[Federal Register Volume 59, Number 184 (Friday, September 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23604]
[[Page Unknown]]
[Federal Register: September 23, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL78-1-6007; FRL-5078-3]
Proposed Approval and Promulgation of Revisions to the New Source
Review State Implementation Plan; Illinois
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Proposed rule.
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SUMMARY: The USEPA proposes to approve with a contingency, and
disapprove in the alternative, a requested State Implementation Plan
(SIP) revision submitted by the State of Illinois for the purpose of
meeting requirements of the Clean Air Act, as amended in 1990 (amended
Act) with regard to new source review (NSR) in areas that have not
attained the national ambient air quality standards (NAAQS). The
requested revision was submitted by the State to satisfy certain
Federal requirements for an approvable nonattainment new source review
SIP for Illinois. This proposed approval is contingent upon the State
correcting existing deficiencies in its NSR submittal before the USEPA
promulgates a final rulemaking on this submittal. Should Illinois fail
to correct all deficiencies in its NSR submittal, then this document
will serve as a proposed disapproval of the State's submittal.
DATES: Comments on this proposed action must be received in writing by
November 22, 1994.
ADDRESSES: Comments on this proposed rule should be addressed to: J.
Elmer Bortzer, Chief, Regulation Development Section, Regulation
Development Branch (5AR-18J), United States Environmental Protection
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal and other information are available
for inspection during normal business hours at the following location:
United States Environmental Protection Agency, Region 5, Air and
Radiation Division, Regulation Development Branch, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Jennifer Drury-Buzecky, Environmental
Protection Specialist, Permits and Grants Section, Regulation
Development Branch (5AR-18J), United States Environmental Protection
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Anyone wishing to come to the Region 5 offices should first contact
Ms. Drury-Buzecky at (312) 886-3194. Reference file IL78-1-6007.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for nonattainment NSR are set
out in part D of title I of the Clean Air Act (Act). The USEPA has
issued a ``General Preamble'' describing its preliminary views on how
USEPA intends to review SIPs and SIP revisions submitted under part D,
including those State submittals containing nonattainment area NSR SIP
requirements (see 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 part D advanced in
this proposal and the supporting rationale. The USEPA is currently
developing a proposed rule to assist the implementation of the changes
under the amended Act in the new source review provisions in parts C
and D of title I of the Act. The USEPA anticipates that the proposed
rule will be published for public comment in late 1994. If USEPA has
not taken final action on States' NSR submittals by that time, USEPA
may refer to the proposed rule as the most authoritative guidance
available regarding the approvability of the submittals. USEPA expects
to take final action to promulgate a rule to implement the parts C and
D changes sometime during 1995. Upon promulgation of those regulations,
USEPA will review the NSR SIPs of all States to determine whether
additional SIP revisions are necessary.
Prior to USEPA approval of a State's NSR SIP submission, the State
may continue permitting only in accordance with the new statutory
requirements for permit applications completed after the relevant SIP
submittal date. This policy was explained in transition guidance
memoranda from John Seitz dated March 11, 1991 and September 3, 1992.
As explained in the March 11 memorandum, USEPA does not believe
Congress intended to mandate the more stringent title I NSR
requirements during the time provided for SIP development. States were
thus allowed to continue to issue permits consistent with requirements
in their current NSR SIPs during that period, or apply 40 CFR part 51,
appendix S for newly designated areas that did not previously have NSR
SIP requirements.
The September 3 memorandum also addressed the situation where
States did not submit the part D NSR SIP requirements or revisions by
the applicable statutory deadline. For permit applications found
complete by the SIP submittal deadline, States may issue final permits
under the prior NSR rules, assuming certain conditions in the September
3 memorandum are met. However, for applications completed after the SIP
submittal deadline, USEPA will consider the source to be in compliance
with the Act only where the source obtains from the State a permit that
is consistent with the substantive new NSR part D provisions in the
amended Act. USEPA believes this guidance continues to apply to
permitting pending final action on NSR SIP submittals.
In this rulemaking action on the Illinois nonattainment NSR SIP
revisions, USEPA is proposing to apply its interpretations taking into
consideration the specific factual issues presented. Thus, USEPA will
consider any timely submitted comments before taking final action on
this proposed rule.
