[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62969-62972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29962]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[IN003; FRL-7111-9]


Clean Air Act Final Full Approval of the Operating Permits 
Program; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to fully approve the operating 
permits program submitted by the State of Indiana. Indiana submitted 
its operating permits program in response to the directive in the 1990 
Clean Air Act Amendments that permitting authorities develop, and 
submit to EPA, programs for issuing operating permits to all major 
stationary sources and to certain other sources within the permitting 
authority's jurisdiction.

EFFECTIVE DATE: The effective date of this action is November 30, 2001.

ADDRESSES: Copies of the state's submittal and other supporting 
information used in developing the proposed approval are available for 
inspection during normal business hours at the following location: EPA 
Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois 60604. 
Please contact Sam Portanova at (312) 886-3189 to arrange a time if 
inspection of the submittal is desired.

FOR FURTHER INFORMATION CONTACT: Sam Portanova, AR-18J, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, Telephone Number: (312) 886-3189, 
E-Mail Address: [email protected].

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

What is being addressed in this document?
Response to comments.
What is involved in this final action?

What Is Being Addressed in This Document?

    As required under Subchapter V of the Clean Air Act (``the Act''), 
as amended (1990), EPA has promulgated regulations which define the 
minimum elements of an approvable state operating permits program and 
the corresponding standards and procedures by which the EPA will 
approve, oversee, and withdraw approval of state operating permits 
programs (see 57 FR 32250 (July 21, 1992)). These regulations are 
codified at 40 Code of Federal Regulations (CFR) part 70. Pursuant to 
Subchapter V, generally known as title V, states developed, and 
submitted to EPA, programs for issuing these operating permits to all 
major stationary sources and to certain other sources.
    The EPA's program review occurs under section 502 of the Act and 
the part 70 regulations, which together outline criteria for approval 
or disapproval. Where a program substantially, but not fully, meets the 
requirements of part 70, EPA granted the program interim approval. If 
EPA has not fully approved a program by the expiration of an interim 
program, it must establish and implement a federal program.
    The Indiana Department of Environmental Management (IDEM) submitted 
its title V operating permits program (title V program) for approval on 
August 10, 1994. EPA promulgated interim approval of the Indiana title 
V program on November 14, 1995 (60 FR 57188), and the program became 
effective on December 14, 1995. Subsequently, EPA extended Indiana's 
title V interim approval period on several occasions, most recently to 
December 1, 2001 (65 FR 32036).
    IDEM submitted amendments to its title V program for our approval 
on May 22, 1996. Indiana intended these amendments to correct interim 
approval issues identified in the November 14, 1995, action. Based on 
this submittal, EPA proposed full approval for the Indiana title V 
program on July 30, 2001 (66 FR 39293). EPA received one adverse public 
comment on the proposal. After carefully reviewing and considering the 
issues raised by the commenter, EPA is taking final action to give full 
approval to the Indiana title V program.

Response to Comments

    The comment that EPA received in response to our July 30, 2001, 
proposal

[[Page 62970]]

