[Federal Register Volume 71, Number 131 (Monday, July 10, 2006)]
[Proposed Rules]
[Pages 38824-38831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10679]
[[Page 38824]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2004-IN-0006; FRL-8190-9]
Approval and Promulgation of Air Quality Implementation Plans;
Indiana; NSR Reform Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing partial approval of revisions to the
prevention of significant deterioration (PSD) and nonattainment new
source review (NSR) construction permit programs of the State of
Indiana. On December 31, 2002, EPA published revisions to the federal
PSD and nonattainment NSR regulations. These revisions are commonly
referred to as ``NSR Reform'' regulations and became effective on March
3, 2003. These regulatory revisions include provisions for baseline
emissions determinations, actual-to-future actual methodology,
Plantwide Applicability Limits (PAL), Clean Units, and Pollution
Control Projects (PCP).
On June 24, 2005, the United States Court of Appeals for the
District of Columbia Circuit issued its ruling on challenges to the
December 2002 NSR reform revisions. Although the Court did uphold most
of EPA's rules, it vacated both the Clean Unit and the PCP provisions.
In addition, the Court remanded to EPA provision that requires
recordkeeping and reporting for sources that elect to use the actual-
to-projected actual emission test only where there is a reasonable
possibility that a project may result in a significant net emissions
increase. IDEM is seeking partial approval for rules to implement the
NSR Reform provisions that have not been vacated by the June 24, 2005,
court decision. This action affects major stationary sources in Indiana
that are subject to or potentially subject to the PSD or nonattainment
NSR construction permit program.
DATES: Comments must be received on or before August 9, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2004-IN-0006, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: (312) 886-5824.
Mail: Pamela Blakley, Chief, Air Permits Section, (AR-
18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
Hand Delivery: Pamela Blakley, Chief, Air Permits Section,
(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-
2004-IN-0006. 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 e-mail. 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 e-mail comment directly to EPA without going through
www.regulations.gov your e-mail 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. For additional instructions on submitting comments, go to
Section I of the SUPPLEMENTARY INFORMATION section of this document.
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 legal 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), U.S. 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 Should I Consider as I Prepare My Comments for EPA?
II. What Is Being Addressed in This Document?
III. What Are the Changes That EPA Is Approving?
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews
I. What Should I Consider as I Prepare My Comments for EPA?
A. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI). In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
B. Tips for Preparing Your Comments. When submitting comments,
remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--The EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
[[Page 38825]]
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What Is Being Addressed in This Document?
We are proposing to approve revisions to the PSD and nonattainment
NSR construction permit programs of the State of Indiana. EPA granted
full approval to Indiana's nonattainment NSR program on October 7, 1994
(59 FR 51108) and the approval became effective on December 6, 1994.
EPA granted conditional full approval to Indiana's PSD program on March
3, 2003 (68 FR 9892), which became effective on April 2, 2003.
Subsequently, EPA granted final full approval to Indiana's PSD program
on May 20, 2004 (69 FR 29071), which became effective on July 19, 2004.
On December 31, 2002, EPA published revisions to the federal PSD
and nonattainment NSR regulations in 40 CFR Parts 51 and 52 (67 FR
80186). These revisions are commonly referred to as ``NSR Reform''
regulations and became effective on March 3, 2003. These regulatory
revisions include provisions for baseline emissions determinations,
actual-to-future actual methodology, PALs, clean units, and PCPs. As
stated in the December 31, 2002, EPA rulemaking, State and local
permitting agencies must adopt and submit revisions to their part 51
permitting programs implementing the minimum program elements of that
rulemaking no later than January 2, 2006 (67 FR 80240). With this
submittal, Indiana requests approval of program revisions that satisfy
this requirement.
IDEM submitted these regulatory revisions for parallel processing
on March 22, 2004, which was prior to final adoption of the State
rules. Indiana adopted the final rules on June 2, 2004. These rules
were published in the Indiana Register on September 1, 2004. IDEM
submitted a final request for approval of these rules into the State
Implementation Plan (SIP) on September 2, 2004 and amended this request
in an October 5, 2004, letter to EPA. On October 25, 2005, IDEM
submitted a letter to EPA amending this request to exclude action on
the Clean Unit and PCP provisions of the state rule.
III. What Are the Changes That EPA Is Approving?
Rule 1.1. General Provisions
326 2-1.1-7 (Fees)
Indiana has modified the language in 326 IAC 2-1.1-7(3)(D) to add
``comparison of control technology to BACT or LAER for purposes of a
clean unit designation as described in 326 IAC 2-2.2-2 or 326 IAC 2-
3.2-2'' to the existing provision requiring fees for best available
control technology (BACT) or lowest achievable emission rate (LAER)
control technology analyses. The federal rule does not address
requirements on fees that permitting authorities may charge applicants.
However, the fee requirement is consistent with the existing fee
requirement for BACT and LAER analyses and does not add any additional
burdens to sources seeking a BACT or LAER technology comparison for
purposes of qualifying for a clean unit designation.
