[Federal Register Volume 87, Number 12 (Wednesday, January 19, 2022)]
[Proposed Rules]
[Pages 2731-2735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00467]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R05-OAR-2008-0138; EPA-R05-OAR-2011-0827; FRL-9397-01-R5]


Air Plan Approval; Indiana, Ohio; Definition of Chemical Process 
Plants Under State Prevention of Significant Deterioration Regulations 
and Operating Permit Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the State Implementation Plan (SIP) for Indiana 
and revisions to the Operating Permit Program for Ohio. The proposed 
revisions incorporate changes to the definition of ``chemical process 
plants'' under Indiana's Prevention of Significant Deterioration (PSD) 
regulations and under Ohio's operating permit program. EPA is also 
providing an opportunity for public comment on similar changes to the 
definition of ``major stationary source'' in Ohio's PSD regulations 
that were approved into the SIP on October 28, 2014. This opportunity 
is being provided because these revisions were not explicitly discussed 
in the corresponding Federal Register action. The changes to the state 
rules described below are approvable because they are consistent with 
EPA regulations governing state PSD and title V

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programs and will not interfere with any applicable requirement 
concerning attainment and reasonable further progress (as defined in 
section 171 of the Clean Air Act (CAA)), or any other applicable 
requirement of the CAA.

DATES: Comments must be received on or before February 18, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0827 (Indiana) or EPA-R05-OAR-2008-0138 (Ohio) at https://www.regulations.gov, or via email to [email protected]. For 
comments submitted at Regulations.gov, follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. For either manner of submission, EPA may 
publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). For additional submission methods, please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section. For the full EPA public comment policy, information about CBI 
or multimedia submissions, and general guidance on making effective 
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For information regarding Indiana's 
PSD permit program: Michael Langman, Physical Scientist, Air Permit 
Section, Air Programs Branch (AR-18J), Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 
886-6867, [email protected]. For information regarding Ohio's 
title V operating permit or PSD permit programs: Mari Gonz[aacute]lez, 
Environmental Engineer, Air Permit Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-6175, 
[email protected]. The EPA Region 5 office is open from 8:30 a.m. 
to 4:30 p.m., Monday through Friday, excluding Federal holidays and 
facility closures due to COVID-19.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. What is being addressed in this document?
II. Background
    A. PSD Permitting Thresholds for Chemical Process Plants Prior 
to the 2007 Ethanol Rule
    B. Title V Permitting Thresholds for Chemical Process Plants 
Prior to the 2007 Ethanol Rule
    C. Ethanol Rule
    D. Petitions for Review and Reconsideration of the 2007 Ethanol 
Rule
III. What revisions to the Indiana SIP is EPA proposing to approve?
IV. What revisions are being proposed by EPA in Ohio?
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. What is being addressed in this document?

    EPA is proposing to approve revisions to a SIP submission received 
from Indiana on September 21, 2011. EPA is also proposing to approve 
revisions to the Ohio Title V Operating Permit Program and providing an 
opportunity for the public to provide comments on related revisions to 
Ohio's PSD regulations that were approved on October 28, 2014 (79 FR 
64119). These revisions address changes made to EPA regulations that 
are reflected in EPA's final rule entitled ``Prevention of Significant 
Deterioration, Nonattainment New Source Review (NA NSR), and Title V: 
Treatment of Certain Ethanol Production Facilities Under the `Major 
Emitting Facility' Definition'' (hereinafter referred to as the ``2007 
Ethanol Rule'') as published in the Federal Register on May 1, 2007 (72 
FR 24059). The 2007 Ethanol Rule amended the PSD definition of ``major 
stationary source'' in the Federal PSD regulations (40 CFR 51.166 
paragraphs (b)(1)(i)(a), (b)(1)(iii)(t) and (i)(1)(ii)(t)) to exclude 
certain ethanol facilities from the ``chemical process plant'' source 
category. In doing so, it established the PSD major source threshold 
for ethanol production facilities at 250 tons per year (tpy) rather 
than 100 tpy. The 2007 Ethanol Rule also removes the requirement to 
include fugitive emissions when determining if an ethanol production 
facility is major for PSD and title V permitting.
    On October 21, 2019, EPA responded to a petition for 
reconsideration of the 2007 Ethanol Rule, denying the petition with 
respect to the revisions of the PSD regulations reflected in that rule 
(as described in more detail below). EPA is now proposing to approve 
revisions to Indiana's SIP and Ohio's operating permit program that are 
based on a part of the 2007 Ethanol Rule.

