[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36060-36063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17216]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL101-1-6689a; FRL-5249-9]
Approval and Promulgation of Implementation Plans; Illinois
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
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SUMMARY: The USEPA is approving the Particulate Matter contingency
measures State implementation plan (SIP) revisions submitted by the
State of Illinois on July 29, 1994. The USEPA made a finding of
completeness in a letter dated December 9, 1994. This submittal
addresses the Federal Clean Air Act requirement to submit contingency
measures for particulate matter with an aerodynamic diameter less than
or equal to a nominal 10 micrometers (PM) for the areas designated as
nonattainment for the PM National Ambient Air Quality Standards
(NAAQS). In the proposed rules section of this Federal Register, USEPA
is proposing approval of and soliciting public comment on this
requested SIP revision. If adverse comments are received on this
action, USEPA will withdraw this final rule and address the comments
received in response to this action in a final rule on the related
proposed rule which is being published in the proposed rules section of
this Federal Register. A second public comment period will not be held.
Parties interested in commenting on this action should do so at this
time.
DATES: This final rule is effective September 11, 1995 unless notice is
received by August 14, 1995 that someone wishes to submit adverse
comments. If the effective date is delayed, timely notice will be
published in the Federal Register.
ADDRESSES: Copies of the State's submittal and other information are
available for inspection at the following address: (It is recommended
that you telephone David Pohlman at (312) 886-3299 before visiting the
Region 5 Office.) U.S. Environmental Protection Agency, Region 5, Air
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois
60604.
Written comments can be mailed to: J. Elmer Bortzer, Chief,
Regulation Development Section (AR-18J), Regulation Development Branch,
Air and Radiation Division, U.S. Environmental Protection Agency, 77
West Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: David Pohlman (312) 886-3299.
SUPPLEMENTARY INFORMATION:
I. Background
The four Illinois PM nonattainment areas are: (1) Lyons Township in
Cook County; (2) The area in Cook County bounded on the north by 79th
Street, on the west by interstate 57 between Sibley Boulevard and
Interstate 94 and by Interstate 94 between Interstate 57 and 79th
Street, on the south by Sibley Boulevard, and on the east by the
Illinois/Indiana State line; (3) Oglesby, LaSalle County including the
following townships ranges and sections: T32N, R1E, S1; T32N, R2E, S6;
T33N, R1E, S24; T33N, R1E, S25; T33N, R2E, S30; T33N, R2E, S31; and
T33N, R1E, S36; and (4) Granite City Township and Nameoki Township in
Madison County. These nonattainment areas will be referred to in this
notice as the McCook, Lake Calumet, LaSalle, and Granite City
nonattainment areas, respectively. These areas were designated
nonattainment for PM and classified as moderate under sections
107(d)(4)(B) and 188(a) of the Clean Air Act, upon enactment of the
Clean Air Act Amendments of 1990. See 56 FR 56694 (Nov. 6, 1991); 40
CFR 81.314. The air quality planning requirements for moderate PM
nonattainment areas are set out in subparts 1 and 4 of part D, Title I
of the Clean Air Act. The USEPA has issued a ``General Preamble''
describing USEPA's preliminary views on how USEPA intends to review
SIPs and SIP revisions submitted under Title I of the Clean Air Act,
including those State submittals containing moderate PM nonattainment
area SIP requirements (see generally 57 FR 13498 (April 16, 1992) and
57 FR 18070 (April 28, 1992)). Because USEPA is describing its
interpretations here only in broad terms, the reader should refer to
the General Preamble for a more detailed discussion of the
interpretations of Title I advanced in this action and the supporting
rationale.
The 1990 Amendments to the Clean Air Act made significant changes
to the Clean Air Act. References herein are to the Clean Air Act, as
amended (the Act). The Clean Air Act is codified, as
[[Page 36061]]
amended, in the U.S. Code at 42 U.S.C. Sections 7401, et seq. Subpart 1
contains provisions applicable to nonattainment areas generally and
Subpart 4 contains provisions specifically applicable to PM
nonattainment areas. At times, Subpart 1 and Subpart 4 overlap or
conflict. The USEPA has attempted to clarify the relationship among
these provisions in the ``General Preamble'' and, as appropriate, in
today's action and supporting information.
Those States containing initial moderate PM nonattainment areas
were required to submit, among other things, several provisions by
November 15, 1991. These provisions are described in USEPA's rulemaking
on the LaSalle moderate PM nonattainment area SIP (58 FR 54291, October
21, 1993) and in the rulemaking on the McCook, Lake Calumet, and
Granite City moderate PM nonattainment areas SIP (59 FR 59653, November
18, 1994). Such States were also required to submit contingency
measures by November 15, 1993 (see 57 FR 13543). These measures must
become effective, without further action by the State or USEPA, upon a
determination by USEPA that the area has failed to achieve reasonable
further progress (RFP) or to attain the PM NAAQS by the applicable
statutory deadline. See section 172(c)(9) and 57 FR 13510-13512 and
13543-13544.
