Approval and Promulgation of Implementation Plans; Illinois

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IL183-1a; FRL-6360-1]

Approval and Promulgation of Implementation Plans; Illinois

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA is approving a site specific revision to the

Illinois State Implementation Plan (SIP) for volatile organic materials

(VOM). This revision is an exemption from the otherwise applicable SIP

requirements for W.R. Grace, a manufacturer of container sealants,

lubricant fluids, and concrete additives at 6050 West 51st Street,

Chicago, Cook County, Illinois. The State's requested revision was

submitted to USEPA on September 17, 1998. In the proposed rules section

of this Federal Register, the USEPA is proposing approval of, and

soliciting comments on, this approval. If adverse written comments are

received on this action, the USEPA will withdraw this direct final rule

and address the comments received in response to this action in a final

rule on the related proposed rule. A second public comment period will

not be held. Parties interested in commenting on this action should do

so at this time. This approval makes the State's rule federally

enforceable.

DATES: This rule is effective on August 17, 1999, unless USEPA receives

adverse written comments by July 19, 1999. If adverse comment is

received, USEPA will publish a timely withdrawal of the rule in the

Federal Register and inform the public that the rule will not take

effect.

ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief,

Regulation Development Section, Air Programs Branch (AR-18J), U.S.

Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,

Illinois 60604.

Copies of the plan and USEPA's analysis are available for

inspection at the U.S. Environmental Protection Agency, Region 5, Air

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

60604. (Please telephone Fayette Bright at (312) 886-6069 before

visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT: Fayette Bright, Environmental

Protection Specialist, Regulation Development Section, Air Programs

Branch (AR-18J), USEPA, Region 5, Chicago, Illinois 60604, (312) 886-

6069.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is USEPA taking?

II. What is a SIP?

III. Why is USEPA taking this action?

IV. What are the Clean Air Act (CAA) requirements?

V. Does this source comply with CAA RACT requirements?

VI. Summary of SIP revision

a. Regulatory Background

b. USEPA's Review of this Site Specific SIP Revision Request

VII. What changes will this Federal action make?

VIII. Administrative Requirements

A. Executive Order 12866

B. Executive Order 12875

C. Executive Order 13045

D. Executive Order 13084

E. Regulatory Flexibility Act

F. Unfunded Mandates

G. Submission to Congress and the Comptroller

H. Petitions for Judicial Review

I. What Action Is USEPA Taking?

USEPA is approving a SIP revision for the W.R. Grace and Company

facility at 6050 West 51st Street, Chicago, Illinois. This SIP revision

approves new Section 218.940(h), which has been added to Subpart QQ of

Part 218. Section 218.940(h) waives the control requirements that would

otherwise apply to the solvation mixers at W.R. Grace.

II. What Is a SIP?

Section 110 of the CAA requires states to develop regulations and

control strategies to address air pollution within their jurisdictions.

They must submit these to USEPA for approval and incorporation into the

Federally enforceable SIP. To be approved they must meet Federal

requirements and not adversely impact attainment of the National

Ambient Air Quality Standards (NAAQS) established by USEPA.

III. Why Is USEPA Taking This Action?

a. USEPA is approving this action because W.R. Grace Company has

demonstrated the infeasibility of complying with the control

regulations of Subpart QQ, which call for an overall VOM reduction of

at least 81 percent.

b. As required by Section 182 of the Clean Air Act (42 U.S.C.

7511a), sources in ozone nonattainment areas classified as severe must

have reasonably available control technology (RACT) if they have the

potential to emit 25 tons of VOM annually (VOM is the same as volatile

organic compounds).

c. The information gathered from an explosion investigation, and

current state of the art technology that detects solvent emission

peaks, suggests no catalytic oxidizer may be designed for control of

emissions from W.R. Grace's mixer loading operations that will be free

from risk of another explosion.

d. W.R. Grace's consultant, Versar, determined through the control

device investigations that there is no reasonably available control

technology for the solvent mixers at Grace's facility. No add-on

control was found to be technically and economically feasible.

IV. What Are the CAA RACT Requirements?

a. Section 172 of the CAA contains general requirements for States

to implement RACT in areas that do not meet the NAAQS.

b. Section 182(b)(2) of the CAA contains more specific requirements

for moderate and above ozone nonattainment areas.

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c. Chicago is classified as a severe nonattainment area for ozone,

VOM is an ozone precursor.

V. Does This Source Comply With CAA RACT Requirements?

Yes, due to the possibility of another explosion and other economic

infeasibility issues, RACT for W.R. Grace's solvent mixers does not

require additional emission control equipment.

VI. Summary of SIP Revision

This SIP revision adds the following exemption, in Section

218.940(h), to Subpart QQ of Part 218 for W.R. Grace's solvation

mixers.

