[Federal Register Volume 60, Number 187 (Wednesday, September 27, 1995)] [Rules and Regulations] [Pages 49778-49781] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 95-23958] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [IL78-2-6839; FRL-5274-9] Final Promulgation of Revisions to the New Source Review State Implementation Plan; Illinois AGENCY: United States Environmental Protection Agency (USEPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The USEPA approves a requested State Implementation Plan (SIP) revision submitted by the State of Illinois for the purpose of meeting requirements of the Clean Air Act, as amended in 1990 (amended Act) with regard to new source review (NSR) in areas that have not attained the National ambient air quality standards (NAAQS). The requested revision was submitted by the State to satisfy certain Federal requirements for an approvable nonattainment new source review SIP for Illinois. EFFECTIVE DATE: October 27,1995. ADDRESSES: Copies of the State's submittal and other information are available for inspection during normal business hours at the following location: United States Environmental Protection Agency, Region 5, Air and Radiation Division, Regulation Development Branch, 77 West Jackson Boulevard, Chicago, Illinois 60604. A copy of these SIP revisions is available for inspection at the following location: Office of Air and Radiation (OAR) Docket and Information Center (Air Docket 6102), room M1500, United States Environmental Protection Agency, 401 M Street SW., Washington, DC 20460, (202) 260-7548. FOR FURTHER INFORMATION CONTACT: Jennifer Buzecky, Environmental [[Page 49779]] Protection Specialist, or Genevieve Nearmyer, Environmental Engineer, Permits and Grants Section, Regulation Development Branch (AR-18J), United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Anyone wishing to come to the Region 5 offices should first contact Ms. Buzecky at (312) 886-3194 or Ms. Nearmyer at (312) 353-4761. Reference file IL78-2-6839. SUPPLEMENTARY INFORMATION: I. Background The air quality planning requirements for nonattainment NSR are set out in part D of title I of the Clean Air Act (Act). The USEPA has issued a ``General Preamble'' describing its preliminary views on how USEPA intends to review SIPs and SIP revisions submitted under part D, including those State submittals containing nonattainment area NSR SIP requirements (see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)). Because USEPA is describing its interpretations here only in broad terms, the reader should refer to the General Preamble for a more detailed discussion of the interpretations of part D advanced in this proposal and the supporting rationale. The USEPA is currently developing a proposed rule to assist the implementation of the changes under the amended Act in the new source review provisions in parts C and D of title I of the Act. The USEPA anticipates that the proposed rule will be published for public comment in mid-1995. If USEPA has not taken final action on States' NSR submittals by that time, USEPA may refer to the proposed rule as the most authoritative guidance available regarding the approvability of the submittals. USEPA expects to take final action to promulgate a rule to implement the parts C and D changes sometime during 1995. Upon promulgation of those regulations, USEPA will review the NSR SIPs of all States to determine whether additional SIP revisions are necessary. Prior to USEPA approval of a State's NSR SIP submission, the State may continue permitting only in accordance with the new statutory requirements for permit applications completed after the relevant SIP submittal date. This policy was explained in transition guidance memoranda from John Seitz dated March 11, 1991 and September 3, 1992. As explained in the March 11 memorandum, USEPA does not believe Congress intended to mandate the more stringent title I NSR requirements during the time provided for SIP development. States were thus allowed to continue to issue permits consistent with requirements in their current NSR SIPs during that period, or apply 40 CFR part 51, appendix S for newly designated areas that did not previously have NSR SIP requirements. The September 3 memorandum also addressed the situation where States did not submit the part D NSR SIP requirements or revisions by the applicable statutory deadline. For permit applications found complete by the SIP submittal deadline, States may issue final permits under the prior NSR rules, assuming certain conditions in the September 3 memorandum are met. However, for applications completed after the SIP submittal deadline, USEPA will consider the source to be in compliance with the Act only where the source obtains from the State a permit that is consistent with the substantive new NSR part D provisions in the amended Act. USEPA believes this guidance continues to apply to permitting pending final action on NSR SIP submittals. In a September 23, 1994, Federal Register document, USEPA proposed approval with a contingency, and disapproval in the alternative, of Illinois' NSR SIP submittal. 