Indiana has added language in 326 IAC 2-1.1-7(3)(F) to require fees
for establishing a PAL permit. The rule assesses a fee of $40 per ton
of allowable emissions for each PAL pollutant. The federal rule does
not address requirements on fees that permitting authorities may charge
applicants. However, Indiana's PAL permit fee is comparable to EPA's
presumptive fee rate under Title V of the Clean Air Act (the Act),
which is $38.29, according to the September 17, 2004, EPA memorandum
titled ``Calculation of the Part 70 Presumptive Minimum Fee Effective
from September 2004 through August 2005.'' Considering the level of
detail required for a PAL permit and the amount of resources that a
permitting authority may devote to developing a PAL permit, which could
be comparable to that of a Title V permit, a fee similar to that
required under Title V is acceptable.
Rule 2. Prevention of Significant Deterioration Requirements
326 IAC 2-2-1 (Definitions)
Actual Emissions
Indiana has revised the definition of ``actual emissions'' in 326
IAC 2-2-1(b) to add the term ``regulated NSR pollutant'' (see
definition below), to revise the language to specify the time frame as
a ``consecutive twenty-four (24) month period,'' and to add language
stating that this definition does not apply for calculating a
significant emissions increase or for establishing a PAL. The revised
definition of ``actual emissions'' is consistent with the definition in
40 CFR 51.166(b)(21).
Baseline Actual Emissions
Indiana has established the definition of ``baseline actual
emissions'' in 326 IAC 2-2-1(e). This is consistent with the definition
of ``baseline actual emissions'' in 40 CFR 51.166(b)(47).
Best Available Control Technology
Indiana has modified the definition of ``best available control
technology'' in 326 IAC 2-2-1(i). The language ``maximum degree of
reduction for each pollutant subject to regulation under the provisions
of the CAA'' has been replaced with ``maximum degree of reduction for
each regulated NSR pollutant.'' This is consistent with the definition
in 40 CFR 51.166(b)(12).
Clean Unit
Indiana has established the definition of ``Clean Unit'' in 326 IAC
2-2-1(m). EPA is not taking action on this definition as it relates to
the Clean Unit provision.
Continuous Emissions Monitoring System
Indiana has established the definition of ``continuous emissions
monitoring system'' in 326 IAC 2-2-1(q). This is consistent with the
definition of ``continuous emissions monitoring system'' in 40 CFR
51.166(b)(43).
Continuous Emissions Rate Monitoring System (CERMS)
Indiana has established the definition of ``continuous emissions
rate monitoring system'' in 326 IAC 2-2-1(r). This is consistent with
the definition of ``continuous emissions rate monitoring system'' in 40
CFR 51.166(b)(46).
Continuous Parameter Monitoring System (CPMS)
Indiana has established the definition of ``continuous parameter
monitoring system'' in 326 IAC 2-2-1(s). This is consistent with the
definition of ``continuous parameter monitoring system'' in 40 CFR
51.166(b)(45).
Emissions Unit
Indiana has modified the definition of ``emissions unit'' in 326
IAC 2-2-1(u). This definition is consistent with the definition of
``emissions unit'' in 40 CFR 51.166(b)(7). Included in both the federal
and State definition is the
[[Page 38826]]
statement that a replacement unit is considered an existing unit under
this definition. However, Indiana's rules do not define ``replacement
unit,'' which is included in the federal rule at 40 CFR 51.166(b)(32).
Indiana sent a letter to EPA on October 4, 2004, clarifying that the
State will follow the federal definition of ``replacement unit,'' and
committing to add that definition to its PSD rules in a future
rulemaking.
Federally Enforceable
Indiana has established the definition of ``federally enforceable''
in 326 IAC 2-2-1(w). This is consistent with the definition of
``federally enforceable'' in 40 CFR 51.166(b)(17).
Lowest Achievable Emission Rate (LAER)
Indiana has established the definition of ``lowest achievable
emission rate'' in 326 IAC 2-2-1(cc). This is consistent with the
definition of ``lowest achievable emission rate'' in 40 CFR
51.165(a)(1)(xiii).
Major Modification
Indiana has revised the definition of ``major modification'' in 326
IAC 2-2-1(ee) to add provisions regarding PCPs and PALs. EPA is not
taking action on 326 IAC 2-2-1(ee)(2)(H) since it is a PCP provision.
The remaining portions of this definition are consistent with the
definition in 40 CFR 51.166(b)(2).
Major Stationary Source
Indiana has modified the definition of ``major stationary source''
in 326 IAC 2-2-1(gg) to replace the phrase ``pollutant subject to
regulation under the CAA'' with ``regulated NSR pollutant.'' This
modification is consistent with the definition in 40 CFR 51.166(b)(1).
Net Emissions Increase
Indiana has modified the definition of ``net emissions increase''
in 326 IAC 2-2-1(jj) to be consistent with the definition in the
federal rule. EPA is not taking action on 326 IAC 2-2-1(jj)(3)(B) since
it is a clean unit provision. EPA is also not taking action on 326 IAC
2-2-1(jj)(6)(D) since it is a Clean Unit and PCP provision. The
remaining portions of this definition are consistent with the
definition in 40 CFR 51.166(b)(3).
Plantwide Applicability Limit (PAL)
Indiana has established the definition of ``plantwide applicability
limit'' in 326 IAC 2-2-1(kk). This is consistent with the definition in
40 CFR 51.166(w)(2)(v).
Pollution Control Project (PCP)
Indiana has modified the definition of ``pollution control
project'' in 326 IAC 2-2-1(ll). EPA is not taking action on this
definition.
