Approval and Promulgation of Implementation Plan; Illinois

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IL18-7-7024a; FRL-5436-1]

Approval and Promulgation of Implementation Plan; Illinois

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: On October 21, 1993, the Illinois Environmental Protection

(IEPA) submitted to USEPA volatile organic compound (VOC) rules that

were intended to satisfy part of the requirements of section 182(b)(2)

of the Clean Air Act (Act) amendments of 1990. Rules submitted at that

time include control requirements for certain major sources in the East

St. Louis nonattainment area not covered by a Control Technique

Guideline (CTG) document. These major non-CTG VOC rules apply to

sources which emit (at maximum capacity) 100 tons of VOC per year.

These rules provide an environmental benefit due to the imposition of

additional control requirements. This rulemaking action approves, in

final, Illinois' rules for major non-CTG sources in the East St. Louis

nonattainment area. The rationale for the conditional approval is set

forth in this final rule; additional information is available at the

address indicated below. Elsewhere in this Federal Register, USEPA is

proposing approval of and soliciting public comment on this requested

revision to the Illinois State Implementation Plan (SIP). If adverse

comments are received on this direct final rule, USEPA will withdraw

the final rule and address the comments received in a new final rule.

Unless this final rule is withdrawn, no further rulemaking will occur

on this requested SIP revision.

DATES: This final rule is effective July 8, 1996 unless adverse

comments are received by June 6, 1996. If the effective date is

delayed, timely notice will be published in the Federal Register.

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

Regulation Development Section, Air Programs Branch (AR-18J), Air and

Radiation Division, U.S. Environmental Protection Agency, 77 West

Jackson Boulevard, Chicago, Illinois 60604.

Copies of the SIP revision request are available for inspection at

the following address: (It is recommended that you telephone Steven

Rosenthal at (312) 886-6052 before visiting the Region 5 office.) U.S.

Environmental Protection Agency, Region 5, Air and Radiation Division,

77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Air Programs Branch

(AR-18J) (312) 886-6052.

SUPPLEMENTARY INFORMATION:

Background

Under the Act as amended in 1977, ozone nonattainment areas were

required to adopt reasonably available control technology (RACT) for

sources of VOC emissions. USEPA issued three sets of control technique

guidelines (CTGs) documents, establishing a ``presumptive norm'' for

RACT for various categories of VOC sources. The three sets of CTGs were

(1) Group I--issued before January 1978 (15 CTGs); (2) Group II--issued

in 1978 (9 CTGs); and (3) Group III--issued in the early 1980's (5

CTGs). Those sources not covered by a CTG were called non-CTG sources.

USEPA determined that the area's SIP-approved attainment date

established which RACT rules the area needed to adopt and implement.

Those areas (including the East St. Louis area) that sought an

extension of the attainment date under section 172(a)(2) to as late as

December 31, 1987, were required to adopt RACT for all CTG sources and

for all major (100 tons per year or more of VOC emissions) non-CTG

sources.

Section 182(b)(2) of the Act as amended in 1990 (amended Act)

requires States to adopt reasonably available control technology (RACT)

rules for all areas designated nonattainment for ozone and classified

as moderate or above. There are three parts to the section 182(b)(2)

RACT requirement: (1) RACT for sources covered by an existing CTG--

i.e., a CTG issued prior to the enactment of the amended Act of 1990;

(2) RACT for sources covered by a post-enactment CTG; and (3) RACT for

all major sources not covered by a CTG. These section 182(b)(2) RACT

requirements are referred to as the RACT ``catch-up'' requirements.

The amended Act requires USEPA to issue CTGs for 13 source

categories by November 15, 1993. A CTG was published by this date for

two source categories--Synthetic Organic Chemical Manufacturing

Industry (SOCMI) Reactors and Distillation; however, the CTGs for the

remaining source categories have not been completed. The amended Act

requires States to submit rules for sources covered by a post-enactment

CTG in accordance with a schedule specified in a CTG document.

