Approval and Promulgation of Implementation Plans; Illinois

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IL18-9; FRL-5615-6]

Approval and Promulgation of Implementation Plans; Illinois

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On October 21, 1993, and March 4, 1994, the Illinois

Environmental Protection Agency (IEPA) submitted to the 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), as

amended in 1990. Specifically, these rules provide control requirements

for certain major sources not covered by a Control Technique Guideline

(CTG) document. These non-CTG VOC rules apply to sources in the Chicago

ozone nonattainment area which have the potential to emit 25 tons of

VOC per year. These rules provide an environmental benefit due to the

imposition of these additional control requirements. IEPA estimates

that these rules will result in VOC emission reductions, from 119

industrial plants, of 2.78 tons per day. On January 26, 1996, USEPA

issued a direct final approval of these non-CTG VOC rules. On the same

day (January 26, 1996) USEPA proposed approval and solicited public

comment on this requested revision to the Illinois State implementation

plan (SIP). This proposed rule established a 30-day public comment

period noting that if adverse comments were received regarding the

direct final rule USEPA would withdraw the direct final rule and

publish an additional final rule to address the public comments.

Adverse comments were received during the public comment period from

the Illinois Environmental Regulatory Group (IERG). USEPA withdrew the

direct final rule on March 25, 1996. This final rule addresses these

comments and finalizes the approval of these major non-CTG rules for

the Chicago area.

EFFECTIVE DATE: This final rule is effective November 20, 1996.

ADDRESSES: 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

On October 21, 1993, and March 4, 1994, IEPA submitted VOC rules

for the Chicago severe ozone nonattainment area 1. The rules

submitted on March 4, 1994, include both new rules and revisions to the

rules that were submitted on October 21, 1993. Those sections contained

in the March 4, 1994, submittal supersede the same sections in the

October 21, 1993, submittal. These rules were intended to satisfy, in

part, the major non-CTG reasonably available control technology (RACT)

requirements of section 182(b)(2). These ``catch-up'' rules lower the

applicability cutoff for major non-CTG sources from 100 tons VOC per

year to 25 tons VOC per year. This cutoff was lowered because section

182(d) of the amended Act defines a major source in a severe ozone

nonattainment area as a source that emits 25 tons or more of VOC per

year. However, the March 4, 1994, submittal does not include major non-

CTG regulations for the 11 source categories for which USEPA expected

to issue CTGs to satisfy section 183, but did not. As stated

previously, Illinois is required to adopt and submit RACT

[[Page 54557]]

regulations by November 1994 for these 11 source categories.

---------------------------------------------------------------------------

\1\ The Chicago severe ozone nonattainment area consists of

Cook, DuPage, Kane, Lake, McHenry, and Will Counties and Aux Sable

Township and Goose Lake Township in Grundy County and Oswego

Township in Kendall County.

---------------------------------------------------------------------------

On January 26, 1996, (61 FR 2423) the USEPA issued a direct final

approval (and proposed approval) of these non-CTG rules as a revision

to the Illinois SIP. (For further information refer to the January 26,

1996, final rule.) Because adverse comments were received by IERG

regarding the direct final rule, USEPA withdrew the direct final rule

on March 25, 1996 (61 FR 12030). This final rule addresses the comments

which were received during the public comment period and announces

USEPA's final action on the non-CTG rules for the Chicago ozone

nonattainment area.

The January 26, 1996, direct final rule incorrectly referred to

``Section 218.113--Compliance with Permit Conditions,'' based upon the

Illinois Pollution Control Board's January 6, 1994, Final Order.

However, the correct citation is Section 218.114, as indicated in the

Illinois Register (18 Ill. Reg. 1958).

IERG Comment and USEPA Response

IERG Comment

IERG's February 26, 1996, comment relates to provisions in

Illinois' VOC rules for major sources which allow them to avoid

reasonably available control technology (RACT) control requirements, to

which they would otherwise be subject, if they obtain a federally

enforceable permit that limits emissions to below the applicable cutoff

through capacity or production limitations. USEPA noted in the January

26, 1996 rulemaking that:

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. 61 FR

2423

In its comments, IERG stated that it found this language

``troublesome,'' as it appeared to indicate that USEPA could deem a

permit ``not federally enforceable'' at any time. IERG further

suggested that this approach was inconsistent with the framework

outlined in a March 26, 1993, letter to USEPA from Bharat Mathur, Chief

of IEPA's Bureau of Air. According to IERG, this letter, which USEPA

specifically referenced in the rulemaking, supports the position that

USEPA may only deem a provision of a permit ``not federally

enforceable'' 2 during the public notice and comment period.

---------------------------------------------------------------------------

\2\ ``Not federally enforceable'' in this context means that the

permit is not valid for purposes of establishing a federally

recognized limit below the applicable cutoff(s) (to avoid the

requirement of complying with RACT).

