---------------

IDEM INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

We Protect Hoosiers and Our Environment.

Mitchell £. Daniels. Jr. 100 North Senate Avenue

Governor Indianapolis. Indiana 46204

(317) 232-8603

Thomas W Easterly Toll Free (800) 451-6027

Commissioner www.idem.IN.gov

Susan Hedman

Regional Administrator

U.S. EPA, Region V

77 West Jackson Boulevard

Chicago, Illinois 60604

Dear Ms. Hedman:

July 7, 2011

Re: State Implementation Plan (SIP) Submittal for Indiana

Regarding the Greenhouse Gas Tailoring Rule (LSA # I0-

505); Final Rule Documents

The Indiana Department of Environmental Management (IDEM) submitted a parallel processing

request on December 3, 2010, for amendments to Indiana's Prevention of Significant Deterioration

(PSD) rules at 326 lAC 2-2-1 and 326 lAC 2-2-4 concerning the Title V greenhouse gas tailoring rule.

This rulemaking (LSA # 10-505) printed as a final rule in the Indiana Register with an effective date of

March 16, 20 II.

The following documents are enclosed:

Attachment A: Final Rule. LSA # I0-505(F) - as published on March 16, 20 I I.

Attachment B: Signature page complete with all signatures.

Attachment C: Transcript from public hearing - December I, 20 IO.

IDEM requests that U.S. EPA approve the amendments to the PSD rules at 326 lAC 2-2-1 and

326 lAC 2-2-4 concerning greenhouse gases into the Indiana SIP. If you have any questions regarding

this submittal, please contact Scott Deloney, Air Programs Branch, Office of Air Quality at 317-233-

5694.

Sincerely,

/~ t3 "-"-~ Keith Baugues

Assistant Commissioner

Office of Air Quality

TWE/sb

Attachments: Supporting Documents

cc: John Mooney, U.S. EPA Region V (w/enclosures)

Steve Rosenthal, U.S. EPA Region V (no enclosures)

Scott Deloney, IDEM (no enclosures)

Christine Pedersen, IDEM (no enclosures)

SIP file

Recycled Papel' @ An Equal Opporlllnity Employer Plaut: Recycle 0
A 
Indiana Register

TITLE 326 AIR POLLUTION CONTROL BOARD

Final Rule

LSA Document #10-505(F)

DIGEST

Amends 326 lAC 2 concerning the prevention of significant deterioration and Tille V greenhouse gas tailoring

rule (75 FR 31514, June 3, 2010). Effective 30 days after filing with the Publisher.

HISTORY

Findings and Determination of the Commissioner Pursuant to IC 13-14-9_8: September 1, 2010, Indiana

Register (DIN: 20100901-IR-326100505FDA).

Notice of Hearing: September 1, 2010, Indiana Register (DIN: 201 00901-IR-3261 00505PHA).

Change in Notice of Public Hearing: October 20,2010, Indiana Register (DIN:

20101 020-IR-3261 00505CHA).

Date of Hearing: December 1, 2010.

326 lAC 2-2-1; 326 lAC 2-2-4; 326 lAC 2·7·1

SECTION 1. 326 lAC 2-2-1 IS AMENDED TO READ AS FOLLOWS:

326 lAC 2·2·1 Definitions

Authority: IC 13·14·8; iC 13·17·3

Affected: IC 13·15; IC 13·17

Sec. 1. (a) The definitions in this section apply throughout this rule.

(b) "Actual emissions" means the actual rate of emissions of a regulated new source review (NSR) poliutant

from an emissions unit as determined in accordance with the following:

(1) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which

the unit actually emitted the pollutant during a consecutive twenty-four (24) month period preceding the

particular date and representative of normal source operation. The department shall allow the use of a

different time period upon a determination that it is more representative of normal source operation. Actual

emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials

processed, stored, or combusted during the selected time period.

(2) The department may presume that source-specific allowable emissions for the unit are equivalent to the

actual emissions of the unit.

(3) For any emissions unit that has not begun normal operations on the particular date, actual emissions shall

equal the potential to emit of the unit on that date.

(4) The term shall not apply for calculating a significant emissions increase under section 2(d) of this rule or for

establishing a PAL under 326 lAC 2-2.4. Instead, subsections (e) and (pp) shall appiy for those purposes.

(c) "Adverse impact on visibility" means visibility impairment that interferes with the management, protection,

preservation, or enjoyment of the visitor's visual experience of the federal Class I area as defined in section 13 of

this rule. This determination must be made on a case-by-case basis taking into account the geographic extent,

intensity, duration, frequency, and time of visibility impairment, and how these factors correiate with:

(1) times of visitor use of the federal Class I area; and

(2) the frequency and timing of natural conditions that reduce visibility.

(d) "Allowable emissions" means the emissions rate of a stationary source calculated using the maximum

rated capacity of the source (unless a source is subject to enforceable permit limits that restrict the operating rate

or hours of operation, or both) and the most stringent of the:

(1) applicable standards as set forth in 40 CFR Part 60* and 40 CFR Part 61*;

(2) SIP emissions limitation, including those with a future compliance date; or

(3) emissions rate specified as an enforceable permit condition, including those with a future compliance date.

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(e) "Baseline actual emissions" means the rate of emissions, in tons per year, of a regulated NSR pollutant, as

determined in accordance with the following:

(1) For any existing electric utility steam generating unit, the term means the average rate, in tons per year, at

which the unit actually emitted the pollutant during any consecutive twenty-four (24) month period selected by

the owner or operator within the five (5) year period immediately preceding when the owner or operator begins

actual construction of the project. The commissioner shall allow the use of a different time period upon a

determination that it is more representative of normal source operation. The baseline actual emissions shall be

determined in accordance with the following:

(A) The average rate shall include fugitive emissions to the extent quantifiable and emissions associated

with start-ups, shutdowns, and malfunctions to the extent they are affected by the project.

(B) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred

while the source was operating above any emission limitation that was legally enforceable during the

consecutive twenty-four (24) month period.

(C) For a regulated NSR pollutant, when a project involves multiple emissions units, only one (1)

consecutive twenty-four (24) month period may be used to determine the baseline actual emissions for the

emissions units being changed. A different consecutive twenty-four (24) month period can be used for each

regulated NSR pollutant.

(D) The average rate shall not be based on any consecutive twenty-four (24) month period for which there is

inadequate information available for determining annual emissions, in tons per year, and for adjusting this

amount if required by clause (B).

(2) For an existing emissions unit other than an electric utility steam generating unit, the term means the

average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any

consecutive twenty-four (24) month period selected by the owner or operator within the ten (10) year period

immediately preceding either the date the owner or operator begins actual construction of the project or the

date a complete permit application is received by the department for a permit required by this rule, except that

the ten (10) year period shall not include any period earlier than November 15,1990. The baseline actual

emissions shall be determined in accordance with the following:

(A) The average rate shall include fugitive emissions to the extent quantifiable and emissions associated

with start-ups, shutdowns, and malfunctions to the extent they are affected by the project.

(B) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred

while the source was operating above an emission limitation that was legally enforceable during the

consecutive twenty-four (24) month period.

(C) The average rate shall be adjusted downward to exclude any emissions that would have exceeded an

emission limitation with which the major stationary source must currently comply had the major stationary

source been required to comply with the limitations during the consecutive twenty-four (24) month period.

However, if an emission limitation is part of a maximum achievable control technology standard that the U.S.

EPA proposed or promulgated under 40 CFR Part 63*, the baseline actual emissions need only be adjusted

if the department has applied the emissions reductions to an attainment demonstration or maintenance plan

consistent with the requirements of 326 lAC 2-3-3(b)(12).

(D) For a regulated NSR pollutant, when a project involves multiple emissions units, only one (1)

consecutive twenty-four (24) month period may be used to determine the baseline actual emissions for all

the emissions units being changed. A different consecutive twenty-four (24) month period can be used for

each regulated NSR pollutant.

(E) The average rate shall not be based on any consecutive twenty-four (24) month period for which there is

inadequate information available for determining annual emissions, in tons per year, and for adjusting this

amount if required by clauses (B) and (C).

(3) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions

increase that will result from the initial construction and operation of the unit shall equal zero (0) and

thereafter, for all other purposes, shall equal the unit's potential to emit.

(4) For a PAL for a stationary source, the baseline actual emissions shall be calculated as follows:

(A) For an existing electric utility steam generating unit, in accordance with subdivision (1).

(B) For an existing emissions unit except an existing electric utility steam generating unit, in accordance with

subdivision (2).

(C) For a new emissions unit, in accordance with subdivision (3).

(f) "Baseline area" means the following:

(1) Any intrastate area (and every part thereof) designated as attainment or unclassifiable in accordance with

326 lAC 1-4 in which the major stationary source or major modification establishing the minor source baseline

date would construct or would have an air quality impact equal to or greater than one (1) microgram per cubic

meter (~g/m3) (annual average) of the pollutant for which the minor source baseline date is established.

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(2) Area redesignations under 326 lAC 1-4 and Section 107(d)(1)(D) or 107(d)(1 )(E) of the CM cannot

intersect or be smaller than the area of impact of any major stationary source or major modification that:

(A) establishes a minor source baseline date; or

(B) is subject to 40 CFR Part 52.21* and this rule and would be constructed in the same state as the state

proposing the redesignation.

(3) Any baseline area established originally for the total suspended particulate (TSP) increments shall remain

in effect and shall apply for purposes of determining the amount of available PM10 increments, except that the

baseline area shall not remain in effect if the U.S. EPA rescinds the corresponding minor source baseline date

in accordance with 40 CFR Part 52.21 (b)(14)(iv)*.

(g) "Baseline concentration" means that ambient concentration level that exists in the baseline area at the time

of the applicable minor source baseline date. A baseline concentration is determined for each pollutant for which

a minor source baseline date is established and shall include the following:

(1) The actual emissions, as defined in subsection (b), representative of sources in existence on the applicable

minor source baseline date except as provided in subdivision (3).

(2) The allowable emissions of major stationary sources that commenced construction before the major source

baseline date, but were not in operation by the applicable minor source baseline date.

(3) The following will not be included in the baseline concentration and will affect the applicable maximum

allowable increase or increases:

(A) Actual emissions, as defined in subsection (b), from any major stationary source on which construction

commenced after the major source baseline date.

(B) Increases and decreases of actual emissions, as defined in subsection (b), at any stationary source

occurring after the minor source baseline date.

(h) "Begin actual construction" means, in general, initiation of physical on-site construction activities on an

emissions unit that are of a permanent nature. Such activities include, but are not limited to, the following:

(1) Installation of building supports and foundations.

(2) Laying underground pipework.

(3) Construction of permanent storage structures.

With respect to a change in method of operations, the term refers to those on-site activities other than preparatory

activities that mark the initiation of the change.

(i) "Best available control technology" or "BACT" means an emissions limitation, including a visible emissions

standard, based on the maximum degree of reduction for each regulated NSR pollutant that would be emitted

from any proposed major stationary source or major modification, that the commissioner, on a case-by-case

basis, taking into account energy, environmental, and economic impacts and other costs, determines is

achievable for the source or modification through application of production processes or available methods,

systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control

of the pollutant. In no event shall application of BACT result in emissions of any pollutant that would exceed the

emissions allowed by any applicable standard under 40 CFR Part 60* and 40 CFR Part 61 *. If the commissioner

determines that technological or economic limitations on the application of measurement methodology to a

particular emissions unit would make the imposition of an emissions standard not feasible, a design, equipment,

work practice, operational standard, or combination thereof may be prescribed instead to satisfy the requirements

for the application of BACT. The standard shall, to the degree possible, set forth the emissions reduction

achievable by implementation of the design, equipment, work practice, or operation and shall provide for

compliance by means that achieve equivalent results.

0) "Building, structure, facility, or installation" means all of the pollutant-emitting activities that belong to the

same industrial grouping, are located on one (1) or more contiguous or adjacent properties, and are under the

control of the same person (or persons under common control) except the activities of any vessel.

Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same

major group, for example, that have the same first two (2) digit code, as described in the Standard Industrial

Classification Manual, 1972, as amended by the 1977 Supplement (U.S. Government Printing Office)*.

(k) "Clean coal technology" means any technology, including technologies applied at the precombustion,

combustion, or postcombustion stage, at a new or existing facility that will achieve significant reductions in air

emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of

electricity or process steam that was not in widespread use as of November 15, 1990.

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(I) "Clean coal technology demonstration project" means a project using funds appropriated under the heading

"Department of Energy-Clean Coal Technology", up to a total amount of two billion five hundred million dollars

($2,500,000,000) for commercial demonstration of clean coal technology or similar projects funded through

appropriations for the U.S. EPA. The federal contribution for a qualifying project shall be at least twenty percent

(20%) of the total cost of the demonstration project.

(m) "Commence", as applied to construction of a major stationary source or major modification, means that the

owner or operator has all necessary preconstruction approvals or permits and either has:

(1) begun, or caused to begin, a continuous program of actual on-site construction of the SOurce to be

completed within a reasonable time; or

(2) entered into binding agreements or contractual obligations, which cannot be canceled or modified without

substantial loss to the owner or operator, to undertake a program of actual construction of the source to be

completed within a reasonable time.

(n) "Complete" means, in reference to an application for a permit, that the application contains all of the

information necessary for processing the application. Designating an application complete for purposes of permit

processing does not preclude the department from requesting or accepting any additional information.

(0) "Construction" means any physical change or change in the method of operation, including:

(1) fabrication;

(2) erection;

(3) installation;

(4) demolition; or

(5) modification;

of an emissions unit, that would result in a change in emissions.

(p) "Continuous emissions monitoring system" or "CEMS" means all of the equipment that may be required to

meet the data acquisition and availability requirements of this rule to complete the following:

(1) Sample emissions on a continuous basis.

(2) If applicable, condition emissions.

(3) Analyze emissions on a continuous basis.

(4) Provide a record of emissions on a continuous basis.

(q) "Continuous emissions rate monitoring system" or "CERMS" means the total equipment required for the

determination and recording of the pollutant mass emissions rate in terms of mass per unit of lime.

(r) "Continuous parameter monitoring system" or "CPMS" means all of the equipment necessary to meet the

data acquisition and availability requirements of this rule to:

(1) monitor:

(A) process and control device operational parameters; and

(B) other information, such as gas flow rate, 02 or CO2 concentrations; and

(2) record the average operational parameter value on a continuous basis.

(s) "Electric utility steam generating unit" means any steam electric generating unit that is constructed for the

purpose of supplying more than one-third (1/3) of its potential electric output capacity and more than twenty-five

(25) megawatts electrical output to any utility power distribution system for sale. Any steam supplied to a steam

distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical

energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

(t) "Emissions unit" means any part of a stationary source that emits or would have the potential to emit any

regulated NSR pollutant. For purposes of this rule, there are the following two (2) types of emissions units:

(1) A new emissions unit is any emissions unit that is, or will be, newly constructed and that has existed for

less than two (2) years from the date the emissions unit first operated.

(2) An existing emissions unit is any emissions unit that does not meet the requirements in subdivision (1). A

replacement unit is an existing emissions unit.

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(u) "Federal land manager" means, with respect to any lands in the United States, the secretary of the

department with authority over the lands.

(v) "Federally enforceable" means all limitations and conditions that are enforceable by the U.S. EPA,

including:

(1) those requirements developed pursuant to 40 CFR Part 60" and 40 CFR Part 61";

(2) requirements within the SIP; and

(3) any permit requirements established pursuant to 40 CFR Part 52.21" or under regulations approved

pursuant to 40 CFR Part 51, Subpart I", including operating permits issued under an EPA-approved program

that is incorporated into the SIP and expressly requires adherence to any permit issued under the program.

(w) "FugitiVe emissions" means those emissions that could not reasonably pass through a stack, chimney,

vent, or other functionally equivalent opening.

(x) "High terrain" means any area having an elevation nine hundred (900) feet or more above the base of the

stack of a source.

(y) "Indian governing body" means the governing body of any tribe, band, or group of Indians subject to the

jurisdiction of the United States and recognized by the United States as possessing power of self-government.

(z) "Indian reservation" means any federally recognized reservation established by:

(1) treaty;

(2) agreement;

(3) executive order; or

(4) act of Congress.

(aa) "Innovative control technology" means any system of air pollution control that has not been adequately

demonstrated in practice, but would have a substantial likelihood of achieving greater continuous emissions

reduction than any control system in current practice or of achieving at least comparable reductions at lower cost

in terms of energy, economics, or nonair quality environmental impacts.

