[Federal Register Volume 59, Number 189 (Friday, September 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24253]
[[Page Unknown]]
[Federal Register: September 30, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[IL001; FRL-5081-9]
Clean Air Act Proposed Interim Approval Of Operating Permits
Program; Illinois
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: The EPA proposes interim approval of the Operating Permits
Program submitted by Illinois for the purpose of complying with Federal
requirements which mandate that States develop, and submit to EPA,
programs for issuing operating permits to all major stationary sources,
and to certain other sources.
DATES: Comments on this proposed action must be received in writing by
October 31, 1994.
ADDRESSES: Comments should be addressed to Jennifer Drury-Buzecky at
the Region V address.
Copies of the State's submittal and other supporting information
used in developing the proposed interim approval are available for
inspection during normal business hours at the following location: EPA
Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois, 60604.
Please contact Jennifer Drury-Buzecky at (312) 886-3194 to arrange a
time if inspection of the submittal is desired.
FOR FURTHER INFORMATION CONTACT: Jennifer Drury-Buzecky, AR-18J, 77
West Jackson Boulevard, Chicago, Illinois, 60604, (312) 886-3194.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
As required under title V of the Clean Air Act (``the Act'') as
amended (1990), EPA has promulgated rules which define the minimum
elements of an approvable State operating permits program and the
corresponding standards and procedures by which the EPA will approve,
oversee, and withdraw approval of State operating permits programs (see
57 FR 32250 (July 21, 1992). These rules are codified at 40 Code of
Federal Regulations (CFR) part 70. Title V requires States to develop,
and submit to EPA, programs for issuing these operating permits to all
major stationary sources and to certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within 1 year after receiving the submittal. 40 CFR
70.4(e)(2), however, allows the Administrator to extend the review
period of a State's submittal if the State's submission is materially
altered during the one-year review period. This additional review
period may not extend beyond one year following receipt of the revised
submission. EPA received material changes to Illinois' submission on
April 18, 1994, and July 18, 1994. In addition, the State requested on
May 16, 1994, that EPA include the State's insignificant activities
regulations, currently undergoing rulemaking at the state level, in
EPA's final rulemaking on the State's submittal. 35 Illinois
Administrative Code 201 (35 IAC 201). Because these material changes
stopped EPA's final review clock, a final EPA action on the State's
submittal may not occur by November 15, 1994. EPA will act
expeditiously to promulgate a final notice on the State's revised
submission after the publication of this proposal and formal adoption
of all State rules.
The EPA's program review occurs pursuant to section 502 of the Act
and the part 70 regulations, which together outline criteria for
approval or disapproval. Where a program substantially, but not fully,
meets the requirements of part 70, EPA may grant the program interim
approval for a period of up to 2 years. If EPA has not fully approved a
program by 2 years after the November 15, 1993, date, or by the end of
an interim program, it must establish and implement a Federal program.
II. Proposed Action and Implications
A. Analysis of State Submission
The EPA is proposing to grant interim approval to the operating
permits program submitted by Illinois on November 15, 1993. While
Illinois' program substantially meets the requirements of 40 CFR part
70, certain deficiencies must be corrected in the State's submittal
before EPA can fully approve the State's submittal. This document will
outline the corrections necessary for full approval.
For more detailed information on the analysis of the State's
submission, please refer to the part 70 Operating Permits Program
Review Checklist and technical support document accompanying this
approval.
1. Support Materials
A letter from Jim Edgar, Governor of the State of Illinois, to
Administrator Carol Browner, accompanying the State's submittal, names
the Illinois Environmental Protection Agency (IEPA) as the state agency
responsible for the administration of Illinois' title V operating
permit program throughout the entire state. Since the State entitles
its title V operating permit program the ``Clean Air Act Permit Program
(CAAPP)'', CAAPP will be used throughout this document when referencing
the State's program.
