[Federal Register Volume 59, Number 194 (Friday, October 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-24837]
[[Page Unknown]]
[Federal Register: October 7, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IN 40-1-6342A; FRL-5067-4]
Approval and Promulgation of a New Source Review Implementation
Plan; Indiana
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
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SUMMARY: The USEPA is approving the State implementation plan (SIP)
revision submitted by the State of Indiana for the purpose of meeting
requirements of the Clean Air Act (Act), as amended in 1990 (amended
Act), with regard to new source review (NSR) in areas that have not
attained the national ambient air quality standards (NAAQS). This SIP
revision was submitted by the State to satisfy Federal requirements for
an approvable nonattainment area NSR SIP for Indiana. The USEPA is
approving the recodified version of the Indiana permitting rules to
replace those in the existing SIP. The USEPA is also removing
references in the Code of Federal Regulations to the construction ban
imposed in Lake and Porter Counties for failure to have an approved
ozone plan since the Clean Air Act Amendments of 1990 removed this ban.
In the proposed rules section of this Federal Register, USEPA is
proposing approval of and soliciting public comment on this requested
SIP revision. If adverse comments are received on this direct final
rule, USEPA will withdraw this final rule and address the comments
received in a final rule on the related proposed rule which is being
published in the proposed rules section of this Federal Register.
Unless this final rule is withdrawn, no further rulemaking will occur
on this requested SIP revision.
DATES: This final rule will be effective December 6, 1994, unless
adverse comments received by December 6, 1994. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Comments on this rule should be addressed to: J. Elmer
Bortzer, Chief Regulation Development Section, Regulation Development
Branch (5AR-18J), United States Environmental Protection Agency, Region
5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal, USEPA's analysis of it, and other
information are available for inspection during normal business hours
at the following location: United States Environmental Protection
Agency, Region 5, Air and Radiation Division, Regulation Development
Branch, 77 West Jackson Boulevard, Chicago, Illinois 60604.
A copy of the SIP revision is available for inspection at the
following location: Office of Air and Radiation (OAR) Docket and
Information Center (Air Docket 6102), room M1500, United States
Environmental Protection Agency, 401 M Street SW., Washington, DC
20460, (202) 260-7548.
FOR FURTHER INFORMATION CONTACT: Sam Portanova, Environmental Engineer,
Grants Management and Program Analysis Section, Regulation Development
Branch (5AR-18J), United States Environmental Protection Agency, Region
5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Anyone wishing to come to the Region 5 offices should first contact
Mr. Portanova at (312) 886-3189.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for nonattainment NSR are set
out in part D of title I of the Act. The USEPA has issued a ``General
Preamble'' describing its preliminary views on how USEPA intends to
review SIPs and SIP revisions submitted under part D, including those
State submittals containing nonattainment area new source review (NSR)
SIP requirements [see 57 FR 13498 (April 16, 1992) and 57 FR 18070
(April 28, 1992)]. Because USEPA is describing its interpretations here
only in broad terms, the reader should refer to the General Preamble
for a more detailed discussion of the interpretations of part D
advanced in this rule and the supporting rationale.
In this final rule on the Indiana nonattainment NSR SIP, USEPA is
applying its interpretations taking into consideration the specific
factual issues presented.
II. This Action
Section 110(k) of the Act sets out provisions governing USEPA's
action on SIP submittals (see 57 FR 13565-13566). Analysis of State
Submission
1. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
USEPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing.1 Section 110(l) of the Act similarly provides that
each revision to an implementation plan submitted by a State under the
Act must be adopted by such State after reasonable notice and public
hearing.
---------------------------------------------------------------------------
\1\Section 172(c)(7) of the Act provides that plan provisions
for nonattainment areas shall meet the applicable provisions of
section 110(a)(2).
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The USEPA also must determine whether a submittal is complete and
therefore warrants further USEPA review and action (see section
110(k)(1) of the Act and 57 FR 13565). The USEPA's completeness
criteria for SIP submittals are set out at 40 CFR part 51, appendix V
(1991), as amended by 57 FR 42216 (August 26, 1991). The USEPA attempts
to make completeness determinations within 60 days of receiving a
submission. However, a submittal is deemed complete by operation of law
under section 110(b)(1)(B) if a completeness determination is not made
by USEPA within 6 months after receipt of the submission.