(bb) "Lowest achievable emission rate" or "LAER" means, for any source, the more stringent rate of emissions

based on the most stringent emissions limitation of the following:

(1) Contained in the SIP for the class or category of stationary source unless the owner or operator of the

proposed stationary source demonstrates that the limitations are not achievable.

(2) Achieved in practice by the class or category of stationary source. This limitation, when applied to a

modification, means the LAER for the new or modified emissions unit within the stationary source. In no event

shall the application of the LAER allow a proposed new or modified stationary source to emit any pollutant in

excess of the amount allowable under applicable new source standards of performance.

(cc) "Low terrain" means any area other than high terrain.

(dd) "Major modification" means any physical change in, or change in the method of operation of, a major

stationary source that would result in a significant emissions increase and a significant net emissions increase of

a regulated NSR pollutant from the major stationary source. The following shall apply:

(1) Any significant emissions increase from any emissions units or net emissions increase at a major

stationary source that is significant for vac shall be considered significant for ozone.

(2) A physical change or change in the method of operation shall not include the following:

(A) Routine maintenance, repair, and replacement.

(8) Use of an alternative fuel or raw material by reason of an order under Sections 2(a) and 2(b) of the

Energy Supply and Environmental Coordination Act of 1974 or by reason of a natural gas curtailment plan

pursuant to the Federal Power Act.

(C) Use of an alternative fuel by reason of an order under Section 125 of the CM.

(D) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from

municipal solid waste.

(E) Use of an alternative fuel or raw material by a source that the source:

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(i) was capable of accommodating before January 6, 1975, unless the change would be prohibited under

any enforceable permit condition that was established after January 6, 1975, pursuant to:

(AA) 40 CFR Part 52.21*;

(BB) this rule;

(CC) 326 lAC 2-3; or

(DO) minor new source review regulations approved pursuant to 40 CFR Part 51.160 through 40 CFR

Part 51.166*; or

(iI) is approved to use under any permit issued under 40 CFR Part 52.21* or under this rule.

(F) An increase in the hours of operation or in the production rate unless the changEl would be prohibited

under any enforceable permit condition that was established after January 6, 1975, pursuant to 40 CFR Part

52.21 * or under this rUle or 326 lAC 2-3.

(G) Any change in ownership at a source.

(H) The installation, operation, cessation, or removal of a temporary clean coal technology demonstration

project provided that the project complies with:

(i) the SIP; and

(iI) other requirements necessary to attain and maintain the national ambient air quality standards during

the project and after the project is terminated.

(I) The installation or operation of a permanent clean coal technology demonstration project that constitutes

repowering provided that the project does not result in an increase in the potential to emit of any regulated

pollutant emitted by the unit. This exemption shall apply on a pollutant-by-pollutant basis.

(J) The reactivation of a very clean coal-fired electric utility steam generating unit.

(3) The term shall not apply to a particular regulated NSR pollutant when the major stationary source is

complying with the requirements under 326 lAC 2-2 4 for a PAL for that pollutant. Instead, the definition at 326

lAC 2-2.4-2(g) shall apply.

(ee) "Major source baseline date" means the fOllowing:

(1) In the case of particulate matter and sulfur dioxide, January 6, 1975.

(2) In the case of nitrogen dioxide, February 8,1988.

(If) "Major stationary source" means the following:

(1) Any of the following stationary sources of air pollutants that are located or proposed to be located in an

attainment or unclassifiable area as designated in 326 lAC 1-4 and that emit or have the potential to emit one

hundred (100) tons per year or more of any regulated NSR pollutant:

(A) Fossil fuel-fired steam electric plants of more than two hundred fifty million (250,000,000) British thermal

units per hour heat input.

(B) Coal cleaning plants (with thermal driers).

(C) Kraft pulp mills.

(D) Portland cement plants.

(E) Primary zinc smelters.

(F) Iron and steel mill plants.

(G) Primary aluminum ore reduction plants.

(H) Primary copper smelters.

(I) Municipal incinerators capable of charging more than fifty (50) tons of refuse per day.

(J) Hydrofluoric, sulfuric, and nitric acid plants.

(K) Petroleum refineries.

(L) Lime plants.

(M) Phosphate rock processing plants.

(N) Coke oven batteries.

(0) Sulfur recovery plants.

(P) Carbon black plants (furnace process).

(Q) Primary lead smelters.

(R) Fuel conversion plants.

(S) Sintering plants.

(T) Secondary metal production plants.

(U) Chemical process plants.

(V) Fossil fuel boilers (or combinations thereof) totaling more than two hundred fifty million (250,000,000)

British thermal units per hour heat input.

(W) Taconite ore processing plants.

(X) Glass fiber processing plants.

(Y) Charcoal production plants.

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(2) Petroleum storage and transfer units with a total storage capacity exceeding three hundred thousand

(300,000) barrels.

(2) Any stationary source with the potential to emit two hundred fifty (250) tons per year or more of a regulated

NSR pollutant.

(3) Any of the following stationary sources with potential emissions of five (5) tons per year or more of lead or

lead compounds measured as elemental lead:

(A) Primary lead smelters.

(B) Secondary lead smelters.

(C) Primary copper smelters.

(D) Lead gasoline additive plants.

(E) Lead-acid storage battery manufacturing plants that produce two thousand (2,000) or more batteries per

day.

(4) Any other stationary source with potential emissions of twenty-five (25) or more tons per year of lead or

lead compounds measured as elemental lead.

(5) Any physical change occurring at a stationary source not qualifying under subdivisions (1) through (4) if the

change would by itself qualify as a major stationary source under subdivisions (1) through (4).

(6) Notwithstanding subdivisions (1) through (5), a source or modification of a source shall not be considered a

major stationary source if it would qualify under subdivisions (1) through (5) only if fugitive emissions, to the

extent quantifiable, are considered in calculating potential to emit of the stationary source or modification and

the source does not belong to any of the categories listed in subdivision (1) or any other stationary source

category that, as of August 7, 1980, is being regulated under Section 111 or 112 of the CM (42 U.S.C. 7411

or42 U.S.C. 7412).

(7) A major stationary source that is major for vec shall be considered major for ozone.

(gg) "Minor source baseline date" means the earliest date after the trigger date on which a major stationary

source or major modification subject to the requirements of this rule or to 40 CFR Part 52.21' submits a complete

application under the relevant regulations, including the following:

(1) The trigger date is the following:

(A) In the case of particulate matter and sulfur dioxide, August 7, 1977.

(B) In the case of nitrogen dioxide, February 8,1988.

(2) The baseline date is established for each pollutant for which increments or other equivalent measures have

been established if:

(A) the area in which the proposed source or modification would construct is designated as attainment or

unclassifiable under 326 lAC 1-4 for the pollutant on the date of its complete application under this rule; and

(B) in the case of a major stationary source, the pollutant would be emitted in significant amounts, or, in the

case of a major modification, there would be a significant net emissions increase of the pollutant.

(3) Any minor source baseline date established originally for the TSP increments shall remain in effect and

shall apply for purposes of determining the amount of available PM10 increments, except that the

commissioner may rescind a minor source baseline date where it can be shown, to the satisfaction of the

commissioner, that the emissions increase from the major stationary source, or net emissions increase from

the major modification, responsible for triggering that date did not result in a significant amount of PM10 emissions.

(hh) "Necessary preconstruction approvals or permits" means those permits or approvals required under

federal air quality control laws and regulations and air quality control laws and regulations that are part of the SIP.

(ii) "Net emissions increase", with respect to any regulated NSR pollutant emitted by a major stationary source,

means the following:

(1) The amount by which the sum of the following exceeds zero (0):

(A) The increase in emissions from a particular physical change or change in the method of operation at a

stationary source as calculated under section 2(d) of this rule.

(B) Any other increases and decreases in actual emissions at the major stationary source that are

contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for

calCUlating increases and decreases under this clause shall be determined as provided in subsection (e),

except that subsection (e)(1)(C) and (e)(2)(D) shall not apply.

(2) An increase or decrease in actual emissions is contemporaneous with the increase from the particular

change only if it occurs between the following:

(A) The date five (5) years before construction of the particular change commences.

(B) The date that the increase from the particular change occurs.

(3) An increase or decrease in actual emissions is creditable only if the department has not relied on the

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increase or decrease in actual emissions in issuing a permit to the source under 40 CFR Part 52.21' or this

rule and the permit is in effect when the increase in actual emissions from the particular change occurs.

(4) An increase or decrease in actual emissions of sulfur dioxide. particulate matter. or nitrogen oxides that

occurs before the applicable minor source baseline date is creditable only if it is required to be considered in

calculating the amount of maximum allowable increases remaining available.

(5) An increase in actual emissions is creditable only to the extent that a new level of actual emissions

exceeds the old level.

(6) A decrease in actual emissions is creditable only to the extent that:

(A) the old level of actual emissions or the old level of allowable emissions. whichever is lower. exceeds the

new level of actual emissions;

(8) it is enforceable as a practical matter at and after the time that actual construction on the particular

change begins; and

(C) it has approximately the same qualitative significance for public health and welfare as that attributed to

the increase from the particular change.

(7) An increase that results from the physical change at a source occurs when the emissions unit on which

construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that

requires shakedown becomes operational only after a reasonable shakedown period not to exceed one

hundred eighty (180) days.

(8) Subsection (b)(1) shall not apply for determining creditable increases and decreases.

OJ) "Plant-wide applicability limitation" or "PAL" means an emission limitation expressed in tons per year. for a

pollutant at a major stationary source. that is enforceable as a practical matter and established source-wide in .

accordance with this rule. For the purposes of this rule. a PAL is an actuals PAL.

(kk) "Pollution prevention" means the following:

(1) Any activity that eliminates or reduces the release of air pollutants. including fugitive emissions. and other

pollutants to the environment prior to recycling. treatment. or disposal. through:

(A) process changes;

(8) product reformulation or redesign; or

(C) SUbstitution of less polluting raw materials.

(2) The term does not include:

(A) recycling. except certain in-process recycling practices;

(8) energy recovery;

(C) treatment; or

(D) disposal.

(II) "Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical

and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant.

including air pollution control equipment and restrictions on hours of operation or on the type Or amount of

material combusted. stored. or processed. shall be treated as part of its design if the limitation or the effect it

would have on emissions is enforceable as a practical matter. Secondary emissions do not count in determining

the potential to emit of a stationary source.

(mm) "Predictive emissions monitoring system" or "PEMS" means all of the equipment necessary to. on a

continuous basis:

(1) monitor:

(A) process and control device operational parameters; and

(8) other information. such as gas flow rate. 02 or CO2 concentrations; and

(2) calculate and record the mass emissions rate. such as pounds per hour.

(nn) "Prevention of significant deterioration program" or "PSD program" means a major source preconstruction

permit program that has been approved by the U.S. EPA and incorporated into the SIP to implement the

requirements of 40 CFR Part 51.166 orthe program in 40 CFR Part 52.21. Any permit issued under the program

is a major NSR permit.

(00) "Project" means a physical change in. or change in the method of operation of. an existing major

stationary source.

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(pp) "Projected actual emissions" means the following:

(1) The maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a

regulated NSR pollutant in any consecutive twelve (12) month period of the five (5) years following the date

the unit resumes regular operation after the project, or in any consecutive twelve (12) month period of the ten

(10) years following the date the unit resumes regular operation, ilthe project involves increasing the

emissions unit's design capacity or its potential to emit that regulated NSR pollutant and full utilization of the

unit would result in a significant emissions increase or a significant net emissions increase at the major

stationary source.

(2) In determining the projected actual emissions under this subsection, before beginning actual construction,

the owner or operator of the major stationary source:

(A) shall:

(i) consider all relevant information, including, but not limited to:

(M) historical operational data;

(BB) the company's own representations;

(CC) the company's expected business activity and the company's highest projections of business

activity;

(DD) the company's filings with the state or federal regulatory authorities; and

(EE) compliance plans under the approved SIP;

(ii) include fugitive emissions to the extent quantifiable and emissions associated with start-ups,

shutdowns, and malfunctions to the extent they are affected by the project; and

(iii) exclude, in calculating any increase in emissions that result from the particular project, that portion of

the unit's emissions following the project that an existing unit could have accommodated during the

consecutive twenty-four (24) month period used to establish the baseline actual emissions under

subsection (e) and that are also unrelated to the particular project, including any increased utilization due

to product demand growth; or

(B) in lieu of using the method set out in clause (A), may elect to use the emissions unit's potential to emit, in

tons per year, as defined under subsection (II).

(qq) "Reactivation of a very clean coal-fired electric utility steam generating unit" means any physical change

or change in the method of operation associated with the commencement of commercial operations by a

coal-fired utility unit after a period of discontinued operation where the unit:

(1) has not been in operation for the two (2) year period prior to the enactment of the CM Amendments of

1990, and the emissions from the unit continue to be carried in the department's emissions inventory at the

time of enactment;

(2) was equipped prior to shutdown with a continuous system of emissions control that achieves a removal

efficiency for sulfur dioxide of not less than eighty-five percent (85%) and a removal efficiency for particulates

of not less than ninety-eight percent (98%);

(3) is equipped with low-NO burners prior to the time of commencement of operations following reactivation;

and x

(4) is otherwise in compliance with the requirements of the CM.

(rr) "Reasonably available control technology" or "RACT" means devices, systems, process modifications, or

other apparatus or techniques that are reasonably available taking into account:

(1) the necessity of imposing the controls in order to attain and maintain a national ambient air quality

standard;

(2) the social, environmental, and economic impact of the controls; and

(3) alternative means of providing for attainment and maintenance of the standard.

(ss) "Regulated NSR pollutant" means any of the following:

(1) Any:

(A) pollutant for which a national ambient air quality standard has been promulgated; and

(B) constituents or precursors for the pollutants identified by the U.S. EPA.

(2) Any pollutant that is subject to any standard promulgated under Section 111 of the CM.

(3) Any Class I or 11 substance subject to a standard promulgated under or established by Title VI of the CM.

(4) Any pollutant that otherwise is subject to regulation under the CM meeept that as defined in subsection

(zz).

(5) Notwithstanding subdivisions (1) through (4), any or all HAPs either listed in Section 112 of the CM or

added to the list pursuant to Section 112(b)(2) of the CM, which have not been delisted pursuant to Section

112(b)(3) of the CM, are not regulated NSR pollutants unless the listed HAP is also regulated as a

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constituent or precursor of a general pollutant listed under Section 108 of the CM.

t§1 (6) Notwithstanding subdivision (4), any pollutant listed in subsection (ww)(1 )(A) through (ww)(1 )(U).

(tt) "Replacement unit" means an emissions unit for which all the criteria listed in subdivisions (1) through (4)

are met. No creditable emission reductions shall be generated from shutting down the existing emission unit that

is replaced. The following applies:

(1) The emissions unit is a reconstructed unit within the meaning of 40 CFR 60.15(b)(1 )*, or the emissions unit

completely takes the place of an existing emissions unit.

(2) The emissions unit is idenlicallo or functionally equivalent to the replaced emissions unit.

(3) The replacement does not alter the basic design parameters, as discussed in 40 CFR 51.165(h)(2), of the

process unit.

(4) The replaced emissions unit is permanently removed from the major stationary source, otherwise

permanently disabled, or permanently barred from operation by a permit that is enforceable as a practical

matter. If the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit.

(uu) "Repowering" means replacement of an existing coal-fired boiler with one (1) of the following clean coal

technologies:

(1) Atmospheric or pressurized fluidized bed combustion.

(2) Integrated gasification combined cycle.

(3) Magnetohydrodynamics.

(4) Direct and indirect coal-fired turbines.

(5) Integrated gasification fuel cells.

(6) As determined by the U.S. EPA, in consultation with the Secretary of Energy, a derivative of one (1) or

more of these technologies, and any other technology capable of controlling multiple combustion emissions

simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction

relative to the performance of technology in widespread commercial use as of November 15, 1990.

The term shall also include any oil or gas-fired unit, or both, that has been awarded clean coal technology

demonstration funding as of January 1, 1991, by the Department of Energy. The department shall give expedited

consideration to permit applications for any source that satisfies the requirements of this subsection and is

granted an extension under Section 409 of the CM.

(vv) "Secondary emissions" means emissions that would occur as a result of the construction or operation of a

major stationary source or major modification, but do not come from the major stationary source or major

modification itself. The term includes emissions from any off-site support facility that would not be constructed or

increase its emissions except as a result of the construction or operation of the major stationary source or major

modification. For the purpose of this rule, secondary emissions must be specific, well-defined, quantifiable, and

impact the same general area as the source or modification that causes the secondary emissions. The term does

not include any emissions that come directly from a mobile source, such as emissions from:

(1) the tailpipe of a motor vehicle;

(2) a train; or

(3) a vessel.