Also included in the State's submittal is a narrative description
of the CAAPP summarizing how the State will meet the requirements of 40
CFR part 70 and a legal opinion fromRoland W. Burris, Attorney General
of the State of Illinois, certifying that the legal authority exists
for the State to administer and enforce the title V program. According
to the narrative and a specific request from the State referenced
above, the State intends to develop future regulations governing
insignificant activities. The State anticipates that these regulations
will be finalized by the time of EPA's final action on this submittal.
The narrative also describes the existing federally enforceable state
operating permit program (FESOP), previously approved by EPA, that the
State will utilize to allow sources to limit their potential to emit
through federally enforceable operating restrictions to avoid title V
requirements.
The Illinois CAAPP submittal contains all the elements required by
40 CFR 70.4(b). Although the State's submittal does not include an
Implementation Agreement, the State and EPA will soon develop an
implementation agreement that accounts for the implementation issues
unique to Illinois' CAAPP.
The majority of the State's program is found in section 39.5 of the
Illinois Environmental Protection Act. 415 ILCS 5/39.5. Additional
regulations are found in 35 IAC 270, 105, 106, 252, 253, and draft
versions of both 201 and 211.
2. Regulations and Program Implementation
a. Applicability
The Illinois program meets the requirements of 40 CFR 70.2 and 70.3
for applicability.
b. Permit Applications
The Illinois program substantially meets the requirements of 40 CFR
70.5 for permit applications.
One permit application issue will require a legislative amendment
before EPA can fully approve the State's program. The current State
legislative provision concerning source certification of applications,
415 ILCS 5/39.5(5)(e), does not require the responsible official
certifying a document to make a ``reasonable inquiry'' or that the
statement be based upon ``information and belief'' according to 40 CFR
70.5(d) and 70.6(c)(1). The State must amend this provision in its
legislation to ensure that certifications by responsible officials
comply with all Federal requirements, namely that the official has made
a reasonable inquiry and that the certification is based upon
information and belief. EPA is, therefore, proposing interim approval
until this deficiency is corrected.
Another potential deficiency in the State's program concerns
insignificant activities. Illinois is currently developing regulations
for insignificant activities in 35 IAC 201 and 211. The regulations
propose insignificant emission limits for hazardous air pollutants
(HAP), specific categories of insignificant activities or emission
levels of all regulated pollutants, and provisions to allow sources to
propose their own insignificant activities.
Insignificant activity thresholds which are considered to be
acceptable by EPA for Illinois' program would fall in the range of 1-2
tons per year for criteria pollutants and the de minimis levels
established under 112(g) or lower for HAPs. These insignificance levels
are appropriate for the State's program because of the 25 ton per year
major source threshold level established in the State's severe ozone
nonattainment areas, and because of the overall major source threshold
level for HAPs established at 10 tons per year of one HAP and 25 tons
per year of any combination of HAPs. Illinois' insignificant activity
regulations establish insignificance levels of no more than 1 lb/hr of
any non-HAP (approximately 4 tons per year) and no more than .1 lb/hr
of any HAP (approximately .4 tons per year) per emission unit. Because
Illinois' insignificant activity regulations fail to comply with EPA's
notion of acceptable thresholds, EPA could only propose interim
approval for the State's 201 and 211 regulations. If EPA's concerns are
addressed in the State's final regulations before final action on this
notice, then EPA can fully approve the State's insignificant
activities. Alternatively, if the State does not address EPA's concerns
before final action on this notice, then EPA's final action will
include an interim approval on this issue.
c. Permit Issuance, Renewal, Reopenings and Revisions
The Illinois program meets the requirements of 40 CFR 70.7(h) for
public participation and 40 CFR 70.7(e)(2) minor modifications. Two
interim approval issues exist, however, with respect to the State's
definition of administrative permit amendment. 415 ILCS 5/
39.5(13)(c)(vi) allows incorporation of revised limitations or other
requirements resulting from the application of an approved economic
incentives rule, a marketable permits rule or generic emissions trading
rule into a CAAPP permit through the administrative amendment
procedure. Since 40 CFR 70.7(d) does not allow the use of an
administrative permit amendment to accomplish incorporation of
emissions trades into a part 70 permit, the State's definition of
administrative amendment is one basis for the EPA's proposal to grant
interim approval of the State's program. The State must amend its
legislation to require the use of the significant modification
procedure to incorporate emission trades into a CAAPP permit before the
EPA can fully approve the State's definition of administrative
amendment.
