[Federal Register Volume 86, Number 80 (Wednesday, April 28, 2021)]
[Proposed Rules]
[Pages 22372-22382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08820]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2020-0501, EPA-R05-OAR-2020-0502, EPA-R05-OAR-2020-0503; 
FRL-10022-89-Region 5]


Air Plan Approval; Illinois; Prevention of Significant 
Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Illinois State Implementation Plan (SIP) that 
were submitted by the Illinois Environmental Protection Agency (IEPA) 
on September 22, 2020. These revisions implement new preconstruction 
permitting regulations for certain new or modified sources of air 
pollution in attainment and unclassifiable areas under the Prevention 
of Significant Deterioration (PSD) program of the Clean Air Act (CAA). 
Currently, the PSD program in Illinois is operated under a Federal 
Implementation Plan (FIP).

DATES: Comments must be received on or before May 28, 2021.

ADDRESSES: Submit your comments, identified by Docket ID Nos. EPA-R05-
OAR-2020-0501, EPA-R05-OAR-2020-0502, or EPA-R05-OAR-2020-0503 at 
http://www.regulations.gov, or via email to [email protected]. 
For comments submitted at Regulations.gov, follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. For either manner of 
submission, EPA may publish any comment received to its public docket. 
Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: David Ogulei, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-0987, [email protected]. The EPA Region 5 
office is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding Federal holidays and facility closures due to COVID-19.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. Background for Proposed Action
II. Analysis of IEPA's Submittal
    A. Procedural Requirements
    B. 35 Ill. Adm. Code Part 204
    1. Equipment Replacement Provision (ERP)
    2. Clean Units and Pollution Control Projects (CU/PCP)
    3. Greenhouse Gas (GHG) Emissions
    4. Fugitive Emissions
    5. Definitions of ``Best available control technology,'' 
``Allowable Emissions,'' ``Federally Enforceable'' and ``Control 
Technology Review''
    6. Significant Monitoring Concentrations (SMC)
    7. Major Source Threshold for Municipal Incinerators
    8. Major Source Threshold for Ozone Depleting Substances (ODS)
    9. Baseline Actual Emissions
    10. Net Emissions Increase When an Existing Emissions Unit Is 
Being Replaced
    11. Potential To Emit
    12. Hazardous Air Pollutants (HAPs)
    13. Nonroad Engines
    14. Baseline Concentration
    15. Major Emissions Unit
    16. Recent EPA Rulemaking Activity
    17. Other Substantive Differences Compared to 40 CFR 51.166
    C. Amendments to 35 Ill. Adm. Code Part 252 (Public 
Participation)
    D. Amendments to 35 Ill. Adm. Code Part 211 (Definitions and 
General Provisions)
    E. Amendments to 35 Ill. Adm. Code Part 203 (Major Stationary 
Source Construction and Modification)
    F. Personnel, Funding, and Authority
III. What action is EPA taking?
    A. Scope of Proposed Action
    B. Rules Proposed for Approval and Incorporation by Reference 
Into the SIP
    C. Transfer of Authority for Existing EPA-Issued PSD Permits
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background for Proposed Action

    Section 110(a)(2)(C) of the CAA requires that each SIP include a 
program to provide for the regulation of the construction and 
modification of stationary sources within the areas covered by the SIP. 
We refer to these as the New Source Review (NSR) provisions. They 
consist primarily of: (1) A permit program as required by part C of 
subsection I of the CAA, PSD, as necessary to assure that national 
ambient air quality standards (NAAQS) are achieved; (2) a permit 
program as required by part D of subsection I of the CAA, Plan 
Requirements for Nonattainment Areas, as necessary to assure that NAAQS 
are attained and maintained in ``nonattainment areas'' (known as 
``nonattainment NSR''); and (3) a permit program for minor sources and 
minor modifications of major sources as required by section 
110(a)(2)(C) of the CAA. Specific plan requirements for an approvable 
PSD SIP are provided in sections 160-169 of the CAA and the 
implementing regulations at 40 CFR 51.166. The requirements applicable 
to SIP requirements for nonattainment areas are provided in sections 
171-193 of the CAA and the implementing regulations at 40 CFR 51.165 
and part 51, appendix S. The Federal PSD requirements at 40 CFR 52.21 
apply through FIPs in states without a SIP-approved PSD program.
    The PSD program applies to new major sources or major modifications 
at existing stationary sources for pollutants where the area the source 
is located has been designated as ``attainment'' or ``unclassifiable'' 
with respect to the NAAQS under section 107(d) of the CAA. Under 
section 160 of the CAA, the purposes of the PSD program are to: (1) 
Protect public health and welfare; (2) preserve, protect and enhance 
the air quality in national parks, national wilderness areas, national 
monuments, national seashores, and other areas of special national or 
regional natural, recreational, scenic, or historic value; (3) ensure 
that economic growth will

[[Page 22373]]

occur in a manner consistent with the preservation of existing clean 
air resources; (4) assure that emissions from any source in any State 
will not interfere with any portion of the applicable implementation 
plan to prevent significant deterioration of air quality for any other 
State; and (5) assure that any decision to permit increased air 
pollution in any area to which the PSD program applies is made only 
after careful evaluation of all the consequences of such a decision and 
after adequate procedural opportunities for informed public 
participation in the decision making process.
    Before a PSD permit can be issued, the stationary source must 
demonstrate that the new major source or major modification will be 
equipped with the Best Available Control Technology (BACT) for all 
pollutants regulated under the PSD program that are emitted in 
significant amounts, and that increased emissions from the project will 
not result in a violation of the NAAQS or applicable ambient air 
quality increments. See CAA section 165.
    Because Illinois does not currently have a SIP-approved PSD 
program, PSD permits in Illinois have been issued under a FIP 
incorporating 40 CFR 52.21. Prior to April 7, 1980, EPA was solely 
responsible for, and operated, the PSD permitting program in Illinois. 
However, since April 7, 1980, IEPA has issued PSD permits under a 
delegation agreement with EPA that authorizes IEPA to implement the 
FIP. See 46 FR 9580 (January 29, 1981) (1980 Delegation Agreement). 
Under a November 16, 1981 amendment to the 1980 Delegation 
Agreement,\1\ IEPA also has the authority to amend or revise any PSD 
permit issued by EPA under the FIP. Thus, all PSD permits issued in 
Illinois are currently considered Federal permits; and PSD permits 
issued after April 7, 1980 are enforceable by Illinois and EPA since 
they were issued under both Illinois and EPA authority.
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    \1\ A copy of this amendment is available in the docket for this 
action.
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    On September 22, 2020, IEPA submitted to EPA a request to revise 
the Illinois SIP to establish a SIP-approved PSD program in Illinois. 
Specifically, IEPA requested that EPA incorporate into the SIP the 
following: (1) New regulations at Title 35 Illinois Administrative Code 
(35 Ill. Adm. Code) Part 204, Prevention of Significant Deterioration; 
(2) amendments to 35 Ill. Adm. Code Part 252, Public Participation in 
the Air Pollution Control Permit Program; (3) amendments to 35 Ill. 
Adm. Code Part 203, Major Stationary Source Construction and 
Modification; and (4) amendments to 35 Ill. Adm. Code Part 211, 
Definitions and General Provisions. With the exceptions set forth 
below, IEPA's PSD regulations at 35 Ill. Adm. Code Part 204 and 35 Ill. 
Adm. Code Part 252 largely mirror the Federal regulations at 40 CFR 
52.21 and 40 CFR part 124, respectively. The amendments to 35 Ill. Adm. 
Code Parts 203 and 211 would update these rules to refer to permitting 
pursuant to 35 Ill. Adm. Code Part 204, as well as to 40 CFR 52.21. 
These amendments to 35 Ill. Adm. Code Parts 203 and 211 involve 
regulations that EPA has previously approved into the Illinois SIP for 
purposes of other provisions of the CAA (excluding the PSD program). 
See 40 CFR 52.720(c).
    IEPA's September 2020 submittal also addressed Illinois' 
Infrastructure SIP requirements under sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J) of the CAA for 
all of the following NAAQS: 2008 lead, 2010 nitrogen dioxide 
(NO2), 1997 ozone, 2008 ozone, 2015 ozone, 1997 particulate 
matter with aerodynamic diameter less than 2.5 microns 
(PM2.5), 2006 PM2.5, 2012 PM2.5, and 
2010 sulfur dioxide (SO2). This action does not address the 
infrastructure SIP portion of IEPA's submittal. EPA plans to address 
those requirements in a separate action.
    On November 5, 2020, IEPA submitted additional information 
clarifying how it intends to implement specific provisions identified 
by EPA, and how it plans to correct any typographical errors or 
omissions that EPA identified in its October 22, 2020 review of IEPA's 
September 2020 submittal.\2\
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    \2\ A copy of IEPA's submittal is available in the docket for 
this action.
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    Section 110(k)(3) of the CAA states that the Administrator ``shall 
approve'' a submittal from a state if it ``meets all applicable 
requirements'' of the CAA. EPA has reviewed 35 Ill. Adm. Code Part 204 
and relevant amendments to 35 Ill. Adm. Code Parts 203, 211, and 252, 
and is proposing to determine that these regulations and amendments 
meet the requirements of sections 160-169 of the CAA and the 
implementing regulations at 40 CFR 51.166. In this action, EPA is 
proposing to approve these regulations and amendments into the Illinois 
SIP and to codify this approval in the Federal regulations at 40 CFR 
52.720. Upon EPA's approval, PSD permits issued by IEPA will be issued 
under state authority and will no longer be considered Federal actions. 
EPA is also proposing to transfer to IEPA responsibility for 
administering existing PSD permits that EPA issued to sources in 
Illinois pursuant to the FIP, and for processing any PSD permit actions 
related to such permits.
    In approving state NSR rules into SIPs, EPA has a responsibility to 
ensure that all states properly implement their SIP-approved 
preconstruction permitting programs. If EPA's proposed approval of 
IEPA's PSD rules is finalized, EPA would retain appropriate oversight 
to ensure that permits issued by IEPA are consistent with the 
requirements of the CAA, Federal regulations, and the SIP.
    EPA's authority to oversee NSR permit program implementation is set 
forth in sections 113 and 167 of the CAA. For example, section 167 
provides that EPA shall issue administrative orders, initiate civil 
actions, or take whatever other action may be necessary to prevent the 
construction or modification of a major stationary source that does not 
``conform to the requirements of'' the PSD program. Section 113(a)(1) 
of the CAA provides for a range of enforcement remedies whenever EPA 
finds that a person is in violation of an applicable implementation 
plan. Likewise, section 113(a)(5) of the CAA provides for 
administrative orders and civil actions whenever EPA finds that a state 
``is not acting in compliance with'' any requirement or prohibition of 
the CAA regarding the construction of new sources or modification of 
existing sources.
    In making judgments as to what constitutes compliance with the CAA 
and regulations issued thereunder, EPA looks to (among other sources) 
its prior interpretations regarding those statutory and regulatory 
requirements and policies for implementing them.
    Upon final approval of the submitted PSD program, IEPA would be 
obligated under 40 CFR 51.166(a)(4) to review the continued adequacy of 
its approved SIP ``on a periodic basis and within 60 days of such time 
as information becomes available that an applicable increment is being 
violated.''

