[Federal Register Volume 66, Number 204 (Monday, October 22, 2001)]
[Proposed Rules]
[Pages 53370-53373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26677]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[IL; FRL-7088-6]


Clean Air Act Proposed Full Approval of Operating Permits 
Program; Illinois

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes fully approving the Illinois Clean Air Act 
Permit Program (CAAPP), 415 ILCS 5/39.5, submitted by Illinois pursuant 
to subchapter V of the Clean Air Act, which requires states to develop 
and submit to EPA for approval, programs for issuing operating permits 
to all major stationary sources and to certain other sources.

DATES: EPA must receive comments on this proposed action on or before 
November 21, 2001.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the proposed 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 Steve Marquardt at (312) 353-3214 to arrange a time to 
inspect the submittal.

FOR FURTHER INFORMATION CONTACT: Steve Marquardt, AR-18J, 77 West 
Jackson Boulevard, Chicago, Illinois, 60604, Telephone Number: (312) 
353-3214, E-Mail Address: [email protected].

[[Page 53371]]


SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

What is being addressed in this document?
What are the program changes that EPA proposes to approve?
What is involved in this proposed action?

What Is Being Addressed in This Document?

    As required under Subchapter V of the Clean Air Act (``the Act'') 
as amended (1990), EPA has promulgated regulations 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, or withdraw approval of the state programs (see 57 FR 
32250 (July 21, 1992)). These regulations are codified at 40 Code of 
Federal Regulations (CFR) part 70. Pursuant to Subchapter V of the Act, 
generally known as Title V, and the implementing regulations, states 
developed and submitted to EPA programs for issuing operating permits 
to all major stationary sources and to certain other sources. Where a 
program substantially, but not fully, met the requirements of part 70, 
EPA granted the program interim approval. If EPA has not fully approved 
a state's operating permit program by the expiration of its interim 
approval period, EPA must establish and implement a federal program 
under 40 CFR part 71 in that state.
    EPA promulgated final interim approval of the Illinois Title V 
program on March 7, 1995 (60 FR 12478), and the program became 
effective on that date.
    Illinois submitted amendments to its Title V program for approval 
on May 31, 2001. Illinois intended the amendments to correct interim 
approval issues identified in the March 7, 1995 interim approval 
action.

What Are the Program Changes That EPA Proposes To Approve?

