Clean Air Act Final Interim Approval of Operating Permits Program; Illinois

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[IL001; FRL-5164-6]

Clean Air Act Final Interim Approval of Operating Permits

Program; Illinois

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is promulgating interim approval of the Operating

Permits Program submitted by Illinois for the purpose of complying with

Federal requirements for an approvable State program to issue operating

permits to all major stationary sources, and to certain other sources.

EFFECTIVE DATE: March 7, 1995.

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

information used in developing the final interim approval are available

for inspection during normal business hours at the following location:

United States Environmental Protection Agency, Region 5, 77 West

Jackson Boulevard, AR-18J, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Jennifer Buzecky, 77 West Jackson

Boulevard, Permits and Grants Section AR-18J, Chicago, Illinois 60604,

(312) 886-3194.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (``the Act'')), and implementing regulations at 40

Code of Federal Regulations (CFR) Part 70 require that States develop

and submit operating permits programs to EPA by November 15, 1993, and

that EPA act to approve or disapprove each program within 1 year after

receiving the submittal. The EPA's program review occurs pursuant to

section 502 of the Act and the part 70 regulations, which together

outline criteria for approval or disapproval. Where a program

substantially, but not fully, meets the requirements of part 70, EPA

may grant the program interim approval for a period of up to 2 years.

If EPA has not fully approved a program by 2 years after the November

15, 1993 date, or by the end of an interim program, it must establish

and implement a Federal program.

On September 30, 1994, EPA proposed interim approval of the

operating permits program for Illinois. See 59 FR 49882. The EPA

received public comment on the proposal, and compiled a Technical

Support Document (TSD) which describes the operating permits program in

greater detail. In this notice EPA is taking final action to promulgate

interim approval of the operating permits program for Illinois.

II. Final Action and Implications

A. Analysis of State Submission

The EPA received comments from a total of four organizations. The

EPA's response to these comments is summarized in this section.

Comments [[Page 12479]] supporting EPA's proposal are not addressed in

this notice; however, EPA's response to all comments is available in a

document contained in the docket at the address noted in the ADDRESSES

section above.

1. Section 112(G) Implementation

The EPA received several comments regarding the proposed approval

of Illinois' preconstruction permitting program for the purpose of

implementing section 112(g) during the transition period between title

V approval and adoption of a State rule implementing EPA's section

112(g) regulations. Two commentors argued that Illinois should not, and

cannot, implement section 112(g) until: (1) EPA has promulgated a

section 112(g) regulation, and (2) the State has a section 112(g)

program in place. The commentors also argued that Illinois'

preconstruction review program cannot serve as a means to implement

section 112(g) because it was not designed for that purpose. One

commentor also asserted that such a regulatory program is

unconstitutional because the section 112(g) requirements are vague.

In its proposed interim approval of Illinois' part 70 program, EPA

also proposed to approve Illinois' preconstruction review program for

the purpose of implementing section 112(g) during the transition period

before promulgation of a Federal rule implementing section 112(g). This

proposal was based in part on an interpretation of the Act that would

require sources to comply with section 112(g) beginning on the date of

approval of the title V program, regardless of whether EPA had

completed its section 112(g) rulemaking. The EPA has since revised this

interpretation of the Act in a Federal Register notice published on

February 14, 1995. 60 FR 8333. The revised interpretation postpones the

effective date of section 112(g) until after EPA has promulgated a rule

addressing that provision. The revised notice sets forth in detail the

rationale for the revised interpretation.

The section 112(g) interpretive notice explains that EPA is still

considering whether the effective date of section 112(g) should be

delayed beyond the date of promulgation of the Federal rule so as to

allow States time to adopt rules implementing the Federal rule, and

that EPA will provide for any such additional delay in the final

section 112(g) rulemaking. Unless and until EPA provides for such an

additional postponement of section 112(g), Illinois must be able to

implement section 112(g) during the period between promulgation of the

Federal section 112(g) rule and adoption of implementing State

regulations.

For this reason, EPA is finalizing its approval of Illinois'

preconstruction review program. This approval clarifies that the

preconstruction review program is available as a mechanism to implement

section 112(g) during the transition period between promulgation of the

section 112(g) rule and adoption by Illinois of rules established to

implement section 112(g). However, since the approval is for the single

purpose of providing a mechanism to implement section 112(g) during the

transition period, the approval itself will be without effect if EPA

decides in the final section 112(g) rule that sources are not subject

to the requirements of the rule until State regulations are adopted.

