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Notice of Deficiency for Clean Air Act Operating Permit Program
in Indiana
[Federal Register: December 11, 2001 (Volume 66, Number 238)]
[Notices]
[Page 64039-64041]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de01-68]
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ENVIRONMENTAL PROTECTION AGENCY
[AD-FRL-7115-2]
Notice of Deficiency for Clean Air Act Operating Permit Program
in Indiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of deficiency.
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SUMMARY: Pursuant to its authority at 40 CFR 70.10, EPA is publishing
this Notice of Deficiency (NOD) for the State of Indiana's Clean Air
Act title V operating permit program. The NOD is based upon EPA's
finding that several state requirements do not meet the minimum federal
requirements of 40 CFR part 70 and the Act for program approval.
Publication of this document is a prerequisite for withdrawal of
Indiana's title V program approval, but EPA is not withdrawing the
program through this action.
EFFECTIVE DATE: November 30, 2001. Because this NOD is an adjudication
and not a final rule, the Administrative Procedure Act's 30-day
deferral of the effective date of a rule does not apply.
FOR FURTHER INFORMATION CONTACT: Sam Portanova, EPA Region 5 (AR-18J),
77 W. Jackson Boulevard, Chicago, Illinois 60604, Telephone Number:
(312) 886-3189, E-mail Address: portanova.sam@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On May 22, 2000, EPA promulgated a rulemaking that extended the
interim approval period of 86 operating permits programs until December
1, 2001 (65 FR 32035). Sierra Club and the New York Public Interest
Research Group challenged the action. In settling the litigation, EPA
agreed to publish a document in the Federal Register, giving the public
the opportunity to identify and bring to EPA's attention alleged
deficiencies in title V programs. EPA published that document on
December 11, 2000. 65 FR 77376.
As stated in the Federal Register document published on December
11, 2000 (65 FR 77376), EPA is responding by December 1, 2001 to timely
public comments on programs that have obtained interim approval; and by
April 1, 2002 to timely comments on fully approved programs. The EPA is
publishing a NOD if the Agency determines that a deficiency exists, and
is notifying the commenter in writing to explain the reasons for
determining that other issues do not constitute a deficiency in the
Indiana title V program. The EPA received two timely comment letters
pertaining to the Indiana title V program. In reviewing the commenters'
concerns, EPA determined that one commenter did identify deficiencies
in Indiana's title V operating permit program.
II. Description of Action
EPA recognizes that the Indiana Department of Environmental
Management (IDEM) has made an expeditious effort to correct the
regulatory deficiencies identified by the commenter. These Indiana
regulatory revisions, however, will not become effective until after
December 1, 2001. Therefore, the EPA is publishing a NOD for Indiana's
Clean Air Act (Act) title V program. This document is being published
to satisfy 40 CFR 70.10(b)(1), which provides that EPA shall publish in
the Federal Register a notice of any determination that a state's title
V permitting program no longer complies with the requirements of 40 CFR
part 70 and the Act. The deficiencies being noticed are listed below.
Because of IDEM's efforts to address these deficiencies as
expeditiously as possible, EPA expects these regulatory deficiencies to
be corrected by March 2002.
Under EPA's permitting regulations, citizens may, at any time,
petition EPA regarding alleged deficiencies in state title V operating
permitting programs. In addition, EPA may identify deficiencies on its
own. If, in the future, EPA agrees with a new citizen petition or
otherwise identifies deficiencies, EPA may issue a new NOD.
1. Permit Shield
Under the Indiana title V program, minor permit modifications,
which are not subject to public review, qualify for a title V permit
shield. This is not consistent with 40 CFR 70.7(e)(2)(vi), which
provides that ``the permit shield under 70.6(f) of this part may not
extend to minor permit modifications.'' During EPA's original review of
Indiana's title V program, which resulted in granting interim approval
on November 14, 1995, the Indiana regulations required minor
modifications to be subject to public review equivalent to that
required by 40 CFR 70.6, 70.7 and 70.8, and allowed such modifications
to qualify for a permit shield. In reviewing that original regulation,
EPA determined that the permit shield was acceptable in this situation
because of the availability of public review. Subsequent to the
November 14, 1995, interim approval, Indiana modified its regulations
to remove the public notice requirement from the minor modification
provision. However, the state did not remove the permit shield
provision. Because Indiana's rules allow for a permit shield for these
minor modifications, the state's program does not meet the program
approval requirements of title V and 40 CFR part 70. Indiana is in the
process of correcting this provision to re-instate the public review
requirements for minor modifications. Indiana will revise 326 IAC 2-7-
12(b)(4) of the state regulations to require that minor permit
modifications go through public review.
