[Federal Register Volume 71, Number 162 (Tuesday, August 22, 2006)]
[Notices]
[Pages 48923-48926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13861]


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ENVIRONMENTAL PROTECTION AGENCY

[IN167-1; FRL-8210-7]


Approval of the Clean Air Act Section 112(l) Delegation of 
National Emission Standards for Hazardous Air Pollutants for Secondary 
Lead Smelting; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: This document announces that EPA has approved a request from 
the Indiana Department of Environmental Management (IDEM) for 
delegation of authority to implement and enforce National Emission 
Standards for Hazardous Air Pollutants (NESHAP) for Secondary Lead 
Smelting, through a state rule which adjusts the maximum achievable 
control technology (MACT) standard for secondary lead smelting. 
Pursuant to the Clean Air Act (CAA) and the NESHAP provisions, states 
may seek approval of state rules which make pre-approved adjustments to 
a MACT standard if the state rule is unambiguously no less stringent 
than the Federal rule. IDEM requested approval to adjust the NESHAP for 
secondary lead smelting, so that the standard will be as stringent as 
the State rule which currently applies to secondary lead smelters in 
Indiana. EPA reviewed this request and found that it satisfies the 
requirements for approval under the Federal provision which allows for 
delegation of an adjusted NESHAP; ``Approval of State requirements that 
adjust a section 112 rule.'' Therefore, upon the signature of this 
action, EPA delegates to IDEM the authority to implement and enforce 
the NESHAP for Secondary Lead Smelting, through IDEM's rule for 
Secondary Lead Smelters.

ADDRESSES: The documents relevant to this action are available for 
public inspection during normal business hours at the following 
address: Environmental Protection Agency, Region 5, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This 
facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding Federal holidays. We recommend that you telephone Danny 
Marcus at (312) 353-8781 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Danny Marcus, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-8781, [email protected].

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

I. What Action is EPA Taking?
II. Under What Authority is EPA Approving this Delegation?
III. How Does 326 IAC 20-13 Meet the Requirements of 40 CFR 63.92?
    A. The Secondary Lead Smelting NESHAP.
    B. How does the State program meet the requirements of 40 CFR 
63.91?
    C. How does the State demonstrate that the public has had 
adequate notice and opportunity to submit written comments on the 
State requirements?
    D. How does the State demonstrate that the adjustments pertain 
to certain pre-approved matters and are unequivocally no less 
stringent than the Federal rule?
    1. How are the State adjustments which lower emission rates 
unequivocally no less stringent than the MACT standard?
    2. How are the State adjustments which add a design, work 
practice, operational standard, emission rate or other such 
requirement unequivocally no less stringent than the MACT standard?
    3. How are the State adjustments which increase the frequency of 
required reporting, testing, sampling or monitoring unequivocally no 
less stringent than the MACT standard?
IV. What is the Effect of This Delegation?

I. What Action is EPA Taking?

    Pursuant to section 112(l) of the CAA and 40 CFR 63.92, EPA has 
approved IDEM's request that EPA delegate the authority to implement 
and enforce 40

[[Page 48924]]

CFR part 63, subpart X, NESHAP for secondary lead smelting, through 
Indiana rule 326 IAC 20-13, which adjusts the Federal secondary lead 
smelting MACT. This approval makes the Indiana rule, which is 
unambiguously no less stringent than the Federal MACT, Federally 
enforceable in Indiana and equivalent to the State rule that currently 
applies to secondary lead smelters in Indiana. EPA has also approved 
the delegation of the applicable Category I authorities for this MACT 
standard as set forth at 40 CFR 63.91(g).