---------------------------------------------------------------------------

USEPA Response

The primary basis for USEPA approval of Illinois' provisions

allowing sources to avoid applicability by obtaining a federally

enforceable permit that limits emissions to below the applicable cutoff

through capacity or production restrictions is USEPA's December 17,

1992, (57 FR 59928) approval of Illinois' Operating Permit program.

This permit program was found to satisfy USEPA's five criteria for

approving a state operating permit program as part of the SIP. See 54

FR 27274, 27282 (June 28, 1989). The second of these criteria is that:

The SIP imposes a legal obligation that operating permit holders

adhere to the terms and limitations of such permits (or subsequent

revisions of the permit made in accordance with the approved

operating permit program) and provides that permits which do not

conform to the operating permit program requirements and the

requirements of EPA's underlying regulations may be deemed not

``federally enforceable'' by EPA. (54 FR 27282).

In its December 17, 1992, approval of Illinois' operating permit

program, USEPA stated that:

The latter part of the second approval criterion requires that

the SIP has provisions which allow USEPA to deem a permit not

``federally enforceable'' under certain conditions. In approving the

State operating permit 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. Such a determination will (1) be done

according to appropriate procedures, and (2) be based upon the

permit, permit approval procedures or permit requirements which do

not conform with the operating permit program requirements and the

requirements of USEPA's underlying regulations. Based on this

interpretation of Illinois program, USEPA finds that the second

criterion for approving an operating permit program has been met by

the State. (57 FR 59930).

The third (of USEPA's five) criterion is that:

The State operating permit program requires that all emissions

limitations, controls, and other requirements imposed by such

permits will be at least as stringent as any other applicable

limitations and requirements contained in the SIP or enforceable

under the SIP, and that the program not issue permits that waive, or

make less stringent, any limitations or requirements contained in or

issued pursuant to the SIP. * * * (54 FR 27282).

As stated in USEPA's December 17, 1992, final rule, since Section 39 of

the Illinois Environmental Protection Act requires that State-issued

operating permits must comport with all State regulations, which could

include the regulations adopted to implement the SIP, the State cannot

issue operating permits less stringent than the regulations in the SIP.

(57 FR 59930).

The fourth (of USEPA's five) criterion is that:

The limitations, controls, and requirements in the operating

permits are permanent, quantifiable, and otherwise enforceable as a

practical matter.

In its December 17, 1992, final rule, USEPA stated that it had reviewed

the Illinois operating program and was satisfied that it required the

State to issue permits which satisfy this criterion and added that:

If USEPA in the future determines that an individual permit

condition is not quantifiable or practically enforceable, it can

deem the permit not ``federally enforceable'' within the means of

the NSR regulations. The State's current practice and regulatory

provisions meet the fourth criterion for permit program approval.

(57 FR 59931)

As demonstrated by the above discussion, USEPA can deem a permit

not ``federally enforceable'' if it does not conform to the operating

permit program requirements and USEPA's underlying regulations. These

requirements include the need for the permit to be no less stringent

than the SIP and for the limitations in the permit to be quantifiable

and otherwise enforceable as a practical matter. It should be noted

that IEPA did not disagree with, during the comment period, USEPA's

statements in the January 26, 1996, final rule regarding USEPA's

ability to deem a permit to be ``not federally enforceable.''

In the January 26, 1996, direct final approval of Illinois' non-CTG

rules, USEPA referenced the March 26, 1993, letter to it from IEPA's

Bharat Mathur. This letter described IEPA's procedures for coordinating

with USEPA before issuing a federally enforceable operating permit

(FESOP) containing operating/production restrictions which limit a

source's emissions to below an applicability cutoff (thereby allowing

the source to avoid the rule's control requirements). More

specifically, IEPA acknowledges in this letter: (1) its intent to

provide USEPA with copies of subject draft permits, and (2) USEPA's

ability to deem a permit to be ``not federally enforceable.''

IERG is mistaken in interpreting this letter to mean that USEPA can

only make such a determination with a draft permit during the public

comment period. Rather, this letter merely

[[Page 54558]]

acknowledges IEPA's intent to submit these draft permits to USEPA at

the beginning of Illinois' public notice and comment period and USEPA's

ability to deem a permit to be ``not federally enforceable'' (and

subject to the otherwise applicable SIP requirements). IERG's position,

that USEPA can only take action on a draft permit, means that under no

circumstances could USEPA deem an issued (as opposed to draft) permit

``not federally enforceable.'' IERG's objections to USEPA's ability to

deem State operating permits ``not federally enforceable'' are not

supported.