II. Analysis of IEPA's Submittal

A. Procedural Requirements

    Under 40 CFR 51.102, EPA has established procedural requirements 
for states seeking to submit regulations as SIP provisions. These 
include provisions for public notice, the opportunity to submit written 
comments and the opportunity to request a public hearing. Illinois 
EPA's

[[Page 22374]]

efforts to fulfill these requirements are documented below.
    IEPA filed a regulatory proposal with the Illinois Pollution 
Control Board (IPCB) for a new 35 Ill. Adm. Code Part 204 and 
amendments to 35 Ill. Adm. Code Parts 203 and 211 on July 2, 2018. The 
IPCB held public hearings on these proposed regulations on November 27, 
2018 and February 26, 2019.
    IEPA published a Notice of Proposed Amendments to 35 Ill. Adm. Code 
Part 252 in the Illinois Register on June 21, 2019. See 43 Ill. Reg. 
7028. IEPA issued a Notice of Hearing on April 10, 2020, in which it 
committed to hold a public hearing on May 18, 2020, if a timely request 
for a public hearing was requested prior to the end of the comment 
period. IEPA did not receive such a request for a public hearing prior 
to the end of the public comment period, nor were public comments made 
during the public comment period. IEPA published a Notice of Adopted 
Amendments to 35 Ill. Adm. Code Part 252 in the Illinois Register on 
June 26, 2020, with an effective date of June 10, 2020. See 44 Ill. 
Reg. 10873.
    On March 20, 2020, the IPCB published a Notice of Proposed 
Amendments, including new 35 Ill. Adm. Code Part 204 and amendments to 
35 Ill. Adm. Code Parts 203 and 211, in the Illinois Register. See 44 
Ill. Reg. 4109. On August 27, 2020, the IPCB adopted the final 35 Ill. 
Adm. Code Part 204 and amendments to 35 Ill. Adm. Code Parts 203 and 
211 and published them in the Illinois Register on September 18, 2020, 
with an effective date of September 4, 2020. While 35 Ill. Adm. Code 
Part 204 and the amendments to 35 Ill. Adm. Code Parts 203 and 211 have 
an effective date of September 4, 2020, those regulations would not 
take effect in practice until EPA has approved them into the Illinois 
SIP. This is because Illinois law requires that a state PSD permit may 
only be issued once the state PSD permit program has been approved as 
part of the Illinois SIP. See 415 ILCS 5/3.363 (definition of ``PSD 
permit'').
    The Federal regulations at 40 CFR 51.103 and 40 CFR part 51, 
appendix V, set forth the minimum criteria that any SIP submission must 
meet before EPA is required to act on such submission. These criteria 
include, among other things: (1) Evidence that the state has adopted 
the proposed regulations in the state code or body of regulations, 
including the date of adoption or final issuance as well as the 
effective date of the regulations, if different from the adoption/
issuance date, and (2) evidence that the state followed all of the 
procedural requirements of the state's laws and constitution in 
conducting and completing the adoption/issuance of the regulations. 
Additionally, to be considered complete, each SIP submission must 
contain certain administrative materials and technical support 
documentation.
    EPA proposes to find that IEPA has satisfied the procedural 
requirements for a SIP submittal as set forth in 40 CFR 51.102, 51.103 
and 40 CFR part 51, appendix V.

B. 35 Ill. Adm. Code Part 204

    IEPA's PSD regulation at 35 Ill. Adm. Code Part 204 is intended to 
mirror the requirements of 40 CFR 52.21, which currently applies in 
Illinois via a FIP. However, to be approvable into the SIP, IEPA's 
regulation must meet the requirements of 40 CFR 51.166. Thus, EPA has 
evaluated IEPA's PSD regulation against the requirements of 40 CFR 
51.166.
    Under 40 CFR 51.166(a)(7)(iv), each SIP shall use the specific 
provisions of 40 CFR 51.166(a)(7)(iv)(a) through (f). EPA will approve 
deviations from these provisions only if the State specifically 
demonstrates that the submitted provisions are more stringent than, or 
at least as stringent, in all respects as the corresponding provisions 
in 40 CFR 51.166(a)(7)(iv)(a) through (f). Additionally, 40 CFR 
51.166(b) requires that all SIPs shall use the definitions in 40 CFR 
51.166(b) for the purposes of 40 CFR 51.166 and that deviations from 
the wording of those definitions will be approved only if the State 
specifically demonstrates that the submitted definition is more 
stringent, or at least as stringent, in all respects as the 
corresponding definitions in 40 CFR 51.166(b).
    EPA proposes to find that IEPA's PSD regulation is more stringent 
than, or at least as stringent, in all respects as the corresponding 
provisions in 40 CFR 51.166. While IEPA has submitted provisions that 
differ in some respects from the provisions in 40 CFR 51.166, we are 
proposing to find that those differences do not render IEPA's 
regulation less stringent than the corresponding Federal language at 40 
CFR 51.166. We evaluate the substantive differences between 35 Ill. 
Adm. Code Part 204 and 40 CFR 51.166 in this section.
1. Equipment Replacement Provision (ERP)
    In 2003, the U.S. Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) stayed indefinitely the effective date of the 
NSR ERP, which amended the Routine Maintenance, Repair, and Replacement 
Exclusion from the NSR requirements in a 2003 final rule. State of New 
York v. EPA, No. 03-1380 (Dec. 24, 2003). The stay of the relevant 
paragraphs was subsequently noted in the affected regulations, 
including 40 CFR 51.165 (permit requirements for nonattainment areas 
under subpart D), 51.166 (PSD plan requirements for attainment areas 
under subpart C), and 52.21 (PSD Federal rules). For example, in 40 CFR 
51.166(b)(2)(iii)(a), EPA added a note explaining that, as of December 
24, 2003, the second sentence of 40 CFR 51.166(b)(2)(b)(2)(iii)(a) is 
stayed indefinitely by court order and that the stayed provisions would 
become effective immediately if the court terminates the stay.
    In a 2006 decision, the court vacated the ERP, concluding that the 
provision was ``contrary to the plain language of section 111(a)(4) of 
the [CAA].'' New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006) (New York 
II). Despite the vacatur, the affected provisions and the notes 
pertaining to the original stay of the ERP have remained in 40 CFR 
51.165, 51.166, and 52.21.
    On December 20, 2019, EPA published a proposed rule to revise 40 
CFR 51.165, 51.166, and 52.21 by making the following types of changes: 
Correcting typographical and grammatical errors, removing court-vacated 
rule language, removing or updating outdated or incorrect cross 
references, conforming certain provisions to changes contained in the 
1990 CAA Amendments, and removing certain outdated exemptions. See 84 
FR 70092 (2019 Proposed Error Corrections Rule). In this rule, EPA 
proposed to remove the vacated ERP provisions, consistent with New York 
II, as well as the notes describing the indefinite stay of the various 
affected provisions. However, EPA noted that there were two components 
of the ERP rule that are used in conjunction with the definition of 
``replacement unit,'' which were not part of the New York II decision; 
and that the definition of ``replacement unit'' cross-referenced or 
referred to those terms within the ERP. Consequently, in the 2019 
Proposed Error Correction Rule, EPA proposed to ``add back'' the 
criteria to determine ``basic design parameters'' and portions of the 
definition of ``process unit'' not affected by the vacatur into the 
definition of ``replacement unit'' in each of the three affected 
regulations, including 40 CFR 51.166.
    EPA has not yet completed the ``Error Corrections'' rulemaking 
described above. The Administrator signed a final version of this rule 
on January 4, 2021, but this rule was not published in the Federal 
Register (January 4, 2021