(ww) "Significant" means the following:

(1) In reference to a net emissions increase or the potential of the source to emit any of the following

pollutants, a rate of emissions that would equal or exceed any of the following rates:

(A) Carbon monoxide: one hundred (100) tons per year.

(B) Nitrogen oxides: forty (40) tons per year.

(C) Sulfur dioxide: forty (40) tons per year.

(D) Particulate matter: twenty-five (25) tons per year.

(E) PM10: fifteen (15) tons per year.

(F) Ozone: forty (40) tons per year of VOC.

(G) Lead: six-tenths (0.6) ton per year.

(H) Asbestos: seven one-thousandths (0.007) ton per year.

(I) Beryllium: four ten-thousandths (0.0004) ton per year.

(J) Mercury: one-tenth (0.1) ton per year.

(K) Vinyl chloride: one (1) ton per year.

(L) Fluorides: three (3) tons per year.

(M) Sulfuric acid mist: seven (7) tons per year.

(N) Hydrogen sulfide (H2

S): ten (10) tons per year.

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(0) Total reduced sulfur (including HzS): ten (10) tons per year.

(P) Reduced sulfur compounds (including HzS): ten (10) tons per year.

(Q) Municipal waste combustor organics (measured as total tetra- through octa-chlorinated

dibenzo-p-dioxins and dibenzofurans): thirty-five ten-millionths (0.0000035) or 3.5 x 10.6 ton per year.

(R) Municipal waste combustor metals (measured as particulate matter): fifteen (15) tons per year.

(S) Municipal waste combustor acid gases (measured as sulfur dioxide and hydrogen chloride): forty (40)

tons per year.

(T) Municipal solid waste landfills emissions (measured as nonmethane organic compounds): fifty (50) tons

per year.

(U) Ozone-depleting substances (ODS): one hundred (100) tons per year.

(V) Pollutant greenhouse gases (GHGs): as specified in subsection (zz).

M (W) Any regulated NSR pollutant other than the pollutants listed in this subsection: any emission rate.

(2) Any emissions rate or any net emissions increase associated with a major stationary source or major

modification that:

(A) would be constructed within ten (10) kilometers of a Class I area; and

(8) has an impact on the area equal to or greater than one (1) microgram per cubic meter (24-hour

average).

(xx) "Significant emissions increase" means, for a regulated NSR pollutant, an increase in emissions that is

significant, as defined in subsection (ww), for that pollutant.

(yy) "Stationary source" means any building, structure, facility, or installation that emits or may emit a

regulated NSR pollutant. A stationary source does not include emissions resulting from an internal combustion

engine used for transportation purposes or from a nonroad engine or nonroad vehicle.

(zz) "Subject to regulation" means, for any air pollutant, that the pollutant is subject to either a

provision in the CAA, or a nationally applicable regulation codified by the U.S. EPA in 40 CFR, Chapter I,

Subchapter C, that requires actual control of the quantity of emissions of that pollutant, and that the

control requirement has taken effect and is operative to control, limit, or restrict the quantity of emissions

of that pollutant released from that regulated activity, except as follows:

(1) Greenhouse gases (GHGs), the air pollutant defined in 40 CFR 86.1818-12(a)*, as added by 75 FR

25686 (May 7, 2010), as the aggregate group of six (6) greenhouse gases shall not be subject to

regulation except as provided in subdivisions (4) and (5). Pollutant GHGs includes the following:

(A) Carbon dioxide.

(B) Nitrous oxide.

(C) Methane.

(0) Hydrofluorocarbons.

(E) Perfluorocarbons.

(F) Sulfur hexafluoride.

(2) For purposes of subdivisions (3) through (5), "tons per year (tpy) COz equivalent emissions (COze)"

shall represent an amount of GHGs emitted and shall be calculated as follows:

(A) Multiply the mass amount of emissions in tpy for each of the six (6) greenhouse gases in the

pollutant GHGs by the gas's associated global warming potential published in 40 CFR 98, Subpart A,

Table A-1 (Global Warming Potentials)*, as added by 74 FR 56395 (October 30,2009).

(B) Sum the resultant value from clause (A) for each gas to compute a tpy COze.

(3) "Emissions increase", as used in subdivisions (4) and (5), means that both a significant emissions

increase as calculated using the procedures in 40 CFR 51.166(a)(7)(iv)* and a significant net emissions

increase as defined in subsections (i1) and (ww) occur. For the pollutant GHGs, an emissions increase

shall be based on tpy CO e, and shall be calculated assuming the pollutant GHGs is a regulated NSR

pollutant, and "significanr' is defined as seventy-five thousand (75,000) tpy COze instead of applying

the value in subsection (ww)(1)(W).

(4) Beginning January 2,2011, the pollutant GHGs is subject to regulation if the stationary source is:

(A) a new major stationary source for a regulated NSR pollutant that is not GHGs and will emit or will

have the potential to emit seventy-five thousand (75,000) tpy COze or more; or

(B) an existing major stationary source for a regulated NSR pollutant that is not GHGs and will have

an emissions increase of a regulated NSR pollutant, and an emissions increase of seventy-five

thousand (75,000) tpy C02e or more.

(5) Beginning July 1, 2011, in addition to the provisions in subdivision (4), the pollutant GHGs shall be

subject to regulation at:

(A) a new stationary source that will emit or will have the potential to emit one hundred thousand

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(100,000) tpy CO e or more; or

(8) an existing si'ationary source that emits or has the potential to emit one hundred thousand

(100,000) tpy C02e or more, when such stationary source undertakes a physical change or change in

the method of operation that will result in an emissions increase of seventy-five thousand (75,000)

tpy C02e or more.

(aaa) "Temporary clean coal technology demonstration project.. means a clean coal technology

demonstration project that:

(1) is operated for a period of five (5) years or less; and

(2) complies with the SIP and other requirements necessary to attain and maintain the national ambient air

quality standards during the project and after the project is terminated.

'These documents are incorporated by reference. Copies may be obtained from the Government Printing

Office, 732 North Capitol Street NW, Washington, D.C. 20401 or are available for review and copying at the

Indiana Department of Environmental Management, Office of Air Quality, Indiana Government Center North,

Tenth Floor, 100 North Senate Avenue, Indianapolis, Indiana 46204.

(Air Pollution Control Board; 326 lAC 2-2-1; filed Mar 10, 1988, 1:20 p.m.: 11 IR 2391; filed Apr 13, 1988, 3:35

p.m.: 11 IR 3022; fifed Jan 6, 1989, 3:30 p.m.: 12 IR 1102; fifed Jun 14, 1989, 5:00 p.m.: 12 IR 2020; filed Nov 25,

1998, 12:13 p.m.: 221R 997; errata filed May 12, 1999, 11:23 a.m.: 221R 3105; fifed Oct 23, 2000, 9:47 a.m.: 24

IR 668; filed Mar 23,2001,3:03 p.m.: 241R 2412; fifed Dec 20,2001,4:30 p.m.: 251R 1557; fifed Mar 9,2004,

3:45 p.m.: 27 IR 2216; filed Aug 10, 2004, 3:35 p.m.: 271R 3889; fifed Oct 1, 2010, 3:48 p.m.:

20101027-IR-326070372FRA; fifed Feb 14, 2011, 11:20 a.m.: 20110316-IR-326100505FRA)

SECTION 2. 326 lAC 2-2-4 IS AMENDED TO READ AS FOLLOWS:

326 lAC 2-2-4 Air quality analysis; requirements

Authority: IC 13-14-8; IC 13-17-3

Affected: IC 13-15; IC 13-17

Sec. 4. (a) Any application for a permit under the provisions of this rule shall contain an analysis of ambient air

quality in the area that the major stationary source or major modification would affect for each of the following

pollutants:

(1) For a source, each regulated NSR pollutant that the source would have the potential to emit in a significant

amount.

(2) For a modification, each regulated NSR pollutant for which the modification would result in a significant net

emissions increase.

(b) Exemptions are as follows:

(1) The requirements of this section shall not apply to a major stationary source or major modification with

respect to a particular pollutant if the allowable emissions of that pollutant from the source or the net emissions

increase of that pollutant from the modification would:

(A) impact no Class I area and no area where an applicable increment is known to be violated; and

(8) be temporary.

(2) A source or modification shall be exempt from the requirements of this section with respect to monitoring

for a particular pollutant if either of the following apply:

(A) The emissions increase of the pollutant from a new source or the net emissions increase of the pollutant

from a modification would causej in any area, air quality impacts less than the following:

(i) Carbon monoxide: 575 ~g/m , 8-hour average.

(ii) Nitrogen dioxide: 14 ~g/m3, annual average.

(iii) PM 0: 10 ~g/m3, 24-hour average.

(iv) Sullur dioxide: 13 ~g/m3, 24-hour average.

(v) Ozone: No de minimis air quality level is provided for ozone; however, any net increase of one hundred

(100) tons per year or more of VOC subject to PSD would be required to provide ozone ambient air quality

data.

(vi) Lead: 0.1 ~g/m3, 3-month average.

(vii) Mercury: 0.25 ~g/m3, 24-hour average.

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(viii) Beryllium: 0.001 ~g/m3, 24-hour average.

(ix) Fluorides: 0.25 ~g/m3, 24-hour average.

(x) Vinyl chloride: 15 ~g/m3, 24-hour average.

(xi) Total reduced sulfur: 10 mg/m3, 1-hour average.

(xii) Hydrogen sulfide: 0.2 ~g/m3, 1-hour average.

(xiii) Reduced sulfur compounds: 10 ~g/m3, 1-hour average.

(B) The concentrations of the pollutant in the area affected by the source or modification are less than the

concentrations listed in clause (A) or the pollutant is not listed in clause (A).

(3) The requirements of this section shall not apply to a major stationary source or major modification

with respect to pollutant GHGs.

(c) All monitoring required by this section shall be done in accordance with the following provisions:

(1) With respect to any pollutant for which no ambient air quality standard designated in 326 lAC 1-3 exists,

the analysis shall contain such air quality monitoring data as the commissioner determines is necessary to

assess ambient air quality for that pollutant in any area that the emissions of that pollutant would affect.

(2) With respect to any pollutant (other than nonmethane hydrocarbons) for which an ambient air quality

standard as designated in 326 lAC 1-3 exists, the analysis shall contain continuous air quality monitoring data

gathered for the purpose of determining whether emissions of that pollutant would cause or contribute to a

violation of the standard or any maximum allowable increase.

(3) In general, the continuous air quality monitoring data that is required shall have been gathered over a

period of at least one (1) year preceding receipt of the application, except that, if the commissioner determines

that a complete and adequate analysis can be accomplished with monitoring data gathered over a period

shorter than one (1) year (but not less than four (4) months), the data that is required shall have been

gathered over at least that shorter period.

(4) The owner or operator of the proposed major stationary source or major modification of VOC who satisfies

all conditions of 40 CFR Part 51, Appendix S, Section IV* may provide post-approval monitoring data for

ozone in lieu of providing preconstruction data as required under this subsection.

(5) The owner or operator of a major stationary source or major modification shall, after construction of the

source or modification, conduct such ambient monitoring as the commissioner determines is necessary to

determine the effect of the emissions that the source or modification may have, or is having, on air quality in

anyarea.

(6) The owner or operator of a major stationary source or major modification shall comply with the

requirements of 40 CFR Part 58, Appendix B' during operation of monitoring stations for purposes of

complying with this section.

(7) All air quality monitoring shall be done in accordance with state and federal monitoring procedures as set

forth in the following references: May 1987 U.S. EPA, "Ambient Air Monitoring Guidelines for Prevention of

Significant Deterioration" (EPA 45014-87-007)* and the May 1999, "Indiana Department of Environmental

Management, Office of Air Management Quality Assurance Manual*".

'These documents are incorporated by reference. Copies may be obtained from the Government Printing

Office, 732 North Capitol Street NW, Washington, D.C. 20401 or are available for review and copying at the

Indiana Department of Environmental Management, Office of Air Quality, Indiana Government Center North,

Tenth Floor, 100 North Senate Avenue, Indianapolis, Indiana 46204.

(Air Pollution Control Board; 326/AC 2-2-4: filed Mar 10, 1988, 1:20 p.m.: 111R 2396; filed Apr 13, 1988,3:35

p.m.: 111R 3026; filed Jan 6, 1989,3:30 p.m.: 121R 1099; filed Mar 23,2001,3:03 p.m.: 241R 2420; filed Dec 20,

2001, 4:30 p.m.: 25/R 1565; filed Aug 10, 2004, 3:35 p.m.: 27/R 3901; filed Oct 1, 2010, 3:48 p.m.:

20101027-IR-3260703l2FRA; filed Feb 14, 2011, 11:20 a.m.: 20110316-IR-326100505FRAJ

SECTION 3. 326 lAC 2-7-1 IS AMENDED TO READ AS FOLLOWS:

326 lAC 2·7·1 Definitions

Authority: IC 13.14·8; Ie 13·17·3-4; IC 13·17·3·11

Affected: IC 13·11·2

Sec. 1. For purposes of this rule, the definition given for a term in this rule shall control in any conflict between

326 lAC 1-2 and this rule. In addition to the definitions provided in IC 13-11-2, 326 lAC 1-2, and 326 lAC 2-1.1,

the following definitions apply throughout this rule unless expressly stated otherwise or unless the context clearly

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implies otherwise:

(1) "Acid rain program" means the national sulfur dioxide and nitrogen oxides air pollution control and

emissions reduction program established in accordance with Title IV of the CAA, 40 CFR 72", and 40 CFR 75"

through 40 CFR 78", 58 FR 3590", and regulations implementing Sections 407 and 410 of the CAA.

(2) "Actual emissions" means the actual rate of emissions in tons per year of any regulated pollutant emitted

from a Part 70 source over the preceding calendar year or any other period determined by the commissioner

to be representative of normal source operation.

(3) "Affected source" shall have the meaning given to it in the regulations promulgated under Title IV of the

CAA.

(4) "Affected states" means all states:

(A) whose air quality may be affected and are contiguous to the state of Indiana; or

(B) that are within fifty (50) miles of the permitted source.

(5) "Affected unit" shall have the meaning given to it in the regulations promulgated under Title IV of the CAA.

(6) "Applicable requirement" means all of the following as they apply to emissions units in a Part 70 source

(including requirements that have been promulgated or approved by the U.S. EPA through rulemaking at the

time of permit issuance but have future effective compliance dates):

(A) Any standard or other requirement provided for in the applicable implementation plan approved or

promulgated by the U.S. EPA through rulemaking under Title I of the CAA that implements the relevant

requirements of the CAA, including any revisions to that plan promulgated in 40 CFR 52".

(B) Any term or condition of any preconstruction permits issued under regulations approved or promulgated

through rulemaking under Title I, including Part C or 0 of the CAA.

(C) Any standard or other requirement under Section 111 of the CAA, including Section 111(d) of the CAA.

(D) Any standard or other requirement under Section 112 of the CAA, including any requirement concerning

accident prevention under Section 112(r)(7) of the CAA.

(E) Any standard or other requirement of the acid rain program under Title IV of the CAA or the regulations

promulgated thereunder.

(F) Any requirements established under Section 504(b) or 114(a)(3) of the CAA.

(G) Any standard or other requirement under Section 126(a)(1) and 126(c) of the CAA.

(H) Any standard or other requirement governing solid waste incineration under Section 129 of the CAA.

(I) Any standard or other requirement for consumer and commercial products under Section 183(e) of the

CAA.

(J) Any standard or other requirement for tank vessels under Section 183(f) of the CAA.

(K) Any standard or other requirement of the Code of Federal Regulations promulgated to protect

stratospheric ozone under Title VI of the CAA, unless the U.S. EPA has determined that the requirements

need not be contained in a Part 70 permit.

(L) Any national ambient air quality standard or increment or visibility requirement under Part C of Title I of

the CAA, but only as it would apply to temporary sources permitted under Section 504(e) of the CAA.

(7) "Area source" means any stationary source of HAPs that is not a major source. The term does not include

motor vehicles or nonroad vehicles subject to regulation under Title II of the CAA.

(8) "Clean Air Act" or "CAA" means the Clean Air Act, as amended (including the Clean Air Act Amendments

of 1990 (P.L.101-549)), 42 U.S.C. 7401, et seq.

(9) "Code of Federal Regulations" or "CFR", unless otherwise provided, has the same meaning as set forth in

326 lAC 1-1-3.