II. Background

A. PSD Permitting Thresholds for Chemical Process Plants Prior to the 
2007 Ethanol Rule

    Under the CAA, there are two potential thresholds for determining 
whether a source is a major emitting facility that is potentially 
subject to the construction permitting requirements under the PSD 
program. One threshold is 100 tpy per pollutant, and the other is 250 
tpy per pollutant. Section 169(1) of the CAA lists twenty-eight source 
categories that qualify as major emitting facilities if their emissions 
exceed the 100 tpy threshold. If the source does not fall within one of 
twenty-eight source categories listed in section 169, then the 250 tpy 
threshold is applicable.
    One of the source categories in the list of twenty-eight source 
categories to which the 100 tpy threshold applies is chemical process 
plants. Since the Standard Industrial Classification (SIC) code for 
chemical process plants includes facilities primarily engaged in 
manufacturing ethanol fuel, the EPA and states had previously 
considered such facilities to be subject to the 100 tpy thresholds.
    As a result of this classification, pursuant to the EPA regulations 
adopted under section 302(j) of the CAA, chemical process plants were 
also required to include fugitive emissions for determining the 
potential emissions of such sources. Thus, prior to promulgation of the 
2007 Ethanol Rule, the classification of fuel and industrial ethanol 
facilities as chemical process plants had the effect of requiring these 
plants to include fugitive emissions of criteria pollutants when 
determining whether their emissions exceed the applicability thresholds 
for the PSD and non-attainment NSR permit programs.

B. Title V Permitting Thresholds for Chemical Process Plants Prior to 
the 2007 Ethanol Rule

    The CAA also establishes requirements for determining applicability 
for the title V operating permit program. All title V major sources 
must obtain a title V permit. Section 501(2) of the CAA defines major 
source for the purposes of the title V program as a major source as 
defined by section 112 of the CAA or a major stationary source as 
defined in section 302 or part D of title I of the CAA. Under the 
general definition of ``major stationary source'' in section 302(j) of 
the CAA, the major source threshold for

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any air pollutant is 100 tons per year. Under the NSR requirements of 
Part D of title I of the CAA, lower thresholds for major sources can 
apply dependent upon the pollutant and the severity of the 
nonattainment classification. Major source thresholds for hazardous air 
pollutants (HAP) under section 112 of the CAA are 10 tpy of a single 
HAP or 25 tpy for any combination of HAPs. A source with emissions that 
exceed one of these thresholds is required to obtain a title V 
operating permit.
    Section 502 of the CAA and EPA regulations provide that sources 
that belong to one of 28 categories listed in 40 CFR 70.2 must include 
fugitive emissions in determining applicability. The list of 28 source 
categories may also be included in approved state operating permit 
regulations.

C. Ethanol Rule

    On May 1, 2007, EPA published the 2007 Ethanol Rule in the Federal 
Register (72 FR 24060). This final rule amended the PSD and NA NSR 
regulations to exclude ethanol manufacturing facilities that produce 
ethanol by natural fermentation processes from the ``chemical process 
plants'' category under the regulatory definition of ``major stationary 
source.''
    This change to the NSR regulations affected the threshold used to 
determine PSD applicability for these ethanol production facilities, 
clarifying that such facilities were subject to the 250 ton per year 
major source threshold. The 2007 Ethanol Rule also changed how fugitive 
emissions are considered for affected ethanol production facilities. 
Because they would no longer be considered as part of the ``chemical 
process plants'' category, ethanol facilities would no longer be 
required to include fugitive emissions when determining major source 
status under PSD, NA NSR, and Title V.

