[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36060-36063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17216]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[IL101-1-6689a; FRL-5249-9]


Approval and Promulgation of Implementation Plans; Illinois

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA is approving the Particulate Matter contingency 
measures State implementation plan (SIP) revisions submitted by the 
State of Illinois on July 29, 1994. The USEPA made a finding of 
completeness in a letter dated December 9, 1994. This submittal 
addresses the Federal Clean Air Act requirement to submit contingency 
measures for particulate matter with an aerodynamic diameter less than 
or equal to a nominal 10 micrometers (PM) for the areas designated as 
nonattainment for the PM National Ambient Air Quality Standards 
(NAAQS). In the proposed rules section of this Federal Register, USEPA 
is proposing approval of and soliciting public comment on this 
requested SIP revision. If adverse comments are received on this 
action, USEPA will withdraw this final rule and address the comments 
received in response to this action in a final rule on the related 
proposed rule which is being published in the proposed rules section of 
this Federal Register. A second public comment period will not be held. 
Parties interested in commenting on this action should do so at this 
time.

DATES: This final rule is effective September 11, 1995 unless notice is 
received by August 14, 1995 that someone wishes to submit adverse 
comments. If the effective date is delayed, timely notice will be 
published in the Federal Register.

ADDRESSES: Copies of the State's submittal and other information are 
available for inspection at the following address: (It is recommended 
that you telephone David Pohlman at (312) 886-3299 before visiting the 
Region 5 Office.) U.S. Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 
60604.
    Written comments can be mailed to: J. Elmer Bortzer, Chief, 
Regulation Development Section (AR-18J), Regulation Development Branch, 
Air and Radiation Division, U.S. Environmental Protection Agency, 77 
West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: David Pohlman (312) 886-3299.

SUPPLEMENTARY INFORMATION:

I. Background

    The four Illinois PM nonattainment areas are: (1) Lyons Township in 
Cook County; (2) The area in Cook County bounded on the north by 79th 
Street, on the west by interstate 57 between Sibley Boulevard and 
Interstate 94 and by Interstate 94 between Interstate 57 and 79th 
Street, on the south by Sibley Boulevard, and on the east by the 
Illinois/Indiana State line; (3) Oglesby, LaSalle County including the 
following townships ranges and sections: T32N, R1E, S1; T32N, R2E, S6; 
T33N, R1E, S24; T33N, R1E, S25; T33N, R2E, S30; T33N, R2E, S31; and 
T33N, R1E, S36; and (4) Granite City Township and Nameoki Township in 
Madison County. These nonattainment areas will be referred to in this 
notice as the McCook, Lake Calumet, LaSalle, and Granite City 
nonattainment areas, respectively. These areas were designated 
nonattainment for PM and classified as moderate under sections 
107(d)(4)(B) and 188(a) of the Clean Air Act, upon enactment of the 
Clean Air Act Amendments of 1990. See 56 FR 56694 (Nov. 6, 1991); 40 
CFR 81.314. The air quality planning requirements for moderate PM 
nonattainment areas are set out in subparts 1 and 4 of part D, Title I 
of the Clean Air Act. The USEPA has issued a ``General Preamble'' 
describing USEPA's preliminary views on how USEPA intends to review 
SIPs and SIP revisions submitted under Title I of the Clean Air Act, 
including those State submittals containing moderate PM nonattainment 
area SIP requirements (see generally 57 FR 13498 (April 16, 1992) and 
57 FR 18070 (April 28, 1992)). Because USEPA is describing its 
interpretations here only in broad terms, the reader should refer to 
the General Preamble for a more detailed discussion of the 
interpretations of Title I advanced in this action and the supporting 
rationale.
    The 1990 Amendments to the Clean Air Act made significant changes 
to the Clean Air Act. References herein are to the Clean Air Act, as 
amended (the Act). The Clean Air Act is codified, as 

