[Federal Register: May 13, 2003 (Volume 68, Number 92)]
[Rules and Regulations]
[Page 25504-25507]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my03-24]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL 184-1a; FRL-7481-3]
Approval and Promulgation of Implementation Plan; Illinois New
Source Review Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a requested revision to the Illinois State
Implementation Plan (SIP), affecting air permit rules, submitted on
August 31, 1998. The submittal revises provisions for major
modifications to stationary sources to align more closely with the
Clean Air Act (CAA).
DATES: This rule is effective on July 14, 2003, without further notice,
unless EPA receives written adverse comments by June 12, 2003. If
adverse comment is received, EPA will publish a timely withdrawal of
this direct final rule in the Federal Register and inform the public
that the rule will not take effect.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the proposed approval are available for
inspection during normal business hours at the following location: EPA
Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois 60604.
Please contact Steve Marquardt at (312) 353-3214 to arrange a time to
inspect the submittal.
FOR FURTHER INFORMATION CONTACT: Steve Marquardt, AR-18J, 77 West
Jackson Boulevard, Chicago, Illinois 60604, Telephone Number: (312)
353-3214, E-Mail Address: marquardt.steve@epa.gov.
SUPPLEMENTARY INFORMATION: This section addresses the following
questions:
What does this document address?
What is the legal basis of the changes that EPA is approving?
What is the impact of these changes on the Emission Reductions
Market System (ERMS)?
What is involved in this final action?
What Does This Document Address?
Illinois' rules for nonattainment New Source Review (NSR), 35 Ill.
Adm. Code 203, are designed to ensure that the
[[Page 25505]]
construction of a major new source of air pollution or a large increase
of emissions at an existing source does not interfere with the
attainment demonstration and does not delay timely achievement of the
ambient air quality standards. There are four substantive requirements
imposed upon owners or operators of major projects, as set forth in
part 203. The first of these is the imposition of Lowest Achievable
Emission Rate (LAER) or for certain existing sources, Best Available
Control Technology (BACT) on emissions of the nonattainment pollutant
from the major project. Appropriate limits are established on a case by
case basis in the permitting process. The second requirement is that
the emissions of the nonattainment pollutant from a major project must
be accompanied by emission offsets from other sources in the
nonattainment area. This assures that the total emissions of the
nonattainment pollutant will remain within the levels accommodated by
the State's attainment demonstration. The third requirement is
compliance by other sources in the State which are under common
ownership or control with the person proposing the project. The final
requirement is an analysis of alternatives to the particular project,
to determine whether the benefits of the project outweigh the
environmental and social costs.
The amendments to 35 Ill. Adm. Code 203 are intended to better
track the language of sections 182(c)(6), (7), and (8) of the CAA, and
to make other revisions consistent with this effort. These changes deal
with how one determines whether a proposed change at a source is a
major modification. Tracking the language of these sections more
closely allows Illinois to better accommodate EPA guidance on
interpretation of these provisions of the CAA. In particular, Illinois
has amended part 203 so that it does not conflict with EPA's ``Notice
of Proposed Rulemaking, Prevention of Significant Deterioration (PSD)
and Nonattainment New Source Review (NSR),'' 61 FR 38249 (July 23,
1996). One topic addressed by EPA in this 1996 proposed rulemaking was
sections 182(c)(6), (7) and (8) of the CAA (61 FR 38298-38302).
When the EPA finalizes its NSR rulemaking establishing guidance on
these sections of the CAA, Illinois' NSR rules will have to be
reevaluated. The Illinois EPA has committed to undertaking such a
review of Illinois' NSR rules upon final EPA NSR rulemaking (Illinois
EPA comments filed to the Pollution Control Board, November 6, 1997).
What Is the Legal Basis of the Changes That EPA Is Approving?
The statutory basis for the changes to part 203 is sections
182(c)(6), (7) and (8) of the CAA. These provisions establish criteria
for determining the applicability of nonattainment NSR for
modifications in serious and severe ozone nonattainment areas.
The De Minimis Rule: Section 182(c)(6) of the CAA
The ``de minimis rule,'' section 182(c)(6) of the CAA, specifies
the basic approach for determining whether proposed modifications in
serious and severe ozone nonattainment areas are subject to
nonattainment NSR. In these areas, the determination whether a project
at a source is a major modification must consider other projects at the
source over the last five calendar years. If the sum of the particular
projects' emissions of an ozone precursor, (e.g., volatile organic
material), and increases and decreases in emissions from other
``contemporaneous'' projects is significant, i.e., more than a ``de
minimis'' threshold of 25 tons per year, the particular project is
major and subject to the requirements of NSR. The State of Illinois has
adopted this provision and is making no changes to it. (Refer to 35
Ill. Adm. Code 203.209(b)).
