[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] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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