Pollution Prevention
Indiana has established the definition of ``pollution prevention''
in 326 IAC 2-2-1(mm). This is consistent with the definition in 40 CFR
51.166(b)(38).
Potential To Emit
Indiana has modified the definition of ``potential to emit'' in 326
IAC 2-2-1(nn) to change the term ``source'' to ``stationary source,''
which is consistent with the definition 40 CFR 51.166(b)(4). Indiana
has also changed the term ``enforceable'' to ``enforceable as a
practical matter.'' Indiana's use of the term ``enforceable'' is
consistent with the decision in Chemical Manufacturers Association v.
EPA, 70 F.3d 637 (D.C. Cir. 1995).
Predictive Emissions Monitoring System (PEMS)
Indiana has established the definition of ``predictive emissions
monitoring system'' in 326 IAC 2-2-1(oo). This is consistent with the
definition in 40 CFR 51.166(b)(44).
Prevention of Significant Deterioration Program
Indiana has established the definition of ``prevention of
significant deterioration program'' in 326 IAC 2-2-1(pp). This is
consistent with the definition in 40 CFR 51.166(b)(42).
Project
Indiana has established the definition of ``project'' in 326 IAC 2-
2-1(qq). This is consistent with the definition in 40 CFR
51.166(b)(51).
Projected Actual Emissions
Indiana has established the definition of ``projected actual
emissions'' in 326 IAC 2-2-1(qq). This is consistent with the
definition in 40 CFR 51.166(b)(51).
Reasonably Available Control Technology (RACT)
Indiana has established the definition of ``reasonably available
control technology'' in 326 IAC 2-2-1(tt). This is consistent with the
definition in 40 CFR 51.100(o).
Regulated NSR Pollutant
Indiana has established the definition of ``regulated NSR
pollutant'' in 326 IAC 2-2-1(uu). This is consistent with the
definition in 40 CFR 51.166(b)(49), with the exception that some
pollutants listed under 326 IAC 2-2-1(xx)(1) are also hazardous air
pollutants (HAPs) listed in section 112(b) of the Act. According to the
preamble to the December 31, 2002, NSR rulemaking (67 FR 80240),
``State and local agencies with an approved PSD program may continue to
regulate the HAP now exempted from federal PSD by section 112(b)(6) if
their PSD regulations provide an independent basis to do so. These
State and local rules remain in effect unless they are revised to
provide similar exemptions.'' Indiana has included these HAP pollutants
in its State PSD rules since prior to the 1990 amendments to the Act,
which added the 112(b) HAP exemption. Therefore, Indiana may continue
regulating these pollutants in its PSD rules.
Significant
Indiana has modified the definition of ``significant'' in 326 IAC
2-2-1(xx) to change the phrase ``pollutant subject to regulation under
the CAA'' to ``regulated NSR pollutant.'' This definition has also been
modified to remove the reference to pollutants listed in Sec. 112(b)
of the Act because, other than pollutants already listed in 326 IAC 2-
2-1(xx), Sec. 112(b) pollutants are exempt from NSR. These changes are
consistent with the definition in 40 CFR 51.166(b)(23).
Significant Emissions Increase
Indiana has established the definition of ``significant emissions
increase'' in 326 IAC 2-2-1(yy). This is consistent with the definition
in 40 CFR 51.166(b)(39).
Stationary Source
Indiana has modified the definition of ``stationary source'' in 326
IAC 2-2-1(zz) to change the phrase ``pollutant subject to regulation
under the CAA'' to ``regulated NSR pollutant.'' This change is
consistent with the definition in 40 CFR 51.166(b)(5).
Minor Revisions to Definitions
Indiana has made changes to the definitions of ``baseline area,''
``baseline concentration,'' ``building, structure, facility, or
installation,'' ``federal land manager,'' ``reactivation of a very
clean coal-fired electric utility steam generating unit,'' and
``repowering'' that are grammatical in nature and do not change the
substance of the definition.
326 IAC 2-2-2 (Applicability)
Indiana has modified 326 IAC 2-2-2 to include applicability
provisions that are consistent with the regulatory language in 40 CFR
51.166(a)(7). EPA is not taking action on 326 IAC 2-2-2(d)(5) since it
is a Clean Unit provision. EPA is also not taking action on 326 IAC 2-
2-2(f) since it is a PCP provision. The remaining portions of 326 IAC
2-2-2 are
[[Page 38827]]
consistent with the requirements in 40 CFR 51.166(a)(7).
326 IAC 2-2-3 (Control Technology Review; Requirements)
Indiana has modified the provision for ``control technology
review'' in 326 IAC 2-2-3 to change the phrase ``pollutant subject to
regulation under the CAA'' to ``regulated NSR pollutant.'' This
modification is consistent with federal rule language.
326 IAC 2-2-4 (Air Quality Analysis; Requirements)
Indiana has modified the air quality analysis requirements language
in 326 IAC 2-2-4(a), 2-2-4(a)(3), 2-2-4(b)(2), 2-2-4(b)(2)(A), and 2-2-
4(b)(2)(B) to include Clean Unit designations for emission units that
have not previously received a major NSR permit (see 326 IAC 2-2.2-2).
EPA is not taking action on these revisions.
326 IAC 2-2-4(a)(1) and 2-2-4(a)(2) have been modified to change
the phrase ``pollutant subject to regulation under the CAA'' to
``regulated NSR pollutant.'' This rule language is consistent with the
federal rule and EPA proposes approval of this revision.