In addition, Illinois had adopted NSR rules that restricted the
role of contemporaneous emission decreases at a source in certain
circumstances. In particular, Illinois' NSR rules allowed applicability
of NSR to be triggered for a discrete operation, unit or other
pollutant emitting activity irrespective of decreases elsewhere at the
source, if a proposed project would result in a significant increase in
emissions at such operation or unit. For this purpose, other emission
increases and decreases at the discrete operation or unit during the
contemporaneous time period could be considered, but not decreases
elsewhere at the source. As a result, projects with significant
increases in emissions at individual units or operations could trigger
nonattainment NSR even if the overall net change in emissions at a
source was not significant. This was a consequence of Illinois'
historic interpretation of the language of sections 182(c)(7) and (8)
of the CAA.
The various amendments to 35 Ill. Adm. Code part 203, which EPA is
approving, remove provisions that could trigger NSR applicability for
individual units or operations in the manner explained above. The
amendments also make related changes to the rules. These amendments
allow Illinois to follow the proposed interpretation of section
182(c)(6), (7) and (8) of the CAA published by EPA in the Federal
Register in July 1996. By making the language of 35 Ill. Adm. Code part
203 more consistent with the language of the CAA, Illinois can
accommodate EPA's published interpretation. As stated above, the
Illinois EPA has committed to reevaluate part 203 upon EPA finalization
of its federal rules establishing guidance on these sections of the
CAA.
Special Rules for Modifications: Sections 182(c)(7) and (8) of the CAA
Section 182(c)(7) and (8) of the CAA are the ``Special Rule for
Modifications of Sources Emitting Less Than 100 Tons'' and the
``Special Rule for Modifications of Sources Emitting 100 Tons or
More.'' These provisions contain additional applicability provisions
for major modifications in serious and severe ozone nonattainment
areas. In general, they provide that a discrete operation, unit, or
other pollutant emitting activity at a source with a significant
emission increase (i.e., more than a de minimis increase) shall be
considered a major modification unless the owner or operator of the
source elects to offset the emissions from other operations, units, or
activities within the source at an internal offset ratio of 1.3 to 1.
If a source elects to provide internal offsets, a proposed modification
may be excused from some or all of the NSR requirements. Illinois' NSR
rules at 35 Ill. Adm. Code 203.207 and 203.301 generally provided and
continue to provide the relief offered by sections 182(c)(7) and (8) of
the CAA. However, as explained above, provisions were also included in
Illinois' NSR rules that allowed a major modification to be triggered
by proposed increases in emissions at an individual emission unit.
The interpretation of section 182(c)(7) and (8) of the CAA
published by EPA in 1996 recognizes that a source may not have enough
emissions decreases to internally ``net out'' an entire proposed
modification to 25 tons or less so that the modification is de minimis.
However, where a proposed modification involves more than one discrete
unit, the source may have sufficient creditable internal decreases that
could be applied at a 1.3 to 1 offset ratio against the emissions
increase at particular units. In such circumstances, sections 182(c)(7)
and (8) of the CAA function to allow a source to use creditable
internal decreases that are
[[Page 25506]]
insufficient to avoid nonattainment NSR for an entire project to still
avoid NSR requirements for certain units involved in a major
modification. Illinois has made changes to its NSR rules so as to be
able to follow this interpretation.
Review of Individual Amendments to Illinois' NSR Rules
The first change made by Illinois was to revise 35 Ill. Adm. Code
203.207(d), the applicability criteria for major modifications in
serious and severe ozone nonattainment areas. The amendment better
follows the wording of section 182(c)(6) of the CAA. Accordingly, 35
Ill. Adm. Code 203.207(d) no longer provides that changes at a discrete
operation or unit can be subject to NSR when the source as a whole
would not experience a de minimis increase in emissions as a result of
the proposed modification.
A related change was made to 35 Ill. Adm. Code 203.206(d), a
provision in the applicability criteria for major sources dealing with
reconstruction of a source. Illinois deleted this provision, which
allowed reconstruction of a source to be treated as a major new source.
This provision applied in Illinois when changes at an individual
operation or unit could trigger nonattainment NSR independent of
emission decreases elsewhere at the source. This provision is no longer
considered relevant by Illinois under the amended NSR rules with
source-wide netting of contemporaneous emissions increases and
decreases available to determine whether a proposed project would be a
major modification.
Illinois also made a related change to 35 Ill. Adm. Code
203.207(c)(1), in the applicability criteria for major modifications.
Illinois deleted the specific exclusion for replacements since the term
reconstruction was no longer available to govern this exclusion.
Illinois added 35 Ill. Adm. Code 203.207(e) and revised 35 Ill.