II. Proposed Rulemaking Action
Section 110(k) of the Act sets out provisions governing USEPA's
review of SIP submittals (see 57 FR 13565-13566).
A. Analysis of State Submission
1. Procedural Background
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.1 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.
---------------------------------------------------------------------------
\1\Section 172(c)(7) of the Act provides that plan provisions
for nonattainment areas shall meet the applicable provisions of
section 110(a)(2).
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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 (April 16, 1992).) 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 under section 110(k)(1)(B) if a completeness
determination is not made by USEPA within 6 months after receipt of the
submission.
The State of Illinois submitted draft NSR rules to USEPA for
parallel processing on November 15, 1992. The State of Illinois then
held public hearings on January 6 and February 5, 1993, to entertain
public comment on the NSR implementation plan revisions. At those
hearings, the Illinois Pollution Control Board (Board) formally adopted
several interpretations of those rules. Following the public hearings,
the rules were adopted by the State on April 30, 1993, and both the
rules and interpretations were submitted to USEPA on June 21, 1993, as
a requested revision to the SIP. The requested SIP revision thus
includes the NSR rules and the interpretations of those rules adopted
by the State.
The SIP revision request was reviewed by USEPA to determine
completeness shortly after its submittal, in accordance with the
completeness criteria referenced above. The submittal was found to be
complete on August 24, 1993, and a letter was sent on that date to the
Governor's designee, Bharat Mathur, Chief, Bureau of Air, Illinois
Environmental Protection Agency, indicating the completeness of the
submittal and the next steps to be taken in the review process. On May
27, 1994, the State submitted an amendment to its NSR submittal
consisting of a correction of 35 Ill. Adm. Code Section 203.209 (a)(4).
USEPA will consider that amendment in this rulemaking.
2. General Nonattainment NSR Requirements
The statutory requirements for nonattainment new source review SIPs
and permitting are found at sections 172 and 173 of the Act. Part D of
title I of the Act requires States to address a number of nonattainment
NSR provisions in a SIP revision submittal. What follows is a summary
of the requirements and how the Illinois submittal addresses them.
a. No growth moratoriums exist in the State of Illinois subsequent
to USEPA action on December 17, 1992. 57 FR 59928.
b. Illinois has established provisions according to section
173(a)(1) to assure that calculations of emissions offsets are based on
the same emissions baseline used in the demonstration of Reasonable
Further Progress (RFP).
c. Illinois has established provisions according to section
173(c)(1) to allow offsets to be obtained in another nonattainment area
if the area has an equal or higher nonattainment classification and
emissions from the other nonattainment area contribute to a NAAQS
violation in the area in which the source would construct.
d. Illinois has established provisions according to section
173(c)(1) that any emissions offsets obtained in conjunction with the
issuance of a permit to a new or modified source must be in effect and
enforceable by the time the new or modified source commences operation.
e. Illinois has established provisions according to section
173(c)(1) to assure that emissions increases from new or modified
sources are offset by real reductions in actual emissions.
f. Illinois has established provisions according to section
173(c)(2) to prevent emissions reductions otherwise required by the Act
from being credited for purposes of satisfying part D offset
requirements.
g. Illinois has established provisions according to sections
172(c)(4) and 173(a)(1)(B) that reflect changes in growth allowances;
specifically: (1) The elimination of existing growth allowances in any
nonattainment area that received a notice prior to the amended Act that
the SIP was substantially inadequate or receives such a notice in the
future; and (2) the restriction of growth allowances to only those
portions of nonattainment areas formally targeted as special zones for
economic development. It should be noted that Illinois does not have
any existing growth allowances in nonattainment areas, nor are there
currently any existing zones for economic development. The State's
submittal, however, does restrict growth allowances to special zones
for economic development in accordance with section 173(a)(1)(B) of the
amended Act.
h. Illinois has established provisions according to section
173(a)(5) that, as a prerequisite to issuing any part D permit, require
an analysis of alternative sites, sizes, production processes, and
environmental control techniques for proposed sources that demonstrates
that the benefits of the proposed source significantly outweigh the
environmental and social costs imposed as a result of its location,
construction, or modification.
i. Illinois has provided according to section 173(d) for the
supplying of information from nonattainment new source review permits
to USEPA's Reasonably Available Control Technology, Best Available
Control Technology, Lowest Achievable Emissions Reduction (RACT/BACT/
LAER) clearinghouse. This provision is contained in the State's
workplan of its NSR grant.
