[Federal Register Volume 60, Number 44 (Tuesday, March 7, 1995)]
[Rules and Regulations]
[Pages 12478-12483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5516]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[IL001; FRL-5164-6]
Clean Air Act Final Interim Approval of Operating Permits
Program; Illinois
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: The EPA is promulgating interim approval of the Operating
Permits Program submitted by Illinois for the purpose of complying with
Federal requirements for an approvable State program to issue operating
permits to all major stationary sources, and to certain other sources.
EFFECTIVE DATE: March 7, 1995.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
United States Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, AR-18J, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Jennifer Buzecky, 77 West Jackson
Boulevard, Permits and Grants Section AR-18J, Chicago, Illinois 60604,
(312) 886-3194.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the Act'')), and implementing regulations at 40
Code of Federal Regulations (CFR) Part 70 require that States develop
and submit operating permits programs to EPA by November 15, 1993, and
that EPA act to approve or disapprove each program within 1 year after
receiving the submittal. 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.
On September 30, 1994, EPA proposed interim approval of the
operating permits program for Illinois. See 59 FR 49882. The EPA
received public comment on the proposal, and compiled a Technical
Support Document (TSD) which describes the operating permits program in
greater detail. In this notice EPA is taking final action to promulgate
interim approval of the operating permits program for Illinois.
II. Final Action and Implications
A. Analysis of State Submission
The EPA received comments from a total of four organizations. The
EPA's response to these comments is summarized in this section.
Comments [[Page 12479]] supporting EPA's proposal are not addressed in
this notice; however, EPA's response to all comments is available in a
document contained in the docket at the address noted in the ADDRESSES
section above.
1. Section 112(G) Implementation
The EPA received several comments regarding the proposed approval
of Illinois' preconstruction permitting program 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. Two commentors argued that Illinois should not, and
cannot, implement section 112(g) until: (1) EPA has promulgated a
section 112(g) regulation, and (2) the State has a section 112(g)
program in place. The commentors also argued that Illinois'
preconstruction review program cannot serve as a means to implement
section 112(g) because it was not designed for that purpose. One
commentor also asserted that such a regulatory program is
unconstitutional because the section 112(g) requirements are vague.
In its proposed interim approval of Illinois' part 70 program, EPA
also proposed to approve Illinois' preconstruction review program for
the purpose of implementing section 112(g) during the transition period
before promulgation of a Federal rule implementing section 112(g). This
proposal was based in part on an interpretation of the Act that would
require sources to comply with section 112(g) beginning on the date of
approval of the title V program, regardless of whether EPA had
completed its section 112(g) rulemaking. The EPA has since revised this
interpretation of the Act in a Federal Register notice published on
February 14, 1995. 60 FR 8333. The revised interpretation postpones the
effective date of section 112(g) until after EPA has promulgated a rule
addressing that provision. The revised notice sets forth in detail the
rationale for the revised interpretation.
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow States time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponement of section 112(g), Illinois must be able to
implement section 112(g) during the period between promulgation of the
Federal section 112(g) rule and adoption of implementing State
regulations.
For this reason, EPA is finalizing its approval of Illinois'
preconstruction review program. This approval clarifies that the
preconstruction review program is available as a mechanism to implement
section 112(g) during the transition period between promulgation of the
section 112(g) rule and adoption by Illinois of rules established to
implement section 112(g). However, since the approval is for the single
purpose of providing a mechanism to implement section 112(g) during the
transition period, the approval itself will be without effect if EPA
decides in the final section 112(g) rule that sources are not subject
to the requirements of the rule until State regulations are adopted.
Furthermore, EPA is limiting the duration of this approval to 18 months
following promulgation by EPA of the section 112(g) rule.
The EPA believes that, although Illinois currently lacks a program
designed specifically to implement section 112(g), Illinois'
preconstruction review program will serve as an adequate implementation
vehicle during a transition period because it will allow Illinois to
select control measures that would meet MACT, as defined in section
112, and incorporate these measures into a federally enforceable
preconstruction permit. Illinois will be able to impose federally
enforceable measures reflecting MACT for most if not all changes
qualifying as a modification, construction, or reconstruction under
section 112(g) because Illinois' preconstruction permitting program is
not limited to criteria pollutants. 415 ILCS 5/9.1(d).