The second interim approval issue is found in 415 ILCS 5/
39.5(13)(c)(v). The State's program allows incorporation of
requirements from preconstruction review permits authorized under an
EPA-approved preconstruction permit program into a CAAPP permit through
the administrative amendment procedure, provided that the permit meets
procedural and compliance requirements substantially equivalent to
those in the State's CAAPP permit issuance process (emphasis added).
The EPA encourages the use of the administrative amendment procedure to
incorporate preconstruction review permits into part 70 permits.
Nevertheless, 40 CFR 70.7(d)(1)(v) allows such incorporation only when
the State's preconstruction review program meets procedural and
compliance requirements substantially equivalent to the requirements of
40 CFR 70.7 and 70.8 that would be applicable to the change if it were
subject to review as a permit modification, and compliance requirements
substantially equivalent to those contained in 40 CFR 70.6. The EPA
interprets 40 CFR part 70 to require that the State's part 70
regulations or preconstruction permit program detail the actual
procedural and compliance requirements necessary to incorporate
preconstruction permits into part 70 permits.
For full approval of the State's program, the State would need to
develop regulations detailing the actual procedural and compliance
requirements necessary for incorporation of preconstruction permits
into part 70 permits. These regulations would need to supplement the
State's title V submittal or be submitted as a revision to the State's
preconstruction permit program state implementation plan.
d. Permit Content
Another major component of the State's program concerns the
contents of a CAAPP permit. The State's CAAPP substantially meets the
requirements of 40 CFR 70.6, including the requirements for operational
flexibility. A CAAPP permit will incorporate applicable requirements of
existing State Implementation Plans (SIP), as well as any future
applicable requirements promulgated by EPA. Legislative authority
exists in 415 ILCS 5/39.5(11) to develop general permits covering
numerous similar sources, except for sources subject to the Acid Rain
Program. These general permits are targeted for future development.
One issue of EPA concern with State programs is the ability of a
part 70 source to obtain a waiver from any applicable requirement. The
Illinois Pollution Control Board (IPCB) has the authority to issue a
variance from requirements imposed by State law. 415 ILCS 5/35-38,
previously approved into the State's SIP for non-part 70 sources,
allows the IPCB discretion to grant relief from compliance with State
rules and regulations. The EPA regards this provision as wholly
external to the program submitted for approval under part 70, and
consequently is proposing to take no action on this provision of State
law. The EPA has no authority to approve provisions of State law, such
as the variance provisions referred to, which are inconsistent with the
CAA. The EPA does not recognize the ability of a permitting authority
or other state entity to grant relief from the duty to comply with the
terms of a federally enforceable part 70 permit, except where such
relief is granted through procedures allowed by part 70. For example,
40 CFR 70.6(g) defines the circumstances under which an affirmative
defense can be raised when an action is brought against a source for
noncompliance with a permit condition. The EPA reserves the right to
enforce the terms of the part 70 permit where the permitting authority
or other state entity purports to grant relief from the duty to comply
with a part 70 permit in a manner inconsistent with part 70 procedures.
415 ILCS 5/39.5(5)(s) and 35 IAC 270.408 of the State's submittal
incorporate previously approved SIP provisions into the CAAPP program
(35 IAC 201.261 through 201.265) which allow an owner or operator of a
CAAPP source to include within its CAAPP application a request for
permission to operate during a startup, malfunction, or breakdown.