Furthermore, EPA is limiting the duration of this approval to 18 months

following promulgation by EPA of the section 112(g) rule.

The EPA believes that, although Illinois currently lacks a program

designed specifically to implement section 112(g), Illinois'

preconstruction review program will serve as an adequate implementation

vehicle during a transition period because it will allow Illinois to

select control measures that would meet MACT, as defined in section

112, and incorporate these measures into a federally enforceable

preconstruction permit. Illinois will be able to impose federally

enforceable measures reflecting MACT for most if not all changes

qualifying as a modification, construction, or reconstruction under

section 112(g) because Illinois' preconstruction permitting program is

not limited to criteria pollutants. 415 ILCS 5/9.1(d).

Another consequence of the fact that Illinois lacks a program

designed specifically to implement section 112(g) is that the

applicability criteria found in its preconstruction review program may

differ from those in the section 112(g) rule. However, whether a

particular source change qualifies as a modification, construction, or

reconstruction for section 112(g) purposes during any transition period

will be determined according to the final section 112(g) rule. The EPA

would expect Illinois to be able to issue a preconstruction permit

containing a case-by-case determination of MACT where necessary for

purposes of section 112(g) even if review under its own preconstruction

review program would not be triggered.

In addition, one commentor incorporated by reference its comments

on the proposed section 112(g) rule, and stated that the proposed rule

has technical, legal, and constitutional defects that disqualify it as

a valid or workable approach to section 112(g) implementation. The EPA

believes the appropriate forum for pursuing objections to the legal

validity of Federal regulations is by: (1) Submitting comments on a

proposed rulemaking during the public comment period for that

particular rulemaking, or (2) petitioning for review of the promulgated

rule in the D.C. Circuit Court of Appeals. If the commentor has

concerns with the final section 112(g) rule, the commentor will have

the opportunity to pursue such action once the section 112(g) rule is

promulgated.

Two commentors assumed that EPA would delegate the section 112(g)

requirements to the State. The EPA wishes to clarify that the

implementation of section 112(g) by the State, including case-by-case

MACT determinations, is a requirement for approval of a State title V

program. In other words, approval of the title V operating permits

program confers on the State responsibility to implement section

112(g). Since the requirement to implement section 112(g) lies with the

State in the first instance, there is no need for a delegation action

apart from the title V program approval mechanism, except where the

State seeks approval of a ``no less stringent'' program under 40 CFR

part 63 subpart E. EPA's approval of Illinois' program for delegation

of section 112 standards as promulgated does not affect this

responsibility to implement section 112(g).

2. Variance

EPA received two comments regarding the variance provisions

contained in Illinois' existing regulations. The commentors objected to

EPA's position that State variances are not recognized by EPA unless a

variance is issued in accordance with part 70 procedures. The

commentors stated that dismissing all State-issued variances would

conflict with part 70. The commentors also stated that while part 70's

requirements for compliance schedules do not sanction non-compliance by

a source, variances provided by the state are consistent with the

recognition of non-complying sources and the requirement for compliance

schedules in the permit application.

EPA agrees with the commentors that variances provided by the State

could be consistent with the issuance of a part 70 permit. The

inclusion of a compliance schedule in a part 70 permit is a part 70

requirement and, therefore, a State variance from the applicable

requirements at the time of permit [[Page 12480]] issuance that is

provided to a non-complying source may not be inconsistent with part

70. EPA would not, however, recognize variances that grant relief from

the duty to comply with the terms of an issued federally enforceable

part 70 permit except where such relief is granted through procedures

allowed by part 70. Once again, EPA is not taking any action on

Illinois' variance procedures. The Agency is only clarifying that all

variances provided by the State for title V sources must be granted in

accordance with part 70.

3. Insignificant Activities

Four commentors responded to EPA's proposed concerns regarding

Illinois' draft insignificant activities regulations. In response to

these comments EPA reviewed the draft regulations a second time. On

February 2, 1995, EPA formally received a final copy of these

regulations for inclusion in the State's CAAPP submittal. Please see

the docket for a more detailed review of the Illinois rule.