326 IAC 2-2-5 (Air Quality Impact, Requirements)
Indiana has modified the air quality impact requirements language
in 326 IAC 2-2-5(b) to include clean unit designations for emission
units that have not previously received a major NSR permit (see 326 IAC
2-2.2-2). EPA is not taking action on the modification to 326 IAC 2-2-
5(b).
326 IAC 2-2-6 (Increment Consumption; Requirements)
Indiana has made changes to 326 IAC 2-2-6 that are grammatical in
nature and do not change the substance of the definition. EPA proposes
to approve these changes.
326 IAC 2-2-7 (Additional Analysis; Requirements)
Indiana has modified the additional impact analysis requirements
language in 326 IAC 2-2-7 to include the result of Clean Unit
designations. EPA is not taking action on the modification to 326 IAC
2-2-7.
326 IAC 2-2-8 Source Obligation
Indiana has modified 326 IAC 2-2-8 to add provisions for sources
electing to calculate projected actual emissions. EPA is not taking
action the modified rule language in 326 IAC 2-2-8(b) which says
``other than projects at a clean unit or.''
326 IAC 2-2-8(b) specifies recordkeeping and reporting requirements
for sources that elect to use the actual-to-projected actual emission
test and where there is a reasonable possibility that a project may
result in a significant net emissions increase. The ``reasonable
possibility'' clause of this provision of the federal rule has been
remanded to EPA in the June 24, 2005, D.C. Circuit Court ruling. State
of New York et al. v. EPA, 413 F.3d 3 (D.C. Cir. 2005). At this time,
EPA has not responded to the remand order and this provision remains a
part of the federal rule. As IDEM's reasonable possibility clause is
consistent with the existing federal rule and the remaining portions of
326 IAC 2-2-8 are consistent with 40 CFR 51.166(r)(6) and (7), we
propose approval of 326 IAC 2-2-8.
IDEM provided a letter to EPA dated May 9, 2006, stating its intent
to make any revisions to 326 IAC 2-2 necessary to incorporate and
implement federal program revisions should it be necessary for EPA to
take further action on the remand of 40 CFR 51.166(r)(6). In the
letter, IDEM also commits to implementing the reasonable possibility
provision consistent with EPA policy and guidance. EPA proposes to
approve Indiana's rule with the ``reasonable possibility'' provision
since Indiana will be implementing this rule provision in a manner
consistent with EPA regulations, policy, and guidance.
326 IAC 2-2-10 Source Information
Indiana has modified the source information provision in 326 IAC 2-
2-10 to include sources requesting a Clean Unit designation. EPA is not
taking action on the modifications to 326 IAC 2-2-10.
Rule 2.2. Clean Unit Designations in Attainment Areas
As requested by IDEM in its October 25, 2005, letter, EPA is not
taking action on this Clean Unit provision.
Rule 2.3. Pollution Control Project (PCP) Exclusion Procedural
Requirements in Attainment Areas
As requested by IDEM in its October 25, 2005, letter, EPA is not
taking action on this PCP provision.
Rule 2.4. Actuals Plantwide Applicability Limitations in Attainment
Areas
326 IAC 2-2.4-1 Applicability
This section of the Indiana PSD rules regarding PAL applicability
is consistent with 40 CFR 51.166(w)(1). This rule section refers
sources in some source categories to the provisions in 326 IAC 2-2.6. A
separate discussion of 326 IAC 2-2.6 is included in this document.
326 IAC 2-2.4-2 Definitions
This section of the Indiana PSD rules regarding definitions for
PALs is consistent with 40 CFR 51.166(w)(2).
326 IAC 2-2.4-3 Permit Application Requirements
This section of the Indiana PSD rules regarding application
requirements for PALs is consistent with 40 CFR 51.166(w)(3).
326 IAC 2-2.4-4 Establishing PALs; General Requirements
This section of the Indiana PSD rules regarding establishing PALs
is consistent with 40 CFR 51.166(w)(4).
326 IAC 2-2.4-5 Public Participation Requirements for PALs
This section of the Indiana PSD rules regarding public
participation for approval of PALs is generally consistent with 40 CFR
51.166(w)(5). However, the Indiana provision extends to PAL termination
or revocation. Neither of these activities is addressed in the federal
rule, but is provided for in the preamble to the federal rule (67 FR
80209). Therefore, this provision is acceptable. For further discussion
on PAL termination or revocation, see the paragraph below addressing
326 IAC 2-2.4-15.
326 IAC 2-2.4-6 Establishing a 10-Year Actuals PAL Level
This section of the Indiana PSD rules regarding establishing an
actuals PAL level is consistent with 40 CFR 51.166(w)(6).
326 IAC 2-2.4-7 Contents of the PAL Permit
This section of the Indiana PSD rules regarding the required
contents of a PAL permit is consistent with 40 CFR 51.166(w)(7).
326 IAC 2-2.4-8 PAL Effective Period and Reopening of the PAL Permit
This section of the Indiana PSD rules regarding the effective
period of a PAL permit and reopening of a PAL permit is consistent with
40 CFR 51.166(w)(8).
326 IAC 2-2.4-9 Expiration of a PAL
This section of the Indiana PSD rules regarding the expiration of a
PAL permit and the subsequent requirement for a source with an expired
PAL permit is consistent with 40 CFR 51.166(w)(9).
