[Federal Register Volume 78, Number 51 (Friday, March 15, 2013)]
[Rules and Regulations]
[Pages 16412-16414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05955]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2012-0650; FRL-9789-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Consent Decree Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a portion of Indiana's construction permit 
rule for sources subject to the state operating permit program 
regulations at 40 CFR part 70. These provisions authorize the state to 
incorporate terms from Federal consent decrees or Federal district 
court orders into these construction permits. EPA is also approving 
public notice requirements for these permit actions. These rules will 
help streamline the process for making Federal consent decree and 
Federal district court order requirements permanent and Federally 
enforceable.

DATES: This direct final rule will be effective May 14, 2013, unless 
EPA receives adverse comments by April 15, 2013. If adverse comments 
are received, EPA will publish a timely withdrawal of the direct final 
rule in the Federal Register informing the public that the rule will 
not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2012-0650, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (312) 385-5501.
    4. Mail: Genevieve Damico, Chief, Air Permits Section, Air Programs 
Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Genevieve Damico, Chief, Air Permits 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-
2012-0650. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or email. The 
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 email comment 
directly to EPA without going through www.regulations.gov your email 
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.
    Docket: All documents in the docket are listed in the 
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 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 is being addressed in this document?
II. What are the changes that EPA is approving?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews.

I. What is being addressed in this document?

    EPA is approving 326 IAC 2-7-10.5(b) as a revision to Indiana's 
State Implementation Plan (SIP). This provision authorizes Indiana to 
issue construction permits to sources subject to the state operating 
permit program regulations at 40 CFR part 70 (part 70 sources) that 
include requirements from Federal district court orders of adjudication 
and Federal consent decrees. Permits incorporating these requirements 
are issued to sources that

[[Page 16413]]

are subject to Title V of the Clean Air Act (CAA). EPA is also 
approving 326 IAC 2-7-10.5(k), which requires public notice procedures 
for these permit revisions.

II. What are the changes that EPA is approving?

    On August 9, 2012, the Indiana Department of Environmental 
Management (IDEM) submitted a SIP revision request to EPA for revisions 
to the State's part 70 source construction permit rules. If approved, 
the first revision would allow provisions from Federal district court 
orders of adjudication and Federal consent decrees to be incorporated 
into construction permits issued to sources that are subject to title V 
of the CAA. The SIP submittal also included a second rule revision to 
include public notice requirements for these permitting actions. 
Indiana filed these rule revisions on February 6, 2012, and they became 
effective on March 8, 2012.
    The rule revision in 326 IAC 2-7-10.5(b) provides for the 
incorporation of control requirements and emission limits set forth in 
a Federal district court order that adjudicates violations or a Federal 
consent decree that is entered into for the purpose of resolving 
alleged violations of the following: (1) Prevention of significant 
deterioration provisions, (2) nonattainment new source review 
requirements, (3) Section 112(g) and 112(j) of the CAA, or (4) 326 IAC 
20 (state rules for National Emission Standards for Hazardous Air 
Pollutants).
    The rule revision in 326 IAC 2-7-10.5(k) requires that construction 
modification approval proceedings under 326 IAC 2-7-10.5 provide for 
adequate opportunity for public notice established in 326 IAC 2-1.1.6 
and 326 IAC 2-7-17. 326 IAC 2-1.1-6 is a SIP-approved rule that 
contains public notice requirements for sources subject to 326 IAC 
Article 2. 326 IAC 2-7-17 is the portion of Indiana's Federally 
approved title V program that contains public notice requirements for 
title V sources.
    EPA has not previously undertaken rulemaking on 326 IAC 2-7-10.5, 
but has determined that the provisions of 326 IAC 2-7-10.5(b) and (k) 
are severable from other sections of that rule. Therefore, this 
approval does not affect the SIP approval status of the other portions 
of this rule.
    The provision in 326 IAC 2-7-10.5(b) allows IDEM to establish the 
provisions of Federal consent decree and Federal court orders as 
Federally enforceable conditions in state-issued part 70 source 
construction permits, which are permits issued pursuant to programs 
approved under title I of the CAA. Upon their inclusion in the 
construction permits, the consent decree and consent order provisions 
become ``applicable requirements'' under 40 CFR 70.2, and will become 
part of a source's title V permit through a title V permit 
modification. Once incorporated into a construction permit under 326 
IAC 2-7-10.5(b), the Federal consent decree and consent order 
provisions will become permanently enforceable by both IDEM and EPA. It 
should be noted, however, that this rule does not cause these 
requirements to be incorporated directly into the SIP.

III. What action is EPA taking?

    EPA is approving Indiana's part 70 source construction permit rule 
provisions at 326 IAC 2-7-10.5(b) and 326 IAC 2-7-10.5(k). We are 
publishing this action without prior proposal because we view this as a 
noncontroversial amendment and anticipate no adverse comments. However, 
in the proposed rules section of this Federal Register publication, we 
are publishing a separate document that will serve as the proposal to 
approve the state plan if relevant adverse written comments are filed. 
This rule will be effective May 14, 2013 without further notice unless 
we receive relevant adverse written comments by April 15, 2013. If we 
receive such comments, we will withdraw this action before the 
effective date by publishing a subsequent document that will withdraw 
the final action. All public comments received will then be addressed 
in a subsequent final rule based on the proposed action. EPA will not 
institute a second comment period. Any parties interested in commenting 
on this action should do so at this time. Please note that if EPA 
receives adverse comment on an amendment, paragraph, or section of this 
rule and if that provision may be severed from the remainder of the 
rule, EPA may adopt as final those provisions of the rule that are not 
the subject of an adverse comment. If we do not receive any comments, 
this action will be effective May 14, 2013.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. 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 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 CAA; 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

[[Page 16414]]

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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 14, 2013. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. 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: March 4, 2013.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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


0
2. In Sec.  52.770 the table in paragraph (c) is amended by adding a 
new entry in ``Article 2. Permit Review Rules'' for ``Rule 7. Part 70 
Permit Program'' in numerical order to read as follows:


Sec.  52.770  Identification of plan.

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    (c) * * *

                                                            EPA-Approved Indiana Regulations
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                                                                      Indiana  effective
          Indiana citation                       Subject                     date                EPA approval date                    Notes
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                                                             Article 2. Permit Review Rules
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                                                                      * * * * * * *
Rule 7. Part 70 Permit Program:
    2-7-10.5........................  Part 70 permits; source       03/7/2012               3/15/2013, [INSERT PAGE      (b) and (k) only.
                                       modifications.                                       NUMBER WHERE THE...........
                                                                                            DOCUMENT BEGINS]...........
 
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[FR Doc. 2013-05955 Filed 3-14-13; 8:45 am]
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