[Federal Register Volume 68, Number 90 (Friday, May 9, 2003)]
[Rules and Regulations]
[Pages 24885-24888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11471]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IL207-3; FRL-7487-5]


Approval and Promulgation of Implementation Plans; Illinois 
Emission Test Averaging

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to Illinois rules for averaging of 
emission tests. Illinois requested these revisions on October 9, 2001. 
For sources with steady emission rates, these revisions provide for 
assessing compliance with mass emission limits on the basis of an 
average of three test runs.
    EPA proposed to approve these revisions on April 15, 2002, at 67 FR 
18115. The Environmental Law & Policy Center and others submitted a 
comment letter objecting to this proposed approval. The comments 
observed that averaging three test runs yields a less stringent 
compliance test than assessing compliance based on each test run 
individually. The commenters thus view the submittal as an 
inappropriate relaxation. The comments further object that the State's 
rules provide for insufficient information on case-specific test 
protocol revisions to be able to judge how these revisions would affect 
test results.
    EPA concludes that averaging of three mass measurement test runs is 
standard practice, and concludes that Illinois is formalizing its pre-
existing approach and not relaxing its compliance assessments. EPA 
concludes further that Illinois has adopted an appropriate approach to 
differentiating between major and minor test method revisions and to 
addressing minor revisions.

DATES: This rule is effective on June 9, 2003.

ADDRESSES: Copies of the Illinois submittal and other information are 
available for inspection during normal business hours at the following 
address: (We recommend that you telephone John Summerhays at (312) 886-
6067, before visiting the Region 5 Office.)
    United States Environmental Protection Agency, Region 5, Air 
Programs Branch (AR-18J), Regulation Development Section, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental 
Scientist, United States Environmental Protection Agency, Region 5, Air 
Programs Branch (AR-18J), Regulation Development

[[Page 24886]]

Section, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-
6067, ([email protected]).

SUPPLEMENTARY INFORMATION:
    This document is organized according to the following table of 
contents:

I. What did EPA propose?
II. What did commenters say and what is EPA's response?
III. EPA Action.
IV. Statutory and Executive Order Reviews.

I. What Did EPA Propose?

    EPA proposed to approve Illinois' test averaging rules. EPA 
proposed this action on April 15, 2002, at 67 FR 18115, based on a 
submittal by the Illinois Environmental Protection Agency on October 9, 
2001.
    Illinois' submittal includes a new part 283 of Title 35 of the 
Illinois Administrative Code, entitled General Procedures for Emissions 
Tests Averaging. A core feature of these rules is that evaluations of 
compliance of sources having relatively stable emissions with mass 
emission limits shall be on the basis of the average of three test runs 
whenever feasible. The rules further specify that the emissions tests 
must be in conformance with a test plan that the source must submit 
prior to compliance testing. Sources may request permission from IEPA 
to make minor deviations from the test plan. ``Minor deviations'' are 
defined in the rule to include only those testing procedures that do 
not affect the level of emissions measured and do not affect how other 
sources in the source category might be tested.
    The averaging of three test runs is standard practice. Almost all 
air emission compliance tests in Illinois use methods given in Appendix 
A to Title 40 Code of Federal Regulations part 60 (40 CFR part 60). 
While EPA only requires these methods for assessing compliance with new 
source performance standards, in practice these methods are used nearly 
universally in evaluating compliance with limits applicable to older as 
well as newer sources. Averaging provisions for the 40 CFR part 60 
methods are given in 40 CFR 60.8(f), stating that ``unless otherwise 
specified * * *, each performance test shall consist of three separate 
runs using the applicable test method * * * . For the purpose of 
determining compliance with an applicable standard, the arithmetic 
means of results of the three runs shall apply.'' Further text of 40 
CFR 60.8(f) explains that compliance may be judged on the basis of an 
average of two test runs if for specified reasons a valid third test 
run cannot be obtained. These provisions represent standard practice in 
compliance assessments. EPA proposed to approve Illinois' rules because 
it judged them consistent with this standard practice.
    It may be noted that visible emission tests are addressed somewhat 
differently from the mass emission tests addressed in 40 CFR 60.8. 
Visible emission tests, including opacity observations under Method 9 
and tests of the duration of visible emissions under Method 22, involve 
many observations per hour (240 observations per hour in the case of 
Method 9), so that measurement uncertainty is addressed in these 
methods without averaging the results for multiple hours. That is, 
averaging of three test runs is standard practice only for mass 
emissions testing, where each test run produces only one mass emissions 
result. Illinois clearly intended its averaging of three test runs to 
apply only to mass emissions testing, and EPA's approval actions 
reflect that understanding.