Section 218.940(h)--The control requirements of this Subpart shall

not apply to the solvation mixers at the container sealant

manufacturing facility located at 6050 West 51st Street in Chicago,

Illinois.

Grace's Chicago facility was established in 1940, and currently

employs approximately 100 people. The facility manufactures container

sealants, lubricant fluids, and concrete additives. The container

sealants are a rubbery coating material used by beverage, food, and

other can coaters to form a seal between the ends of cans to the can

body within the area where the two pieces are crimped together. Grace's

Chicago plant produces both solvent-based and water-based container

sealants.

a. Regulatory Background

In 1994, the Illinois Pollution Control Board promulgated certain

amendments to 35 Ill. Adm. Code Part 218 that require RACT, for sources

in the Chicago ozone nonattainment area, with the potential to emit 25

tons of VOM annually, as mandated by Section 182 of the Clean Air Act.

Emissions from W.R. Grace's mixers occur in a complex and variable

manner due to the batch nature of the process. On June 14, 1996, W.R.

Grace's incinerator exploded resulting in a fire in the solvent mixing

area of the facility. The explosion significantly damaged the oxidizer

and the associated ventilation system. Information gathered in the

investigation of the explosion suggests that no catalytic oxidizer is

currently available that will control the emissions from W.R. Grace's

mixer loading operations and that will be free from the risk of another

explosion.

b. USEPA's Review of This Site Specific SIP Revision Request

This exemption was reviewed on the merits of W.R. Grace's RACT

analysis, primarily based upon the uncertainties involved in the chance

of another explosion. This site specific SIP revision request is

technically justified.

VII. What Changes Will This Federal Action Make?

It exempts W.R. Grace's solvation mixers from the control

requirements of Subpart QQ of Part 218.

USEPA is publishing this action without prior proposal because

USEPA views this as a noncontroversial revision and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, USEPA is proposing to approve the State Plan

should adverse written comments be filed. This action will be effective

without further notice unless USEPA receives relevant adverse written

comment by July 19, 1999. Should USEPA receive such comments, it will

publish a final rule informing the public that this action will not

take effect. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective on August 17, 1999.

VIII. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected and other representatives of

Indian tribal governments ``to provide meaningful and timely input in

the development of regulatory policies on matters that significantly or

uniquely affect their communities.'' Today's rule does not

significantly or uniquely affect the communities of Indian tribal

governments. Accordingly, the requirements of section 3(b) of E.O.

13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment

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rulemaking requirements unless the agency certifies that the rule will

not have a significant economic impact on a substantial number of small

entities. Small entities include small businesses, small not-for-profit

enterprises, and small governmental jurisdictions. This final rule will

not have a significant impact on a substantial number of small entities

because 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 create any new requirements, I certify

that this action will not have a significant economic impact on a

substantial number of small entities. Moreover, due to the nature of

the Federal-State relationship under the Clean Air Act, preparation of

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co., v.

U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

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

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. Section 804, however, exempts from section 801 the

following types of rules: rules of particular applicability; rules

relating to agency management or personnel; and rules of agency

organization, procedure, or practice that do not substantially affect

the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA

is not required to submit a rule report regarding this rulemaking

action under section 801 because this is a rule of particular

applicability.

H. Petitions for Judicial Review

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 August 17, 1999. 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, Administrative practice and procedure,

Air pollution control, Hydrocarbons, Incorporation by reference,

Intergovernmental relations, Ozone, Reporting and recordkeeping

requirements, Volatile organic compounds.

Dated: June 7, 1999.

Francis X. Lyons,

Regional Administrator, Region 5.

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 et seq.

Subpart O--Illinois

2. Section 52.720 is amended by adding paragraph (c)(149) to read

as follows:

Sec. 52.720 Identification of plan.

* * * * *

(c) * * *

(149) On September 17, 1998, the Illinois Environmental Protection

Agency submitted a site specific State Implementation Plan revision

request for W.R. Grace and Company's facility, which manufactures

container sealants, lubricant fluids, and concrete additives, and is

located at 6050 West 51st Street in Chicago, Illinois (Cook County).

This rule revision is contained in R98-16, the July 8, 1998, Opinion

and Order of the Illinois Pollution Control Board, and consists of new

Section 218.940(h), which exempts W.R. Grace's facility from the

control requirements in 35 Illinois Administrative Code Part 218

Subpart QQ.

(i) Incorporation by reference.

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 Emission Standards and Limitations

for the Chicago Area, Subpart QQ: Miscellaneous Formulation

Manufacturing Processes, Section 218.940 Applicability, paragraph (h)

which was amended in R98-16 at 22 Ill. Reg. 14282, effective July 16,

1998.

[FR Doc. 99-15531 Filed 6-17-99; 8:45 am]

BILLING CODE 6560-50-P