03-616. Approval and Promulgation of Implementation Plans; Indiana

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The United States Environmental Protection Agency (EPA) conditionally approves rules, submitted by the State of Indiana as revisions to its State Implementation Plan (SIP), for Prevention of Significant Deterioration (PSD) provisions for attainment areas for the Indiana Department of Environmental Management (IDEM).

DATES:

This rule will become effective March 3, 2003 unless EPA receives adverse written comments by February 14, 2003. If EPA receives adverse written comments, it will publish a timely withdrawal of the rule in the Federal Register, and inform the public that the rule will not take effect.

ADDRESSES:

Copies of the documents relevant to this action are available for inspection during normal business hours at the following location: Permits and Grants Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please contact Julie Capasso at [phone] before visiting the Region 5 office. Written comments should be sent to: Pamela Blakley, Chief, Permits and Grants Section (IL/IN/OH), Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

Julie Capasso, Environmental Scientist, Permits and Grants Section (IL/IN/OH), Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, telephone [phone].

SUPPLEMENTARY INFORMATION:

This supplementary information section is organized as follows:

A. What is the purpose of this document?

B. What is the history of IDEM's PSD program?

C. Who is affected by this action?

D. Approvability Analysis

E. What is today's final action?

F. Regulatory Assessment Requirements

A. What Is the Purpose of This Document?

This document is our conditional approval of the SIP revision request that IDEM has submitted for its PSD program.

B. What Is the History of IDEM's PSD Program?

On September 30, 1980, EPA delegated to IDEM the authority to implement and enforce the federal PSD program. On April 11, 2001, IDEM submitted a request to EPA to revise its SIP to incorporate its PSD regulations. On February 1, 2002, IDEM submitted to EPA a revised request resolving issues identified by EPA during an informal review. IDEM withdrew the previous request on February 27, 2002. On May 28, 2002, EPA sent a letter to IDEM deeming the February 1, 2002 submittal complete, and initiated the processing of the request.

Indiana's February 1, 2002 submission consists of the addition to the SIP of: 326 IAC 2-2, PSD rules; 326 IAC 2-1.1-6, Public notice; and 326 IAC 2-1.1-8, Time periods for determination on permit applications. IDEM previously submitted sections 326 IAC 2-1.1-6 and 326 IAC 2-1.1-8, and at EPA's request, is resubmitting them as part of this SIP submittal request.

C. Who Is Affected by This Action?

Indiana has already adopted these PSD rules; therefore, air pollution sources will not be subject to any additional requirements. This action merely approves the State rules into the SIP, making them federally enforceable under the Clean Air Act (CAA). Because this is now a federally-approved State program instead of a delegated federal program, anyone wishing to appeal a PSD permit will have to do so under the State's environmental appeals process.

D. Approvability Analysis

I. 326 IAC 2-2-1: Definitions

Unless otherwise specified below, definitions in 326 IAC 2-2-1 are consistent with definitions in 40 CFR 51.166(b).

EPA has noted wording discrepancies between the Federal rules and the following rules: In 326 IAC 2-2-1(y)(5), the words “and this subdivision” are superfluous. In 326 IAC 2-2-1(gg), IDEM should replace “U.S. EPA” with “IDEM” in the following sentence: “U.S. EPA shall give expedited consideration to permit applications * * *.” In 326 IAC 2-2-6(b)(5), the words “whichever is later” are not necessary. These wording differences do not constitute approvability issues. IDEM agrees to address them the first time that it reopens the rules.

The Federal definition of “major modification” excludes from a physical change or a change in the method of operation the use by a stationary source of an alternative fuel or raw material which the source was capable of accommodating before January 1, 1975, unless the change is prohibited under any permit condition established after January 6, 1975 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Subpart I or 40 CFR 51.166. 40 CFR Subpart I contains requirements pertaining to minor new source review permits. Indiana's rule 326 IAC 2-2-1(x)(2)(E)(i) provides that the use of an alternative fuel or raw material is a change in the method of operation if prohibited by a condition of a permit issued pursuant to the authority of the PSD or major new source review programs, but does not address other new source review provisions. The omission of the reference to minor new source review provisions in 326 IAC 2-2-1(x)(2)(E)(i) was inadvertent. Indiana is not aware of any new source review permits that were not issued pursuant to PSD or major new source review authority that contain restrictions on the use of an alternative fuel or raw material; however, Indiana agrees to address this inadvertent omission within one year of the effective date of this conditional approval.