II. Analysis of State Submittal
Section 110(k) of the Act sets out provisions governing USEPA's
review of SIP submittals (see 57 FR 13565-13566). The Illinois
Environmental Protection Agency (IEPA) submitted a requested SIP
revision to the USEPA with a letter dated July 29, 1994. The submittal
contains revisions to Title 35 of the Illinois Administrative Code
(IAC), Parts 106 and 212. Specifically, the following sections are
added:
Subpart J: Culpability Determinations
Section 106.930 Applicability
Section 106.931 Petition for Review
Section 106.932 Response and Reply
Section 106.933 Notice and Hearing
Section 106.934 Opinion and Order
Subpart U: Additional Control Measures
Section 212.700 Applicability
Section 212.701 Contingency Measure Plans, Submittal and Compliance
Date
Section 212.702 Determination of Contributing Sources
Section 212.703 Contingency Measure Plan Elements
Section 212.704 Implementation
Section 212.705 Alternative Implementation
A. Procedural Requirements
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
USEPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing. Section 110(l) of the Act similarly provides that each
revision to an implementation plan submitted by a State under the Act
must be adopted by such State after reasonable notice and public
hearing. Also section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
The USEPA also must determine whether a submittal is complete and
therefore warrants further USEPA review and action (see Section
110(k)(1) and 57 FR 13565). The USEPA's completeness criteria for SIP
submittals are set out at 40 CFR part 51, appendix V. The USEPA
attempts to make completeness determinations within 60 days of
receiving a submission. However, a submittal is deemed complete by
operation of law if a completeness determination is not made by USEPA
six months after receipt of the submission.
The State of Illinois, after providing adequate notice, held a
public hearing on February 22, 1994, regarding the PM contingency
measures. Following the public hearing, the contingency measure rules
were adopted by the Illinois Pollution Control Board on June 23, 1994,
and published in the Illinois Register on July 22, 1994. The State
rules became effective on July 11, 1994.
The submittal was reviewed by USEPA to determine completeness in
accordance with the completeness criteria set out at 40 CFR part 51,
appendix V. The submittal was found to be complete and a letter dated
December 9, 1994, was sent to the State indicating the completeness of
the submittals and the next steps to be taken in the review process.
B. Contingency Measures
The Clean Air Act requires States containing PM nonattainment areas
to adopt contingency measures that will take effect without further
action by the State or USEPA upon a determination by USEPA that an area
failed to make RFP or to timely attain the applicable NAAQS, as
described in section 172(c)(9). See generally 57 FR 13510-13512 and
13543-13544. Pursuant to section 172(b), the Administrator has
established a schedule providing that states containing initial
moderate PM nonattainment areas shall submit SIP revisions containing
contingency measures no later than November 15, 1993. (See 57 FR 13543,
n. 3.)
The General Preamble further explains that contingency measures for
PM should consist of other available control measures, beyond those
necessary to meet the core moderate area control requirement to
implement reasonably available control measures (see Clean Air Act
sections 172(c)(1) and 189(a)(1)(C)). Based on the statutory structure,
USEPA believes that contingency measures must, at a minimum, provide
for continued progress toward the attainment goal during the interim
period between the determination that the SIP has failed to achieve
RFP/provide for timely attainment of the NAAQS and the additional
formal air quality planning following the determination (57 FR 13511).
Section 172(c)(9) of the Act specifies that contingency measures
shall ``take effect * * * without further action by the State, or the
[USEPA] Administrator.'' USEPA has interpreted this requirement (in the
General Preamble at 57 FR 13512) to mean that no further rulemaking
activities by the State or USEPA would be needed to implement the
contingency measures. In general, USEPA expects all actions needed to
affect full implementation of the measures to occur within 60 days
after USEPA notifies the State of its failure to attain the standard or
make RFP.
The USEPA recognizes that certain actions, such as notification of
sources, modification of permits, etc., may be needed before some
measures could be implemented. However, States must show that their
contingency measures can be implemented with minimal further
administrative action on their part and with no additional rulemaking
action such as public hearing or legislative review.
The Illinois PM contingency measure rules require sources in PM
nonattainment areas with actual annual source-wide emissions of PM of
at least 15 tons per year to submit, by November 15, 1994, two levels
of contingency measure plans. The Level I contingency plans are to
contain measures that would reduce total annual source-wide fugitive
emissions of PM by at least 15 percent. The Level II plans are to
contain measures to reduce fugitive PM emissions by 25%. The rules
require that these plans become Federally enforceable permit
conditions.
Following a monitored exceedance of the 24 hour PM NAAQS, IEPA will
determine the source or sources which
[[Page 36062]]
are likely to have contributed to the exceedance. Depending on the
magnitude of the monitored exceedance, IEPA will require culpable
sources to implement either Level I or Level II contingency plans
within 90 days.