Another consequence of the fact that Illinois lacks a program
designed specifically to implement section 112(g) is that the
applicability criteria found in its preconstruction review program may
differ from those in the section 112(g) rule. However, whether a
particular source change qualifies as a modification, construction, or
reconstruction for section 112(g) purposes during any transition period
will be determined according to the final section 112(g) rule. The EPA
would expect Illinois to be able to issue a preconstruction permit
containing a case-by-case determination of MACT where necessary for
purposes of section 112(g) even if review under its own preconstruction
review program would not be triggered.
In addition, one commentor incorporated by reference its comments
on the proposed section 112(g) rule, and stated that the proposed rule
has technical, legal, and constitutional defects that disqualify it as
a valid or workable approach to section 112(g) implementation. The EPA
believes the appropriate forum for pursuing objections to the legal
validity of Federal regulations is by: (1) Submitting comments on a
proposed rulemaking during the public comment period for that
particular rulemaking, or (2) petitioning for review of the promulgated
rule in the D.C. Circuit Court of Appeals. If the commentor has
concerns with the final section 112(g) rule, the commentor will have
the opportunity to pursue such action once the section 112(g) rule is
promulgated.
Two commentors assumed that EPA would delegate the section 112(g)
requirements to the State. The EPA wishes to clarify that the
implementation of section 112(g) by the State, including case-by-case
MACT determinations, is a requirement for approval of a State title V
program. In other words, approval of the title V operating permits
program confers on the State responsibility to implement section
112(g). Since the requirement to implement section 112(g) lies with the
State in the first instance, there is no need for a delegation action
apart from the title V program approval mechanism, except where the
State seeks approval of a ``no less stringent'' program under 40 CFR
part 63 subpart E. EPA's approval of Illinois' program for delegation
of section 112 standards as promulgated does not affect this
responsibility to implement section 112(g).
2. Variance
EPA received two comments regarding the variance provisions
contained in Illinois' existing regulations. The commentors objected to
EPA's position that State variances are not recognized by EPA unless a
variance is issued in accordance with part 70 procedures. The
commentors stated that dismissing all State-issued variances would
conflict with part 70. The commentors also stated that while part 70's
requirements for compliance schedules do not sanction non-compliance by
a source, variances provided by the state are consistent with the
recognition of non-complying sources and the requirement for compliance
schedules in the permit application.
EPA agrees with the commentors that variances provided by the State
could be consistent with the issuance of a part 70 permit. The
inclusion of a compliance schedule in a part 70 permit is a part 70
requirement and, therefore, a State variance from the applicable
requirements at the time of permit [[Page 12480]] issuance that is
provided to a non-complying source may not be inconsistent with part
70. EPA would not, however, recognize variances that grant relief from
the duty to comply with the terms of an issued federally enforceable
part 70 permit except where such relief is granted through procedures
allowed by part 70. Once again, EPA is not taking any action on
Illinois' variance procedures. The Agency is only clarifying that all
variances provided by the State for title V sources must be granted in
accordance with part 70.
3. Insignificant Activities
Four commentors responded to EPA's proposed concerns regarding
Illinois' draft insignificant activities regulations. In response to
these comments EPA reviewed the draft regulations a second time. On
February 2, 1995, EPA formally received a final copy of these
regulations for inclusion in the State's CAAPP submittal. Please see
the docket for a more detailed review of the Illinois rule.
All commentors objected to EPA's interpretation that the threshold
levels of 1.0 pound per hour (lb/hr) of criteria pollutants and .1 lb/
hr of HAP in 35 Illinois Administrative Code (IAC) Part 201.211 are not
acceptable. These cut-off rates mentioned above are contained in the
State's provision, ``Application for Classification as an Insignificant
Activity.'' 35 IAC 201.211. One commentor stated that the more
appropriate classification of insignificant activities lies in
different sections of the State's regulations. The section referred to
by the commentor distinguishes between HAP and non-HAP emissions. For
HAP calculations, the rule relies on concentrations of HAPs in the form
of raw material fed to an emission unit. 35 IAC 201.209(a)(1) (A)-(C).
For non-HAPs, the rule refers to emission units that never exceed .1
lb/hr or .44 tpy. 35 IAC 201.210(a) (2) and (3). Although EPA cannot
now determine whether or not the HAP calculations would result in
emissions in amounts greater than the significance limits that will
ultimately be finalized in the section 112(g) rulemaking, EPA also
believes that the non-HAP provisions in 35 IAC 201.210(a) (2) and (3)
do not now pose a problem for approval of the State's submittal. The
Agency, therefore, is taking no action on these provisions. EPA
originally objected to 35 IAC 201.210(a)(1), however, because this
provision includes emissions determined to be insignificant according
to the provisions in 35 IAC 201.211 (allowing sources to apply for
insignificant activities that are granted by IEPA's discretion). The
regulatory sections offered by the commentor, therefore, are not
entirely dispositive of the issue.