The State of Indiana held public hearings on March 22, March 25,
and April 1, 1993, to entertain public comment on the requested NSR SIP
revision. Following the public hearings, the plan was adopted by the
State on July 21, 1993, became effective on December 12, 1993, and was
submitted to USEPA on February 25, 1994, as a requested revision to the
SIP.
The SIP revision was reviewed by USEPA to determine completeness
shortly after its submittal, in accordance with the completeness
criteria referenced above. The submittal was found to be complete on
April 8, 1994, and a letter dated April 8, 1994, was forwarded to the
Governor's designee for SIPs, Timothy J. Method, indicating the
completeness of the submittal and the next steps to be taken in the
review process. In this action, USEPA approves the Indiana
nonattainment new source review SIP submittal, and invites public
comment on the action. At this time USEPA is also approving the
recodified permit rules to replace those in the existing SIP which were
approved as APC 19 at 40 CFR 52.770(c)(24). Since the time of this
approval, Indiana has recodified its air pollution control rules into
Title 326 of the Indiana Administrative Code (326 IAC). As requested by
the State on August 15, 1994, USEPA is approving the incorporation of
recodified rules into the SIP to replace those previously approved as
part of APC 19. This action is intended to make it easier for the
public, the State and USEPA to precisely identify what provisions
covering permits are part of the SIP.
2. General Nonattainment NSR Requirements
The statutory requirements for nonattainment new source review SIPs
and permitting are found at sections 172 and 173 of the Act. The Act
requires States to address a number of nonattainment NSR provisions in
a SIP submittal to meet the requirements of part D of title I of the
Act. What follows is a summary of the requirements and how the Indiana
submittal addresses them. A more detailed analysis is contained in the
Technical Support Document for this rule which is available for
inspection at the Region 5 address listed above.
The Act requires States to submit the following nonattainment NSR
provisions:
a. Provisions to ensure that certain construction bans previously
imposed in States pursuant to section 110(a)(2)(I) are lifted.
The amended Act repealed provisions formerly in section
110(a)(2)(I) which required construction bans in certain nonattainment
areas. A construction ban was imposed in Lake and Porter Counties
pursuant to section 110(a)(2)(I). With some exceptions not applicable
here, the amended Act thus lifted such construction bans, including the
ban in Lake and Porter Counties. This final rule therefore revises the
Code of Federal Regulations to remove references to the construction
ban formerly imposed in Lake and Porter Counties for failure to have an
approvable ozone plan.
b. Provisions, pursuant to section 173(a)(1), to assure that
calculations of emissions offsets are based on the same emissions
baseline used in the demonstration of reasonable further progress. 326
IAC 2-3-3(a)(5) requires emission offsets to result in reasonable
further progress toward attainment of the NAAQS. Also, the definition
of emissions offsets baselines in 326 IAC 2-3-3(b) is consistent with
reasonable further progress.
c. A provision, pursuant to section 173(c)(1), to allow offsets to
be obtained in another nonattainment area if the area has an equal or
higher nonattainment classification and emissions from the other
nonattainment area contribute to a NAAQS violation in the area in which
the source would construct. Indiana has established this provision in
326 IAC 2-3-5.
d. A provision, pursuant to section 173(c)(1), that any emissions
offsets obtained in conjunction with the issuance of a permit to a new
or modified source must be enforceable at the time of permit issuance
and in effect by the time the new or modified source commences
operation. Indiana has established this provision in 326 IAC 2-3-
3(b)(8).
e. A provision, pursuant to section 173(c)(1), to assure that
emissions increases from new or modified sources are offset by real
reductions in actual emissions. Indiana has established this provision
in 326 IAC 2-3-3(a)(5).
f. A provision, pursuant to section 173(c)(2), to prevent emissions
reductions otherwise required by the Act from being credited for
purposes of satisfying part D offset requirements. Indiana has
established this provision in 326 IAC 2-3-3(b)(9).
g. States must establish provisions, pursuant to sections 172(c)(4)
and 173(a)(1)(B), that reflect changes in growth allowances;
specifically, (1) the elimination of existing growth allowances in any
nonattainment area that received a notice prior to the Amendments that
the SIP was substantially inadequate or receives such a notice in the
future; and (2) the restriction of growth allowances to only those
portions of nonattainment areas formally targeted as special zones for
economic development. Indiana does not have any of the above mentioned
growth allowances.
