[Federal Register Volume 61, Number 204 (Monday, October 21, 1996)]
[Rules and Regulations]
[Pages 54556-54560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26571]
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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.
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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.
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\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.
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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.
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\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).
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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.
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\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.
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(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.
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\4\ See footnote 3.
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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]
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