[Federal Register Volume 67, Number 95 (Thursday, May 16, 2002)]
[Rules and Regulations]
[Pages 34844-34848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12281]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[IN004a; FRL-7212-6]
Clean Air Act Final Approval of Operating Permit Program
Revisions; Indiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking final action to approve revisions to the
operating permit program of the State of Indiana. Indiana submitted its
operating permit program in response to the directive in the 1990 Clean
Air Act Amendments that states develop, and submit to EPA, programs for
issuing operating permits to all major stationary sources and to
certain other sources within the states' jurisdiction. EPA granted full
approval to Indiana's operating permit program effective November 30,
2001. At that time, EPA also issued a notice of program deficiency
(NOD) in which EPA identified problems with Indiana's program and a
timeframe within which Indiana had to correct the problems. Indiana
submitted revisions to its operating permit program on February 7,
2002. These program revisions include regulatory changes which resolve
deficiencies that EPA identified in the NOD. This action also includes
other changes to the state's title V regulations. One of the
deficiencies EPA identified in the NOD is not included in this
submittal because it is part of a separate State Implementation Plan
(SIP) submittal. EPA will take action on that submittal in a separate
Federal Register document.
DATES: This direct final rule is effective July 15, 2002, without
further notice unless EPA receives adverse comments in writing by June
17, 2002. If adverse comment is received, EPA will publish a timely
notice in the Federal Register and inform the public that the rule will
not take effect. EPA will address the public comments in a subsequent
final rule based on the proposed rule published in this Federal
Register.
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?
What are the program changes that EPA is approving?
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 CFR part 70. Pursuant to subchapter V, generally known
as title V, states developed, and submitted to EPA, programs for
issuing operating permits to all major stationary sources and to
certain other sources.
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 promulgated full
approval of the Indiana title V program effective November 30, 2001.
EPA published this action in the Federal Register on December 4, 2001
(66 FR 62969).
Pursuant to its authority at 40 CFR 70.10(b), EPA published a NOD
for Indiana's title V operating permit program on December 11, 2001 (66
FR 64039). The NOD was based upon EPA's finding that several state
requirements do not meet the minimum federal requirements of 40 CFR
part 70 and the Act for program approval. Indiana has adopted rule
revisions to resolve all of the deficiencies identified in the December
11, 2001 NOD. These rule revisions became effective, as a matter of
state law, on January 19, 2002. Indiana submitted some of these rule
changes as a revision to its title V operating permit program on
February 7, 2002. Indiana also included, in the February 7, 2002
submittal, other regulatory revisions that strengthen Indiana's
program. EPA is approving the Indiana rule revisions included in the
February 7, 2002 submittal in today's action. On March 5, 2002, Indiana
submitted a rule revision addressing one of the deficiencies identified
in the NOD for approval into the State Implementation Plan (SIP). EPA
will take action on this rule revision in a separate Federal Register
document. The public will have an opportunity to comment on this rule
revision when EPA publishes the Federal Register
[[Page 34845]]
document taking action on the March 5, 2002 SIP submittal.
What Are the Program Changes That EPA Is Approving?
A. Insignificant Activity Definition
(i) Emission Thresholds
Indiana has revised 326 IAC 2-7-1(21)(A) to establish insignificant
activity emission thresholds for nitrogen oxides (NOX) and
volatile organic compounds (VOC). Previously, the definition of
insignificant activity in the Indiana rule did not include specific
insignificant activity threshold levels for NOX and VOC. The
rule referred to the limits in 326 IAC 2-1.1-3(d)(1) to establish the
insignificant activity threshold levels for these two pollutants. The
threshold levels in this provision was 10 tons per year for both
NOX and VOC. EPA considers this an unacceptably high
threshold for insignificant activities and, as a result, identified
this issue as a deficiency in the December 11, 2001 NOD for the Indiana
title V program. The revised 326 IAC 2-7-1(21)(A) language establishes
a VOC insignificant activity threshold of 3 pounds per hour or 15
pounds per day and a NOX insignificant activity threshold of
5 pounds per hour or 25 pounds per day. These threshold levels are
equivalent to the VOC and NOX thresholds that EPA originally
approved as part of the November 14, 1995, interim approval of
Indiana's title V program. In today's action, EPA is approving this
rule language as a revision to the Indiana title V program. This
revision satisfies Indiana's requirement to correct an identified
program deficiency and resolves the issue published in the NOD.