II. What Did Commenters Say and What Is EPA's Response?

    EPA received one letter commenting on its proposed rulemaking. This 
letter was co-signed by the Environmental Law & Policy Center, the 
American Lung Association of Metropolitan Chicago, and the Illinois 
Chapter of the Sierra Club. The following discussion is organized in 
comment-response format, presenting each issue or concern raised by the 
commenters followed by EPA's response.
    Comment: The commenters observe that averaging results from three 
test runs provides a less stringent test of compliance than treating 
any one test run with excessive emissions as a violation. The 
commenters therefore consider Illinois' adoption of a rule providing 
for averaging of three test runs to be a relaxation of Illinois' rules. 
The commenters state that such a relaxation is impermissible under 
Clean Air Act section 110(l) and (for nonattainment areas) section 193 
and under rules for prevention of significant deterioration unless 
special demonstrations of acceptability are provided.
    Response: EPA agrees that averaging three test runs is less 
stringent than using each test run as an independent test of 
compliance. However, EPA does not agree that Illinois is in fact 
relaxing its compliance assessments.
    As stated in Illinois' technical support document for its state 
rulemaking, ``The purpose of these * * * rules is to codify an existing 
Agency policy.'' Thus, compliance assessments after this rule change 
are no less stringent than compliance assessments before this rule 
change; Illinois used an average of three test runs to assess 
compliance before this rule change and will continue to use an average 
of three test runs after this rule change. Thus, this rule change 
merely formalized existing practice, and did not relax the procedures 
by which Illinois assesses compliance.
    Similarly, approval of these rules into the State Implementation 
Plan (SIP) does not relax the approach EPA will use to assess 
compliance, since EPA's approach for assessing compliance before 
Illinois adopted these rules is the same as the approach it will use 
afterward, i.e. generally assessing compliance based on an average of 
three test runs.
    Thus, Illinois' formalization of this practice does not represent a 
relaxation, since in fact Illinois and EPA will be assessing compliance 
in the same way after this revision as before. Since EPA does not 
consider this a relaxation, the provisions of sections 110(l) and 193 
and the prevention of significant deterioration provisions do not 
apply.
    The purpose of addressing compliance on the basis of a three run 
average is to address measurement uncertainty. Under normal 
circumstances, EPA believes that results from one test run do not 
provide sufficient reliability to demonstrate compliance or 
noncompliance with mass emission limits. Use of a three run average 
(or, when necessary and appropriate, at least a two run average) 
provides a better degree of confidence in the compliance assessment.
    Comment: The commenters state that ``there are inadequate 
safeguards built into the rule to assure that averaging is only used to 
remedy random results that are a result of inaccurate test methods.'' 
The commenters cite example test results included in IEPA's testimony 
during its rule adoption process (test results of 201, 166, and 154 
ppm, showing compliance on average with a 200 ppm limit). The 
commenters believe this testimony demonstrates that test result 
variability that IEPA views as reflecting testing variability in fact 
represents variability in source operations and source emission rates. 
The commenters believe this evidence contradicts IEPA's claims that its 
rule addresses modest variability in test results and not variability 
in source emission rates. The commenters believe that the rule allows 
sources to be treated as complying with applicable limits on average 
when in fact the sources are going in and out of compliance.
    Response: Consecutive test runs on a facility that by objective 
measures is being operated in the same manner can yield test result 
differences like those