[[Page 22375]]

unpublished final error corrections rule).\3\ It is currently 
undergoing review in accordance with the Regulatory Freeze Pending 
Review memorandum that White House Chief of Staff Ronald Klain issued 
on January 20, 2021.\4\ In response to comments on EPA's proposal to 
retain provisions of the ERP rule incorporated in the ``replacement 
unit'' provisions, the January 4, 2021 unpublished final error 
corrections rule contains a decision to remove the ``process unit'' and 
``basic design parameters'' provisions. EPA noted, however, in this 
version that EPA and stakeholders could continue to look to the vacated 
definitions from the ERP rule to guide their understanding of the 
definition of ``replacement unit.''
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    \3\ Available at https://www.epa.gov/sites/production/files/2021-01/documents/error_corrections_admin.pdf.
    \4\ https://www.epa.gov/nsr/final-error-corrections-rule; 86 FR 
7424 (Jan. 28, 2021).
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    IEPA's rule omits most of the vacated ERP provisions, consistent 
with New York II. However, in order to clarify the term ``replacement 
unit,'' as defined at 40 CFR 51.166(b)(32), it includes a definition 
for ``basic design parameters'' for purposes of 40 CFR 
51.166(b)(32)(iii). This definition is consistent with the definition 
of ``basic design parameters'' that was part of the vacated ERP 
provisions and adds clarity to the State's rule. See 35 Ill. Adm. Code 
204.620 (Replacement Unit) and 204.620(c) (Basic Design Parameters).
    In addition, since the term ``process unit'' is cross-referenced in 
the definition of ``basic design parameters,'' IEPA has submitted a 
definition for ``process unit'' that is consistent with the vacated ERP 
provisions found at 40 CFR 51.166(b)(53) and 51.166(y). See 35 Ill. 
Adm. Code 204.580 (Process Unit). IEPA defines ``process unit'' in 35 
Ill. Adm. Code 204.580 as any collection of structures and/or equipment 
that processes, assembles, applies, blends, or otherwise uses material 
inputs to produce or store an intermediate or completed product. Under 
IEPA's definition, a process unit may contain more than one emissions 
unit.
    IEPA has also omitted the sentence in 40 CFR 51.166(b)(2)(iii)(a), 
which states that routine maintenance, repair and replacement shall 
include, but not be limited to, any activities that meet the 
requirements of the equipment replacement provisions contained in 40 
CFR 51.166(y). See 35 Ill. Adm. Code 204.490(c)(1).
    If EPA ultimately publishes a final rule, like the January 4, 2021 
unpublished final error corrections rule, that removes ``basic design 
parameters'' and ``process unit'' definitions from EPA's regulation, 
this would not preclude states from electing to include these 
definitions in their PSD regulations. The January 4, 2021 unpublished 
final error corrections rule specifies that ``EPA and stakeholders may 
continue to look at the vacated definitions from the ERP rule to guide 
their understanding of the definition of `replacement unit.' '' \5\ In 
response to stakeholder concerns raised during the 2019 Proposed Error 
Corrections Rule comment period, the January 4, 2021 unpublished final 
error corrections rule makes clear that EPA will evaluate whether 
further rulemaking is warranted to restore the definitions of ``basic 
design parameters'' and ``process unit'' in a manner that is responsive 
to stakeholder concerns. States may, therefore, include the definitions 
of ``basic design parameters'' and ``process unit'' in their PSD 
program regulations at their discretion, but EPA reserves the right to 
re-evaluate inclusion of these same definitions in the Federal 
regulations after affording adequate stakeholder input.
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    \5\ Page 13, available at https://www.epa.gov/sites/production/files/2021-01/documents/error_corrections_admin.pdf.
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    EPA proposes to find that IEPA's definitions of ``replacement 
unit,'' ``basic design parameters,'' and ``process unit,'' as described 
above, serve to clarify IEPA's rules and are, therefore, approvable. 
EPA has previously approved SIPs that have addressed the vacated ERP 
provisions in a manner comparable to IEPA's rule. See, for example, 80 
FR 67331 (November 2, 2015) (Arizona), 77 FR 65119 (October 25, 2012) 
(Texas), and 73 FR 51606, 75 FR 71022 (Georgia). Thus, IEPA's rule is 
consistent with recent EPA regulatory activity related to these 
definitions.
2. Clean Units and Pollution Control Projects (CU/PCP)
    In 2007, EPA removed CU/PCP provisions from 40 CFR 51.165, 51.166, 
and 52.21, which were vacated by the D.C. Circuit in a June 24, 2005, 
decision. New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) (New York I). 
See 72 FR 32526 (June 13, 2007). EPA's action was intended to eliminate 
the relevant provisions from all of 40 CFR 51.165, 51.166, and 52.21, 
but EPA only stated that it was removing them from 40 CFR 51.165.
    Consistent with New York I and EPA's intent in the 2007 action, as 
corrected in the January 4, 2021 unpublished final error corrections 
rule, IEPA's definition of ``Net Emissions Increase'' at 35 Ill. Adm. 
Code 204.550 does not include the language of 40 CFR 
51.166(b)(3)(iii)(c) providing that an increase or decrease in actual 
emission is creditable only if the increase or decrease in emissions 
did not occur at a Clean Unit. Section 35 Ill. Adm. Code 204.550 is 
otherwise substantively identical to 40 CFR 51.166(b)(3)(iii)(c). EPA 
proposes to find that IEPA's language is at least as stringent as the 
corresponding Federal language.\6\
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    \6\ On January 4, 2021, the Administrator signed a final rule 
that would revise 40 CFR 51.166(b)(3)(iii)(c) and 
52.21(b)(3)(iii)(b) to remove the remaining vacated CU/PCP 
provisions as IEPA has done.
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3. Greenhouse Gas (GHG) Emissions
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. See Utility Air Regulatory Group v. Environmental Protection 
Agency, 573 U.S. 302 (2014). The Supreme Court ruled that EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source (or major modification thereof) required to 
obtain a PSD permit. The Court also held that EPA could continue to 
require that PSD permits, otherwise required based on emissions of 
pollutants other than GHGs, contain limitations on GHG emissions based 
on the application of BACT. The D.C. Circuit Court of Appeals issued an 
Amended Judgment in Coalition for Responsible Regulation Inc. v. 
Environmental Protection Agency, Nos. 09-1322, 10-073, 10-1092, and 10-
1167 (D.C. Cir. April 10, 2015). The Amended Judgment vacated the 
provisions that would require a stationary source to obtain a PSD 
permit solely because the source emits or has the potential to emit 
GHGs above the applicable major source or significant emission 
threshold. In addition, the D.C. Circuit directed EPA to consider 
whether additional changes to these regulations were necessary 
considering the Supreme Court's decision and, if so, to make such 
changes.
    In 2015, EPA amended the PSD regulations at 40 CFR 51.166 and 52.21 
to remove portions of those regulations concerning GHGs that were 
initially promulgated in 2010 but vacated by the D.C. Circuit on April 
10, 2015. See 80 FR 50199 (August 19, 2015).
    In 2016, EPA took additional action to implement the Court decision 
by proposing to revise the Federal provisions for plantwide 
applicability limitations (PALs) at 40 CFR 51.166(w) and 52.21(aa) to 
remove the ability for a source that is only ``major'' for GHGs to 
obtain a GHG PAL. 81 FR 68110