All commentors objected to EPA's interpretation that the threshold

levels of 1.0 pound per hour (lb/hr) of criteria pollutants and .1 lb/

hr of HAP in 35 Illinois Administrative Code (IAC) Part 201.211 are not

acceptable. These cut-off rates mentioned above are contained in the

State's provision, ``Application for Classification as an Insignificant

Activity.'' 35 IAC 201.211. One commentor stated that the more

appropriate classification of insignificant activities lies in

different sections of the State's regulations. The section referred to

by the commentor distinguishes between HAP and non-HAP emissions. For

HAP calculations, the rule relies on concentrations of HAPs in the form

of raw material fed to an emission unit. 35 IAC 201.209(a)(1) (A)-(C).

For non-HAPs, the rule refers to emission units that never exceed .1

lb/hr or .44 tpy. 35 IAC 201.210(a) (2) and (3). Although EPA cannot

now determine whether or not the HAP calculations would result in

emissions in amounts greater than the significance limits that will

ultimately be finalized in the section 112(g) rulemaking, EPA also

believes that the non-HAP provisions in 35 IAC 201.210(a) (2) and (3)

do not now pose a problem for approval of the State's submittal. The

Agency, therefore, is taking no action on these provisions. EPA

originally objected to 35 IAC 201.210(a)(1), however, because this

provision includes emissions determined to be insignificant according

to the provisions in 35 IAC 201.211 (allowing sources to apply for

insignificant activities that are granted by IEPA's discretion). The

regulatory sections offered by the commentor, therefore, are not

entirely dispositive of the issue.

Upon further reflection, EPA generally agrees with the commentors

that the rate itself of 1.0 lb/hr of criteria pollutant emission cut-

off contained in 35 IAC 201.211 need not be amended for full approval.

Emission cut-offs approved for insignificant activities are based upon

State-specific circumstances and analysis. One State's cut-offs may not

be appropriate for another State's programs due to variations in local

factors such as non-attainment areas, State Implementation Plans (SIP),

source types, and emissions. EPA believes the State should be given

substantial deference in this matter and finds the insignificance

levels established by Illinois will not, in and of themselves,

interfere with the State's ability to ensure that part 70 sources meet

all applicable requirements of the SIP. Although a severe ozone

nonattainment area exists in the State, EPA believes that it is

reasonable in this case to project that the insignificant levels

established in the State of Illinois' regulations will not interfere

with its effort to be reclassified as attainment. Illinois believes

that this level will not only reduce its administrative burden, but

allow it to eventually meet its attainment demonstrations.

The Agency, however, is still concerned with the development of

these regulations and continues to believe that interim approval is

appropriate for these rules at this time. 35 IAC 201.208 of the State's

rule does not meet the requirements of 40 CFR 70.5(c), which requires

that an application may not omit information needed to determine the

applicability of, or to impose, any applicable requirements, or to

evaluate the fee amount required under the schedule approved pursuant

to 40 CFR 70.9. These provisions are intended to ensure that sources do

not file incomplete permit applications due to inadvertent usage of a

State's insignificant activity provisions. In addition, 35 IAC

201.210(b) must be amended to clarify that a source must specifically

list in its permit application the activities present at its facility

and not just rely on a general statement that denotes the presence of

activities.

Although the emission cut-offs for criteria pollutants are not a

concern at this time, revisions to the State's insignificant

regulations will still be necessary for full approval of the State's

program. EPA believes the State must make the following changes for

full approval: (1) the language of 201.208 must worded to state that at

the time of filing an application, the application must include all

necessary information to determine the applicability of or to impose

any applicable requirements or fees and (2) 201.210(b) must be amended

so that sources specifically list the insignificant activities present

at their facilities.

4. Administrative Amendments

EPA received three comments on the inclusion of the State's

incorporation of emission trades based upon a SIP-approved trading

program into a title V permit based upon the administrative amendment

procedure. Two of the commentors requested clarification as to whether

EPA intends to subject emissions trading that occurs under an emissions

cap established in a part 70 permit to significant modification

procedures. One commentor stated that it is not necessary for EPA to

consider this provision now since Illinois has no such regulations

developed concerning emissions trading.