objects to granting full approval to the Indiana title V program. The 
commenter states that public comments on deficiencies in the Indiana 
title V program remain unaddressed. In addition, he notes that changes 
to the Indiana program adopted since the November 14, 1995, interim 
approval also remain unaddressed. He believes that these issues result 
in a program that is insufficient and demonstrate that Indiana is 
``unwilling or unable to produce a minimally acceptable 40 CFR part 70 
Operating Permits Program that meets the standard of full approval.''
    EPA is aware that issues other than those listed in the November 
14, 1995, interim approval exist in the Indiana program and that the 
Indiana regulations have undergone changes since 1995 that have not 
been submitted to EPA for approval. EPA agrees that these issues must 
be addressed and that the state must submit all changes made since 1995 
for EPA review and approval. For the reasons discussed below, however, 
we disagree that newly identified deficiencies prohibit us from 
granting Indiana full program approval at this time.
    In 1990, Congress amended the Act, 42 U.S.C. 7401 to 7671q, by 
adding title V, 42 U.S.C. 7661 to 7661f, which requires certain air 
pollutant emitting facilities, including ``major source[s]'' and 
``affected source[s],'' to obtain and comply with operating permits. 
See 42 U.S.C. 7661a(a). Title V is intended to be administered by 
local, state or interstate air pollution control agencies, through 
permitting programs that have been approved by EPA. See 42 U.S.C. 
7661a(a). EPA is charged with overseeing the state's efforts to 
implement an approved program, including reviewing proposed permits and 
vetoing improper permits. See 42 U.S.C. 7661a(i) and 7661d(b). 
Accordingly, title V of the Act provides a framework for the 
development, submission and approval of state operating permit 
programs. Following the development and submission of a state program, 
the Act provides two different approval options that EPA may use in 
acting on state submittals. See 42 U.S.C. 7661a(d) and (g). Pursuant to 
section 502(d), EPA ``may approve a program to the extent that the 
program meets the requirements of the Act * * *'' EPA may act on such 
program submittals by approving or disapproving, in whole or in part, 
the state program. An alternative option for acting on state programs 
is provided by the interim approval provision of section 502(g). This 
section states: ``If a program * * * substantially meets the 
requirements of this title, but is not fully approval, the 
Administrator may by rule grant the program interim approval.'' This 
provision provides EPA with the authority to act on state programs that 
substantially, but do not fully, meet the requirements of title V and 
part 70. Only those program submittals that meet the requirements of 
eleven key program areas are eligible to receive interim approval. See 
40 CFR 70.4(d)(3)(i)-(xi). Finally, section 502(g) directs EPA to 
``specify the changes that must be made before the program can receive 
full approval.'' 42 U.S.C. 7661a(g); 40 CFR 70.4(e)(3). This explicit 
directive encompasses another, implicit one: Once a state corrects the 
specified deficiencies then it will be eligible for full program 
approval. EPA believes this is so even if deficiencies have been 
identified sometime after final interim approval, either because the 
deficiencies arose after EPA granted interim approval or, if the 
deficiencies existed at that time, EPA failed to identify them as such 
in proposing to grant interim approval.
    Thus, an apparent tension exists between these two statutory 
provisions. Standing alone, section 502(d) appears to prevent EPA from 
granting a state operating permit program full approval until the state 
has corrected all deficiencies in its program no matter how 
insignificant, and without consideration as to when such deficiency was 
identified. Alternatively, section 502(g) appears to require that EPA 
grant a state program full approval if the state has corrected those 
issues that the EPA identified in the final interim approval. The 
central question, therefore, is whether Indiana by virtue of correcting 
the deficiencies identified in the final interim approval is eligible 
at this time for full approval, or whether Indiana must also correct 
any new or recently identified deficiencies as a prerequisite to 
receiving full program approval.
    According to settled principles of statutory construction, 
statutory provisions should be interpreted so that they are consistent 
with one another. See Citizens to Save Spencer County v. EPA, 600 F.2d 
844, 870 (D.C. Cir. 1979). Where an agency encounters inconsistent 
statutory provisions, it must give maximum possible effect to all of 
the provisions, while remaining within the bounds of its statutory 
authority. Id. at 870-71. Whenever possible, the agency's 
interpretation should not render any of the provisions null or void. 
Id. Courts have recognized that agencies are often delegated the 
responsibility to interpret ambiguous statutory terms in such a 
fashion. See Chevron U.S.A, Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837, 845 (1984). Harmonious construction is not always 
possible, however, and furthermore should not be sought if it requires 
distorting the language in a fashion never imagined by Congress. 
Citizens to Save Spencer County, 600 F.2d at 870. Furthermore, as 
discussed more fully below, section 502 of the Act and 40 CFR 70.10 
provide a mechanism for identifying problems in programs which states 
must correct to retain operating permit programs.
    In this situation, in order to give effect to the principles 
embodied in title V that major stationary sources of air pollution must 
have an operating permit that conforms to certain statutory and 
regulatory requirements, and that state permitting authorities 
administer and enforce the operating permit programs, the appropriate 
and more cohesive reading of the statute recognizes EPA's authority to 
grant Indiana full approval in this situation while working 
simultaneously with the state, in EPA's oversight capacity, on any 
additional problems that were recently identified. To conclude 
otherwise would disrupt the current administration of the state program 
and cause further delay in Indiana's ability to issue operating permits 
to major stationary sources. A smooth transition from interim approval 
to full approval is in the best interest of the public and the 
regulated community and best reconciles the statutory directives of 
title V.
    Furthermore, requiring the state to fix all of the deficiencies 
that have been identified in the past year to receive full approval 
runs counter to the established regulatory process, mentioned above, 
that is already in place to deal with newly identified program 
deficiencies. Section 502(i)(4) of the Act and 40 CFR 70.4(i) and 70.10 
provide EPA with the authority to issue notices of deficiency (``NOD'') 
whenever EPA makes a determination that a permitting authority is not 
adequately administering or enforcing a part 70 program, or that the 
state's permit program is inadequate in any other way. Consistent with 
these provisions, EPA will specify in a NOD a reasonable time frame for 
the permitting authority to correct the identified deficiency.
    The Indiana title V interim approval expires on December 1, 2001. 
This deadline does not provide adequate time for the state to correct 
newly identified issues prior to the expiration of interim approval. 
Allowing the state's program to expire because of issues identified as 
recently as March 2001 will cause disruption and further delay in the 
issuance of permits to major stationary sources in Indiana. As