[[Page 36061]]
amended, in the U.S. Code at 42 U.S.C. Sections 7401, et seq. Subpart 1 
contains provisions applicable to nonattainment areas generally and 
Subpart 4 contains provisions specifically applicable to PM 
nonattainment areas. At times, Subpart 1 and Subpart 4 overlap or 
conflict. The USEPA has attempted to clarify the relationship among 
these provisions in the ``General Preamble'' and, as appropriate, in 
today's action and supporting information.
    Those States containing initial moderate PM nonattainment areas 
were required to submit, among other things, several provisions by 
November 15, 1991. These provisions are described in USEPA's rulemaking 
on the LaSalle moderate PM nonattainment area SIP (58 FR 54291, October 
21, 1993) and in the rulemaking on the McCook, Lake Calumet, and 
Granite City moderate PM nonattainment areas SIP (59 FR 59653, November 
18, 1994). Such States were also required to submit contingency 
measures by November 15, 1993 (see 57 FR 13543). These measures must 
become effective, without further action by the State or USEPA, upon a 
determination by USEPA that the area has failed to achieve reasonable 
further progress (RFP) or to attain the PM NAAQS by the applicable 
statutory deadline. See section 172(c)(9) and 57 FR 13510-13512 and 
13543-13544.
II. Analysis of State Submittal

    Section 110(k) of the Act sets out provisions governing USEPA's 
review of SIP submittals (see 57 FR 13565-13566). The Illinois 
Environmental Protection Agency (IEPA) submitted a requested SIP 
revision to the USEPA with a letter dated July 29, 1994. The submittal 
contains revisions to Title 35 of the Illinois Administrative Code 
(IAC), Parts 106 and 212. Specifically, the following sections are 
added:

Subpart J: Culpability Determinations

Section 106.930  Applicability
Section 106.931  Petition for Review
Section 106.932  Response and Reply
Section 106.933  Notice and Hearing
Section 106.934  Opinion and Order

Subpart U: Additional Control Measures

Section 212.700  Applicability
Section 212.701  Contingency Measure Plans, Submittal and Compliance 
Date
Section 212.702  Determination of Contributing Sources
Section 212.703  Contingency Measure Plan Elements
Section 212.704  Implementation
Section 212.705  Alternative Implementation

A. Procedural Requirements

    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
USEPA. Section 110(a)(2) of the Act provides that each implementation 
plan submitted by a State must be adopted after reasonable notice and 
public hearing. Section 110(l) of the Act similarly provides that each 
revision to an implementation plan submitted by a State under the Act 
must be adopted by such State after reasonable notice and public 
hearing. Also section 172(c)(7) of the Act requires that plan 
provisions for nonattainment areas meet the applicable provisions of 
section 110(a)(2).
    The USEPA also must determine whether a submittal is complete and 
therefore warrants further USEPA review and action (see Section 
110(k)(1) and 57 FR 13565). The USEPA's completeness criteria for SIP 
submittals are set out at 40 CFR part 51, appendix V. The USEPA 
attempts to make completeness determinations within 60 days of 
receiving a submission. However, a submittal is deemed complete by 
operation of law if a completeness determination is not made by USEPA 
six months after receipt of the submission.
    The State of Illinois, after providing adequate notice, held a 
public hearing on February 22, 1994, regarding the PM contingency 
measures. Following the public hearing, the contingency measure rules 
were adopted by the Illinois Pollution Control Board on June 23, 1994, 
and published in the Illinois Register on July 22, 1994. The State 
rules became effective on July 11, 1994.
    The submittal was reviewed by USEPA to determine completeness in 
accordance with the completeness criteria set out at 40 CFR part 51, 
appendix V. The submittal was found to be complete and a letter dated 
December 9, 1994, was sent to the State indicating the completeness of 
the submittals and the next steps to be taken in the review process.

