Approval and Promulgation of Implementation Plans; Indiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN68-3; FRL-5852-7]

Approval and Promulgation of Implementation Plans; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On October 25, 1994 and April 29, 1997, the Indiana Department

of Environmental Management (IDEM) submitted proposed revisions to its

State Implementation Plan (SIP). The submission contains revisions to

the Indiana SIP's general provisions (326 IAC 1-1; 326 IAC 1-2), the

applicability criteria of the rule for malfunctions (326 IAC 1-6), and

the applicability criteria for state construction and operating permit

requirements (326 IAC 2-1). The submission also revises Indiana's

construction permit program (326 IAC 2-1) and its ``Permit no defense''

regulation (326 IAC 2-1). With this rule, EPA is approving this SIP

submission because it is consistent with the Clean Air Act and

applicable regulations. EPA has proposed approval and solicited comment

on this direct final action through the proposed rule previously

published in the Federal Register at (62 FR 7193); if adverse comments

are received, EPA will withdraw the direct final rule and address the

comments received in a new final rule. Unless this direct final rule is

withdrawn, no further rulemaking will occur on this requested SIP

revision.

DATES: This action will be effective September 19, 1997 unless adverse

or critical comments are received by August 20, 1997. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: Written comments can be mailed to: J. Elmer Bortzer, Chief,

Regulation Development Section, Regulation Development Branch (AR-18J),

Air and Radiation Division, U.S. Environmental Protection Agency, 77

West Jackson Boulevard, Chicago, Illinois, 60604.

Copies of the SIP revision request are available for inspection at

the following address: (It is recommended that you telephone Mark J.

Palermo at (312) 886-6082, before visiting the Region 5 office.) U.S.

Environmental Protection Agency, Region 5, Air and Radiation Division,

77 West Jackson Boulevard, Chicago, Illinois, 60604.

FOR FURTHER INFORMATION CONTACT: Alvin Choi, EPA (AR-18J), 77 West

Jackson Boulevard, Chicago, Illinois 60604, (312) 886-3507.

SUPPLEMENTARY INFORMATION:

I. Background

IDEM submitted its proposed revisions to the Indiana SIP on October

25, 1994. The submission included changes to the State's permit review

rules and federally enforceable state operating permits program (326

IAC 2-8), source specific operating agreements (326 IAC 2-9), and

enhanced new source review (NSR) rules (326 IAC 2-1-3.2). The October

25, 1994 submission also contained provisions pertaining to Hazardous

Air Pollutants (HAPs), pursuant to Section 112(g) of the Clean Air Act.

EPA made a finding

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of completeness in a letter dated November 25, 1994.

On August 18, 1995, EPA approved the federally enforceable state

operating permit and enhanced new source review regulations (60 FR

43008). On April 12, 1996, EPA approved the source specific operating

agreement rule (61 FR 14487).

On February 18, 1997 (62 FR 7157), EPA approved the remainder of

Indiana's October 25, 1994 submission as a ``direct final action.'' On

that date, EPA also proposed to approve the submission and solicited

comments on the direct final action (62 FR 7193). In response to the

proposal, EPA received comments from two Indiana companies and IDEM

requesting that EPA withhold approval of those subsections relating to

HAPs and Section 112(g) of the Act. These requests were based upon: (1)

The fact that Federal provisions had been promulgated subsequent to

Indiana's rulemaking which obviated the need for the HAP provisions

contained in the Indiana rules, and (2) the contention that HAP-related

provisions should not be addressed as part of a SIP action under

Section 110 of the Act. As a result of the adverse comments, EPA

withdrew the direct final rule on April 9, 1997 (62 FR 17095).

By letter on April 29, 1997, Indiana requested that EPA withdraw

from consideration the following portions of the permitting rules: 326

IAC 2-1-1(b)(1)(G), 326 IAC 2-1-1(b)(1)(H) and 326 IAC 2-1-

1(b)(3)(B)(iii). In addition, Indiana noted that 326 IAC 2-1-

1(b)(3)(B)(v) includes a reference to subsections (b)(1)(G) and

(b)(1)(H). IDEM requested that EPA note in its action that those

citations, which are due to be either modified or eliminated in current

State rulemaking, were not being approved as part of EPA's action. In

light of the above, EPA is approving the following revisions to Title

326 of the Indiana Administrative Code (326 IAC)--Article One: General

Provisions, Rule One: Sections 2 and 3; Rule Two: Sections 2, 4, 12,

33.1, 33.2, 33.5; Rule Six: Section 1. The EPA is also approving

revisions to 326 IAC--Article Two: Permit Review Rules, Rule One:

Sections 1, 3, and 10. EPA is taking no action on the portions of the

rule which Indiana has withdrawn, as identified above. The purpose of

this revision is to update and revise the SIP to reflect statutorily-

mandated changes to the permit programs. The rationale for EPA's

approval is summarized in this rule. A more detailed analysis is set

forth in a technical support document which is available for inspection

at the Region 5 Office listed above.