326 IAC 2-2.4-10 Renewal of a PAL
This section of the Indiana PSD rules regarding the renewal of a
PAL permit is consistent with 40 CFR 51.166(w)(10).
[[Page 38828]]
326 IAC 2-2.4-11 Increasing a PAL During the PAL Effective Period
This section of the Indiana PSD rules regarding increases to a PAL
emission limitation is consistent with 40 CFR 51.166(w)(11).
326 IAC 2-2.4-12 Monitoring Requirements for PALs
This section of the Indiana PSD rules regarding monitoring
requirements for PAL sources is consistent with 40 CFR 51.166(w)(12).
326 IAC 2-2.4-13 Recordkeeping Requirements
This section of the Indiana PSD rules regarding recordkeeping
requirements for PAL sources is consistent with 40 CFR 51.166(w)(13).
326 IAC 2-2.4-14 Reporting and Notification Requirements
This section of the Indiana PSD rules regarding reporting and
notification requirements for PAL sources is consistent with 40 CFR
51.166(w)(14).
326 IAC 2-2.4-15 Termination and Revocation of a PAL
This section of the Indiana PSD rules outlines the process for
terminating or revoking a PAL permit. The federal rule in 40 CFR 51.166
does not include specific provisions for termination or revocation. The
preamble to the December 31, 2002, federal NSR rulemaking (67 FR 80209)
states: ``today's final rules do not contain specific provisions
related to the issue of terminating a PAL. Decisions about whether a
PAL can or should be terminated will be handled between you and your
reviewing authority in accordance with the requirements of the
applicable permitting program.'' Indiana's requirements for termination
and revocation are consistent with the requirements for expiration of a
PAL in 326 IAC 2-2.4-9 and 40 CFR 51.166(w)(9).
Rule 2.6. Federal NSR Requirements for Sources Subject to Pub.L. 231-
2003, Section 6, Endangered Industries
IDEM's September 2, 2004 submittal included 326 IAC 2-2.6. However,
this rule had a sunset provision and expired on July 1, 2005. Since
this rule is no longer in effect, EPA is not including it in this
proposed partial approval.
Rule 3. Emission Offset (Nonattainment NSR)
326 IAC 2-3-1 (Definitions)
Actual Emissions
Indiana has revised the definition of ``actual emissions'' in 326
IAC 2-3-1(b) to add the term ``regulated NSR pollutant'' (see
definition below), to revise the language to specify the time frame as
a ``consecutive twenty-four (24) month period,'' and to add language
stating that this definition does not apply for calculating a
significant emissions increase or for establishing a PAL. This revision
to the definition of ``actual emissions'' is consistent with the
definition in 40 CFR 51.165(a)(1)(xii).
Allowable Emissions
Indiana has revised the definition of ``allowable emissions'' in
326 IAC 2-3-1(c) to replace the term ``federally enforceable'' with
``enforceable.'' Indiana's use of the term ``enforceable'' is
consistent with the decision in Chemical Manufacturers Association v.
EPA, 70 F.3d 637 (D.C. Cir. 1995).
Baseline Actual Emissions
Indiana has established the definition of ``baseline actual
emissions'' in 326 IAC 2-3-1(d). This is consistent with the definition
of ``baseline actual emissions'' in 40 CFR 51.165(a)(1)(xxxv).
Best Available Control Technology
Indiana has modified the definition of ``best available control
technology'' in 326 IAC 2-3-1(f). The language ``maximum degree of
reduction for each pollutant subject to regulation under the provisions
of the CAA'' has been replaced with ``maximum degree of reduction for
each regulated NSR pollutant.'' This is consistent with the definition
in 40 CFR 51.165(a)(1)(XL).
Clean Unit
Indiana has established the definition of ``Clean Unit'' in 326 IAC
2-3-1(j). EPA is not taking action on this definition as it relates to
the Clean Unit provision.
Continuous Emissions Monitoring System
Indiana has established the definition of ``continuous emissions
monitoring system'' in 326 IAC 2-3-1(n). This is consistent with the
definition of ``continuous emissions monitoring system'' in 40 CFR
51.165(a)(1)(xxxi).
Continuous Emissions Rate Monitoring System (CERMS)
Indiana has established the definition of ``continuous emissions
rate monitoring system'' in 326 IAC 2-3-1(o). This is consistent with
the definition of ``continuous emissions rate monitoring system'' in 40
CFR 51.165(a)(1)(xxxiv).
Continuous Parameter Monitoring System (CPMS)
Indiana has established the definition of ``continuous parameter
monitoring system'' in 326 IAC 2-3-1(p). This is consistent with the
definition of ``continuous parameter monitoring system'' in 40 CFR
51.165(a)(1)(xxxiii).
Emissions Unit
Indiana has modified the definition of ``emissions unit'' in 326
IAC 2-2-1(s). This is consistent with the definition of ``emissions
unit'' in 40 CFR 51.165(a)(1)(vii). Included in both the federal and
State definitions is the statement that a replacement unit is
considered an existing unit under this definition. However, Indiana's
rules do not define ``replacement unit,'' which is included in the
federal rule at 40 CFR 51.165(a)(1)(xxi). Indiana sent a letter to EPA
on October 4, 2004, clarifying that the State will follow the federal
definition of ``replacement unit,'' and committing to add that
definition to its nonattainment NSR rules in a future rulemaking.
