[Federal Register Volume 74, Number 122 (Friday, June 26, 2009)]
[Rules and Regulations]
[Pages 30466-30469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14855]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1131; FRL-8921-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Illinois; Oxides of Nitrogen Regulations, Phase II

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a request submitted by the Illinois 
Environmental Protection Agency (Illinois EPA) on October 23, 2007, to 
revise the Illinois State Implementation Plan (SIP). The State has 
submitted revisions to 35 Illinois Administrative Code (Ill. Adm. Code) 
parts 211 and 217. The submitted revisions are final and adopted in the 
Ill. Adm. Code, and pertain to definitions and general provisions, and 
control of Nitrogen Oxides (NO<INF>X</INF>). The rules satisfy the 
requirements of EPA's NO<INF>X</INF> SIP Call Phase II Rule (the Phase 
II Rule). We are approving these regulations based on Illinois' 
demonstration that the State will meet the emissions targets set forth 
in the Phase II Rule through reductions from stationary internal 
combustion (IC) engines and turbines which are identified in the 
NO<INF>X</INF> plan submittal. Limiting NO<INF>X</INF> emissions from 
IC engines and turbines will enable the State to meet the 7,055 ton 
reduction requirement contained in the Phase II Rule, thereby improving 
air quality and protecting the health of Illinois citizens.

DATES: This direct final will be effective August 25, 2009, unless EPA 
receives adverse comments by July 27, 2009. If adverse comments are 
received, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-1131, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#39545656575c401753565157795c4958175e564f"><span class="__cf_email__" data-cfemail="dab7b5b5b4bfa3f4b0b5b2b49abfaabbf4bdb5ac">[email protected]</span></a>.
    3. Fax: (312) 692-2551.

[[Page 30467]]

    4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such 
deliveries are only accepted during the Regional Office normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information. The Regional Office official hours of business are 
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2007-1131. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. We recommend that you telephone Andy Chang, Environmental 
Engineer, at (312) 886-0258 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer, 
Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-0258, <a href="/cdn-cgi/l/email-protection#5d3e353c333a733c3339241d382d3c733a322b"><span class="__cf_email__" data-cfemail="3c5f545d525b125d5258457c594c5d125b534a">[email protected]</span></a>.

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
II. Who Is Affected by the New Rule and the Amended Rules?
III. What Does Approval of This Rule Accomplish?
IV. How Are Owners and Operators Expected To Comply With the New 
Requirement?
V. What Action Is EPA Taking?
VI. Statutory and Executive Order Reviews

I. Background

    On October 27, 1998 (63 FR 57356), EPA issued the NO<INF>X</INF> 
SIP Call, which required 22 States, including Illinois, to prepare 
plans to reduce the transport of ozone throughout the eastern part of 
the United States. This was to be accomplished by reducing emissions of 
NO<INF>X</INF> from selected source categories, primarily major fuel 
burning sources, using available cost-effective measures. The rule 
established a cap on emissions of NO<INF>X</INF> from each State. 
States had flexibility in determining which fuel burning sources were 
to be included in their rules. For the most part, States targeted 
NO<INF>X</INF> reductions from electric utilities and other large 
industrial boilers, cement kilns, and IC engines as sources which could 
be controlled in a cost-effective manner. Background information in 
this regard is available from documents prepared by EPA, and can be 
found at http://www.epa.gov/airmarkets/progsregs/nox/sip.html.
    Some States and industry challenged the rule. In Michigan v. EPA, 
213 F.3d 663 (D.C.Cir. 2000), the U.S. Court of Appeals for the 
District of Columbia Circuit largely upheld EPA's rulemaking. It did, 
however, remand a portion of the rule concerning IC engines to EPA for 
further notice and public comment.
    Subsequent to the Court's decision, EPA proceeded initially with 
rules concerning electric generating units (EGU), industrial boilers 
(non-EGU), and cement kilns as Phase I sources. The IC engines fell 
into the Phase II group, to be addressed at a later date. Illinois 
adopted its Phase I rules and submitted them to EPA; EPA approved them 
on June 28, 2001 (66 FR 34382) and November 21, 2001 (66 FR 56454).
    On April 21, 2004 (69 FR 21603), EPA issued the Phase II Rule. It 
required most States with Phase I budget programs to submit a Phase II 
plan to achieve incremental reductions not addressed by Phase I rules. 
The Phase II Rule also identified the additional NO<INF>X</INF> budget 
reductions (incremental reductions) that States would have to achieve 
by regulating large (greater than one ton per day emissions) IC 
engines. EPA calculated the amount of incremental reductions required 
by recalculating the overall budget to reflect a control level of 82 
percent from natural gas-fired lean-burn IC engines with greater than 
one ton per day NO<INF>X</INF> emissions. Illinois EPA drafted 
revisions to the SIP (35 Ill. Adm. Code Parts 211 and 217) based on 
guidance from EPA dated September 19, 2004, which contained an example 
model rule (the Model Rule).
    On April 6, 2007, Illinois EPA filed proposed amendments to 35 Ill. 
Adm. Code parts 211 and 217 in order to satisfy the requirements of 
EPA's Phase II Rule with the Illinois Office of the Clerk of the 
Pollution Control Board (the Board). The Board issued a First Notice 
Opinion and Order on April 19, 2007, and the public process started on 
April 20, 2007, when the Board issued a Notice of Hearings. The first 
hearing occurred on May 21, 2007, in Springfield, and the second on 
June 19, 2007, in Chicago. Most notably, the State received one set of 
comments from ANR Pipeline Company, Natural Gas Pipeline Company, 
Trunkline Gas Company, and Panhandle Eastern Pipeline Company (the 
Pipeline Consortium). Illinois EPA addressed the comments from the 
Pipeline Consortium and made changes where necessary prior to 
finalization of the Phase II Rule. The Second Notice Opinion and Order 
of the Board was issued on August 9, 2007, and the Joint Committee on 
Administrative Rules' Certifications of No Objections was dated 
September 18, 2007. On this same date, the Final Opinion and Order of 
the Board for the proposed rules were adopted. The Notice of Adopted 
Amendments was