(ii) Permit modification requirements
In order to remedy a problematic regulation that impacted Indiana's
program but was not identified by EPA in the NOD, Indiana has revised
326 IAC 2-7-1(21)(K) to clarify the applicability of the permit
modification process described in 326 IAC 2-7-12 which applies to a
modification of an existing insignificant activity or the addition of
an insignificant activity to a title V source. Under the previous
version of this rule, all modifications that qualified as an
insignificant activity were exempted from the 326 IAC 2-7-12
modification requirements. This revised provision allows insignificant
activities to avoid the permit modification requirements only if the
existing permit includes all requirements and associated monitoring
applicable to the activity and if the activity is not a modification
under any provisions of title I of the Act. EPA considers this
provision to be consistent with 40 CFR 70.5(c), which does not require
insignificant activities to be included in permit applications unless
information on the activity is necessary to determine applicability of,
or to impose, any applicable requirement or to determine fees. In
today's action, EPA is approving this revision to IAC 2-7-1(21)(K) as a
revision to the Indiana title V program.
B. Trivial Activities
In order to remedy a problematic regulation that impacted Indiana's
program but was not identified by EPA in the NOD, Indiana revised its
definition of trivial activity in 326 IAC 2-7-1(40). This definition
was established pursuant to the July 10, 1995, EPA memorandum titled
``White Paper for Streamlined Development of Part 70 Permit
Applications'', which states that ``there is flexibility inherent in
Sec. 70.5 to tailor the level of information required in the
application to be commensurate with the need to determine applicable
requirements. The EPA believes this inherent flexibility encompasses
the idea that certain activities are clearly trivial (i.e., emissions
units and activities with specific applicable requirements and with
extremely small emissions) and can be omitted from the application.''
Indiana's trivial activity definition includes an emission
threshold of one pound per day of potential uncontrolled emissions of
any criteria pollutant for an activity to be considered trivial. 326
IAC 2-7-1(40)(B) through (Q) lists activities which shall be considered
trivial for title V permit application purposes. The July 10, 1995,
white paper includes examples of activities which EPA believes should
normally qualify as trivial. This list is intended only as a starting
point for states and is not a comprehensive list of what EPA accepts as
trivial activities. Many of the activities listed in 2-7-1(40) are
listed in the July 10, 1995, white paper as examples of trivial
activities. EPA agrees that the remaining 2-7-1(40) activities are
inherently trivial. The exclusion of trivial activities from title V
permit applications will allow sources and the state to direct their
resources towards permitting activities that have significant
environmental impacts.
Under the previous version of this rule, all activities listed in
326 IAC 2-7-1(40) qualified as trivial and were exempted from inclusion
in the source's title V permit application without regard to
information needed to document applicable requirements and compliance
status. Indiana's revised trivial activity definition states, in 326
IAC 2-7-1(40)(R), that trivial activities are excluded from the permit
modification requirements of 326 IAC 2-7-12 only if the existing permit
includes all requirements and associated monitoring applicable to the
activity and if the activity is not a modification under any provisions
of title I of the Act. In addition, the revision to 326 IAC 2-7-1(40)
states that trivial activities need not be included in title V permit
applications provided that the applicant documents applicable
requirements and compliance status as required by the permit
application provisions of the state title V rule. These provisions
provide assurance that title V permits include all applicable
requirements and associated monitoring for units and activities that
may qualify as trivial under the 326 IAC 2-7-1(40) definition. In
today's action, EPA is approving Indiana's definition of trivial
activity in 326 IAC 2-7-1(40) as a revision to the Indiana title V
program.
C. Proposed Exemptions From Applicable Requirements
In order to remedy a problematic regulation that impacted Indiana's
program but was not identified by EPA in the NOD, Indiana has revised
326 IAC 2-7-4(c) to remove rule language which allowed sources to
include in their permit application an explanation of any proposed
exemptions from otherwise applicable requirements. Since title V does
not provide for exemptions from applicable requirements, this language
was not consistent with the requirements of title V and 40 CFR part 70.
In today's action, EPA is approving the removal of this rule language
as a revision to the Indiana title V program.
D. Compliance Certification
Indiana revised 326 IAC 2-7-4(c)(10) and (11) to remove rule
language that allows sources to certify compliance with alternative or
streamlined requirements instead of the underlying applicable
requirements. This issue is identified and discussed in more detail in
the December 11, 2001 NOD for the Indiana title V program. In addition,
Indiana revised 326 IAC 2-7-5(3) to remove rule language that refers to
alterative or streamlined requirements with respect to monitoring,
recordkeeping, and reporting. In today's action, EPA is approving the
removal of this language as a revision to the Indiana title V program.
This revision satisfies Indiana's requirement to correct an identified
program deficiency and resolves the issue published in the NOD.