h. A provision, pursuant to section 173(a)(5), that requires an
analysis of alternative sites, sizes, production processes, and
environmental control techniques for proposed sources. This analysis
shall demonstrate that the benefits of the proposed source
significantly outweigh the environmental and social costs imposed as a
result of its location, construction, or modification. This shall be a
prerequisite to issuing any part D permit. Indiana has established this
provision in 326 IAC 2-3-3(a)(4).
i. In accordance with section 173(d), Indiana has committed to
report determinations, from nonattainment new source review permits, to
the RACT/BACT/LAER clearinghouse in the annual Indiana Department of
Environmental Management Air Management Program Workplan.
j. A provision, pursuant to section 173(e), that allows any
existing or modified source that tests rocket engines or motors to use
alternative or innovative means to offset emissions increases from
firing and related cleaning, if four conditions are met: (a) the
proposed modification is for expansion of a facility already permitted
for such purposes, (b) the source has used all available offsets and
all reasonable means to obtain offsets and sufficient offsets are not
available, (c) the testing is essential to national security, and (d)
the source will comply with an alternative measure designed to offset
any emissions increases not directly offset by the source. Indiana has
established this provision in 326 IAC 2-3-3(b)(11).
k. Provisions pursuant to section 819 of the Act that effectively
exempt activities related to stripper wells from the new additional NSR
requirements of new subparts 2, 3, and 4 for particulate matter with an
aerodynamic diameter less than or equal to a nominal 10 micrometers
(PM-10), ozone, or carbon monoxide (CO) nonattainment areas classified
as serious or less and having a population of less than 350,000.
Indiana has not established such provisions. This is acceptable because
there are no stripper well activities in the State of Indiana.
l. Provisions, pursuant to section 328, to assure that sources
located on an outer continental shelf (OCS) and within 25 miles of the
State's seaward boundary, are subject to the same requirements
applicable if the source were located in the corresponding onshore
area. Indiana has not established such provisions. This is acceptable
because Indiana is inland and not located on an OCS.
m. Pursuant to sections 302(z) and 111(a)(3), a definition of
``stationary source'' to include internal combustion engines other than
the newly defined category of ``nonroad engines.'' Indiana has
established a definition consistent with these requirements in 326 IAC
2-3-1(aa).
n. Pursuant to section 415, exemptions from nonattainment NSR
provisions for installation, operation, cessation, or removal of a
qualifying temporary clean coal technology demonstration project. Such
projects must still comply with any applicable SIP and all other
requirements for the attainment and maintenance of NAAQS. Indiana has
established this provision in 326 IAC 2-3-2(i).
o. A provision, pursuant to section 173(a)(3), to assure that
owners or operators of each proposed new or modified major stationary
source demonstrate, as a condition of permit issuance, the compliance
of all other major stationary sources under the same ownership in the
State. Indiana has established this provision in 326 IAC 2-3-3(a)(3).
3. Ozone
Pursuant to section 172(c)(5), SIPs must require permits for the
construction and operation of new or modified major stationary sources.
The statutory permit requirements for ozone nonattainment areas are
generally contained in revised section 173, and in subpart 2 of part D.
These are the minimum requirements that States must include in an
approvable implementation plan. For all classifications of ozone
nonattainment areas and for ozone transport regions, States must adopt
the appropriate major source thresholds and offset ratios. States must
also adopt provisions to ensure that any new or modified major
stationary source of nitrogen oxides (NOX) satisfies the
requirements applicable to any major source of volatile organic
compounds (VOC), unless a special NOX exemption is granted by the
Administrator under the provision of section 182(f). For serious and
severe ozone nonattainment areas, State plans must implement sections
182(c)(6), (7) and (8) with regard to modifications.
For emissions of VOC and NOX in ozone nonattainment areas, the
State of Indiana has established major source thresholds in 326 IAC 2-
3-1(q)(2) and offset ratios in 326 IAC 2-3-3(a)(5)(B) as follows:
------------------------------------------------------------------------
Area Major source
classification threshold Offset ratio NOX provisions
------------------------------------------------------------------------
Marginal.......... 100 tons per year 1.1 to 1......... Included.
Moderate.......... 100 tons per year 1.15 to 1........ Included.
Serious........... 50 tons per year. 1.2 to 1......... Included.