[[Page 22376]]

(October 3, 2016). EPA proposed this change because a source must be an 
existing major source to be eligible for a PAL permit and, as discussed 
above, a source is not subject to PSD permitting requirements based 
solely on its GHG emissions. EPA also proposed to alter these PAL 
provisions such that an existing ``anyway source'' could still obtain a 
GHG PAL, but only to relieve the source from the requirement to address 
BACT for GHGs when the source triggers PSD permitting for another NSR 
pollutant.\7\
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    \7\ An ``anyway source'' in this context is a facility or 
emission source that is otherwise required to obtain a PSD permit 
based on its emissions of one or more regulated NSR pollutants other 
than GHG.
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    IEPA has submitted provisions for GHGs that are consistent with 
these recent Federal court decisions and EPA's regulatory activity as 
discussed above. See 35 Ill. Adm. Code 204.430 (GHGs), 204.490 (Major 
Modification), 204.510 (Major Stationary Source), 204.660 
(Significant), 204.700 (Subject to Regulation) and 204.1600 through 
204.1910 (PALs). Although EPA has not yet completed the changes to its 
regulations proposed in 2016, EPA proposes to find that IEPA's language 
is at least as stringent as the corresponding Federal language 
currently in effect.
4. Fugitive Emissions
    As part of its reconsideration of the 2008 fugitive emissions 
rule,\8\ on March 3, 2011, EPA stayed the fugitive emissions language 
in 40 CFR 51.166(b)(2)(v) and 40 CFR 51.166(b)(3)(iii)(d) and reverted 
the regulatory text back to the language that existed prior to the 
stayed text. 76 FR 17548 (March 30, 2011). However, EPA has not removed 
the implicated text in 40 CFR 51.166(b)(2)(v), which continues to 
provide that fugitive emissions will only be counted in determining if 
a proposed physical change or change in the method of operation would 
result in a major modification for designated source categories listed 
in 40 CFR 51.166(b)(1)(iii). Likewise, EPA has not removed the text at 
40 CFR 51.166(b)(3)(iii)(d), which provides that fugitive emissions 
will only be counted in determining if a proposed physical or 
operational change would result in a major modification for sources in 
designated categories or sources. Instead, EPA added a note at the end 
of 40 CFR 51.166 stating that 40 CFR 51.166(b)(2)(v) and (b)(3)(iii)(d) 
are stayed indefinitely. See also 76 FR 17553 (March 30, 2011).
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    \8\ See 73 FR 77881 (December 19, 2008).
---------------------------------------------------------------------------

    Given that the above provisions are currently stayed, IEPA has not 
included the language of 40 CFR 51.166(b)(2)(v) in its definition of 
``major modification'' at 35 Ill. Adm. Code 204.490. IEPA is also not 
including 40 CFR 51.166(b)(3)(iii)(d). See 35 Ill. Adm. Code 204.550. 
IEPA would retain the provision in 40 CFR 51.166(b)(1)(iii) which 
provides that the fugitive emissions of a stationary source shall not 
be included in determining for any of the purposes of 40 CFR 51.166 
whether a source is a major stationary source, unless the source 
belongs to one of the source categories in 40 CFR 51.166(b)(1)(iii). 
See 35 Ill. Adm. Code 204.510(c).
    EPA is proposing to find that IEPA's omission of 40 CFR 
51.166(b)(2)(v) and 40 CFR 51.166(b)(3)(iii)(d) would appropriately 
reflect the manner in which 40 CFR 51.166 currently addresses fugitive 
emissions when determining whether a proposed project at a major 
stationary source would be a major modification. However, should the 
stayed provisions be repealed or become effective as a result of EPA's 
ongoing reconsideration of the 2008 fugitive emissions rule, IEPA may 
need to revise its SIP consistent with any EPA action revising the 
regulations.
5. Definitions of ``Best Available Control Technology,'' ``Allowable 
Emissions,'' ``Federally Enforceable,'' and ``Control Technology 
Review''
    The Federal PSD regulations at 40 CFR 51.166 contain definitions 
for the terms ``Best available control technology,'' ``Allowable 
emissions,'' ``Federally enforceable,'' and ``Control technology 
review'' at 40 CFR 51.166(b)(12), (b)(16), (b)(17), and (j), 
respectively. As relevant here, these definitions provide that in no 
event shall application of BACT result in emissions of any pollutant 
which would exceed the emissions allowed by any applicable standard 
under 40 CFR parts 60 and 61. See 40 CFR 51.166(b)(12). Similarly, for 
purposes of the ``control technology review'' required by 40 CFR 
51.166(j)(1), a major stationary source or major modification shall 
meet each applicable emissions limitation under the SIP and each 
applicable emission standard and standard of performance under 40 CFR 
parts 60 and 61. Finally, the terms ``allowable emissions'' and 
``Federally enforceable'' are defined to encompass applicable standards 
as set forth in 40 CFR parts 60 and 61. See 51.166(b)(16)(i) and 
51.166(b)(17). Emission standards established under 40 CFR part 60 
conform to the statutory requirements of section 111 of the CAA while 
the standards at 40 CFR part 61 conform to the pre-1990 CAA 
requirements at section 112 of the CAA.
    In 1978, EPA promulgated new regulations at 40 CFR part 62 relating 
to the approval and promulgation of State and Federal plans under 
sections 111(d) and 129 of the CAA. See 43 FR 51393 (November 3, 1978). 
These regulations, known as emission guidelines for various source 
categories, are implemented via an approved State plan or a Federal 
plan for each separate source category.
    Similarly, following the 1990 CAA Amendments, EPA began 
promulgating additional emissions standards under section 112 of the 
CAA, and codified them at 40 CFR part 63. In some provisions, the CAA 
itself indicates that all emissions standards adopted under sections 
111 and 112 of the CAA must be included in the associated definition. 
See, e.g., section 169(3) of the CAA (providing that application of 
BACT must not result in emissions of any pollutants which would exceed 
the emissions allowed by any applicable standard established pursuant 
to section 111 or 112 of the CAA).
    In order to encompass all potentially applicable standards, IEPA's 
definitions of ``Allowable emissions'' (35 Ill. Adm. Code 204.230), 
``Best available control technology'' (35 Ill. Adm. Code 204.280), 
``Federally enforceable'' (35 Ill. Adm. Code 204.400), and ``Control 
technology review'' (35 Ill. Adm. Code 204.1100) would encompass 
applicable standards set forth in 40 CFR parts 62 and 63, in addition 
to those found at 40 CFR parts 60 and 61. IEPA's inclusion of 40 CFR 
part 62, in addition to 40 CFR parts 60, 61 and 63, in the definitions 
of ``Allowable emissions,'' ''Best available control technology,'' 
``Federally enforceable,'' and ``Control technology review'' is 
acceptable because the respective State definitions would be at least 
as stringent as the corresponding Federal language.
    While the January 4, 2021 unpublished final error corrections rule 
added 40 CFR part 63 to the definition of ``best available control 
technology,'' but not ``federally enforceable'' and ``allowable 
emissions,'' EPA believes the revisions in this SIP are appropriate. 
Also in that rulemaking, EPA opted not to add a reference to part 62 in 
any of the relevant definitions in the NSR regulations. Given 
stakeholder feedback received on the 2019 Proposed Error Corrections 
Rule,\9\ EPA opted to forgo revisions similar to those in this SIP in 
order to provide for adequate public comment for such a revision to the 
Federal regulations. EPA did, however, add a reference to part 63 in 
the definition of ``best available control