[[Page 34846]]
E. Operating Parameter Exceedances
Indiana revised 326 IAC 2-7-5(1) to remove rule language stating
that an exceedance of a permit limit and the corresponding operating
parameter shall constitute a single violation. This rule provision
restricted the state's enforcement authority to restrain or enjoin and
to assess a civil penalty for the violation of any permit condition as
required by 40 CFR 70.11. EPA identified this provision as a title V
deficiency in the December 11, 2001 NOD for the Indiana title V
program. In today's action, EPA is approving the removal of this
language as a revision to the Indiana title V program. This revision
satisfies Indiana's requirement to correct an identified program
deficiency and resolves the issue published in the NOD.
F. Startup, Shutdown, and Malfunction Exceedances
Indiana revised 326 IAC 2-7-5(1) to remove rule language which
allowed exceedances of emission limits during startups, shutdowns, and
malfunctions on a case-by-case basis. This would have allowed the
permitting authority to establish, through the title V permitting
process, limits which exceeded applicable requirements. EPA identified
this provision as a title V deficiency in the December 11, 2001 NOD for
the Indiana title V program. In today's action, EPA is approving this
rule revision as a revision to the Indiana title V program. This
revision satisfies Indiana's requirement to correct an identified
program deficiency and resolves the issue published in the NOD.
G. Administrative Permit Amendments
In order to remedy a problematic regulation that impacted Indiana's
program but was not identified by EPA in the NOD, Indiana has revised
326 IAC 2-7-11(a)(7) to remove language that allowed changes to
monitoring, maintenance, or recordkeeping requirements to be processed
as an administrative permit amendment if the changes were ``not
environmentally significant'' and not required by an applicable
requirement. This rule revision will prevent relaxations in monitoring,
maintenance, or recordkeeping requirements from being processed as an
administrative permit amendment. In today's action, EPA is approving
the removal of this language as a revision to the Indiana title V
program.
H. Minor Permit Modification Procedures
Indiana has added new rule language in 326 IAC 2-7-12(b)(4) which
requires minor modifications to be subject to the public notice
provisions of 326 IAC 2-7-17. This revision restores the minor permit
modification requirements that were in effect when EPA granted interim
approval to the Indiana title V program and is necessary because minor
permit modifications qualify for a permit shield under the Indiana
regulations. During EPA's original review of Indiana's title V program,
which resulted in granting interim approval on November 14, 1995, the
Indiana regulations required minor modifications to be subject to
public review equivalent to that required by 40 CFR 70.6, 70.7 and
70.8, and allowed such modifications to qualify for a permit shield. In
reviewing that original regulation, EPA determined that the permit
shield was acceptable in this situation because of the availability of
public review. Subsequent to the November 14, 1995, interim approval,
Indiana modified its regulations to remove the public notice
requirement from the minor modification provision. However, the state
did not remove the permit shield provision. Therefore, EPA identified
this provision as a title V deficiency in the December 11, 2001 NOD for
the Indiana title V program. In today's action, EPA is approving
Indiana's new rule language in 326 IAC 2-7-12(b)(4) as a revision to
the Indiana title V program. This revision satisfies Indiana's
requirement to correct an identified program deficiency and resolves
the issue published in the NOD.
I. Emergency Provision
In order to remedy a problematic regulation that impacted Indiana's
program but was not identified by EPA in the NOD, Indiana has revised
326 IAC 2-7-16 to remove language which states that an emergency
constitutes an affirmative defense to an action brought for
noncompliance with a health-based emission limitation. This rule
revision is consistent with the requirements in 40 CFR 70.6(g), which
restricts the emergency provision to noncompliance with technology-
based emission limitations. In today's action, EPA is approving the
removal of this language as a revision to the Indiana title V program.
J. Streamlined Requirements
326 IAC 2-7-24 of Indiana's title V rule allows for the
establishment of streamlined requirements for units subject to multiple
requirements. This section of the state rule was established subsequent
to the November 14, 1995 EPA action granting interim approval to the
Indiana title V program. EPA has not previously approved this section
of the rule as a revision to the Indiana title V program. The March 5,
1996, EPA memorandum titled ``White Paper Number 2 for Improved
Implementation of the Part 70 Operating Permits Program'' explains how
permitting authorities may streamline multiple, overlapping
requirements into one permit condition that will assure compliance with
all requirements. Indiana's rule requires streamlined limits to be at
least as stringent as all subsumed requirements and to be enforceable
as a practical matter. Permits issued with streamlined limits must
include citations to all subsumed requirements and must include any
additional terms and conditions necessary to assure compliance with the
streamlined limit and all subsumed requirements. Permits containing
streamlined limits must be issued pursuant to the permit issuance,
renewal, or significant modification requirements of Indiana's title V
rule. EPA finds this rule provision to be consistent with 40 CFR part
70 and, in today's action, is approving 326 IAC 2-7-24 as a revision to
the Indiana title V program.
