2011-17036. Approval and Promulgation of Air Quality Implementation Plans; Indiana; Modifications to Indiana Prevention of Significant Deterioration and Non-attainment New Source Review Rules

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving Indiana's modifications to its Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) rules. The amendments include grammatical changes, corrections to numbering, addition of definitions consistent with Federal PSD and NNSR regulations, and removal of references to provisions which were vacated in the Federal rules. Indiana submitted these rule revisions to EPA for approval on November 24, 2010. They are consistent with the current Federal PSD and NNSR regulations.

DATES:

This direct final rule will be effective September 6, 2011, unless EPA receives adverse comments by August 8, 2011. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2010-1002, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Fax: [phone].

4. Mail: Pamela Blakley, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: Pamela Blakley, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-2010-1002. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, 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 http://www.regulations.gov or e-mail. The http://www.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 http://www.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.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the U.S. Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 AM to 4:30 PM, Monday through Friday, excluding Federal holidays. We recommend that you telephone Charmagne Ackerman, Environmental Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Charmagne Ackerman, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), U.S. 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 being addressed in this document?

II. What are the changes that EPA is approving?

III. What action is EPA taking?

IV. Statutory and Executive Order Reviews.

I. What is being addressed in this document?

We are approving amendments to Indiana's PSD and Emission Offset regulations. Previously, EPA approved revisions to these regulations into the State Implementation Plan (SIP) on June 18, 2007 (72 FR 33395). On November 24, 2010, the Indiana Department of Environmental Management (IDEM) requested that EPA approve PSD and Emission Offset rule amendments to the SIP. The rule amendments include grammatical changes, corrections to numbering notation, the addition of definitions consistent with Federal PSD and NNSR regulations, and removal of references to provisions which were vacated in the New Source Review (NSR) Reform Rules. These amendments are contained in Indiana's PSD rules at 326 IAC 2-2-1, 326 IAC 2-2-2, 326 IAC 2-2-4, 326 IAC 2-2-5, 326 IAC 2-2-7, 326 IAC 2-2-8 and 326 IAC 2-2-10, and Emission Offset rules at 326 IAC 2-3-1, 326 IAC 2-3-2, and 326 IAC 2-3-3.

II. What are the changes that EPA is approving?

On December 31, 2002, EPA published final rule changes to the PSD and NSR programs (67 FR 80186) (2002 NSR Reform Rules), and on November 7, 2003, EPA published a notice of final action on the reconsideration of the December 31, 2002 final rule changes (68 FR 63021). After the 2002 NSR Reform Rules were finalized and effective (March 3, 2003), various petitioners challenged numerous aspects, along with portions of EPA's 1980 PSD and NNSR Rules (45 FR 5276, August 7, 1980). On June 24, 2005, the United States Circuit Court of Appeals for the DC Circuit Court issued a decision on the challenges to the 2002 NSR Reform Rules. See New York v. United States, 413 F.3d 3 (DC Cir. 2005). In summary, the DC Circuit Court vacated portions of the 2002 NSR Reform Rules pertaining to “clean units” and “pollution control projects” (PCPs), remanded a portion of the “reasonable possibility” provisions (40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6)), and either upheld or did not comment on the other provisions included as part of the 2002 NSR Reform Rules.

On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to remove from Federal law all provisions pertaining to clean units and the PCP exemption that were vacated by the DC Circuit Court. In the final partial approval of the NSR Reform rules into the Indiana SIP (72 FR 33395), EPA did not take action on the clean unit and PCP portions of the rules at IDEM's request. Although today's action is proposing to approve Indiana's removal of these provisions, EPA never approved them into the SIP. Indiana has removed the following rules due to references to clean units and PCPs: 326 IAC 2-2-1(m), (dd)(2)(H), (ii)(6)(D), and (ll); 326 IAC 2-2-2 (d)(5) and (f); 2-2-4(a)(3); 2-2-5(b); 2-3-1(j), (y)(2)(H), (cc)(3)(B)(iii), and (cc)(3)(B)(iv)(EE),(gg); 326 IAC 2-3-2(c)(5) and (l); and 326 IAC 2-3-3(b)(12). Additionally, IDEM has removed references to clean units and PCPs in 326 IAC 2-2-4(a) and (b); 2-2-7(a); 2-2-8(b); and 2-2-10; 2-3-2(m), but the remainder of those subsections remain intact.