[[Page 24887]]

identified in IEPA's testimony. Thus, averaging three test runs is 
needed to improve the confidence level of the conclusion that the 
source is operating in or out of compliance.
    Illinois' rules provide additional safeguards against finding 
compliance on average for a source that is moving in and out of 
compliance. These safeguards are based on restrictions that three run 
averaging is permissible only for sources with steady state emissions.
    Comment: The commenters are concerned in particular that variations 
in emissions can arise from variations in source operations. The 
commenters observe that ``[i]t is not possible to define every 
operating parameter in the testing plan.'' As a result, the commenters 
conclude that the rule does not prevent facilities from either 
intentionally or unintentionally varying operations so that excessive 
emissions in one test run do not recur in the next test runs.
    Response: Testing plans are generally designed with the most 
important operating parameters set to have maximum emissions. If 
variation of parameters not addressed in the testing plan were found to 
affect emissions significantly, this could signify that the test 
results do not truly assess whether the facility complies with the 
limit under the normal range of routine operating conditions. If so, an 
additional test may be required. However, in most cases, variations in 
results among test runs can be attributed largely to testing 
variability, such that the test provides a valid indication of whether 
the facility complies with the limit in routine operation.
    Comment: The commenters object that ``insufficient information is 
included regarding the test plans for the commenters to determine 
whether * * * testing in accordance with a valid test plan will assure 
the reliability of emission test averaging.''
    Response: Due to the variety of facilities to be tested, it is not 
possible for a testing rule to specify the parameters that would be 
necessary to address for every situation. Therefore, it is essential 
that a process be established by which the State, with EPA oversight, 
can evaluate each testing plan individually. EPA believes that the 
State's rule provides for proper governmental review of each testing 
plan on a case-by-case basis.
    Comment: The commenters express concern about provisions for 
``minor deviations'' from submitted test plans. In particular, the 
commenters state that the absence of a definition of the operating 
parameters in test plans results in insufficient guarantees against 
changes in critical parameters between test runs.
    Response: The range of circumstances requiring minor deviations 
from planned testing procedures is as wide as the range of relevant 
operating parameters. Furthermore, the minor deviations authorized here 
generally apply to the entire set of test runs, typically to address 
site-specific circumstances where the state finds that the full test 
may be run under conditions deviating slightly from the planned 
conditions without affecting the results of the test. An example of a 
minor deviation would be an incinerator that is operating slightly 
cooler than was anticipated in the test plan, in circumstances where 
the alternate temperature does not significantly affect emissions. For 
the range of facilities covered by this general testing rule, the need 
for minor deviations from standard testing methods is inevitable, and 
yet the range of necessary deviations cannot be predicted or readily 
defined. The need for government concurrence with the minor deviation 
is a safeguard against deviations pursued to underrepresent emissions. 
Thus, Illinois has adopted a reasonable approach to addressing site-
specific circumstances where minor modifications of testing procedures 
are appropriate.
    Comment: The commenters believe that variations in results among 
test runs should not be assumed to reflect imprecision in test results. 
The commenters observe that variations in operating parameters as well 
as plant equipment and malfunctions are just as likely as variations 
resulting from test imprecision.
    Response: Illinois reviews test reports to assess whether 
circumstances arose during the test that would significantly affect 
emissions. Tests done during a facility malfunction or during other 
abnormal operations significantly affecting emissions would generally 
not be in accordance with the test plan, and the test would not be 
considered a valid test. In most cases, it is reasonable to attribute 
most of the variations among results among three test runs to testing 
uncertainties.
    Comment: The commenters express concern that facilities, who get 
``benefit of the assumption * * * of imprecise testing methods'' are 
``also responsible for maintaining the testing equipment and conducting 
the test.''
    Response: The comment seems intended to imply a concern that the 
facility operators have an incentive to maintain the testing equipment 
poorly and conduct the test imprecisely. In fact, most tests are done 
by contractors, whose livelihoods depend on conducting tests as 
reliably as possible. Even for facility-run tests, greater imprecision 
does not benefit the facility, since imprecision does not 
preferentially lead to a lower average emission value. On the contrary, 
greater imprecision increases the risk that a complying facility could 
have three test runs with average emissions above the applicable limit.
    Comment: The commenters recommend alternatives to averaging of 
three test runs. The commenters recommend that more than three test 
runs be conducted. The commenters further recommend that the State (and 
EPA) be granted the discretion to evaluate test results ``with outliers 
examined on a case by case basis to determine if they were a violation 
in fact or if it was a failure of testing methods.'' The commenters 
also suggest the possibility of conducting multiple tests with 
different testing equipment and the possibility of operators ``running 
the facility with emissions further within the limits''.
    Response: Illinois' rule seeks to establish standard practice for 
conducting and evaluating tests. Illinois makes the recommended choice 
in stipulating that mass emission tests shall generally consist of 
three test runs. Illinois further applies standard, recommended 
practice by averaging the results of the test runs, thereby improving 
the reliability of the conclusions drawn. Illinois (and EPA) retain the 
option to require further tests if variability in test results or other 
factors indicate that the conducted test does not adequately assess 
whether the facility complies with applicable limits under all 
operating conditions. It would be inappropriate for Illinois to require 
use of multiple sets of testing equipment on a routine basis or to 
require facilities to emit below the applicable limit by an amount that 
reflects testing uncertainties.
    The discretion that the commenters recommend, for examining 
outliers on a case by case basis, is in fact granted in the rule. In 
examining test results, Illinois (and EPA) examine the variability from 
run to run and assess whether operating conditions were held constant. 
If Illinois (or EPA) concludes that operating conditions varied, 
causing significant variations in emissions, the rules provide for a 
conclusion that the facility did not have steady state emissions and 
therefore did not qualify for averaging of three test runs. More 
generally, if Illinois (or EPA) simply concludes that the variations 
exceed those attributable to normal testing uncertainties, Illinois (or 
EPA) may find that the test is unreliable and