Federal Land Manager
Indiana has established the definition of ``Federal Land Manager''
in 326 IAC 2-3-1(t). This is consistent with the definition of
``federal land manager'' in 40 CFR 51.165(a)(1)(xlii).
Federally Enforceable
Indiana has established the definition of ``federally enforceable''
in 326 IAC 2-3-1(u). This is consistent with the definition of
``federally enforceable'' in 40 CFR 51.165(a)(1)(xiv).
Lowest Achievable Emission Rate (LAER)
Indiana has established the definition of ``lowest achievable
emission rate'' in 326 IAC 2-3-1(y). This is consistent with the
definition of ``lowest achievable emission rate'' in 40 CFR
51.165(a)(1)(xiii).
Major Modification
Indiana has modified the definition of ``major modification'' in
326 IAC 2-3-1(z) to add provisions regarding PCPs and PALs. EPA is not
taking action on 326 IAC 2-3-1(z)(2)(h) since it is a PCP provision.
The remaining portions of this definition are consistent with the
definition in 40 CFR 51.165(a)(1)(v).
Net Emissions Increase
Indiana has modified the definition of ``net emissions increase''
in 326 IAC 2-3-1(dd) to be consistent with the definition in the
federal rule. EPA is not taking action on 326 IAC 2-3-1(dd)(3)(B)(iii)
since it is a clean unit
[[Page 38829]]
provision. EPA is also not taking action on 326 IAC 2-3-
1(dd)(3)(B)(v)(EE) since it is a clean unit and PCP provision. The
remaining portions of this definition are consistent with the
definition in 40 CFR 51.165(a)(1)(vi).
Nonattainment Major New Source Review Program (NSR Program)
Indiana has established the definition of ``nonattainment major new
source review program'' in 326 IAC 2-3-1(ff). This is consistent with
the definition in 40 CFR 51.165(a)(1)(xxx).
Pollution Control Project (PCP)
Indiana has modified the definition of ``pollution control
project'' in 326 IAC 2-3-1(gg). EPA is not taking action on this
definition.
Pollution Prevention
Indiana has established the definition of ``pollution prevention''
in 326 IAC 2-3-1(hh). This is consistent with the definition in 40 CFR
51.165(a)(1)(xxvi).
Potential To Emit
Indiana has modified the definition of ``potential to emit'' in 326
IAC 2-3-1(ii) to change the term ``source'' to ``stationary source,''
which is consistent with the definition in 40 CFR 51.165(a)(1)(iii).
Indiana has also changed the term ``enforceable'' to ``enforceable as a
practical matter.'' Indiana's use of the term ``enforceable'' is
consistent with Chemical Manufacturers Association v. EPA, 70 F.3d 637
(D.C. Cir. 1995).
Predictive Emissions Monitoring System (PEMS)
Indiana has established the definition of ``predictive emissions
monitoring system'' in 326 IAC 2-3-1(jj). This is consistent with the
definition in 40 CFR 51.165(a)(1)(xxxii).
Prevention of Significant Deterioration Permit
Indiana has established the definition of ``prevention of
significant deterioration permit'' in 326 IAC 2-3-1(kk). This is
consistent with the definition in 40 CFR 51.165(a)(1)(xli).
Project
Indiana has established the definition of ``project'' in 326 IAC 2-
3-1(ll). This is consistent with the definition in 40 CFR
51.165(a)(1)(xxxix).
Projected Actual Emissions
Indiana has established the definition of ``projected actual
emissions'' in 326 IAC 2-3-1(mm). This is consistent with the
definition in 40 CFR 51.165(a)(1)(xxviii).
Regulated NSR Pollutant
Indiana has established the definition of ``regulated NSR
pollutant'' in 326 IAC 2-3-1(oo). This is consistent with the
definition in 40 CFR 51.165(a)(1)(xxxvii).
Significant Emissions Increase
Indiana has established the definition of ``significant emissions
increase'' in 326 IAC 2-3-1(rr). This is consistent with the definition
in 40 CFR 51.165(a)(1)(xxvii).
Stationary Source
Indiana has modified the definition of ``stationary source'' in 326
IAC 2-3-1(tt) to change the phrase ``pollutant subject to regulation
under the CAA'' to ``regulated NSR pollutant.'' This change is
consistent with the definition in 40 CFR 51.165(a)(1)(i).
Minor Revisions to Definitions
Indiana has made changes to the definitions of ``begin actual
construction,'' ``building, structure, facility, or installation,''
``construction,'' ``fugitive emissions,'' ``major stationary source,''
``new,'' and ``reasonable further progress,'' that are grammatical in
nature and do not change the substance of the definitions. These
changes are acceptable.
326 IAC 2-3-2 (Applicability)
Indiana has added regulatory language in 326 IAC 2-3-2(c), (k), and
(l) to include applicability provisions that are consistent with the
regulatory language in 40 CFR 51.165(a)(2) for significant emissions
increases, PALs, and PCPs, respectively. Indiana has also made other
changes to 326 IAC 2-3-2 that are grammatical in nature and do not
change the substance of the regulatory provision. EPA is not taking
action on 326 IAC 2-3-2(c)(5) since it is a Clean Unit provision. EPA
is also not taking action on 326 IAC 2-3-2(l) since it is a PCP
provision.