Responding to the commentors' request for clarification, EPA does

not interpret part 70 to require states to subject emissions trades

that occur under an emissions cap established in a part 70 permit to

significant modification procedures. These trades are established by a

part 70 permit and, therefore, sources do not need to revise their part

70 permits when utilizing these trading provisions.

Part 70, however, does not allow the use of an administrative

permit amendment to accomplish incorporation of emissions trades

resulting from the application of an approved economic incentives rule,

a marketable permits rule or a generic emissions trading rule into a

part 70 permit. 40 CFR 70.7(d). Any substantive change to a permit term

or condition must follow the permit revision procedures of part 70.

Future part 70 rulemakings may change this requirement, but for the

present, EPA can only review State submittals in accordance with the

promulgated part 70 rulemaking of July 21, 1992.

Despite the fact that Illinois does not currently have an approved

trading program, it is appropriate for EPA to now consider this State

legislative provision allowing emission trades to be incorporated

through the administrative amendment procedure. EPA cannot approve

regulations in a State program that would conflict with provisions in

the part 70 regulations.

5. Compliance Certification

Three commentors objected to EPA's proposed interim approval

regarding the [[Page 12481]] State's legislation concerning compliance

certification by a responsible official. The Illinois statute requires

that applications be certified for truth, accuracy, and completeness by

a responsible official in accordance with applicable regulations. 415

ILCS 5/39.5(5)(e). Part 70 requires that certifications be based upon a

``reasonable belief'' or that statements be based upon ``information

and belief.'' 40 CFR 70.5(d) and 70.6(c)(1).

EPA agrees with the commentors to the extent that interim approval

for this issue is not appropriate. Upon further review, Illinois'

legislative authority for certification of responsible officials

carries the same meaning as part 70. A responsible official of the

permit applicant would presumably need to make some inquiry into the

document being certified to ensure that the official's certification

meets the requirements of the Illinois statute. In light of this, EPA

will remove the compliance certification issue from the items needing

further State action for final approval.

6. Enhanced NSR

Three commentors objected to EPA's proposal of interim approval for

Illinois' inclusion of preconstruction review permits into part 70

permits via the administrative amendment procedures of part 70. To

summarize, all three commentors object to requiring the development of

specific regulations that would outline the substantive, procedural and

compliance requirements necessary for incorporation of a

preconstruction permit into a part 70 permit through the administrative

amendment procedure. This incorporation of a preconstruction permit

into a part 70 permit is known as ``enhanced new source review (NSR).''

In EPA's proposal, EPA stated that 40 CFR 70.7(d)(1)(v) allows such

incorporation only when the State's preconstruction review program

meets procedural and compliance requirements substantially equivalent

to the requirements of 40 CFR 70.7 and 70.8 and compliance requirements

substantially equivalent to those contained in 40 CFR 70.6. To utilize

40 CFR 70.7(d)(1)(v), the state must develop regulations which outline

the actual requirements necessary for preconstruction permits to

qualify for inclusion in part 70 permits using the administrative

amendment procedure and for EPA to approve these regulations as

``substantially equivalent.'' Without these regulations, the public and

EPA cannot track the issuance and amendments of part 70 permits to

ensure that the permits contain all requirements. The public also needs

assurance that a source will not be able to avoid the requirements of

the part 70 process through a different permitting program such as

preconstruction review.

Although 40 CFR 70.7(d)(1)(v) is not a necessary element of a part

70 program, the State of Illinois submitted a title V permit program

that provides for the use of this procedure. EPA, therefore, must

determine the adequacy of this aspect of the State's submittal. Because

Illinois' existing legislative authority allows the use of enhanced

NSR, without any further regulations defining substantially equivalent

procedures to 40 CFR 70.6, 70.7 and 70.8, this provision is currently

deficient. To cure this deficiency, the State must: (1) develop

regulations outlining the exact substantive, procedural and compliance

requirements for incorporation of preconstruction permits into part 70

permits and (2) submit these regulations to EPA for review and approval

to ensure that these regulations are ``substantially equivalent'' to

the part 70 regulations.