K. Other NOD Issues
Indiana had two additional NOD issues listed in the December 11,
2001, Federal Register notice. Resolution of these two issues required
revisions to portions of the Indiana rules that are not part of the
state's title V regulations. Indiana has adopted these required
revisions to their state rules and the revisions became effective, as a
matter of state law, on January 19, 2002. Since these rule revisions
are not part of the state's title V regulations, they were not included
in the February 7, 2002, submittal and they will not be included in
this action as revisions to the Indiana title V program. As explained
in further detail below, the revision addressing one of these NOD
issues will require no further action by EPA. Indiana has submitted, as
a SIP revision, the other NOD issue and EPA will address that submittal
in a separate Federal Register document.
(i) Sulfur Dioxide, Nitrogen Oxides, Carbon Monoxide, Volatile Organic
Compounds, and Lead Exemption Levels
Indiana rule 326 IAC 2-1.1-3(d) allowed the state to exempt from
the title V minor or significant modification
[[Page 34847]]
requirements sulfur dioxide, NOX, and VOC emission increases
of up to 10 tons per year and carbon monoxide emission increases of up
to 25 tons per year. In addition, 326 IAC 2-1.1-3(g) allows the state
to exempt from the title V minor or significant modification
requirements lead emissions increases of up to 5 tons per year. Because
40 CFR 70.6(e) does not allow the permitting authority to create
exemptions from the permit modification requirements, Indiana's program
did not meet the program approval requirements of title V and 40 CFR
part 70. Indiana has corrected this deficiency by removing language
from 326 IAC 2-1.1-3(d) and 326 IAC 2-1.1-3(g) which apply these
provisions to title V sources and title V modifications. This rule
revision became effective on January 19, 2002.
This rule provision is intended for minor sources and is not part
of Indiana's title V regulations. Therefore, it will not be included as
a change to the Indiana title V program. Since this rule provision was
never approved into the Indiana State Implementation Plan (SIP), no SIP
revision is required to accommodate this correction. EPA considers this
program deficiency, which was identified in the NOD, to be resolved.
(ii) Supersession
Indiana's construction permits expire upon issuance of a valid
title V permit; therefore, the construction permit conditions do not
exist independently of title V permits. Applicable requirements must
exist independently of title V permits. Allowing the underlying
applicable requirements to expire could cause Indiana to lose the
authority to include such conditions in renewed title V permits.
Because Indiana's rules did not assure that construction permit
conditions exist independently of title V permits, this issue was
identified in the December 11, 2001 NOD as not meeting the program
approval requirements of title V and 40 CFR part 70.
Indiana subsequently revised the state regulations in 326 IAC 2-
1.1-9.5 to say that ``any condition established in a permit issued
pursuant to a permitting program approved into the state implementation
plan shall remain in effect until: (1) The condition is modified in a
subsequent permit action; or (2) the emission unit to which the
condition pertains permanently ceases operation.'' ``Subsequent permit
action'' in this rule refers to a permit action taken pursuant to
Indiana's construction permit authority. Since title V authority cannot
modify existing applicable requirements, including construction permit
conditions, ``subsequent permit action'' does not include permit
actions taken pursuant to Indiana's title V program. This rule
provision is not part of Indiana's title V regulations and, therefore,
will not be included as a change to the Indiana title V program.
Indiana submitted this rule provision for approval into the Indiana SIP
on March 5, 2002, and EPA will take action on this submittal in a
separate Federal Register document. The public will have an opportunity
to comment on this provision when EPA publishes a Federal Register
notice taking action on the March 5, 2002, SIP submittal.
What Is Involved in This Final Action?
The EPA is granting approval to the Indiana title V operating
permits program revisions submitted by IDEM on February 7, 2002. These
revisions meet the minimum program requirements of 40 CFR part 70,
resolve issues raised in EPA's December 11, 2001 NOD of the Indiana
title V program, and strengthen Indiana's program.
Administrative Requirements
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 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.
[[Page 34848]]
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).
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 July 15, 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.)
List of Subjects in Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 3, 2002.
David A. Ullrich,
Acting Regional Administrator, Region 5.
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. sections 7401 et seq.
2. Appendix A to part 70 is amended by adding paragraph (c) in the
entry for Indiana to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Indiana
(a) * * *
(b) * * *
(c) The Indiana Department of Environmental Management: program
revisions submitted on February 7, 2002. These revisions are hereby
granted final approval effective June 17, 2002.
* * * * *
[FR Doc. 02-12281 Filed 5-15-02; 8:45 am]
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