In New York v. United States, the DC Circuit also remanded EPA's “reasonable possibility” provision, which identifies for sources and reviewing authorities the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records. On December 21, 2007, EPA addressed the Court's remand, and took final action to establish that a “reasonable possibility” applies where source emissions equal or exceed 50 percent of the Clean Air Act (CAA) NSR significance levels for any pollutant (72 FR 72607). See 40 CFR 52.21(r)(b). IDEM added 326 IAC 2-2-8(b)(6) and 326 IAC 2-3-2(l)(6) to include provisions that are consistent with EPA's reasonable possibility language.

The November 7, 2003, reconsideration rule added the definition for “replacement unit” at 40 CFR 52.21 (b)(33), which means an emissions unit for which all the criteria listed in paragraphs (b)(33)(i) through (iv) of this section are met. No creditable emission reductions shall be generated from shutting down the existing emissions unit that is replaced. The definition has been added to Indiana's regulations at 326 IAC 2-2-1(tt) and 326 IAC 2-3-1(nn).

IDEM has also added “oxides of nitrogen” (unless a NO_X waiver is in effect) to the following sections of the Emission Offset rules: 326 IAC 2-3-1(p), (y), (z), (pp); 326 IAC 2-3-2(b) and (g); and 326 IAC 2-3-3(a)(5)(B). Oxides of nitrogen were added pursuant to section 182(f) of the CAA as it is a known precursor to the formation of ozone.

IDEM's revisions in 326 IAC 2-2-1 through 2-2-5, 326 IAC 2-2-7, 326 IAC 2-2-8, 326 IAC 2-2-10, and 326 IAC 2-3-1 through 2-3-3 also include corrections to grammatical errors, use of acronyms and corrections to numbering notations due to several subsections being added and removed.

III. What action is EPA taking?

EPA is approving the revisions to the PSD rules at 326-IAC 2-2-1, 326 IAC 2-2-2, 326 IAC 2-2-4, 326 IAC 2-2-5, 326 IAC 2-2-7, 326 IAC 2-2-8 and 326 IAC 2-2-10, and Emission Offset rules at 326 IAC 2-3-1, 326 IAC 2-3-2, and 326 IAC 2-3-3.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective September 6, 2011 without further notice unless we receive relevant adverse written comments by August 8, 2011. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective September 6, 2011.

IV. Statutory and executive order reviews.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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 action 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 6, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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: June 28, 2011.

Susan Hedman,

Regional Administrator, Region 5.

40 CFR part 52 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. In § 52.770 the table in paragraph (c) is amended by revising the entry for “Article 2. Permit Review Rules” to read as follows:

§ 52.770

Identification of plan.