415 ILCS 5/39.5(13)(c)(v), therefore, will remain on the interim

approval list until the State corrects this deficiency. Until

regulations are developed outlining the elements of an enhanced NSR

program, the State will be expected to interpret ``substantially

equivalent'' in 415 ILCS 5/39.5(13)(c)(v) consistently with part 70.

7. Knowingly Tampering with Monitoring Devices

Two commentors objected to EPA's inclusion of Illinois' statutory

provision concerning enforcement of knowingly tampering with any

``monitoring device or record.'' 415 ILCS 5/44(j)(4)(D). Part 70

requires that criminal fines be imposed upon one who knowingly renders

inaccurate any required ``monitoring device or method.'' 40 CFR

70.11(a)(3)(iii). One commentor stated that Illinois' enforcement

provision is identical in meaning and effect to the language in part 70

and is appropriate in the context of Illinois' law.

Upon further review, EPA agrees with the commentors that the

Illinois legislative provisions for enforcement for knowingly tampering

with monitoring devices or records is equivalent in meaning to the

requirements of part 70. EPA will, therefore, remove from the list of

interim approval issues the requirement that the State make a

legislative change to its enforcement provisions.

8. Prompt Reporting of Deviations

EPA received two comments supporting its review of Illinois'

submittal concerning the prompt reporting of deviations from permit

conditions required by 40 CFR 70.6(a)(3)(iii)(B). Because Illinois did

not include a definition of ``prompt'' in its legislation or

regulations, an acceptable alternative is for the State to define

``prompt'' in each part 70 permit. This definition will be dependent

upon the individual circumstances of each source.

The commentors, however, believe that the EPA must revise several

of its earlier interim approval notices, in which the Agency

conditioned final approval on including a definition of prompt in the

State program, in order to provide a consistent application of the

appropriate interpretation of its rules. EPA is not aware of any

program approval notices that need to be corrected at this time.

B. Additional Issues

The Illinois Environmental Protection Agency (IEPA) informed the

EPA, after publication of the proposed interim approval of the State's

title V program, that the State cannot meet its January 1, 1995,

commitment for an effective acid rain program. In light of the

structure of existing state legislation, in order for an eventual full

approval of the State's CAAPP, the State must incorporate by reference

the Federal acid rain program into the State's existing CAAPP

legislation. 415 ILCS 5/39.5(17). IEPA requested an extension of its

commitment to incorporate by reference the Federal program so that the

State can combine this incorporation by reference with the amendments

to its CAAPP legislation required for interim approval. This

presentation to the legislature would occur in the January, 1996,

legislative session, rather than the January, 1995, session originally

contemplated. IEPA argues that amending its CAAPP legislation once

rather than twice would not interfere with the State's implementation

of Phase II of the Acid Rain Program.

On January 9, 1994, EPA received a letter from Bharat Mathur,

Chief, Bureau of Air, IEPA, to Stephen Rothblatt, Chief, Regulation

Development Branch, EPA Region 5, detailing why the State cannot meet

its January 1, 1995, commitment and reiterating its commitment to

implement the Acid Rain program.

Due to the State's existing enabling legislation for titles IV and

V and its commitment to implement the acid rain program in the interim

period between [[Page 12482]] this final notice and an effective

incorporation by reference of the Federal acid rain program into the

State's legislation, EPA believes an extension of the State's

commitment to adopt acid rain legislation is appropriate. Existing

State legislation allows the State to collect applications for Phase II

affected source and allows the State to process these applications and

evidences the State's ability to implement the Federal acid rain

program in accordance with all Federal regulations. 415 ILCS 5/

39.5(17). Until the State officially incorporates the Federal acid rain

program by reference, EPA expects the State to use its broad

legislative authority for the receipt and processing of phase II

applications in accordance with all Federal regulations.

C. Final Action

The EPA is promulgating interim approval of the operating permits

program submitted by Illinois on November 15, 1993. The State must make

the following changes to receive full approval:

1. The State must correct all deficiencies in its insignificant

activities regulations (refer to previous discussion of insignificant

activities for actual changes);

2. The State must amend 415 ILCS 5/39.5(13)(c)(vi) to require the

use of the significant modification procedure to incorporate emission

trades into a CAAPP permit;

3. The State must develop regulations defining enhanced NSR for the

purposes of implementing 40 CFR 70.7(d)(1)(v); and

4. Due to the State's present legislative provisions concerning the

Acid Rain program, the State must incorporate by reference the federal

regulations for implementation of the acid rain program.