These provisions appear to allow sources to exceed emission limits and
standards of the State's SIP, but are not applicable to any other
requirements of a title V permit. Since sources that request these
exceedances must request them in their CAAPP applications, EPA will
have the opportunity to review and comment on these different emission
limits just as it would comment on any other permit provision. Since
these provisions were previously approved into Illinois' SIP, the
incorporation of these provisions into Illinois' part 70 regulations is
not problematic for the approval of the State's program as long as
these provisions never apply to other Federal requirements in a title V
permit and do not diminish the State's authority to assure the source's
compliance with all applicable requirements.
Another component of permit content is the length of time in which
a source must notify the permitting authority to report a deviation
from a permit condition. Part 70 of the operating permits regulations
requires prompt reporting of deviations from the permit requirements.
40 CFR 70.6(a)(3)(iii)(B) requires the permitting authority to define
prompt in relation to the degree and type of deviation likely to occur
and the applicable requirements. Although the permit program
regulations should define prompt for purposes of administrative
efficiency and clarity, an acceptable alternative is to define prompt
in each individual permit. The EPA believes that prompt should
generally be defined as requiring reporting within two to ten days of
the deviation. Two to ten days is sufficient time in most cases to
protect public health and safety as well as to provide a forewarning of
potential problems. For sources with a low level of excess emissions, a
longer time period may be acceptable. Prompt reporting, however, must
be more frequent than the semiannual reporting requirement, given this
is a distinct reporting obligation under 40 CFR 70.6(a)(3)(iii)(A).
Illinois addresses the issue of prompt reporting in 415 ILCS 5/
39.5(7)(f)(ii) of its CAAPP legislation. Because Illinois did not
actually define ``prompt,'' EPA may veto permits that do not contain
sufficiently prompt reporting requirements for deviations.
e. Enforcement
The Illinois program substantially meets the requirements of 40 CFR
70.11 with regard to enforcement authority. One issue, however,
requires a change in existing State legislation to bring the State's
enforcement authority completely in accord with the requirements of
part 70. 415 ILCS 5/44(j)(4)(D) of the Illinois Environmental
Protection Act prohibits the knowing tampering of any monitoring device
or record. 40 CFR 70.11(a)(3)(iii), however, prohibits the knowing
tampering of any monitoring device or method. The State must amend its
legislative provision to include a prohibition against knowing
tampering of a monitoring method. The EPA, therefore, proposes interim
approval of the State's program.
Another issue concerning title V enforcement authority is the
ability of a source to request an alternative emission limit equivalent
to that stated in a SIP. 415 ILCS 5/39.5(7)(q) allows a source to
demonstrate in its CAAPP application that an alternative emission limit
would be equivalent to that contained in the applicable IPCB
regulations. The State submitted revised regulations that restricted
the use of alternative emission limits in 35 IAC 270.401(e) to the
situation where the applicable EPA-approved SIP allows for such
determination. Since this revision to the State regulations adequately
addresses EPA's concerns regarding the use of alternative equivalent
emission limits, the State may utilize equivalent alternative emission
limits in its CAAPP when the underlying SIP provision allows for such
determination.
3. Permit Fee Demonstration
415 ILCS 5/39.5(18) of the State's legislation provides for the
collection of fees in the amount of $13.50 per ton of allowable
emissions. Sources allowed to emit less than 100 tons per year in the
aggregate of all regulated air pollutants shall pay a flat fee of $1000
and no source shall be required to pay a fee in excess of $100,000.
Since the State is not charging the presumptive minimum, 40 CFR 70.9
requires that the State collect fees sufficient to cover the permit
program costs. Based upon the State's fee demonstration, EPA believes
that the amount of fee revenue collected by the State is sufficient to
run the State's program. Collection of fees based upon allowable
emissions results in the collection of fees from tons of pollution not
actually emitted. Monies collected from the program will be deposited
in a special fund in the State Treasury known as the CAA Permit Fund
and a board appointed by the State legislature will evaluate the
State's fee structure to ensure that future collection of funds will be
sufficient to run the program.
