[Federal Register Volume 74, Number 192 (Tuesday, October 6, 2009)]
[Rules and Regulations]
[Pages 51240-51241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23938]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2008-0031; FRL-8963-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Extended Permit Terms for Renewal of Federally Enforceable 
State Operating Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving Indiana's rule revision to extend permit 
terms for the renewal of Federally Enforceable State Operating Permits 
(FESOPs) from five years to ten years. Indiana submitted this rule 
revision for approval on December 19, 2007. FESOPs enable non-major 
sources to obtain federally enforceable limits that keep them below 
certain Clean Air Act (Act) applicability thresholds. EPA published 
proposed and direct final approvals of this request on May 5, 2009. We 
received adverse comments on our proposed rulemaking, which are 
addressed below. As a result, EPA withdrew the direct final approval on 
June 17, 2009.

DATES: This final rule is effective on November 5, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2008-0031. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 
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 Sam Portanova, 
Environmental Engineer, at (312) 886-3189 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Sam Portanova, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-3189, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION 
Section is arranged as follows:

I. What Did EPA Propose?
II. What Comments Did We Receive on the Proposed Action?
III. What Action Is EPA Taking?
IV. Statutory and Executive Order Reviews

I. What Did EPA Propose?

    On December 19, 2007, the Indiana Department of Environmental 
Management (IDEM) requested that EPA approve a rule revision to extend 
permit terms for the renewal of FESOPs from five years to ten years. On 
May 5, 2009, EPA published a proposed (74 FR 20665) and direct final 
(74 FR 20599) approval of this request. EPA received adverse comments 
on this action and withdrew the direct final approval on June 17, 2009 
(74 FR 28616).

II. What Comments Did We Receive on the Proposed Action?

    EPA received one comment letter with two comments from Valley 
Watch, Inc.
    Comment: Permit terms of five years are sometimes too long to 
account for changes in technology or other circumstances that make some 
conditions obsolete fairly quickly. Extending those terms will have a 
negative impact on the health of Valley Watch members and is, in 
general, bad public policy.
    Response: Sources must comply with all applicable requirements of 
the Act regardless of the length of a FESOP's term or the timing of its 
issuance. FESOPs generally contain limits on the operations of the 
plant, e.g., materials used and hours of operation, which effectively 
restrict the source's potential to emit. See 54 FR 27281 (June 28, 
1989). An approvable FESOP program such as Indiana's requires the 
permits to undergo public notice and be subject to public comment. A 
FESOP does not impact any previously or newly applicable substantive 
requirements of the Act, such as new maximum achievable control 
technology standards under Section 112. Such provisions remain 
independently enforceable. Similarly, FESOP holders will still need to 
meet all applicable requirements under the Act, including those related 
to new construction. As such, an extension of FESOP renewal terms from 
five to ten years does not delay the obligation of a source to comply 
with all applicable requirements.
    Comment: Indiana has significantly cut back on its ability to do 
inspections at both FESOP and bigger polluters. IDEM has taken away the 
inspection responsibilities of numerous local government agencies by 
stripping them of their financial and statutory support.
    Response: The length of a FESOP's term does not affect IDEM's 
ability to conduct inspections at sources. The issue raised by the 
commenter is not related to the rulemaking action being addressed in 
this notice.

III. What Action Is EPA Taking?

    EPA is approving the revisions to 326 IAC 2-1.1-9.5 and 326 IAC 2-
8-4 regarding the permit terms for FESOP renewals.

IV. Statutory and Executive Order Reviews

    Under the Act, the Administrator is required to approve a State 
Implementation Plan (SIP) submission that complies with the provisions 
of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described

[[Page 51241]]

in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 action 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 December 7, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 16, 2009.
Bharat Mathur,
Acting Regional Administrator, Region 5.


0
40 CFR part 52 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.

Subpart P--Indiana

0
2. Section 52.770 is amended by adding paragraph (c)(189) to read as 
follows:


Sec.  52.770  Identification of plan.

* * * * *
    (c) * * *
    (189) On December 19, 2007, Indiana submitted modifications to its 
Federally Enforceable State Operating Permits rules as a revision to 
the state implementation plan. The revision extends the maximum permit 
term for renewals of Federally Enforceable State Operating Permits from 
five years to ten years. EPA has determined that this revision is 
approvable under the Clean Air Act.
    (i) Incorporation by reference.
    (A) Indiana Administrative Code Title 326, Article 2: Permit Review 
Rules, sections 2-1.1-9.5, ``General provisions; term of permit'', and 
2-8-4, ``Permit content'', are incorporated by reference. Filed with 
the Publisher of the Indiana Register on November 16, 2007, and became 
effective on December 16, 2007. Published in the Indiana Register on 
December 13, 2007 (20071212-IR-326060487FRA).

[FR Doc. E9-23938 Filed 10-5-09; 8:45 am]
BILLING CODE 6560-50-P