[[Page 22377]]

technology'' in the January 4, 2021 unpublished final error corrections 
rule on the grounds that ``the statute expressly requires the inclusion 
of emissions standards under CAA section 112 in that definition (which 
includes emissions limitations contained in both 40 CFR parts 61 and 
63).'' Stakeholders have an opportunity to submit comments on this 
change to IEPA's regulations. Should EPA make an analogous revision to 
the Federal regulations, it will similarly allow for adequate 
stakeholder input on the addition of parts 62 and 63 to several 
definitions in its PSD regulations.
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    \9\ See 84 FR 70092 (December 20, 2019).
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6. Significant Monitoring Concentrations (SMC)
    IEPA is excluding the exemption from preconstruction monitoring for 
fluorides, total reduced sulfur, hydrogen sulfide, and reduced sulfur 
compounds as set forth in 40 CFR 51.166(i)(5)(i)(h) through (k). The 
preconstruction monitoring obligation for these pollutants is not 
mandatory but based on the judgment of the reviewing authority. See 40 
CFR 51.166(m)(1)(ii). Exercising the discretion afforded to the 
reviewing authority to determine whether preconstruction monitoring is 
necessary for these pollutants, IEPA has elected not to apply this 
requirement to these pollutants. Thus, an exemption from 
preconstruction monitoring for these pollutants is not necessary.
    EPA proposes to find that IEPA's omission of the SMCs in 40 CFR 
51.166(i)(5)(i)(h) through (k) is consistent with the discretion 
afforded to the reviewing authority under 40 CFR 51.166(i)(5) and 
51.166(m)(1)(ii), and is therefore approvable.
7. Major Source Threshold for Municipal Incinerators
    The 1990 CAA Amendments amended the definition of ``major emitting 
facility'' at section 169(1) by striking out the words ``two hundred 
and'' as those words appeared in the phrase ``municipal incinerators 
capable of charging more than two hundred and fifty tons of refuse per 
day.'' This amendment had the effect of lowering (from 250 tons of 
refuse per day to 50 tons of refuse per day) the charging capacity 
threshold for a municipal incinerator, thereby providing that such a 
source would qualify as a major emitting facility if it also has the 
potential to emit at least 100 tons per year of any regulated NSR 
pollutant.
    IEPA's regulation incorporates this change at 35 Ill. Adm. Code 
204.510(a)(1)(I) and (c)(8). This approach is consistent with EPA's NSR 
Error Corrections rulemaking that would make similar changes to 40 CFR 
51.165, 51.166, 52.21, and appendix S to 40 CFR part 51 by lowering the 
charging capacity threshold for a municipal incinerator from 250 tons 
of refuse per day to 50 tons of refuse per day. This proposed change 
remains in the January 4, 2021 version of the error corrections rule 
that has been signed by the Administrator.\10\
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    \10\ See January 4, 2021 unpublished final error corrections 
rule at https://www.epa.gov/sites/production/files/2021-01/documents/error_corrections_admin.pdf.
---------------------------------------------------------------------------

8. Major Source Threshold for Ozone Depleting Substances (ODS)
    Given ODS are regulated by title VI of the CAA, ODS are ``subject 
to regulation'' for purposes of PSD applicability. See 42 U.S.C. 7671a 
(listing those ozone depleting substances subject to regulation).
    IEPA has submitted a Significant Emissions Rate (SER) for ODS of 
100 tons per year (tpy). This SER is consistent with EPA precedent and 
guidance.\11\ For example, EPA proposed a 100 tpy SER for ODS in 1996. 
61 FR 38250, 38307 (July 23, 1996). Since then, EPA has supported not 
requiring PSD permitting for ODS emissions increases less than 100 tpy. 
For example, EPA approved a 100 tpy SER for the State of Washington's 
PSD program, WAC l70-400-720/173-400-720(4)(b)(iii)(B). See 80 FR 23725 
(April 29, 2015).\12\
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    \11\ See Letter from John Seitz, Director, Office of Air Quality 
Planning and Standards, to Mr. Gustave Von Bodungen, Assistant 
Secretary, State of Louisiana, dated February 24, 1998; and letter 
from John Seitz, Director; Office of Air Quality Planning and 
Standards, to Mr. Kevin Tubbs, Director, Environmental Technology 
American Standard, dated March 19, 1998.
    \12\ EPA has approved at least four other PSD SIPs with ODS 
SERs, including SIPs for Clark County, Nevada (see Section 
12.2.2(uu)(1) (100 tpy ODS threshold, last approved at 79 FR 62350 
(10/17/2014), 40 CFR 52.1470); Indiana (see 326 Ind. Admin. Code 2-
2-1(ww)(1)(V) (100 tpy ODS threshold, last approved at 76 FR 59899 
(9/28/2011), 40 CFR 52.770); Kentucky (see 401 KAR 51:001, sec. 
1(218)(a) (100 tpy ODS threshold, last approved at 79 FR 65143 (11/
3/2014), 40 CFR 52.920); and Tennessee (see Rule 1200-03-
09-.01(4)(b)(24)(i)(XIV) (40 tpy ODS threshold, last approved at 83 
FR 48248 (9/24/2018), 40 CFR 52.2220).
---------------------------------------------------------------------------

    ODS sources comprise widely available commercial and household 
activities such as refrigeration, air conditioning, and fire 
suppression equipment. 61 FR 38307. Requiring PSD permitting for any 
potential incidental ODS losses from such activities may substantially 
constrain IEPA's resources with little or no environmental benefit. It 
would also pose a significant cost burden to facility owners and 
operators who must prepare a complex PSD application for any potential 
incidental releases of ODS from routine activities.
    For the above reasons, EPA is proposing to approve IEPA's SER for 
ODS of 100 tpy.
9. Baseline Actual Emissions
    Under 40 CFR 51.166(b)(47) and 52.21(b)(48), an existing emissions 
unit, other than an existing electric generating unit, may select any 
24-month period during a 10-year look back period immediately preceding 
the change to calculate its ``baseline actual emissions'' for each 
contemporaneous event. The baseline actual emissions for each emissions 
unit must be adjusted to reflect the ``current'' emission limits that 
apply to each emission unit. In its 2002 rulemaking, EPA stated that 
the term ``currently,'' as used at 40 CFR 52.21(b)(48)(ii)(c) and 
51.166(b)(47)(ii)(c) ``in the context of contemporaneous emissions 
change refers to limitations on emissions and source operation that 
existed just prior to the date of the contemporaneous change.'' 67 FR 
80186, 80197 (December 31, 2002). Consistent with this 2002 EPA 
interpretation, IEPA has proposed to clarify the meaning of the term 
``currently'' in the context of its definition of ``baseline actual 
emissions.'' Specifically, 35 Ill. Adm. Code 204.240(b)(3) provides 
that `` 'Currently' in the context of a contemporaneous emissions 
change refers to limitations on emissions and source operation that 
existed just prior to the date of the contemporaneous change.''
    EPA proposes to find that IEPA's language at 35 Ill. Adm. Code 
204.240(b)(3) is approvable because it serves to clarify the meaning of 
a term that is not currently defined in the Federal regulations, and is 
consistent with EPA's interpretation of that term as used at 40 CFR 
51.166(b)(47)(ii)(c).
10. Net Emissions Increase When an Existing Emissions Unit Is Being 
Replaced
    The Federal regulations at 40 CFR 51.166 use the term ``replacement 
unit'' on three separate occasions: At Sec.  51.166(b)(3)(vii) (any 
``replacement unit'' that requires shakedown becomes operational only 
after a reasonable shakedown period, not to exceed 180 days); at Sec.  
51.166(b)(7)(ii) (a ``replacement unit,'' as defined in 40 CFR 
51.166(b)(32), is an existing emissions unit); and at Sec.  
51.166(b)(32) (``replacement unit'' means an emissions unit for which 
all the criteria listed in 40 CFR 51.166(b)(32)(i) through (iv) are 
met).

[[Page 22378]]

    In its regulations, IEPA has replaced the term ``replacement unit'' 
as set forth in 40 CFR 51.166(b)(3)(vii) with the phrase ``[a]ny 
emissions unit that replaces an existing emissions unit.'' See Ill. 
Adm. Code 204.550. Specifically, IEPA has replaced the pertinent 
language in 40 CFR 51.166(b)(3)(vii) with language that would require 
that any emissions unit that replaces an existing emissions unit that 
requires shakedown becomes operational only after a reasonable 
shakedown period, not to exceed 180 days. IEPA explains that its 
language should be interpreted consistent with similar language that 
EPA has previously approved in other SIPs, including language approved 
into the Arizona SIP at A.A.C. R18-2-101(87)(g) (providing that any 
emissions unit that replaces an existing emissions unit and that 
requires shakedown becomes operational only after a reasonable 
shakedown period, not to exceed 180 days.). See 80 FR 67319, 67334 
(November 2, 2015).\13\
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    \13\ EPA notes that to be grammatically consistent with these 
previous approvals, IEPA's language should more-appropriately be 
read as: ``Any emissions unit that replaces an existing emissions 
unit and that requires shakedown . . . .'' However, we do not 
believe such grammatical inconsistency renders this provision 
ambiguous or unclear.
---------------------------------------------------------------------------