59 FR 48839. The USEPA received public comment on the proposal, and compiled a Technical Support Document (TSD) which describes the State's correction of the existing deficiencies contained in its NSR submittal. In this document, USEPA is taking final action to promulgate approval of Illinois' NSR SIP requirements. II. Final Action and Implications A. Analysis of State Submission The USEPA received comments from one organization supporting USEPA's proposal. A copy of this comment is available in a document contained in the docket at the address noted in the ADDRESSES section above. In USEPA's proposal, USEPA explained that the Illinois NSR submittal contained a deficiency for which USEPA proposed approval of the State's requested SIP revision with a contingency and a proposed disapproval in the alternative. This deficiency was due to written interpretations of section 203.209(b) adopted by the State in an attempt to implement the amended Act's special provisions for serious and severe ozone nonattainment areas, section 182(c)(6)-(8). The interpretations adopted by the State were deficient in that they did not ensure the Federal enforceability of any future emission reductions used for netting credits and failed to account for all emission increases occurring during the contemporaneous period. Because the language of the rule was itself approvable, USEPA proposed to approve section 203.209(b) adopted by the State contingent upon the State's withdrawal of its interpretations of section 203.209(b). For further explanation of USEPA's rationale see proposal. 59 FR 48841-48842. On November 10, 1994, Bharat Mathur, the Illinois Environmental Protection Agency (IEPA) Chief of the Bureau of Air, sent a letter to USEPA committing to the withdrawal of the above-mentioned interpretations. On February 2, 1995, the IEPA and the Illinois Environmental Regulatory Group filed a Joint Motion to Reconsider the Board Opinion and Order of April 22, 1993. The motion requested that the Board strike from the Opinion and Order its interpretation of section 203.209(b) of the Amended Rule. On February 16, 1995, the correction of the deficiencies in section 203.209(b) became effective upon the Board's adoption of a Final Opinion and Order upon Reconsideration. Because the State withdrew the interpretation of section 203.209(b) adopted previously by the Board, the State has corrected the deficiency in its NSR SIP submittal. USEPA, therefore, can finally approve the State's NSR SIP. In addition to the above deficiency, the proposal discussed additional changes of consequence to the State's NSR SIP. One such change is the substitution of a plantwide definition of source for a dual definition of stationary source. As explained in the proposal, this change will not affect the State's ability to eventually achieve attainment. 59 FR 48843. USEPA is also approving the switch from a dual to plantwide definition of stationary source. One additional issue of importance is the applicability of control requirements for major stationary sources of particulate matter (PM) also applying to major stationary sources of PM precursors. If USEPA determines that major stationary sources of PM precursors do not significantly contribute to PM levels that exceed the NAAQS, then section 189(e) of the Act would no longer require NSR on major precursor sources. As explained in the proposal, 59 FR 48842, USEPA promulgated a final rule on October 21, 1993, finding that precursors do not significantly contribute to PM concentrations in the LaSalle nonattainment area, and proposed a rulemaking on May 25, 1994, asserting that precursors do not significantly contribute to PM concentrations in the remaining three PM nonattainment areas of Illinois: McCook, Lake Calumet [[Page 49780]] and Granite City. (See 58 FR 54291 for final PM rulemaking in LaSalle nonattainment area; 59 FR 26988 for proposed PM rulemaking in McCook, Lake Calumet and Granite City). The McCook proposal was finalized since this rulemaking on November 18, 1994. (See 59 FR 59653 for final PM rulemaking in McCook, Lake Calumet and Granite City). Because these two rulemakings evidence that PM precursors do not significantly contribute to PM concentrations in all four PM nonattainment areas of the State, USEPA is approving that NSR is no longer required on major PM precursor sources in the State of Illinois. B. Final Actions As stated above, the Illinois NSR submittal contained a deficiency for which USEPA proposed approval