[Federal Register Volume 75, Number 160 (Thursday, August 19, 2010)]
[Proposed Rules]
[Pages 51188-51191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20583]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2006-0716; FRL-9191-3]


Disapproval and Promulgation of Air Quality Implementation Plans; 
Indiana; Addition of Incentive for Regulatory Flexibility for Its 
Environmental Stewardship Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On July 6, 2007, the Indiana Department of Environmental 
Management (IDEM) submitted a request to EPA to amend its State 
Implementation Plan (SIP) to add

[[Page 51189]]

incentives for regulatory flexibility for participants in its 
Environmental Stewardship Program (ESP) and Comprehensive Local 
Environmental Action Network (CLEAN) Community Challenge Program. 
Indiana requested that EPA approve the following for ESP and CLEAN 
members: The incorporation by reference of certain incentives under the 
National Environmental Performance Track (NEPT) Program, monthly 
averaging of volatile organic compound (VOC) coating limits, and the 
processing of pollution prevention projects as minor permit revisions. 
For the reasons discussed below, EPA is proposing to disapprove these 
three incentives.

DATES: Comments must be received on or before September 20, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0716, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (312) 692-2553.
    4. Mail: Steven Rosenthal, Attainment Planning and Maintenance 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Steven Rosenthal, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
Such deliveries are only accepted during the Regional Office normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. The Regional Office official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2006-0716. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.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 http://www.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 Section I of the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://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 Steven Rosenthal at (312) 
886-6052 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental 
Engineer, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6052, 
[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 should I consider as I prepare my comments for EPA?
II. What is the purpose and background for this action?
III. What is EPA's analysis of Indiana's rule amendment?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the purpose and background for this action?

    The ESP is Indiana's voluntary program designed to recognize and 
reward Indiana regulated entities that have met a standard of 
environmental compliance, implemented and maintained an environmental 
management system, and committed to continuous environmental 
improvement. In return for meeting the above criteria, these 
establishments receive program incentives including regulatory 
flexibility, public recognition, and networking opportunities. The 
CLEAN Community Challenge Program is a similar program for local 
Indiana governments.
    Indiana is requesting that EPA approve the following incentives for 
its ESP and CLEAN Community Challenge Programs into its SIP: 
Incorporation by reference of certain provisions under the NEPT 
Program, monthly averaging of volatile organic compound (VOC) coating 
limits, and allowing pollution prevention projects that do not result 
in a net increase in potential emissions of more than certain SIP 
significance levels to be processed as minor permit revisions.

[[Page 51190]]

III. What is EPA's analysis of Indiana's rule amendment?

NEPT Incentives

    Indiana rule 326 IAC 25-2-1 incorporates by reference the 
Performance Track provisions at 40 CFR 63.2, 40 CFR 63.10, and 40 CFR 
63.16. The incentives in these Federal rules are only available to 
members of the NEPT Program. EPA is proposing to disapprove this 
provision because in a May 14, 2009, Federal Register notice (74 FR 
22741), it announced its decision to terminate the Performance Track 
Program, effective as of the date of the May 14, 2009, notice.

Monthly Averaging

    Indiana rule 326 IAC 25-2-3 establishes monthly compliance methods 
for determining VOC emissions in 326 IAC 8-1-2(a)(7). Under such a 
methodology, coatings or inks may exceed their applicable VOC emission 
limits if emissions increases are sufficiently offset by decreases in 
other coatings or inks such that total emissions are below the 
applicable limits. This approach constitutes a relaxation of existing 
emissions limits and is inconsistent with section 110(a) of the Clean 
Air Act. Consequently, EPA has established very narrow and specific 
circumstances under which a longer averaging period than daily would be 
acceptable. See January 20, 1984, memorandum from John R. O'Connor 
titled ``Averaging Times for Compliance with VOC Emission Limits-SIP 
Revision Policy'' and a January 20, 1987, memorandum from G.T. Helms 
titled ``Determination of Economic Feasibility.'' Under these policies, 
daily averaging must be used unless recordkeeping is an insurmountable 
problem, in which case the shortest feasible averaging time should be 
used, not to exceed monthly averaging. The determination of the 
shortest feasible averaging time is made by EPA and cannot be delegated 
to a State. Indiana has not made such a showing, and EPA is, therefore, 
proposing to disapprove this provision.

Pollution Prevention Projects

    As part of the ESP, the State has also submitted for approval 326 
IAC 25-2-4, as it applies to pollution prevention projects, as defined 
in 326 IAC 2-1.1-1(14). This provision would allow pollution prevention 
projects for sources that are not subject to title V of the Clean Air 
Act and that do not result in a net increase in potential emissions 
above the Prevention of Significant Deterioration (PSD)/Nonattainment 
New Source Review (NNSR) significance levels identified in 326 IAC 2-2-
1(xx) to be processed by Indiana as minor permit revisions under the 
State minor operating permit provisions in 326 IAC 2-6.1-6(h) and the 
Federally enforceable operation permit provisions in 326 IAC 2-8-
11.1(e). These pollution control projects would not be subject to 
public notice.
    The existing Indiana SIP-approved minor construction permit rules 
require public notice for modifications with emission increases of 
greater than 25 tons per year (tpy). The proposed public notice 
exemption, however, would be available for projects with net emission 
increases of up to the PSD/NNSR threshold, e.g., 40 tpy of volatile 
organic compounds, 40 tpy of sulfur dioxide, and 100 tpy of carbon 
monoxide. This would represent a relaxation over the existing SIP-
approved minor source public notice requirements for Indiana, and be 
inconsistent with 40 CFR 51.161, which requires public notice for such 
modifications. Indiana has not provided EPA with a justification for 
relaxing existing SIP requirements, nor shown that such revisions would 
only have a de minimis impact. See, e.g., 64 FR 61046-47 (November 9, 
1999). Therefore, EPA is proposing to disapprove this provision.

IV. What action is EPA taking?

    EPA is proposing to disapprove IDEM's request for an amendment to 
the Indiana SIP for incentives for regulatory flexibility for its ESP 
and CLEAN Community Challenge Program. EPA is proposing to disapprove 
the incorporation by reference of Federal incentives for NEPT members 
because EPA has discontinued its NEPT program. EPA is proposing to 
disapprove monthly averaging of VOC coating limits because this would 
constitute a relaxation that could exacerbate high ozone levels and 
contribute to violations of the ozone standard. EPA is proposing to 
disapprove the third incentive, which affects public notice 
requirements for pollution prevention projects, because it relaxes the 
existing SIP-approved public notice requirements and is inconsistent 
with EPA minor new source rule requirements.

V. 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.

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.).

Regulatory Flexibility Act

    This action merely disapproves State law as not 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 disapproves 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).

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 disapproves a State rule, and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act (CAA).

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 (59 
FR 22951, November 9, 2000).

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 disapproves a State rule.

[[Page 51191]]

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

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' 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).

National Technology Transfer Advancement Act

    In reviewing State submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the CAA. 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 State submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a State 
submission, to use VCS in place of a State submission that otherwise 
satisfies the provisions of the CAA. 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: August 6, 2010.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2010-20583 Filed 8-18-10; 8:45 am]
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