E6-13861. Approval of the Clean Air Act Section 112(l) Delegation of National Emission Standards for Hazardous Air Pollutants for Secondary Lead Smelting; Indiana

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

This document announces that EPA has approved a request from the Indiana Department of Environmental Management (IDEM) for delegation of authority to implement and enforce National Emission Standards for Hazardous Air Pollutants (NESHAP) for Secondary Lead Smelting, through a state rule which adjusts the maximum achievable control technology (MACT) standard for secondary lead smelting. Pursuant to the Clean Air Act (CAA) and the NESHAP provisions, states may seek approval of state rules which make pre-approved adjustments to a MACT standard if the state rule is unambiguously no less stringent than the Federal rule. IDEM requested approval to adjust the NESHAP for secondary lead smelting, so that the standard will be as stringent as the State rule which currently applies to secondary lead smelters in Indiana. EPA reviewed this request and found that it satisfies the requirements for approval under the Federal provision which allows for delegation of an adjusted NESHAP; “Approval of State requirements that adjust a section 112 rule.” Therefore, upon the signature of this action, EPA delegates to IDEM the authority to implement and enforce the NESHAP for Secondary Lead Smelting, through IDEM's rule for Secondary Lead Smelters.

ADDRESSES:

The documents relevant to this action are available for public inspection during normal business hours at the following address: 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 Danny Marcus at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Danny Marcus, 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:

This supplementary information section is arranged as follows:

I. What Action is EPA Taking?

II. Under What Authority is EPA Approving this Delegation?

III. How Does 326 IAC 20-13 Meet the Requirements of 40 CFR 63.92?

A. The Secondary Lead Smelting NESHAP.

B. How does the State program meet the requirements of 40 CFR 63.91?

C. How does the State demonstrate that the public has had adequate notice and opportunity to submit written comments on the State requirements?

D. How does the State demonstrate that the adjustments pertain to certain pre-approved matters and are unequivocally no less stringent than the Federal rule?

1. How are the State adjustments which lower emission rates unequivocally no less stringent than the MACT standard?

2. How are the State adjustments which add a design, work practice, operational standard, emission rate or other such requirement unequivocally no less stringent than the MACT standard?

3. How are the State adjustments which increase the frequency of required reporting, testing, sampling or monitoring unequivocally no less stringent than the MACT standard?

IV. What is the Effect of This Delegation?

I. What Action is EPA Taking?

Pursuant to section 112(l) of the CAA and 40 CFR 63.92, EPA has approved IDEM's request that EPA delegate the authority to implement and enforce 40 CFR part 63, subpart X, NESHAP for secondary lead smelting, through Indiana rule 326 IAC 20-13, which adjusts the Federal secondary lead smelting MACT. This approval makes the Indiana rule, which is unambiguously no less stringent than the Federal MACT, Federally enforceable in Indiana and equivalent to the State rule that currently applies to secondary lead smelters in Indiana. EPA has also approved the delegation of the applicable Category I authorities for this MACT standard as set forth at 40 CFR 63.91(g).

II. Under What Authority is EPA Approving this Delegation?

Pursuant to CAA section 112(l), a state may develop and submit to EPA for approval a program for the partial or complete delegation of section 112 rules. EPA may approve state rules or programs which either: (1) Implement and enforce section 112 rules as promulgated by EPA (“straight delegation”); (2) implement and enforce state rules which adjust section 112 rules; (3) implement and enforce state rules which substitute for section 112 rules. The Federal regulations governing EPA's approval of state rules or programs under section 112(l) are located at 40 CFR part 63, subpart E.

Currently, IDEM has an EPA-approved program for the straight delegation of MACT standards. EPA approved IDEM's program of delegation for part 70 sources on November 14, 1995 (60 FR 57118). EPA approved IDEM's expansion of its program of delegation to non-part 70 sources on July 8, 1997 (62 FR 36460). Pursuant to the approved straight delegation program, EPA has approved the straight delegation of numerous MACT standards to IDEM (see 62 FR 36460 (7/8/1997), 65 FR 17264 (3/31/2000), 69 FR 22508 (4/26/2004), and 71 FR 2225 (1/13/2006)).