II. 326 IAC 2-2-6: Increment Consumption

326 IAC 2-2-6(a) only allows a source or major modification to consume 80% of the maximum increase allowed in the 40 CFR 51.166(c). The State's increment consumption requirements are more stringent than the Federal rule, and are therefore approvable.

III. 326 IAC 2-2-12: Permit Rescission

326 IAC 2-2-12 provides that sources may request that IDEM rescind requirements in permits issued prior to January 1, 2002. The comparable federal rule, 40 CFR 52.21(w)(2), provides for rescission of terms from permits issued prior to August 7, 1987. The Federal provision relates to the transition between Total Suspended Particulate (TSP) and particulate matter with an aerodynamic diameter of 10 microns or less (PM-10). IDEM has informed EPA that it interprets 326 IAC 2-2-12 to be consistent with 40 CFR 52.21(w) in that it would only consider use of this subsection to rescind conditions related to TSP. Therefore, EPA believes that these provisions are approvable.

E. What Is Today's Final Action?

EPA is conditionally approving the following rules because with the exception of the inadvertent omission of minor new source review permits from the exemption to the definition of “major modification,” the following sections of the State's Rules are consistent with EPA's regulations at 40 CFR 51.166:326 IAC 2-2-2, Applicability; 326 IAC 2-2-3, Control technology; 326 IAC 2-2-4, Air quality analysis; 326 IAC 2-2-5, Air quality impact; 326 IAC 2-2-7, Additional analysis; 326 IAC 2-2-8, Source obligation; 326 IAC 2-2-9, Innovative control technology; 326 IAC 2-2-10, Source information; 326 IAC 2-2-11, Stack height provisions; 326 IAC 2-2-13, Area designation and redesignation; 326 IAC 2-2-14, Sources impacting Federal Class I areas: Additional requirements; 326 IAC 2-2-15, Public participation; 326 IAC 2-2-16, Ambient air ceilings; 326 IAC 2-1.1-6, Public notice, and 326 IAC 2-1.1-8, Time periods for determination on permit applications. Because it is unlikely that Indiana has limited the ability of any sources to use alternative fuels or raw materials through a minor new source review permit, and because Indiana has committed in a December 12, 2002 letter to correct this minor deficiency within one year of the effective date of this approval, EPA believes that it is appropriate to grant conditional approval. However, should Indiana fail to correct this deficiency within a year of this action, EPA will initiate withdrawal of this approval. Although EPA is approving Indiana's PSD SIP, EPA emphasizes that it has a responsibility to insure that all states properly implement their preconstruction permitting programs. EPA's approval of Indiana's PSD program does not divest the Agency of the duty to continue appropriate oversight to insure that PSD determinations made by Indiana are consistent with the requirements of the CAA, EPA regulations and the SIP.

Today's approval of Indiana's SIP revision submission is limited to existing rules. EPA is taking no position on whether Indiana will need to make changes to its new source review rules to meet any requirements that EPA may promulgate as part of new source review reform.

EPA is publishing this direct final conditional approval of the Indiana PSD SIP submitted on February 1, 2002. We view this action as noncontroversial, and anticipate no adverse comments. However, in a separate document in this Federal Register publication, EPA is proposing to withdraw the State Plan should adverse or critical written comments be filed. This approval action will be effective without further notice unless EPA receives relevant adverse written comment by February 14, 2003. Should EPA receive such comments, it will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on March 3, 2003.

F. Regulatory Assessment Requirements

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 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 March 3, 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

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

Dated: December 18, 2002.

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.

2. Section 52.770 is amended by adding (c)(147) to read as follows:

§ 52.770

Identification of plan.

* * * * *

(c) * * *

(147) On February 1, 2002, Indiana submitted its Prevention of Significant Deterioration rules as a revision to the State implementation plan.

(i) Incorporation by reference.

(A) Title 326 of the Indiana Administrative Code, Rules 2-2-1, 2-2-2, 2-2-3, 2-2-4, 2-2-5, 2-2-6, 2-2-7, 2-2-8, 2-2-9, 2-2-10, 2-2-11, 2-2-12, 2-2-13, 2-2-14, 2-2-15 and 2-2-16. Filed with the Secretary of State on March 23, 2001, effective April 22, 2001.

(B) Title 326 of the Indiana Administrative Code, Rules 2-1.1-6 and 2-1.1-8. Filed with the Secretary of State on November 25, 1998, effective December 25, 1998. Errata filed with the Secretary of State on May 12, 1999, effective June 11, 1999.

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