Severe............ 25 tons per year. 1.3 to 1......... Included.
------------------------------------------------------------------------
Indiana does not have an extreme ozone nonattainment area.
In addition, Indiana's plan submittal reflects appropriate
modification provisions in 326 IAC 2-3-1(j), including a de minimis
level of 25 tons for serious and severe ozone nonattainment areas. 326
IAC 2-3-1(j) sets the major modification threshold level (``deminimis
level'') at 25 tons per year (tpy) when the net emissions increase from
the proposed modification is aggregated with all other net emissions
increases from the source over a 5 consecutive calendar year period
prior to, and including, the year of the modification. This meets the
requirements of section 182(c)(6). The registration requirement
exemption levels of 15 pounds per day of VOC and 25 pounds per day of
NOX (326 IAC 2-1-1(b)(2)(B)) are for the purposes of determining
applicability of the registration requirements for new sources and
modifications to existing sources. These exemption levels do not
exclude smaller emissions increases from being counted in the 5 year
aggregated net emissions increase analyses required in serious and
severe ozone nonattainment areas.
4. Carbon Monoxide
The statutory permit requirements for CO nonattainment areas are
generally contained in revised section 173, and in subpart 3 of part D.
These are the minimum requirements that States must include in an
approvable implementation plan. States must adopt the appropriate major
source threshold and offset ratio.
Indiana has established a major source threshold of 100 tpy (in 326
IAC 2-3-1(q)(1)) and an offset ratio of 1 to 1 (in 326 IAC 2-3-
3(a)(5)(A)) for moderate CO nonattainment areas. Indiana does not have
a serious CO nonattainment area.
5. PM-10
The statutory permit requirements for PM-10 nonattainment areas are
generally contained in revised section 173, and in subpart 4 of part D.
These are the minimum requirements that States must include in an
approvable implementation plan. For both classifications of PM-10
nonattainment areas, States must adopt the appropriate major source
threshold, offset ratio, significance level for modifications, and
provisions for PM-10 precursors.
Indiana has established major source thresholds (in 326 IAC 2-3-
1(q)(1)), offset ratios (in 326 IAC 2-3-3(a)(5)(A)), modification
significance levels (in 326 IAC 2-3-1(x)), and PM-10 precursor
provisions as follows:
----------------------------------------------------------------------------------------------------------------
Precursor
Area classification Major source threshold Offset ratio Significance level provisions
----------------------------------------------------------------------------------------------------------------
Moderate............... 100 tpy................ 1 to 1................. 15 tpy................. None.
----------------------------------------------------------------------------------------------------------------
Indiana does not have a serious PM-10 nonattainment area. Also,
Indiana is not required to count PM-10 precursors towards PM-10
emissions. Filter analysis data from ambient monitors in Cook County,
Illinois (the data was collected in 1992) were used to asses the
significance of PM precursors in the Lake County, Indiana PM
nonattainment area. The monitors used are located at the Washington
School and the Bright School in the city of Chicago, Illinois. These
monitors are located approximately .6 and 1.75 miles, respectively,
west the Lake County nonattainment area. Besides the close proximity,
these sites are also appropriate because the source mix in southeast
Chicago closely approximates that of the Lake County nonattainment
area.
The mean sulfate concentration plus the mean nitrate concentration
for the Washington school and Bright school monitors were
13.1g/m\3\ and 14.9g/m\3\ respectively. This compares
to an average annual background PM concentration of 23g/m\3\
in the Lake County nonattainment area. This illustrates the relative
insignificance of the impact of PM precursors, and supports
representing PM precursor impacts as part of the background
concentration.
Further considerations also argue against applying the same control
requirements for precursor sources as for direct emission sources. The
climatology in northwest Indiana is such that precursor emission
control for a particular source would not have a significant effect
until far downwind. In considering the reductions to be achieved by
controlling PM precursors under section 189(e) Congress has indicated
that USEPA should take into account reductions achievable from control
requirements imposed by other sections or titles of the 1990 Clean Air
Act. Title IV of the Clean Air Act mandates significant particulate
precursor emission reductions in Indiana, after which the impacts of
these sources on particulate matter concentrations will be even less
significant.