of the State's requested SIP revision with a contingency and a proposed disapproval in the alternative. USEPA approves Illinois' NSR submittal based upon the February 16, 1995, Board withdrawal of all interpretations of section 203.209(b). USEPA also approves the State's substitution of a plantwide definition of stationary source for a dual source definition and approves the State's ability to no longer require NSR on major PM precursor sources. USEPA approves all elements of the State's NSR SIP submitted to comply with the amended Act. III. Executive Order 12866 This action has been classified as a Table 3 action for signature by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989(54 FR 2214-2225), as revised by a July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for Air and Radiation. The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866 review. Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to the SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements. IV. Regulatory Flexibility Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, USEPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. SIP approvals under section 110 and subchapter I, part D of the Act do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP- approval does not impose any new requirements, I certify that it does not have a significant impact on any small entities affected. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Act forbids USEPA to base its actions concerning SIP's on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct 1976); 42 U.S.C. 7410(a)(2). V. Unfunded Mandates Under section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, 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 tribunal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, 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 USEPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. USEPA has determined that the final 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 now new Federal requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds. Dated: July 27, 1995. Robert Springer, Acting Regional Administrator. For the reasons set out in the preamble, part 52, chapter I, title 40 of the Code of Federal Regulations is amended to read 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--llinois 2. Section 52.720 is amended by adding paragraph (c) (113) to read as follows: Sec. 52.720 Identification of plan. * * * * * (c) * * * (113) On April 27, 1995, the Illinois Environmental Protection Agency requested a revision to the Illinois State Implementation Plan in the form of revisions to the State's New Source Review rules for sources in the Chicago and metropolitan East St. Louis ozone nonattainment areas and are intended to satisfy Federal requirements of the Clean Air Act as amended in 1990. The State's New Source Review provisions are codified at Title 35: Environmental Protection Subtitle B: Air Pollution, Chapter I: Pollution Control Board, Subchapter a: Permits and General Provisions. Part 203 Major Stationary Sources Construction and Modification is amended as follows: (i) Incorporation by reference. (A) Title 35: Environmental Protection, Subpart A: General Provisions, Section 203.101 Definitions, Section 203.107 Allowable Emissions, Section 203.110 Available Growth Margin, Section 203.112 Building, Structure and Facility, Section 203.121 Emission Offset, Section 203.122 Emissions Unit, Section 203.123 federally Enforceable, Section 203.126 Lowest Achievable Emission Rate, Section 203.128 Potential to Emit, Section 203.145 Volatile Organic Material, Section 203.150 Public Participation. Effective April 30, 1993. (B) Title 35: Environmental Protection, Subpart B: Major Stationary Sources in Nonattainment Areas, Section 203.201 Prohibition, Section 203.203 Construction Permit Requirement and Application, Section 203.206 Major Stationary Source, Section 203.207 Major Modification of a [[Page 49781]] Source, Section 203.208 Net Emission Determination, Section 203.209 Significant Emissions Determination. Effective April 30, 1993. (C) Title 35: Environmental Protection, Subpart C: Requirements for Major Stationary Sources in Nonattainment Areas, Section 203.301 Lowest Achievable Emission Rate, Section 203.302 Maintenance of Reasonable Further Progress and Emission Offsets, Section 203.303 Baseline and Emission Offsets Determination, Section 203.306 Analysis of Alternatives. Effective April 30, 1993. (D) Title 35: Environmental Protection, Subpart H: Offsets for Emission Increases From Rocket Engines and Motor Firing, Section 203.801 Offsetting by Alternative or Innovative Means. Effective April 30, 1993. Published in the Illinois Register, Volume 17, Issue 20, May 14, 1993. [FR Doc. 95-23958 Filed 9-26-95; 8:45 am] BILLING CODE 6560-50-F