[[Page 64040]]
2. Compliance Certification With Alternative or Streamlined Limits
Indiana rule 326 IAC 2-7-4(c)) allows sources to certify compliance
with alternative or streamlined requirements instead of original
applicable requirements. For the initial compliance certifications
submitted with permit applications, part 70 does not allow sources to
certify compliance with alternative or streamlined requirements instead
of the applicable requirements. EPA's March 5, 1996, memorandum
entitled ``White Paper Number 2 for Improved Implementation of the Part
70 Operating Permits Program'' states that a permitting authority may
combine underlying applicable requirements into one streamlined permit
term provided that the source's compliance with the streamlined term
guarantees that the source is also in compliance with all underlying
applicable requirements. Indiana's regulations currently only require
sources to certify compliance with streamlined terms. Indiana must
revise its regulations to further require sources to certify compliance
with the underlying applicable requirements. We encourage states to use
EPA guidance documents in implementing the title V program. When
applying those guidance documents, however, a state must assure that
its program is consistent with 40 CFR part 70.
Because Indiana's rules allow for compliance certification with
alternative or streamlined limits, the state's program does not meet
the program approval requirements of title V and 40 CFR part 70.
Indiana is in the process of correcting this rule provision. Indiana
will remove language from 326 IAC 2-7-4(c) which allows compliance
certification with alternative or streamlined limits.
3. Supersession
Indiana's construction permits expire upon issuance of a valid
title V permit; therefore, the construction permit conditions do not
exist independently of title V permits. Permit conditions in previously
issued permits must exist independently of title V permits. Allowing
the basis for these conditions to expire could cause Indiana to lose
the authority to include such conditions in renewed title V permits.
Because Indiana's rules do not assure that construction permit
conditions exist independently of title V permits, the state's program
does not meet the program approval requirements of title V and 40 CFR
part 70. Indiana is in the process of revising 326 IAC 2-1.1-9.5 which
will address this deficiency by stating that any condition identified
as having been established in a permit issued pursuant to a State
Implementation Plan-approved permit program will remain in effect even
if the original construction permit expires.
4. Operating Parameter Exceedances
Indiana rule 326 IAC 2-7-5(1)(E) considers an exceedance of a
permit limit and the corresponding operating parameter as only one
violation. This rule provision restricts the state's enforcement
authority to restrain or enjoin and to assess a civil penalty for the
violation of any permit condition as required by 40 CFR 70.11.
Therefore, Indiana's program does not meet the program requirements of
title V and 40 CFR part 70. Indiana is in the process of correcting
this rule provision. Indiana will remove this language from its rules
by deleting paragraph 326 IAC 2-7-5(1)(E).
5. Startup, Shutdown, and Malfunction Exceedances
Indiana rule 326 IAC 2-7-5(1)(F) allows the state to address
emission limit exceedances for startups, shutdowns, and malfunctions on
a case-by-case basis in title V permits. This allows the permitting
authority to establish through the title V permitting process limits
which exceed applicable requirements. Because title V does not give
permitting authorities the authority to establish new emission limits,
Indiana's program does not meet the program approval requirements of
title V and 40 CFR part 70. Indiana is in the process of correcting
this rule provision. Indiana will remove this language from its rules
by deleting paragraph 326 IAC 2-7-5(1)(F).
6. Emission Levels
a. Sulfur Dioxide, Nitrogen Oxides, Carbon Monoxide, Volatile Organic
Compounds, and Lead Exemption Levels
Indiana rule 326 IAC 2-1.1-3(d) allows the state to exempt from the
title V minor or significant modification requirements sulfur dioxide,
nitrogen oxides ( NOX), and volatile organic compound (VOC)
emission increases of up to 10 tons per year and carbon monoxide
emission increases of up to 25 tons per year. In addition, 326 IAC 2-
1.1-3(g) allows the state to exempt from the title V minor or
significant modification requirements lead emissions increases of up to
5 tons per year. Because 40 CFR 70.6(e) does not allow the permitting
authority to create exemptions from the permit modification
requirements, Indiana's program does not meet the program approval
requirements of title V and 40 CFR part 70. Indiana is in the process
of correcting this deficiency. Indiana will remove language from 326
IAC 2-1.1-3(d) and 326 IAC 2-1.1-3(g) which apply these provisions to
title V sources and title V modifications.