j. Illinois has established provisions according to section 173(e)
that allow any existing or modified source that tests rocket engines or
motors to use alternative or innovative means to offset emissions
increases from firing and related cleaning, if four conditions are met:
(a) The proposed modification is for expansion of a facility already
permitted for such purposes prior to November 15, 1990; (b) the source
has used all available offsets and all reasonable means to obtain
offsets and sufficient offsets are not available; (c) the source has
obtained a written finding by the appropriate, sponsoring Federal
agency that the testing is essential to national security; and (d) the
source will comply with an alternative measure designed to offset any
emissions increases not directly offset by the source.
k. Illinois has not established provisions according to section 819
of the amended Act that effectively exempt activities related to
stripper wells from the new additional NSR requirements of new subparts
2, 3, and 4 for Particulate Matter of 10 microns or less (PM-10),
Ozone, or Carbon Monoxide (CO) nonattainment areas classified as
serious or less and having a population of less than 350,000. Illinois
does not presently have any stripper well operations and, therefore,
this provision does not apply.
l. Illinois has not established provisions according to section 328
to assure that sources located on the Outer Continental Shelf (OCS) and
within 25 miles of the State's seaward boundary, are subject to the
same requirements applicable if the source were located in the
corresponding on shore area. Because the State is not located on the
OCS, section 328 does not apply.
m. Illinois has established, according to sections 302(z) and
111(a)(3), a definition of ``stationary source'' to include internal
combustion engines other than the newly defined category of ``nonroad
engines''.
n. Illinois has established provisions under section 173(a)(3) to
assure that owners or operators of each proposed new or modified major
stationary source demonstrate, as a condition of permit issuance, the
compliance of all other major stationary sources under the same
ownership in the State.
3. Ozone
According to section 172(c)(5), State implementation plans must
require permits for the construction and operation of new or modified
major stationary sources. The statutory permit requirements in ozone
nonattainment areas are generally contained in section 173, and in
subpart 2 of part D. These are the minimum requirements that States
must include in an approvable implementation plan. For all
classifications of ozone nonattainment areas and for ozone transport
regions, States must adopt the appropriate major source thresholds and
offset ratios, and must adopt provisions to ensure that any new or
modified major stationary source of Oxides of Nitrogen (NOX)
satisfies the requirements applicable to any major source of Volatile
Organic Compounds (VOC), unless a special NOX exemption is granted
by the Administrator under the provision of section 182(f). For serious
and severe ozone nonattainment areas, State plans must implement
sections 182(c) (6), (7) and (8) with regard to modifications. For
emissions of VOC and NOX in ozone nonattainment areas, Illinois
has established major source thresholds, offset ratios, and included
provisions for NOX major stationary sources as follows:
------------------------------------------------------------------------
Major
Area classification source Offset NOXprovisions
threshold ratio
------------------------------------------------------------------------
Marginal........................ 100 1.1:1 provided.
Moderate........................ 100 1.15:1 provided.
Serious......................... 50 1.2:1 provided.
Severe.......................... 25 1.3:1 provided.
------------------------------------------------------------------------
It should be noted that there are no areas classified as extreme ozone
nonattainment areas in Illinois. The State has areas classified as
severe, moderate and marginal.
In addition, with certain exceptions described below, Illinois'
plan submittal reflects appropriate modification provisions, including
a de minimis level of 40 tons for marginal and moderate nonattainment
areas. Section 203.209 of the State's rules details when a net
emissions increase is significant. In general, a net emission increase
is significant if it is equal to the emissions level specified in
section 203.209(a)(1)-(6) and section 203.209(b). In order to establish
whether an increase in emissions is significant, the net emissions
increase must be calculated. USEPA interprets its current regulations
for areas other than serious and severe ozone nonattainment areas as
requiring that a proposed modification must by itself result in a
significant emissions increase to be considered a major modification.
If it does not result in a significant emissions increase, prior
accumulated emissions may be ignored. USEPA interprets Illinois' NSR
rules in the same manner. Traditionally, the calculation of net
emissions involves adding the creditable increases and decreases over a
period of time beginning at the time the emission increase is projected
to occur and going back for the previous consecutive 5 years. Illinois
seeks to rely on section 182(c)(6) of the amended Act to establish a
new method of calculating net emission increases in serious and severe
ozone nonattainment areas.