    Paragraph 40 CFR 51.166(b)(3)(vii) addresses when an emissions 
increase occurs in the specific situation where an existing emissions 
unit is being replaced. Thus, the term ``replacement unit'' as used in 
40 CFR 51.166(b)(3)(vii) is used in the context of determining when an 
emissions increase occurs when an emissions unit replaces an existing 
emissions unit, considering a ``reasonable shakedown period.'' Under 40 
CFR 51.166(b)(7)(ii) and (32), any new emissions unit that meets 
certain criteria is considered an existing emissions unit when 
calculating the emissions increase from a project, allowing the use of 
projected actual emissions in lieu of the unit's potential to emit.
    IEPA's language makes a reasonable distinction between the various 
uses of the term ``replacement unit'' by clarifying that the context of 
40 CFR 51.166(b)(3)(vii) differs from the context of 40 CFR 
51.166(b)(7)(ii) and (32). Specifically, IEPA's language would clarify 
that, for purposes of determining when a unit that requires shakedown 
becomes operational, as provided by 40 CFR 51.166(b)(3)(vii), the 
determination of the appropriate shakedown period need not be limited 
to those circumstances where the emissions unit meets the criteria for 
a ``replacement unit'' under 40 CFR 51.166(b)(7)(ii) and (32). EPA 
proposes to find that IEPA's language is approvable.
11. Potential To Emit
    In the definition of ``potential to emit'' at 40 CFR 51.166(b)(4), 
the second sentence requires that any physical or operational 
limitation on the capacity of the source to emit a pollutant, including 
air pollution control equipment and restrictions on hours of operation 
or on the type or amount of material combusted, stored, or processed, 
shall be treated as part of its design if the limitation or the effect 
it would have on emissions is federally enforceable. IEPA has proposed 
to replace the phrase ``federally enforceable'' as used in 40 CFR 
51.166(b)(4) with ``federally enforceable or legally and practicably 
enforceable by a state or local air pollution control agency.'' See 35 
Ill. Adm. Code 204.560. IEPA's definition is consistent with past court 
decisions and EPA guidance \14\ that establish that the term 
``potential to emit'' must encompass all legally enforceable emission 
limitations that restrict a source's emissions. National Mining 
Association v. EPA, 313 U.S. App. DC 363, 59 F.3d 1351 (DC Cir. 1995); 
Chemical Manufacturers Association, et. al. v EPA, No. 89-1514 (DC Cir. 
September 15, 1995). EPA proposes to approve IEPA's version of this 
provision.
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    \14\ See Memorandum from John S. Seitz, Director, Office of Air 
Quality Planning and Standards, to Regional Office Addressees, 
Release of interim Policy on Federal Enforceability of Limitations 
on Potential to Emit, January 22, 1996.
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12. Hazardous Air Pollutants (HAPs)
    Section 112(b)(6) of the CAA expressly prohibits the application of 
PSD permitting requirements to pollutants listed under section 112 of 
the CAA. See 42 U.S.C. 7412(b)(6). Consistent with this statutory 
prohibition, 40 CFR 51.166(b)(49)(v) provides that the term ``regulated 
NSR pollutant'' shall not include HAPs either listed in section 112 of 
the CAA, or added to the list pursuant to section 112(b)(2) of the CAA, 
and which have not been delisted pursuant to section 112(b)(3) of the 
CAA, unless the listed HAP is also regulated as a constituent or 
precursor of a criteria pollutant listed under section 108 of the CAA.
    To ensure the prohibition in 40 CFR 51.166(b)(49)(v) encompasses 
all substances listed in section 112 of the CAA, IEPA has proposed in 
its PSD regulation that the prohibition in 40 CFR 51.166(b)(49)(v) 
shall also apply to HAPs added to the list pursuant to section 
l12(b)(3) of the CAA and hazardous substances listed under section 
l12(r)(3) for purposes of risk management planning and otherwise not 
delisted pursuant to section ll2(r) of the CAA, unless such pollutant 
is otherwise addressed as a regulated NSR pollutant. See 35 Ill. Adm. 
Code 204.610(e). HAP compounds would continue to be addressed when they 
are a component of another pollutant that is a regulated NSR pollutant, 
e.g., volatile organic compounds or particulate matter. However, they 
would not be regulated individually as HAPs.
    EPA proposes to approve IEPA's proposed revision to the regulatory 
language in 40 CFR 51.166(b)(49)(v) because it is consistent with our 
interpretation of section 112(b)(6) of the CAA. Indeed, EPA has 
approved similar changes in other PSD SIPs. See, e.g., 73 FR 23957 (May 
1, 2008) (Alabama PSD and Nonattainment NSR).
13. Nonroad Engines
    Under 40 CFR 51.166(b)(5), a ``stationary source'' means any 
building, structure, facility, or installation which emits or may emit 
a regulated NSR pollutant. Section 302(z) of the CAA defines 
``stationary source'' to exclude those emissions resulting directly 
from an internal combustion engine for transportation purposes or from 
a nonroad engine or nonroad vehicle as defined in section 216 of the 
CAA. 42 U.S.C. 7602(z). Consistent with this statutory exception, IEPA 
has expressly excluded from the definition of ``stationary source'' in 
40 CFR 51.166(b)(5) those ``emissions resulting directly from an 
internal combustion engine for transportation purposes or from a 
nonroad engine or nonroad vehicle as defined in section 216 of the CAA. 
See 35 Ill. Adm. Code 204.690. IEPA's exclusion of ``nonroad engines'' 
from the definition of ``stationary source'' is approvable.
14. Baseline Concentration
    The Federal regulations at 40 CFR 51.166(b)(13) define ``baseline 
concentration'' as that ambient concentration level that exists in the 
baseline area ``at the time of the applicable minor source baseline 
date.'' \15\ The ``minor source baseline date'' is defined at 40 CFR 
51.166(b)(14)(ii). A baseline concentration is determined for each 
pollutant for which a minor source baseline date is established and 
shall include the items in 40 CFR 51.166(b)(13)(i)(a) and (b). Under 40 
CFR 51.166(b)(13)(ii), the following will

[[Page 22379]]

not be included in the baseline concentration and will affect the 
applicable maximum allowable increase(s): ``actual emissions'' from any 
major stationary source on which construction commenced after the major 
source baseline date (as defined at 40 CFR 51.166(b)(14)(i)); and 
actual emissions increases and decreases at any stationary source 
occurring after the minor source baseline date. See 40 CFR 
51.166(b)(13)(ii)(a) and (b).
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    \15\ The baseline concentration is relevant when determining the 
amount of allowable PSD increment that is available for a project.
---------------------------------------------------------------------------

    IEPA has proposed to revise the language in 40 CFR 
51.166(b)(13)(i)(a) to specify that for a major stationary source in 
existence on the major source baseline date, ``actual emissions'' means 
increases or decreases in actual emissions resulting from construction 
commencing after the major source baseline date. See 35 Ill. Adm. Code 
204.260(b)(1). IEPA's language would serve to clarify that, for major 
modifications occuring after the major source baseline date, emissions 
increases or decreases would consume or expand, respectively, the 
allowable PSD increment.
    IEPA's interpretation of ``actual emissions'' in the context of 40 
CFR 51.166(b)(13)(i)(a) is consistent with current EPA precedent and 
guidance. See, e.g., In re Northern Michigan University Ripley Heating 
Plant, 14 E.A.D. 314 (the legislative history suggests that Congress 
intended its definition of ``baseline concentration'' to be interpreted 
in such a way that changes in emissions would be the focus of the 
increment calculus for replaced (and by implication, modified) 
sources). Therefore, IEPA's regulatory language is approvable.
15. Major Emissions Unit
    IEPA has not included in its PSD regulation the portion of the 
definition of ``major emissions unit'' for PALs as set forth in 40 CFR 
51.166(w)(2)(iv)(b) because this provision solely deals with 
nonattainment areas. See 35 Ill. Adm. Code 204.1680. At the time EPA 
initially promulgated PALs, EPA included one set of regulatory language 
for both PSD and nonattainment area permitting. 67 FR 80186 (December 
31, 2002). EPA utilized the same PAL language for both regulatory 
programs. However, EPA has since promulgated distinct sets of 
regulations for PSD and nonattainment areas at 40 CFR 51.166 or 52.21 
(for PSD) and 40 CFR 51.165 (for nonattainment areas). The provision at 
40 CFR 51.166(w)(2)(iv)(b) applies to nonattainment pollutants in 
nonattainment areas and is appropriately addressed in regulations 
developed under 40 CFR 51.165 (i.e., Illinois' regulations at 35 Ill. 
Adm. Code 203). EPA, therefore, proposes to approve IEPA's exclusion of 
40 CFR 51.166(w)(2)(iv)(b) from its PSD regulations. IEPA's exclusion 
is consistent with 40 CFR 51.166(i)(2), which provides that the SIP may 
provide that the substantive requirements of PSD do not apply to a 
major stationary source or major modification with respect to a 
particular pollutant if the owner or operator demonstrates that, as to 
that pollutant, the source or modification is located in an area 
designated as nonattainment under section 107 of the CAA. IEPA has 
included this provision at 35 Ill. Adm. Code 204.860(b).
16. Recent EPA Rulemaking Activity
    On November 24, 2020, EPA issued a Project Emissions Accounting 
final rule that clarified that both emissions increases and decreases 
from a major modification at an existing stationary source can be 
considered during the first step of the two-step NSR applicability test 
(termed ``project emissions accounting''). 85 FR 74890. Specifically, 
as relevant here, EPA revised 40 CFR 51.166(a)(7)(iv)(f) and 40 CFR 
52.21(a)(2)(iv)(f), which had stated that a significant emissions 
increase of a regulated NSR pollutant is projected to occur if the 
``sum of the emissions increases for each emissions unit'' for each 
type of emissions unit equals or exceeds the significant emissions rate 
for that pollutant. The final rule replaces the phrase ``sum of the 
emissions increases for each emissions unit'' in these provisions with 
the phrase ``sum of the difference for all emissions units.'' EPA also 
added new language at 40 CFR 51.166(a)(7)(iv)(g) and 40 CFR 
52.21(a)(2)(iv)(g), respectively, stating that the phrase ``sum of the 
difference'' ``shall include both increases and decreases in 
emissions.'' EPA concluded that the revisions to 40 CFR 
51.166(a)(iv)(f) do not constitute minimum program elements that must 
be included in a PSD program for such program to be approvable into the 
SIP. 85 FR 74904. Thus, IEPA's rule is approvable without this 
language.
17. Other Substantive Differences Compared to 40 CFR 51.166
    IEPA's regulation omits the clause ``except the activities of any 
vessel'' from the definition of ``Building, Structure, Facility or 
Installation'' at 40 CFR 51.166(b)(6)(i). See 35 Ill. Adm. Code 
204.290. In 1984, the D.C. Circuit vacated this exemption and directed 
EPA to perform additional review consistent with its opinion. Natural 
Resources Defense Council, Inc. v. EPA, 725 F.2d 761, 771 (D.C. Cir. 
1984). While EPA has not removed the vacated language from the 
definition of ``Building, Structure, Facility or Installation,'' the 
vacatur leaves no legally effective regulation that would exempt the 
activities of any vessel from consideration for PSD permitting 
purposes.\16\ IEPA's omission of the phrase ``except the activities of 
any vessel'' from the definition of ``Building, Structure, Facility or 
Installation'' at 40 CFR 51.166(b)(6)(i) is consistent with EPA's 
interpretation of the D.C. Circuit's vacatur.
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    \16\ See Letter from Charles J. Sheehan, Regional Counsel, EPA 
Region 6, to Mr. Michael Cathey, Managing Director, El Paso Energy 
Bridge Gulf of Mexico, October 28, 2003.
---------------------------------------------------------------------------