Upon further reflection, EPA generally agrees with the commentors
that the rate itself of 1.0 lb/hr of criteria pollutant emission cut-
off contained in 35 IAC 201.211 need not be amended for full approval.
Emission cut-offs approved for insignificant activities are based upon
State-specific circumstances and analysis. One State's cut-offs may not
be appropriate for another State's programs due to variations in local
factors such as non-attainment areas, State Implementation Plans (SIP),
source types, and emissions. EPA believes the State should be given
substantial deference in this matter and finds the insignificance
levels established by Illinois will not, in and of themselves,
interfere with the State's ability to ensure that part 70 sources meet
all applicable requirements of the SIP. Although a severe ozone
nonattainment area exists in the State, EPA believes that it is
reasonable in this case to project that the insignificant levels
established in the State of Illinois' regulations will not interfere
with its effort to be reclassified as attainment. Illinois believes
that this level will not only reduce its administrative burden, but
allow it to eventually meet its attainment demonstrations.
The Agency, however, is still concerned with the development of
these regulations and continues to believe that interim approval is
appropriate for these rules at this time. 35 IAC 201.208 of the State's
rule does not meet the requirements of 40 CFR 70.5(c), which requires
that an application may not omit information needed to determine the
applicability of, or to impose, any applicable requirements, or to
evaluate the fee amount required under the schedule approved pursuant
to 40 CFR 70.9. These provisions are intended to ensure that sources do
not file incomplete permit applications due to inadvertent usage of a
State's insignificant activity provisions. In addition, 35 IAC
201.210(b) must be amended to clarify that a source must specifically
list in its permit application the activities present at its facility
and not just rely on a general statement that denotes the presence of
activities.
Although the emission cut-offs for criteria pollutants are not a
concern at this time, revisions to the State's insignificant
regulations will still be necessary for full approval of the State's
program. EPA believes the State must make the following changes for
full approval: (1) the language of 201.208 must worded to state that at
the time of filing an application, the application must include all
necessary information to determine the applicability of or to impose
any applicable requirements or fees and (2) 201.210(b) must be amended
so that sources specifically list the insignificant activities present
at their facilities.
4. Administrative Amendments
EPA received three comments on the inclusion of the State's
incorporation of emission trades based upon a SIP-approved trading
program into a title V permit based upon the administrative amendment
procedure. Two of the commentors requested clarification as to whether
EPA intends to subject emissions trading that occurs under an emissions
cap established in a part 70 permit to significant modification
procedures. One commentor stated that it is not necessary for EPA to
consider this provision now since Illinois has no such regulations
developed concerning emissions trading.
Responding to the commentors' request for clarification, EPA does
not interpret part 70 to require states to subject emissions trades
that occur under an emissions cap established in a part 70 permit to
significant modification procedures. These trades are established by a
part 70 permit and, therefore, sources do not need to revise their part
70 permits when utilizing these trading provisions.
Part 70, however, does not allow the use of an administrative
permit amendment to accomplish incorporation of emissions trades
resulting from the application of an approved economic incentives rule,
a marketable permits rule or a generic emissions trading rule into a
part 70 permit. 40 CFR 70.7(d). Any substantive change to a permit term
or condition must follow the permit revision procedures of part 70.
Future part 70 rulemakings may change this requirement, but for the
present, EPA can only review State submittals in accordance with the
promulgated part 70 rulemaking of July 21, 1992.
Despite the fact that Illinois does not currently have an approved
trading program, it is appropriate for EPA to now consider this State
legislative provision allowing emission trades to be incorporated
through the administrative amendment procedure. EPA cannot approve
regulations in a State program that would conflict with provisions in
the part 70 regulations.
5. Compliance Certification
Three commentors objected to EPA's proposed interim approval
regarding the [[Page 12481]] State's legislation concerning compliance
certification by a responsible official. The Illinois statute requires
that applications be certified for truth, accuracy, and completeness by
a responsible official in accordance with applicable regulations. 415
ILCS 5/39.5(5)(e). Part 70 requires that certifications be based upon a
``reasonable belief'' or that statements be based upon ``information
and belief.'' 40 CFR 70.5(d) and 70.6(c)(1).