Section 203.209(b) of the Illinois rule states that an increase in
Volatile Organic Material (VOM), an equivalent term to VOC, or NOX
shall be considered significant if the net emissions increase of such
air pollutant from a stationary source located within such area exceeds
25 tons when aggregated with all other net increases in emissions from
the source over any period of 5 consecutive calendar years which
includes the calendar year in which such increase occurred. Although
Illinois' section 203.209(b) is very similar to section 182(c)(6) of
the Act for netting in serious and severe ozone nonattainment areas, an
issue exists regarding the proper interpretation of ``5 consecutive
calendar years'' and ``net emissions increase''.
USEPA believes that the language of section 203.209(b) by itself
would be approvable, however, the two written interpretations of
section 203.209(b) adopted by the State, unless withdrawn, will require
disapproval of the State's submittal. USEPA, therefore, proposes to
approve section 203.209(b) contingent upon the actual withdrawal of the
Board's interpretations prior to final rulemaking. If the Board does
not withdraw these interpretations by USEPA's final rulemaking, then
this notice serves as a proposed disapproval of this SIP revision
submittal. The reasons for USEPA's proposed approval (contingent upon
withdrawal of these interpretations) are outlined below. For further
information regarding this rulemaking refer to the technical support
document included in this docket.
To accompany section 203.209(b) of the Illinois rule, intended to
implement section 182(c)(6) of the Act, Illinois submitted two
interpretations of the rule adopted by the State. The first
interpretation allows a source in a serious or severe ozone
nonattainment area to use a contemporaneous 5-year period for netting
that includes projected emission decreases in future years as well as
actual decreases from past years. In other words, under Illinois'
interpretation, a source could propose a modification resulting in a
significant emission increase and yet not be required to obtain a major
NSR permit merely because the source asserts that it intends to make a
future modification resulting in an emission decrease. As discussed
below, Illinois' rule and interpretations fail to assure that such
future emission decreases will in fact occur. USEPA is not in this
rulemaking proposing to decide whether future years are acceptable for
purposes of netting emission increases and decreases under section
182(c)(6). In a rulemaking to revise and update its nationally
applicable NSR rules, USEPA will soon propose its interpretation of
section 182(c)(6), (7) and (8) and intends to request comments on the
use of emission decreases in future years as netting credits against
emission increases from a proposed modification or new construction.
After this national rulemaking becomes final, USEPA will reexamine all
NSR SIPs to ensure conformity with USEPA's new regulations to implement
the amended Act.
The State's interpretation allowing the use of emission decreases
in future years does not ensure that these future decreases will be
federally enforceable. For example, the Illinois interpretation of the
rule does not require that future decreases be placed in a construction
permit as a federally enforceable permit condition, nor does the rule
or interpretation require that these future decreases meet all
requirements for creditable netting credits. One such requirement is
that decreases used for netting purposes be actual emission decreases.
Although USEPA does not intend in this proposed rulemaking to address
the issue of whether future decreases may ever be used under section
182(c)(6), USEPA believes that future decreases certainly may not be
used where the SIP does not require these decreases to be federally
enforceable. Federal enforceability is essential to assure that the
projected future netting reductions being relied on to offset the new
emission increase will actually occur so that the net emission increase
is less than a significant increase and is not improperly escaping
review. To summarize, although Illinois' written interpretation of the
rule is not approvable, the language of the rule, standing alone, would
be approvable.
The second interpretation of section 203.209(b) adopted by the
State concerns whether a net emissions increase of a particular
pollutant is significant. The interpretation states that the netting
calculation commences with the date of an area's designation as
nonattainment. Many of these nonattainment designations occurred after
the November 15, 1990, effective date of the Act. Using the State's
interpretation, the 5-year period for calculation of a net emissions
increase of NOX in the Chicago area would not begin until November
15, 1992. This would allow a NOX source applying for a NSR permit
in Chicago on November 15, 1992, to use a 5-year contemporaneous period
from November 15, 1992, to November 15, 1997. Past emission increases
occurring before November 15, 1992, would not be included in the
calculation to determine whether the proposed project would result in a
significant emissions increase because Illinois' interpretation does
not allow the netting calculation for NOX to begin until November
15, 1992.
