[Federal Register Volume 62, Number 139 (Monday, July 21, 1997)]
[Rules and Regulations]
[Pages 38919-38922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19092]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN68-3; FRL-5852-7]


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 and April 29, 1997, the Indiana Department 
of Environmental Management (IDEM) submitted proposed revisions to its 
State Implementation Plan (SIP). The submission contains revisions to 
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 submission also revises 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 this SIP 
submission because it is consistent with the Clean Air Act and 
applicable regulations. EPA has proposed approval and solicited comment 
on this direct final action through the proposed rule previously 
published in the Federal Register at (62 FR 7193); 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withdrawn, no further rulemaking will occur on this requested SIP 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 September 19, 1997 unless adverse 
or critical comments are received by August 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 its proposed revisions to the Indiana SIP on October 
25, 1994. The submission included changes to the State's permit review 
rules and 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). The October 
25, 1994 submission also contained provisions pertaining to Hazardous 
Air Pollutants (HAPs), pursuant to Section 112(g) of the Clean Air Act. 
EPA made a finding

[[Page 38920]]

of completeness in a letter dated November 25, 1994.
    On August 18, 1995, EPA approved the federally enforceable state 
operating permit and enhanced new source review regulations (60 FR 
43008). On April 12, 1996, EPA approved the source specific operating 
agreement rule (61 FR 14487).
    On February 18, 1997 (62 FR 7157), EPA approved the remainder of 
Indiana's October 25, 1994 submission as a ``direct final action.'' On 
that date, EPA also proposed to approve the submission and solicited 
comments on the direct final action (62 FR 7193). In response to the 
proposal, EPA received comments from two Indiana companies and IDEM 
requesting that EPA withhold approval of those subsections relating to 
HAPs and Section 112(g) of the Act. These requests were based upon: (1) 
The fact that Federal provisions had been promulgated subsequent to 
Indiana's rulemaking which obviated the need for the HAP provisions 
contained in the Indiana rules, and (2) the contention that HAP-related 
provisions should not be addressed as part of a SIP action under 
Section 110 of the Act. As a result of the adverse comments, EPA 
withdrew the direct final rule on April 9, 1997 (62 FR 17095).
    By letter on April 29, 1997, Indiana requested that EPA withdraw 
from consideration the following portions of the permitting rules: 326 
IAC 2-1-1(b)(1)(G), 326 IAC 2-1-1(b)(1)(H) and 326 IAC 2-1-
1(b)(3)(B)(iii). In addition, Indiana noted that 326 IAC 2-1-
1(b)(3)(B)(v) includes a reference to subsections (b)(1)(G) and 
(b)(1)(H). IDEM requested that EPA note in its action that those 
citations, which are due to be either modified or eliminated in current 
State rulemaking, were not being approved as part of EPA's action. In 
light of the above, 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. EPA is taking no action on the portions of the 
rule which Indiana has withdrawn, as identified above. 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 (CFR): 
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.
    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 a criterion for determining 
applicability of SIP provisions. This criterion 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.
    Exemptions to the applicability regulations have been adopted. The 
first category of excluded sources includes

[[Page 38921]]

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) specific threshold levels adopted for Lake and Porter 
Counties; (3) 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 (4) 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 
Article 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 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 and April 
29, 1997, 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 a previous Federal 
Register publication, the EPA has proposed to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective on September 19, 1997 unless, by August 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 September 19, 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

    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. 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. 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

[[Page 38922]]

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 September 19, 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: June 18, 1997.
Michelle D. Jordan,
Acting 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, and April 29, 1997, 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 effected 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.
* * * * *
[FR Doc. 97-19092 Filed 7-18-97; 8:45 am]
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