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Federal Register / Vol. 86, No. 172 / Thursday, September 9, 2021 / Rules and Regulations Ill. Adm. Code 204.560 definition of potential to emit. The commenters assert that, if accepted into the SIP, this would allow IEPA to issue minor NSR
permits without public notice and an opportunity for public comment because a source could be minor solely on the basis of State-enforceable restrictions on PTE. Specifically, the commenters assert that the Illinois rules governing the categories of permits subject to public comment before issuance 35 Ill. Adm. Code 252.104 and 252.201 include sources that would be major sources except for their federally enforceable restrictions, but do not include sources that would be major except for state or locally enforceable restrictions. This, the commenters allege, means that IEPA could issue permits establishing PTE limits without public notice and an opportunity for comment. The commenters allege that eliminating the requirement for an opportunity for public comment on draft PTE limits would violate EPAs minor NSR regulations at 40 CFR
51.161.
EPA Response: We disagree with the commenters. First, as discussed in the proposed rule, IEPAs proposed revision of the PTE definition at 35 Ill. Adm.
Code 204.560 is consistent with past court decisions and related EPA
guidance that establish that the term potential to emit must encompass all legally enforceable emission limitations that restrict a sources emissions. In Chemical Manufacturers Association v.
EPA, 70 F. 3d 637 D.C. Cir. 1995 and National Mining Association v. EPA, 59
F.3d 1351, 136263 D.C. Cir. 1995, the term federally enforceable was vacated in the definition of PTE e.g., 40
CFR 51.166b4, and in subsequent memoranda, EPA stated it interpreted the term federally enforceable to mean federally enforceable or legally and practicably enforceable by a state or local air pollution control agency emphasis added.9 The memoranda reiterate EPAs earlier guidance on permit conditions restricting potential to emit that are enforceable as a practical matter. For example, practicable enforceability for a sourcespecific permit means that the permits provisions must, at a minimum: 1 Be technically accurate and identify which portions of the source are subject to the limitation; 2 specify the time period for the limitation hourly, daily, monthly, and annual limits such as 9 See, e.g., Release of Interim Policy on Federal Enforceability of Limitations on Potential to Emit at 34 Jan. 22, 1996, available at https
www.epa.gov/sites/default/files/2015-07/
documents/pottoemi.pdf.

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rolling annual limits; 3 be independently enforceable and describe the method to determine compliance, including appropriate monitoring, recordkeeping, and reporting; 4 be permanent; and 5 include a legal obligation to comply with the limit.10
IEPAs PTE definition is consistent with the relevant court decisions and EPAs interpretation of those decisions, requiring the limits to be federally enforceable or legally and practicably enforceable by a state or local air pollution control agency. It is therefore appropriate for Illinois to use that phrase in place of federally enforceable alone.
Second, although Illinois notice and comment procedures for synthetic minor NSR sources are beyond the scope of this action, IEPA cannot avoid notice and comment on a synthetic minor NSR permit for a source that has taken State-enforceable restrictions on PTE. Under CAA section 110a2C, State minor NSR programs approved under the SIP, and the permits issued thereunder, are always federally enforceable. See also 40 CFR 52.23 and CAA section 113b1.11 Under 35 Ill.
Adm. Code 252.104 and 252.201, in addition to providing public notice for major NSR and title V permit actions, IEPA must provide public notice for the planned issuance of the following minor NSR permits: Permits for the construction of a source or a modification of a source that would constitute a new major stationary source or a major modification of a major stationary source, if the source or modification were not accompanied by contemporaneous emissions decreases or if federally enforceable significant restrictions were not placed on the source or modification by the permit;
permits to operate sources that contain federally enforceable conditions, including permits that exclude sources from the applicability of the permitting requirements described in 35 Ill. Adm.
Code 252.104a1, a2 or a5; and permits for the construction of a source 10 See Memorandum entitled, Guidance on Limiting Potential to Emit in New Source Permitting, from Terrell F. Hunt, Associate Enforcement Counsel, Office of Enforcement and Compliance Assurance OECA, and John Seitz, Director, Office of Air Quality Planning and Standards OAQPS, to EPA Regional Offices Jun.
13, 1989, and Memorandum entitled, Options for Limiting the Potential to Emit PTE of a Stationary Source Under Section 112 and Title V of the Clean Air Act Act, from John Seitz, Director, OAQPS
and Robert I. Van Heuvelen, Director, ORE to Regional Air Directors Jan. 25, 1995.
11 See also Federal Enforceability of States Existing Minor New Source Review NSR Programs Nov. 2, 1994, available at https www.epa.gov/
nsr/federal-enforceability-states-existing-minornew-source-review-nsr-programs.

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of public interest or emission units of public interest at a source, the criteria for which are outlined in 35 Ill. Adm.
Code 252.104b. Thus, as relevant to synthetic minor NSR permits, IEPAs regulations do not provide any exemption from public notice and comment for permits for new sources or modifications that would be major sources or major modifications but accept enforceable restrictions on PTE
such that the new source or modification becomes a minor source.
Consistent with CAA section 110a2C, the PTE definition in 40
CFR 51.166b4 and IEPAs public participation requirements at 35 Ill.
Adm. Code 252.104a3, a6 and 252.201a, permits for such sources or modifications must be public noticed regardless of the new level of allowable emissions after taking into account the federally enforceable restrictions on emissions or any contemporaneous emissions decreases. For these reasons, IEPA cannot avoid notice and comment on synthetic minor NSR permits for sources accepting only State-enforceable restrictions on PTE.
Although not a condition of this approval, EPA expects IEPA to implement the PTE definition in a manner that is consistent with the courts decisions, IEPAs PTE definition in 35 Ill. Adm. Code 204.560 and the public participation requirements in 35
Ill. Adm. Code 252.104 and 252.201, and EPA rules as discussed above.
IEPAs enforcement program must continue to provide sufficient incentive for sources to comply with permit limits. Permit limits must be enforceable as a practical matter i.e., practicably enforceable, and PTE limits must be subjected to appropriate public notice and comment consistent with 40 CFR
51.161 and IEPAs SIP-approved public participation regulations. If, in the future, IEPA does not implement its PTE
definition consistent with its SIPapproved regulations or the CAA and its implementing regulations including, but not limited to, not public noticing PTE limits or establishing limits that are not practicably enforceable, EPA could find that IEPA has failed to adequately administer or enforce its PSD program and may take action to notify IEPA of such a finding as authorized by sections 110a2E, 179, or 110k5 of the CAA.
Further, in response to a recent report by the OIG regarding EPAs oversight of synthetic minor permits, EPA has committed to identifying state, local, and tribal agencies whose program regulations, including but not limited to, minor NSR and federally enforceable state operating permit program
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