[Federal Register Volume 69, Number 98 (Thursday, May 20, 2004)]
[Rules and Regulations]
[Pages 29071-29074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11337]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN 140-4a; FRL-7658-9]


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, through 
this action, is approving rules submitted by the State of Indiana as 
revisions to its State Implementation Plan (SIP) for Prevention of 
Significant Deterioration (PSD) air quality construction permit 
program. All public comments received will be addressed in a subsequent 
final rule. 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.

DATES: This ``direct final'' rule is effective July 19, 2004, unless 
EPA receives written adverse comment by June 21, 2004. If adverse 
written comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. IN-140, by 
one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     E-mail: [email protected].
     Fax: (312) 886-5824.
     Mail: Pamela Blakley, Acting Chief, Air Programs Branch, 
United States Environmental Protection Agency, Mail Code AR-18J, 77 
West Jackson Boulevard, Chicago, Illinois 60604.
     Hand Delivery: Deliveries are only accepted during the 
Docket's normal hours of operation (8:15 a.m. to 4:45 p.m. CDT), and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. IN-140. EPA's 
policy is that all comments received will be included in the public 
docket without change, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through regulations.gov, or e-mail. The 
federal regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
instructions on submitting comments, go to Unit I of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in an index. 
Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Publicly available docket materials are 
available in hard copy at the Air Permit Section, Air Programs Branch 
(AR-18J), Air and Radiation Division, United States Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604 (Docket ID IN-140), Monday through Friday, excluding 
holidays. The Docket telephone number is (312) 353-5697.

FOR FURTHER INFORMATION CONTACT: Ethan Chatfield, Environmental 
Engineer, Air Permits Section, Air Programs Branch (AR-18J), Air and 
Radiation Division, United States Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604; telephone 
number: (312) 886-5112; fax number: (312) 886-5824; e-mail address: 
[email protected].

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

I. General Information
    A. Does This Action Apply to Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
    1. Submitting CBI
    2. Tips for Preparing Your Comments
II. EPA Action and Review
    A. What Is the Purpose of This Document?
    B. What Is the History of IDEM's PSD Program?
    C. Approvability Analysis
III. Final Rulemaking Action
IV. Statutory and Executive Order Reviews

I. General Information

A. Does This Action Apply to Me?

    The PSD rules apply to the construction or modification of major 
sources of air pollution. Indiana has already adopted these rules; 
therefore, air pollution sources will not be subject to any additional 
requirements. This rulemaking action merely approves the State rules 
into the SIP, making them federally enforceable under the Clean Air Act 
(CAA). Because Indiana has a federally-approved State program, anyone 
wishing to appeal a PSD permit will continue to do so under the State's 
environmental appeals process.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one

[[Page 29072]]

complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iii. Describe any assumptions and provide any technical information 
and/or data that you used.
    iv. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    v. Explain your views as clearly as possible and provide specific 
examples to illustrate your concerns, and suggest alternatives.
    vi. Make sure to submit your comments by the comment period 
deadline identified.

II. EPA Action and Review

A. What Is the Purpose of This Document?

    This document approves the SIP revision request submitted by IDEM 
for changes in its PSD program responsive to EPA conditional approval 
rulemaking.

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 (40 CFR 52.21). On April 
11, 2001, IDEM submitted a request to EPA to revise its SIP to 
incorporate its PSD regulations in place of the federal delegated 
rules. On February 1, 2002, IDEM submitted to EPA a revised request 
resolving issues identified by EPA during an informal review. IDEM 
withdrew its August 11, 2001, request on February 27, 2002. On May 28, 
2002, EPA sent a letter to IDEM deeming the February 1, 2002 submittal 
complete, and initiated 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 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, resubmitted them as part of this SIP submittal 
request.
    On January 15, 2003, EPA published a direct final rule 
conditionally approving IDEM's February 1, 2002 SIP submittal upon 
correction of a few minor deficiencies (68 FR 1970). On March 3, 2003 
(68 FR 9892), EPA withdrew the direct final rule due to adverse 
comments, and published a final rule conditionally approving the 
submittal. On January 16, 2004, IDEM responded to the conditional 
approval by submitting corrections to the identified deficiencies.