D. Petitions for Review and Reconsideration of the 2007 Ethanol Rule

    On July 2, 2007, the National Resources Defense Council (NRDC) 
petitioned the U.S. Court of Appeals for the D.C. Circuit (D.C. 
Circuit) to review the 2007 Ethanol Rule. On that same day, EPA 
received a petition for administrative reconsideration and request for 
stay of the 2007 Ethanol Rule from NRDC. On March 27, 2008, the EPA 
denied NRDC's 2007 administrative petition for reconsideration.
    On March 2, 2009, EPA received a second petition for 
reconsideration and a request for stay from NRDC. In 2009, NRDC also 
filed a petition for judicial review challenging EPA's March 27, 2008, 
denial of NRDC's 2007 administrative petition in the D.C. Circuit. This 
challenge was consolidated with NRDC's challenge to the 2007 Ethanol 
Rule. In August of 2009, the D.C. Circuit granted a joint motion to 
hold the case in abeyance, and the case has remained in abeyance.
    On October 21, 2019, EPA partially granted and partially denied 
NRDC's 2009 administrative petition for reconsideration. Specifically, 
EPA granted the request for reconsideration with regard to NRDC's claim 
that the 2007 Ethanol Rule did not appropriately address the CAA 
section 193 antibacksliding requirements for nonattainment areas.

III. What revisions to the Indiana SIP is EPA proposing to approve?

    On September 21, 2011, EPA received a request from Indiana to 
revise its SIP. More specifically, Indiana requested EPA to approve its 
PSD rules at 326 Indiana Administrative Code (IAC) 2-2-1 and NA NSR 
program rules at 326 IAC 2-3-2 to exclude ethanol production facilities 
that produce ethanol by natural fermentation from the chemical process 
plant source category.
    In this action, EPA is proposing to approve the revisions to 
Indiana's PSD program at 326 IAC 2-2-1 related to the 2007 Ethanol 
Rule. EPA is taking no action at this time on Indiana's request to 
revise its NA NSR program at 326 IAC 2-3-2. Although Indiana also 
amended its Title V program at 326 IAC 2-7, EPA is not taking action 
with respect to Indiana's Title V operating permit program because 
Indiana did not request such a revision.
    Pursuant to 40 CFR part 51 appendix V section 1.2, Indiana's 
September 2011 SIP submission was deemed complete by operation of law 
on March 21, 2012, six months after receipt of the request. The 
submission includes a formal signed and dated letter requesting 
approval of the revision to Indiana's PSD rules, a copy of the actual 
regulation, evidence showing that the state followed all procedural 
requirements, evidence that public notice was given of the proposed 
change, and certification that public hearings were held. IDEM adopted 
the revised PSD rules on May 4, 2011, after receiving no comments 
during the public comment period. The revised PSD rules became 
effective on August 20, 2011.
    The state rule submitted for approval revised the PSD definition of 
``major stationary source'' at 326 IAC 2-2-1(ff) to exclude certain 
ethanol production facilities that produce ethanol by natural 
fermentation from the chemical process plant source category. As a 
result of this revision, an ethanol production facility is subject to 
the 250 tpy PSD major stationary source threshold and is no longer 
required to consider fugitive emissions when determining its PSD major 
stationary source applicability. The ethanol production plants excluded 
from the chemical process plant source category at 326 IAC 2-2-1(ff) 
are identified by NAICS codes--these codes are the same as those 
identified in the 2007 Ethanol Rule and as identified at 40 CFR 
51.166(b)(1)(i)(a).
    EPA is proposing to approve the 2011 changes to 326 IAC 2-2-1(ff) 
into the Indiana SIP. Because sources in NAICS codes 325193 and 312140 
that produce ethanol by natural fermentation are being excluded from 
the chemical process plant source category, EPA has determined that the 
requested changes to Indiana's PSD rules are consistent with the 
current PSD requirements at 40 CFR 51.166. 40 CFR 51.166(b)(1)(i)(a) 
excludes ethanol production facilities that produce ethanol by natural 
fermentation included in NAICS codes 325193 or 312140 from the chemical 
process plant source category.
    EPA has determined that the proposed revision will not interfere 
with any applicable requirement concerning attainment and reasonable 
further progress, or any other applicable requirement of the CAA as 
required by section 110(l) of the CAA. Our determination is based on an 
analysis of Indiana's ethanol production trends, existing ethanol 
production permit requirements and locations with respect to ambient 
air monitoring, Indiana's statewide emissions inventory, Indiana's air 
quality design value trends, and representative photochemical modeling 
results for ozone and secondary fine particulate (PM2.5) 
formation. Our analysis is included in the docket for this rulemaking.
    Our analysis shows that Indiana's existing ethanol production 
facilities contribute 2% or less of each criteria pollutant when 
compared to statewide facility emissions. Indiana's total ethanol 
production has increased since 2007 but the state's air quality has 
steadily improved in general. Photochemical modeling of hypothetical 
sources representative of ethanol production facilities shows that 
ozone formation as a result of oxides of nitrogen (NOX) and 
volatile organic compounds (VOC) emissions and secondary 
PM2.5 formation as a result of NOX and sulfur 
dioxide (SO2) emissions will not themselves cause or 
contribute