First, neither USEPA's June 28, 1989, criteria nor the Agency's

December 17, 1992, approval of Illinois's FESOP rule suggest that a

determination by USEPA that a permit is ``not federally enforceable''

must be made within the public comment period--or within any particular

time.

It should also be noted that IERG has not objected to USEPA's

potential actions on draft permits during the comment period; its

concern is solely with the timing of USEPA's action, and the potential

uncertainty to affected facilities. While USEPA understands IERG's

concerns, IERG should be aware that its suggested constraint is

unreasonable as a practical matter: USEPA simply does not have the

resources to review in the requisite detail each submitted permit

within the relatively short (30 days) time period provided under

Illinois' rules. There also may be facts which are not known/existent

at the time of State draft permit submission, which later come to the

Agency's attention, and merit a negative determination.

Finally, USEPA's June 28, 1989, criteria for an approvable FESOP

program consistently refers to USEPA action on permits, not draft

permits, reflecting USEPA's intention to act on issued permits. In

fact, one obvious problem with reviewing a State permit in draft form

is that it may be modified in response to public comments received

during the comment period. Thus, if USEPA were to review only draft

permits, it might not review significant changes that are ultimately

incorporated into the actual, issued permits.

Nonetheless, USEPA will make every attempt to comment during the

public notice and comment period. See, also, Ohio Federally Enforceable

State Operating Permit (FESOP) Program, at 59 FR 53586 (Final Rule)

(October 25, 1994) and 60 FR 55200 (October 30, 1995). USEPA's ability

to do so, of course, is limited by such events as when (relative to the

comment period) the draft permit is received, whether it is flagged as

a potential ``federally enforceable'' permit, intended to limit

emissions below the applicable cutoff to allow the source to avoid

RACT, and the number of such draft permits that are submitted at or

about the same time. Furthermore, each permittee is (or should be)

typically informed by IEPA that USEPA's review and concurrence is

required; and that a confirmatory letter from USEPA must be sent in

order for the source to ensure that it will remain subject to the FESOP

limits, and exempt from the otherwise applicable RACT emission limits.

USEPA will send such a letter to IEPA in those cases in which the USEPA

determines that the permit has been found to meet USEPA's June 28,

1989, criteria, provided that the submitted permit has been adequately

identified (``flagged'') by IEPA as a FESOP intended to allow a source

to avoid Illinois' VOC RACT control requirements by limiting its VOC

emissions to below the applicable cutoff through capacity or production

limitations.

In summary, although USEPA does have the legal authority to deem an

operating permit ``not federally enforceable'' at any time, it will

attempt to complete this determination (for those permits in which the

source seeks to avoid RACT and are flagged as such by IEPA) during the

comment period; or if not, as expeditiously as practicable thereafter.

Furthermore, there is no reason for any uncertainty on the part of an

affected facility as to the status of its permit. Permittees have the

ability, at any time, to contact EPA's regional office to determine the

status of the federal permit review.

Final Rulemaking Action

For the reasons discussed in the January 26, 1996, (61 FR 2423)

direct final approval, and as clarified by the above response to IERG's

comment, USEPA approves the major non-CTG VOC RACT rules (for the

Chicago ozone nonattainment area) that were submitted on October 21,

1993, (and not replaced, or repealed, by the rules submitted on March

4, 1994) and March 4, 1994.

On September 9, 1994, (59 FR 46562) USEPA approved a number of

Illinois' VOC regulations which replaced a large part of the Chicago

Federal Implementation Plan (FIP), which was promulgated June 29, 1990

(55 FR 26814) and codified at 40 CFR 52.741. This rule completes

approval of Illinois' VOC regulations which, in combination with the

rules approved on September 9, 1994, replace the Chicago FIP, as the

federally enforceable VOC rule, except as indicated below:

(1) In accordance with Sec. 218.101(b), all non-CTG FIP

requirements remaining in effect on October 11, 1994 3, remain in

effect (and are enforceable after the effective date of this SIP

revision) for the period prior to the effective date of this SIP

revision.

---------------------------------------------------------------------------

\3\ October 11, 1994, is the effective date of the September 9,

1994, Federal Register notice approving most of Illinois' VOC rules

for the Chicago ozone nonattainment area.

---------------------------------------------------------------------------

(2) Any source that received a stay, as indicated in

Sec. 218.103(a)(2), remains subject to the stay if still in effect, or

(if the stay is no longer in effect) the federally-promulgated or

federally-approved rule applicable to such source.

(3) In accordance with section 218.101(b), all FIP requirements in

effect prior to October 11, 1994 4, remain in effect (and are

enforceable after October 11, 1994) for the period prior to October 11,

1994.

---------------------------------------------------------------------------

\4\ See footnote 3.

---------------------------------------------------------------------------

As of the effective date of this final action, these rules are the

sole federally enforceable control strategy for sources of VOC located

in the Chicago area.