A. Title V Interim Approval Corrections

    In the March 7, 1995 action, EPA identified four interim approval 
issues. The following is a description of the issues and their 
subsequent resolution.
1. Insignificant Activities
    In the interim approval, the EPA discussed Illinois' regulations 
relating to insignificant emissions units (IEUs). 40 CFR 70.5(c) 
prohibits, in an application, omission of 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. The EPA found that section 201.208 of 
the State's administrative code, 35 IAC 201.208, did not require 
information on IEUs necessary to meet the requirements of 40 CFR 
70.5(c). In addition, the EPA stated that Illinois must amend 35 IAC 
201.210(b) to clarify that a source must specifically list in its 
permit application the insignificant activities present at its facility 
rather than rely solely on a general statement that denotes the 
presence of IEUs.
    EPA outlined in the final interim approval that, to obtain full 
approval, the State must (1) require in section 201.208 that 
applications include all necessary information on IEUs to determine the 
applicability of or to impose any applicable requirements or fees and 
(2) require in section 201.210(b) that sources specifically list the 
insignificant activities present at their facilities.
    With regard to the first issue, Illinois clarified in its May 31, 
2001 submittal that 415 ILCS 5/39.5(5)(c) requires applicants to submit 
``all information, as requested in Agency application forms, sufficient 
to evaluate the subject source and its application and to determine all 
applicable requirements, pursuant to the Clean Air Act, and regulations 
thereunder, this Act and regulations thereunder.'' Section 39.5(5)(g) 
further provides that applicants must furnish additional information on 
the request of the permitting authority. Finally, section 39.5(5)(i) 
provides that applicants must submit supplementary information if the 
initial submittal was incomplete or incorrect.
    To further clarify that applicants must include in their 
applications all information on IEUs necessary to determine 
applicability of and compliance with specific applicable requirements, 
Illinois will revise form 297-CAAPP to require information regarding 
specific applicable requirements which apply to IEUs, and compliance of 
the IEUs with those specific applicable requirements prior to receiving 
full approval.
    EPA addressed IEU issues in a July 10, 1995 document, ``White Paper 
for the Streamlined Development of Part 70 Permit Applications'' (White 
Paper), a guidance document clarifying Part 70 permit application 
requirements. The White Paper provides that ``requirements can normally 
be adequately addressed in the permit application with minimal or no 
reference to any specific emissions unit or activity, provided that the 
scope of the requirement and the manner of its enforcement are clear.'' 
White Paper, Section II.B.4. However, when an IEU is subject to a 
specific applicable requirement, the applicant must list that IEU 
individually, along with the specific applicable requirements and 
associated monitoring requirements.
    In light of these clarifications and Illinois' proper 
implementation of this requirement, we have determined that the 
Illinois rules and administrative code provide a sufficient basis to 
require that permit applicants submit all necessary information 
required by 40 CFR 70.5(c).
    We also have determined that Illinois need not require sources to 
include in their applications specific information on IEUs for purposes 
of fee calculation. Illinois Administrative Code section 270.603(b) 
states that, ``the amount of the fee shall be based on the allowable 
emissions information submitted by the applicant in the fee calculation 
portion of its CAAPP application, not including emissions of 
insignificant levels or from insignificant activities, pursuant to 35 
Ill. Adm. Code 201.''
    In the second IEU issue identified in the final interim approval 
notice, EPA stated that Illinois must require applicants to list 
specifically in their permit applications insignificant units present 
at their facilities. However, as noted above, since granting interim 
approval EPA has issued guidance which clarifies that 40 CFR 70.5(c) 
provides permitting authorities with the flexibility to tailor the 
level of information on IEU's required in an application, as long as 
the applications include sufficient information to meet the goals of 40 
CFR 70.5(c). In particular, EPA stated that permitting authorities 
could allow sources ``merely to list in the application the kinds of 
insignificant activities that are present at the source or check them 
off from a list of insignificant activities approved in the program.'' 
White Paper, section II.B.3. EPA also stated in ``White Paper Number 2 
for Improved Implementation of the Part 70 Operating Permits Program,'' 
issued March 5, 1996 (White Paper #2), that permitting authorities may 
allow applicants to group generically information on IEU's and to list 
IEU groups without emissions estimates, unless emission estimates are 
needed for another purpose such as determining the amount of permit 
fees that are calculated using total source emissions. White Paper #2, 
section II.C.2. This approach allows applicants to incorporate into 
their applications standard permit conditions with minimal or no 
reference to any specific emission unit or activity, provided that the 
scope of the requirement and associated monitoring requirements are

[[Page 53372]]

clear. However, applicants must continue to include in their 
applications information on IEUs which are exempt due to size or 
production rate, in accordance with 40 CFR 70.5(c).
    EPA believes that the clarifications made by Illinois and the White 
Paper and White Paper #2 are sufficient to address this IEU interim 
approval issue.
2. Administrative Amendments
    In the final interim approval, EPA stated that 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.
    Illinois deleted this provision from its operating permit program 
in House Bill 3373 that became effective on July 1, 2001. Illinois' 
action corrects this interim approval issue because the permitting 
authority is now required to determine the appropriate modification 
mechanism consistent with Illinois' permit modification procedures and 
40 CFR 70.7.
3. Enhanced NSR
    In the March 7, 1995 interim approval notice, EPA noted that 415 
ILCS 5/39.5(13)(c)(v) allowed incorporation of requirements from 
preconstruction permits authorized under a federally approved 
preconstruction permit program into a Title V permit through the 
administrative amendment process provided for under the enhanced New 
Source Review provision of 40 CFR 70.7(d)(1)(v). EPA commented that, to 
use this provision, the State must develop and have approved into its 
CAAPP program regulations which are substantially equivalent to the 
procedural and compliance 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. EPA expressed concern 
that, 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.
    EPA has determined that the existence of this provision in the 
Illinois CAAPP program without regulations defining procedures 
substantially equivalent to 40 CFR 70.6, 70.7 and 70.8 does not make 
the program deficient. Illinois has not developed any regulations to 
address this issue. Without the required procedures, the provision is 
not usable. If the State ever intends to use this enhanced NSR 
provision, it 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 into the CAAPP program. 
Until Illinois adopts the necessary ``substantially equivalent'' 
requirements, the State cannot use the enhanced NSR provision. To 
assure that this provision is unused, the Illinois EPA will amend the 
State's administrative amendment application form, 273-CAAPP, to delete 
the category that enables a source to take advantage of incorporation 
of a construction permit through administrative amendment procedures. 
Also, the Illinois EPA will submit a letter to the EPA describing that 
the Illinois EPA will not use this option until the proper procedures 
are in place. Illinois must make the form changes and submit the letter 
prior to receiving full approval.
4. Acid Rain
    The final interim approval notice stated that 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 its existing CAAPP 
program. Illinois developed Senate Bill 0819, which became effective on 
August 10, 1997, in part to provide that Subchapter IV-A of the Federal 
Clean Air Act and regulations promulgated under the Act, concerning 
sources of acid rain deposition, are enforceable under the Illinois 
Environmental Protection Act. 415 ILCS 5/39.5(17)(a) now states that, 
``Title IV of the Clean Air Act and regulations promulgated thereunder, 
including but not limited to 40 CFR Part 72, as now or hereafter 
amended, are applicable to and enforceable under this Act.'' This 
legislative change corrects this issue.