Upon a finding by USEPA that an area has failed to attain the PM
NAAQS, all sources in that PM nonattainment area subject to the rules
would be required to implement Level II measures within 60 days.
C. Enforceability Issues
All measures and other elements in the SIP must be enforceable by
the State and USEPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR
13556). The USEPA criteria addressing the enforceability of SIPs and
SIP revisions were stated in a September 23, 1987 memorandum (with
attachments) from J. Craig Potter, Assistant Administrator for Air and
Radiation, et al. (see 57 FR 13541). State implementation plan
provisions also must contain a program to provide for enforcement of
control measures and other elements in the SIP [see section
110(a)(2)(C)].
The specific measures contained in the Illinois contingency plan
are addressed above. The Illinois regulations, as included in the SIP,
are legally enforceable by IEPA. Also, the specific Level I and Level
II contingency plans will be enforceable by IEPA as operating permit
conditions. Further, after culpable sources are determined the State
will revise operating permits to include additional control measures
and these Federally enforceable operating permits will be submitted to
USEPA. The USEPA believes that the State's existing air enforcement
program will be adequate to enforce PM contingency plans.
III. Final Action
The USEPA approves Illinois' PM contingency measure rules,
submitted by IEPA on July 29, 1994. This submittal addressed PM
contingency measure plans that were due on November 15, 1993. The State
rules require two levels of contingency measures which would be
triggered either by a monitored exceedance of the PM NAAQS or by a
finding by USEPA that an area has failed to attain the PM NAAQS.
Culpable sources would be determined, the State would revise operating
permits to include additional control measures, and these Federally
enforceable operating permits would be submitted to USEPA.
The USEPA is publishing this action without prior proposal because
USEPA views this action as a noncontroversial revision and anticipates
no adverse comments. However, USEPA is publishing a separate document
in this Federal Register publication, which constitutes a ``proposed
approval'' of the requested SIP revision and clarifies that the
rulemaking will not be deemed final if timely adverse or critical
comments are filed. The ``direct final'' approval shall be effective on
September 11, 1995, unless USEPA receives adverse or critical comments
by August 14, 1995. If USEPA receives comments adverse to or critical
of the approval discussed above, USEPA will withdraw this approval
before its effective date by publishing a subsequent Federal Register
document which withdraws this final action. All public comments
received will then be addressed in a subsequent action. Please be aware
that USEPA will institute another comment period on this action only if
warranted by significant revisions to the rulemaking based on any
comments received in response to today's action. Any parties interested
in commenting on this action should do so at this time. If no such
comments are received, USEPA hereby advises the public that this action
will be effective on September 11, 1995.
This action has been classified as a Table 2 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, Acting Assistant Administrator for
Air and Radiation. 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
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the
USEPA must prepare a budgetary impact statement to accompany any
proposed or final rule that includes a Federal mandate that may result
in estimated costs to State, local, or tribal governments in the
aggregate; or to the private sector, of $100 million or more. Under
Section 205, the USEPA 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 the USEPA
to establish a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule.
The USEPA has determined that the approval action promulgated today
does not include a Federal mandate that may result in estimated 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 Federal requirements. Accordingly, no
additional costs to State, local, or tribal governments, or the private
sector, result from this action.
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 September 11, 1995. 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)).
[[Page 36063]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter.
Dated: June 14, 1995.
David Kee,
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)(111) to read
as follows:
Sec. 52.720 Identification of plan.
* * * * *
(c) * * *
(111) On July 29, 1994, Illinois submitted regulations which
require adoption and implementation of particulate matter contingency
measures for Illinois' four moderate particulate matter nonattainment
areas. Sources in the nonattainment areas which emit at least 15 tons
of particulate matter must submit two levels of contingency measures,
which will then become Federally enforceable. Sources will be required
to implement the contingency measures if an exceedance of the National
Ambient Air Quality Standard for Particulate Matter is measured, or if
the United States Environmental Protection Agency finds that an area
has failed to attain the National Ambient Air Quality Standards.
(i) Incorporation by reference.
Illinois Administrative Code Title 35: Environmental Protection,
Subtitle B: Air Pollution, Chapter I: Pollution Control Board;
(A) Part 106 Hearings Pursuant to Specific Rules, Section 106.930--
Applicability, Section 106.931--Petition for Review, Section 106.932--
Response and Reply, Section 106.933--Notice and Hearing, Section
106.934--Opinion and Order. Amended at 18 Ill. Reg. 11579-11586.
Effective July 11, 1994.
(B) Part 212 Visible and Particulate Matter Emissions, Section
212.700--Applicability, Section 212.701--Contingency Measure Plans,
Submittal and Compliance Date, Section 212.702--Determination of
Contributing Sources, Section 212.703--Contingency Measure Plan
Elements, Section 212.704--Implementation, Section 212.705--Alternative
Implementation. Added at 18 Ill. Reg. 11587-11606. Effective July 11,
1994.
[FR Doc. 95-17216 Filed 7-12-95; 8:45 am]
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