On July 18, 1994, the State submitted additional information
clarifying its detailed fee demonstration. As a result of this
additional information, the EPA believes the State's detailed fee
demonstration meets the requirements of 40 CFR part 70. Please refer to
the technical support document and letter dated June 21, 1994, from
IEPA, included with the docket on this approval, for more information
regarding the State's fee demonstration.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and/or Commitments for Section 112 Implementation
Illinois has demonstrated in its title V program submittal adequate
legal authority to implement and enforce all section 112 requirements
through the title V permit. This legal authority is contained in
Illinois' enabling legislation and in regulatory provisions defining
``applicable requirements'' and stating that the permit must
incorporate all applicable requirements. EPA has determined that this
legal authority is sufficient to allow Illinois to issue permits that
assure compliance with all section 112 requirements.
The EPA is interpreting the above legal authority to mean that
Illinois is able to carry out all section 112 activities. For further
rationale on this interpretation, please refer to the Technical Support
Document accompanying this rulemaking and the April 13, 1993, guidance
memorandum titled ``Title V Program Approval Criteria for section 112
activities,'' signed by John Seitz.
b. Implementation of 112(g) Upon Program Approval
As a condition of approval of the part 70 program, Illinois is
required to implement section 112(g) of the Act from the date of
approval of the part 70 program. Imposition of case-by-case
determinations of MACT or offsets under section 112(g) will require the
use of a mechanism for establishing federally enforceable restrictions
on a source-specific basis. The EPA is proposing to approve Illinois'
preconstruction permitting program, found in 35 IAC 201-203, under the
authority of title V and part 70 solely for the purpose of implementing
section 112(g) during the transition period between title V approval
and adoption of a State rule implementing EPA's section 112(g)
regulations. EPA believes this approval is necessary so that Illinois
has a mechanism in place to establish federally enforceable
restrictions for section 112(g) purposes from the date of part 70
approval. Although section 112(l) generally provides authority for
approval of State air toxics programs, title V and section 112(g)
provide authority for this limited approval because of the direct
linkage between implementation of section 112(g) and title V. The scope
of this approval is narrowly limited to section 112(g) and does not
confer or imply approval for purposes of section 110 or any other
provision under the Act. If Illinois does not wish to implement section
112(g) through its preconstruction permit program and can demonstrate
that an alternative means of implementing section 112(g) exists, the
EPA may, in the final action approving Illinois' part 70 program,
approve the alternative instead.
This proposed approval is for an interim period only, until such
time as the State receives delegation of the section 112(g) rules.
Accordingly, EPA is proposing to limit the duration of this approval to
a reasonable time following promulgation of section 112(g) regulations
so that Illinois, acting expeditiously, will be able to adopt rules
consistent with the section 112(g) regulations.
Once EPA promulgates the section 112(g) rules, implementation of
title V requires that Illinois adopt these rules within a reasonable
period of time. EPA considers final adoption by the State 12 months
after EPA promulgation a reasonable period of time. Once the State
adopts the section 112(g) rules, the State will issue permits in
accordance with the section 112(g) rules.
c. Program for Delegation of Section 112 Standards as Promulgated
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) approval requirements for approval of a program for
delegation of section 112 standards as promulgated by EPA as they apply
to part 70 sources. Section 112(l)(5) requires that the State's program
contain adequate authorities, adequate resources for implementation,
and an expeditious compliance schedule, which are also requirements
under part 70.Therefore, the EPA is also proposing to grant approval
under section 112(l)(5) and 40 CFR 63.91 of Illinois' program for
receiving delegation of section 112 standards that are unchanged from
the Federal standards as promulgated. Because the State of Illinois has
historically accepted automatic delegation of section 112 standards and
requirements, EPA proposes to approve the delegation of section 112
standards and requirements through automatic delegation. Therefore,
once EPA promulgates a section 112 standard, the State of Illinois will
automatically assume responsibility for collection and receipt of any
information required by the standard, as well as any further activities
agreed to by IEPA and EPA. The details of this delegation mechanism
will be set forth in a Memorandum of Agreement between Illinois and EPA
expected to be completed prior to approval of Illinois' section 112(l)
program for straight delegations. This program applies to both existing
and future standards, but is limited to sources covered by the part 70
program.