By letter dated July 3, 2003, IDEM requested approval of delegation of authority to implement and enforce 40 CFR part 63, subpart X, the secondary lead smelting MACT, through a state rule which adjusts the MACT standard. IDEM sought to adjust the MACT standard rather than seeking straight delegation because IDEM's current rule for secondary lead smelters is more stringent than the MACT standard. Pursuant to CAA section 112(d)(7), a MACT standard cannot be applied to diminish or replace the requirements of a more stringent emission limitation.

The criteria for EPA's approval of state rules which adjust section 112 rules are set forth at 40 CFR 63.92. In general, adjustments to section 112 MACT standards must be unambiguously no less stringent than the Federal rule and be limited to certain pre-approved matters. More specifically, Section 63.92(b)requires that the state demonstrate the following: (1) The state program meets the criteria of section 63.91, which provides for the straight delegation of section 112 rules; (2) the public has had adequate notice and opportunity to submit written comment on the state requirements which adjust the section 112 rule; (3) the adjustment to the section 112 rule results in requirements that are unequivocally no less stringent than the Federal rule with respect to: (a) Applicability; (b) level of control for each affected source and emission point; (c) compliance and enforcement measures; (d) dates of compliance. Further, Section 63.92(b)(3) only allows certain pre-approved adjustments, including the following: (1) Lowering a required emission rate; (2) adding a design, work practice, operational standard; (3) increasing a required control efficiency; (4) increasing the frequency of required reporting, testing, sampling or monitoring.

If the above criteria are met, EPA will approve the delegation of a MACT standard through a state rule which adjusts the standard. Because EPA has previously noticed and provided opportunity for comment on the adjustment procedure, including the list of allowable adjustments, no further notice or opportunity for comment is required. See 58 FR 62262 (November 26, 1993). The delegation is effective upon the signature of this Federal Register document. See 65 FR 55837 (September 14, 2000).

III. How Does 326 IAC 20-13 Meet the Requirements of 40 CFR 63.92?

IDEM's secondary lead smelter rule incorporates by reference the majority of the provisions of the Federal secondary lead smelter NESHAP. However, IDEM's rule adjusts certain provisions of the Federal secondary lead smelter NESHAP in order to make the rule equivalent to the state rule that currently applies to secondary lead smelters. As shown below, IDEM has demonstrated that its adjustments are limited to certain pre-approved matters and are unequivocally no less stringent than the Federal MACT provisions. The adjustments meet the criteria set forth in 40 CFR 63.92(b) for state rules which adjust a MACT standard.

A. The Secondary Lead Smelting NESHAP

The secondary lead smelting MACT, which IDEM seeks to adjust, was proposed in the Federal Register on June 9, 1994 (59 FR 29750) and promulgated on June 23, 1995 (60 FR 32587). EPA amended the MACT standard after industry groups petitioned EPA for reconsideration pursuant to CAA section 307(d)(7)(B). The amended standard was promulgated as a direct final rule on June 13, 1997 (62 FR 32209).

In general, the NESHAP for secondary lead smelting establishes emission limits for lead, as a surrogate for all metallic Hazardous Air Pollutants (HAPs), from smelting furnaces, refining kettles, dryers, and fugitive dust sources at secondary lead smelters. Among other things, the rule establishes emission limits for process emission sources, process fugitive emission sources, and for fugitive dust sources from any enclosure or building ventilation system.

B. How does the State program meet the requirements of 40 CFR 63.91?

40 CFR 63.92(b) provides that a state which seeks delegation of the authority to implement and enforce a Section 112 rule through a state rule which adjusts the Federal rule must first meet the criteria of 40 CFR 63.91(d). 40 CFR 63.91(d) sets forth the “up-front” approval requirements for the “straight” delegation of Federal MACT standards as promulgated. Once approved, a state need only reference the earlier approval of the criteria. Based on prior program submittals and approvals for IDEM's Title V air permit and Section 112 delegation programs, IDEM has met the requirements specified in 40 CFR 63.91(d).

C. How does the State demonstrate that the public has had adequate notice and opportunity to submit written comments on the State requirements?

40 CFR 63.92(b)(1) requires that a state seeking delegation under this section demonstrate that the public has had adequate notice and opportunity to comment on the state requirements. Title 13 of the Indiana Code (IC) contains statutory requirements for the environmental rulemaking process. IC 13-14-9 specifies requirements for providing opportunities for public comment during this process. Opportunities for comment were made available through three published notices for comment and two public hearings. In its request for delegation, IDEM provided its response to comments related to the two public hearings held for IDEM's secondary lead smelting rule. Therefore, IDEM has met the requirements of 40 CFR 63.92(b)(1).