The action will become effective on November 20, 1996.

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.

Under Section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, USEPA must undertake various actions

in association with any proposed or final rule that includes a Federal

mandate that may result in estimated costs to state, local, or tribal

governments in the aggregrate; or to the private sector, of $100

million or more. This Federal action approves pre-existing

[[Page 54559]]

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 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, USEPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a major rule as defined by 5 U.S.C.

804(2).

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 December 20, 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 Sec. 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: September 9, 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)(102) to read

as follows:

Sec. 52.720 Identification of plan.

* * * * *

(c) * * *

(102) On October 21, 1993 and March 4, 1994, the State submitted

volatile organic compound control regulations for incorporation in the

Illinois State Implementation Plan for ozone.

(i) Incorporation by reference.

(A) Title 35: Environmental Protection, Subtitle B: Air Pollution,

Chapter I: Pollution Control Board, Subchapter c: Emission Standards

and Limitations for Stationary Sources, Part 211: Definitions and

General Provisions, Subpart B: Definitions, Sections 211.270, 211.1070,

211.2030, 211.2610, 211.3950, 211.4050, 211.4830, 211.4850, 211.4970,

211.5390, 211.5530, 211.6110, 211.6170, 211.6250, 211.6630, 211.6650,

211.6710, 211.6830, 211.7050. These sections were adopted on January 6,

1994, Amended at 18 Ill. Reg. 1253, and effective January 18, 1994.

(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 218: Organic Material Emissions Standards and Limitations

for the Chicago Area, Subpart PP: 218.927, 218.928; Subpart QQ:

218.947, 218.948; Subpart RR: 218.967, 218.968; Subpart TT: 218.987,

218.988; Subpart UU: 218.990. These sections were adopted on September

9, 1993, Amended at 17 Ill. Reg. 16636, effective September 27, 1993.

(C) 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 218: Organic Material Emissions Standards and Limitations

for the Chicago Area, Subpart A: 218.106, 218.108, 218.112, 218.114;

Subpart H: 218.402; Subpart Z: 218.602, 218.611; Subpart AA: 218.620,

218.623 (repealed); Subpart CC; Subpart DD; Subpart PP: 218.920,

218.926; Subpart QQ: 218.940, 218.946; Subpart RR: 218.960, 218.966;

Subpart TT: 218.980, 218.986; Subpart UU: 218.991. These sections were

adopted on January 6, 1994, Amended at 18 Ill. Reg. 1945, effective

January 24, 1994.

* * * * *

3. Section 52.741 is amended by revising paragraph (a)(2) to read

as follows:

Sec. 52.741 Control Strategy: Ozone control measures for Cook, DuPage,

Kane, Lake, McHenry or Will County.

(a) * * *

(2) Applicability. (i) Any source that received a stay, as

indicated in Sec. 218.103(a)(2), remains subject to the stay if still

in effect, or (if the stay is no longer in effect) the federally-

promulgated or federally-approved rule applicable to such source.

(ii)(A) Effective November 20, 1996 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 211: Definitions and General

Provisions, and Part 218: Organic Material Emission Standards and

Limitations for the Chicago Area replace the requirements of 40 CFR

52.741 Control strategy: Ozone control measures for Cook, DuPage, Kane,

Lake, McHenry and Will County as the federally enforceable control

measures in these counties for the major non-Control Technique

Guideline (CTG) sources in the Chicago area, previously subject to

paragraph u, v, w, or x because of the applicability criteria in these

paragraphs.

(B) In accordance with Section 218.101(b), for the major non-CTG

sources subject to paragraphs u, v, w, or x because of the

applicability criteria of those paragraphs, the requirements of

paragraphs u, v, w, and x, and the recordkeeping requirements in

paragraph y and any related parts of Sec. 52.741 necessary to implement

these paragraphs (including, but not limited to, those paragraphs

containing test methods and definitions), shall remain in effect and

are enforceable after November 20, 1996 for the period from July 30,

1990 until November 20, 1996.

[[Page 54560]]

(iii)(A) Except as provided in paragraphs (a)(2) (i) and (ii) of

this section, effective October 11, 1994, 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 211: Definitions and General

Provisions, and Part 218: Organic Material Emission Standards and

Limitations for the Chicago Area replace the requirements of this

Sec. 52.741 Control strategy: Ozone control measures for Cook, DuPage,

Kane, Lake, McHenry and Will County as the federally enforceable

control measures in these counties.

(B) In accordance with Sec. 218.101(b), the requirements of

Sec. 52.741 shall remain in effect and are enforceable after October

11, 1994, for the period from July 30, 1990, to October 11, 1994.

[FR Doc. 96-26571 Filed 10-18-96; 8:45 am]

BILLING CODE 6560-50-P