[Federal Register Volume 62, Number 32 (Tuesday, February 18, 1997)]
[Rules and Regulations]
[Pages 7157-7159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3865]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IN68-1-7308a; FRL-5678-5]
Approval and Promulgation of Implementation Plans; Indiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: On October 25, 1994, the Indiana Department of Environmental
Management (IDEM) submitted revisions to its State Implementation Plan
(SIP). EPA made a finding of completeness in a letter dated November
25, 1994. The revisions to the SIP add or revise definitions in the
Indiana SIP's general provisions (326 IAC 1-1, 326 IAC 1-2), the
applicability criteria of the rule for malfunctions (326 IAC 1-6), and
the applicability criteria for state construction and operating permit
requirements (326 IAC 2-1). The revisions to the SIP also revise
Indiana's construction permit program (326 IAC 2-1) and its ``Permit no
defense'' regulation (326 IAC 2-1). With this rule, EPA is approving
these SIP revisions because they are in compliance with the Code of
Federal Regulations (CFR) and the Clean Air Act (Act). Elsewhere in
this Federal Register, EPA is proposing approval and soliciting comment
on this direct final action; if adverse comments are received, EPA will
withdraw the direct final rule and address the comments received in a
new final rule. Unless this direct final rule is withdrawn, no further
rulemaking will occur on this requested SIP revision.
DATES: This action will be effective April 21, 1997 unless adverse or
critical comments are received by March 20, 1997. If the effective date
is delayed, timely notice will be published in the Federal Register.
ADDRESSES: Written comments can be mailed to: J. Elmer Bortzer, Chief,
Regulation Development Section, Regulation Development Branch (AR-18J),
Air and Radiation Division, U.S. Environmental Protection Agency, 77
West Jackson Boulevard, Chicago, Illinois, 60604.
Copies of the SIP revision request are available for inspection at
the following address: (It is recommended that you telephone Mark J.
Palermo at (312) 886-6082, before visiting the Region 5 office.) U.S.
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois, 60604.
FOR FURTHER INFORMATION CONTACT: Alvin Choi, EPA (AR-18J), 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-3507.
SUPPLEMENTARY INFORMATION:
I. Background
IDEM submitted revisions to the Indiana SIP on October 25, 1994.
The revisions included rule changes to the State's permit review rules
and adoption of the federally enforceable state operating permits
program (326 IAC 2-8), source specific operating agreements (326 IAC 2-
9), and enhanced new source review (NSR) rules (326 IAC 2-1-3.2). EPA
has already promulgated its approval of regulations governing federally
enforceable state operating permits and enhanced new source review
rules (60 FR 43099) and the source specific operating agreements (61 FR
14487). The EPA is now proposing to approve the final portion of the
October 25, 1994 SIP submittal which alters some prefatory language and
affects applicability of some rules. The EPA is approving the following
revisions to Title 326 of the Indiana Administrative Code (326 IAC)--
Article One: General Provisions, Rule One: Sections 2 and 3; Rule Two:
Sections 2, 4, 12, 33.1, 33.2, 33.5; Rule Six: Section 1. The EPA is
also approving revisions to 326 IAC--Article Two: Permit Review Rules,
Rule One: Sections 1, 3, and 10. The purpose of this revision is to
update and revise the SIP to reflect statutorily-mandated changes to
the permit programs. The rationale for EPA's approval is summarized in
this rule. A more detailed analysis is set forth in a technical support
document which is available for inspection at the Region 5 Office
listed above.
II. Summary of State Submittal
The following sections of Article One, Rule One have been revised
to include recent amendments to the Act and the CFR.
326 IAC 1-1-2 References to Federal Act
This section was revised specifically to reference the Clean Air
Act Amendments of 1990 because the SIP incorporated changes required by
the 1990 Amendments.
326 IAC 1-1-3 References to the Code of Federal Regulations
This section updates the reference to the CFR from the 1989 edition
to the 1992 edition and specifically references the July 21, 1992
Federal Register with regard to 40 CFR Part 70.
The following sections of Article One have been revised to include
new definitions and revisions to existing regulations.
326 IAC 1-2-2 ``Allowable emissions'' Definition
The previous definition calculated an allowable emission rate by
combining the most stringent of three listed criteria with the maximum
rated capacity of the facility (unless the facility was subject to a
limit on the operating rate or hours of operation, or both). This
definition has been expanded to include potential emissions and daily
emission rates for noncontinuous batch manufacturing operations.