(10) "Designated representative" shall have the meaning given to it in Section 402(26) of the CAA and the

regulations promulgated thereunder.

(11) "Draft Part 70 permit" means the version of a Part 70 permit for which the commissioner offers public

participation and notice to affected states under section 17 of this rule.

(12) "Emergency" means any situation, including acts of God, arising from sudden and reasonably

unforeseeable events beyond the reasonable control of the source that:

(A) requires immediate corrective action to restore normal operation; and

(B) causes the source to exceed an emission limit under a Part 70 permit due to unavoidable increases in

emissions attributable to the emergency.

The term shall not include noncompliance to the extent caused by improperly designed equipment, failure to

implement an adequate preventive maintenance plan, careless or improper operation, or operator error.

(13) "Emission limitation or standard" means any of the following as defined under the CAA:

(A) A federally enforceable emission limitation or standard.

(B) A standard of performance.

(C) A means of emission limitation.

An emission limitation or standard may be expressed in terms of the pollutant, expressed either as a specific

quantity, rate, or concentration of emissions (for example, pounds of sulfur dioxide (S02) per hour, pounds of

sulfur dioxide (S02) per mmBtu, or kilograms of VOC per liter of applied coating solids) or as the relationship

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of uncontrolled to controlled emissions (for example, percent capture and destruction efficiency of VOC or

percent reduction of S02)' An emission limitation or standard may also be expressed either as a work practice

process or other form at design, equipment operation, or operation and maintenance requirement.

(14) "Emissions allowable under the Part 70 permit" means a federally enforceable Part 70 permit term or

condition determined at issuance to be required by an applicable requirement that establishes an emissions

limit (including a work practice standard) or a federally enforceable emissions cap that the source has

assumed to avoid an applicable requirement to which the source would otherwise be subject.

(15) "Emissions unit" means any part or activity of a stationary source that emits or has the potential to emit

any regulated air pollutant or any pollutant listed under Section 112(b) of the CM. The term is not meant to

alter or affect the definition of unit for purposes of Title IV of the CM.

(16) "Federally enforceable state operating permit" or "FESOP" means a permit issued under 326 lAC 2-8.

(17) "Final Part 70 permit" means the version of a Part 70 permit issued by the commissioner that has

completed all review procedures required by sections 17 and 18 of this rule.

(18) "Fugitive emissions" means emissions that could not reasonably pass through a stack, chimney, vent, or

other functionally equivalent opening.

(19) "General Part 70 permit" means a Part 70 permit that is applicable to a class or category of sources or

modifications thereto, whether or not under common ownership or control, that are subject to similar applicable

requirements.

(20) "Health-based emission limit" means any enforceable condition the sale purpose of which is to protect

public health or welfare without regard to technical achievability, including, but not limited to, any requirement

in a permit based on:

(A) an emission standard for HAPs promulgated under 40 CFR 61*, including 326 lAC 14;

(B) conditions to prevent significant deterioration of air quality established under 40 CFR 52.21 *, including

326 lAC 2-2-5 and 326 lAC 2-2-6 but excluding conditions based on BACT;

(C) limits relied upon in a formal attainment demonstration supporting a SIP approved by the U.S. EPA

under Section 11 0(a)(2)(K) of the CM, with the exception of limits based on RACT for sources of VOCs in

areas designated attainment for ozone in accordance with the CM; or

(D) conditions established as residual risk standards under 42 U.S.C. 7412(f).

(21) "Insignificant activity" has any of the meanings, subject to clauses (A) through (D), specified in clauses (E)

through (K) as follows:

(A) Detailed information concerning emissions from activities or equipment listed in clauses (E) through (K)

is not required in a permit application submitted under this rule or 326 lAC 2-8; however, additional

emissions information must be provided upon request by the department.

(B) Notwithstanding any other requirements in this rule, the applicant shall include all emissions sources and

quantify emissions if needed to determine:

(i) major source status;

(ii) compliance with any applicable requirement; or

(iii) the applicability of any applicable requirement.

Identification of an activity or equipment as insignificant under this section does not preclude the inclusion of

the activity or equipment in a compliance plan or protocol as appropriate.

(C) Notwithstanding any other provision of this rule or 326 lAC 2-6, emissions from activities defined as

insignificant in this subdivision or trivial in subdivision (4G7 (41) need not be included in a source's annual

emission statement required by 326 lAC 2-6.

(D) A change in a source's insignificant or trivial activities or the addition of an insignificant activity or trivial

activity shall not constitute a modification for purposes of sections 10.5 and 12 of this rule, if the new activity

or modified activity:

(i) meets the definition of insignificant activity of this subdivision or trivial activity of subdivision t4G); (41);

(ii) has all applicable requirements and associated monitoring in the current permit; and

(iii) is not a modification under any provision of Title I of the CM.

The department may request that the source update its list of insignificant activities as part of its annual

compliance certification.

(E) An emission unit or activity whose potential uncontrolled emissions meet the exemption levels specified

in 326 lAC 2-1.1-3(e)(1) or the exemption levels specified in the following, whichever is lower:

(i) For lead or lead compounds measured as elemental lead, the exemption level is six-tenths (0.6) ton per

year or three and twenty-nine hundredths (3.29) pounds per day.

(ii) For carbon monoxide (CO), the exemption limit is twenty-five (25) pounds per day.

(iii) For sulfur dioxide, the exemption level is five (5) pounds per hour or twenty-five (25) pounds per day.

(iv) For VOC, the exemption limit is three (3) pounds per hour or fifteen (15) pounds per day.

(v) For nitrogen oxides (NO ), the exemption limit is five (5) pounds per hour or twenty-five (25) pounds per x day.

(F) For an emission unit or activity with potential uncontrolled emissions of particulate matter with an

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aerodynamic diameter less than or equal to ten (10) micrometers (PM10), the exemption level is either five

(5) pounds per hour or twenty-five (25) pounds per day.

(G) For units with potential uncontrolled emissions of HAPs, that are not listed as insignificant in clauses (H)

through (L) or defined as trivial in subdivision \4G1; (41), an insignificant activity is any of the following:

(i) Any unit, not regulated by a NESHAP, emitting greater than one (1) pound per day but less than five (5)

pounds per day or one (1) ton per year of a single HAP.

(ii) Any unit, not regulated by a NESHAP, emitting greater than one (1) pound per day but less than twelve

and five-tenths (12.5) pounds per day or two and five-tenths (2.5) tons per year of any combination of

HAPs.

The source shall provide a description of the insignificant activity, including identification of the HAPs

emitted and any applicable requirements. A source may rely on MSDS sheets, product labels, other

manufacturer's information, or other technical and scientific judgement for identification of HAPs.

Insignificant activities that are part of a multistep process line shall be reported as such on the operating

permit application, and the source shall include a description of the function and components of the process

line on the operating permit application. Insignificant activities that perform equivalent funclions shall be

grouped, and the function and number of those units shall be included on the operating permit application.

(H) Emissions from a laboratory as defined in this clause. As used in this clause, "laboratory" means a place

or activity devoted to experimental study or teaching, or to the testing and analysis of drugs, chemicals,

chemical compounds or other substances, or similar activities, prOVided that the activities described in this

clause are conducted on a laboratory scale. Activities are conducted on a laboratory scale if the containers

used for reactions, transfers, and other handling of substances are designed to be easily and safely

manipulated by one (1) person. If a facility manufactures or produces products for profit in any quantity, it

shall not be considered to be a laboratory under this clause. Support activities necessary to the operation of

the laboratory are considered to be part of the laboratory. Support activities do not include the provision of

power to the laboratory from sources that provide power to multiple projects or from sources that would

otherwise require permitting, such as boilers that provide power to an entire facility.

(I) Emissions from research and development activities as defined in this clause. As used in this clause,

"research and development activities" means activities conducted under close supervision of technically

trained personnel that are not engaged in the manufacture of products for sale, exchange for commercial

profit, or distribution, except in a de minimis manner and the primary purpose of which is to:

(i) test more efficient production processes;

(ii) test methods for preventing or reducing adverse environmental impacts; or

(iii) conduct research and development into new processes and products.

Support activities necessary to the research and development activities are considered to be part of the

research and development activities. Support activities do not include the provision of power to the research

and development activities from sources that provide power to multiple projects or from sources that would

otherwise require permitting, such as boilers that provide power to a source or solid waste disposal units,

such as incinerators.

(J) Emissions from educational and teaching activities as defined in this clause. As used in this clause,

"educational and teaching activities" means activities conducted at public and nonpublic schools and

postsecondary educational institutions for educational, vocational, agricultural, occupational, employment, or

technical training purposes provided the activities do not include the production of an intermediate or final

product for sale or exchange for commercial profit or distribution. Support activities necessary to the

educational and teaching activities are considered to be part of the educational and teaching activities.

Support activities do not include the provision of power to the educational and teaching activities from

sources that provide power to multiple projects or from sources that would otherwise require permitting,

such as boilers that provide power to a source or solid waste disposal units, such as incinerators.

(K) Any of the following listed activities:

(i) Combustion related activities, as follows:

(AA) Space heaters, process heaters, heat treat furnaces, or boilers using the following fuels:

(aa) Natural gas-fired combustion sources with heat input equal to or less than ten million (10,000,000)

British thermal units per hour.

(bb) Propane or liquified petroleum gas or butane-fired combustion sources with heat input equal to or

less than six million (6,000,000) British thermal units per hour.

(cc) Fuel oil-fired combustion sources with heat input equal to or less than two million (2,000,000) British

thermal units per hour and firing fuel containing equal to or less than five-tenths percent (0.5%) sulfur by

weight.

(dd) Wood-fired combustion sources with heat input equal to or less than one million (1,000,000) British

thermal units per hour and not burning treated wood or chemically contaminated wood.

(BB) Equipment powered by diesel fuel fired or natural gas fired internal combustion engines of capacity

equal to or less than five hundred thousand (500,000) British thermal units per hour except where total

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capacity of equipment operated by one (1) stationary source as defined by subdivision (38) exceeds two

million (2,000,000) British thermal units per hour.

(CC) Combustion source flame safety purging on start-up.

(ii) Fuel dispensing activities, as follows:

(AA) A gasoline fuel transfer dispensing operation handling less than or equal to one thousand three

hundred (1,300) gallons per day and filling storage tanks having a capacity equal to or less than ten

thousand five hundred (10,500) gallons. Such storage tanks may be in a fixed location or on mobile

equipment.

(BB) A petroleum fuel other than gasoline dispensing facility, having a storage tank capacity less than or

equal to ten thousand five hundred (10,500) gallons, and dispensing three thousand five hundred (3,500)

gallons per day or less.

(iii) The following vac and HAP storage containers:

(AA) Storage tanks with capacity less than or equal to one thousand (1,000) gallons and annual

throughputs equal to or less than twelve thousand (12,000) gallons.

(BB) Vessels storing the following:

(aa) Lubricating oils.

(bb) Hydraulic oils.

(cc) Machining oils.

(dd) Machining fluids.

(iv) Refractory storage not requiring air pollution control equipment.

(v) Equipment used exclusively for the following:

(AA) Packaging the following:

(aa) Lubricants.

(bb) Greases.

(BB) Filling drums, pails, or other packaging containers with the following:

(aa) Lubricating oils.

(bb) Waxes.

(cc) Greases.

(vi) Production. related activities, including the following:

(AA) Application of:

(aa) oils;

(bb) greases;

(cc) lubricants; and

(dd) nonvolatile material;

as temporary protective coatings.

(BB) Machining where an aqueous cutting coolant continuously floods the machining interface.

(CC) Oegreasing operations that do not exceed one hundred forty-five (145) gallons psr twelve (12)

months, except if subject to 326 lAC 20-6.

(DO) Cleaners and solvents characterized as having a vapor pressure equal to or less than:

(aa) two (2.0) kilo Pascals (fifteen (15) millimeters of mercury or three-tenths (0.3) pound per square

inch) measured at thirty-eight (38) degrees Centigrade (one hundred (100) degrees Fahrenheit); or

(bb) seven-tenths (0.7) kilo Pascal (five (5) millimeters of mercury or one-tenth (0.1) pound per square

inch) measured at twenty (20) degrees Centigrade (sixty-eight (68) degrees Fahrenheit);

the use of which, for all cleaners and solvents combined, does not exceed one hundred forty-five (145)

gallons per twelve (12) months.

(EE) The following equipment related to manufacturing activities not resulting in the emission of HAPs:

(aa) Brazing.

(bb) Cutting torches.

(cc) Soldering.

(dd) Welding.

(FF) Closed loop heating and cooling systems.

(GG) Infrared cure equipment.

(HH) Exposure chambers (towers or columns), for curing of ultraviolet inks and ultraviolet coatings where

heat is the intended discharge.

(II) Any of the following structural steel and bridge fabrication activities:

(aa) Cutting two hundred thousand (200,000) linear feet or less of one (1) inch plate or equivalent per

year.

(bb) Using eighty (80) tons or less of welding consumables per year.

(vii) Activities associated with the following recovery systems:

(AA) Rolling oil recovery systems.

(BB) Ground water oil recovery wells.

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(viii) Solvent recycling systems with batch capacity less than or equal to one hundred (100) gallons.

(ix) Water based activities, including the following:

(AA) Activities associated with the treatment of wastewater streams with an oil and grease content less

than or equal to one percent (1%) by volume.

(BB) Water run-off ponds for petroleum coke-cutting and coke storage piles.

(CC) Activities associated with the transportation and treatment of sanitary sewage, provided discharge to

the treatment plant is under the control of the owner or operator, that is, an on-site sewage treatment

facility. This does not include sanitary sludge incineration.

(DO) Any operation using aqueous solutions containing less than or equal to one percent (1%) by weight

of VOCs excluding HAPs.

(EE) Water based adhesives that are less than or equal to five percent (5%) by volume of VOCs

excluding HAPs.

(FF) Noncontact cooling tower systems with either of the following:

(aa) Natural draft cooling towers not regulated under a NESHAP.

(bb) Forced and induced draft cooling tower systems not regulated under a NESHAP.

(GG) Quenching operations used with heat treating processes.

Oil, grease, or VOC content shall be determined by a test method acceptable to the department and the

U.S. EPA.

(x) Repair activities, including the following:

(AA) Replacement or repair of electrostatic precipitators, bags in baghouses, and filters in other air

filtration equipment.

(BB) Heat exchanger cleaning and repair.

(CC) Process vessel degassing and cleaning to prepare for internal repairs.

(xi) Trimmers that:

(AA) do not produce fugitive emissions; and

(BB) are equipped with a dust collection or trim material recovery device, such as a bag filter or cyclone.

(xii) Stockpiled soils from soil remediation activities that are covered and waiting transport for disposal.

(xiii) Paved and unpaved roads and parking lots with public access.

(xiv) Conveyors as follows:

(AA) Covered conveyors for solid raw material, including the following:

(aa) Coal or coke conveying of less than or equal to three hundred sixty (360) tons per day.

(bb) Limestone conveying of less than or equal to seven thousand two hundred (7,200) tons per day for

sources other than mineral processing plants constructed after August 31, 1983.

(BB) Uncovered coal or coke conveying of less than or equal to one hundred twenty (120) tons per day.

(CC) Underground conveyors.

(DO) Enclosed systems for conveying plastic raw material and plastic finished goods.

(xv) Coal bunker and coal scale exhausts and associated dust collector vents.

(xvi) Asbestos abatement projects regulated by 326 lAC 14-10.

(xvii) Routine maintenance and repair of buildings, structures, or vehicles at the source where air

emissions from those activities would not be associated with any production process, including the

following:

(AA) Purging of gas lines.

(BB) Purging of vessels.

(xviii) Flue gas conditioning systems and associated chemicals, such as the following:

(AA) Sodium sulfate.

(BB) Ammonia.

(CC) Sulfur trioxide.

(xix) Equipment used to collect any material that might be released during a malfunction, process upset, or

spill cleanup, including the following:

(AA) Catch tanks.

(BB) Temporary liqUid separators.

(CC) Tanks.

(DO) Fluid handling equipment.

(xx) Blowdown for the following:

(AA) Sight glass.

(BB) Boiler.

(CC) Cooling tower.

(DO) Compressors.

(EE) Pumps.

(xxi) Furnaces used for melting metals other than beryllium with a brim full capacity equal to or less than

four hundred fifty (450) cubic inches by volume.

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(xxii) Activities associated with emergencies, including the following:

(AA) On-site fire training approved by the department.

(BB) Emergency generators as follows:

(aa) Gasoline generators not exceeding one hundred ten (110) horsepower.