B. Contingency Measures

    The Clean Air Act requires States containing PM nonattainment areas 
to adopt contingency measures that will take effect without further 
action by the State or USEPA upon a determination by USEPA that an area 
failed to make RFP or to timely attain the applicable NAAQS, as 
described in section 172(c)(9). See generally 57 FR 13510-13512 and 
13543-13544. Pursuant to section 172(b), the Administrator has 
established a schedule providing that states containing initial 
moderate PM nonattainment areas shall submit SIP revisions containing 
contingency measures no later than November 15, 1993. (See 57 FR 13543, 
n. 3.)
    The General Preamble further explains that contingency measures for 
PM should consist of other available control measures, beyond those 
necessary to meet the core moderate area control requirement to 
implement reasonably available control measures (see Clean Air Act 
sections 172(c)(1) and 189(a)(1)(C)). Based on the statutory structure, 
USEPA believes that contingency measures must, at a minimum, provide 
for continued progress toward the attainment goal during the interim 
period between the determination that the SIP has failed to achieve 
RFP/provide for timely attainment of the NAAQS and the additional 
formal air quality planning following the determination (57 FR 13511).
    Section 172(c)(9) of the Act specifies that contingency measures 
shall ``take effect * * * without further action by the State, or the 
[USEPA] Administrator.'' USEPA has interpreted this requirement (in the 
General Preamble at 57 FR 13512) to mean that no further rulemaking 
activities by the State or USEPA would be needed to implement the 
contingency measures. In general, USEPA expects all actions needed to 
affect full implementation of the measures to occur within 60 days 
after USEPA notifies the State of its failure to attain the standard or 
make RFP.
    The USEPA recognizes that certain actions, such as notification of 
sources, modification of permits, etc., may be needed before some 
measures could be implemented. However, States must show that their 
contingency measures can be implemented with minimal further 
administrative action on their part and with no additional rulemaking 
action such as public hearing or legislative review.
    The Illinois PM contingency measure rules require sources in PM 
nonattainment areas with actual annual source-wide emissions of PM of 
at least 15 tons per year to submit, by November 15, 1994, two levels 
of contingency measure plans. The Level I contingency plans are to 
contain measures that would reduce total annual source-wide fugitive 
emissions of PM by at least 15 percent. The Level II plans are to 
contain measures to reduce fugitive PM emissions by 25%. The rules 
require that these plans become Federally enforceable permit 
conditions.
    Following a monitored exceedance of the 24 hour PM NAAQS, IEPA will 
determine the source or sources which 

[[Page 36062]]
are likely to have contributed to the exceedance. Depending on the 
magnitude of the monitored exceedance, IEPA will require culpable 
sources to implement either Level I or Level II contingency plans 
within 90 days.
    Upon a finding by USEPA that an area has failed to attain the PM 
NAAQS, all sources in that PM nonattainment area subject to the rules 
would be required to implement Level II measures within 60 days.

C. Enforceability Issues

    All measures and other elements in the SIP must be enforceable by 
the State and USEPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR 
13556). The USEPA criteria addressing the enforceability of SIPs and 
SIP revisions were stated in a September 23, 1987 memorandum (with 
attachments) from J. Craig Potter, Assistant Administrator for Air and 
Radiation, et al. (see 57 FR 13541). State implementation plan 
provisions also must contain a program to provide for enforcement of 
control measures and other elements in the SIP [see section 
110(a)(2)(C)].
    The specific measures contained in the Illinois contingency plan 
are addressed above. The Illinois regulations, as included in the SIP, 
are legally enforceable by IEPA. Also, the specific Level I and Level 
II contingency plans will be enforceable by IEPA as operating permit 
conditions. Further, after culpable sources are determined the State 
will revise operating permits to include additional control measures 
and these Federally enforceable operating permits will be submitted to 
USEPA. The USEPA believes that the State's existing air enforcement 
program will be adequate to enforce PM contingency plans.
III. Final Action