II. Under What Authority is EPA Approving this Delegation?

    Pursuant to CAA section 112(l), a state may develop and submit to 
EPA for approval a program for the partial or complete delegation of 
section 112 rules. EPA may approve state rules or programs which 
either: (1) Implement and enforce section 112 rules as promulgated by 
EPA (``straight delegation''); (2) implement and enforce state rules 
which adjust section 112 rules; (3) implement and enforce state rules 
which substitute for section 112 rules. The Federal regulations 
governing EPA's approval of state rules or programs under section 
112(l) are located at 40 CFR part 63, subpart E.
    Currently, IDEM has an EPA-approved program for the straight 
delegation of MACT standards. EPA approved IDEM's program of delegation 
for part 70 sources on November 14, 1995 (60 FR 57118). EPA approved 
IDEM's expansion of its program of delegation to non-part 70 sources on 
July 8, 1997 (62 FR 36460). Pursuant to the approved straight 
delegation program, EPA has approved the straight delegation of 
numerous MACT standards to IDEM (see 62 FR 36460 (7/8/1997), 65 FR 
17264 (3/31/2000), 69 FR 22508 (4/26/2004), and 71 FR 2225 (1/13/
2006)).
    By letter dated July 3, 2003, IDEM requested approval of delegation 
of authority to implement and enforce 40 CFR part 63, subpart X, the 
secondary lead smelting MACT, through a state rule which adjusts the 
MACT standard. IDEM sought to adjust the MACT standard rather than 
seeking straight delegation because IDEM's current rule for secondary 
lead smelters is more stringent than the MACT standard. Pursuant to CAA 
section 112(d)(7), a MACT standard cannot be applied to diminish or 
replace the requirements of a more stringent emission limitation.
    The criteria for EPA's approval of state rules which adjust section 
112 rules are set forth at 40 CFR 63.92. In general, adjustments to 
section 112 MACT standards must be unambiguously no less stringent than 
the Federal rule and be limited to certain pre-approved matters. More 
specifically, Section 63.92(b)requires that the state demonstrate the 
following: (1) The state program meets the criteria of section 63.91, 
which provides for the straight delegation of section 112 rules; (2) 
the public has had adequate notice and opportunity to submit written 
comment on the state requirements which adjust the section 112 rule; 
(3) the adjustment to the section 112 rule results in requirements that 
are unequivocally no less stringent than the Federal rule with respect 
to: (a) Applicability; (b) level of control for each affected source 
and emission point; (c) compliance and enforcement measures; (d) dates 
of compliance. Further, Section 63.92(b)(3) only allows certain pre-
approved adjustments, including the following: (1) Lowering a required 
emission rate; (2) adding a design, work practice, operational 
standard; (3) increasing a required control efficiency; (4) increasing 
the frequency of required reporting, testing, sampling or monitoring.
    If the above criteria are met, EPA will approve the delegation of a 
MACT standard through a state rule which adjusts the standard. Because 
EPA has previously noticed and provided opportunity for comment on the 
adjustment procedure, including the list of allowable adjustments, no 
further notice or opportunity for comment is required. See 58 FR 62262 
(November 26, 1993). The delegation is effective upon the signature of 
this Federal Register document. See 65 FR 55837 (September 14, 2000).

III. How Does 326 IAC 20-13 Meet the Requirements of 40 CFR 63.92?

    IDEM's secondary lead smelter rule incorporates by reference the 
majority of the provisions of the Federal secondary lead smelter 
NESHAP. However, IDEM's rule adjusts certain provisions of the Federal 
secondary lead smelter NESHAP in order to make the rule equivalent to 
the state rule that currently applies to secondary lead smelters. As 
shown below, IDEM has demonstrated that its adjustments are limited to 
certain pre-approved matters and are unequivocally no less stringent 
than the Federal MACT provisions. The adjustments meet the criteria set 
forth in 40 CFR 63.92(b) for state rules which adjust a MACT standard.

A. The Secondary Lead Smelting NESHAP

    The secondary lead smelting MACT, which IDEM seeks to adjust, was 
proposed in the Federal Register on June 9, 1994 (59 FR 29750) and 
promulgated on June 23, 1995 (60 FR 32587). EPA amended the MACT 
standard after industry groups petitioned EPA for reconsideration 
pursuant to CAA section 307(d)(7)(B). The amended standard was 
promulgated as a direct final rule on June 13, 1997 (62 FR 32209).
    In general, the NESHAP for secondary lead smelting establishes 
emission limits for lead, as a surrogate for all metallic Hazardous Air 
Pollutants (HAPs), from smelting furnaces, refining kettles, dryers, 
and fugitive dust sources at secondary lead smelters. Among other 
things, the rule establishes emission limits for process emission 
sources, process fugitive emission sources, and for fugitive dust 
sources from any enclosure or building ventilation system.

B. How does the State program meet the requirements of 40 CFR 63.91?

    40 CFR 63.92(b) provides that a state which seeks delegation of the 
authority to implement and enforce a Section 112 rule through a state 
rule which adjusts the Federal rule must first meet the criteria of 40 
CFR 63.91(d). 40 CFR 63.91(d) sets forth the ``up-front'' approval 
requirements for the ``straight'' delegation of Federal MACT standards 
as promulgated. Once approved, a state need only reference the earlier 
approval of the criteria. Based on prior program submittals and 
approvals for IDEM's Title V air permit and Section 112 delegation 
programs, IDEM has met the requirements specified in 40 CFR 63.91(d).

C. How does the State demonstrate that the public has had adequate 
notice and opportunity to submit written comments on the State 
requirements?

    40 CFR 63.92(b)(1) requires that a state seeking delegation under 
this section demonstrate that the public has had adequate notice and 
opportunity to comment on the state requirements. Title 13 of the 
Indiana Code (IC) contains statutory requirements for the environmental 
rulemaking process. IC 13-14-9 specifies requirements for providing 
opportunities for public comment during this process. Opportunities for 
comment were made available through three published notices for comment 
and two public hearings. In its request for delegation, IDEM provided 
its response to comments related to the two public hearings held for 
IDEM's secondary lead smelting rule. Therefore, IDEM has met the 
requirements of 40 CFR 63.92(b)(1).