[[Page 24888]]

request a retest. If, on the other hand, the variation in test results 
is judged to reflect normal variability in test measurements, then the 
rule provides for averaging of three test runs, as is appropriate to 
enhance the reliability of the results.

III. EPA Action

    EPA is approving the revisions to Illinois' rules for emissions 
averaging. EPA concludes that these rules codify standard practice in 
preparation and review of test plans and in averaging of three test 
runs in assessing compliance with mass emission limits.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action 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 rules as meeting Federal requirements and imposes 
no additional requirements beyond those imposed under state law. 
Accordingly, the Administrator certifies that this rule 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 any unfunded mandate or 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 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing Federal standards, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This 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), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. 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.).
    The Congressional Review Act, 5 U.S.C. section 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. 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. 
section 804(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 July 8, 2003. 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur dioxide, 
Volatile organic compounds.

    Dated: April 11, 2003.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
For the reasons set out in the preamble, chapter I, title 40 of the 
Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart O--Illinois

0
2. Section 52.720 is amended by adding paragraph (c)(164) to read as 
follows:


Sec.  52.720  Identification of plan.

* * * * *
    (c) * * *
    (164) On October 9, 2001, the State of Illinois submitted new rules 
regarding emission tests.
    (i) Incorporation by reference.
    (A) New rules of 35 Ill. Admin. Code Part 283, including sections 
283.110, 283.120, 283.130, 283.210, 283.220, 283.230, 283.240, and 
283.250, effective September 11, 2000, published in the Illinois 
Register at 24 Ill. Reg. 14428.
    (B) Revised section 283.120 of 35 Ill. Admin. Code, correcting two 
typographical errors, effective September 11, 2000, published in the 
Illinois Register at 25 Ill. Reg. 9657.
* * * * *
[FR Doc. 03-11471 Filed 5-8-03; 8:45 am]
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