EPA agrees with the commentors to the extent that interim approval
for this issue is not appropriate. Upon further review, Illinois'
legislative authority for certification of responsible officials
carries the same meaning as part 70. A responsible official of the
permit applicant would presumably need to make some inquiry into the
document being certified to ensure that the official's certification
meets the requirements of the Illinois statute. In light of this, EPA
will remove the compliance certification issue from the items needing
further State action for final approval.
6. Enhanced NSR
Three commentors objected to EPA's proposal of interim approval for
Illinois' inclusion of preconstruction review permits into part 70
permits via the administrative amendment procedures of part 70. To
summarize, all three commentors object to requiring the development of
specific regulations that would outline the substantive, procedural and
compliance requirements necessary for incorporation of a
preconstruction permit into a part 70 permit through the administrative
amendment procedure. This incorporation of a preconstruction permit
into a part 70 permit is known as ``enhanced new source review (NSR).''
In EPA's proposal, EPA stated that 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 and compliance requirements
substantially equivalent to those contained in 40 CFR 70.6. To utilize
40 CFR 70.7(d)(1)(v), the state must develop regulations which outline
the actual requirements necessary for preconstruction permits to
qualify for inclusion in part 70 permits using the administrative
amendment procedure and for EPA to approve these regulations as
``substantially equivalent.'' Without these regulations, the public and
EPA cannot track the issuance and amendments of part 70 permits to
ensure that the permits contain all requirements. The public also needs
assurance that a source will not be able to avoid the requirements of
the part 70 process through a different permitting program such as
preconstruction review.
Although 40 CFR 70.7(d)(1)(v) is not a necessary element of a part
70 program, the State of Illinois submitted a title V permit program
that provides for the use of this procedure. EPA, therefore, must
determine the adequacy of this aspect of the State's submittal. Because
Illinois' existing legislative authority allows the use of enhanced
NSR, without any further regulations defining substantially equivalent
procedures to 40 CFR 70.6, 70.7 and 70.8, this provision is currently
deficient. To cure this deficiency, the State must: (1) develop
regulations outlining the exact substantive, procedural and compliance
requirements for incorporation of preconstruction permits into part 70
permits and (2) submit these regulations to EPA for review and approval
to ensure that these regulations are ``substantially equivalent'' to
the part 70 regulations.
415 ILCS 5/39.5(13)(c)(v), therefore, will remain on the interim
approval list until the State corrects this deficiency. Until
regulations are developed outlining the elements of an enhanced NSR
program, the State will be expected to interpret ``substantially
equivalent'' in 415 ILCS 5/39.5(13)(c)(v) consistently with part 70.
7. Knowingly Tampering with Monitoring Devices
Two commentors objected to EPA's inclusion of Illinois' statutory
provision concerning enforcement of knowingly tampering with any
``monitoring device or record.'' 415 ILCS 5/44(j)(4)(D). Part 70
requires that criminal fines be imposed upon one who knowingly renders
inaccurate any required ``monitoring device or method.'' 40 CFR
70.11(a)(3)(iii). One commentor stated that Illinois' enforcement
provision is identical in meaning and effect to the language in part 70
and is appropriate in the context of Illinois' law.
Upon further review, EPA agrees with the commentors that the
Illinois legislative provisions for enforcement for knowingly tampering
with monitoring devices or records is equivalent in meaning to the
requirements of part 70. EPA will, therefore, remove from the list of
interim approval issues the requirement that the State make a
legislative change to its enforcement provisions.
8. Prompt Reporting of Deviations
EPA received two comments supporting its review of Illinois'
submittal concerning the prompt reporting of deviations from permit
conditions required by 40 CFR 70.6(a)(3)(iii)(B). Because Illinois did
not include a definition of ``prompt'' in its legislation or
regulations, an acceptable alternative is for the State to define
``prompt'' in each part 70 permit. This definition will be dependent
upon the individual circumstances of each source.
The commentors, however, believe that the EPA must revise several
of its earlier interim approval notices, in which the Agency
conditioned final approval on including a definition of prompt in the
State program, in order to provide a consistent application of the
appropriate interpretation of its rules. EPA is not aware of any
program approval notices that need to be corrected at this time.