C. Approvability Analysis

    In the January 15, 2003 direct final conditional approval and March 
3, 2003 final conditional approval, EPA identified minor discrepancies 
between the Federal rule requirements (40 CFR part 51, subpart I) and 
the Indiana SIP that IDEM must correct before EPA could fully approve 
Indiana's PSD program. The following are changes incorporated by IDEM 
in its January 16, 2004 submittal and approved by EPA through this 
rulemaking.
    In 326 IAC 2-2-1(y)(5), the words ``and this subdivision'' were 
superfluous and were, therefore, removed. In 326 IAC 2-2-1(gg), ``U.S. 
EPA'' was replaced with ``IDEM.'' In 326 2-2-1(x)(E), the phrase 
``minor new source review regulations approved pursuant to 40 CFR 
51.160 through 40 CFR 51.166'' was added to a list of regulations 
exempting the use of an alternative fuel or raw material from the 
definition of a ``major modification.'' In 326 IAC 2-2-6(b)(5), the 
words ``whichever is later'' were not necessary and, therefore, were 
removed. The date in 326 IAC 2-2-12, which provides an allowance for 
sources to request that IDEM rescind requirements in permits, was 
changed from January 1, 2002 to January 19, 2002. The date was intended 
to be the effective date of the Indiana PSD rule amendments, but since 
IDEM did not know at the time of final adoption what the actual 
effective date of the rule would be, an estimated date of January 1, 
2002 was inserted. The actual effective date was January 19, 2002; this 
date is, therefore, being corrected through this action.
    In addition to the changes described above, IDEM has also made a 
number of smaller revisions to 326 IAC 2-2 in its January 16, 2004 
submittal that are more grammatical in nature. EPA believes that these 
changes do not significantly change the meaning of Indiana's rules and, 
therefore, approves these smaller changes as submitted.

III. Final Rulemaking Action

    EPA believes that Indiana's January 16, 2004 submittal adequately 
addressed issues raised in EPA's January 15, 2003 direct final 
conditional approval and the March 3, 2003 final conditional approval. 
In this rulemaking action, EPA is therefore approving the sections of 
Indiana's rules addressed in the Approvability Analysis above as a 
revision to the Indiana SIP for PSD.
    EPA's approval of Indiana's PSD program does not divest EPA of the 
duty to continue appropriate oversight to insure that PSD 
determinations made by Indiana are consistent with the requirements of 
the CAA, Federal 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 has or may promulgate as part of its new source review reform.
    EPA views the approval of these revision to the Indiana PSD SIP as 
noncontroversial, and anticipates no adverse comments. However, in a 
separate document in this Federal Register publication, EPA is 
proposing approval of the State Plan. Should adverse or critical 
written comments be filed, EPA will withdraw this direct final rule and 
address all public comments in a final rule based on the proposed rule 
published in the proposed rules section of this Federal Register. This 
approval action will be effective without further notice unless EPA 
receives relevant adverse written comment by June 21, 2004. Should EPA 
receive adverse or critical 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 July 19, 2004.

IV. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    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.

Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    For this reason, this action is also not subject to Executive Order 
13211,

[[Page 29073]]

``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

    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.).

Unfunded Mandates Reform Act

    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 (Public Law 104-4).

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    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).

Executive Order 13132: Federalism

    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 and responsibilities established in the Clean Air 
Act.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    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.

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272, requires federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry our policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing program submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Absent a prior 
existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a program submission 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 program submission that otherwise satisfies the provisions of the 
Act. Therefore, the requirements of section 12(d) of the NTTA do not 
apply.

Civil Justice Reform

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct.

Governmental Interference With Constitutionally Protected Property 
Rights

    EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order, and has determined that the rule's 
requirements do not constitute a taking.

Paperwork Reduction Act

    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.).

Congressional Review Act

    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, EPA 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 July 19, 2004. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: April 26, 2004.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
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]

0
1. The authority citation for part 52 continues to read as follows:

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


0
2. Section 52.770 is amended by adding paragraph (c)(165) to read as 
follows:


Sec.  52.770  Identification of plan.

* * * * *
    (c) * * *
    (165) On January 16, 2004 Indiana submitted revised Prevention of 
Significant Deterioration rules as a revision to the Indiana State 
Implementation Plan.
    (i) Incorporation by reference.
    (A) Amendments to the Indiana Administrative Code, Title 326: Air 
Pollution Control Board; Article 2: Permit Review Rules; Rule 2: 
Prevention of Significant Deterioration (PSD) Requirements; Section 2-
2-1 Definitions; Section 2-2-6 Increment

[[Page 29074]]

consumption; requirements; and Section 2-2-12 Permit rescission. Filed 
with the Secretary of State on March 9, 2004, effective April 8, 2004. 
Published at 27 Indiana Register 2216; April 1, 2004.

[FR Doc. 04-11337 Filed 5-19-04; 8:45 am]
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