For these reasons, it is appropriate to conclude that precursors do
not contribute significantly to particulate matter concentrations in
the Lake County nonattainment area. This finding is based on the
current character of the area including, for example, the existing mix
of sources in the area. It is possible, therefore, that future growth
could change the significance of precursors in the area. The USEPA
intends to issue future guidance addressing such potential changes in
the significance of precursor emissions in an area.
6. Sulfur Dioxide
The statutory permit requirements for sulfur dioxide (SO2)
nonattainment areas are generally contained in revised section 173, and
in subpart 5 of part D. These are the minimum requirements that States
must include in an approvable implementation plan. For SO2
nonattainment areas, States must adopt the appropriate major source
threshold, offset ratio, and significance level for modifications.
Indiana has established a major source threshold of 100 tpy (in 326
IAC 2-3-1(q)(1)), an offset ratio of 1 to 1 (in 326 IAC 2-3-
3(a)(5)(A)), and a modification significance level of 40 tpy (in 326
IAC 2-3-1(x)).
7. Lead
The statutory permit requirements for lead nonattainment areas are
generally contained in revised section 173, and in subpart 5 of part D.
These are the minimum requirements that States must include in an
approvable implementation plan. For lead nonattainment areas, States
must adopt the appropriate major source threshold, offset ratio, and
significance level for modifications.
Indiana has established a major source threshold of 25 tpy (in 326
IAC 2-3-1(q)(4)), an offset ratio of 1 to 1 (in 326 IAC 2-3-
3(a)(5)(A)), and a modification significance level of 0.6 tpy (in 326
IAC 2-3-1(x)).
8. Permit Exemption Emission Levels
The Indiana nonattainment rules have exemption levels listed in 326
IAC 2-1-1(b)(2). 326 IAC 2-1-1(b)(2) states that a new source or a
modification to an existing source with emissions above these exemption
levels and below potential emissions of 25 tons per year for any
regulated pollutant shall be registered according to 326 IAC 2-1-2.
Also, 326 IAC 2-1-1(b)(1) establishes exemption levels for requiring
new sources or modifications to existing sources obtain a construction
permit under 326 IAC 2-1-3. The exemption levels are available to
sources for registration applicability purposes. These levels are
applied before any netting calculations. Sources cannot net emissions
increases and decreases and then use net emissions in the exemption
test. These do not affect the provisions for special modifications.
9. Definition of Federally Enforceable
The Indiana 326 IAC regulations do not include a definition of
``federally enforceable''. On July 13, 1994, Pamela Carter, Attorney
General of the State of Indiana, sent a letter to USEPA clarifying
Indiana's interpretation of the definition of federally enforceable.
The letter states that federally enforceable, e.g. as used in 326 IAC
2-3-1, should be interpreted in accordance with the Federal definition
at 40 CFR 51.165(a)(1)(xiv). The USEPA, therefore, interprets
`federally enforceable' as used in the Indiana rules to be defined
according to the Federal definition.
10. Recodification of SIP Approved Regulations
The previous regulations approved into the Indiana SIP establishing
a new source review program were contained in APC-19 and codified at 40
CFR 52.770(c)(24). These regulations provided for a new source review
program pursuant to 40 CFR part 51 subpart I, including both minor and
major new source review. USEPA is approving Indiana's SIP revisions not
only to adopt the changes referenced elsewhere in this notice but also
to recodify the previously approved new source review rules, formerly
in APC-19 and currently in 326 IAC 2, based on a review of the entire
submission, USEPA has determined that the new source review regulations
contained in 326 IAC 2 submitted by the state, including both the rule
changes and the recodification, meet the requirements of part D of
title I of the Act. In addition, these rules are being approved
pursuant to 40 CFR 51 Subpart I, for both major and non-major new
source review except not for PSD requirements in 40 CFR 51.166.
11. Plantwide Source Definition
On October 14, 1981, the USEPA revised the new source review
regulations in 40 CFR Part 51 to give states the option of adopting the
``plantwide'' definition of stationary source which provides that only
physical or operational changes that result in a net increase in
emissions at the entire plant require a NSR permit. For example, if a
plant decreased emissions by the same amount at another piece of
process equipment, then there would be no net increase in emissions at
the plant and therefore, no ``modification'' to the ``source.'' The
plantwide definition is in contrast to the so-called ``dual''
definition [or definition of structure like that in the 1979 offset
ruling (44 FR 3274), which has much the same effect as the dual
definition]. Under the dual definition, the emissions from each
physical or operational change are gauged without regard to reductions
elsewhere at the plant.