326 IAC 1-2-4 ``Applicable state and federal regulations'' Definition
This section has been revised to clarify that this definition
includes rules adopted under 326 IAC by the air pollution control
board, all regulations included in the CFR by EPA, and specific
requirements established by the Act.
[[Page 7158]]
326 IAC 1-2-12 ``Clean Air Act'' Definition
This section was updated to include a reference to the Clean Air
Act Amendments of 1990. The previous definition made only a general
reference to the Act.
326 IAC 1-2-33.1 ``Grain elevator'' Definition
This new section was added to define the term used in 326 IAC 2-9-2
(Source specific restrictions and conditions). A ``Grain elevator'' is
defined as ``an installation at which grains are weighed, cleaned,
dried, loaded, unloaded, and placed in storage.''
326 IAC 1-2-33.2 ``Grain terminal elevator'' Definition
This new section was added to define the term used in 326 IAC 2-1-
7.1 (Fees for registration, construction permits, and operating
permits). A ``Grain terminal elevator'' is defined as any grain
elevator which has a capacity greater than 2,500,000 U.S. bushels
certified storage or 10,000,000 U.S. bushels annual grain throughput,
which is the total amount of grain received or shipped by the grain
elevator over the course of a calendar year.
326 IAC 1-6-1 ``Applicability of rule''
The owner or operator of any facility with the potential to emit at
a specified emission rate, and the owner or operator of a facility with
malfunctioning emission control equipment, either of whose facilities
could cause emissions in excess of stated emission rates, were formerly
subject to the malfunction rule. The revised section revokes the
previous applicability criteria and subjects the owner or operator of
any facility which is required to obtain a permit under 326 IAC 2-1-2
(Registration) or 326 IAC 2-1-4 (State Operating permits) to the
malfunction rule.
The following Sections of Article 2 revise the existing
regulations.
326 IAC 2-1-1 ``Applicability of rule''
This section determines the applicability of permit and fee
requirements for, among other things, persons proposing to construct or
modify sources, including sources in Lake and Porter Counties. One of
the principle revisions to 326 IAC 2-1-1 is the universal replacement
of the term ``potential emissions'' by ``allowable emissions''. This
modification will presumably ease the State's burden in administering
its air permit program by removing certain smaller sources from
required review.
EPA approves this revision to encourage the state's effective
administration of its permit program. EPA notes that Indiana's
regulations regarding Prevention of Significant Deterioration (PSD) and
NSR employ the term ``potential emissions'' in determining the
applicability of those programs, and thus these revisions do not affect
the applicability of those programs to any sources. Correspondence with
the state confirms these conclusions.
A revision to this rule provides that the state operating permit
program (326 IAC 2-1-4) does not apply if the source has an enforceable
operating permit under 326 IAC 2-9. Also, an additional revision
subjects to this rule any person planning to construct or operate grain
terminal elevators.
The revised rules have added three criteria for determining
applicability of SIP provisions. The first added criteria regulates any
modification which will increase emissions of particulate matter with
an aerodynamic diameter less than or equal to 10 micrometers by 15 tons
per year. The second criteria includes, under the regulations, any
source or facility with aggregate emissions greater than or equal to 10
tons per year of any single hazardous air pollutant (HAP) or 25 tons
per year for any combination of HAPs. The third requirement includes
modifications to major sources of HAPs which will increase emissions by
four tons per year of any single HAP or 10 tons per year of any
combination of HAPs. The third requirement also exempts any source
which can demonstrate by written submission that the sum of the
emission increases and decreases of any single HAP resulting from the
modification does not exceed four tons per year. The third
applicability criteria becomes effective only after Indiana's Part 70
program becomes effective.
Exemptions to the applicability regulations have been adopted. The
first category of excluded sources includes existing sources or sources
proposed to be operated, constructed, or modified, which have emissions
of less than the emission limits specified in the provisions regarding
either: (1) applicability of registration requirements found at 326 IAC
2-1-1(b)(2); or (2) applicability of requirements governing the
construction permits, enhanced NSR, operating permits, and fees. The
second category exempts existing sources who seek only changes in a
method of operation, a reconfiguration of existing equipment or other
minor physical changes, or a combination of the above which does not
increase emissions in excess of: (1) Significance levels in PSD
limitations and emissions offsets; (2) HAP levels for maximum
achievable control technology; (3) specific threshold levels adopted
for Lake and Porter Counties; (4) levels specified in provisions
governing the applicability of regulations for construction permits,
enhanced NSR, operating permits, and fees (not including the general 25
tons per year criteria); and (5) levels specified for the volatile
organic compound rules. The third category exempts temporary operations
and experimental trials which involve construction, reconstruction, or
modification which meet specific criteria.
