[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62946-62949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29960]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[IL; FRL-7112-1]


Clean Air Act Final Full Approval of the Operating Permits 
Program; Illinois

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is taking final action to fully approve 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: The effective date of this action is November 30, 2001.

ADDRESSES: Copies of the state's submittal and other supporting 
information used in developing the full 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 if 
inspection of the submittal is desired.

[[Page 62947]]


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].

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

What is being addressed in this document?
What is involved in this final action?
What is the scope of EPA's full approval?

What Is Being Addressed in This Document?

    As required under Subchapter V, generally known as title 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 title V, and EPA's 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, a federal program under 40 CFR part 71 will 
automatically take effect 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 the four 
interim approval issues identified in the March 7, 1995 interim 
approval action. EPA proposed full approval of the Illinois title V 
program on October 22, 2001 (66 FR 53370), based on the resolution of 
the four identified interim approval issues.
    In the October 22, 2001 notice, the EPA stated that Illinois needed 
to make two form clarifications as well as send a letter regarding its 
understanding of its ability to use the State's enhanced NSR provision 
at 415 ILCS 5/39.5(13)(c)(v). Illinois sent a letter dated November 9, 
2001, to address the clarifications and changes requested in the 
proposed full approval.
    The first form change dealt with identifying specific requirements 
applicable to insignificant emission units (IEUs). EPA stated that, 
prior to receiving full approval, Illinois must clarify that applicants 
must include in their applications all information on IEUs necessary to 
determine applicability of and compliance with specific requirements. 
Illinois has added text to the instructions of its application form 
297-CAAPP to clarify that sources must provide information regarding 
specific applicable requirements which apply to IEUs, and compliance of 
the IEUs with those specific applicable requirements.
    The second form change and additional statements dealt with 
Illinois' enhanced NSR provision at 415 ILCS 5/39.5(13)(c)(v). The EPA 
stated that, to assure that Illinois will not use this provision, 
Illinois 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. Illinois has deleted from 
application form 273-CAAPP the statement regarding the ability to 
incorporate a construction permit into the title V permit through the 
administrative amendment procedures. Additionally, in the November 9 
letter submitted by Illinois, the State expressed that it would not use 
this option until the proper procedures are in place. Specifically, 
Illinois stated, ``the Illinois EPA understands that in order to use 
the enhanced NSR process, as described in 40 CFR 70.7(d)(1)(v), we must 
develop and obtain USEPA approval for program regulations which are 
substantially equivalent to the procedural requirements of 40 CFR 70.7 
and 70.8 and compliance requirements substantially equivalent to those 
contained in 40 CFR 70.6.'' These form changes and clarifications 
provide adequate responses to the issues raised in the October 22, 2001 
proposed full approval.

What Is Involved in This Final Action?

    The EPA is granting full approval of the Illinois title V operating 
permits program based on the revisions submitted on May 31, 2001 and 
the previously mentioned November 9, 2001 letter. These revisions and 
clarifications satisfactorily address the four program deficiencies 
identified in EPA's March 7, 1995, interim approval rulemaking and the 
clarifications required in the proposed full approval.

What Is the Scope of EPA's Full Approval?

    In its program submission, Illinois did not assert jurisdiction 
over Indian country. To date, no tribal government in Illinois has 
applied to EPA for approval to administer a title V program in Indian 
country within the state. EPA regulations at 40 CFR part 49 govern how 
eligible Indian tribes may be approved by EPA to implement a title V 
program on Indian reservations and in non-reservation areas over which 
the tribe has jurisdiction. EPA's part 71 regulations govern the 
issuance of federal operating permits in Indian country. EPA's 
authority to issue permits in Indian country was challenged in Michigan 
v. EPA, (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued 
its decision in the case, vacating a provision that would have allowed 
EPA to treat areas over which EPA determines there is a question 
regarding the area's status as if it is Indian country, and remanding 
to EPA for further proceedings. EPA will respond to the court's remand 
and explain EPA's approach for further implementation of part 71 in 
Indian country in a future action.

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.
    One citizen group commented on what it believes to be deficiencies 
with respect to the Illinois title V program. As stated in the Federal 
Register notice published on October 22, 2001 (66 FR 53370), proposing 
to fully approve Illinois' operating permit program, EPA takes no 
action on those comments in today's action. Rather, EPA expects to 
respond by December 1, 2001 to timely public comments on programs that 
have obtained interim approval, and by April 1, 2002 to timely comments 
on fully approved programs. We will publish a notice of deficiency 
(NOD) when we

[[Page 62948]]

determine that a deficiency exists, or we will notify the commenter in 
writing to explain our reasons for not making a finding of deficiency. 
In addition, we will publish a notice of availability in the Federal 
Register notifying the public that we have responded in writing to 
these comments and how the public may obtain a copy of our response. 
EPA Region 5 will also post its response letters on the Internet at 
http://yosemite.epa.gov/r5/ardcorre.nsf/Title+V+Program+Comments. EPA 
Region 5 includes the states of Michigan, Minnesota, Illinois, Indiana, 
Ohio, and Wisconsin. 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. Furthermore, in 
the future, EPA may issue an additional NOD if EPA or a citizen 
identifies other deficiencies.