The Illinois interpretation of the rule specifically provides: (1)
The netting calculation for VOM emissions commences no earlier than
January 6, 1992, in the newly designated nonattainment areas in the
Chicago area; (2) for sources located in all ozone nonattainment areas
of the State, the calculation for NOX commences no earlier than
November 15, 1992; (3) for sources with the potential to emit at least
25 tons per year (tpy) but less than 100 tpy and which are located in
the Chicago nonattainment area, the netting calculation for VOM
emissions commences at either the time that the source became major or
November 15, 1990, whichever is later; and (4) for sources with
complete construction permit applications filed (including Prevention
of Significant Deterioration applications) prior to the date of an area
as nonattainment, or the dates given above, whichever occurs later, the
netting calculation shall not include emission increases allowed by
that permit.
This four-part second interpretation of section 203.309(b)
compounds the problems discussed above concerning the first
interpretation. Whereas the first interpretation allows sources to use
future decreases, the second interpretation, by cutting off use of past
years, compels sources in serious and severe ozone nonattainment areas
to use future years for the netting calculation, again without
requiring these future emission decreases to be federally enforceable.
Thus, all interpretations of the rule adopted by the State do not
ensure the Federal enforceability of all emission decreases in the
contemporaneous period and fail to account for all emission increases.
USEPA believes that all interpretations should be disapproved as
conflicting with the Act. Because the language of the rule, standing
alone, would be approvable, USEPA proposes to approve section
203.209(b) adopted by the State contingent upon the Board withdrawing
all interpretations of section 203.209(b) prior to final USEPA
rulemaking.
The USEPA is limited in its ability to disapprove a portion of a
State rule and approve the remainder if the effect is to make the
approved portion of the rule more stringent than intended by the State.
In Bethlehem Steel Corporation v. Gorsuch 742 F. 2d 1028 (7th Cir.
1984), the Court held that at least in certain circumstances USEPA may
not approve parts of a SIP request and disapprove other parts if the
effect of the action is to make the SIP more stringent than the State
intended. For this reason in order for USEPA to approve the State's NSR
rule, the interpretations of section 203.209(b) adopted by the Board in
its final Opinion and Order of the Board must be withdrawn from the
Opinion and Order.
The State of Illinois' NSR rules for serious and severe ozone
nonattainment areas provide that major modifications to existing
sources that have a potential to emit of less than 100 tpy of VOM or
NOX shall substitute BACT for LAER and may avoid major NSR by
internally offsetting the emissions increase by a ratio of 1.3 to 1.
The State also provides that major modifications to existing sources
that have a potential to emit of greater than 100 tpy of VOM or
NOX may avoid LAER requirements by internally offsetting the
emissions increase by a ratio of 1.3 to 1. For more detail, refer to
the technical support document included with this docket.
4. Carbon Monoxide
The statutory NSR requirements for CO nonattainment areas are
generally contained in section 173, and in subpart 3 of part D. These
are the minimum requirements that States must include in an approvable
implementation plan. States must adopt the appropriate major source
threshold and offset ratio.
Illinois has established a major source threshold of 50 tpy, and an
offset ratio of an amount equal to or greater than the amount of
emission increase for serious CO nonattainment areas. It should be
noted that there are no CO nonattainment areas in Illinois.
5. PM-10
The statutory NSR requirements for PM-10 nonattainment areas are
generally contained in section 173, and in subpart 4 of part D. These
are the minimum requirements that States must include in an approvable
implementation plan. For PM-10 nonattainment areas States must adopt
the appropriate major source threshold, offset ratio, significance
level for modifications, and provisions for PM-10 precursors.
Illinois has established major source thresholds, offset ratios,
modification significance levels, and PM-10 precursor provisions as
follows: In section 203.209(b)(4) a major source threshold level of 100
tpy in an area classified as moderate nonattainment, 70 tpy major
source threshold level in areas classified as serious, and in its
initial submittal, an incorrect significance level of 25 tpy in section
203.209. The State, however, amended this incorrect significance level
to provide for the correct level of 15 tpy in a subsequent rulemaking
effective April 15, 1994. 35 Ill. Adm. Code 203.209(a)(4). This
rulemaking was submitted to USEPA on May 27, 1994, to correct the
deficiency in the original submittal. USEPA is, therefore, proposing to
take action on the corrected 15 tpy significance level. The general
offset requirement of an amount equal to or greater than the amount of
emissions increase is established in section 203.302(a).