D. How does the State demonstrate that the adjustments pertain to certain pre-approved matters and are unequivocally no less stringent than the Federal rule?

40 CFR 63.92(b)(2) requires that each state adjustment to a Federal Section 112 rule be unequivocally no less stringent than the Federal rule with respect to: Applicability; level of control for each affected source and emission point; compliance and enforcement measures; and compliance dates. Further, 40 CFR 63.92(b)(3) identifies those limited areas in which Federal Section 112 rules can be adjusted. Those limited adjustments include: lowering a required emission rate; adding a design, work practice, operational standard, emission rate or other such requirement; increasing the frequency of required reporting, testing, sampling or monitoring.

IDEM incorporated by reference the provisions of 40 CFR Part 63, Subpart X, as promulgated, except for certain limited provisions which are allowable adjustments under 40 CFR 63.92(b)(3). As described below, IDEM has demonstrated that those provisions that were adjusted meet the criteria of 63.92(b)(2) and (3).

1. How are the State adjustments which lower emission rates unequivocally no less stringent than the MACT standard?

40 CFR 63.92(b)(3)(i) provides that state rules which lower an emission rate may be part of an approved state rule. Under 40 CFR Part 63, Subpart X, the following emission limits apply to secondary lead smelting facilities: (a) Process sources—2.0 milligrams per dry standard cubic meter (mg/dscm), (b) process fugitive sources—2.0 mg/dscm, (c) fugitive dust sources from any enclosure or building ventilation system—2.0 mg/dscm. See 40 CFR 63.543-63.545. Under IDEM's secondary lead smelting rule, the following emission limits apply: (a) Process sources—1.0 mg/dscm, (b) process fugitive sources—0.5 mg/dscm, (c) stacks venting fugitive dust sources—0.5 mg/dscm. The limits set forth in IDEM's secondary lead smelting rule are unequivocally no less stringent than the emission limits in the Federal rule. Those provisions of IDEM's rule that adjust the Federal rule emission limits include: 326 IAC 20-13-2, 326 IAC 20-13-3, and 326 IAC 20-13-4.

2. How are the State adjustments which add a design, work practice, operational standard, emission rate or other such requirement unequivocally no less stringent than the MACT standard?

40 CFR 63.92(b)(3)(ii) provides that state rules which add a design, work practice, operational standard, or emission rate may be part of an approved state rule. Under 40 CFR Part 63, Subpart X, baghouses and bag leak detection systems must be installed and operated to control process fugitive sources. The Federal MACT does not require the use of High Efficiency Particulate Air (HEPA) filters, which, with capture efficiencies of 99.97%, are more efficient than conventional baghouses. However, under the Federal MACT, if a HEPA filter is used the source is not required to use a bag leak detection system. In contrast, IDEM's secondary lead smelter rule requires all new secondary lead smelters to have HEPA filters on process fugitive and stacks venting fugitive dust sources. Further, for existing sources, IDEM's rule requires facilities currently using HEPA filters to continue to use them.

The design and work practice requirements set forth in IDEM's secondary lead smelting rule are unequivocally no less stringent than the requirements in the Federal rule. Those provisions of IDEM's rule that adjust the Federal rule regarding emission controls (40 CFR 63.548(e)) are: 326 IAC 20-13-4, 326 IAC 20-13-5, 326 IAC 20-13-7, and 326 IAC 20-13-8.

3. How are the State adjustments which increase the frequency of required reporting, testing, sampling or monitoring unequivocally no less stringent than the MACT standard?

40 CFR 63.92(b)(3)(iv) provides that state rules which increase the frequency of required reporting, testing, sampling or monitoring may be part of an approved state rule.

For process sources, the Federal NESHAP requires all secondary lead smelters to perform a stack test annually (no later than 12 calendar months following the previous compliance test). If the stack test demonstrates a source emitted lead compounds at 1.0 mg/dscm or less during the time of the stack test (the Federal NESHAP limit is 2.0 mg/dscm), the owner or operator of a secondary lead smelter is allowed up to 24 calendar months from the previous test to conduct the next stack test for lead compounds. IDEM's rule for process sources also requires a stack test every 12 months following the previous compliance test unless the prior stack test demonstrated lead compound emissions under 0.5 mg/dscm, (IDEM's rule has an emission limit of 1.0 mg/dscm) in which case a stack test is required within 24 months of the previous test.