b. NOX and VOC Insignificant Activity Threshold
The definition of insignificant activity in the Indiana rule (326
IAC 2-7-1(21)(A)) does not include specific insignificant activity
threshold levels for NOX and VOC. The rule refers to the
limits in 326 IAC 2-1.1-3(d)(1) to establish the insignificant activity
threshold levels for these two pollutants. The threshold levels in this
provision are 10 tons per year for both NOX and VOC. EPA
considers this an unacceptably high threshold for insignificant
activities and, as a result, Indiana's program does not meet the
program approval requirements of title V and 40 CFR part 70. Indiana is
in the process of correcting this deficiency. Indiana will revise 326
IAC 2-7-1(21)(A) to establish a VOC insignificant activity threshold of
3 pounds per hour or 15 pounds per day and a NOX
insignificant activity threshold of 5 pounds per hour or 25 pounds per
day. These threshold levels will be equivalent to the VOC and
NOX thresholds that EPA approved as part of Indiana's
original title V program.
7. Conclusion
Title V provides for the approval of state programs for the
issuance of operating permits that incorporate the applicable
requirements of the Act. To receive title V program approval, a state
permitting authority must submit a program to EPA that meets certain
minimum criteria, and EPA must disapprove a program that fails, or
withdraw an approved program that subsequently fails, to meet these
criteria. 40 CFR 70.4(k) and 70.10(b) and (c) provide that EPA may
withdraw a part 70 program approval, in whole or in part, whenever the
approved program no longer complies with the requirements of part 70
and the permitting authority fails to take corrective action. 40 CFR
70.10(c)(1)(i) lists a number of potential bases for program
withdrawal, including failure of the permitting authority's legal
authority to meet the requirements of 40 CFR part 70.
40 CFR 70.10(b), which sets forth the procedures for program
withdrawal, requires as a prerequisite to withdrawal that EPA
Administrator notify the permitting authority of any finding of
deficiency by publishing a document in
[[Page 64041]]
the Federal Register. Today's document satisfies this requirement and
constitutes a finding of deficiency. According to 40 CFR 70.10(b)(2),
if Indiana has not taken ``significant action to assure adequate
administration and enforcement of the program'' within 90 days after
publication of this notice of deficiency, EPA may withdraw the state
program, apply any of the sanctions specified in section 179(b) of the
Act, or promulgate, administer, and enforce a federal title V program.
40 CFR 70.10(b)(3) provides that, if a state hasn't corrected the
deficiency within 18 months after the date of the finding of deficiency
and issuance of the NOD, EPA will apply the sanctions under section
179(b) of the Act, in accordance with section 179(a) of the Act. In
addition, 40 CFR 70.10(b)(4) provides that, if the state hasn't
corrected the deficiency within 18 months after the date of the finding
of deficiency, EPA will promulgate, administer and enforce a whole or
partial program within 2 years of the date of the finding. The
sanctions will go into effect unless the state has corrected this
deficiency within 18 months after signature of this document.
Since Indiana has made an expeditious effort to correct the
deficiencies outlined in this document and has significantly completed
the rulemaking process to correct these deficiencies, EPA considers the
state to already have taken significant action to assure adequate
administration and enforcement of the program. In fact, EPA expects
Indiana's corrections to the deficiencies outlined in this document to
be completed and in effect within 90 days after publication of this
notice of deficiency.
III. EPA Responses to Citizen Comments
As discussed above, EPA is responding in writing to all timely
comments that citizens submitted pursuant to the settlement agreement.
For all comments not resulting in a NOD, EPA will explain the reasons
why EPA found that a NOD was not warranted. EPA Region 5 will also post
its response letters on the Internet at http://yosemite.epa.gov/r5/
ardcorre.nsf/Title+V+Program+Comments. EPA Region 5 includes the states
of Michigan, Minnesota, Illinois, Indiana, Ohio, and Wisconsin.
IV. Administrative Requirements
Under section 307(b)(1) of the Act, petitions for judicial review
of today's action may be filed in the United States Court of Appeals
for the appropriate circuit within 60 days of December 11, 2001.
(Authority: 42 U.S.C. 7401-7671q.)
Dated: November 30, 2001.
Thomas V. Skinner,
Regional Administrator, Region 5.
[FR Doc. 01-30452 Filed 12-6-01; 3:44 pm]
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