The control requirements which are applicable to major stationary
sources of PM must also apply to major stationary sources of PM
precursors unless USEPA determines such sources do not contribute
significantly to PM levels which exceed the NAAQS in that area (see
section 189(e) of the Act.) Illinois has four moderate PM-10
nonattainment areas: McCook, LaSalle, Lake Calumet and Granite City.
See TSD for definitions of these nonattainment areas. On October 21,
1993, USEPA promulgated a final rule finding that precursors do not
significantly contribute to PM concentrations in the LaSalle
nonattainment area. 58 FR 54291. USEPA also proposed a rulemaking
asserting that precursors do not significantly contribute to PM
concentrations in the remaining three nonattainment areas. This
proposal was published on May 25, 1994. 59 FR 26988. If this action is
finalized, section 189(e) would no longer require NSR on major PM
precursor sources. Please see TSD if more information is desired, or
see the May 25, 1994, proposed rule at 59 FR 26988.
6. Sulfur Dioxide
The statutory NSR requirements for Sulfur Dioxide (SO2)
nonattainment areas are generally contained in section 173, and in
subpart 5 of part D. These are the minimum requirements that States
must include in an approvable implementation plan. For SO2
nonattainment areas, States must adopt the appropriate major source
threshold, offset ratio, and significance level for modifications.
Illinois has established a major source threshold of 100 tpy, an
offset ratio of an amount equal to or greater than the amount of
emissions increased, and a modification significance level of 40 tpy.
7. Lead
The statutory NSR requirements for lead nonattainment areas are
generally contained in section 173, and in subpart 5 of part D. These
are the minimum requirements that States must include in an approvable
implementation plan. For lead nonattainment areas, States must adopt
the appropriate major source threshold, offset ratio, and significance
level for modifications.
Illinois has established a major source threshold level of 100 tpy,
an offset ratio of an amount equal to or greater than the amount of
emissions increased, and a modification significance level of .6 tpy.
It should be noted that there are presently no lead nonattainment areas
in Illinois.
8. Nitrogen Dioxide
The statutory NSR requirements for nitrogen dioxide nonattainment
areas are generally contained in section 173, and in subpart 5 of part
D. These are the minimum requirements that States must include in an
approvable implementation plan. For nitrogen dioxide nonattainment
areas, States must adopt the appropriate major source threshold, offset
ratio, and significance level for modifications.
Illinois has established a major source threshold of 100 tpy, an
offset ratio of an amount equal to or greater than the amount of
emissions increased, and a modification significance level of 40 tpy.
It should be noted that there are presently no nitrogen dioxide
nonattainment areas in Illinois.
9. Plantwide Source Definition
On October 4, 1981, the USEPA revised the NSR regulations in 40 CFR
part 51 to give States the option of adopting the ``plantwide''
definition of stationary source which provides that only physical or
operational changes that result in a net increase in emissions at the
entire plant require a NSR permit. For example, if a plant decreased
emissions by the same amount at another piece of process equipment,
then there would be no net increase in emissions at the plant and
therefore, no ``modification'' to the ``source.'' The plantwide
definition is in contrast to the so-called ``dual'' definition [or
definition of structure like that in the 1979 offset ruling (44 FR
3274), which has much the same effect as the dual definition]. Under
the dual definition, the emissions from each physical or operational
change are gauged without regard to reductions elsewhere at the plant.
In the October 1981 rule, USEPA set forth its rationale for
allowing use of the plantwide definition (46 FR 50766-50769). In its
view, allowing use of the plantwide definition was a reasonable
accommodation of the conflicting goals of part D of title I of the Act.
The Act provided for reasonable further progress (RFP) and timely
attainment of National Ambient Air Quality Standards (NAAQS), while
also allowing for maximum State flexibility and economic growth. The
USEPA recognized that the plantwide definition would bring fewer plant
modifications into the nonattainment permitting process, but emphasized
that this generally would not interfere with RFP and timely attainment
primarily because the States under the demands of part D eventually
would have adequate SIPs in place. For instance, USEPA stated:
Since demonstration of attainment and maintenance of the NAAQS
continues to be required, deletion of the dual definition increases
State flexibility without interfering with timely attainment of the
ambient standards and so is consistent with Part D [46 FR 50767].