II. Summary of State Submittal

The following sections of Article One, Rule One have been revised

to include recent amendments to the Act and the CFR.

326 IAC 1-1-2 References to Federal Act: This section was revised

specifically to reference the Clean Air Act Amendments of 1990 because

the SIP incorporated changes required by the 1990 Amendments.

326 IAC 1-1-3 References to the Code of Federal Regulations (CFR):

This section updates the reference to the CFR from the 1989 edition to

the 1992 edition and specifically references the July 21, 1992 Federal

Register with regard to 40 CFR Part 70.

The following sections of Article One have been revised to include

new definitions and revisions to existing regulations.

326 IAC 1-2-2 ``Allowable emissions'' definition: The previous

definition calculated an allowable emission rate by combining the most

stringent of three listed criteria with the maximum rated capacity of

the facility (unless the facility was subject to a limit on the

operating rate or hours of operation, or both). This definition has

been expanded to include potential emissions and daily emission rates

for noncontinuous batch manufacturing operations.

326 IAC 1-2-4 ``Applicable state and federal regulations''

definition: This section has been revised to clarify that this

definition includes rules adopted under 326 IAC by the Air Pollution

Control Board, all regulations included in the CFR by EPA, and specific

requirements established by the Act.

326 IAC 1-2-12 ``Clean Air Act'' definition: This section was

updated to include a reference to the Clean Air Act Amendments of 1990.

The previous definition made only a general reference to the Act.

326 IAC 1-2-33.1 ``Grain elevator'' definition: This new section

was added to define the term used in 326 IAC 2-9-2 (Source specific

restrictions and conditions). A ``Grain elevator'' is defined as ``an

installation at which grains are weighed, cleaned, dried, loaded,

unloaded, and placed in storage.''

326 IAC 1-2-33.2 ``Grain terminal elevator'' definition: This new

section was added to define the term used in 326 IAC 2-1-7.1 (Fees for

registration, construction permits, and operating permits). A ``Grain

terminal elevator'' is defined as any grain elevator which has a

capacity greater than 2,500,000 U.S. bushels certified storage or

10,000,000 U.S. bushels annual grain throughput, which is the total

amount of grain received or shipped by the grain elevator over the

course of a calendar year.

326 IAC 1-6-1 ``Applicability of rule'': The owner or operator of

any facility with the potential to emit at a specified emission rate,

and the owner or operator of a facility with malfunctioning emission

control equipment, either of whose facilities could cause emissions in

excess of stated emission rates, were formerly subject to the

malfunction rule. The revised section revokes the previous

applicability criteria and subjects the owner or operator of any

facility which is required to obtain a permit under 326 IAC 2-1-2

(Registration) or 326 IAC 2-1-4 (State Operating permits) to the

malfunction rule.

The following Sections of Article 2 revise the existing

regulations.

326 IAC 2-1-1 ``Applicability of rule'': This section determines

the applicability of permit and fee requirements for, among other

things, persons proposing to construct or modify sources, including

sources in Lake and Porter Counties. One of the principle revisions to

326 IAC 2-1-1 is the universal replacement of the term ``potential

emissions'' by ``allowable emissions.'' This modification will

presumably ease the State's burden in administering its air permit

program by removing certain smaller sources from required review.

EPA approves this revision to encourage the state's effective

administration of its permit program. EPA notes that Indiana's

regulations regarding Prevention of Significant Deterioration (PSD) and

NSR employ the term ``potential emissions'' in determining the

applicability of those programs, and thus these revisions do not affect

the applicability of those programs to any sources. Correspondence with

the state confirms these conclusions.

A revision to this rule provides that the state operating permit

program (326 IAC 2-1-4) does not apply if the source has an enforceable

operating permit under 326 IAC 2-9. Also, an additional revision

subjects to this rule any person planning to construct or operate grain

terminal elevators.

The revised rules have added a criterion for determining

applicability of SIP provisions. This criterion regulates any

modification which will increase emissions of particulate matter with

an aerodynamic diameter less than or equal to 10 micrometers by 15 tons

per year.

Exemptions to the applicability regulations have been adopted. The

first category of excluded sources includes

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existing sources or sources proposed to be operated, constructed, or

modified, which have emissions of less than the emission limits

specified in the provisions regarding either: (1) Applicability of

registration requirements found at 326 IAC 2-1-1(b)(2) or (2)

applicability of requirements governing the construction permits,

enhanced NSR, operating permits, and fees. The second category exempts

existing sources who seek only changes in a method of operation, a

reconfiguration of existing equipment or other minor physical changes,

or a combination of the above which does not increase emissions in

excess of: (1) Significance levels in PSD limitations and emissions

offsets; (2) specific threshold levels adopted for Lake and Porter

Counties; (3) levels specified in provisions governing the

applicability of regulations for construction permits, enhanced NSR,

operating permits, and fees (not including the general 25 tons per year

criteria); and (4) levels specified for the volatile organic compound

rules. The third category exempts temporary operations and experimental

trials which involve construction, reconstruction, or modification

which meet specific criteria.