326 IAC 2-1-3 Construction permits
This revision eliminates the need for the submission of plans and
specifications to be prepared by a professional engineer registered to
practice in Indiana, with an application for a construction permit. The
applicant, however, is now required to place a copy of the permit
application for public review at a library in the county where
construction is proposed. Finally, the revision requires any applicant
who proposes to construct upon land which is underdeveloped or for
which a valid existing permit has not been issued, to make a reasonable
effort to provide notice to all owners or occupants of land adjoining
the proposed construction site.
326 IAC 2-1-10 Permit no defense
This section states that a permit which is obtained by a source
shall not be used as a defense against a violation of any regulation.
An exception has been added for alleged violations of applicable
requirements for which a permit shield has been granted according to
326 IAC 2-1-3.2 (Enhanced NSR) and 326 IAC 2-7-15 (Part 70 permit
program; Permit shield).
The EPA is approving the revisions to the sections in 326 IAC
Articles 1 and 2. These revisions add definitions which reflect new
regulations added to the title and revise existing regulations which
have been found to be in accordance with the CFR and the Act.
III. Rulemaking Action
Many of the revisions to the General Provisions updated definitions
with respect to the 1990 Clean Air Act Amendments. Revisions were also
in response to the recent addition of the Source Specific Operating
Agreement program.
The changes to the Permit Review Rules are presumably intended to
alleviate the permitting burden on IDEM. By using the ``allowable''
definition and adding exemption
[[Page 7159]]
regulations in 326 IAC 2-1-1, IDEM will be able to concentrate its
resources on relatively more significant sources. For the reasons
stated above, the EPA approves the plan revisions submitted on October
25, 1994, to incorporate changes to existing regulations and to
accommodate recent revisions to the SIP by adding and updating
regulations.
The EPA is publishing this action without prior proposal because
EPA views this as a noncontroversial revision and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective on April 21, 1997 unless, by March 20, 1997, adverse or
critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent rulemaking that
will withdraw the final action. All public comments received will be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The 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. If no such comments are received, the public is
advised that this action will be effective on April 21, 1997.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
IV. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
B. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
of any proposed or final rule on small entities. 5 U.S.C. sections 603
and 604. Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the Act
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, the Administrator
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the Act, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of the
State action. The Clean Air Act forbids EPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. EPA, 427 U.S.
246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must undertake various actions
in association with any proposed or final rule that includes a Federal
mandate that may result in estimated costs to state, local, or tribal
governments in the aggregate, or to the private sector, of $100 million
or more. This Federal action approves pre-existing requirements under
state or local law, and imposes no new requirements. Accordingly, no
additional costs to state, local, or tribal governments, or the private
sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a major rule as defined by 5 U.S.C.
804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 21, 1997. 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, Hydrocarbons,
Incorporation by reference, Lead, Particulate matter, Sulfur dioxide,
Volatile organic compounds.
Dated: December 12, 1996.
Valdas V. Adamkus,
Regional Administrator.
For the reasons stated in the preamble, part 52, chapter I, title
40 of the Code of Federal Regulations is amended to read as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart P--Indiana
2. Section 52.770 is amended by adding paragraph (c)(109) to read
as follows:
Sec. 52.770 Identification of plan.
* * * * *
(c) * * *
(109) On October 25, 1994, the Indiana Department of Environmental
Management requested a revision to the Indiana State Implementation
Plan in the form of revisions to the General Provisions and Permit
Review Rules intended to update and add regulations which have been
affected by recent SIP revisions, and to change regulations for
streamlining purposes. This revision took the form of an amendment to
Title 326: Air Pollution Control Board of the Indiana Administrative
Code (326 IAC) 1-1 Provisions Applicable Throughout Title 326, 1-2
Definitions, 1-6 Malfunctions, 2-1 Construction and Operating Permit
Requirements.
(i) Incorporation by reference. 326 IAC 1-1-2 and 1-1-3. 326 IAC 1-
2-2, 1-2-4, 1-2-12, 1-2-33.1, and 1-2-33.2. 326 IAC 1-6-1. 326 IAC 2-1-
1, 2-1-3, and 2-1-10. Adopted by the Indiana Air Pollution Control
Board March 10, 1994. Filed with the Secretary of State May 25, 1994.
Effective June 24, 1994. Published at Indiana Register, Volume 17,
Number 10, July 1, 1994.
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[FR Doc. 97-3865 Filed 2-14-97; 8:45 am]
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