USEPA also indicated that under the plantwide definition, new
equipment would still be subjected to any applicable new source
performance standard and that wholly new plants, as well as any
modifications that resulted in a significant net emissions increase,
would still be subject to NSR. Thus, USEPA saw no significant
disadvantage in the plantwide definition from the environmental
standpoint, but advantages from the standpoints of State flexibility
and economic growth. It regarded the plantwide definition as
presenting, at the very worst, environmental risks that were manageable
because of the independent impetus to create adequate part D plans.
As a result, USEPA ruled that a State wishing to adopt a plantwide
definition generally has complete discretion to do so, and it set only
one restriction on that discretion. If a State had specifically
projected emission reductions from its NSR program as a result of a
dual or similar definition and had relied on those reductions in an
attainment strategy that USEPA later approved, then the State needed to
revise its attainment strategy as necessary to accommodate reduced NSR
permitting under the plantwide definition (46 FR 50767 and 50769).
In 1984, the Supreme Court upheld USEPA's action as a reasonable
accommodation of the conflicting purposes of part D of title I of the
Act, and hence, well within USEPA's broad discretion. Chevron, U.S.A.
v. NRDC, 104 S.Ct. 2778 (1984). Specifically, the Court agreed that the
plantwide definition is fully consistent with the Act's goal of
maximizing State flexibility and allowing reasonable economic growth.
Likewise, the Court recognized that USEPA had advanced a reasonable
explanation for its conclusion that the plantwide definition serves the
Act's environmental objectives as well (see 104 S.Ct. at 2792). In this
rule USEPA generally reaffirms the rationales stated in the 1981
rulemaking. Those rationales were left undisturbed by the Supreme Court
decision.
The SIP revision USEPA is approving in this action substitutes a
plantwide definition for a dual definition in Illinois' existing
nonattainment NSR program. A September 2, 1994, letter from Bharat
Mathur, Chief, Bureau of Air of IEPA, to Stephen Rothblatt, Chief, Air
and Radiation Branch, USEPA, states Illinois' rationale for
implementing the plantwide definition. The letter further states that
in obtaining USEPA approval of its original part D SIP, Illinois did
not rely on emission reductions from its existing NSR program. Illinois
has nonattainment areas for sulfur dioxide, ozone, and fine particulate
matter. Illinois has submitted several revisions required by the
amended Act prior to attainment of the NAAQS by the statutory dates,
which range from 1994 to 2007 for the nonattainment areas in Illinois.
For example, Illinois has submitted revisions for VOC RACT Rule Fix-
ups, Stage II vapor recovery, employee commute options, 1990 base year
ozone emissions inventories, and emission statement. These revisions
have been or will be acted on by USEPA in subsequent actions.
10. Miscellaneous Definitions
Section 203.123 of the Board's rules adds the definition of
federally enforceable to the State's NSR SIP. The State's definition is
consistent with 40 CFR 51.165(a)(i)(xiv).
Section 203.303 of the Board's rules amends the definition of
baseline and emission offsets determination. The new definition
provides that to obtain offsets for a prior shutdown, the proposed new
or modified source must be a replacement for the shutdown or
curtailment until USEPA approves an attainment demonstration and State
trading or marketing rules for the relevant pollutant. This definition
complies with 40 CFR 51.165(a)(3)(ii)(C).
III. Implications of This Action
Proposed Rulemaking Actions
As stated above, the Illinois NSR submittal contains a deficiency
for which USEPA proposes approval of the State's requested SIP revision
with a contingency and a proposed disapproval in the alternative.
Illinois adopted written interpretations of section 203.209(b) in
an attempt to implement the amended Act's special provisions for
serious and severe ozone nonattainment areas, section 182(c)(6)-(8).
USEPA proposes to approve section 203.209(b) adopted by the State only
if the State withdraws its interpretations. The interpretations adopted
by the State are deficient in that they do not ensure the Federal
enforceability of any future emission reductions used for netting
credits and fail to account for all emission increases occurring during
the contemporaneous period. This proposed approval is contingent upon
the withdrawal of all Board interpretations of section 203.209(b) as
soon as possible. If the Board's interpretations of section 203.209(b)
are not withdrawn before final rulemaking, USEPA proposes in the
alternative that USEPA's final action would be a disapproval of the
entire submittal.