    IEPA has proposed to omit 40 CFR 51.166(b)(2)(iii)(k), which would 
exempt ``[t]he reactivation of a very clean coal-fired electric utility 
steam generating unit'' from the definition of a ``physical change or 
change in the method of operation.'' IEPA has also omitted the 
corresponding definition of ``Reactivation of a very clean coal-fired 
electric utility steam generating unit'' at 40 CFR 51.166(b)(37). IEPA 
states that there are no existing utility units in Illinois to which 
these provisions could apply. Notwithstanding whether subject sources 
currently exist in Illinois, IEPA's omission of 40 CFR 
51.166(b)(2)(iii)(k) and 40 CFR 51.166(b)(37) would mean that such 
sources would no longer be exempt from PSD program requirements. EPA 
proposes to find that IEPA's language is approvable.
    IEPA has omitted the transitional requirement from 40 CFR 
51.166(w)(l5)(ii), which would have given IEPA authority to supersede 
any PAL which was established by the Administrator prior to the date of 
approval of the SIP with a PAL that complies with the requirements of 
40 CFR 51.166(w)(w)(1) through (15). Given that EPA has not issued a 
PAL in Illinois, this language would be unnecessary.
    IEPA's regulation does not include a reference to 40 CFR 51.166(s) 
in the ``source obligation'' requirement in 40 CFR 51.166(r)(2). The 
provision at 40 CFR 51.166(r)(2) requires that if a source relaxes a 
prior enforceable limitation that allowed the source to be regulated as 
a ``minor'' rather than a major stationary source, such source would 
become subject to the permit requirements for a major stationary source 
at 40 CFR 51.166(j) through (s) as if it were a new source. However, 40 
CFR 51.166(s) contains discretionary provisions concerning the 
application of

[[Page 22380]]

innovative control technology; thus, 40 CFR 51.166(s) should not have 
been included in the reference to mandatory permit elements. This 
revision is consistent with the January 4, 2021 unpublished final error 
corrections rule which corrected the source obligation requirement at 
40 CFR 51.166(r)(2) by removing the reference to paragraph (s) and 
replacing it with a reference to paragraph (r).
    IEPA's regulation does not include the second sentence in the 
definition of ``Complete'' at 40 CFR 51.166(b)(22), which provides that 
``Designating an application complete for purposes of permit processing 
does not preclude the reviewing authority from requesting or accepting 
any additional information.'' See 35 Ill. Adm. Code 204.330. EPA 
proposes to find that this omission does not impact the relative 
stringency of IEPA's regulation with respect to 40 CFR 51.166. On 
November 5, 2020, IEPA confirmed EPA's interpretation that 35 Ill. Adm. 
Code 204.330 does not foreclose IEPA from requesting additional 
information from the applicant should it determine, after initially 
deeming the application ``complete,'' that additional information was 
necessary to process the application.
    IEPA's November 5, 2020, clarification letter identified various 
typographical errors or inadvertent omissions in IEPA's regulation. 
IEPA stated that until it undertakes rulemaking to correct those errors 
or omissions, it intends to implement those provisions consistent with 
the corresponding Federal rule language at 40 CFR part 51. IEPA 
identified the following provisions, along with how it interprets those 
provisions: (1) In 35 Ill. Adm. Code 204.490(c)(3), ``42 U.S.C. 7435'' 
means ``42 U.S.C. 7425''; (2) in 35 Ill. Adm. Code 204.620(c)(4), the 
reference to 35 Ill. Adm. Code 204.620(c)(2) and (c)(3) refers to 35 
Ill. Adm. Code 204.620(c)(l) and (2), consistent with 40 CFR 
51.l66(y)(2)(iv); (3) in 35 Ill. Adm. Code 204.930(c)(4), the phrase 
``this Section'' means ``this Part,'' consistent with 40 CFR 
51.166(g)(3)(iv); (4) in 35 Ill. Adm. Code 204.1500(b), the phrase 
``with the consent of the Governor'' means ``with the consent of the 
Governor(s) of other affected State(s),'' consistent with 40 CFR 
51.166(s)(2); and (5) in 35 Ill. Adm. Code 204.420(a)(2)(A), ``40 CFR 
52'' means ``40 CFR 51 and 52,'' consistent with 40 CFR 
51.100(ii)(2)(i). EPA proposes to approve each of the provisions that 
IEPA has identified as containing typographical errors or inadvertent 
omissions because IEPA will implement those provisions consistent with 
the corresponding Federal language. In addition, many of the 
typographical errors and omissions do not impact the relative 
stringency of IEPA's regulation compared to 40 CFR 51.166.

C. Amendments to 35 Ill. Adm. Code Part 252 (Public Participation)

    On September 22, 2020, EPA submitted a request to incorporate 
certain amendments to 35 Ill. Adm. Code Part 252 into the Illinois SIP. 
The amendments to 35 Ill. Adm. Code Part 252 are intended to 
accommodate IEPA's new PSD program at 35 Ill. Adm. Code Part 204, in 
compliance with 40 CFR 51.166(q). IEPA specified in 35 Ill. Adm. Code 
204.1320 that the public participation procedures at 35 Ill. Adm. Code 
Part 252 must be followed. EPA has previously approved the procedures 
at 35 Ill. Adm. Code Part 252 for IEPA's minor new source review and 
nonattainment new source review permitting programs. See 50 FR 38803 
(September 25, 1985).
    On March 3, 2021, IEPA submitted a request to withdraw a portion of 
the submitted amendments, 35 Ill. Adm. Code 252.301, from approval into 
the PSD SIP. This provision applies to EPA's review of title V permits 
issued by IEPA. Since this provision is not a required element under 40 
CFR 51.166, EPA is proposing to grant IEPA's request.
    IEPA's public participation requirements for the PSD program are 
based on the Federal requirements contained in 40 CFR 51.166(q) and 40 
CFR part 124. Under 35 Ill. Adm. Code Part 252, as amended, IEPA must, 
among other things, provide an opportunity for public comment and 
hearing, make relevant information regarding a PSD permit application 
and IEPA's preliminary determination on an application available to the 
public, send a copy of the notice of public comment to the applicant, 
EPA, and other identified entities, consider all timely public comments 
in issuing a final determination, and provide notice of the final 
determination to specified entities.
    EPA is proposing to find that IEPA's amendments to 35 Ill. Adm. 
Code Part 252 meet the CAA requirements for public participation for 
the PSD program as set forth in 40 CFR 51.161 and 51.166(q), and would 
be substantially identical to the public participation requirements in 
40 CFR part 124 that are pertinent to the currently-applicable FIP 
incorporating 40 CFR 52.21. EPA therefore proposes to approve the 
amendments as a revision to the Illinois SIP. EPA is not including in 
its proposed approval 35 Ill. Adm. Code 252.301 because IEPA withdrew 
this provision from its submittal, and it is not a required element of 
a PSD SIP, as discussed above.