The scope of Illinois' part 70 program approved in this notice

applies to all part 70 sources (as defined in the approved program)

within the State of Illinois, except any sources of air pollution over

which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-

55818 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the

Act as ``any Indian tribe, band, nation, or other organized group or

community, including any Alaska Native village, which is Federally

recognized as eligible for the special programs and services provided

by the United States to Indians because of their status as Indians.''

See section 302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25,

1994); 58 FR 54364 (Oct. 21, 1993).

This interim approval, which may not be renewed, extends until

March 7, 1997. During this interim approval period, the State of

Illinois is protected from sanctions, and EPA is not obligated to

promulgate, administer and enforce a Federal operating permits program

in Illinois. Permits issued under a program with interim approval have

full standing with respect to part 70, and the 1-year time period for

submittal of permit applications by subject sources begins upon the

effective date of this interim approval, as does the 3-year time period

for processing the initial permit applications.

If the State of Illinois fails to submit a complete corrective

program for full approval by September 9, 1996, EPA will start an 18-

month clock for mandatory sanctions. If Illinois then fails to submit a

corrective program that EPA finds complete before the expiration of

that 18-month period, EPA will be required to apply one of the

sanctions in section 179(b) of the Act, which will remain in effect

until EPA determines that Illinois has corrected the deficiency by

submitting a complete corrective program. Moreover, if the

Administrator finds a lack of good faith on the part of the State of

Illinois, both sanctions under section 179(b) will apply after the

expiration of the 18-month period until the Administrator determined

that Illinois had come into compliance. In any case, if, six months

after application of the first sanction, Illinois still has not

submitted a corrective program that EPA has found complete, a second

sanction will be required.

If EPA disapproves Illinois' complete corrective program, EPA will

be required to apply one of the section 179(b) sanctions on the date 18

months after the effective date of the disapproval, unless prior to

that date the State of Illinois has submitted a revised program and EPA

has determined that it corrected the deficiencies that prompted the

disapproval. Moreover, if the Administrator finds a lack of good faith

on the part of Illinois, both sanctions under section 179(b) shall

apply after the expiration of the 18-month period until the

Administrator determines that Illinois has come into compliance. In all

cases, if, six months after EPA applies the first sanction, Illinois

has not submitted a revised program that EPA has determined corrects

the deficiencies, a second sanction is required.

In addition, discretionary sanctions may be applied where warranted

any time after the expiration of an interim approval period if Illinois

has not timely submitted a complete corrective program or EPA has

disapproved its submitted corrective program. Moreover, if EPA has not

granted full approval to the Illinois program by the expiration of this

interim approval and that expiration occurs after November 15, 1995,

EPA must promulgate, administer and enforce a Federal permits program

for Illinois upon interim approval expiration.

Requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for approval of a program for delegation

of section 112 standards as promulgated by EPA as they apply to Part 70

sources. Section 112(l)(5) requires that the State's program contain

adequate authorities, adequate resources for implementation, and an

expeditious compliance schedule, which are also requirements under part

70. Therefore, the EPA is also promulgating approval under section

112(l)(5) and 40 CFR 63.91 of the State's program for receiving

delegation of section 112 standards that are unchanged from Federal

standards as promulgated. This program for delegations only applies to

sources covered by the Part 70 program.

The EPA is also promulgating approval of Illinois' federally

enforceable state operating permit program (FESOP) for the purposes of

creating federally enforceable limitations on the potential to emit of

Hazardous Air Pollutants (HAP) regulated under section 112 of the CAA.

The EPA is approving this program as meeting the criteria articulated

in the June 28, 1989, Federal Register notice for State operating

permit programs to establish limits federally enforceable on potential

to emit and the criteria established in section 112(l).