B. Additional Issues
The Illinois Environmental Protection Agency (IEPA) informed the
EPA, after publication of the proposed interim approval of the State's
title V program, that the State cannot meet its January 1, 1995,
commitment for an effective acid rain program. In light of the
structure of existing state legislation, in order for an eventual full
approval of the State's CAAPP, the State must incorporate by reference
the Federal acid rain program into the State's existing CAAPP
legislation. 415 ILCS 5/39.5(17). IEPA requested an extension of its
commitment to incorporate by reference the Federal program so that the
State can combine this incorporation by reference with the amendments
to its CAAPP legislation required for interim approval. This
presentation to the legislature would occur in the January, 1996,
legislative session, rather than the January, 1995, session originally
contemplated. IEPA argues that amending its CAAPP legislation once
rather than twice would not interfere with the State's implementation
of Phase II of the Acid Rain Program.
On January 9, 1994, EPA received a letter from Bharat Mathur,
Chief, Bureau of Air, IEPA, to Stephen Rothblatt, Chief, Regulation
Development Branch, EPA Region 5, detailing why the State cannot meet
its January 1, 1995, commitment and reiterating its commitment to
implement the Acid Rain program.
Due to the State's existing enabling legislation for titles IV and
V and its commitment to implement the acid rain program in the interim
period between [[Page 12482]] this final notice and an effective
incorporation by reference of the Federal acid rain program into the
State's legislation, EPA believes an extension of the State's
commitment to adopt acid rain legislation is appropriate. Existing
State legislation allows the State to collect applications for Phase II
affected source and allows the State to process these applications and
evidences the State's ability to implement the Federal acid rain
program in accordance with all Federal regulations. 415 ILCS 5/
39.5(17). Until the State officially incorporates the Federal acid rain
program by reference, EPA expects the State to use its broad
legislative authority for the receipt and processing of phase II
applications in accordance with all Federal regulations.
C. Final Action
The EPA is promulgating interim approval of the operating permits
program submitted by Illinois on November 15, 1993. The State must make
the following changes to receive full approval:
1. The State must correct all deficiencies in its insignificant
activities regulations (refer to previous discussion of insignificant
activities for actual changes);
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. The State must develop regulations defining enhanced NSR for the
purposes of implementing 40 CFR 70.7(d)(1)(v); and
4. Due to the State's present legislative provisions concerning the
Acid Rain program, the State must incorporate by reference the federal
regulations for implementation of the acid rain program.
The scope of Illinois' part 70 program approved in this notice
applies to all part 70 sources (as defined in the approved program)
within the State of Illinois, except any sources of air pollution over
which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-
55818 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the
Act as ``any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village, which is Federally
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.''
See section 302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25,
1994); 58 FR 54364 (Oct. 21, 1993).
This interim approval, which may not be renewed, extends until
March 7, 1997. During this interim approval period, the State of
Illinois is protected from sanctions, and EPA is not obligated to
promulgate, administer and enforce a Federal operating permits program
in Illinois. 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 the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications.
If the State of Illinois fails to submit a complete corrective
program for full approval by September 9, 1996, EPA will start an 18-
month clock for mandatory sanctions. If Illinois then fails to submit a
corrective program that EPA finds complete before the expiration of
that 18-month period, EPA will be required to apply one of the
sanctions in section 179(b) of the Act, which will remain in effect
until EPA determines that Illinois has corrected the deficiency by
submitting a complete corrective program. Moreover, if the
Administrator finds a lack of good faith on the part of the State of
Illinois, both sanctions under section 179(b) will apply after the
expiration of the 18-month period until the Administrator determined
that Illinois had come into compliance. In any case, if, six months
after application of the first sanction, Illinois still has not
submitted a corrective program that EPA has found complete, a second
sanction will be required.
If EPA disapproves Illinois' complete corrective program, EPA will
be required to apply one of the section 179(b) sanctions on the date 18
months after the effective date of the disapproval, unless prior to
that date the State of Illinois has submitted a revised program and EPA
has determined that it corrected the deficiencies that prompted the
disapproval. Moreover, if the Administrator finds a lack of good faith
on the part of Illinois, both sanctions under section 179(b) shall
apply after the expiration of the 18-month period until the
Administrator determines that Illinois has come into compliance. In all
cases, if, six months after EPA applies the first sanction, Illinois
has not submitted a revised program that EPA has determined corrects
the deficiencies, a second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if Illinois
has not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to the Illinois program by the expiration of this
interim approval and that expiration occurs after November 15, 1995,
EPA must promulgate, administer and enforce a Federal permits program
for Illinois upon interim approval expiration.