In the October 1981 rule, USEPA set forth its rationale for
allowing use of the plantwide definition (46 FR 50766-69). In its view,
allowing use of the plantwide definition was a reasonable accommodation
of the conflicting goals of part D of title I of the Act. The Act
provided for reasonable further progress (RFP) and timely attainment of
National Ambient Air Quality Standards (NAAQS), while also allowing for
maximum state flexibility and economic growth. The USEPA recognized
that the plantwide definition would bring fewer plant modifications
into the nonattainment permitting process, but emphasized that this
generally would not interfere with RFP and timely attainment primarily
because the states under the demands of Part D eventually would have
adequate SIPs in place. For instance, USEPA stated:
Since demonstration of attainment and maintenance of the NAAQS
continues to be required, deletion of the dual definition increases
State flexibility without interfering with timely attainment of the
ambient standards and so is consistent with Part D [46 FR 50767].
USEPA also indicated that under the plantwide definition, new
equipment would still be subjected to any applicable new source
performance standard and that wholly new plants, as well as any
modifications that resulted in a significant net emissions increase,
would still be subject to NSR. Thus, EPA saw no significant
disadvantage in the plantwide definition from the environmental
standpoint, but the advantages from the standpoints of state
flexibility and economic growth. It regarded the plantwide definition
as presenting, at the very worst, environmental risks that were
manageable because of the independent impetus to create adequate Part D
plans.
As a result, EPA ruled that a state wishing to adopt a plantwide
definition generally has complete discretion to do so, and it set only
one restriction on that discretion. If a state had specifically
projected emission reductions from its NSR program as a result of a
dual or similar definition and had relied on those reductions in an
attainment strategy that USEPA later approved, then the state needed to
revise its attainment strategy as necessary to accommodate reduced NSR
permitting under the plantwide definition (46 FR 50767 and 50769).
In 1984, the Supreme Court upheld USEPA's action as a reasonable
accommodation of the conflicting purposes of Part D of Title I of the
Act, and hence, well within USEPA's broad discretion. Chevron, U.S.A.
v. NRDC, 104 S.Ct. 2778 (1984). Specifically, the Court agreed that the
plantwide definition is fully consistent with the Act's goal of
maximizing state flexibility and allowing reasonable economic growth.
Likewise, the Court recognized that USEPA had advanced a reasonable
explanation for its conclusion that the plantwide definition serves the
Act's environmental objectives as well (see 104 S.Ct. at 2792). In this
rule USEPA generally reaffirms the rationales stated in the 1981
rulemaking. Those rationales were left undisturbed by the Supreme Court
decision.
The SIP revision USEPA is approving in this action substitutes a
plantwide definition for a dual definition in Indiana's existing
nonattainment NSR program. In obtaining USEPA approval of its original
part D SIP, Indiana did not rely on any emission reductions from the
operation of its existing NSR program. Also, Indiana uses a plantwide
definition of source. A July 22, 1987 letter from Timothy J. Method,
then Acting Assistant Commissioner, Office of Air Management, Steve
Rothblatt then Chief of the Air and Radiation Branch, states Indiana's
rationale for implementing the plantwide definition. The letter further
states that in obtaining USEPA approval of its original part D SIP,
Indiana did not rely on emission reductions from its existing NSR
program. Indiana has nonattainment areas for sulfur dioxide, lead,
ozone, and fine particulate matter. Indiana has submitted several
revisions required by the amended Act prior to attainment of the NAAQS
by the statutory attainment dates, which range from 1994 to 2007 for
the nonattainment areas in Indiana. For example, Indiana has submitted
revisions for VOC and NOX RACT, Stage II vapor recovery, clean
fuel fleets, and 15% VOC reduction, employee commute options vehicle
inspection and maintenance and the 1990 base year ozone emissions
inventory. These revisions have been or will be acted on by USEPA in
subsequent actions.
Indiana's plantwide definition of source is consistent with the NSR
requirements for ozone nonattainment areas in the Clean Air Act
Amendments of 1990. Lake and Porter Counties are classified as a
``severe'' ozone nonattainment area. Therefore, the attainment date for
the area is now 2007 (see section 181(a)), and Indiana must meet an
independent requirement to reduce VOC emissions by fifteen percent in
the first six years after 1990 and three percent per year thereafter
(see section 182(b)(1) and (c)(2)(B)).