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(c) * * *

EPA-Approved Indiana Regulations

Indiana citation	Subject	Indiana effective date	EPA approval date	Notes
*         *         *         *         *         *         *
Article 2. Permit Review Rules
Rule 1.1. General Provisions
2-1.1-6	Public notice	6/26/1999	6/27/2003, 68 FR 38197
2-1.1-7	Fees	9/10/2004	6/18/2007, 72 FR 33395
2-1.1-8	Time periods for determination on permit applications	6/26/1999	6/27/2003, 68 FR 38197
2-1.1-9.5	General provisions; term of permit	12/16/2007	10/6/2009, 74 FR 51240
Rule 2. Prevention of Significant Deterioration (PSD) Requirements
2-2-1	Definitions	10/31/2010	7/8/2011, [Insert page number where the document begins]
2-2-2	Applicability	10/31/2010	7/8/2011, [Insert page number where the document begins]
2-2-3	Control technology review; requirements	9/10/2004	6/18/2007, 72 FR 33395
2-2-4	Air quality analysis; requirements	10/31/2010	7/8/2011, [Insert page number where the document begins]
2-2-5	Air quality impact; requirements	10/31/2010	7/8/2011, [Insert page number where the document begins]
2-2-6	Increment consumption; requirements	9/10/2004	6/18/2007, 72 FR 33395
2-2-8	Source obligation	10/31/2010	7/8/2011, [Insert page number where the document begins]
2-2-10	Source information	10/31/2010	7/8/2011, [Insert page number where the document begins]
2-2-11	Stack height provisions	4/22/2001	6/27/2003, 68 FR 38197
2-2-12	Permit rescission	4/8/2004	5/20/2004, 69 FR 29071
2-2-13	Area designation and redesignation	4/22/2001	6/27/2003, 68 FR 38197
2-2-15	Public participation	4/22/2001	6/27/2003, 68 FR 38197
2-2-16	Ambient air ceilings	4/22/2001	6/27/2003, 68 FR 38197
Rule 2.4. Actuals Plantwide Applicability Limitations in Attainment Areas
2-2.4-1	Applicability	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-2	Definitions	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-3	Permit application requirements	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-4	General requirements for establishing PALs	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-5	Public participation requirements for PALs	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-6	Establishing a 10 year actuals PAL level	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-7	Contents of the PAL permit	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-8	PAL effective period and reopening of the PAL permit	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-9	Expiration of a PAL	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-10	Renewal of a PAL	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-11	Increasing a PAL during the PAL effective period	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-12	Monitoring requirements for PALs	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-13	Record keeping requirements	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-14	Reporting and notification requirements	9/10/2004	6/18/2007, 72 FR 33395
2-2.4-15	Termination and revocation of a PAL	9/10/2004	6/18/2007, 72 FR 33395
Rule 3. Emission Offset
2-3-1	Definitions	10/31/2010	7/8/2011, [Insert page number where the document begins]
2-3-2	Applicability	10/31/2010	7/8/2011, [Insert page number where the document begins]
2-3-3	Applicable requirements	10/31/2010	7/8/2011, [Insert page number where the document begins]
2-3-4	Banking of emission offsets	12/13/1993	10/7/1994, 59 FR 51108
2-3-5	Location of offsetting emissions	12/13/1993	10/7/1994, 59 FR 51108
Rule 3.4. Actuals Plantwide Applicability Limitations in Nonattainment Areas
2-3.4-1	Applicability	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-2	Definitions	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-3	Permit application requirements	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-4	Establishing PALs; general requirements	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-5	Public participation requirements for PALs	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-6	Establishing a 10 year actuals PAL level	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-7	Contents of the PAL permit	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-8	PAL effective period and reopening of the PAL permit	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-9	Expiration of a PAL	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-10	Renewal of a PAL	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-11	Increasing a PAL during the PAL effective period	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-12	Monitoring requirements for PALs	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-13	Record keeping requirements	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-14	Reporting and notification requirements	9/10/2004	6/18/2007, 72 FR 33395
2-3.4-15	Termination and revocation of a PAL	9/10/2004	6/18/2007, 72 FR 33395
Rule 5.1. Construction of New Sources
2-5.1-4	Transition procedures	9/10/2004	6/18/2007, 72 FR 33395
Rule 6. Emission Reporting
2-6-1	Applicability	8/13/2006	3/29/2007, 72 FR 14678
2-6-2	Definitions	3/27/2004	10/29/2004, 69 FR 63069
2-6-3	Compliance schedule	8/13/2006	3/29/2007, 72 FR 14678
2-6-4	Requirements	8/13/2006	3/29/2007, 72 FR 14678
2-6-5	Additional information requests	3/27/2004	10/29/2004, 69 FR 63069
Rule 8. Federally Enforceable State Operating Permit Program
2-8-1	Definitions	6/24/1994	8/18/1995, 60 FR 43008
2-8-2	Applicability	6/24/1994	8/18/1995, 60 FR 43008
2-8-3	Permit application	6/24/1994	8/18/1995, 60 FR 43008
2-8-4	Permit content	12/16/2007	10/6/2009, 74 FR 51240
2-8-5	Compliance requirements for FESOPs	6/24/1994	8/18/1995, 60 FR 43008
2-8-6	Federally enforceable requirements	6/24/1994	8/18/1995, 60 FR 43008
2-8-7	Permit issuance, renewal, and revisions	6/24/1994	8/18/1995, 60 FR 43008
2-8-8	Permit reopening	6/24/1994	8/18/1995, 60 FR 43008
2-8-9	Permit expiration	6/24/1994	8/18/1995, 60 FR 43008
2-8-10	Administrative permit amendments	6/24/1994	8/18/1995, 60 FR 43008
2-8-11	Permit modification (Repealed)	6/24/1994	8/18/1995, 60 FR 43008
2-8-11.1	Permit revisions	6/24/1994	8/18/1995, 60 FR 43008
2-8-12	Emergency provision	6/24/1994	8/18/1995, 60 FR 43008
2-8-13	Public notice	6/24/1994	8/18/1995, 60 FR 43008
2-8-14	Review by U.S. EPA	6/24/1994	8/18/1995, 60 FR 43008
2-8-15	Operational flexibility	6/24/1994	8/18/1995, 60 FR 43008
2-8-16	Fees	6/24/1994	8/18/1995, 60 FR 43008
2-8-17	Local agencies	6/24/1994	8/18/1995, 60 FR 43008
Rule 9. Source Specific Operating Agreement Program
2-9-1	General provisions	6/24/1994	4/2/1996, 61 FR 14487
2-9-2	Source specific restrictions and conditions (Repealed)	6/24/1994	4/2/1996, 61 FR 14487	Sec. 2(a), 2(b), and 2(e)
*         *         *         *         *         *         *

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