D. Amendments to 35 Ill. Adm. Code Part 211 (Definitions and General 
Provisions)

    IEPA has amended 35 Ill. Adm. Code Part 211 to update certain 
provisions in this regulation such that they refer to permits issued 
under 40 CPR 52.21 or 35 Ill. Adm. Code Part 204, Illinois' new 
regulation for a state PSD permitting program. Specifically, IEPA has 
submitted amendments to 35 Ill. Adm. Code 211.7150(b) and (d).
    The amendments to 35 Ill. Adm. Code 211.7150(b) and (d), as 
described above, are approvable because PSD permits in Illinois are 
currently issued under 40 CFR 52.21. Following approval of 35 Ill. Adm. 
Code Part 204, IEPA will issue PSD permits under this new state 
regulation; but permits previously issued under 40 CFR 52.21 will 
continue to be effective unless rescinded or otherwise rendered 
invalid.
    On November 5, 2020, IEPA clarified that the provision in 35 Ill. 
Adm. Code 204.200 that refers to the definitions in 35 Ill. Adm. Code 
Part 211 for those terms that are not specifically defined in 35 Ill. 
Adm. Code Part 204 applies to those terms in 35 Ill. Adm. Code Part 211 
that EPA has previously approved into the Illinois SIP. EPA's proposed 
approval of 35 Ill. Adm. Code Parts 204 and 211 does not apply to any 
terms and definitions in 35 Ill. Adm. Code Part 211 that EPA has not 
previously approved into the Illinois SIP.

E. Amendments to 35 Ill. Adm. Code Part 203 (Major Stationary Source 
Construction and Modification)

    IEPA has amended 35 Ill. Adm. Code Part 203, which contains 
Illinois' nonattainment NSR rules. The amendments update the provisions 
in this regulation that refer to permits issued under 40 CFR 52.21 to 
refer to permits issued under 40 CFR 52.21 or 35 Ill. Adm. Code Part 
204, Illinois' new regulation for a state PSD permitting program. 
Specifically, IEPA has submitted amendments to 35 Ill. Adm. Code 
203.207(a), (c)(2), (c)(3), (c)(5), (c)(6), (e), and (f).
    The amendments to 35 Ill. Adm. Code 203.207(a), (c)(2), (c)(3), 
(c)(5), (c)(6), (e), and (f) as described above are approvable because 
PSD permits in Illinois are currently issued under 40 CFR 52.21. 
Following approval of 35 Ill. Adm. Code Part 204, IEPA will issue PSD 
permits under this new state regulation but permits previously issued

[[Page 22381]]

under 40 CFR 52.21 will continue to be effective unless legally 
rescinded or otherwise rendered invalid.

F. Personnel, Funding, and Authority

    Section 110(a)(2)(E)(i) of the CAA requires states to have adequate 
personnel, funding, and authority under state law to carry out a SIP. 
IEPA has authority under state law to issue PSD permits. Specifically, 
sections 9.l(d)(l) and (2) of the Illinois Environmental Policy Act 
(Illinois Act), 415 ILCS 5/9.l(d)(l) and (2), specify that no person 
shall violate any provisions of sections 111, 112, 165, or 173 of the 
CAA, as now or hereafter amended, or the implementing Federal 
regulations; or construct, install, modify, or operate any equipment, 
building, facility, source or installation which is subject to 
regulation under sections 111, 112, 165, or 173 of the CAA, as now or 
hereafter amended, except in compliance with the requirements of such 
sections and Federal regulations adopted pursuant thereto. The Illinois 
Act further specifies that no such action shall be undertaken without a 
permit granted by IEPA whenever a permit is required pursuant to the 
Illinois Act or the implementing state regulations, or section 111, 
112, 165, or 173 of the CAA or implementing Federal regulations, or in 
violation of any conditions imposed by such permit. Consistent with the 
Illinois Act, 35 Ill. Adm. Code 204.820 and 204.850 would require that 
a source may construct or operate any source or modification subject to 
PSD permitting only after obtaining an approval to construct or PSD 
permit. IEPA would have the ability to rescind such PSD permit under 35 
Ill. Adm. Code 204.1340.
    With respect to personnel and funding, as already discussed, IEPA 
has been issuing PSD permits under a delegation agreement with EPA 
since 1980. The staff of engineers and air quality modelers who 
supported IEPA in its issuance of PSD permits under a delegation 
agreement with EPA will continue to support IEPA's issuance of PSD 
permits under a SIP-approved PSD program. IEPA explained in its 
submittal that it currently has nine full time construction permit 
engineers that perform construction permit activities, and that it has 
an adequate revenue stream from permit fees to support such activities. 
EPA therefore proposes to find that IEPA has adequate personnel, 
funding, and authority to implement the PSD program in Illinois.

III. What action is EPA taking?

A. Scope of Proposed Action

    EPA is proposing to approve revisions to the Illinois SIP that IEPA 
submitted on September 22, 2020. These revisions implement the PSD 
preconstruction permitting regulations for certain new or modified 
sources in attainment and unclassifiable areas. Currently, the PSD 
program in Illinois is operated under the FIP incorporating 40 CFR 
52.21. EPA is proposing to approve IEPA's PSD regulations contained in 
35 Ill. Adm. Code Parts 204 and 252 to apply statewide, except in 
Indian reservations. EPA is excluding from the scope of this proposed 
approval of IEPA's PSD program all Indian reservations in the State, 
and any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. For the facilities in these geographic areas, 
the PSD FIP incorporating 40 CFR 52.21 will continue to apply and EPA 
will retain responsibility for issuing permits affecting such sources.

B. Rules Proposed for Approval and Incorporation by Reference Into the 
SIP

    EPA proposes to approve into the Illinois SIP at 40 CFR 52.720, the 
following regulations: 35 Ill. Adm. Code 203.207 ``Major Modification 
of a Source,'' 35 Ill. Adm. Code Part 204 ``Prevention of Significant 
Deterioration,'' and 35 Ill. Adm. Code 211.7150 ``Volatile Organic 
Material (VOM) or Volatile Organic Compound (VOC)'', effective 
September 4, 2020; and 35 Ill. Adm. Code Part 252 ``Public 
Participation in the Air Pollution Control Program,'' except 35 Ill. 
Adm. Code 252.301, effective June 10, 2020.

C. Transfer of Authority for Existing EPA-Issued PSD Permits

    In a letter dated September 30, 2020, IEPA requested approval to 
exercise its authority to fully administer the PSD program with respect 
to those sources under IEPA's permitting jurisdiction that have 
existing PSD permits issued by EPA. This would include authority to 
conduct general administration of these existing permits, authority to 
process and issue any subsequent PSD permit actions relating to such 
permits (e.g., modifications, amendments, or revisions of any nature), 
and authority to enforce such permits. Since April 7, 1980, IEPA has 
had full delegation to implement the PSD permitting program under the 
FIP. 46 FR 9580 (January 29, 1981). Thus, PSD permits issued by IEPA on 
or after April 7, 1980 were issued under both state and EPA authority.
    Prior to delegation of the PSD permitting program to IEPA on April 
7, 1980, EPA issued several PSD permits for sources in Illinois.\17\ In 
an April 14, 1982 amendment to the terms of the 1980 delegation 
agreement, EPA delegated to IEPA the authority to amend or to revise 
any permits that had been previously issued by EPA. For those permits 
issued solely by EPA prior to delegation (on or before April 7, 1980), 
IEPA has demonstrated adequate authority to enforce and modify these 
permits.
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    \17\ EPA issued at least 18 such permits; however, some of the 
affected facilities may no longer exist. The full listing of these 
facilities is available in the docket for this action.
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    Concurrent with our approval of IEPA's PSD program into the SIP, we 
are proposing to transfer to IEPA authority to modify, amend or revise, 
and enforce PSD permits that EPA previously issued to sources under 
IEPA's permitting jurisdiction.

IV. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the Illinois PSD regulations discussed in section III.B of 
this preamble. EPA has made, and will continue to make, these documents 
generally available through www.regulations.gov and at the EPA Region 5 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

[[Page 22382]]

     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

    Dated: April 22, 2021.
Cheryl Newton,
Acting Regional Administrator, Region 5.
[FR Doc. 2021-08820 Filed 4-27-21; 8:45 am]
BILLING CODE 6560-50-P