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 promulgating 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.
The EPA is also promulgating approval of Illinois' federally
enforceable state operating permit program (FESOP) for the purposes of
creating federally enforceable limitations on the potential to emit of
Hazardous Air Pollutants (HAP) 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 and the criteria established in section 112(l).
The EPA is also promulgating approval of Illinois's preconstruction
permitting program found in 35 Ill. Adm. Code 201-203, under the
authority of title V and part 70 solely for the purpose of implementing
section 112(g) to the extent necessary during the period between final
promulgation of section 112(g) and adoption of any necessary State
rules to implement EPA's section 112(g) regulations. However, since the
approval is for the single purpose of providing a mechanism to
implement section 112(g) during the transition period, the approval
itself will be without effect if EPA decides in the final section
112(g) rule that sources are not subject to the requirements of the
rule until State regulations are adopted. Although section 112(l)
generally provides authority for approval of State air programs to
implement section 112(g), title V and section 112(g) provide authority
for this limited approval because of the direct linkage between
[[Page 12483]] the 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 any other provision under
the Act, for example, section 110. The duration of this approval is
limited to 18 months following promulgation by EPA of section 112(g)
regulations, to provide Illinois adequate time for the State to adopt
any necessary regulations consistent with the Federal requirements.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final interim approval, including four public comments received
and reviewed by EPA on the proposal, 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 final interim approval.
The docket is available for public inspection at the location listed
under the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR Part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
D. Effective Date
An administrative agency engaging in rulemaking must comport with
the requirements of section 553 of the Administrative Procedures Act (5
U.S.C.A., chapter 5). Section 553 requires that an agency allow at
least 30 days from the date of publication before the effective date of
a substantive rulemaking. If, however, good cause can be shown, then
the agency may impose an effective date of less than 30 days after
publication. Good cause exists to initiate an effective date less than
30 days after publication when it is in the public interest and the
shorter time period does not cause prejudice to those regulated by the
rule. British American Commodity Options Corp. v. Bagley, 552 F.2d 482,
at 488-89 (1977). For the reasons explained below, EPA believes that
good cause exists for the effective date of Illinois' CAAPP to be the
date of publication of this rulemaking.
An immediate effective date is in the public's interest for several
reasons. The requirement for sources to submit CAAPP applications to
the State is contingent in the Illinois regulations upon the effective
date of the program, not the date of publication. All sources subject
to title V in Illinois must submit their title V applications to the
state within one year of the effective date of the State's program.
Likewise, the collection of fees, hiring of permit engineers and
analysis of applicants' permits cannot begin until the State's program
is effective. Illinois' program, therefore, should be adopted without
any further delay inasmuch as the public has been without the
protection of this comprehensive regulatory program and because any
further delay would not serve the public interest.
Although it is in the public's interest to commence Illinois' title
V program upon the date of publication, EPA must ensure that this
action will not have any prejudicial effects upon the regulated
community. Rowell v. Andrus, 631 F.2d 699, at 702-703 (1980). For
example, EPA must ensure that the regulated community has sufficient
notice of this rulemaking and ample opportunity to comment. EPA
believes that all interested parties have had sufficient notice of this
rulemaking and ample time to comment. The development of the State's
CAAPP occurred over the last few years. As such, it contains a
combination of legislation and regulations. These regulations were all
previously subjected to public comment at the State level. The State's
legislation has been effective and fully enforceable as a matter of
State law since September 26, 1992, and the first set of State CAAPP
regulations became effective on June 10, 1993. Illinois' CAAPP program,
therefore, has been fully effective and enforceable as a matter of
State law for over the past year. In addition, EPA also subjected these
same regulations and legislation to public comment when it published
its proposed interim approval of the State's CAAPP on September 30,
1994. From the preceding facts, it is obvious that all interested
parties have had ample time both to participate in the rulemaking
process and to ready themselves to comply with this program.
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.
Dated: February 24, 1995.
Valdas V. Adamkus,
Regional Administrator.
40 CFR part 70 is amended as follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. sections 7401 et seq.
2. Appendix A to part 70 is amended by adding the entry for
Illinois in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Illinois
(a) The Illinois Environmental Protection Agency: submitted on
November 15, 1993; interim approval effective on March 7, 1995;
interim approval expires March 7, 1997.
(b) Reserved
* * * * *
[FR Doc. 95-5516 Filed 3-6-95; 8:45 am]
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