(bb) Diesel generators not exceeding one thousand six hundred (1,600) horsepower.

(cc) Natural gas turbines or reciprocating engines not exceeding sixteen thousand (16,000) horsepower.

(CC) Stationary fire pump engines.

(xxiii) Grinding and machining operations controlled with fabric filters, scrubbers, mist collectors, wet

collectors, and electrostatic precipitators with a design grain loading of less than or equal to three

one-hundredths (0.03) grains per actual cubic foot and a gas flow rate less than or equal to four thousand

(4,000) actual cubic feet per minute, including the following:

(AA) Deburring.

(BB) Buffing.

(CC) Polishing.

(DO) Abrasive blasting.

(EE) Pneumatic conveying.

(FF) Woodworking operations.

(xxiv) Purge double block and bleed valves.

(xxv) Filter or coalescer media changeout.

(xxvi) Vents from ash transport systems not operated at positive pressure.

(xxvii) Mold release agents using low volatile products (vapor pressure less than or equal to two (2) kilo

Pascals measured at thirty-eight (38) degrees Centigrade).

(xxviii) Farm operations, except concentrated animal feeding operations as defined in 40 CFR 122.23.

(xxix) Woodworking equipment controlled by a baghouse provided that the following criteria are met:

(AA) The baghouse does not exhaust to the atmosphere greater than one hundred twenty-five thousand

(125,000) cubic feet per minute.

(BB) The baghouse does not emit particulate matter with a diameter less than ten (10) microns in excess

of three-thousandths (0.003) grain per dry standard cubic feet of outlet air.

(CC) Opacity from the baghouse does not exceed ten percent (10%).

(DO) The baghouse is in operation at all times that the woodworking equipment is in use.

(EE) Visible emissions from the baghouse are observed daily using procedures in accordance with 40

CFR 60, Appendix A, Method 22* and normal or abnormal emissions are recorded. In the event abnormal

emissions are observed for greater than six (6) minutes in duration, the following shall occur:

(aa) The baghouse shall be inspected.

(bb) Corrective actions, such as replacing or reseating bags, are initiated, when necessary.

(FF) The baghouse is inspected quarterly when vented to the atmosphere.

(GG) The owner or operator keeps the following records:

(aa) Records documenting the date when the baghouse redirected indoors or to the atmosphere.

(bb) Quarterly inspection reports, when vented to the atmosphere.

(cc) Visible observation reports.

(dd) Records of corrective actions.

(xxx) Woodworking equipment controlled by a baghouse provided that the following criteria are met:

(AA) The baghouse does not exhaust to the atmosphere greater than forty thousand (40,000) cubic feet

per minute.

(BB) The baghouse does not emit particulate matter with a diameter less than ten (10) microns in excess

of one-hundredth (0.01) grain per dry standard cubic feet of outlet air.

(CC) Opacity from the baghouse does not exceed ten percent (10%).

(DO) The baghouse is in operation at all times that the woodworking equipment is in use.

(EE) Visible emissions from the baghouse are observed daily using procedures in accordance with 40

CFR 60, Appendix A, Method 22* and normal or abnormal emissions are recorded. In the event abnormal

emissions are observed for greater than six (6) minutes in duration, the following shall occur:

(aa) The baghouse shall be inspected.

(bb) Corrective actions, such as replacing or reseating bags, are initiated, when necessary.

(FF) The baghouse is inspected quarterly when vented to the atmosphere.

(GG) The owner or operator keeps the following records:

(aa) Records documenting the date when the baghouse redirected indoors or to the atmosphere.

(bb) Quarterly inspection reports, when vented to the atmosphere.

(cc) Visible observation reports.

(dd) Records of corrective actions.

(22) "Major source" means any stationary source or any group of stationary sources as described in this

subdivision. For purposes of clauses (B) and (C), the term shall include any group of stationary sources that

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are located on one (1) or more contiguous or adjacent properties and are under common control of the same

person (or persons under common control) belonging to a single major industrial grouping. In addition, for the

purposes of defining major source in clause (8) or (C), a stationary source or group of stationary sources shall

be considered part of a single industrial grouping if all of the pollutant emitting activities at the source or group

of stationary sources on contiguous or adjacent properties belong to the same major group (that is, all have

the same two (2) digit code) as described in the Standard Industrial Classification Manual, 1987*. For

purposes of clauses (8) and (C), any stationary source (or group of stationary sources) that supports another

source, where both are under common control of the same person (or persons under common control) and are

located on contiguous or adjacent properties, shall be considered a support facility and part of the same

source regardless of the two (2) digit SIC code for that support facility. A stationary source (or group of

stationary sources) is considered a support facility to a source if at least fifty percent (50%) of the output of the

support facility is dedicated to the source. The term includes the following:

(A) A major source under Seclion 112 of the CAA, which is defined as follows:

(i) For pollutants other than radionuclides, any stationary source or group of stationary sources located

within a contiguous area and under common control that emits or has the potential to emit, in the

aggregate:

(AA) ten (10) tons per year (tpy) or more of any HAP that has been listed in Section 112(b) of the CAA;

(8B) twenty-five (25) tpy or more of any combination of such HAPs; or

(CC) such lesser quantity as the U.S. EPA may establish by rule.

(ii) Notwithstanding item (i):

(AA) emissions from any oil or gas exploration or production well (with its associated equipment) and

emissions from any pipeline compressor or pump station shall not be aggregated with emissions from

other similar units, whether or not the units are in a contiguous area or under common control, to

determine whether the units or stations are major sources; and

(BB) research and development activities may be considered separately for purposes of determining

whether a major source is present and need not be aggregated with collocated stationary sources unless

the research and development activities contribute to the product produced or service rendered by the

collocated sources in a more than de minimis manner.

(iii) For radionuclides, major source shall have the meaning specified by the U.S. EPA by rule.

(B) A major stationary source of air pollutants, as defined in Section 302 of the CAA, that directly emits or

has the potential to emit, one hundred (100) tpy or more of any regulated air pollutant subject to regulation

(including any major source of fugitive emissions of any such pollutant, as determined by the U.S. EPA by

rule). The fugitive emissions of a stationary source shall not be considered in determining whether it is a

major stationary source for the purposes of Section 3020) of the CAA unless the source belongs to one (1)

of the following categories of stationary sources:

(i) Coal cleaning plants (with thermal dryers).

(ii) Kraft pulp mills.

(iii) Portland cement plants.

(iv) Primary zinc smelters.

(v) Iron and steel mills.

(vi) Primary aluminum ore reduction plants.

(vii) Primary copper smelters.

(viii) Municipal incinerators, or combinations of municipal incinerators, capable of charging more than fifty

(50) tons of refuse per day.

(ix) Hydrofluoric, sulfuric, or nitric acid plants.

(x) Petroleum refineries.

(xi) Lime plants.

(xii) Phosphate rock processing plants.

(xiii) Coke oven batteries.

(xiv) Sulfur recovery plants.

(xv) Carbon black plants (furnace process).

(xvi) Primary lead smelters.

(xvii) Fuel conversion plants.

(xviii) Sintering plants.

(xix) Secondary metal production plants.

(xx) Chemical process plants.

(xxi) Fossil fuel boilers (or combination thereof) totaling more than two hundred fifty million (250,000,000)

British thermal units per hour heat input.

(xxii) Petroleum storage and transfer units with a total storage capacity exceeding three hundred thousand

(300,000) barrels.

(xxiii) Taconite ore processing plants.

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(xxiv) Glass fiber processing plants.

(xxv) Charcoal production plants.

(xxvi) Fossil fuel fired steam electric plants of more than two hundred fifty million (250,000,000) British

thermal units per hour heat input.

(xxvii) Any other stationary source category regulated under Section 111 or 112 of the CM and for which

the U.S. EPA has made an affirmative determination under Section 3020) of the CM.

(C) A major stationary source as defined in Part D of Title I of the CM, including the following:

(i) For ozone nonattainment areas, sources with the potential to emit:

(M) one hundred (100) tpy or more of vac or oxides of nitrogen in areas classified as marginal or

moderate;

(B8) fifty (50) tpy or more of vac or oxides of nitrogen in areas classified as serious;

(CC) twenty-five (25) tpy or more of vac or oxides of nitrogen in areas classified as severe; or

(DD) ten (10) tpy or more of vac or oxides of nitrogen in areas classified as extreme;

except that the references in this item to one hundred (100), fifty (50), twenty-five (25), and ten (10) tpy of

nitrogen oxides shall not apply with respect to any source for which the U.S. EPA has made a finding,

under Section 182(1)(1) or 182(f)(2) of the CM, that requirements under Section 182(f) of the CM do not

apply.

(iI) For ozone transport regions established under Section 184 of the CM, sources with the potential to

emit fifty (50) or more tpy of vac.

(iii) For carbon monoxide nonattainment areas:

(M) that are classified as serious: and

(BB) in which stationary sources contribute significantly to carbon monoxide levels as determined under

rules issued by the U.S. EPA;

sources with the potential to emit fifty (50) tpy or more of carbon monoxide.

(iv) For particulate matter PM10 nonattainment areas classified as serious, sources with the potential to

emit seventy (70) tpy or more of PM10.

(23) "Part 70 permit" or "permit" means any Part 70 permit or group of Part 70 permits authorizing the

operation of a Part 70 source that is issued, renewed, amended, or revised under this rule.

(24) "Part 70 permit modification" means a revision to a Part 70 permit that meets the requirements of section

12 of this rule.

(25) "Part 70 permit program costs" means all reasonable (direct and indirect) costs required to develop and

administer a Part 70 permit program, as set forth in section 1g of this rule (whether the costs are incurred by

the commissioner or other state or local agencies that do not issue Part 70 permits directly, but that support

Part 70 permit issuance or administration).

(26) "Part 70 permit revision" means any Part 70 permit modification or administrative Part 70 permit

amendment.

(27) "Part 70 program" means the operating permit program established by this rule and approved by the U.S.

EPA under 40 CFR 70".

(28) "Part 70 source" means any source subject to the permitting requirements as provided in section 2 of this

rule.

(29) "Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant under its

physical and operational design. Any physical or operational limitation on the capacity of a source to emit an

air pollutant, including air pollution control equipment and restrictions on hours of operation or type or amount

of material combusted, stored, or processed shall be treated as part of its design if the limitation is enforceable

by the U.S. EPA. This term does not alter or affect the use of this term for any other purpose under the CM,

(or the term "capacity factor" as used in Title IV of the CM) (or the regulations promulgated thereunder).

(30) "Proposed Part 70 permit" means the version of a Part 70 permit that the commissioner proposes to issue

and forwards to the U.S. EPA for review in compliance with section 18 of this rule.

(31) "Regulated air pollutant" means any of the following:

(A) Nitrogen oxides or any vac.

(8) Any pollutant for which a national ambient air quality standard has been promulgated.

(C) Any pollutant that is subject to any standard promulgated under Section 111 of the CM.

(D) Any Class I or Class II substance subject to a standard promulgated under or established by Title VI of

the CM.

(E) Any pollutant subject to a standard promulgated under Section 112 of the CM or other requirements

established under Section 112 of the CM, including Section 112(g), 1120), and 112(r) of the CM, including

the following:

(I) Any pollutant subject to requirements under Section 1120) of the CM. If the U.S. EPA fails to

promulgate a standard by the date established under Section 112(e) of the CM, any pollutant for which a

subject source would be major shall be considered to be regulated on the date eighteen (18) months after

the applicable date established under Section 112(e) of the CM.

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(ii) Any pollutant for which the requirements of Section 112(g)(2) of the CAA have been met, but only with

respect to the individual source subject to Section 112(g)(2) of the CAA.

(32) "Regulated pollutant that is used only for purposes of section 19 of this rule" means any regulated air

pollutant, except the following:

(A) Carbon monoxide.

(B) Any pollutant that is a regulated air pollutant solely because it is a Class I or Class II substance subject

to a standard promulgated under or established by Title VI of the CAA.

(C) Any pollutant that is a regulated air pollutant solely because it is subject to a standard or regulation

under Section 112(r) of the CAA.

(D) Any pollutant emitted by an insignificant or trivial activity as defined in this rule.

(33) "Renewal" means the process by which a Part 70 permit is reissued at the end of its term.

(34) "Responsible official" means the following:

(A) For a corporation:

(i) a president;

(ii) a secretary;

(iii) a treasurer;

(iv) a vice president of the corporation in charge of a principal business function;

(v) any other person who performs similar policy or decision making functions for the corporation; or

(vi) a duly authorized representative of any person listed in this clause if the representative is responsible

for the overall operation of one (1) or more manufacturing, production, or operating facilities applying for or

subject to a Part 70 permit and either the:

(AA) facilities employ more than two hundred fifty (250) persons or have gross annual sales or

expenditures exceeding twenty-five million dollars ($25,000,000) (in second quarter 1980 dollars); or

(BB) delegation of authority to the representative is approved in advance by the commissioner.

(B) For a partnership or sole proprietorship, a general partner or the proprietor, respectively.

(C) For a municipality, state, federal, or other public agency, either a principal executive officer or ranking

elected official. As used in this clause, "principal executive officer of a federal agency" includes the chief

executive officer having responsibility for the overall operations of a principal geographic unit of the agency,

for example, a regional administrator of the U.S. EPA.

(D) For affected sources:

(i) the designated representative for actions, standards, requirements, or prohibitions under Title IV of the

CAA or the regulations promulgated thereunder; and

(ii) the designated representative for any other purposes under a Part 70 permit.

(35) "Risk management plan" means a plan specified by Section 112(r) of the CAA.

(36) "Section 502(b)(10) changes" means changes that contravene an express Part 70 permit term. Such

changes do not include changes that would violate applicable requirements or contravene federally

enforceable Part 70 permit terms and conditions that are monitoring (including test methods), record keeping,

reporting, or compliance certification requirements.

(37) "State" means any nonfederal permitting authority, including any local agency, interstate association, or

statewide program. The term shall have its conventional meaning where the meaning is clear from the context.

For purposes of the acid rain program, the term shall be limited to authorities within the forty-eight (48)

contiguous states and the District of Columbia as provided in Section 402(14) of the CAA.

(38) "Stationary source" means any building, structure, facility, or installation that emits or may emit any

regulated air pollutant or any pollutant listed under Section 112(b) of the CAA.

(39) "Subject to regulation" means, for any air pollutant, that the pollutant is subject to either a

provision in the CAA, or a nationally applicable regulation codified by the U.S. EPA in 40 CFR, Chapter

I, Subchapter C, that requires actual control of the quantity of emissions of that pollutant, and that the

control requirement has taken effect and is operative to control, limit, or restrict the quantity of

emissions of that pollutant released from that regulated activity, except as follows:

(A) Greenhouse gases (GHGs), the air pollutant defined in 40 CFR 86.1818-12(a)*, as added by 75 FR

25686 (May 7, 2010), as the aggregate group of six (6) greenhouse gases shall not be subject to

regulation unless, as of July 1, 2011, the GHG emissions are at a stationary source emitting or

having the potential to emit one hundred thousand (100,000) tpy CO2 equivalent emissions (C02

e) or

more. Pollutant GHGs includes the follOWing:

(i) Carbon dioxide.

(ii) Nitrous oxide.

(iii) Methane.

(iv) Hydrofluorocarbons.

(v) Perfluorocarbons.

(vi) Sulfur hexafluoride.

(B) "Tons per year (tpy) CO2 equivalent emissions (<:02e)" shall represent an amount of GHGs

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Indiana Register

emitted and shall be calculated as follows:

(i) Multiply the mass amount of emissions in tpy for each of the six (6) greenhouse gases in the

pollutant GHGs by the gas's associated global warming potential published in 40 CFR 98, Subpart

A, Table A·1 (Global Warming Potentials)-, as added by 74 FR 56395 (October 30, 2009).

(ii) Sum the resultant value from item (i) for each gas to compute a tpy C02e.

t391 (40) "Technology-based emission limit" means any enforceable condition that IS derived solely or in part

from the capabilities of man-made equipment or processes, including, but not limited to, any requirement in a

permit based on:

(A) RACT;

(B) BACT;

(C) maximum achievable control technology (MACT);

(D) lowest achievable emissions reduction (LAER);

(E) generally available control technology (GACT);

(F) best available retrofit technology (BART);

(G) any manufacturers' specifications; or

(H) the sources' physical potential to emit;

unless the applicable requirement was relied upon in a formal attainment demonstration supporting a SIP

approved by the U.S. EPA under Section 110(a)(2)(K) of the CM.