Accordingly, States must submit a RACT rule for SOCMI reactor processes

and distillation operations before March 23, 1995. Illinois has

submitted a rule, covering these SOCMI sources, which will be the

subject of a separate rulemaking action.

The USEPA developed a CTG document as Appendix E to the General

Preamble for the Implementation of Title I of the Clean Air Act

Amendments of 1990. (57 FR 18070, 18077, April 28, 1992). In Appendix

E, USEPA interpreted the Act to allow a State either to submit a non-

CTG rule by November 15, 1992, or to defer submittal of a RACT rule for

sources that the State anticipated would be covered by a post-enactment

CTG, based on the list of CTGs USEPA expected to issue to meet the

requirement in section 183. Appendix E states that if USEPA fails to

issue a CTG by November 15, 1993 (which it did for 11 source

categories), the responsibility shifts to the State to submit a non-CTG

RACT rule for those sources by November 15, 1994. In accordance with

section 182(b)(2), implementation of that RACT rule should occur by May

31, 1995. Most of these 11 categories are covered by Illinois'

``generic'' major non-CTG rules that are the subject of this document.

On October 21, 1993, IEPA submitted VOC rules for the East St.

Louis ozone moderate nonattainment area \1\ and a revision to these

major non-CTG control requirements was submitted to USEPA on May 26,

1995. Most of those rules, including those which deal with source

categories covered by CTGs, (and the related test methods, definitions

and recordkeeping requirements) were approved by USEPA on September 9,

1994 (59 FR 46562). This document deals with those major non-CTG rules

for the East St. Louis area which are intended to largely satisfy the

major non-CTG control requirements of sections 182(a)(2)(A) and

182(b)(2). However, this October 21, 1993, submittal exempts bakeries

and sewage treatment plants from these major non-CTG regulations. Major

non-CTG regulations are, therefore, required for any major bakeries and

industrial wastewater treatment plants in the East St. Louis area.

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\1\ The East St. Louis moderate ozone nonattainment area

consists of Madison, Monroe, and St. Clair counties.

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[[Page 20456]]

Evaluation of Rules

Subparts PP, QQ, RR and TT in Part 219 consist of ``generic'' major

non-CTG rules for sources, in the East St. Louis ozone nonattainment

area, not specifically covered by another rule. Compliance with these

rules was required by May 15, 1992. These rules are generally

consistent with the Chicago Federal Implementation Plan that was

promulgated by USEPA on June 29, 1990 (55 FR 26818) and codified at 40

CFR Sec. 52.741, and/or USEPA RACT guidance. The discussion below

clarifies certain aspects of these non-CTG rules, including parts of

these rules that differ from previously approved ``generic'' non-CTG

VOC rules.

Sections 926, 946, 966, and 986 specify the control requirements

for the rules. Subsection (a) of each of these Sections requires an

overall 81 percent reduction from each emission unit. An (Illinois

Pollution Control) Board Note has been added to each subsection to

clarify what is intended by the term ``emission unit.'' A further

clarification of the Board Note has been provided in a June 16, 1993,

letter from Dennis Lawler, IEPA.

Subparts PP, QQ, RR and TT do not apply to sources that are not

major (that is, emit less than 100 tons VOC per year at maximum

capacity) and exempt emission units with less than 1 ton VOC per year

or 2.5 tons VOC per year (depending upon the subpart) if the total

emissions from such emission units do not exceed 5 tons VOC per year.

Subpart UU contains the recordkeeping and reporting requirements for

the non-CTG requirements in Subparts PP, QQ, RR, and TT and Section

219.990 (in Subpart UU) contains the recordkeeping and reporting

requirements for exempt emission units. Although Section 219.990 refers

to emission units which are exempt, it should be noted that the owner

or operator of an emission unit which is exempt because the source is

not major would need to submit records for the entire source to

demonstrate that maximum theoretical emissions from all non-CTG and

unregulated CTG operations are below the applicable cutoff. In those

cases where one or more (but not all) emission units are exempt (as in

219.920(c), 219.940(c), 219.960(c), and 219.980(c)), records must be

submitted documenting that each such emission unit is exempt.