    The USEPA approves Illinois' PM contingency measure rules, 
submitted by IEPA on July 29, 1994. This submittal addressed PM 
contingency measure plans that were due on November 15, 1993. The State 
rules require two levels of contingency measures which would be 
triggered either by a monitored exceedance of the PM NAAQS or by a 
finding by USEPA that an area has failed to attain the PM NAAQS. 
Culpable sources would be determined, the State would revise operating 
permits to include additional control measures, and these Federally 
enforceable operating permits would be submitted to USEPA.
    The USEPA is publishing this action without prior proposal because 
USEPA views this action as a noncontroversial revision and anticipates 
no adverse comments. However, USEPA is publishing a separate document 
in this Federal Register publication, which constitutes a ``proposed 
approval'' of the requested SIP revision and clarifies that the 
rulemaking will not be deemed final if timely adverse or critical 
comments are filed. The ``direct final'' approval shall be effective on 
September 11, 1995, unless USEPA receives adverse or critical comments 
by August 14, 1995. If USEPA receives comments adverse to or critical 
of the approval discussed above, USEPA will withdraw this approval 
before its effective date by publishing a subsequent Federal Register 
document which withdraws this final action. All public comments 
received will then be addressed in a subsequent action. Please be aware 
that USEPA will institute another comment period on this action only if 
warranted by significant revisions to the rulemaking based on any 
comments received in response to today's action. Any parties interested 
in commenting on this action should do so at this time. If no such 
comments are received, USEPA hereby advises the public that this action 
will be effective on September 11, 1995.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from Executive Order 12866 review.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. USEPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the 
USEPA must prepare a budgetary impact statement to accompany any 
proposed or final rule that includes a Federal mandate that may result 
in estimated costs to State, local, or tribal governments in the 
aggregate; or to the private sector, of $100 million or more. Under 
Section 205, the USEPA must select the most cost-effective and least 
burdensome alternative that achieves the objectives of the rule and is 
consistent with statutory requirements. Section 203 requires the USEPA 
to establish a plan for informing and advising any small governments 
that may be significantly or uniquely impacted by the rule.
    The USEPA has determined that the approval action promulgated today 
does not include a Federal mandate that may result in estimated costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector.
    This Federal action approves pre-existing requirements under State 
or local law, and imposes no new Federal requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or the private 
sector, result from this action.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. (5 U.S.C. 603 and 604.) 
Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP-approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the Act, preparation of a regulatory flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of the 
State action. The Clean Air Act forbids USEPA to base its actions 
concerning SIPs on such grounds. Union Electric Co. v. USEPA., 427 U.S. 
246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 11, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See Section 307(b)(2)).

[[Page 36063]]


List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

    Dated: June 14, 1995.
David Kee,
Acting Regional Administrator.

    For the reasons stated in the preamble, part 52, chapter I, title 
40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart O--Illinois

    2. Section 52.720 is amended by adding paragraph (c)(111) to read 
as follows:


Sec. 52.720   Identification of plan.

* * * * *
    (c) * * *
    (111) On July 29, 1994, Illinois submitted regulations which 
require adoption and implementation of particulate matter contingency 
measures for Illinois' four moderate particulate matter nonattainment 
areas. Sources in the nonattainment areas which emit at least 15 tons 
of particulate matter must submit two levels of contingency measures, 
which will then become Federally enforceable. Sources will be required 
to implement the contingency measures if an exceedance of the National 
Ambient Air Quality Standard for Particulate Matter is measured, or if 
the United States Environmental Protection Agency finds that an area 
has failed to attain the National Ambient Air Quality Standards.
    (i) Incorporation by reference.
    Illinois Administrative Code Title 35: Environmental Protection, 
Subtitle B: Air Pollution, Chapter I: Pollution Control Board;
    (A) Part 106 Hearings Pursuant to Specific Rules, Section 106.930--
Applicability, Section 106.931--Petition for Review, Section 106.932--
Response and Reply, Section 106.933--Notice and Hearing, Section 
106.934--Opinion and Order. Amended at 18 Ill. Reg. 11579-11586. 
Effective July 11, 1994.
    (B) Part 212 Visible and Particulate Matter Emissions, Section 
212.700--Applicability, Section 212.701--Contingency Measure Plans, 
Submittal and Compliance Date, Section 212.702--Determination of 
Contributing Sources, Section 212.703--Contingency Measure Plan 
Elements, Section 212.704--Implementation, Section 212.705--Alternative 
Implementation. Added at 18 Ill. Reg. 11587-11606. Effective July 11, 
1994.

[FR Doc. 95-17216 Filed 7-12-95; 8:45 am]
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