\4G1 (41) "Trivial activity" has any of the following meanings, subject to clauses (A) and (B). specified in

clauses (C) through (S), as follows:

(A) A change in a source's trivial activities or the addition of a trivial activity shall not constitute a

modification for purposes of section 12 of this rule. if the new activity or modified activity:

(i) meets the definition of trivial activity of this subdivision;

(ii) has all applicable requirements and associated monitoring in the current permit; and

(iii) is not a modification under any provision of Title I of the CM.

(B) Trivial activities do not need to be included in a permit application required under this rule or 326 lAC 2-

§.. provided that the applicant documents applicable requirements and compliance status as required by

section 4 of this rule. Upon request, the applicant shall submit any information necessary to fulfill the

requirements of this rule or 326 lAC 2-8.

(C) Any activity or emission unit:

(i) not regulated by a NESHAP. with potential uncontrolled emissions that are equal to or less than one (1)

pound per day on an emission unit basis for any single HAP or combination of HAPs; and

(ii) for which the potential uncontrolled emissions meet the exemption levels specified in the following:

(M) For lead or lead compounds measured as elemental lead, potential uncontrolled emissions that are

equal to or less than one (1) pound per day.

(BB) For carbon monoxide (CO), potential uncontrolled emissions that are equal to or less than one (1)

pound per day.

(CC) For sulfur dioxide, potential uncontrolled emissions that are equal to or less than one (1) pound per

day.

(DO) For VOC, potential uncontrolled emissions that are equal to or less than one (1) pound per day.

(EE) For nitrogen oxides (NO ), potential uncontrolled emissions that are equal to or less than one (1) x pound per day.

(FF) For particulate matter with an aerodynamic diameter less than or equal to ten (10) micrometers

(PM10), potential uncontrolled emissions that are equal to or less than one (1) pound per day.

(D) Water related activities. including the following:

(i) Production of hot water for on-site personal use not related to any industrial or production process.

(ii) Water treatment activities used to provide potable and process water for the plant. excluding any

activities associated with wastewater treatment.

(iii) Steam traps, vents, leaks, and safety relief valves.

(iv) Cooling ponds.

(v) Laundry operations using only water solutions of bleach or detergents.

(vi) Demineralized water tanks and demineralizer vents.

(vii) Boiler water treatment operations, not including cooling towers.

(viii) Oxygen scavenging (deaeration) of water.

(ix) Steam cleaning operations and steam sterilizers.

(x) Pressure washing of equipment.

(xi) Water jet cutting operations.

(E) Combustion activities, including the following:

(i) Portable electrical generators that can be moved by hand from one (1) location to another. As used in

this item, "moved by hand" means that it can be moved without the assistance of any motorized or

nonmotorized vehicle, conveyance, or device.

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(ii) Combustion emissions from propulsion of mobile sources.

(iii) Fuel use related to food preparation for on-site consumption.

(iv) Tobacco smoking rooms and areas.

(v) Blacksmith forges.

(vi) Indoor and outdoor kerosene heaters.

(F) Activities related to ventilation, venting equipment, and refrigeration, including the following:

(i) Ventilation exhaust, central chiller water systems, refrigeration, and air conditioning equipment, not

related to any industrial or production process, including natural draft hoods or ventilating systems that do

not remove air pollutants.

(ii) Stack and vents from plumbing traps used to prevent the discharge of sewer gases, handling domestic

sewage only, excluding those at wastewater treatment plants or those handling any industrial waste.

(iii) Vents from continuous emissions monitors and other analyzers.

(iv) Natural gas pressure regulator vents, excluding venting at oil and gas production facilities.

(v) Air vents from air compressors.

(vi) Vents for air cooling of electric motors provided the air does not commingle with regulated air

pollutants.

(vii) Vents from equipment used to air blow water from cooled plastics strands or sheets.

(G) Activities related to routine fabrication, maintenance, and repair of buildings, structures, equipment, or

vehicles at the source where air emissions from those activities would not be associated with any

commercial production process, including the following:

(i) Activities associated with the repair and maintenance of paved and unpaved roads, including paving or

sealing, or both, of parking lots and roadways.

(ii) Painting, including interior and exterior painting of buildings, and solvent use excluding degreasing

operations utilizing halogenated organic solvents.

(iii) Brazing, soldering, or welding operations and associated equipment.

(iv) Portable blast-cleaning equipment with enclosures.

(v) Blast-cleaning equipment using water as the suspension agent and associated equipment.

(vi) Batteries and battery charging stations except at battery manufacturing plants.

(vii) Lubrication, including the following:

(AA) Hand-held spray can lubrication.

(BB) Dipping metal parts into lubricating oil.

(CC) Manual or automated addition of cutting oil in machining operations.

(viii) Nonasbestos insulation installation or removal.

(ix) Tarring, retarring, and repair of building roofs.

(x) Bead blasting of heater tubes.

(xi) Instrument air dryer and filler maintenance.

(xii) Manual tank gauging.

(xiii) Open tumblers associated with deburring operations in maintenance shops.

(H) Activities performed using hand-held equipment, including the following:

(i) Application of hot melt adhesives with no VOC in the adhesive formulation.

(ii) Buffing.

(iii) Carving.

(iv) Cutting, excluding cutting torches.

(v) Drilling.

(vi) Grinding.

(vii) Machining wood, metal, or plastic.

(viii) Polishing.

(ix) Routing.

(x) Sanding.

(xi) Sawing.

(Xii) Surface grinding.

(xiii) Turning wood, metal, or plastic.

(I) Housekeeping and janitorial activities and supplies, including the following:

(i) Vacuum cleaning systems used exclusively for housekeeping or custodial activities, or both.

(ii) Steam cleaning activities.

(iii) Restrooms and associated cleanup operations and supplies.

(iv) Alkaline or phosphate cleaners and associated equipment.

(v) Mobile floor sweepers and floor scrubbers.

(vi) Pest control fumigation.

(J) Office related activities, including the following:

(i) Office supplies and equipment.

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(ii) Photocopying equipment and associated supplies.

(iii) Paper shredding.

(iv) Blueprint machines, photographic equipment, and associated supplies.

(K) Lawn care and landscape maintenance activities and equipment, including the storage, spraying, or

application of insecticides, pesticides, and herbicides.

(L) Storage equipment and activities, including the following:

(i) Pressurized storage tanks and associated piping for the following:

(AA) Acetylene.

(BB) Anhydrous ammonia.

(CC) Carbon monoxide.

(DO) Chlorine.

(EE) Inorganic compounds.

(FF) Liquid petroleum gas (LPG).

(GG) Liquid natural gas (LNG).

(HH) Natural gas.

(II) Nitrogen dioxide.

(JJ) Sulfur dioxide.

(Ii) Storage tanks, vessels, and containers holding or storing liquid substances that do not contain any VOC

or HAP.

(iii) Storage tanks, reservoirs, and pumping and handling equipment of any size containing:

(AA) soap;

(BB) vegetable oil;

(CC) grease;

(DO) wax;

(EE) animal fat; and

(FF) nonvolatile aqueous salt solutions;

provided appropriate lids and covers are utilized.

(iv) Storage of drums containing maintenance raw materials.

(v) Storage of the following:

(AA) Castings.

(BB) Lance rods.

(CC) Any non-HAP containing material in solid form stored in a sealed or covered container.

(vi) Portable containers used for the collection, storage, or disposal of materials provided the container

capacity is equal to or less than forty-six hundredths (0.46) cubic meters and the container is closed,

except when the material is added or removed.

(M) Emergency and standby equipment, including the following:

(i) Emergency (backup) electrical generators at residential locations, such as dormitories, prisons, and

hospitals.

(Ii) Safety and emergency equipment except engine driven fire pumps, including fire suppression systems

and emergency road flares.

(iii) Process safety relief devices installed solely for the purpose of minimizing injury to persons or damage

to equipment that could result from abnormal process operating conditions, including the following:

(AA) Explosion relief vents, diaphragms, or panels.

(BB) Rupture discs.

(CC) Safety relief valves.

(iv) Activities and equipment associated with on-site medical care not otherwise specifically regulated.

(v) Vacuum-producing devices for the purpose of removing potential accidental releases.

(N) Sampling and testing equipment and activities, including the following:

(i) Equipment used for quality control/assurance or inspection purposes, including sampling equipment

used to withdraw materials for analysis.

(ii) Hydraulic and hydrostatic testing equipment.

(iii) Ground water monitoring wells and associated sample collection equipment.

(iv) Environmental chambers not using HAP gases.

(v) Shock chambers.

(vi) Humidity chambers.

(vii) Solar simulators.

(viii) Sampling activities, including the following:

(AA) Sampling of waste.

(BB) Glove box sampling, charging, and packaging.

(ix) Instrument air dryers and distribution.

(0) Use of consumer products and equipment where the product or equipment is:

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Indiana Register

(i) used at a source in the same manner as normal consumer use; and

(ii) not associated with any production process.

(P) Equipment and activities related to the handling, treating, and processing of animals, including the

following:

(i) Equipment used exclusively to slaughter animals, but not including the following:

(AA) Rendering cookers.

(BB) Boilers.

(CC) Heating plants.

(DO) Incinerators.

(EE) Electrical power generating equipment.

(ii) Veterinary operating rooms.

(Q) Activities generating limited amounts of fugitive dust, including the following:

(i) Fugitive emissions related to movement of passenger vehicles, provided the emissions are not counted

for applicability purposes under subdivision (22)(B), and any required fugitive dust control plan or its

equivalent is submitted.

(i1) Soil boring.

(iii) Road salting and sanding.

(R) Activities associated with production, including the following:

(i) Closed, nonvented tumblers used for cleaning or deburring metal products without abrasive blasting.

(ii) Electrical resistance welding.

(iii) CO2 lasers, used only on metals and other materials that do not emit HAPs in the process.

(iv) Laser trimmers that:

(AA) do not produce fugitive emissions; and

(BB) are equipped with a dust collection device, such as a bag filter, cyclone, or equivalent device.

(v) Application equipment for hot melt adhesives with no VOC in the adhesive formulation.

(vi) Drop hammers or hydraulic presses for forging or metalworking.

(vii) Air compressors and pneumatically operated equipment, inclUding hand tools.

(viii) Compressor or pump lubrication and seal oil systems.

(ix) Equipment used to mix and package:

(AA) soaps;

(BB) vegetable oil;

(CC) grease;

(DO) animal fat; and

(EE) nonvolatile aqueous salt solutions;

provided appropriate lids and covers are utilized.

(x) Equipment for washing or drying fabricated glass or metal products, if no:

(AA) VOCs or HAPs are used in the process; and

(BB) gas, oil, or solid fuel is burned.

(xi) Handling of solid steel, including coils and slabs, excluding scrap burning, scarfing, and charging into

steelmaking furnaces and vessels.

(S) Miscellaneous equipment, but not emissions associated with the process for which the equipment is

used, and activities, including the following:

(i) Equipment used for surface coating, painting, dipping, or spraying operation, except those that will emit

VOCs or HAPs.

(ii) Condensate drains for natural gas and landfill gas.

(iii) Electric or steam heated drying ovens and autoclaves, including only the heating emissions and not

any associated process emissions.

(iv) Salt baths using nonvolatile salts, including caustic solutions that do not result in emissions of any

regulated air pollutants.

(v) Ozone generators.

(vi) Portable dust collectors.

(vii) Scrubber systems circulating water based solutions of inorganic salts or bases that are installed to be

available for response to emergency situations.

(viii) Soil borrow pits.

(ix) Manual loading and unloading operations.

(x) Purging of refrigeration devices using a combination of nitrogen and CFC-22 (R-22) as pressure test

media.

(xi) Construction and demolition operations.

(xii) Mechanical equipment gear boxes and vents that are isolated from process materials.

(xiii) Nonvolatile mold release waxes and agents.

(441 (42) "U.S. EPA" means the administrator of the United States Environmental Protection Agency or the

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Indiana Register

administrator's designee.

*These doc~ments are incorporated by reference. Copies may be obtained from the Government Printing

Office, 732 North Capitol Street NW, Washington, D.C. 20401 or are available for review and copying at the

Indiana Department of Environmental Management, Office of Air Quality, Indiana Governrnent Center North,

Tenth Floor, 100 North Senate Avenue, Indianapolis, Indiana 46204.

**Copies of these documents may be obtained from the Government Printing Office, 732 North Capitol Street

NW, Washington, D.C. 20401 or are available for review and copying at the Indiana Department of Environmental

Management, Office of Air Quality, Indiana Government Center North, Tenth Floor, 100 North Senate Avenue,

Indianapolis, Indiana 46204.

(Air Pollution Control Board; 326 lAC 2-7-1: filed May 25,1994, 11:00 a.m.: 171R 2249; filed Dec 19,1995,3:05

p.m.: 191R 1051; erratafiled Apr 9, 1996, 2:30 p.m.: 191R 2045; filed May 31, 1996,4:00 p.m.: 191R 2856; fifed

Apr 22, 1997, 2:00 p.m.: 20lR 2326; filed Nov 25, 1998, 12:13 p.m.: 221R 1020; errata fifed May 12, 1999, 11:23

a.m.: 221R 3106; fifed Dec 20,2001,4:30 p.m.: 251R 1573; filed Oct 1, 2010, 3:48 p.m.:

20101027-IR-326070372FRA; fifed Feb 14, 2011, 11:20 a.m.: 20110316-fR-326100505FRAl

LSA Document #10-505(F)

Findings and Determination of the Commissioner Pursuant to Ie 13-14-9-8: 20100901-IR-3261 00505FDA

Hearing Held: December 1, 2010

Approved by Attorney General: January 28, 2011

Approved by Governor: February 10, 2011

Filed with Publisher: February 14, 2011, 11:20 a.m.

Documents Incorporated by Reference: 40 CFR 86. 1818-12(a) (75 FR 25686); 40 CFR 98, Subpart A, Table A-1

(74 FR 56395)

Small Business Regulatory Coordinator: Alison Beumer, IDEM Compliance and Technical Assistance Program -

OPPTA, MC 60-04IGCS W041, 100 North Senate Avenue, Indianapolis, IN 46204-2251, (317) 232-8172 or

(800) 988-7901, ctap@idem./n.gov

Small Business Assistance Program Ombudsman: Brad Baughn, IDEM Small Business Assistance Program

Ombudsman, MC 50-01 IGCN 1307, 100 North Senate Avenue, Indianapolis, IN 46204-2251, (317) 234-3386,

bbaughn@idem.in.gov

Posted: 03/16/2011 by Legislative Services Agency

An html version of this document.

Date: Jun 17.201110:55:37AM EDT DIN: 20110316-IR-326100505FRA Page 27
B 
Rule:

Agency:

Subject:

Rule Signature Page.

LSA #IO-50S(F)

Air Pollution Control Board

Prevention ofSignificant Deterioration and Title V Greenhouse Gas Tailoring

Rule

Date: ll-{ .II ..

Chainnan

Air Pollution Control Board

APPROVED:

By:

ACCEPTED FOR FILING:

By:

TITLE 326 AIR POLLlITlON CONTROL BOARD

LSA Document #10-505(FR)

Filed with Publisher: Febru;rry 14.2011. 11:20 a.m.

By: Rlw.

Date: !/!' g4/ I \ ( f

2/10 /

Date: ...!/c...II:!..' _

Date: _
C 
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l 1ft

BEFORE THE STATE OF INDIANA

AIR POLLUTION CONTROL BOARD

PUBLIC MEETING OF DECEMBER 1, 2010

ORIGINAL

PROCEEDINGS

before the Indiana Air Pollution Control Board,

Dr. James Miner, Chairman, taken before me,

Lindy L. Meyer, Jr., a Notary Public in and for

the State of Indiana, County of Shelby, at the

Indiana Government Center South, Conference

Center, Room C, 402 West Washington Street,

Indianapolis, Indiana, on Wednesday, December 1,

2010 at 1:04 o'clock p.m.

William F. Daniels, RPR/CP CM d/b/a

ACCURATE REPORTING OF INDIANA

12922 Brighton Avenue

Carmel, Indiana 46032

(317) 848-0088

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"

APPEARANCES:

BOARD MEMBERS:

Dr. James Miner, M.D., Chairman

Thomas Anderson

Randy Staley

Jeffery L. Quyle

Chris Horn

Dr. Phil Stevens

David Benshoof

Howard W. Cundiff, Proxy, State Board of

Health

John Bacone, Proxy, Department of

Natural Resources

Eric Levenhagen, Proxy, Indiana Economic

Development Corporation

IDEM STAFF MEMBERS:

Thomas W. Easterly, IDEM Commissioner

Keith Baugues, Asst. Commissioner

Scott Deloney

Chris Pedersen

Manda Clevenger

Ann Long

Susan Bern

Catherine Mitchell

PUBLIC SPEAKERS:

Ann McIver

Trevor Vance

Stan Pinegar

Patrick Bennett

Miriam Dant

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It's a unanimous

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MR. STALEY: Aye.