Regarding process fugitive sources, the Federal NESHAP requires performance of a stack test annually unless the prior stack test demonstrated a concentration of lead compounds less than 1.0 mg/dscm, in which case a stack test is required within 24 months (the Federal NESHAP limit is 2.0 mg/dscm). In contrast, IDEM's rule requires a stack test within 24 months of the previous stack test to demonstrate compliance with the 0.5 mg/dscm emission limit. If a stack test demonstrates a higher concentration, the facility will not be in compliance with IDEM's limit and will be subject to enforcement activity. IDEM's rule is equivalent to the Federal NESHAP because a facility which meets IDEM's emission limit of 0.5 mg/dscm would, under the NESHAP or under IDEM's rule, only be required to stack test once every 24 months.

For fugitive dust sources, no stack testing is required by the Federal NESHAP (the Federal NESHAP limit is 2.0 mg/dscm). However, IDEM's rule requires a one-time stack test to demonstrate compliance with the 0.5 mg/dscm emission limit for fugitive dust stacks.

The testing requirements set forth in IDEM's secondary lead smelting rule are unequivocally no less stringent than the requirements in the Federal rule. Those provisions of IDEM's rule that adjust the Federal rule regarding the frequency of compliance testing are set forth at 326 IAC 20-13-6. The Federal provisions that are adjusted are as follows: 40 CFR 63.543(h), 40 CFR 63.543(i), 40 CFR 63.544(e), 40 CFR 63.544(f), and 40 CFR 63.548(e).

IDEM's secondary smelter rule also contains provisions which increase the monitoring requirements of the Federal rule. With regard to the monitoring of the air pressure within the total enclosures at the facility, the Federal rule requires a continuous monitoring system (CMS) to demonstrate that the inside of the enclosures are maintained at a negative pressure relative to the ambient air pressure. See 40 CFR 63.547(e). IDEM's rule correspondingly requires a CMS, but also requires that the CMS be equipped with a continuous recording device and an alarm. The alarm notifies the facility whenever the pressure difference between the inside and outside of a total enclosure is not within specifications. Further, where the Federal NESHAP does not specify what action to take when the recording device is not within specifications, IDEM's rule requires the facility to initiate corrective action within 30 minutes of the activated alarm.

In addition, IDEM's rule requires the owner of a secondary lead smelter to install and maintain an ambient air quality monitoring network for lead. Unless an owner of a secondary lead smelter received approval prior to the effective date of IDEM's rule, an owner must submit a proposed ambient monitoring and quality assurance plan within 90 days after the effective date of IDEM's rule. Reporting is required on a quarterly basis, within 45 days after the end of the quarter in which the data is collected. The report must include ambient air quality monitoring network data, and if a National Ambient Air Quality Standards (NAAQS) violation is triggered, identification of the cause of the violation and corrective actions taken to address the violation are required.

The monitoring requirements set forth in IDEM's secondary lead smelting rule are unequivocally no less stringent than the requirements in the Federal rule. The provisions of IDEM's rule that pertain to monitoring are set forth at 326 IAC 20-13-7.

IV. What Is the Effect of This Delegation?

On August 3, 2006, EPA approved IDEM's request to delegate the authority to implement and enforce 40 CFR part 63, subpart X, through 326 IAC 20-13, which adjusts the secondary lead smelting MACT. EPA also approved the delegation of the applicable Category I authorities as set forth at 40 CFR 63.91(g).

All notifications, reports and other correspondence required under 40 CFR, part 63, subpart X, as adjusted by 326 IAC 20-13, should be sent to the State of Indiana, rather than to the EPA, Region 5, in Chicago. Affected sources should send this information to: Indiana Department of Environmental Management, Office of Air Management, 100 North Senate Avenue, P.O. Box 6015, Indianapolis, Indiana 46206-6015.

Pursuant to Section 112(l)(7) of the CAA, nothing in this delegation prohibits EPA from enforcing any applicable emission standard or requirement. The secondary lead smelter MACT, 40 CFR part 63, subpart X, as adjusted by 326 IAC 20-13 is Federally enforceable.

Dated: August 3, 2006.

Jo-Lynn Traub,

Acting Regional Administrator, Region 5.