements into permits and to bring civil

and criminal enforcement actions to recover penalties and fines.

Adequate resources will be obtained through section 105 grant monies

awarded to States by EPA and through any monies from the State's Title

V program that can be used to fund acceptable Title V activities with

respect to these non-part 70 sources.

Third, upon promulgation of a standard, Illinois will immediately

begin activities necessary for timely implementation of the standard.

These activities will involve identifying sources subject to the

applicable requirement and notifying these sources of the applicable

requirement. Such schedule is sufficiently expeditious for approval.

Fourth, nothing in the Illinois program for straight delegation is

contrary to Federal guidance.

D. Determinations

In approving this delegation, EPA expects that the State will

obtain concurrence from EPA on any matter involving the interpretation

of section 112 of the Clean Air Act or 40 CFR parts 61 and 63 to the

extent that implementation, administration, or enforcement of these

sections have not been covered by EPA determinations or guidance.

III. Final Action

The EPA is promulgating final approval of the August 17, 1995,

request by the State of Illinois for straight delegation of section 112

standards unchanged from Federal standards because the request meets

all requirements of 40 CFR 63.91 and section 112(l) of the CAA. Upon

the effective date of this document, the following Federal standards

are automatically delegated to the State of Illinois: (1) All existing

NESHAPs, with the exception of radionuclides; (2) existing section 112

standards, excluding section 112(r), and (3) the part 63 general

provisions to the extent that they are not reserved to the EPA and are

delegable to the State. Future delegation of the section 112 standards

to the State will occur automatically upon EPA's promulgation of the

standard.

Effective immediately, all notifications, reports and other

correspondence required under section 112 standards and existing

NESHAPs should be sent to the State of Illinois rather than to the EPA,

Region 5, in Chicago. Affected sources should send this information to:

Illinois Environmental Protection Agency, Bureau of Air, Permit

Section, 2200 Churchill Road, P.O. Box 19506, Springfield, Illinois

62794-9506.

EPA is publishing this action without prior proposal because EPA

views this action as a noncontroversial revision and anticipates no

adverse comments. However, the rulemaking will not be deemed final if

timely unaddressed adverse or critical comments are filed. The ``direct

final'' approval shall be effective on January 22, 1996, unless EPA

receives such adverse or critical comments by December 22, 1995. EPA is

now soliciting public comments on this action. Any parties interested

in commenting on this action should do so at this time. In the proposed

rules section of this Federal Register, EPA is publishing a separate

document which constitutes a ``proposed approval'' of the requested

delegation. If EPA receives timely comments adverse to or critical of

the approval discussed above, which have not been addressed by the

State or EPA, EPA will publish a Federal Register document which

withdraws this final action. All public comments received will then be

addressed in a subsequent rulemaking document based on the proposed

approval. EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time.

Copies of the State's submittal and other information relied upon

for the final approval are contained in a docket maintained at the EPA

Regional Office. The docket is an organized and complete file of all

the information submitted to, or otherwise considered by, EPA in the

development of this final approval. The docket is available for public

inspection at the location listed under the ADDRESSES section of this

document.

Nothing in this action should be construed as permitting, allowing

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

State's delegated air toxic program. EPA shall consider each request

for revision to the State's delegated air toxic program in light of

specific technical, economic, and environmental factors and in relation

to relevant statutory and regulatory requirements.

This action has been classified as a Table 3 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 exempted this

regulatory action from Executive Order 12866 review.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. (5 U.S.C. 603

[[Page 57836]]

and 604.) Alternatively, EPA 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.

Straight delegation of the section 112 standards unchanged from the

Federal standard does not create any new requirements, but simply

allows the state to administer requirements that have been or will be

separately promulgated. Therefore, because this delegation approval

does not impose any new requirements, I certify that it does not have a

significant impact on any small entities affected.

Under sections 202, 203 and 205 of the Unfunded Mandates Reform Act

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

EPA must undertake various actions in association with proposed or

final rules that include a Federal mandate that may result in estimated

costs of $100 million or more to the private sector, or to State,

local, or tribal governments in the aggregate.

EPA has determined that the approval action promulgated today does

not constitute 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. The state voluntarily

requested this delegation under section 112(l) for the purpose of

implementing and enforcing the air toxics program with respect to

sources not covered by part 70. The delegation imposes no new Federal

requirements. Since the State was not required by law to seek

delegation, this Federal action does not impose a mandate on the state.

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 January 22, 1996. 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).)

List of Subjects in 40 CFR Part 63

Environmental protection, Administrative practice and procedure,

Air pollution control, Hazardous substances, Intergovernmental

relations.

Authority: 42 U.S.C. 7401, et seq.

Dated: November 2, 1995.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 95-28387 Filed 11-21-95; 8:45 am]

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