Administrative Requirements

A. What Are the Administrative Requirements for This Action?

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this final approval is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. For this reason, this action is also 
not subject to Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This action merely approves state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this final approval will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing 
requirements under state law and does not impose any additional 
enforceable duty beyond that required by state law, it does not contain 
an unfunded mandate nor does it significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4).
    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). This rule merely 
approves 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 Act.
    This final approval is also not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not a significant 
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 state operating permit programs submitted pursuant to title V 
of the Act, EPA will approve state programs provided that they meet the 
requirements of the Act and EPA's regulations codified at 40 CFR part 
70. Absent a prior existing requirement for the state to use voluntary 
consensus standards, EPA has no authority to disapprove a state 
operating permit program for failure to use such standards, and it 
would thus be inconsistent with applicable law for EPA to use voluntary 
consensus standards in place of a state program that otherwise 
satisfies the provisions of the Act. Therefore, the requirements of 
section 12(d) of the NTTA do not apply.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective November 30, 2001.
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 4, 2002. 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) of the Act.)

B. What Is the Effective Date of EPA's Full Approval of Illinois' Title 
V Program?

    EPA's approval of Illinois' title V program is effective on 
November 30, 2001. Pursuant to section 502(h) of the Act, the effective 
date of a permitting program approved under title V is the date of 
approval by the Administrator or her delegatee. Furthermore, the good 
cause exception under the Administrative Procedure Act (APA) allows EPA 
to make the full approval of the state's program immediately effective. 
In relevant part, the APA provides that publication of ``a substantive 
rule shall be made not less than 30 days before its effective date, 
except-- * * * (3) as otherwise provided by the agency for good cause 
found and published with the rule.'' 5 U.S.C. Sec. 553(d)(3). Section 
553(b)(3)(B) of the APA provides that good cause may be supported by an 
agency determination that a delay in the effective date is 
impracticable, unnecessary, or contrary to the public interest. The EPA 
finds that it is necessary and in the public interest to make this 
action effective sooner than 30 days following publication. In this 
case, EPA believes that it is in the public interest for the program to 
take

[[Page 62949]]

effect before December 1, 2001. The EPA's interim approval of Illinois' 
program expires on December 1, 2001. In the absence of this full 
approval of Illinois' amended program taking effect on November 30, the 
federal program under 40 CFR part 71 would automatically take effect in 
Illinois and would remain in place until the effective date of the 
fully-approved state program. The EPA believes it is in the public 
interest for sources, the public and Illinois to avoid any gap in 
coverage of the state program, as such a gap could cause confusion 
regarding permitting obligations. Furthermore, a delay in the effective 
date is unnecessary because Illinois has been administering the title V 
permit program under an interim approval. Through this action, EPA is 
approving a few revisions to the existing and currently operational 
program. The change from the interim approved program which 
substantially met the part 70 requirements, to the fully approved 
program is relatively minor, in particular if compared to the changes 
between a state-established and administered program and the federal 
program.

C. What Is the Scope of EPA's Full Approval?

    In its program submission, Illinois did not assert jurisdiction 
over Indian country. To date, no tribal government in Illinois has 
applied to EPA for approval to administer a title V program in Indian 
country within the state. The EPA regulations at 40 CFR part 49 govern 
how eligible Indian tribes may seek approval from EPA to implement a 
title V program on Indian reservations and in non-reservation areas 
over which the tribe has jurisdiction. The EPA's part 71 regulations 
govern the issuance of federal operating permits in Indian country. The 
EPA's authority to issue permits in Indian country was challenged in 
Michigan v. EPA, (D.C. Cir. No. 99-1151). On October 30, 2001, the 
court issued its decision in the case, vacating a provision that would 
have allowed EPA to treat areas over which EPA determines there is a 
question regarding the area's status as if it is Indian country, and 
remanding to EPA for further proceedings. The EPA will respond to the 
court's remand and explain EPA's approach for further implementation of 
part 71 in Indian country in a future action.

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: November 27, 2001.
David A. Ullrich,
Deputy Regional Administrator, Region V.

    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. 7401 et seq.

    2. Appendix A to part 70 is amended by adding paragraph (b) to the 
entry for Illinois to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *
Illinois
* * * * *
    (b) The Illinois Environmental Protection Agency: program revisions 
submitted on May 31, 2001; submittal adequately addressed the 
conditions of the interim approval which expires on December 1, 2001. 
Illinois is hereby granted final full approval effective November 30, 
2001.
* * * * *
[FR Doc. 01-29960 Filed 12-3-01; 8:45 am]
BILLING CODE 6560-50-P