326 IAC 2-1-3 Construction permits: This revision eliminates the

need for the submission of plans and specifications to be prepared by a

professional engineer registered to practice in Indiana, with an

application for a construction permit. The applicant, however, is now

required to place a copy of the permit application for public review at

a library in the county where construction is proposed. Finally, the

revision requires any applicant who proposes to construct upon land

which is underdeveloped or for which a valid existing permit has not

been issued, to make a reasonable effort to provide notice to all

owners or occupants of land adjoining the proposed construction site.

326 IAC 2-1-10 Permit no defense: This section states that a permit

which is obtained by a source shall not be used as a defense against a

violation of any regulation. An exception has been added for alleged

violations of applicable requirements for which a permit shield has

been granted according to 326 IAC 2-1-3.2 (Enhanced NSR) and 326 IAC 2-

7-15 (Part 70 permit program; Permit shield).

The EPA is approving the revisions to the sections in 326 IAC

Article 1 and 2. These revisions add definitions which reflect new

regulations added to the title and revise existing regulations which

have been found to be in accordance with the CFR and the Act.

III. Rulemaking Action

Many of the revisions to the General Provisions updated definitions

with respect to the 1990 Clean Air Act Amendments. Revisions were also

in response to the recent addition of the Source Specific Operating

Agreement program. The changes to the Permit Review Rules are

presumably intended to alleviate the permitting burden on IDEM. By

using the ``allowable'' definition and adding exemption regulations in

326 IAC 2-1-1, IDEM will be able to concentrate its resources on

relatively more significant sources. For the reasons stated above, the

EPA approves the plan revisions submitted on October 25, 1994 and April

29, 1997, to incorporate changes to existing regulations and to

accommodate recent revisions to the SIP by adding and updating

regulations.

The EPA is publishing this action without prior proposal because

EPA views this as a noncontroversial revision and anticipates no

adverse comments. However, in a separate document in a previous Federal

Register publication, the EPA has proposed to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective on September 19, 1997 unless, by August 20, 1997, adverse or

critical comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent rulemaking that

will withdraw the final action. All public comments received will be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective on September 19, 1997.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. Each request for revision to the SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the Act

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP

approval does not impose any new requirements, the Administrator

certifies that it does not have a significant impact on any small

entities affected. Moreover, due to the nature of the Federal-State

relationship under the Act, preparation of a flexibility analysis would

constitute Federal inquiry into the economic reasonableness of the

State action. The Clean Air Act forbids EPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. EPA., 427 U.S.

246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must undertake various actions

in association with any proposed or final rule that includes a Federal

mandate that may result in estimated costs to state, local, or tribal

governments in the aggregate; or to the private sector, of $100 million

or more. This Federal action approves pre-existing requirements under

state or local law, and imposes no new requirements. Accordingly, no

additional costs to state, local, or tribal governments, or the private

sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is

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not a major rule as defined by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

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 September 19, 1997. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule 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, Hydrocarbons,

Incorporation by reference, Lead, Particulate matter, Sulfur dioxide,

Volatile organic compounds.

Dated: June 18, 1997.

Michelle D. Jordan,

Acting Regional Administrator.

For the reasons stated in the preamble, part 52, chapter I, title

40 of the Code of Federal Regulations is amended to read as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart P--Indiana

2. Section 52.770 is amended by adding paragraph (c)(109) to read

as follows:

Sec. 52.770 Identification of plan.

* * * * *

(c) * * *

(109) On October 25, 1994, and April 29, 1997, the Indiana

Department of Environmental Management requested a revision to the

Indiana State Implementation Plan in the form of revisions to the

General Provisions and Permit Review Rules intended to update and add

regulations which have been effected by recent SIP revisions, and to

change regulations for streamlining purposes. This revision took the

form of an amendment to Title 326: Air Pollution Control Board of the

Indiana Administrative Code (326 IAC) 1-1 Provisions Applicable

Throughout Title 326, 1-2 Definitions, 1-6 Malfunctions, 2-1

Construction and Operating Permit Requirements.

(i) Incorporation by reference. 326 IAC 1-1-2 and 1-1-3. 326 IAC 1-

2-2, 1-2-4, 1-2-12, 1-2-33.1, and 1-2-33.2. 326 IAC 1-6-1. 326 IAC 2-1-

1, 2-1-3, and 2-1-10. Adopted by the Indiana Air Pollution Control

Board March 10, 1994. Filed with the Secretary of State May 25, 1994.

Effective June 24, 1994. Published at Indiana Register, Volume 17,

Number 10, July 1, 1994.

* * * * *

[FR Doc. 97-19092 Filed 7-18-97; 8:45 am]

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