[Federal Register Volume 79, Number 12 (Friday, January 17, 2014)]
[Rules and Regulations]
[Pages 3120-3123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00751]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2012-0650; FRL-9905-54-Region 5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
portion of Indiana's construction permit rule for sources subject to 
the state operating permit program regulations. These provisions 
authorize the state to incorporate terms from Federal consent decrees 
and 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 final rule is effective on February 18, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2012-0650. 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

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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 EPA addressing in this document?
II. What is EPA's response to adverse comments?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is EPA addressing in this document?

    On March 15, 2013, EPA published a direct-final rule approving 326 
IAC 2-7-10.5(b) and 326 IAC 2-7-10.5(k) as revisions to Indiana's State 
Implementation Plan (SIP) (78 FR 16412). This rule revision 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 
that adjudicate violations and Federal consent decrees. Permits 
incorporating these requirements are issued to sources that are subject 
to title V of the Clean Air Act (CAA). This rule revision also requires 
public notice procedures for these permitting actions.
    On the same date, EPA also proposed to approve the revisions (78 FR 
16449). On May 6, 2013, in a separate action, we withdrew the direct 
final rule because we received adverse comments (78 FR 26258). The 
proposed approval remained in effect. Today, we are responding to those 
comments and taking final action to approve Indiana's SIP revision 
request.

II. What is EPA's response to adverse comments?

    EPA received one set of adverse comments on the March 15, 2013, 
proposed approval of this Indiana rule. EPA's response to these 
comments is as follows:
    Comment: Federal consent decrees are not applicable requirements 
under title V and should not be incorporated into title V permits. EPA 
should equivocally state whether or not consent decree requirements are 
title V applicable requirements as there appears to be conflicting 
guidance on this point.
    Response: The title V issue raised by this comment is not directly 
related to this action because this action authorizes Indiana to 
incorporate consent decree terms in construction permits, not title V 
permits. However, if consent decree terms are incorporated into a 
construction permit, there are consequences under title V. The 
definition of ``applicable requirement'' in 40 CFR 70.2 includes 
``[a]ny term or condition of any preconstruction permits issued 
pursuant to regulations approved or promulgated through rulemaking 
under title I of the Act. . . .'' These construction permits are issued 
pursuant to programs approved by EPA under title I of the CAA. Thus, 
once the title I permits are issued, the terms, including terms 
reflecting requirements from Federal district court orders and Federal 
consent decrees, are ``applicable requirements'' under this provision 
of the title V regulations and must be included in the source's title V 
permit. See also 326 IAC 2-7-1(6)).
    Comment: Not all consent decree requirements are permanent and thus 
some should expire at the time of consent decree termination. It should 
also be noted that requirements that become ``permanent'' under title V 
are not really permanent--they can be changed or modified by going 
through a new permit application.
    Response: For the reasons discussed above, the title V issue raised 
by this comment is not directly related to this action. The rule does 
not require the Indiana Department of Environmental Management (IDEM) 
to incorporate all consent decree requirements into construction 
permits, only ``control requirements and emission limitations.'' 
However, some requirements are intended to remain in effect after the 
consent decree terminates. Specifically, some consent decrees require a 
source to establish emission limitations and control requirements on a 
permanent basis (e.g., through a SIP revision or a construction 
permit).
    Comment: Not all consent decree requirements are necessarily 
instances of noncompliance with existing requirements. If some consent 
decree requirements are required to be incorporated into title V 
permits and/or construction permits, the consent decree requirements 
can be included in a permit application as a compliance schedule for 
the alleged non-compliance cited in the consent decree. There is no 
need for this additional authority.
    Response: For the reasons discussed above, the title V issue raised 
by this comment is not directly related to this action. However, once 
the title I permits are issued, the terms are ``applicable 
requirements'' under subparagraph (2) of the definition of ``applicable 
requirement'' in 40 CFR 70.2 and must be included in the source's title 
V permit. Also, the rule does not require IDEM to incorporate all 
consent decree provisions into the construction permits, only those 
relating to control requirements and emission limitations.
    Comment: It is also curious why the authority is limited to Federal 
consent decrees and does not also include state agreed orders.
    Response: The CAA requires SIPs to contain enforceable limitations. 
See Section 110(a)(2)(A). It does not address the Federal 
enforceability of state agreed orders. As such, it is not necessary to 
establish a Federally enforceable requirement pursuant to title I of 
the CAA for state orders.
    Comment: Why is there a need for additional public comment for 
incorporating Federal consent decree requirements into title V permits? 
There is ample time for the public to comment on Federal consent 
decrees after the decree is lodged before it is entered by the court. 
Any requirements that are required to be put into a permit should be 
done as an administrative amendment without any comment by the public 
or EPA. Why create additional un-needed bureaucracy?
    Response: For the reasons discussed above, the title V issue raised 
by this comment is not directly related to this action because this 
action authorizes Indiana to incorporate consent decree terms in 
construction permits, not title V permits. The intent of this rule is 
to lessen the bureaucratic burden on the state with regards to 
implementing consent decree requirements. The method IDEM currently 
uses for establishing consent decree requirements as permanent and 
Federally enforceable is to adopt them as source-specific SIP 
requirements. This process is more resource-intensive and time 
consuming than the state construction permit process provided for in 
326 IAC 2-7-10.5(b).

III. What action is EPA taking?

    EPA is approving Indiana's source construction permit rule 
provisions applicable to Part 70 sources at 326 IAC 2-7-10.5(b) and 326 
IAC 2-7-10.5(k). These provisions authorize the state to incorporate 
terms from Federal consent decrees or Federal district court orders

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into these construction permits and provide a public notice requirement 
for these actions.

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 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 March 18, 2014. 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 Subject 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: January 2, 2014.
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
        Indiana citation                Subject           effective      EPA approval date          Notes
                                                            date
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                                         Article 2. Permit Review Rules
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                                                  * * * * * * *
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                                         Rule 7. Part 70 Permit Program
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2-7-10.5.......................  Part 70 permits;           03/7/2012  01/17/2014, [INSERT   (b) and
                                  source                                PAGE NUMBER WHERE    (k) only.
                                  modifications.                        THE DOCUMENT
                                                                        BEGINS].
 
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[FR Doc. 2014-00751 Filed 1-16-14; 8:45 am]
BILLING CODE 6560-50-P