B. Other Title V Program Revisions

    As discussed in detail below, EPA will address any uncorrected 
deficiencies in a notice of deficiency which EPA will publish by 
December 1, 2001.

What Is Involved in This Proposed Action?

A. Proposed Action

    The EPA proposes full approval of the operating permits program 
submitted by Illinois based on the revisions submitted on May 31, 2001. 
EPA finds that Illinois has satisfactorily addressed the program 
deficiencies identified in EPA's March 7, 1995 interim approval 
rulemaking.

B. Citizen Comment Letter on Illinois Title V Program

    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operating permits programs until December 
1, 2001. (65 FR 32035) The action was subsequently challenged by the 
Sierra Club and the New York Public Interest Research Group (NYPIRG). 
In settling the litigation, EPA agreed to publish a notice in the 
Federal Register that would alert the public that they may identify and 
bring to EPA's attention alleged programmatic and/or implementation 
deficiencies in Title V programs and that EPA would respond to their 
allegations within specified time periods if the comments were made 
within 90 days of publication of the Federal Register notice.
    Citizens commented on what they believe to be deficiencies with 
respect to the Illinois Title V program. EPA takes no action on those 
comments in today's action and will respond to them by December 1, 
2001. As stated in the Federal Register notice published on December 
11, 2000, (65 FR 77376), EPA will respond by December 1, 2001 to timely 
public comments on programs that have obtained interim approval; and 
EPA will respond by April 1, 2002 to timely comments on fully approved 
programs. We will publish a notice of deficiency (NOD) when we 
determine that a deficiency exists, or we will notify the commenter in 
writing to explain our reasons for not making a finding of deficiency. 
An NOD will not necessarily be limited to deficiencies identified by 
citizens and may include any deficiencies that we have identified 
through our program oversight.

Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this proposed action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601, et seq.) the Administrator certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities because it merely approves state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as

[[Page 53373]]

described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-
4) because it proposes to approve pre-existing requirements under state 
law and does not impose any additional enforceable duties beyond that 
required by state law. This rule also does not have tribal implications 
because it will not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified by 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments'' (65 FR 67249, November 9, 2000). This rule also 
does not have federalism implications because it will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, ``Federalism'' (64 FR 43255, August 
10, 1999). The rule merely proposes to approve existing requirements 
under state law, and does not alter the relationship or the 
distribution of power and responsibilities between the state and the 
Federal Government established in the Clean Air Act. This proposed rule 
also is not subject to Executive Order 13045, ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997) or Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355 (May 22, 2001), because it is not a significantly regulatory 
action under Executive Order 12866. This action will not impose any 
collection of information subject to the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., other than those previously 
approved and assigned OMB control number 2060-0243. For additional 
information concerning these requirements, see 40 CFR part 70. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272 note, requires federal agencies to 
use technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Absent a prior 
existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a SIP submission for 
failure to such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a SIP submission that otherwise satisfies the provisions of the Act. 
Therefore, the requirements of section 12(d) of the NTTA do not apply.
    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this proposed rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 
15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings' issued 
under the executive order, and has determined that the rule's 
requirements do not constitute a taking. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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: October 16, 2001.
 David A. Ullrich,
Deputy Regional Administrator, Region V.
[FR Doc. 01-26677 Filed 10-19-01; 8:45 am]
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