Illinois' major non-CTG VOC rules in Subparts PP, QQ, RR, and TT

require applicable sources to comply with one of the following: (1)

Emission capture and control techniques which achieve an overall

reduction in uncontrolled VOC emissions of at least 81 percent from

each emission unit, or (2) For coating lines, the daily-weighted

average VOC content shall not exceed 3.5 pounds (lbs) VOC per gallon

(gal) of coating, or (3) an equivalent alternative control plan which

has been approved by the Agency and the USEPA in a federally

enforceable permit or as a SIP revision.

On December 17, 1992, (57 FR 59928) USEPA approved Illinois'

existing Operating Permit program as satisfying USEPA's June 28, 1989,

(54 FR 27274) five criteria regarding Federal enforceability. One of

the criteria is that permits may not be issued that make less stringent

any SIP limitation or requirement. USEPA's December 17, 1992, notice

states that operating permits issued by Illinois in conformance with

the five criteria (including the prohibition against States issuing

operating permit limits less stringent than the regulations in the SIP)

discussed in this notice will be considered federally enforceable. This

notice also states Illinois' operating permit program allows USEPA to

deem an operating permit not ``federally enforceable.''

On July 21, 1992, USEPA promulgated a new part 70 of chapter 1 of

title 40 of the Code of Federal Regulations. See 57 FR 32250. Part 70

contains regulations, required by Title V of the Act, that specify the

minimum elements of State operating permit programs. Part 70 is,

therefore, an appropriate basis for evaluating the acceptability of

Illinois' use of federally enforceable State operating permits (FESOP)

and Title V permits in its VOC rules.

Section 70.6(a)(1)(iii) states:

If an applicable implementation plan allows a determination of

an alternative emission limit at a part 70 source, equivalent to

that contained in the plan, to be made in the permit issuance,

renewal, or significant modification process, and the State elects

to use such process, any permit containing such equivalency

determination shall contain provisions to ensure that any resulting

emissions limit has been demonstrated to be quantifiable,

accountable, enforceable, and based on replicable procedures.

USEPA has therefore determined that the option for alternative

control plans, submitted on October 21, 1993 (with a revision submitted

on May 26, 1995), in subsections 219.926(c), 219.946(b), 219.966(b),

and 219.986(c), is approvable because it requires that any alternative

must be equivalent to the underlying SIP requirements (consistent with

part 70) and USEPA can deem a permit containing an alternative control

plan to be not ``federally enforceable'' if it determines that a permit

is not quantifiable or practically enforceable or a permit relaxes the

SIP. The underlying SIP, to which any equivalent alternative control

plan would be compared, has federally enforceable control requirements,

test methods, and recordkeeping and reporting requirements. In

addition, a September 13, 1995, letter from IEPA contains the specific

procedures for USEPA review and approval.

Subsections 219.620(a)(1)(B), 219.920(a)(2), 219.940(a)(2),

219.960(a)(2), and 219.980(a)(2) allow sources to avoid the

applicability of specified major non-CTG rules, provided a source has a

federally enforceable permit that limits emissions to below the

applicable cutoff through capacity or production limitations. These

subsections are approvable because USEPA can deem a permit to be ``not

federally enforceable'' in a letter to IEPA. Upon issuance of such a

letter, the source is no longer protected by the permit referenced in

the subject subsections. The source would then be subject to the SIP

requirements if its emissions exceed the applicable cutoff. This is

consistent with USEPA's December 17, 1992, approval of Illinois'

operating permit program which states: ``In approving the State

operating program USEPA is determining that Illinois' program allows

USEPA to deem an operating permit not `federally enforceable' for

purposes of limiting potential to emit and to offset creditability.''

(57 FR 59928, 59930). IEPA has agreed to this approach and specified

the applicable procedures in a March 26, 1993, letter to USEPA. In

summary, these subsections are approvable because USEPA can invalidate

the protection provided by an operating permit by deeming such

operating permit to be ``not federally enforceable'' in a letter to

IEPA.