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to a violation of the ozone or PM2.5 National Ambient Air 
Quality Standard (NAAQS). In addition, the applicability of Federal and 
state requirements to ethanol production facilities in Indiana, such as 
New Source Performance Standards at 40 CFR part 60 and National 
Emission Standards for Hazardous Air Pollutants at 40 CFR parts 61 and 
63, will remain unaffected by this action.

IV. What revisions are being proposed by EPA in Ohio?

    On February 7, 2008, EPA received a request from Ohio EPA to revise 
its SIP. This submittal included changes to the definition of ``major 
stationary source'' under Ohio Administrative Code (OAC) chapters 3745-
31-01 and 3745-77-01, which incorporate into Ohio regulations the 
changes EPA made to Federal PSD and title V regulations in the 2007 
Ethanol Rule. The changes to the definition of ``major stationary 
source'' in the PSD regulations in OAC chapter 3745-31-01 were approved 
into the SIP on October 28, 2014, but these changes were not explicitly 
discussed in the final rulemaking action that was published in the 
Federal Register (79 FR 64119). Therefore, the technical support 
document (TSD) that is available as part of this docket was developed 
to demonstrate that the changes which were approved into Ohio's SIP in 
2014 related to the Ethanol Rule and the corresponding title V 
revisions will not interfere with any applicable requirement concerning 
attainment and reasonable further progress or any other applicable CAA 
requirement. In this action, EPA is proposing to approve the title V 
changes in OAC 3745-77-01 relating to the 2007 Ethanol Rule and 
providing an opportunity for public comment on those changes, as well 
as the changes to the PSD program in OAC 3745-31-01 relating to the 
2007 Ethanol Rule that were approved into Ohio's SIP in 2014.
    The changes to the PSD program that EPA approved in 2014 are 
revisions under the definition of ``major stationary source'' for 
stationary sources located in an attainment area that emit or have the 
potential to emit 100 tpy or more of any regulated NSR pollutant. 
Ethanol facilities that produce ethanol through natural fermentation 
were excluded from the definition of ``chemical process plants.''
    EPA has determined that these changes are consistent with the 
current PSD requirements at 40 CFR 51.166 and that the 2014 revisions 
will not interfere with any applicable requirement concerning 
attainment and reasonable further progress, or any other applicable 
requirement of the CAA. This determination is based on EPA's 110(l) 
analysis provided in the accompanying TSD for Ohio which includes 
ethanol production trends in the state, an analysis of air quality 
design value trends, an examination of Ohio's statewide emissions 
inventory, photochemical modeling for ozone and secondary 
PM2.5 formation, maps of existing ethanol facilities and 
ambient air monitors, and existing ethanol facility permit 
requirements. The analysis demonstrates that emissions from ethanol 
production facilities account for less than 1.5% of total point source 
emissions for five criteria pollutants examined in Ohio. While ethanol 
production has steadily increased in Ohio since 2007, in general, air 
quality has improved throughout the state as demonstrated by the 
downward trend in design values for criteria pollutants. Photochemical 
modeling for ozone based on NOX and VOC emissions and 
secondary PM2.5 formation based on NOX and 
SO2 emissions from hypothetical ethanol sources demonstrates 
that that new ethanol sources and major modifications at existing 
sources would not likely cause a violation of the NAAQS. The analysis 
also includes a discussion of existing Federal requirements that limit 
emissions to which Ohio's ethanol facilities are subject.
    The regulations that EPA approved under the PSD program and is 
proposing to approve under Ohio's title V program adopt language that 
is the same as or consistent with the language of EPA's 2007 Ethanol 
Rule. The state regulations that EPA is proposing to approve under the 
title V program similarly exclude production facilities that produce 
ethanol by natural fermentation from the ``chemical process plants'' 
category. These revisions clarify that an ethanol facility need not 
include fugitive emissions when determining major source applicability 
under title V.
    EPA is proposing to approve the revision to the Ohio title V 
Operating Permit Program under the definition of ``Major source'' for a 
major stationary source of air pollutants that directly emits or has 
the potential to emit 100 tpy or more of any pollutants. EPA has 
determined that these changes are consistent with the current 
requirements for title V under 40 CFR part 70.
    Based on the 110(l) analysis provided in the Ohio TSD that is 
available as part of this docket, EPA concludes that the changes which 
were approved into Ohio's PSD SIP in 2014 related to the Ethanol Rule 
and the corresponding title V revisions will not interfere with any 
applicable requirement concerning attainment and reasonable further 
progress or any other applicable CAA requirement.

