[Federal Register Volume 68, Number 10 (Wednesday, January 15, 2003)]
[Rules and Regulations]
[Pages 1970-1972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-616]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN 140-1a; FRL-7433-7]


Approval and Promulgation of Implementation Plans; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (EPA) 
conditionally approves rules, submitted by the State of Indiana as 
revisions to its State Implementation Plan (SIP), for Prevention of 
Significant Deterioration (PSD) provisions for attainment areas for the 
Indiana Department of Environmental Management (IDEM).

DATES: This rule will become effective March 3, 2003 unless EPA 
receives adverse written comments by February 14, 2003. If EPA receives 
adverse written comments, it will publish a timely withdrawal of the 
rule in the Federal Register, and inform the public that the rule will 
not take effect.

ADDRESSES: Copies of the documents relevant to this action are 
available for inspection during normal business hours at the following 
location: Permits and Grants Section, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. Please contact Julie Capasso at 
(312) 886-1426 before visiting the Region 5 office. Written comments 
should be sent to: Pamela Blakley, Chief, Permits and Grants Section 
(IL/IN/OH), Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Julie Capasso, Environmental 
Scientist, Permits and Grants Section (IL/IN/OH), Air Programs Branch, 
(AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, telephone (312) 886-1426.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

A. What is the purpose of this document?
B. What is the history of IDEM's PSD program?
C. Who is affected by this action?
D. Approvability Analysis
E. What is today's final action?
F. Regulatory Assessment Requirements

A. What Is the Purpose of This Document?

    This document is our conditional approval of the SIP revision 
request that IDEM has submitted for its PSD program.

B. What Is the History of IDEM's PSD Program?

    On September 30, 1980, EPA delegated to IDEM the authority to 
implement and enforce the federal PSD program. On April 11, 2001, IDEM 
submitted a request to EPA to revise its SIP to incorporate its PSD 
regulations. On February 1, 2002, IDEM submitted to EPA a revised 
request resolving issues identified by EPA during an informal review. 
IDEM withdrew the previous request on February 27, 2002. On May 28, 
2002, EPA sent a letter to IDEM deeming the February 1, 2002 submittal 
complete, and initiated the processing of the request.
    Indiana's February 1, 2002 submission consists of the addition to 
the SIP of: 326 IAC 2-2, PSD rules; 326 IAC 2-1.1-6, Public notice; and 
326 IAC 2-1.1-8, Time periods for determination on permit applications. 
IDEM previously submitted sections 326 IAC 2-1.1-6 and 326 IAC 2-1.1-8, 
and at EPA's request, is resubmitting them as part of this SIP 
submittal request.

C. Who Is Affected by This Action?

    Indiana has already adopted these PSD rules; therefore, air 
pollution sources will not be subject to any additional requirements. 
This action merely approves the State rules into the SIP, making them 
federally enforceable under the Clean Air Act (CAA). Because this is 
now a federally-approved State program instead of a delegated federal 
program, anyone wishing to appeal a PSD permit will have to do so under 
the State's environmental appeals process.

D. Approvability Analysis

I. 326 IAC 2-2-1: Definitions

    Unless otherwise specified below, definitions in 326 IAC 2-2-1 are 
consistent with definitions in 40 CFR 51.166(b).
    EPA has noted wording discrepancies between the Federal rules and 
the following rules: In 326 IAC 2-2-1(y)(5), the words ``and this 
subdivision'' are superfluous. In 326 IAC 2-2-1(gg), IDEM should 
replace ``U.S. EPA'' with ``IDEM'' in the following sentence: ``U.S. 
EPA shall give expedited consideration to permit applications * * *.'' 
In 326 IAC 2-2-6(b)(5), the words ``whichever is later'' are not 
necessary. These wording differences do not constitute approvability 
issues. IDEM agrees to

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address them the first time that it reopens the rules.
    The Federal definition of ``major modification'' excludes from a 
physical change or a change in the method of operation the use by a 
stationary source of an alternative fuel or raw material which the 
source was capable of accommodating before January 1, 1975, unless the 
change is prohibited under any permit condition established after 
January 6, 1975 pursuant to 40 CFR 52.21 or under regulations approved 
pursuant to 40 CFR Subpart I or 40 CFR 51.166. 40 CFR Subpart I 
contains requirements pertaining to minor new source review permits. 
Indiana's rule 326 IAC 2-2-1(x)(2)(E)(i) provides that the use of an 
alternative fuel or raw material is a change in the method of operation 
if prohibited by a condition of a permit issued pursuant to the 
authority of the PSD or major new source review programs, but does not 
address other new source review provisions. The omission of the 
reference to minor new source review provisions in 326 IAC 2-2-
1(x)(2)(E)(i) was inadvertent. Indiana is not aware of any new source 
review permits that were not issued pursuant to PSD or major new source 
review authority that contain restrictions on the use of an alternative 
fuel or raw material; however, Indiana agrees to address this 
inadvertent omission within one year of the effective date of this 
conditional approval.