Adm. Code 203.301(e) to better follow the language of section 182(c)(7)
of the CAA, the ``Special Rule for Modifications of Sources Emitting
Less Than 100 Tons.'' As allowed by this special rule for modifications
at smaller sources, Illinois' NSR rules do not apply the requirements
of nonattainment NSR to a discrete operation or unit involved in a
major modification for which the source elects and is able to provide
internal offsets at a ratio of 1.3 to 1. In addition, major
modifications at these smaller major sources are only required to
comply with Best Available Control Technology, rather than the Lowest
Achievable Emission Rate.
Finally, Illinois added 35 Ill. Adm. Code 203.301(f), replacing
previous 35 Ill. Adm. Code 203.301(e)(2), to better follow the language
of section 182(c)(8) of the CAA, the ``Special Rule for Modifications
of Sources Emitting 100 Tons or More.'' As allowed by this special
rule, for modifications at larger major sources, Illinois' NSR rules do
not apply the LAER requirement of nonattainment NSR to a discrete
operation or unit involved in a major modification for which the source
elects and is able to provide internal offsets at a ratio of 1.3 to 1.
What Is the Impact of These Changes on the Emissions Reductions Market
System (ERMS)?
The ERMS, which is codified in 35 Ill. Adm. Code Part 205, is a
program adopted by Illinois for the Northeastern Illinois ozone
nonattainment area to reduce emissions of volatile organic material
(VOM) from major stationary sources. Illinois' amendments to 35 Ill.
Adm. Code 203 may have an effect on the calculation of certain sources'
baselines and allocations of allotment trading units (ATUs) under the
ERMS. ERMS required subject sources to determine their baseline levels
of volatile organic material emissions. Generally, sources receive
annual allotments of ATUs equivalent to their baseline emissions less
12%. At the end of each calendar year, sources ``turn in'' ATUs in an
amount not less that their volatile organic material emissions during
the preceding ozone season. When a sources' emissions exceed its
allotment of ATUs, the source must buy ATUs from other sources that
have been able to reduce their emissions below their allotments.
Under the amendments to 35 Ill. Adm. Code 203, a source that has a
modification to a discrete unit would have the option to net out on a
source-wide basis which would mean that the modification would not be
subject to requirements of NSR. This would allow sources to potentially
have a larger baseline under ERMS because they are now subject to less
stringent requirements pursuant to nonattainment NSR.
This final rule is not anticipated to significantly effect the ERMS
baselines that have already been set. Those baselines were set
generally using the average of the two seasonal allotments periods with
the highest VOM emissions during 1994, 1995, and 1996. The sources that
set their baselines under this requirement did so prior to the approval
of this rule change and were processed according to the rules that
applied at that time. Any change requested by a source to its baseline
would entail a significant revision to the source's CAAPP permit and
can be evaluated on an individual basis.
What Is Involved in This Final Action?
EPA is approving a requested revision to Illinois SIP affecting the
nonattainment NSR rules at 35 Ill. Adm. Code 203, submitted on August
31, 1998. The amendments to 35 Ill. Adm. Code 203 are intended to
better track the language of sections 182(c)(6), (7) and (8) of the
CAA, and to make other revisions consistent with this effort. Tracking
of these sections more closely allows Illinois to accommodate EPA
guidance these provisions of the CAA.
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 law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by 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
[[Page 25507]]
Executive Order 13132 (64 FR 43255, August 10, 1999). This action
merely approves a State rule implementing a Federal standard, 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. 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.
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 14, 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
Air pollution control, Environmental protection, Incorporation by
reference, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic
compounds.
Dated: April 2, 2003.
Bharat Mathur,
Acting Regional Administrator, Region 5.
0
For the reasons stated in the preamble, part 52, 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)(167) to read as
follows:
Sec. 52.720 Identification of plan.
* * * * *
(c) * * *
(167) On August 31, 1998, Illinois submitted revisions to its major
stationary sources construction and modification rules (NSR Rules) as a
State Implementation Plan revision request. These revisions apply only
in areas in Illinois that have been designated as being in serious or
severe nonattainment with the national ambient air quality standards
for ozone.
(i) Incorporation by reference. Illinois Administrative Code, Title
35: Environmental Protection, Subtitle B: Air Pollution, Chapter I:
Pollution Control Board, Subchapter A: Permits and General Provisions,
Part 203 Major Stationary Sources Construction and Modification,
Subpart B: Major Stationary Sources in Nonattainment Areas, Section
203.206 Major Stationary Source and Section 203.207 Major Modification
of a Source; and, Subpart C: Requirements for Major Stationary Sources
in Nonattainment Areas, Section 203.301 Lowest Achievable Emissions
Rate. Amended in R98-10 at 22 Ill. Reg. 5674, effective March 10, 1998.
[FR Doc. 03-11749 Filed 5-12-03; 8:45 am]
BILLING CODE 6560-50-P