V. What action is EPA taking?

    EPA is proposing to approve revisions to the Indiana SIP in 40 CFR 
52.770. EPA is also proposing to approve revisions to the Ohio title V 
Operating Permit Program in 40 CFR 70 appendix A, and providing an 
opportunity for public comment on the 2014 revisions to the Ohio PSD 
SIP in 40 CFR 52.1870 related to the 2007 Ethanol Rule. The revisions 
that EPA is proposing to approve change the definition of ``major 
stationary source'' under Indiana's PSD regulations and Ohio's 
Operating Permit Program. EPA is not taking action on changes related 
to NA NSR in this action. This action would approve changes to the 
state regulations that establish that the PSD applicability threshold 
for certain ethanol plants is 250 tpy and remove the requirement to 
include fugitive emissions when determining if an ethanol plant is 
subject to major source requirements under PSD and the title V 
Operating Permit Programs. EPA has determined that these revisions are 
consistent with EPA's PSD and title V regulations and that approval of 
these revisions is consistent with the requirements of CAA section 
110(l) and will not adversely impact air quality.

VI. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference for Indiana rule 326 IAC 2-2-1(ff), effective August 20, 
2011. EPA has made, and will continue to make, these documents 
generally available through www.regulations.gov and at the EPA Region 5 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission and state Title V program submissions that comply with the 
provisions of the CAA and applicable Federal regulations. 42 U.S.C. 
7410(k); 40 CFR 52.02(a); 42 U.S.C. 7661a(d); 40 CFR 70.1(c), 70.4(i). 
Thus, in reviewing SIP submissions and Title V program revision 
submissions, EPA's role is to approve state choices, provided that they 
meet the criteria of

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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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects

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.

40 CFR Part 70

    Environmental protection, Air pollution control, Hazardous 
substances, Incorporation by reference, Intergovernmental relations, 
Reporting and recordkeeping requirements.

    Dated: January 6, 2022.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2022-00467 Filed 1-18-22; 8:45 am]
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