[[Page 62971]]

explained above, we do not believe that title V requires such a result. 
Rather, the appropriate mechanism for dealing with additional 
deficiencies that are identified sometime after a program received 
interim approval but prior to being granted full approval is the notice 
of program deficiency or administration deficiency as discussed herein. 
This process provides the state an adequate amount of time after such 
findings to implement any necessary changes without unduly disrupting 
the entire state operating permit program. As a result, addressing 
newly identified problems separately from the full approval process 
will not cause these issues to go unaddressed. To the contrary, EPA has 
notified Indiana that it must promptly correct the non-interim approval 
deficiencies within a specified time period or face sanctions and 
disapproval of its program. EPA identified non-interim approval 
deficiencies to Indiana in 2000. In response, Indiana began the process 
of revising its administrative code. Indiana worked with EPA throughout 
this rule adoption process to assure that all program deficiencies 
identified by EPA and by citizen groups are addressed by the revisions. 
Indiana's Air Pollution Control Board adopted the necessary title V 
rule revisions on October 3, 2001. These regulatory revisions still 
must undergo administrative review, and will not become effective until 
early 2002.
    Because the regulatory revisions will not become effective by 
December 1, 2001, EPA will issue a NOD for these regulatory 
deficiencies in the Indiana program on that date. EPA recognizes that 
Indiana has almost completed the regulatory process to make the 
necessary revisions, and expects that the state will satisfy the 
conditions of the NOD by the end of February 2002. Furthermore, at the 
time that Indiana submits regulatory revisions to correct this NOD, the 
state must also submit for review and approval all changes that it has 
made to its title V program since we granted interim approval. Under 
that review, EPA will disapprove and issue NODs for any program 
revisions that are inconsistent with part 70.

What Is Involved in This Final Action?

    The EPA is granting full approval of the operating permits program 
submitted by IDEM based on the interim approval corrections submitted 
on May 22, 1996. These revisions satisfactorily address the program 
deficiencies identified in EPA's November 14, 1995, interim approval 
rulemaking.
    To date, no tribal government in Indiana has applied to EPA for 
approval to administer a title V program in Indian country within the 
state. The EPA regulations at 40 CFR part 49 govern how eligible Indian 
tribes may seek approval from EPA to implement a title V program on 
Indian reservations and in non-reservation areas over which the tribe 
has jurisdiction. The EPA's part 71 regulations govern the issuance of 
federal operating permits in Indian country. The EPA's authority to 
issue permits in Indian country was challenged in Michigan v. EPA, 
(D.C. Cir. No. 99-1151). On October 30, 2001, the court issued its 
decision in the case, vacating a provision that would have allowed EPA 
to treat areas over which EPA determines there is a question regarding 
the area's status as if it is Indian country, and remanding to EPA for 
further proceedings. The EPA will respond to the court's remand and 
explain EPA's approach for further implementation of part 71 in Indian 
country in a future action.
    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operating permits programs until December 
1, 2001. (65 FR 32035) The action was subsequently challenged by the 
Sierra Club and the New York Public Interest Research Group (NYPIRG). 
In settling the litigation, EPA agreed to publish a notice in the 
Federal Register that would alert the public that they may identify and 
bring to EPA's attention alleged programmatic and/or implementation 
deficiencies in title V programs and that EPA would respond to their 
allegations within specified time periods if the comments were made 
within 90 days of publication of the Federal Register notice.
    Two citizens groups commented on what they believe to be 
deficiencies with respect to the Indiana title V program. As stated in 
the Federal Register notice published on July 30, 2001 proposing to 
fully approve Indiana's operating permit program, EPA takes no action 
on those comments in today's action. Rather, EPA expects to respond by 
December 1, 2001 to timely public comments on Indiana's program and 
other programs that have obtained interim approval, and by April 1, 
2002 to timely comments on fully approved programs. Consistent with 
these time frames, EPA also will publish a notice of deficiency (NOD) 
if EPA determines that a deficiency exists, or will notify the 
commenter in writing to explain the reasons for not making a finding of 
deficiency. EPA Region 5 will also post its response letters on the 
Internet at http://yosemite.epa.gov/r5/ardcorre.nsf/Title+V+Program+Comments. EPA Region 5 includes the states of Michigan, 
Minnesota, Illinois, Indiana, Ohio, and Wisconsin. The EPA will also be 
posting all response letters on the national EPA website, and the 
Agency will publish a Federal Register notice of the availability of 
those response letters. An NOD will not necessarily be limited to 
deficiencies identified by citizens and may include any deficiencies 
that we have identified through our program oversight. Furthermore, in 
the future, EPA may issue an additional NOD if EPA or a citizen 
identifies other deficiencies.