Indiana has added 326 IAC 2-3-2(m) to include applicability
provisions that are consistent with the regulatory language in 40 CFR
51.165(a)(6) and (7) for sources calculating projected actual
emissions. As requested by IDEM in its October 25, 2005, letter, we are
not taking action on the rule language in 326 IAC 2-3-2(m) that says
``other than projects at a clean unit or.''
326 IAC 2-3-2(m) specifies recordkeeping and reporting requirements
for sources that elect to use the actual-to-projected actual emission
test and where there is a reasonable possibility that a project may
result in a significant net emissions increase. This provision of the
federal rule has been remanded to EPA in the June 24, 2005, D.C.
Circuit Court ruling. At this time, EPA has not responded to the remand
order and this provision remains a part of the federal rule. At this
time, EPA has not responded to the remand order and this provision
remains a part of the federal rule. As IDEM's reasonable possibility
clause is consistent with the existing federal rule and the remaining
portions of 326 IAC 2-3-2 are consistent with the federal rule, we
propose approval of 326 IAC 2-3-2.
IDEM provided a letter to EPA dated XXXX, 2006 stating its intent
to make any revisions to 326 IAC 2-3 necessary to incorporate and
implement federal program revisions should it be necessary for EPA to
take further action on the remand of 40 CFR 51.165(a)(6). In the
letter, IDEM also commits to implementing the reasonable possibility
provision consistent with EPA policy and guidance. EPA proposes to
approve Indiana's rule with the ``reasonable possibility'' provision
since Indiana will be implementing this rule provision in a manner
consistent with EPA regulations, policy, and guidance.
326 IAC 2-3-3 (Applicable Requirements)
Indiana has added the following: (1) Regulatory language in 326 IAC
2-3-3(a)(6) regarding calculating offsets that is consistent with 40
CFR 51.165(a)(3)(ii)(J); (2) regulatory language in 326 IAC 2-3-3(a)(8)
regarding compliance responsibility that is consistent with 40 CFR
51.165(a)(5); (3) regulatory language in 326 IAC 2-3-3(b)(5) regarding
offset credits that is consistent with 40 CFR 51.165(a)(3)(ii)(C); (4)
regulatory language in 326 IAC 2-3-3(b)(12) regarding offsets from
clean units or PCPs that is consistent with 40 CFR 51.165(a)(3)(ii)(H);
(5) regulatory language in 326 IAC 2-3-3(b)(13) regarding offsets from
clean units or PCPs that is consistent with 40 CFR 51.165(a)(3)(ii)(I);
and (6) regulatory language in 326 IAC 2-3-3(b)(14) regarding emission
reduction credit that is consistent with 40 CFR 51.165(a)(3)(ii)(G).
Indiana has also made other changes to 326 IAC 2-3-3 that are
grammatical in nature and do not change the substance of the regulatory
provision.
EPA is not taking action on the modifications to 326 IAC 2-3-
3(b)(12) and 326 IAC 2-3-3(b)(13) as they relate to Clean Units and
PCPs. EPA proposes approval of the remaining portions of 326 IAC 2-3-3.
[[Page 38830]]
Rule 3.2. Clean Unit Designations in Nonattainment Areas
As requested by IDEM in its October 25, 2005, letter, EPA is not
taking action on this clean unit provision.
Rule 3.3. Pollution Control Project Exclusion Procedural Requirements
in Nonattainment Areas
As requested by IDEM in its October 25, 2005, letter, EPA is not
taking action on this PCP provision.
Rule 3.4. Actuals Plantwide Applicability Limitations in Nonattainment
Areas
326 IAC 2-3.4-1 Applicability
This section of the Indiana rules regarding PAL applicability is
consistent with 40 CFR 51.165(f)(1).
This rule section refers sources in some source categories to the
provisions in 326 IAC 2-2.6. A separate discussion of 326 IAC 2-2.6 is
included in this document.
326 IAC 2-3.4-2 Definitions
This section of the Indiana rules regarding definitions for PALs is
consistent with 40 CFR 51.165(f)(2).
326 IAC 2-3.4-3 Permit Application Requirements
This section of the Indiana rules regarding application
requirements for PALs is consistent with 40 CFR 51.165(f)(3).
326 IAC 2-3.4-4 Establishing PALs; General Requirements
This section of the Indiana rules regarding establishing PALs is
consistent with 40 CFR 51.165(f)(4).
326 IAC 2-3.4-5 Public Participation Requirements for PALs
This section of the Indiana rules regarding public participation
for approval of PALs is generally consistent with 40 CFR 51.165(f)(5).
However, the Indiana provision extends to PAL termination or
revocation. Neither of these activities is addressed in the federal
rule, but is provided for in the preamble to the federal rule (67 FR
80209). Therefore, this provision is acceptable. For further discussion
on PAL termination or revocation, see the paragraph below addressing
326 IAC 2-3.4-15.
326 IAC 2-3.4-6 Establishing a 10-Year Actuals PAL Level
This section of the Indiana rules regarding establishing an actuals
PAL level is consistent with 40 CFR 51.165(f)(6).
326 IAC 2-3.4-7 Contents of the PAL Permit
This section of the Indiana rules regarding the required contents
of a PAL permit is consistent with 40 CFR 51.165(f)(7).