After the completion of the 60-day public comment period, USEPA
will ordinarily require 30 days to prepare a final notice incorporating
all comments received. This notice is then forwarded to USEPA
headquarters for review. Once USEPA headquarters' 45-day review period
is completed, the final notice will be sent to the Office of the
Federal Register for publication. USEPA, therefore, expects to take
final action on this rulemaking within 180 days of publication of this
proposal.
USEPA is alternatively proposing disapproval of the State's
submittal. If finalized, this proposed disapproval would constitute a
disapproval under section 179(a)(2) of the Act (see generally 57 FR
13566-13567). As provided under section 179(a) of the Act, the State of
Illinois would have up to 18 months after a final SIP disapproval to
correct the deficiencies that are the subject of the disapproval before
USEPA is required to impose sanctions. If the State does not correct
its SIP deficiencies within 18 months, then section 179(a)(4) requires
the immediate application of sanctions. According to 179(b), sanctions
can take the form of a loss of highway funds or a two to one emissions
offset ratio. Once the Administrator applies one of the section 179(b)
sanctions, the State will then have an additional six months to correct
any deficiencies. Section 179(a)(4) requires that both highway and
offsets sanctions must be applied if any deficiencies are still not
corrected after the additional six month period.
On August 4, 1994, the USEPA finalized its selection of sequence of
mandatory sanctions for findings made pursuant to section 179 of the
Act. 59 FR 39832. This rulemaking states that the section 179(b)(2)
offset sanction applies in an area 18 months from the date when the
USEPA makes a finding under section 179(a) with regard to that area.
Furthermore, the section 179(b)(1) highway funding restrictions apply
in an area 6 months following application of the offset sanction. The
USEPA will sequence the application of the section 179(b) sanctions in
this manner in all cases unless the USEPA decides highway sanctions
apply first by individual notice-and-comment rulemaking. USEPA,
therefore, anticipates that the first sanction it would impose would be
the two to one offset sanction. If the State has not corrected its
deficiency within 6 months thereafter, USEPA must impose the other
(highway) sanction. Any sanction USEPA imposes must remain in place
until USEPA determines that the State has come into compliance.
If the USEPA's proposed disapproval of all or part of the SIP
submittal for the State's nonattainment new source review provisions
become a final disapproval, this will constitute a ``finding'' under
section 179(a) for which sanctions will apply as described above. If
the State fails to correct the deficiency within 18 months of such
disapprovals, USEPA is required to impose sanctions per section 179(a)
and presumably in the order described above. Note also that any final
disapproval would trigger the section 110(c)(1) Federal Implementation
Plan (FIP) provision. In the interim between the finding and either the
State's correction of the SIP or the promulgation of the FIP, the State
must issue NSR permits that conform with the requirements of the Act.
These requirements will be embodied in the Federal part D NSR
permitting regulations at 40 CFR 52.10.
IV. Request for Public Comments
The USEPA is requesting comments on all aspects of the requested
SIP revision and USEPA's proposed rulemaking action. Comments received
by the date indicated above will be considered in the development of
USEPA's final rulemaking action.
V. Executive Order 12866
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 (OMB) has
exempted this regulatory action from Executive Order 12866 review.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
VI. Regulatory Flexibility
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.
USEPA's disapproval of the State request under section 110 and
subchapter I, part D of the Act, does not affect any existing
requirements applicable to small entities. Any pre-existing Federal
requirements remain in place after this disapproval. Federal
disapproval of the State submittal does not affect its state-
enforceability. Moreover, USEPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, USEPA certifies that
this disapproval action does not have a significant impact on a
substantial number of small entities because it does not remove
existing requirements nor does it impose any new Federal requirements.
SIP approvals under section 110 and subchapter I, part D of the 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 State action. The
Act forbids USEPA to base its actions concerning SIP's 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 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Particulate matter,
Lead, Carbon Monoxide, Reporting and recordkeeping requirements, Sulfur
dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: September 15, 1994.
Robert Springer,
Acting Regional Administrator.
[FR Doc. 94-23604 Filed 9-22-94; 8:45 am]
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