The EPA is proposing approval under section 112(l) of the Clean Air
Act (CAA) of Illinois' state operating permits program for the purposes
of creating federally enforceable limitations on the potential to emit
of Hazardous Air Pollutants (HAPs) regulated under section 112 of the
CAA. The EPA is approving this program as meeting the criteria
articulated in the June 28, 1989, Federal Register notice for State
operating permit programs to establish limits federally enforceable on
potential to emit.
The June 28, 1989, notice provided that EPA would approve a state
operating permit program into a SIP for the purpose of establishing
federally enforceable limits on a source's potential to emit if the
program met five specific requirements. This notice, because it was
written prior to the 1990 amendments to section 112, addressed only SIP
programs to control criteria pollutants. Federally enforceable limits
on criteria pollutants (i.e., VOC's or PM-10) may have the incidental
effect of limiting certain HAPs listed pursuant to section 112(b). This
situation would occur when a pollutant classified as a HAP is also
classified as a criteria pollutant.1 As a legal matter, no
additional program approval by EPA is required in order for these
criteria pollutant limits to be recognized for this purpose.
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\1\The EPA intends to issue guidance addressing the technical
aspects of how these criteria pollutant limits may be recognized for
purposes of limiting a source's potential to emit of HAP to below
section 112 major source levels.
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EPA has determined that the five approval criteria for approving
FESOP programs into the SIP, as specified in the June 28, 1989, Federal
Register notice, are also appropriate for evaluating and approving the
programs under section 112(l). The June 28, 1989, notice does not
address HAP because it was written prior to the 1990 amendments to
section 112 and not because it establishes requirements unique to
criteria pollutants. Hence, the following five criteria are applicable
to state operating permit program approvals under section 112(l): (1)
The program must be submitted to and approved by EPA; (2) The program
must impose a legal obligation on the operating permit holders to
comply with the terms and conditions of the permit and that permits
which do not conform to either the operating permit program
requirements, the requirements of EPA's underlying regulations or the
June 28, 1989, criteria may be deemed ``not federally enforceable'' by
EPA; (3) The program must contain terms and conditions that are at
least as stringent as any requirements contained in the SIP or
enforceable under the SIP or any section 112 or other Clean Air Act
standard or requirement; (4) Permits issued under the program must
contain conditions that are permanent, quantifiable, and enforceable as
a practical matter; and (5) Permits issued under the program must be
subject to participation, including at a minimum advance notice of the
permit in the form of a 30-day public comment period.
In addition to meeting the criteria in the June 28, 1989, notice, a
state operating permit program must meet the statutory criteria for
approval under section 112(l)(5). Section 112(l) allows EPA to approve
a program only if it: (1) Contains adequate authority to assure
compliance with any section 112 standards or requirements; (2) provides
for adequate resources; (3) provides for an expeditious schedule for
assuring compliance with section 112 requirements; and (4) is otherwise
likely to satisfy the objectives of the Act.
The EPA plans to codify the approval criteria for programs limiting
potential to emit of HAP in Subpart E of part 63, the regulations
promulgated to implement section 112(l) of the Act. The EPA currently
anticipates that these criteria, as they apply to state operating
permit programs, will mirror those set forth in the June 28, 1989,
notice, with the addition that the State's authority must extend to HAP
instead of or in addition to VOC's and PM-10. The EPA currently
anticipates that state operating permit programs that are approved
pursuant to section 112(l) prior to the subpart E revisions will have
had to meet these criteria, and hence, will not be subject to any
further approval action.
