04-11337. Approval and Promulgation of Implementation Plans; Indiana

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The United States Environmental Protection Agency, through this action, is approving rules submitted by the State of Indiana as revisions to its State Implementation Plan (SIP) for Prevention of Significant Deterioration (PSD) air quality construction permit program. All public comments received will be addressed in a subsequent final rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time.

DATES:

This “direct final” rule is effective July 19, 2004, unless EPA receives written adverse comment by June 21, 2004. If adverse written comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. IN-140, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: Pamela Blakley, Acting Chief, Air Programs Branch, United States Environmental Protection Agency, Mail Code AR-18J, 77 West Jackson Boulevard, Chicago, Illinois 60604.
• Hand Delivery: Deliveries are only accepted during the Docket's normal hours of operation (8:15 a.m. to 4:45 p.m. CDT), and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. IN-140. EPA's policy is that all comments received will be included in the public docket without change, 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 regulations.gov, or e-mail. The federal 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 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. For additional instructions on submitting comments, go to Unit I of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in an index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Publicly available docket materials are available in hard copy at the Air Permit Section, Air Programs Branch (AR-18J), Air and Radiation Division, United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604 (Docket ID IN-140), Monday through Friday, excluding holidays. The Docket telephone number is [phone].

FOR FURTHER INFORMATION CONTACT:

Ethan Chatfield, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), Air and Radiation Division, United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

This supplemental information section is organized as follows:

I. General Information

A. Does This Action Apply to Me?

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI

2. Tips for Preparing Your Comments

II. EPA Action and Review

A. What Is the Purpose of This Document?

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

C. Approvability Analysis

III. Final Rulemaking Action

IV. Statutory and Executive Order Reviews

I. General Information

A. Does This Action Apply to Me?

The PSD rules apply to the construction or modification of major sources of air pollution. Indiana has already adopted these rules; therefore, air pollution sources will not be subject to any additional requirements. This rulemaking action merely approves the State rules into the SIP, making them federally enforceable under the Clean Air Act (CAA). Because Indiana has a federally-approved State program, anyone wishing to appeal a PSD permit will continue to do so under the State's environmental appeals process.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

i. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

ii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iii. Describe any assumptions and provide any technical information and/or data that you used.

iv. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

v. Explain your views as clearly as possible and provide specific examples to illustrate your concerns, and suggest alternatives.

vi. Make sure to submit your comments by the comment period deadline identified.

II. EPA Action and Review

A. What Is the Purpose of This Document?

This document approves the SIP revision request submitted by IDEM for changes in its PSD program responsive to EPA conditional approval rulemaking.

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 (40 CFR 52.21). On April 11, 2001, IDEM submitted a request to EPA to revise its SIP to incorporate its PSD regulations in place of the federal delegated rules. On February 1, 2002, IDEM submitted to EPA a revised request resolving issues identified by EPA during an informal review. IDEM withdrew its August 11, 2001, request on February 27, 2002. On May 28, 2002, EPA sent a letter to IDEM deeming the February 1, 2002 submittal complete, and initiated 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 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, resubmitted them as part of this SIP submittal request.

On January 15, 2003, EPA published a direct final rule conditionally approving IDEM's February 1, 2002 SIP submittal upon correction of a few minor deficiencies (68 FR 1970). On March 3, 2003 (68 FR 9892), EPA withdrew the direct final rule due to adverse comments, and published a final rule conditionally approving the submittal. On January 16, 2004, IDEM responded to the conditional approval by submitting corrections to the identified deficiencies.

C. Approvability Analysis

In the January 15, 2003 direct final conditional approval and March 3, 2003 final conditional approval, EPA identified minor discrepancies between the Federal rule requirements (40 CFR part 51, subpart I) and the Indiana SIP that IDEM must correct before EPA could fully approve Indiana's PSD program. The following are changes incorporated by IDEM in its January 16, 2004 submittal and approved by EPA through this rulemaking.

In 326 IAC 2-2-1(y)(5), the words “and this subdivision” were superfluous and were, therefore, removed. In 326 IAC 2-2-1(gg), “U.S. EPA” was replaced with “IDEM.” In 326 2-2-1(x)(E), the phrase “minor new source review regulations approved pursuant to 40 CFR 51.160 through 40 CFR 51.166” was added to a list of regulations exempting the use of an alternative fuel or raw material from the definition of a “major modification.” In 326 IAC 2-2-6(b)(5), the words “whichever is later” were not necessary and, therefore, were removed. The date in 326 IAC 2-2-12, which provides an allowance for sources to request that IDEM rescind requirements in permits, was changed from January 1, 2002 to January 19, 2002. The date was intended to be the effective date of the Indiana PSD rule amendments, but since IDEM did not know at the time of final adoption what the actual effective date of the rule would be, an estimated date of January 1, 2002 was inserted. The actual effective date was January 19, 2002; this date is, therefore, being corrected through this action.

In addition to the changes described above, IDEM has also made a number of smaller revisions to 326 IAC 2-2 in its January 16, 2004 submittal that are more grammatical in nature. EPA believes that these changes do not significantly change the meaning of Indiana's rules and, therefore, approves these smaller changes as submitted.

III. Final Rulemaking Action

EPA believes that Indiana's January 16, 2004 submittal adequately addressed issues raised in EPA's January 15, 2003 direct final conditional approval and the March 3, 2003 final conditional approval. In this rulemaking action, EPA is therefore approving the sections of Indiana's rules addressed in the Approvability Analysis above as a revision to the Indiana SIP for PSD.

EPA's approval of Indiana's PSD program does not divest EPA of the duty to continue appropriate oversight to insure that PSD determinations made by Indiana are consistent with the requirements of the CAA, Federal 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 has or may promulgate as part of its new source review reform.

EPA views the approval of these revision to the Indiana PSD SIP as noncontroversial, and anticipates no adverse comments. However, in a separate document in this Federal Register publication, EPA is proposing approval of the State Plan. Should adverse or critical written comments be filed, EPA will withdraw this direct final rule and address all public comments in a final rule based on the proposed rule published in the proposed rules section of this Federal Register. This approval action will be effective without further notice unless EPA receives relevant adverse written comment by June 21, 2004. Should EPA receive adverse or critical 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 July 19, 2004.

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

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).

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 (Public Law 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 is not economically significant.

National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 15 U.S.C. 272, requires federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry our policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing program submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a program submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

Civil Justice Reform

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

Governmental Interference With Constitutionally Protected Property Rights

EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order, and has determined that the rule's requirements do not constitute a taking.

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, EPA 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 19, 2004. 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
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: April 26, 2004.

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 paragraph (c)(165) to read as follows:

§ 52.770

Identification of plan.

* * * * *

(c) * * *

(165) On January 16, 2004 Indiana submitted revised Prevention of Significant Deterioration rules as a revision to the Indiana State Implementation Plan.

(i) Incorporation by reference.

(A) Amendments to the Indiana Administrative Code, Title 326: Air Pollution Control Board; Article 2: Permit Review Rules; Rule 2: Prevention of Significant Deterioration (PSD) Requirements; Section 2-2-1 Definitions; Section 2-2-6 Increment consumption; requirements; and Section 2-2-12 Permit rescission. Filed with the Secretary of State on March 9, 2004, effective April 8, 2004. Published at 27 Indiana Register 2216; April 1, 2004.