While Indiana must account for the impact of its plantwide
definition of source in the attainment and reasonable further progress
demonstrations it submits under the amended Act, it is clear that
Congress anticipated States could use the plantwide definition of
source when devising such plans.
The amended Act includes provisions regulating the application of
the plantwide definition of source, including a special rule for
serious and severe ozone nonattainment areas for determining ``de
minimis'' net increases in VOC emissions from source modifications
(section 182(c)(6)). It is clear that Congress anticipates states will
often continue to employ USEPA's plantwide definition of source in
ozone nonattainment areas (except in extreme areas, see section
182(e)(2)), provided the states can also meet the new reasonable
further progress requirements in the Act. In addition, it is important
to note that the 1990 Amendments' adoption of new future attainment
deadlines has mooted concerns regarding the approvability of a
plantwide source definition where a state has missed prior attainment
deadlines. Congress has given Indiana additional time to submit a
revised SIP to provide for attainment by the revised deadlines. As
described above, Indiana has already begun to meet its obligations
under the 1990 Amendments.
USEPA expects to publish a proposed rule in late 1994 to implement
the changes under the amended Act in the NSR provisions in parts C and
D of title I of the Act. USEPA may refer to the proposed rule as the
most authoritative guidance available regarding the approvability of
the NSR SIP submittals. USEPA expects to take final action to
promulgate a rule to implement the parts C and D changes sometime
during 1995. At that time, USEPA will review the NSR SIPs of all states
to determine whether further SIP revisions are necessary. Prior to
USEPA approval of a State's NSR SIP submission, the State may continue
permitting only in accordance with the new statutory requirements for
permit applications completed after the relevant SIP submittal date
(e.g. November 15, 1992 for ozone nonattainment areas). This policy was
explained in transition guidance memoranda from John Seitz dated March
11, 1991 and September 3, 1992.
As explained in the March 11 memorandum, USEPA does not believe
Congress intended to mandate the more stringent Title I NSR
requirements during the time provided for SIP development. States were
thus allowed to continue to permit consistent with requirements in
their current NSR SIPs during that period, or apply 40 CFR part 51,
appendix S for newly designated areas that did not previously have NSR
SIP requirements.
The September 3 memorandum also addressed the situation where
States did not submit the part D NSR SIP requirements or revisions by
the applicable statutory deadline. For permit applications complete by
the SIP submittal deadline, States may issue final permits under the
prior NSR rules, assuming certain conditions in the September 3
memorandum are met. However, for applications completed after the SIP
submittal deadline, USEPA will consider the source to be in compliance
with the Act only where the source obtains a permit that is consistent
with the substantive new NSR part D provisions in the amended Act from
the State. USEPA believes this guidance continues to apply to
permitting pending final action on NSR SIP submittals.
III. Rulemaking Action
Section 110(k) of the Act sets out provisions governing USEPA's
action on SIP submittals (see 57 FR 13565-66). The USEPA is taking the
following final rulemaking actions.
1. The USEPA is approving the requested SIP revision submitted on
March 7, 1994. The submittal consists of Title 326 IAC 2-1-1, 2-1-2, 2-
1-3, 2-3-1, 2-3-2, 2-3-3, and 2-3-5. The State of Indiana has submitted
a complete plan to implement the new source review provisions of part
D. Each of the program elements mentioned above was properly addressed.
2. The USEPA is also approving the recodified permitting rules to
replace those in the existing SIP which were approved as APC 19 at 40
CFR 52.770(c)(24). The incorporation of the recodified version of these
Indiana rules into the SIP will make it easier for the public, the
State and USEPA to identify precisely what permitting provisions are
part of the SIP. Some confusion surrounding what State rules were part
of the permitting SIP has existed since Indiana recodified its APC
rules into the Title 325 of the Indiana Administrative Code (IAC) and
subsequently into Title 326 IAC. After the effective date of this final
rule all of Indiana's permitting SIP rules will be contained in Title
326 of the IAC.
3. Consistent with section 110(n)(3) of the amended Act the USEPA
is taking this opportunity to remove references in 52.773(i) and
52.777(d) to the sanctions formerly imposed on Lake and Porter Counties
which were lifted by the 1990 Act amendments.