[[Page 30468]]

published in the Illinois Register, volume 31, issue 41, pp. 14254-
14295, on October 12, 2007.
    In the Phase II Rule, EPA calculated the 2007 base year 
NO<INF>X</INF> emissions inventory from which Illinois needed 
additional reductions of 7,055 tons per ozone season, which in Illinois 
starts on April 1 and ends on October 31. EPA based the calculation 
upon achieving an 82 percent reduction at all IC engines in Illinois 
with greater than one ton per day of NO<INF>X</INF> emissions. On March 
13, 2009, Illinois EPA provided a budget demonstration that showed 
reductions in NO<INF>X</INF> emissions for large IC engines and 
turbines in the State amounting to 7,055 tons per ozone season, thereby 
satisfying requirements of the Phase II Rule.

II. Who Is Affected by the New Rule and the Amended Rules?

    Ill. Adm. Code parts 211 and 217 apply to the entire State of 
Illinois, and apply to any person who owns or operates a large 
stationary reciprocating IC engine, turbine, or other smaller 
stationary IC engines.

III. What Does Approval of This Rule Accomplish?

    EPA established the incremental difference requirements for 
affected States, including Illinois, in the April 21, 2004, Federal 
Register (69 FR 21604). The State's budget demonstration shows that the 
State will be able to reduce emissions of NO<INF>X</INF> to meet the 
Phase II incremental difference of 7,055 tons of NO<INF>X</INF> for the 
ozone season.
    Approval of the State's rules ensures the Federal enforceability of 
NO<INF>X</INF> emissions reductions. The State's rules affect 
NO<INF>X</INF> SIP Call IC engines, turbines, and any other stationary 
IC engine subject to NO<INF>X</INF> control in the State's rules. The 
emission reductions for some large engines will be permanent and year-
round resulting from low emission combustion measures retrofitted to 
existing engines. Low emission combustion measures cannot be cycled off 
once the changes are made to the engine. The combustion control 
technology is a permanent, physical change to the design and operation 
of the engine which, when implemented, is expected to reduce emissions 
of NO<INF>X</INF> year-round. The State's rules include provisions 
which the source must follow to demonstrate compliance with the rules. 
EPA expects environmental and health benefits to be permanent.

IV. How Are Owners and Operators Expected To Comply With the New 
Requirement?

    Illinois Adm. Code part 217.392 includes a requirement that an 
owner or operator of a large IC engine or turbine shall not operate an 
affected engine during the ozone season, unless there is a compliance 
plan which meets the requirements of the rule. The rule prohibits 
operation of affected engines after January 1, 2008, except in 
compliance with the requirements. Included in the compliance plan is a 
requirement that the projected NO<INF>X</INF> emissions from the engine 
be included in a Federally enforceable permit. This information will 
enable the State to determine if reductions from the covered sources 
should meet the Phase II budget increment. The failure of a source to 
meet the required NO<INF>X</INF> reductions is a violation of the 
provisions of the permit. The State of Illinois is expected to enforce 
non-compliance with its rules by reviewing monitoring and testing 
information submitted by the owners and operators of the affected 
engines and turbines.