The EPA is also promulgating approval of Illinois's preconstruction

permitting program found in 35 Ill. Adm. Code 201-203, under the

authority of title V and part 70 solely for the purpose of implementing

section 112(g) to the extent necessary during the period between final

promulgation of section 112(g) and adoption of any necessary State

rules to implement EPA's section 112(g) regulations. However, since the

approval is for the single purpose of providing a mechanism to

implement section 112(g) during the transition period, the approval

itself will be without effect if EPA decides in the final section

112(g) rule that sources are not subject to the requirements of the

rule until State regulations are adopted. Although section 112(l)

generally provides authority for approval of State air programs to

implement section 112(g), title V and section 112(g) provide authority

for this limited approval because of the direct linkage between

[[Page 12483]] the implementation of section 112(g) and title V. The

scope of this approval is narrowly limited to section 112(g) and does

not confer or imply approval for purposes of any other provision under

the Act, for example, section 110. The duration of this approval is

limited to 18 months following promulgation by EPA of section 112(g)

regulations, to provide Illinois adequate time for the State to adopt

any necessary regulations consistent with the Federal requirements.

III. Administrative Requirements

A. Docket

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

for the final interim approval, including four public comments received

and reviewed by EPA on the proposal, 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 interim approval.

The docket is available for public inspection at the location listed

under the ADDRESSES section of this document.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA's actions under section 502 of the Act do not create any

new requirements, but simply address operating permits programs

submitted to satisfy the requirements of 40 CFR Part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

D. Effective Date

An administrative agency engaging in rulemaking must comport with

the requirements of section 553 of the Administrative Procedures Act (5

U.S.C.A., chapter 5). Section 553 requires that an agency allow at

least 30 days from the date of publication before the effective date of

a substantive rulemaking. If, however, good cause can be shown, then

the agency may impose an effective date of less than 30 days after

publication. Good cause exists to initiate an effective date less than

30 days after publication when it is in the public interest and the

shorter time period does not cause prejudice to those regulated by the

rule. British American Commodity Options Corp. v. Bagley, 552 F.2d 482,

at 488-89 (1977). For the reasons explained below, EPA believes that

good cause exists for the effective date of Illinois' CAAPP to be the

date of publication of this rulemaking.

An immediate effective date is in the public's interest for several

reasons. The requirement for sources to submit CAAPP applications to

the State is contingent in the Illinois regulations upon the effective

date of the program, not the date of publication. All sources subject

to title V in Illinois must submit their title V applications to the

state within one year of the effective date of the State's program.

Likewise, the collection of fees, hiring of permit engineers and

analysis of applicants' permits cannot begin until the State's program

is effective. Illinois' program, therefore, should be adopted without

any further delay inasmuch as the public has been without the

protection of this comprehensive regulatory program and because any

further delay would not serve the public interest.

Although it is in the public's interest to commence Illinois' title

V program upon the date of publication, EPA must ensure that this

action will not have any prejudicial effects upon the regulated

community. Rowell v. Andrus, 631 F.2d 699, at 702-703 (1980). For

example, EPA must ensure that the regulated community has sufficient

notice of this rulemaking and ample opportunity to comment. EPA

believes that all interested parties have had sufficient notice of this

rulemaking and ample time to comment. The development of the State's

CAAPP occurred over the last few years. As such, it contains a

combination of legislation and regulations. These regulations were all

previously subjected to public comment at the State level. The State's

legislation has been effective and fully enforceable as a matter of

State law since September 26, 1992, and the first set of State CAAPP

regulations became effective on June 10, 1993. Illinois' CAAPP program,

therefore, has been fully effective and enforceable as a matter of

State law for over the past year. In addition, EPA also subjected these

same regulations and legislation to public comment when it published

its proposed interim approval of the State's CAAPP on September 30,

1994. From the preceding facts, it is obvious that all interested

parties have had ample time both to participate in the rulemaking

process and to ready themselves to comply with this program.

List of Subjects in 40 CFR Part 70

Environmental Protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

Reporting and recordkeeping requirements.

Dated: February 24, 1995.

Valdas V. Adamkus,

Regional Administrator.

40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

1. The authority citation for part 70 continues to read as follows:

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

2. Appendix A to part 70 is amended by adding the entry for

Illinois in alphabetical order to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating

Permits Programs

* * * * *

Illinois

(a) The Illinois Environmental Protection Agency: submitted on

November 15, 1993; interim approval effective on March 7, 1995;

interim approval expires March 7, 1997.

(b) Reserved

* * * * *

[FR Doc. 95-5516 Filed 3-6-95; 8:45 am]

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