Because USEPA considers these actions to be noncontroversial and
routine, we are approving them without prior proposal. This action will
become effective on December 6, 1994. However, if we receive adverse
comments on these actions by November 7, 1994, then USEPA will publish
a final rule that withdraws the action, and will address the comments
received in the final rule on the requested SIP revision which has been
proposed for approval in the proposed rules section of this Federal
Register. The public comment period will not be extended or reopened.
IV. Executive Order (EO) 12866
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
Nothing in this action should be construed as permitting or
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.
V. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
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, USEPA 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, I certify 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 regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Act forbids USEPA to base its actions concerning SIP's on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct 1976); 42
U.S.C. 7410(a)(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 6, 1994. 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, Intergovernmental relations, New source
review, Nitrogen dioxide, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Dated: August 25, 1994.
Valdas V. Adamkus,
Regional Administrator.
For the reason stated in the preamble, part 52, chapter I, title 40
of the Code of Federal Regulations is amended 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)(94) to read as
follows:
Sec. 52.770 Identification of plan.
* * * * *
(c) * * *
(94) On February 25, 1994, Indiana requested a revision to the
State Implementation Plan (SIP) in the form of amendments to Title 326:
Air Pollution Control Board of the Indiana Administrative Code (326
IAC) 2-1-1 and 2-1-3 which were intended to satisfy the additional new
source review requirements of the Clean Air Act Amendments of 1990. The
USEPA, at this time, is also approving the incorporation of permitting
rules recodified as Article 2. Permit Review Rules of 326 IAC into the
SIP to replace APC 19 which was incorporated into the Indiana SIP at 40
CFR 52.770 (c)(24).
(i) Incorporation by reference.
(A) Amendments to Title 326 IAC 2-1-1, 2-1-2, 2-1-3, 2-3-1, 2-3-2,
2-3-3, and 2-3-5. Filed with the Secretary of State November 12, 1993,
effective December 13, 1993.
(B) Amendments to Title 326 IAC 2-1-4, 2-1-5, 2-1-6, 2-1-7, 2-1-9,
2-1-10, 2-1-11, 2-1-12, 2-1-13, 2-3-4. Filed with the Secretary of
State March 10, 1988, effective April 9, 1988.
3. Section 52.773 is amended by revising paragraph (i) to read as
follows:
Sec. 52.773 Approval status.
* * * * *
(i) The Administrator finds that Indiana's ozone plan for Lake and
Porter Counties, which was required to be submitted by July 1, 1992,
does not satisfy all the requirements of part D, title 1 of the Clean
Air Act and, thus, is disapproved. See Secs. 52.770(c)(69)and
52.770(d). The disapproval does not affect USEPA's approval (or
conditional approval) of individual parts of Indiana's ozone plan and
they remain approved.
* * * * *
4. Section 52.777 is amended by revising paragraph (d) to read as
follows:
Sec. 52.777 Control strategy: Photochemical oxidants (hydrocarbons).
* * * * *
(d) Part D--Disapproval. The 1982 Indiana plan for Lake and Porter
County is disapproved because it does not assure the attainment and
maintenance of the NAAQS there. See Secs. 52.770(c)(69) and 52.773(i).
The disapproval does not affect USEPA's approval (or conditional
approval) of individual parts of Indiana's ozone plan and they remain
approved.
5. Section 52.780 is amended by adding paragraph (h) to read as
follows:
Sec. 52.780 Review of new sources and modifications.
* * * * *
(h) On March 7, 1994, Indiana requested a revision to the State
Implementation Plan (SIP) for New Source Review (NSR) to satisfy the
requirements of the Clean Air Act Amendments of 1990. The Indiana 326
IAC regulations do not include a definition of ``federally
enforceable''. On July 13, 1994, Pamela Carter, Attorney General of the
State of Indiana, sent a letter to USEPA clarifying Indiana's
interpretation of the definition of federally enforceable. The letter
states that federally enforceable, e.g. as used in 326 IAC 2-3-1,
should be interpreted in accordance with the federal definition at 40
CFR 51.165(a)(1)(xiv). The USEPA took the opportunity of rulemaking on
the State's submittal to recodify the permitting SIP to conform to
Title 326 the Indiana Administrative Code.
[FR Doc. 94-24837 Filed 10-6-94; 8:45 am]
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