II. 326 IAC 2-2-6: Increment Consumption

    326 IAC 2-2-6(a) only allows a source or major modification to 
consume 80% of the maximum increase allowed in the 40 CFR 51.166(c). 
The State's increment consumption requirements are more stringent than 
the Federal rule, and are therefore approvable.

III. 326 IAC 2-2-12: Permit Rescission

    326 IAC 2-2-12 provides that sources may request that IDEM rescind 
requirements in permits issued prior to January 1, 2002. The comparable 
federal rule, 40 CFR 52.21(w)(2), provides for rescission of terms from 
permits issued prior to August 7, 1987. The Federal provision relates 
to the transition between Total Suspended Particulate (TSP) and 
particulate matter with an aerodynamic diameter of 10 microns or less 
(PM-10). IDEM has informed EPA that it interprets 326 IAC 2-2-12 to be 
consistent with 40 CFR 52.21(w) in that it would only consider use of 
this subsection to rescind conditions related to TSP. Therefore, EPA 
believes that these provisions are approvable.

E. What Is Today's Final Action?

    EPA is conditionally approving the following rules because with the 
exception of the inadvertent omission of minor new source review 
permits from the exemption to the definition of ``major modification,'' 
the following sections of the State's Rules are consistent with EPA's 
regulations at 40 CFR 51.166:326 IAC 2-2-2, Applicability; 326 IAC 2-2-
3, Control technology; 326 IAC 2-2-4, Air quality analysis; 326 IAC 2-
2-5, Air quality impact; 326 IAC 2-2-7, Additional analysis; 326 IAC 2-
2-8, Source obligation; 326 IAC 2-2-9, Innovative control technology; 
326 IAC 2-2-10, Source information; 326 IAC 2-2-11, Stack height 
provisions; 326 IAC 2-2-13, Area designation and redesignation; 326 IAC 
2-2-14, Sources impacting Federal Class I areas: Additional 
requirements; 326 IAC 2-2-15, Public participation; 326 IAC 2-2-16, 
Ambient air ceilings; 326 IAC 2-1.1-6, Public notice, and 326 IAC 2-
1.1-8, Time periods for determination on permit applications. Because 
it is unlikely that Indiana has limited the ability of any sources to 
use alternative fuels or raw materials through a minor new source 
review permit, and because Indiana has committed in a December 12, 2002 
letter to correct this minor deficiency within one year of the 
effective date of this approval, EPA believes that it is appropriate to 
grant conditional approval. However, should Indiana fail to correct 
this deficiency within a year of this action, EPA will initiate 
withdrawal of this approval. Although EPA is approving Indiana's PSD 
SIP, EPA emphasizes that it has a responsibility to insure that all 
states properly implement their preconstruction permitting programs. 
EPA's approval of Indiana's PSD program does not divest the Agency of 
the duty to continue appropriate oversight to insure that PSD 
determinations made by Indiana are consistent with the requirements of 
the CAA, EPA regulations and the SIP.
    Today's approval of Indiana's SIP revision submission is limited to 
existing rules. EPA is taking no position on whether Indiana will need 
to make changes to its new source review rules to meet any requirements 
that EPA may promulgate as part of new source review reform.
    EPA is publishing this direct final conditional approval of the 
Indiana PSD SIP submitted on February 1, 2002. We view this action as 
noncontroversial, and anticipate no adverse comments. However, in a 
separate document in this Federal Register publication, EPA is 
proposing to withdraw the State Plan should adverse or critical written 
comments be filed. This approval action will be effective without 
further notice unless EPA receives relevant adverse written comment by 
February 14, 2003. Should EPA receive such comments, it will publish a 
final rule informing the public that this action will not take effect. 
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 March 3, 2003.

F. Regulatory Assessment Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action 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 rule 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 any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 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 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power

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and responsibilities established in the Clean Air Act. This rule also 
is 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 economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The 
Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small 
Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 3, 2003. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

    Dated: December 18, 2002.
Bharat Mathur,
Acting Regional Administrator, Region 5.

    For the reasons stated in the preamble, part 52, chapter I, of 
title 40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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


    2. Section 52.770 is amended by adding (c)(147) to read as follows:


Sec.  52.770  Identification of plan.

* * * * *
    (c) * * *
    (147) On February 1, 2002, Indiana submitted its Prevention of 
Significant Deterioration rules as a revision to the State 
implementation plan.
    (i) Incorporation by reference.
    (A) Title 326 of the Indiana Administrative Code, Rules 2-2-1, 2-2-
2, 2-2-3, 2-2-4, 2-2-5, 2-2-6, 2-2-7, 2-2-8, 2-2-9, 2-2-10, 2-2-11, 2-
2-12, 2-2-13, 2-2-14, 2-2-15 and 2-2-16. Filed with the Secretary of 
State on March 23, 2001, effective April 22, 2001.
    (B) Title 326 of the Indiana Administrative Code, Rules 2-1.1-6 and 
2-1.1-8. Filed with the Secretary of State on November 25, 1998, 
effective December 25, 1998. Errata filed with the Secretary of State 
on May 12, 1999, effective June 11, 1999.
* * * * *
[FR Doc. 03-616 Filed 1-14-03; 8:45 am]
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