V. What Action Is EPA Taking?

    EPA is approving revisions to Ill. Adm. Code parts 211 and 217 for 
incorporation into the Illinois SIP. The revisions were submitted by 
Illinois EPA and the rules pertain to definitions and general 
provisions, and control of Nitrogen Oxides, respectively, and include: 
211.740 (Brakehorsepower); 211.1740 (Diesel Engine); 211.1920 
(Emergency or Standby Unit); 211.3300 (Lean-burn Engine); 211.5640 
(Rich-burn Engine); 217.101 (Measurement Methods); 217.102 
(Abbreviations and Units); 217.104 (Incorporation by Reference); 
217.386 (Applicability); 217.388 (Control and Maintenance 
Requirements); 217.390 (Emissions Averaging Plan); 217.392 
(Compliance); 217.394 (Testing and Monitoring); 217.396 (Recordkeeping 
and Reporting); and section 217 appendix G. EPA is taking this action 
because we have determined that the rule satisfies the requirements of 
the Clean Air Act and the NO<INF>X</INF> SIP Call Phase II Rule. The 
State has shown, through its budget demonstration, that it can achieve 
the Phase II budget increment through source compliance with the 
State's rules affecting IC engines and turbines in conjunction with the 
State's permitting program. Meeting the Phase II budget increment and 
the Phase I increment means the State will meet its total overall ozone 
season NO<INF>X</INF> budget and bring about reductions in ozone 
concentrations in the State and downwind from Illinois.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments, as Illinois drafted the SIP revisions based on the Model 
Rule. However, in the Proposed Rules section of this Federal Register 
publication, we are publishing a separate document that will serve as 
the proposal to approve the State plan if relevant adverse written 
comments are filed. This rule will be effective August 25, 2009 without 
further notice unless we receive relevant adverse written comments by 
July 27, 2009. If we receive such comments, we will withdraw this 
action before the effective date by publishing a subsequent document 
that will withdraw the final action. All public comments received will 
then be addressed in a subsequent final rule based on the proposed 
action. EPA will not institute a second comment period; therefore, any 
parties interested in commenting on this action should do so at this 
time. If we do not receive any comments, this action will be effective 
August 25, 2009.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act 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 Clean Air Act. 
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:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive

[[Page 30469]]

Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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 Clean Air Act; and
    <bullet> 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, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.
    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 action 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 August 25, 2009. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the Proposed 
Rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: June 11, 2009.
Walter W. Kovalick Jr,
Acting Regional Administrator, Region 5.

0
40 CFR part 52 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)(184) to read as 
follows:


Sec.  52.720  Identification of plan.

* * * * *
    (c) * * *
    (184) On October 23, 2007, the Illinois Environmental Protection 
Agency submitted revisions to its State implementation plan for the 
Oxides of Nitrogen (NO<INF>X</INF>) SIP Call Phase II. The State has 
submitted revisions to 35 Illinois Administrative Code (Ill. Adm. Code) 
Parts 211 and 217. The rules pertain to definitions and general 
provisions, and control of Nitrogen Oxides (NO<INF>X</INF>), 
respectively. The rules satisfy the requirements of EPA's 
NO<INF>X</INF> SIP Call Phase II Rule (the Phase II Rule).
    (i) Incorporation by reference. (A) Illinois Administrative Code, 
Title 35: Environmental Protection, Subtitle B: Air Pollution, Chapter 
I: Pollution Control Board, Subchapter c: Emission Standards and 
Limitations for Stationary Sources, Part 211: Definitions and General 
Provisions, Subpart B: Definitions, Sections: 211.740 Brakehorsepower; 
211.1740 Diesel Engine; 211.1920 Emergency or Standby Unit; 211.3300 
Lean-burn Engine; and 211.5640 Rich-burn Engine; effective September 
25, 2007. (B) Illinois Administrative Code, Title 35: Environmental 
Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control 
Board, Subchapter c: Emission Standards and Limitations for Stationary 
Sources, Part 217: Nitrogen Dioxide Emissions, Subpart A: General 
Provisions, Sections: 217.101 Measurement Methods; 217.102 Abbreviation 
and Units; Subpart Q: Stationary Reciprocating Internal Combustion 
Engines and Turbines, Sections 217.386 Applicability; 217.388 Control 
and Maintenance Requirements; 217.390 Emissions Averaging Plan; 217.392 
Compliance; 217.394 Testing and Monitoring; 217.396 Recordkeeping and 
Reporting; and 217 Appendix G: Existing Reciprocating Internal 
Combustion Engines Affected by the NO<INF>X</INF> SIP Call; effective 
September 25, 2007.
    (ii) Additional material. Illinois Administrative Code, Title 35: 
Environmental Protection, Subtitle B: Air Pollution, Chapter I: 
Pollution Control Board, Subchapter c: Emission Standards and 
Limitations for Stationary Sources, Part 217: Nitrogen Dioxide 
Emissions, Subpart A: General Provisions, Section 217.104 Incorporation 
by Reference; effective September 25, 2007.

[FR Doc. E9-14855 Filed 6-25-09; 8:45 am]
BILLING CODE 6560-50-P


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