Approval and Promulgation of Implementation Plans; Indiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN68-1-7308a; FRL-5678-5]

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, the Indiana Department of Environmental

Management (IDEM) submitted revisions to its State Implementation Plan

(SIP). EPA made a finding of completeness in a letter dated November

25, 1994. The revisions to the SIP add or revise definitions in 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 revisions to the SIP also revise

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

these SIP revisions because they are in compliance with the Code of

Federal Regulations (CFR) and the Clean Air Act (Act). Elsewhere in

this Federal Register, EPA is proposing approval and soliciting comment

on this direct final action; 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 Unless this direct final rule is withdrawn, no further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 April 21, 1997 unless adverse or

critical comments are received by March 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 revisions to the Indiana SIP on October 25, 1994.

The revisions included rule changes to the State's permit review rules

and adoption of the 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). EPA

has already promulgated its approval of regulations governing federally

enforceable state operating permits and enhanced new source review

rules (60 FR 43099) and the source specific operating agreements (61 FR

14487). The EPA is now proposing to approve the final portion of the

October 25, 1994 SIP submittal which alters some prefatory language and

affects applicability of some rules. The 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. 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

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.

[[Page 7158]]

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 three criteria for determining

applicability of SIP provisions. The first added criteria 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. The second criteria includes, under the regulations, any

source or facility with aggregate emissions greater than or equal to 10

tons per year of any single hazardous air pollutant (HAP) or 25 tons

per year for any combination of HAPs. The third requirement includes

modifications to major sources of HAPs which will increase emissions by

four tons per year of any single HAP or 10 tons per year of any

combination of HAPs. The third requirement also exempts any source

which can demonstrate by written submission that the sum of the

emission increases and decreases of any single HAP resulting from the

modification does not exceed four tons per year. The third

applicability criteria becomes effective only after Indiana's Part 70

program becomes effective.

Exemptions to the applicability regulations have been adopted. The

first category of excluded sources includes 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) HAP levels for maximum

achievable control technology; (3) specific threshold levels adopted

for Lake and Porter Counties; (4) 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 (5) 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

Articles 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

[[Page 7159]]

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, 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 this Federal

Register publication, the EPA is proposing to approve the SIP revision

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

effective on April 21, 1997 unless, by March 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 April 21, 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

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator

for Air and Radiation. 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. section 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. sections 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 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 April 21, 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: December 12, 1996.

Valdas V. Adamkus,

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, 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

affected 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.

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[FR Doc. 97-3865 Filed 2-14-97; 8:45 am]

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