[[Page 48925]]

D. How does the State demonstrate that the adjustments pertain to 
certain pre-approved matters and are unequivocally no less stringent 
than the Federal rule?

    40 CFR 63.92(b)(2) requires that each state adjustment to a Federal 
Section 112 rule be unequivocally no less stringent than the Federal 
rule with respect to: Applicability; level of control for each affected 
source and emission point; compliance and enforcement measures; and 
compliance dates. Further, 40 CFR 63.92(b)(3) identifies those limited 
areas in which Federal Section 112 rules can be adjusted. Those limited 
adjustments include: lowering a required emission rate; adding a 
design, work practice, operational standard, emission rate or other 
such requirement; increasing the frequency of required reporting, 
testing, sampling or monitoring.
    IDEM incorporated by reference the provisions of 40 CFR Part 63, 
Subpart X, as promulgated, except for certain limited provisions which 
are allowable adjustments under 40 CFR 63.92(b)(3). As described below, 
IDEM has demonstrated that those provisions that were adjusted meet the 
criteria of 63.92(b)(2) and (3).
1. How are the State adjustments which lower emission rates 
unequivocally no less stringent than the MACT standard?
    40 CFR 63.92(b)(3)(i) provides that state rules which lower an 
emission rate may be part of an approved state rule. Under 40 CFR Part 
63, Subpart X, the following emission limits apply to secondary lead 
smelting facilities: (a) Process sources--2.0 milligrams per dry 
standard cubic meter (mg/dscm), (b) process fugitive sources--2.0 mg/
dscm, (c) fugitive dust sources from any enclosure or building 
ventilation system--2.0 mg/dscm. See 40 CFR 63.543-63.545. Under IDEM's 
secondary lead smelting rule, the following emission limits apply: (a) 
Process sources--1.0 mg/dscm, (b) process fugitive sources--0.5 mg/
dscm, (c) stacks venting fugitive dust sources--0.5 mg/dscm. The limits 
set forth in IDEM's secondary lead smelting rule are unequivocally no 
less stringent than the emission limits in the Federal rule. Those 
provisions of IDEM's rule that adjust the Federal rule emission limits 
include: 326 IAC 20-13-2, 326 IAC 20-13-3, and 326 IAC 20-13-4.
2. How are the State adjustments which add a design, work practice, 
operational standard, emission rate or other such requirement 
unequivocally no less stringent than the MACT standard?
    40 CFR 63.92(b)(3)(ii) provides that state rules which add a 
design, work practice, operational standard, or emission rate may be 
part of an approved state rule. Under 40 CFR Part 63, Subpart X, 
baghouses and bag leak detection systems must be installed and operated 
to control process fugitive sources. The Federal MACT does not require 
the use of High Efficiency Particulate Air (HEPA) filters, which, with 
capture efficiencies of 99.97%, are more efficient than conventional 
baghouses. However, under the Federal MACT, if a HEPA filter is used 
the source is not required to use a bag leak detection system. In 
contrast, IDEM's secondary lead smelter rule requires all new secondary 
lead smelters to have HEPA filters on process fugitive and stacks 
venting fugitive dust sources. Further, for existing sources, IDEM's 
rule requires facilities currently using HEPA filters to continue to 
use them.
    The design and work practice requirements set forth in IDEM's 
secondary lead smelting rule are unequivocally no less stringent than 
the requirements in the Federal rule. Those provisions of IDEM's rule 
that adjust the Federal rule regarding emission controls (40 CFR 
63.548(e)) are: 326 IAC 20-13-4, 326 IAC 20-13-5, 326 IAC 20-13-7, and 
326 IAC 20-13-8.
3. How are the State adjustments which increase the frequency of 
required reporting, testing, sampling or monitoring unequivocally no 
less stringent than the MACT standard?
    40 CFR 63.92(b)(3)(iv) provides that state rules which increase the 
frequency of required reporting, testing, sampling or monitoring may be 
part of an approved state rule.
    For process sources, the Federal NESHAP requires all secondary lead 
smelters to perform a stack test annually (no later than 12 calendar 
months following the previous compliance test). If the stack test 
demonstrates a source emitted lead compounds at 1.0 mg/dscm or less 
during the time of the stack test (the Federal NESHAP limit is 2.0 mg/
dscm), the owner or operator of a secondary lead smelter is allowed up 
to 24 calendar months from the previous test to conduct the next stack 
test for lead compounds. IDEM's rule for process sources also requires 
a stack test every 12 months following the previous compliance test 
unless the prior stack test demonstrated lead compound emissions under 
0.5 mg/dscm, (IDEM's rule has an emission limit of 1.0 mg/dscm) in 
which case a stack test is required within 24 months of the previous 
test.
    Regarding process fugitive sources, the Federal NESHAP requires 
performance of a stack test annually unless the prior stack test 
demonstrated a concentration of lead compounds less than 1.0 mg/dscm, 
in which case a stack test is required within 24 months (the Federal 
NESHAP limit is 2.0 mg/dscm). In contrast, IDEM's rule requires a stack 
test within 24 months of the previous stack test to demonstrate 
compliance with the 0.5 mg/dscm emission limit. If a stack test 
demonstrates a higher concentration, the facility will not be in 
compliance with IDEM's limit and will be subject to enforcement 
activity. IDEM's rule is equivalent to the Federal NESHAP because a 
facility which meets IDEM's emission limit of 0.5 mg/dscm would, under 
the NESHAP or under IDEM's rule, only be required to stack test once 
every 24 months.
    For fugitive dust sources, no stack testing is required by the 
Federal NESHAP (the Federal NESHAP limit is 2.0 mg/dscm). However, 
IDEM's rule requires a one-time stack test to demonstrate compliance 
with the 0.5 mg/dscm emission limit for fugitive dust stacks.
    The testing requirements set forth in IDEM's secondary lead 
smelting rule are unequivocally no less stringent than the requirements 
in the Federal rule. Those provisions of IDEM's rule that adjust the 
Federal rule regarding the frequency of compliance testing are set 
forth at 326 IAC 20-13-6. The Federal provisions that are adjusted are 
as follows: 40 CFR 63.543(h), 40 CFR 63.543(i), 40 CFR 63.544(e), 40 
CFR 63.544(f), and 40 CFR 63.548(e).
    IDEM's secondary smelter rule also contains provisions which 
increase the monitoring requirements of the Federal rule. With regard 
to the monitoring of the air pressure within the total enclosures at 
the facility, the Federal rule requires a continuous monitoring system 
(CMS) to demonstrate that the inside of the enclosures are maintained 
at a negative pressure relative to the ambient air pressure. See 40 CFR 
63.547(e). IDEM's rule correspondingly requires a CMS, but also 
requires that the CMS be equipped with a continuous recording device 
and an alarm. The alarm notifies the facility whenever the pressure 
difference between the inside and outside of a total enclosure is not 
within specifications. Further, where the Federal NESHAP does not 
specify what action to take when the recording device is not within 
specifications,