326 IAC 2-3.4-8 PAL Effective Period and Reopening of the PAL Permit
This section of the Indiana rules regarding the effective period of
a PAL permit and reopening of a PAL permit is consistent with 40 CFR
51.165(f)(8).
326 IAC 2-3.4-9 Expiration of a PAL
This section of the Indiana rules regarding the expiration of a PAL
permit and the subsequent requirement for a source with an expired PAL
permit is consistent with 40 CFR 51.165(f)(9).
326 IAC 2-3.4-10 Renewal of a PAL
This section of the Indiana rules regarding the renewal of a PAL
permit is consistent with 40 CFR 51.165(f)(10).
326 IAC 2-3.4-11 Increasing a PAL During the PAL Effective Period
This section of the Indiana rules regarding increasing a PAL
emission limitation is consistent with 40 CFR 51.165(f)(11).
326 IAC 2-3.4-12 Monitoring Requirements for PALs
This section of the Indiana rules regarding monitoring requirements
for PAL sources is consistent with 40 CFR 51.165(f)(12).
326 IAC 2-3.4-13 Recordkeeping Requirements
This section of the Indiana rules regarding recordkeeping
requirements for PAL sources is consistent with 40 CFR 51.165(f)(13).
326 IAC 2-3.4-14 Reporting and Notification Requirements
This section of the Indiana rules regarding reporting and
notification requirements for PAL sources is consistent with 40 CFR
51.165(f)(14).
326 IAC 2-3.4-15 Termination and Revocation of a PAL
This section of the Indiana nonattainment NSR rules outlines the
process for terminating or revoking a PAL permit. The federal rule in
40 CFR 51.165 does not include specific provisions for termination or
revocation. The preamble to the December 31, 2002, federal NSR
rulemaking (67 FR 80209) states ``today's final rules do not contain
specific provisions related to the issue of terminating a PAL.
Decisions about whether a PAL can or should be terminated will be
handled between you and your reviewing authority in accordance with the
requirements of the applicable permitting program.'' Indiana's
requirements for termination and revocation are consistent with the
requirements for expiration of a PAL in 326 IAC 2-3.4-9 and 40 CFR
51.165(f)(9).
Rule 5.1. Construction of New Sources
326 IAC 2-5.1-4 Transition Procedures
This revision is not related to the New Source Review Reform
regulations and is not being evaluated in comparison to the December
31, 2002, EPA rulemaking. This section of Indiana's permit rules
provides a transition for construction permit sources to also obtain
the proper operating permit. The previous version of this section
allowed a source triggering PSD or nonattainment NSR that is also newly
subject to Title V to obtain a state minor source operating permit in
the interim, provided that the source submitted a Title V permit
application within 12 months of the date of approval to operate. Under
the revised rule, newly-subject Title V sources do not have this option
and must obtain a Title V permit as specified in the Title V
regulations at the time of the PSD or nonattainment NSR permit
issuance. This provision is more stringent than the federal rule in
that it does not provide newly subject sources the option of submitting
a Title V application up to 12 months after construction permit
approval. EPA proposes approval of this rule revision.
Rule 7. Part 70 Permit Program
326 IAC 2-7-11 Administrative Permit Amendments
Indiana has included in this submittal revisions to the
administrative amendment provisions in 326 IAC 2-7-11(a). This
regulation is a part of Indiana's Title V program and is not a part of
the SIP. Therefore, EPA will not take action on this rule revision in
today's proposal.
326 IAC 2-7-12 Permit Modification
Indiana has included in this submittal revisions to the minor
permit modification provisions in 326 IAC 2-7-12. This regulation is a
part of Indiana's Title V program and is not a part of the SIP.
Therefore, EPA will not take action on this rule revision in today's
proposal.
IV. What Action Is EPA Taking Today?
EPA is proposing to partially approve into the Indiana SIP the
revisions to Indiana's PSD and NSR construction permits program
submitted by IDEM on
[[Page 38831]]
September 2, 2004. These revisions meet the minimum program
requirements of the December 31, 2002, EPA NSR Reform rulemaking. As
requested by IDEM's October 25, 2005 letter, EPA is not taking action
on the clean unit and PCP provisions of Indiana's rule.
V. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, September 30, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.
Paperwork Reduction Act
This proposed rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
This proposed action merely proposes to approve state law as
meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law. Accordingly, the Administrator
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Unfunded Mandates Reform Act
Because this rule proposes to approve pre-existing requirements
under state law and does not impose any additional enforceable duty
beyond that required by state law, it 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).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely proposes to approve a state rule
implementing a federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This proposed rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).
National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use
technical standards that are developed or adopted by voluntary
consensus to carry out policy objectives, so long as such standards are
not inconsistent with applicable law or otherwise impractical. In
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the Clean Air Act. Absent a
prior existing requirement for the state to use voluntary consensus
standards, EPA has no authority to disapprove a SIP submission for
failure to use such standards, and it would thus be inconsistent with
applicable law for EPA to use voluntary consensus standards in place of
a program submission that otherwise satisfies the provisions of the
Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA
do not apply.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 15, 2006.
Norman Niedergang,
Acting Regional Administrator, Region 5.
[FR Doc. E6-10679 Filed 7-7-06; 8:45 am]
BILLING CODE 6560-50-P