Final Rulemaking Action

For the reasons discussed above, USEPA approves the major non-CTG

VOC RACT rules in Part 219 (for the East St. Louis ozone nonattainment

area) that were submitted on October 21, 1993 and May 26, 1995.

Because USEPA considers this action noncontroversial and routine,

we are approving it without prior proposal. The action will become

effective on July 8, 1996. However, if we receive adverse comments by

June 6, 1996, then USEPA will publish a document that withdraws this

final action. If no request for a public hearing has been received,

USEPA will address the public comments received in a new final rule on

the requested SIP revision based on

[[Page 20457]]

the proposed rule located in the proposed rules section of this Federal

Register. If a public hearing is requested, USEPA will publish a

document announcing a public hearing and reopening the public comment

period until 30 days after the public hearing. At the conclusion of

this additional public comment period, USEPA will publish a final rule

responding to the public comments received and announcing final action.

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, former Acting Assistant

Administrator for the Office of Air and Radiation. A July 10, 1995,

memorandum from Mary D. Nichols, Assistant Administrator for the Office

of Air and Radiation explains that the authority to approve/disapprove

SIPs has been delegated to the Regional Administrators for Table 3

actions. 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.

Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded

Mandates Act'') (signed into law on March 22, 1995) requires that the

USEPA prepare a budgetary impact statement before promulgating a rule

that includes a Federal mandate that may result in expenditure by

State, local, and tribal governments, in aggregate, or by the private

sector, of $100 million or more in any one year. Section 203 requires

the USEPA to establish a plan for obtaining input from and informing,

educating, and advising any small governments that may be significantly

or uniquely affected by the rule.

Under section 205 of the Unfunded Mandates Act, the USEPA must

identify and consider a reasonable number of regulatory alternatives

before promulgating a rule for which a budgetary impact statement must

be prepared. The USEPA must select from those alternatives the least

costly, most cost-effective, or least burdensome alternative that

achieves the objectives of the rule, unless the USEPA explains why this

alternative is not selected or the selection of this alternative is

inconsistent with law.

Because this final rule is estimated to result in the expenditure

by State, local, and tribal governments or the private sector of less

then $100 million in any one year, the USEPA has not prepared a

budgetary impact statement or specifically addressed the selection of

the least costly, most cost-effective, or least burdensome alternative.

Because small governments will not be significantly or uniquely

affected by this rule, the USEPA is not required to develop a plan with

regard to small governments. This rule only approves the incorporation

of existing state rules into the SIP. It imposes no additional

requirements.

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 July 8, 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 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Reporting and recordkeeping requirements.

Dated: February 7, 1996.

David A. Ullrich,

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)(127) to read

as follows:

Sec. 52.720 Identification of plan.

* * * * *

(c) * * *

(127) On October 21, 1993, and May 26, 1995, Illinois submitted

volatile organic compound control regulations for incorporation in the

Illinois State Implementation Plan for ozone.

(i) Incorporation by reference.

(A) Illinois Administrative Code Title 35: Environmental

Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control

Board, Subchapter c: Emissions Standards and Limitations for Stationary

Sources, Part 219: Organic Material Emissions Standards and Limitations

for Metro East Area, Subpart PP: 219.920, 219.923, 219.927, 219.928;

Subpart QQ: 219.940, 219.943, 219.947, 219.948; Subpart RR: 219.960,

219.963, 219.967, 219.968; Subpart TT: 219.980, 219.983, 219.987,

219.988; and Subpart UU. These Subparts were adopted on September 9,

1993, Amended at 17 Ill. Reg. 16918, effective September 27, 1993.

(B) Illinois Administrative Code Title 35: Environmental

Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control

Board, Subchapter c: Emissions Standards and Limitations for Stationary

Sources, Part 219: Organic Material Emissions Standards and Limitations

for Metro East Area, Subpart PP: 219.926; Subpart QQ: 219.946; Subpart

RR: 219.966; and Subpart TT: 219.986. These Subparts were adopted on

April 20, 1995, Amended at 19 Ill. Reg. 6958, effective May 9, 1995.

[FR Doc. 96-11202 Filed 5-6-96; 8:45 am]

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