CHAIRMAN MINER: Mr. Staley votes

yes.

Mr. Quyle?

MR. QUYLE: Aye.

CHAIRMAN MINER: Mr. Quyle votes yes.

Dr. Stevens?

DR. STEVENS: Yes.

CHAIRMAN MINER: Dr. Stevens votes

yes.

Mr. Bacone?

MR. BACONE: Yes.

CHAIRMAN MINER: Mr. Bacone votes

yes.

Mr. Anderson?

MR. ANDERSON: Aye.

CHAIRMAN MINER: Mr. Anderson votes

yes, and I vote yes as well.

decision.

The next item on our agenda is a public

hearing before the Air Pollution Control Board of

the State of Indiana regarding adoption of

23 amendments, 326 IAC-2, Greenhouse Gas Tailoring
1 Rule.

r

I will now introduce Exhibit No.2 --

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2 maybe I will.

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MR. DELONEY: Chris, Exhibit 2.

MS. PEDERSEN: I'm sorry.

MR. DELONEY: She was worried whether

6 Susan was here, I think.

7 CHAIRMAN MINER: I see. No problem.

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9

(Laughter. )

CHAIRMAN MINER: into the hearing.

10 Is there someone from the Department --

11 I'm assuming Susan is the person, Susan Bern.

12 MR. DELONEY: Yes, Susan Bern.

13 CHAIRMAN MINER: Okay.

14 MS. BEM: I'm Susan Bern, and I work

15 in the Rules and SIP Development Section.

16 IDEM is presenting a rule to you today for

17 Board adoption to implement the federal

18 Greenhouse Gas Tailoring Rule.

19 This rule is similar to the emergency rule

20 that was adopted by the Board last month, to be

21 filed and effective with LSA no earlier than

22 January 3rd, 2011. If the federal rule's vacated

23 before the end of the year, IDEM will not file
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1 the emergency rule with LSA, as we discussed last

2 month.

3 IDEM is using the expedited Section 8

4 rulemaking process and emergency rule process to

5 obtain the legal authority to issue federally

6 required permits that properly evaluate GHG

7 emissions by January 2nd, 2011. The emergency

8 rule fills the gap between the time when the

9 emergency rule is effective and the regular rule

10 can be effective. If the rule is adopted by

11 Board today, it will not be effective until

12 approximately March, after it goes through the

13 three-to-four-month promulgation process.

14 IDEM's approach is to work with EPA and

15 move now, rather than later, toward the

16 incorporation of the federal u.S. EPA Tailoring

response letter to U.S. EPA, IDEM will submit

EPA may take action to ensure authority exists to

regulate greenhouse gases.

The PSD portion of this rule will be

submitted to EPA for SIP approval, hopefully

17 As outlined in IDEM's

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Rule into the state rules.

this rulemaking to EPA for approval. Otherwise,
plans to submit the SIP r€vision request using

parallel processing. This will not only ensure

that IDEM remains in full control of its PSD

permitting program, but also reduces the

likelihood that air permits issued after

January 2nd, 2011 will be subject to citizen

suits bas€d on deficiencies in the state

permitting rules.

IDEM is also working on submitting the

Title V changes to EPA for approval. We are

doing that in a separate request, and we are just

waiting for EPA to give us some guidance on what

the supporting documentation should be for the

Title V amendment request.

IDEM can withdraw this rulemaking at any

time before the rule is accepted for filing with

LSA. If something happens at the federal level

negating the need for a state greenhouse gas rule

by the time this rule is filed with LSA, IDEM can

withdraw the LSA document, LSA No. 10-505.

The estimated date for filing with LSA

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sometime soon after this Board m€eting. IDEM

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23 would be sometime in probably later February, if
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federal rule after the greenhouse gas

requirements are in place at the state level, and

this is if this was to happen sometime later in

we end up sending the promulgation packet to the

Attorney General's Office by the end of December.

We have to wait for the transcript to come back

from the Board meeting, then we put the

promulgation packet together, and then we forward

it on to the Attorney General's Office. And then

rules are effective 30 days after filing with

LSA.

The rule that is before you today does not

contain provisions that the rule will expire if

the Greenhouse Gas Tailoring Rule is vacated at

the federal level. The Section 8 rulemaking

process does not allow for changes between

publication of draft rule language and adoption.

Because the Section 8 rule is not an emergency

rule, we do not provide provisions for expiration

in the rule itself, as we did for the emergency

rule last month.

IDEM can use enforcement discretion if the

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federal rule if the Federal Court vacates the
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1 2011, where we actually have an effective state

2 rule, because if it's vacated before it's filed

level.

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with LSA, we would just withdraw the rulemaking.

And so, as I said, if we're after that

point in time where the rule's effective, IDEM

could use enforcement discretion, and we would

not enforce the amended portions of the rules

regarding greenhouse gases, because underpinning

authority for the rule would be nonexistent.

IDEM has used enforcement discretion in the past

when rules have been vacated at the federal

Excuse me.

There is a typo in the draft rule that's

part of the Exhibit today, at subsection (ss) in

subdivision (6) of 2-2-1, that has not been

corrected, and this is the same typo that we

talked about in the emergency rule last month

that we had corrected.

But for this rule, we will not change the

number from subdivision (4) to (5) at the time of

adoption. We're going to do it as an agency

correction once the rule is filed with LSA as

part of the promulgation process.
27

1 And the Department recommends that the

2 Board adopt the rule as presented, and if there's

3 any questions, we can answer those.

4 CHAIRMAN MINER: Thank you, Susan.

5 Are there any questions from Board members

6 for Susan at this time? Yes.

you say this is a Section 8 process?

confused. We can certainly make an amendment, as

a Board. We're the ones --

Procedurally, did

Any other questions?

I guess I'm a little

We can't -- we

Yes.

I think it's probably still

Uh-huh.

MS. BEM:

MR. QUYLE: Okay.

MS. BEM: -- for board adoption.

MR. QUYLE: Okay.

CHAIRMAN MINER:

MR. BENSHOOF:

MR. QUYLE:

MR. QUYLE:

MS. BEM:

essentially can't amend this at this point?

MS. BEM: Correct. With the

Section 8 process, what we put out on public

notice is the same rule that we bring

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MS. LONG: Uh-huh.

MS. BEM: Because that's sort of

which comes from Indiana Code 13-14-9-8, allows

for an expedited rulemaking process for a rule

I'm with the

I appreciate that.

Can I have your

Thank you.

Can I have your

I just jumped right in

sorry.

But the Section 8 process,

My name is Ann Long;

-- problem is the timing.

I'm going to borrow this

The Board can do what it wants to

MS. LONG:

MS. LONG:

MS. LONG:

MS. LONG:

MS. LONG:

CHAIRMAN MINER:

CHAIRMAN MINER:

CHAIRMAN MINER:

CHAIRMAN MINER:

The Board can do several things if they

for the Board.

real quickly.

name, please?

separate than what, you know, we actually present

I'm --

do, and the

Office of Legal Counsel.

there into the question.

that's essentially an adoption of a federal rule.

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Okay.

-- that we would notify

Well, what was said

What can be done to fix it

MR. CUNDIFF:

MR. DELONEY:

MR. CUNDIFF:

I understood there was going to be a fix

What is that?

MR. DELONEY: That's

MS. LONG: That's--

MR. DELONEY: Yeah, that's just an

agency correction --

later.

earlier, I missed it.

later?

choose not to adopt the rule as noticed in the

September Register. The issue that comes up with

that is that if the Board chooses to amend the

rule today, it will take the rule out of the

Section 8 process, and so the rule will have to

go through additional notification or some other

mechanism, it can't be finalized today; and

therefore, we get into a problem with the whole

timing in terms of the federal requirement that

the rule be in place by January 2nd.

Now, I'll be glad to go through the

statute and talk about the options that are

available to the Board.

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MS. LONG: Uh-huh.

MR. BENSHOOF: And does not -- isn't

the process -- it's an adoption of a federal rule

that you want to adopt quickly

Legislative Services of.

MR. CUNDIFF: Okay.

MS. LONG: Yeah, the agency

correction involves just a change from literally

subsection (4) to subsection (5), and it's

essentially a typographical error.

MR. CUNDIFF: Gotcha.

MS. LONG: And we asked the Attorney

General's Office if we could even make that level

of change in the rule that we're bringing before

the Board today, and we were adviseedthat no,

we'd be better off just doing a correction that

could be filed with Legislative Services, so --

MR. CUNDIFF: That's fine.

MS. LONG: I think you had a

Uh-huh.

Isn't Section 8

-- into a state rule?

Yeah.

MR. BENSHOOF:

MS. LONG:

MR. BENSHOOF:

question.

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1 the process designed that it's not to be a

2 controversial issue, it's pretty much an issue

3 that you're taking a federal rule and

4 implementing it? And this particular rulemaking

5 process has a lot of controversy behind it.

6 MS. LONG: In the statute, in the

7 Section 8 process -- and this was as published in

8 our original notice on September 1st -- the

9 Section 8 process really contemplates under the

10 statute that there's limited rulemaking options

11 available; okay?

12 And it also points out that because of

13 that, there's limited public comment periods

14 available, and so the issue isn't so much how

15 controversial the rule is, it's a question of do

16 we have the option of being able to change the

17 federal rule?

18 And pretty much in this instance, if we

19 change the federal rule, or if you all decide to

20 change the federal rule, then we're out of the

21 requirements that EPA would be looking for to

22 have the mechanism in place by January 2nd so

23 that the state can issue -- or continue to issue
32

with a rule that we can't even change.

this until this court action would have been

an opinion would have been made, we wouldn't have

going to deal with the issue of if the fed

changes it through a Congressional change or a

court action? How do we change our rule then, so

that we're -- I mean there's no way to change the

rule at this point. We're stuck with what we're

adopting.

And the controversy

So, how is the state

Now we could be stuck

MS. LONG: You're stuck with what

MR. BENSHOOF:

been in this situation.

MR. BENSHOOF:

permits.

month.

has been --

you're adopting tDday, but

MS. LONG: Right.

MR. BENSHOOF: that there's court

action, and that's the whole thing with the

emergency rule that --

MS. LONG: Uh-huh.

MR. BENSHOOF: -- we adopted last

And so, if we just would have postponed

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1 MS. LONG: But -- okay. Let me point

2 out that the rule can be changed, it just has to

3 be changed by another rulemaking, because it's a

4 permanent rule, it's not a temporary rule. And

5 so, the mechanism is -- and I think Susan pointed

6 out some of these things -- that if there were a

7 vacation of the federal rule or any other -- I

8 don't know -- action that would invalidate the

9 federal rule, IDEM is publicly committed to take

10 a course of action that would involve using

11 enforcement discretion to not enforce these rule

12 amendments while they were still on the books,

13 and then we would initiate a repeal of the rule

14 that could also be true the expedited Section 8

15 process, and if we have any kind of date attached

16 to the vacation of the rule, we will fit it into

17 the emergency rulemaking process.

18 And so, as we've thought all of this out,

19 as IDEM staff has thought all of this out, what

20 could happen is that if the rule is vacated or

21 there's other invalidation, at the next Board

22 meeting after the date of that vacation, we would

23 bring something back to this Board that could be
34

1 an emergency rule, okay, to invalidate the state

2 amendments, or it could be an emergency rule and

3 the start of a regular rulemaking to invalidate

4 the amendments.

5 MR. BENSHOOF: So, why couldn't that,

6 what you just stated, be included in this rule,

7 that there would be --

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MS. LONG: Okay.

MR. BENSHOOF: a way out, a way to

10 vacate this, a way to

11 MS. LONG: And that's the off-ramp

12 language I think we've had some amount of

13 discussion on. We sat down with the Deputy

14 Attorney General who reviews our rulemakings, and

15 basically the Attorney General's Office is saying

16 to us that the way to repeal a rule is through

17 the statutory mechanism; that you repeal one rule

18 by doing another rulemaking.

19 We were okay in the emergency rule with

20 our expiration provisions, because it was just a

21 temporary rule, and we actually have to have an

22 expiration clause. But with a permanent

23 rulemaking, the mechanism for getting us out
35

under the law is another rulemaking, and we just

can't have an automatic kind of self-destruct

question I have: Do we know, has other states

provided an off-ramp for such a rulemaking

process as dealing with this issue?

Attorney General's Office has advised us real

specifically.

MR. CUNDIFF: And if we didn't listen

to the Attorney General, he would have rejected

it.

MS. LONG: That's correct.

MR. BENSHOOF: What has other states

done? Do you know what other states have done?

MS. LONG: Susan would be the one to

talk about that. I just know that other states

have gone ahead and done rulemakings, and I can't

name those states. Susan could probably do that.

I mean I'm remembering reading some notices that

talked about states --

But the

That's what the

Other states have

aware of another

Okay.

MS. BEM: I'm not

MR. BENSHOOF:

state providing an off-ramp.

mechanism in the rule itself.

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1 just gone forward with putting state rules in

2 place with the greenhouse gas provisions. EPA

3 has started approving some of them. I know one

4 state we looked at this week was Kentucky, where

5 EPA's already started approving their PSD

6 portions of the greenhouse gas program for

7 proposed approval. I am not aware of that state

8 having an off-ramp.

9 MR. DELONEY, And there are also a

10 number of states that don't have to take any

11 rulemaking action because, you know, they would

12 already be deemed to have the authority to

13 regulate greenhouse gases as a regulated

14 pollutant.

15 The other thing that I did want to

16 mention, too, just pigging-backing on what Ann

17 was mentioning in regards to, you know, how --

18 what actions would be taken in order to repeal

19 this rule or invalidate it if it's in effect

20 after, you know -- or before action occurs at the

21 federal level.

22 That's a nonissue between now and really

23 the end of March, beginning of April, because if
37

MR. ANDERSON: We need to have it

basically mirror what it says

happens with regard to the litigation prior to

this rule being in effect, which wouldn't be

until the end of March, beginning of April.

is either we are going to have the ability to do

the permitting ourselves in the State of Indiana

with this rule, or we can change it at a point or

do whatever and let EPA do the permitting, and to

me, isn't that basically the two options that

we're looking at?

anything happens, you know, with the federal

program between now and then, we have the ability

to withdraw the rule, and at the time that we

withdraw the rule, the way the emergency rule is

structured is that the emergency rule is then

invalidated as well.

So, then, boom, there -- neither the

emergency rule or this rulemaking would be in

I have a question for

MS. LONG: Because of --

MR. ANDERSON:

I guess the way I'm understanding it

It only becomes an issue if nothing

Ann, too.

place.

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1 MS. LONG: Uh-huh.

2 MR. ANDERSON: -- or risk the option

3 of losing the authority.

4 MS. LONG: At this point in time,

S yes, those a'l:"e the two op-tions. I feel like I

6 ought to technically answer your question about

7 all of your options just by reading this from the

8 statute.

9 MR. ANDERSON: uh-huh.

10 MS. LONG: For particularly a

11 Section 8 rulemaking, the Board can adopt the

12 proposed rule, the Board can reject the proposed

13 rule, the Board can determine that additional

14 public comment is necessary, or the Board can

15 determine to reconsider the proposed rule at a

16 subsequent Board meeting.

17 You all have any of those options

18 available to you, so, again, it's just a question

19 of timing and what we understand is going to

20 happen on January 2nd, 2011. So

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MR. BENSHOOF: Dr. Miner?

CHAIRMAN MINER: Yes.

MR. BENSHOOF: And I understand what
39

1 the options is. I think we're playing a little

2 scared cat here, thinking that the Federal

3 Government is going to come in here and take over

4 our rulemaking process. I mean I've sat on some

5 rule--

6 COMM. EASTERLY: Not the rulemaking

7 process.

8 MR. BENSHOOF: Or the implementation.

9 MS. LONG: Yeah, permitting.

10 COMM. EASTERLY: Permitting of

11 greenhouse gases, yes.

12 MR. BENSHOOF: And I think we're -- I

13 think we're kidding ourselves if we think that

14 would happen. I mean, you know, we threatened

15 EPA a number of years ago to take our programs

16 because of funding, and they looked at us and

17 said we need to work it out, but that's another

18 issue. I'm just commenting on my observation.