The EPA believes it has authority under section 112(l) to approve
programs to limit potential to emit of HAPs directly under section
112(l) prior to this revision to subpart E. Section 112(l)(5) requires
EPA to disapprove program that are inconsistent with guidance required
to be issued under section 112(l)(2). This might be read to suggest
that the ``guidance'' referred to in section 112(l)(2) was intended to
be a binding rule. Even under this interpretation, the EPA does not
believe that section 112(l) requires this rulemaking to be
comprehensive. That is, it need not address all instances of approval
under section 112(l). The EPA has already issued regulations under
section 112(l) that would satisfy this requirement. Given the severe
timing problems posed by impending deadlines set forth in MACT
standards and for submittal of title V applications, EPA believes it is
reasonable to read section 112(l) to allow for approval of programs to
limit potential to emit prior to issuance of a rule specifically
addressing this issue. Accordingly, EPA is proposing approval of
Illinois' program now so as to enable Illinois to begin issuing
federally enforceable permits as soon as possible.
EPA proposes the approval of Illinois' federally enforceable state
operating permit program (FESOP) program for the purpose of limiting
potential to emit of HAP. The Illinois FESOP program was previously
approved for the purpose of limiting potential to emit of criteria
pollutants on December 17, 1992. 57 FR 59928. In that notice, EPA
stated that the Illinois state operating permit program met the five
criteria required for Federal approvability under the June, 1989,
register notice. See 57 FR 59930-59931. Illinois' FESOP program: (1)
Was submitted to and approved by EPA into the SIP; (2) provides that
all sources are under a legal obligation to adhere to the terms and
limitations of such permits and 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; (3) provides that the Illinois Environmental Protection Agency
(IEPA) and Illinois Pollution Control Board must act in a manner
consistent with all pertinent Federal statutes and regulations
including the SIP; (4) ensures that all permit conditions are
permanent, quantifiable and enforceable as a practical matter; and (5)
ensures that all FESOP permits are issued subject to public
participation, including advance notification in the form of at least a
30-day public comment period. By approving the Illinois FESOP program,
EPA recognized the Illinois FESOP program as a federally enforceable
method of limiting potential to emit of criteria pollutants. 415 ILCS
5/9.1(d)(2) provides the statutory authority for the State to include
the requirements of section 111 and 112 of the Act, including any
regulations promulgated thereunder, into state permits.
Regarding the statutory criteria under section 112(l), the EPA
believes that Illinois' FESOP program contains authority to assure
compliance with section 112 requirements since the third criteria of
the June 28, 1989 notice is met, that is, since the program does not
provide for waiving any section 112 requirement. Sources would still be
required to meet section 112 requirements applicable to non-major
sources. Regarding adequate resources, Illinois has included in its
request for approval under section 112(l) a commitment to provide
adequate resources to implement and enforce the program. This request
is contained in a September 14, 1994, letter from Bharat Mathur, Chief
of the Bureau of Air, IEPA, to Stephen Rothblatt, Chief, Regulation
Development Branch, EPA Region 5. Fees will be collected from FESOP
sources through both the title V and FESOP process. Sources that apply
for FESOPs through the title V process will pay a fee of $1000. Sources
applying through the FESOP program will be charged a fee based upon
actual emissions. Since the processing of a FESOP permit consumes
considerably less resources than the processing of a title V permit,
the State believes that sufficient resources will be available to
administer FESOP permits for those who request and qualify. The EPA
believes this mechanism will be sufficient to provide for adequate
resources to implement this program, and will monitor the State's
implementation of the program to assure that adequate resources
continue to be available.
Illinois' FESOP program also meets the requirement for an
expeditious schedule for assuring compliance. A source seeking a
voluntary limit on potential to emit is probably doing so to avoid a
Federal requirement applicable on a particular date. Nothing in this
program would allow a source to avoid or delay compliance with the
Federal requirement if it fails to obtain the appropriate federally
enforceable limit by the relevant deadline. Finally, Illinois' FESOP
program is consistent with the objectives of the section 112 program
since its purpose is to enable sources to obtain federally enforceable
limits on potential to emit to avoid major source classification under
section 112. The EPA believes this purpose is consistent with the
overall intent of section 112.