[[Page 48926]]

IDEM's rule requires the facility to initiate corrective action within 
30 minutes of the activated alarm.
    In addition, IDEM's rule requires the owner of a secondary lead 
smelter to install and maintain an ambient air quality monitoring 
network for lead. Unless an owner of a secondary lead smelter received 
approval prior to the effective date of IDEM's rule, an owner must 
submit a proposed ambient monitoring and quality assurance plan within 
90 days after the effective date of IDEM's rule. Reporting is required 
on a quarterly basis, within 45 days after the end of the quarter in 
which the data is collected. The report must include ambient air 
quality monitoring network data, and if a National Ambient Air Quality 
Standards (NAAQS) violation is triggered, identification of the cause 
of the violation and corrective actions taken to address the violation 
are required.
    The monitoring requirements set forth in IDEM's secondary lead 
smelting rule are unequivocally no less stringent than the requirements 
in the Federal rule. The provisions of IDEM's rule that pertain to 
monitoring are set forth at 326 IAC 20-13-7.

IV. What Is the Effect of This Delegation?

    On August 3, 2006, EPA approved IDEM's request to delegate the 
authority to implement and enforce 40 CFR part 63, subpart X, through 
326 IAC 20-13, which adjusts the secondary lead smelting MACT. EPA also 
approved the delegation of the applicable Category I authorities as set 
forth at 40 CFR 63.91(g).
    All notifications, reports and other correspondence required under 
40 CFR, part 63, subpart X, as adjusted by 326 IAC 20-13, should be 
sent to the State of Indiana, rather than to the EPA, Region 5, in 
Chicago. Affected sources should send this information to: Indiana 
Department of Environmental Management, Office of Air Management, 100 
North Senate Avenue, P.O. Box 6015, Indianapolis, Indiana 46206-6015.
    Pursuant to Section 112(l)(7) of the CAA, nothing in this 
delegation prohibits EPA from enforcing any applicable emission 
standard or requirement. The secondary lead smelter MACT, 40 CFR part 
63, subpart X, as adjusted by 326 IAC 20-13 is Federally enforceable.

    Dated: August 3, 2006.
Jo-Lynn Traub,
Acting Regional Administrator, Region 5.
[FR Doc. E6-13861 Filed 8-21-06; 8:45 am]
BILLING CODE 6560-50-P