Administrative Requirements

A. What Are the Administrative Requirements for This Action?

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this final approval is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. 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). 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 final approval 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.). 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 
an unfunded mandate nor does it significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4).
    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, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000). This rule also does not have federalism 
implications because it will 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

[[Page 62972]]

Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 1999). 
This rule merely approves existing requirements under state law, and 
does not alter the relationship or the distribution of power and 
responsibilities between the state and the federal government 
established in the Act.
    This final approval is also 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 a significant 
regulatory action under Executive Order 12866. This action will not 
impose any collection of information subject to the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those 
previously approved and assigned OMB control number 2060-0243. For 
additional information concerning these requirements, see 40 CFR part 
70. An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272 note, requires federal agencies to 
use technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing state operating permit programs submitted pursuant to title V 
of the Act, EPA will approve state programs provided that they meet the 
requirements of the Act and EPA's regulations codified at 40 CFR part 
70. Absent a prior existing requirement for the state to use voluntary 
consensus standards, EPA has no authority to disapprove a state 
operating permit program 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 state program that otherwise 
satisfies the provisions of the Act. Therefore, the requirements of 
section 12(d) of the NTTA do not apply.
    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. The 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). This rule will be effective November 30, 2001.
    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 February 4, 2002. 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) of the Act.)

B. What Is the Effective Date of EPA's Full Approval of Indiana's Title 
V Program?

    EPA's approval of Indiana's Title V program is effective on 
November 30, 2001. Pursuant to section 502(h) of the Act, the effective 
date of a permitting program approved under Title V is the date of 
approval by the Administrator or her delegatee. Furthermore, the good 
cause exception under the Administrative Procedure Act (APA) allows EPA 
to make the full approval of the state's program immediately effective. 
In relevant part, the APA provides that publication of ``a substantive 
rule shall be made not less than 30 days before its effective date, 
except--* * * (3) as otherwise provided by the agency for good cause 
found and published with the rule.'' 5 U.S.C. 553(d)(3). Section 
553(b)(3)(B) of the APA provides that good cause may be supported by an 
agency determination that a delay in the effective date is 
impracticable, unnecessary, or contrary to the public interest. The EPA 
finds that it is necessary and in the public interest to make this 
action effective sooner than 30 days following publication. In this 
case, EPA believes that it is in the public interest for the program to 
take effect before December 1, 2001. The EPA's interim approval of 
Indiana's prior program expires on December 1, 2001. In the absence of 
this full approval of Indiana's amended program taking effect on 
November 30, the federal program under 40 CFR part 71 would 
automatically take effect in Indiana and would remain in place until 
the effective date of the fully-approved state program. The EPA 
believes it is in the public interest for sources, the public and 
Indiana to avoid any gap in coverage of the state program, as such a 
gap could cause confusion regarding permitting obligations. 
Furthermore, a delay in the effective date is unnecessary because IDEM 
has been administering the title V permit program for six years under 
an interim approval. Through this action, EPA is approving a few 
revisions to the existing and currently operational program. The change 
from the interim approved program which substantially met the part 70 
requirements, to the fully approved program is relatively minor, in 
particular if compared to the changes between a state-established and 
administered program and the federal program.

List of Subjects in Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: November 27, 2001.
Thomas V. Skinner,
Regional Administrator, Region V.

    40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

    2. Appendix A to part 70 is amended by adding paragraph (b) to the 
entry for Indiana to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Indiana

* * * * *
    (b) The Indiana Department of Environmental Management: Program 
revisions submitted on May 22, 1996; submittal adequately addressed 
the conditions of the interim approval which expires on December 1, 
2001. Indiana is hereby granted final full approval effective 
November 30, 2001.
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[FR Doc. 01-29962 Filed 12-3-01; 8:45 am]
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