The EPA recognizes that state operating permits may already exist
that contain restrictions on the potential to emit of HAPs. As long as
the State issued these permits in accordance with all State regulations
and the criteria discussed above, EPA will consider these permits to be
federally enforceable upon promulgation of this action.
d. Title IV
Illinois' program contains adequate authority to issue permits
which reflect the requirements of title IV and its implementing
regulations. Illinois' submittal letter contains a commitment to revise
its regulations as necessary to accommodate Federal revisions and
additions to title IV and the Acid Rain regulations once they are
promulgated.
B. Options for Approval/Disapproval and Implications
The EPA is proposing to grant interim approval to the operating
permits program submitted by Illinois on November 15, 1993. If this
approval is promulgated, the State must make the following changes to
receive full approval: (1) The State must amend 415 ILCS 5/39.5(5)(e)
to ensure that certifications by responsible officials comply with all
Federal requirements, namely that the official has made a reasonable
inquiry and that the certification is based upon information and
belief; (2) the State must amend 415 ILCS 5/39.5(13)(c)(vi) to require
the use of the significant modification procedure to incorporate
emission trades into a CAAPP permit; (3) for full approval of the
State's program, the State must develop regulations detailing the
actual procedural and compliance requirements necessary for
incorporation of preconstruction permits into part 70 permits as a
supplement to the State's title V submittal or submitted as a revision
to the State's preconstruction permit program state implementation
plan; (4) the State must amend 415 ILCS 5/44(j)(4)(D) to include a
prohibition against knowing tampering of a monitoring method; and (5)
the State must correct all deficiencies in its insignificant activities
regulations currently under development. If finalized insignificant
activities rules address EPA's concerns and these rules are submitted
prior to final action on this notice, then EPA can grant full approval
of these rules. If EPA's concerns are not addressed prior to final
action, then the State's insignificant activities rules will receive
interim approval.
Illinois' program is not fully approvable because of the
deficiencies mentioned above. The program, however, substantially meets
the requirements of part 70 because Illinois' CAAPP complies with all
other part 70 requirements. This interim approval, which may not be
renewed, extends for a period of up to 2 years. Because the interim
approval automatically expires two years after promulgation of a final
interim approval, the State may submit its interim corrections at any
time, however, the State may not submit its corrections any later than
18 months after promulgation of final interim approval. The EPA will
then have six months to promulgate a final action.
During the interim approval period, the State is protected from
sanctions for failure to have a program, and EPA is not obligated to
promulgate a Federal permits program in the State. Permits issued under
a program with interim approval have full standing with respect to part
70, and the 1-year time period for submittal of permit applications by
subject sources begins upon interim approval, as does the 3-year time
period for processing the initial permit applications.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that the State's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under part
70. Therefore, the EPA is also proposing to grant approval under
section 112(l)(5) and 40 CFR 63.91 of the State's program for receiving
delegation of section 112 standards that are unchanged from Federal
standards as promulgated. This program for delegations only applies to
sources covered by the part 70 program.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval. Copies of the State's submittal and other information
relied upon for the proposed interim approval are contained in a docket
maintained at the EPA Regional Office. The docket is an organized and
complete file of all the information submitted to, or otherwise
considered by, EPA in the development of this proposed rulemaking. The
principal purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the rulemaking
process; and
(2) To serve as the record in case of judicial review. The EPA will
consider any comments received by October 31, 1994.
B. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this action
from Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysisassessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA 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.
Operating permit program approvals under section 502 of the Act do
not create any new requirements, but simply approve requirements that
the State is already imposing. Therefore, because the Federal operating
permit program 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 State
action. The Act forbids EPA to base its actions concerning operating
permit programs on such grounds. Union Electric Co. v. U.S. E.P.A., 427
U.S. 246, 256-66 (S.Ct 1976); 42 U.S.C. 7410(a)(2).
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: September 21, 1994.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 94-24253 Filed 9-29-94; 8:45 am]
BILLING CODE 6560-50-F
