E7-11571. Approval and Promulgation of Air Quality Implementation Plans; Indiana; NSR Reform Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

On July 10, 2006, EPA proposed partial approval of revisions to Indiana's prevention of significant deterioration (PSD) and nonattainment new source review (NSR) construction permit programs. EPA received comments on this proposal on August 9, 2006. An adverse comment regarding the inclusion of hazardous air pollutants (HAPs) in Indiana's PSD rules was received. Subsequently, on January 17, 2007, the Indiana Department of Environmental Management (IDEM) requested the withdrawal of the portion of this submittal pertaining to HAPs. EPA is partially approving the portions of the Indiana rule that were proposed for approval on July 10, 2006 and were not withdrawn on January 17, 2007. As noted in the July 10, 2006, notice, we are not taking action on the Clean Unit and Pollution Control Project (PCP) portions of the Indiana rule.

DATES:

This final rule is effective on July 18, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2004-IN-0006. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through 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 Sam Portanova, Environmental Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Sam Portanova, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. What Is EPA Addressing in This Document?

II. What Comments Did EPA Receive and What Are EPA's Responses?

III. What Action Is EPA Taking?

IV. Statutory and Executive Order Reviews

I. What Is EPA Addressing in This Document?

We are partially approving revisions to Indiana's PSD and nonattainment NSR construction permit programs. In our July 10, 2006, proposed partial approval (71 FR 38824), we discussed the history of Indiana's PSD and nonattainment NSR programs, the contents of the State's submission, and our analysis. Please consult that document for further information on this submittal.

EPA received comments on this proposal on August 9, 2006. The Alliance of Automobile Manufacturers (“the Alliance”) and the Air Permitting Forum (“the Forum”) urged EPA to partially disapprove the subsections of the definition of “regulated NSR pollutant” that reference HAPs listed under section 112 of the Clean Air Act (the Act).

On January 17, 2007, IDEM submitted a letter requesting the withdrawal of 326 IAC 2-2-1(uu)(5) from the state implementation plan (SIP) submittal, thus removing the references to HAPs from the definition of “regulated NSR pollutant.” EPA is, therefore, taking no action on 326 IAC 2-2-1(uu)(5) and approving the remaining portions of the Indiana submittal proposed for approval on July 10, 2006.

II. What Comments Did EPA Receive and What Are EPA's Responses?

We received comments from the CASE Coalition, the Indiana Manufacturers Association, and Eli Lilly and Company supporting our July 10, 2006, proposal to partially approve the Indiana rules. Since these were not adverse comments, no further EPA response is necessary. As mentioned above, we also received a comment from the Alliance and the Forum asking EPA to partially disapprove the inclusion of HAPs in Indiana's PSD rules. The following is our response to this adverse comment.

Indiana included a new definition—“regulated NSR pollutant”—in its “NSR Reform” regulations. This definition is consistent with the definition in the federal rules, except that IDEM added a paragraph at 326 IAC 2-2-1(uu)(5) to reference HAPs from the existing state rules. On July 10, 2006, we proposed approval of the definition of “regulated NSR pollutant” as part of our proposed partial approval of Indiana's rules. In this proposal, we cited the preamble of the December 31, 2002, NSR rulemaking (67 FR 80240) as part of our justification:

According to the preamble to the December 31, 2002, NSR rulemaking (67 FR 80240), “State and local agencies with an approved PSD program may continue to regulate the HAP now exempted from federal PSD by section 112(b)(6) if their PSD regulations provide an independent basis to do so. These State and local rules remain in effect unless they are revised to provide similar exemptions.” Indiana has included these HAP pollutants in its State PSD rules since prior to the 1990 amendments to the Act, which added the 112(b) HAP exemption. Therefore, Indiana may continue regulating these pollutants in its PSD rules.

The Alliance and the Forum questioned this position, asserting that section 112(b)(6) of the Act contains a prohibition on the application of PSD to these pollutants. After consideration of this comment, EPA agrees that Indiana's history of inclusion of HAPs in its PSD rules, by itself, does not serve as a sufficient “independent basis” for the approval of these pollutants in this SIP submittal. IDEM's letter of January 17, 2007, requesting the withdrawal of 326 IAC 2-2-1(uu)(5) from this SIP submittal, removes all references to HAPs from this SIP submittal. As such, EPA is taking no action on 326 IAC 2-2-1(uu)(5), and is approving the remaining portions of the Indiana submittal that were proposed for approval on July 10, 2006.

III. What Action Is EPA Taking?

EPA is approving into the Indiana SIP the revisions to Indiana's PSD and NSR construction permits program submitted by IDEM on September 2, 2004. The revisions meet the minimum program requirements of the December 31, 2002, EPA NSR Reform rulemaking. As requested in IDEM's October 25, 2005, letter to EPA, we are not taking action on the Clean Unit and PCP provisions of Indiana's rule. As also requested in IDEM's January 17, 2007, letter to EPA, we are not taking action on 326 IAC 2-2-1(uu)(5).

IV. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

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.

Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” 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).

Regulatory Flexibility Act

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.).

Unfunded Mandates Reform Act

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).

Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

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).

Executive Order 13132: Federalism

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

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 approves a state rule implementing a Federal Standard.

National Technology Transfer Advancement Act

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.

Paperwork Reduction Act

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.).

Congressional Review Act

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 August 17, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See Section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

Dated: May 31, 2007.

Bharat Mathur,

Acting Regional Administrator, Region 5.

For the reasons stated in the preamble, part 52, chapter I, of title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart P—Indiana

2. Section 52.770 is amended by adding paragraph (c)(181) to read as follows:

§ 52.770

Identification of plan.

* * * * *

(c) * * *

(181) On September 2, 2004, Indiana submitted modifications to its Prevention of Significant Deterioration and nonattainment New Source Review rules as a revision to the state implementation plan. On October 25, 2005, and January 17, 2007, Indiana submitted revisions to the September 2, 2004 submittal.

(i) Incorporation by reference.

(A) Title 326 of the Indiana Administrative Code, Rules 2-1.1-7, 2-2-1(a) through (l), 2-2-1(n) through (kk), 2-2-1(mm) through (tt), 2-2-1(uu)(1) through (4), 2-2-1(vv) through (aaa), 2-2-2(a) through (d)(4), 2-2-2(d)(6) through (e), 2-2-2(g) through (i), 2-2-3, 2-2-4, 2-2-5(a), 2-2-5(c) through (e), 2-2-6, 2-2-8, 2-2.4, 2-3-1(a) through (i), 2-3-1(k) through (ff), 2-3-1(hh) through (uu), 2-3-2(a) through (c)(4), 2-3-2(c)(6) through (k), 2-3-2(m), 2-3-3(a) through (b)(11), 2-3-3(b)(14), 2-3.4, 2-5.1-4. Filed with the Secretary of State on August 10, 2004, effective September 10, 2004. Published in the Indiana Register on September 1, 2004 (27 IR 3887).