19 My concern is, is that we're moving

20 forward with a rule through emergency rulemaking

21 that we're forcing this Board, me, to have to

22 take a decision on, which I can say it's not

23 really emergency rulemaking what we did last
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1 month and -- or two months ago, and we passed it.

2 And now you're asking us to use a process

3 which, to me, is -- it is ~eally d€signed to be a

4 process that is a noncontroversial issue. It's

5 something that is being brought to the Board to

6 adopt because it's a federal rule that the state

7 needs to implement or to move forward with.

8 Well, clearly at the federal level this is

9 controversial. There's a court action now, but

10 either Congressional or by court action, it could

11 be changed. And let alone, we sat in this room

12 two months ago and we heard testimony of people

13 that said wait three months until the court

14 action. So, you can't tell me that it's not

15 controversial and it doesn't -- and we're using

16 another process.

17 Now, my feeling is here is that what I'm

18 hearing you say, and what I'm hearing IDEM say,

19 is that if, in turn, something happens at the

20 federal level where, in turn, this rule would be

21 changed or abandoned because of a court decision

22 or a Congressional decision, that you would then

23 implement emergency rulemaking to change it, so
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1 that we would have -- we could then move forward

2 in the State of Indiana.

3 What I would like to do is propose a

4 resolution that we get a commitment out of IDEM

5 that that's what would be done. I mean we're

6 sitting here right now listening to them. I

7 would like something more. They're going me to

8 adopt rules. They're saying that they would do

9 this.

10 Can we get a commitment -- I would like to

11 make a resolution that IDEM would then move

12 forward with emergency rulemaking to come in line

13 with whatever the Federal Government, whether

14 it's by court action or Congressional decision,

15 do.

16 CHAIRMAN MINER: Well, right now I

17 don't think that's the appropriate move here.

18 MR. CUNDIFF: Right. We do

19 rulemaking. We don't tell IDEM what to do.

20 That's two different things. I mean we've

21 already got a commitment on the record on here

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MR. BENSHOOF:

MR. CUNDIFF:

Okay.

-- that they would not
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1 enforce it. We've got it in effect without us

2 making a motion and voting.

3 CHAIRMAN MINER: Right. I agree.

4 MR. BENSHOOF: Okay.

5 CHAIRMAN MINER: Ann, thank you very

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much.

Any other questions for Ann?

8 MS. LONG: Okay.

9 CHAIRMAN MINER: Very good.

10 I have some cards from people who wish to

11 comment on this rule at this time. The first one

12 I have is Ann McIver.

13 THE REPORTER: Mr. Chairman, before

14 she starts, I've got to change my disk.

Mr. Chairman and members of the Board.

is Ann McIver. I'm offering these comments today

No, problem, Lindy.

Thank

My name

(Pause in proceedings.)

CHAIRMAN MINER: All right.

CHAIRMAN MINER:

Ann, please.

MS. MCIVER: Good afternoon,

you.

Go ahead.

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1 representing the Indiana Chamber of Commerce, and

2 I serve as Vice-Chair of the Chamber's Air

3 Subcommittee.

4 Chamber members are affected by IDEM's

5 proposal to establish greenhouse gases as a

6 regulated pollutant for the state's PSD and

7 Title V permit programs. The Chamber remains

8 concerned with the schedule for this rulemaking,

9 though we appreciate the position that IDEM is in

10 with respect to the EPA's demand that states

11 ensure their programs incorporate requirements

12 related to greenhouse gas -- greenhouse gases.

13 The Chamber doesn't believe that delaying

14 adoption of this rule will result in negative

15 consequences for IDEM, existing Indiana

16 businesses, or slowing new business development

17 in the state. Now is not the time to impose

18 unnecessary regulations on businesses that are

19 still struggling to recover from this weak

20 economy.

21 The business community should be allowed

22 to use the normal administrative rulemaking

23 processes if they're going to be regulated for
1 greenhouse gases for the first time.

44

We believe

2 the existing governing SIP modification process

3 would allow IDEM up to three years to make any

4 appropriate revisions in incorporating greenhouse

5 gas permitting requirements.

6 What a short delay in adopting this rule

7 would achieve, however, is the ability to learn

8 the outcome of the various pending legal actions

9 in federal courts to slow down or stay EPA's

10 Greenhouse Gas Tailoring Rule at the national

11 level, like you all just talked about.

12 A delay would also provide a greater

13 understanding of Congressional action and defer

14 putting Indiana in the position of having to

15 regulate greenhouse gases, potentially, when

16 other states .and the Federal Government may not

17 in the near future if there's no longer a federal

18 requirement.

Any questions for Ann?

Ann, so, you're hoping

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So, thank you.

CHAIRMAN MINER:

MR. BACONE:

Thank you, Ann.

23 for a short delay; is that --
45

1 MS. MCIVER: Yes.

2 CHAIRMAN MINER: The next card I have

3 is Trevor Vance.

4 Mr. Vance?

disadvantage if they didn't implement an

emergency rule to get back in line with what the

Feds did?

Affairs, here on behalf of United States Steel.

We are members of the Indiana Chamber, and I

agree with everything that's been said earlier.

We also have comments that have been dated

September 28th and added to the rule, so I won't

repeat those.

We also -- our major thing is that if this

is mirroring federal law that is vacated, that

the state would then be on an economic

disadvantage for any future permits and so forth.

That's all I wanted to say today.

My name is Trevor Vance, Public

Thank you, members of the

Economic

Any questions for

MR. BENSHOOF: Okay.

CHAIRMAN MINER:

MR. VANCE:

Mr. Vance?

committee.

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CHAIRMAN MINER: Thank you, Trevor.

The next card I have is from Mr. Stan

Pinegar.

Indiana would still have additional loopholes

that other states may not have by other states

not adopting the rule; that there would be

additional permit loopholes and processes that

they would have to go through to be permitted in

Indiana.

MR. PINEGAR: Thank you, Mr. Chairman

and members of the Board. My name is Stan

Pinegar. I'm the President of the Indiana Energy

Association, and I rise today on behalf of the 13

members, the investor-owned electric and gas

members and one public charitable trust of the

lEA, as well as four electric generation entities

which are not members of the lEA but participate

in our Indiana Utility Group.

I think I'm going to throwaway my

prepared comments, which is probably a delight

for most of you, but let me just say I testified,

as you may remember, at the emergency rule

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MR. VANCE: There would be -- that

46
47

1 consideration in November, and we still believe

2 that many of the factors that I tried to layout

3 at that time are in play.

4 Most notably, that this rule on the

5 federal level is -- the standing of this rule is

6 at risk, and you'll remember I indicated there's

7 a court action at the D.C. Circuit, which has

8 been expedited by that Court. There are briefs

9 having been filed. They expect to make some

10 ruling with regard to this rule, observers think,

11 by the end of the year or potentially by

12 January 2nd or 3rd, whichever the applicable date

13 might be.

14 And we also think that while this

15 lame-duck session of Congress may not produce

16 much of anything, let alone in this area, that

17 the 2011 session the U.S. Congress may address

18 this rule as well in some fashion, limiting EPA's

19 authority.

20 I want to state up front that we are still

21 very much in favor of IDEM maintaining control

22 over this program. That's paramount. We

23 wholeheartedly agree with that proposition, and
48

1 as I said, we still continue to believe that the

2 rule may be -- certainly not with any certainty,

3 but may be impacted by the courts or by Congress.

4 And we appreciate, both in the response to

5 comments and in Ms. Bem's presentation, the many

6 remedies that IDEM believes that it has in order

7 to address the rule if one of those intervening

8 forces, or two, come about and cause Indiana to

9 take some action.

10 We recognize those actions. We're not

11 sure about how all of those work exactly, the use

12 of an emergency rule to essentially revoke a

13 permanent rule. I'm not sure about that. Maybe

14 it's been reviewed and maybe that is -- maybe

15 that is a good tool.

16 The use of enforcement discretion, as you

17 may remember, was used -- I'm sorry; excuse me --

18 was used a few years ago in the Clean Air Mercury

19 Rule rulemaking. The Indiana Attorney General at

20 that time, Steve Carter, I think, provided IDEM

21 with some guidance in that respect.

22 But that's a little different rule than

23 what you're considering today, as I understand
49

1 it. That rule was not eventually going to be

2 part of our SIP, or at least wasn't in the

3 wasn't included in our SIP at the time of IDEM

4 utilizing that enforcement discretion with regard

5 to that rule.

There was discussion earlier about the

case, this rule may become part of our SIP.

6

7

8 likely.

In this case -- I'm very sorry. In this

It's

9 need and EPA's desire for this rule to become

10 part of our SIP. And so, we wonder about the use

11 of enforcement discretion when -- when the rule

12 is actually part of our state implementation

13 plan.

14 It seems to me there a couple of scenarios

15 here. We actually we advocated off-ramps in

16 our written comments. We provided specific

17 suggested language in our written comments, as

18 has been indicated a couple of times here this

19 afternoon already.

20 I suess there's been a couple of problems

21 with that. One, we'd have to start Section 8

22 rulemaking potentially over again, or another

23 form of rulemaking. Two -- and an instance which
50

1 I was not aware of but was discussed today. I

2 would have no reason to disagree with it -- that

3 the Attorney General has advised that they will

4 not accept off-ramp language.

S We would like to see off-ramp language.

6 It is being used in other states, most notably,

7 Ohio, and I understand that may be nothing more

8 than their state laws or their State Attorney

9 General allowing that language in their rule,

10 whereas ours apparently does not, and we

11 understand that.

12 But it seems that there are a couple of

13 scenarios here where there could be gaps that are

14 quite concerning and could raise the specter of

15 third-party actions against the regulated

16 community and IDEM.

17 One scenario might be the time that it

18 will take to -- to -- for the state rule to be

19 taken off the books by this Air Board in one of

20 the mechanisms that was discussed earlier in this

21 discussion. During that interim, it seems that a

22 third party could file an action and attempt to

23 force IDEM and the regulated entity to be
51

1 permitted under this section.

2 The second scenario that may create a

3 consequence, it seems to me, is if this rule is

4 accepted by EPA into our state implementation

5 plan, and it seems at that point -- we can do

6 what we want in Indiana. You can go through one

7 or several of the mechanisms that have been

8 explained to take that rule off Indiana's books.

9 But at that point EPA has, it seems to me,

10 some leverage over Indiana with regard to how we

11 might permit entities that are subject to the

12 rule. So, that, it seems to me, is a real

13 danger. I know that takes a lot of time.

14 There's an opportunity for interested parties to

15 intervene in that process.

16 But we don't know what the timing of all

17 of this may be. The D.C. Circuit Court and

18 Congress both have demonstrated over and over

19 that they both take a lot of time to make up

20 their minds on rules of this nature.

So, in closing, again, we want IDEM to be

in control of this rule.

21

22

23 priority.

That's our first

I guess in closing, I would just ask
52

1 again, reiterate that you'll hear over and over

2 again today that both IDEM and this Air Board be

3 vigilant in monitoring whatever steps Congress

4 and the courts might take with regard to this

5 rule, and immediately take the most appropriate

6 action to get this rule off our books and work

7 with EPA to ensure that they are not going to

8 come in and create an unintended consequence for

9 our regulated community.

10 Thank you for your attention. I'd be

11 happy to answer any questions.

12 CHAIRMAN MINER: Thank you, Stan.

13

14

Yes, David.

MR. BENSHOOF: So, are you in favor

15 for us to adopt this rule, or are you not in

16 favor for us to adopt this rule?

17 MR. PINEGAR: We are -- well, as I

18 said, our paramount interest in IDEM maintaining

19 control of this program causes us to favor

20 adoption of the rule.

21

22

23

MR. BENSHOOF: Thank you.

MR. PINEGAR: Thank you very much.

MR. CUNDIFF: It was hard to say,
53

1 wasn't it?

2

3

4

(Laughter.)

MR. BENSHOOF: Reluctant.

CHAIRMAN MINER: Very good. The next

5 card I have is from Mr. Patrick Bennett.

6 Mr. Bennett?

7 MR. BENNETT: Thank you,

8 Mr. Chairman, members of the Board. Patrick

Bennett, with the Indiana Manufacturers

Association.

It doesn't seem like it's been nearly a

month since we were here talking about the

emergency rule, and I'd start off again by saying

that we sympathize with the agency and the

that's developed elsewhere, at the federal level,

that's caused this to happen, and it's an

unfortunate position to be in.

The decision was made by the

administration and the Commissioner to advise to

go in this direction, and we respect that. We

would agree that the agency maintaining and

Indiana maintaining control of the program is

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administration and this Board. It's a situation
54

1 important.

2 However, as we'd indicated last month, we

3 would urge thi s body and the ag·ency to be

4 cautious, to be careful of the unintended

5 consequences that could come about from the

6 adoption of this rule. It'£ apparent at this

7 point that a delay in the adoption of either one

8 of these - - certainly the emergency rule's ove.r,

9 but this one is unlikely, if nDt impossible, at

10 this point.

11 I would say, as you've heard from other

12 speakers, and I'll just generally endorse, that

13 there are definitely factors beyond the control

14 of this room, in Washington, regulatory,

15 legislative and litigation, that goes on that can

16 and very likely will change the outcome of this.

17 We can appreciate the offer for

18 enforcement discretion going forward, although

19 that comes as little comfort, as much as we

20 appreciate it going forward, because it's not the

21 wishes of this body or the agency and the

22 administration that the manufacturing community

23 would be worried about it. It's others who have
55

1 an opportunity to intervene, a third party, to

2 bring an action once this is out and on the

3 books.

4 And there's some discussion you heard

5 along the way, and probably in and out of this

6 meeting, about the use of off-ramps. What do we

7 do if we were wrong? How do we undo this? It's

8 an important thing to consider, and we've heard

9 that the Attorney General's Office advises that

10 an off-ramp is not possible and the proper way is

11 to have an additional rulemaking to undo

12 something, and that certainly we can't disagree

13 with.

14 I think one of the things to keep in mind,

15 and I mention this just to get it on the record,

16 is that one of the considerations that an

17 off-ramp is not an appropriate way to go is the

18 underlying portion of the Constitution that says

19 that Indiana won't have a law that's dependent on

20 another body's authority.

21 So, you, as lawmakers preparing to adopt a

22 rule, they're saying, "Don't include something

23 that's dependent on another authority." It's
1 sovereignty.

56

And that's not all that dissimilar

2 if you think about the basis of this rule, and

3 I'm not saying that you don't have -- it's not

4 r,etracting what I said about it being

5 unfortunate.

6 But the basis of this rule is now going to

7 be a law adopted in Indiana Administrative Law

8 based on the authority of another, the authority

9 of another body to act in the future. We think

10 it's premature. We would encourage you to wait,

11 although we think that that time's passed.

12 So, we just appreciate this position

13 you're in, and hope for the best.

14 Thank you.

15 CHAIRMAN MINER: Thank you, Patrick.

16 Any questions for Patrick?

17 (No response.)

18 CHAIRMAN MINER: The next card I have

19 is Miriam Dant.

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21

MS. DANT:

members of the Board.

Thank you, Mr. Chairman,

Miriam Dant, with Dant

22 Advocacy, representing Nucor Steel.

23 I won't be redundant. Nucor agrees with
57

Any questions for Mrs. Dant?

(No response.)

I have no further

Thank you, Ms. Dant.

CHAIRMAN MINER:

the statements made by the previous speakers

regarding the appropriateness of an off-ramp in

this rule. We understand the difficult legal and

logistical position that IDEM is in, but because

of the substantial uncertainty about whether the

rule will still be in effect down the road, we

would prefer to have the rule adopted with some

sort of off-ramp language.

Thank you.

CHAIRMAN MINER:

cards regarding this rule. Is there anyone

present who wishes to speak at this time?

(No response.)

CHAIRMAN MINER: Seeing none, this

hearing is now concluded. We are ready for Board

action on adoption of amendments, 326 lAC 2,

Greenhouse Gas Tailoring Rule. Are there any

questions from the Board at this time regarding

the rule?

Yes, David.

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1 MR. BENSHOOF: So, we can't -- we

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2 can't make an amendment -- propose an amendment

3 that we include an off-ramp?

4 CHAIRMAN MINER: Well, I think it's

5 been perfectly elaborated that if we do that such

6 thing -- we can do that, but we just then change

7 the rulemaking process, delaying it past the

8 deadline that would potentially put us in the

9 position where we would no longer have the

10 ability to write our own permits.

11 And so, if we were to decide to do that,

12 the whole intent of this whole process, which is

13 an effort to keep control of our own permitting

14 process, would have been thwarted.

15 I don't know that there's any person in

16 this room, except maybe a few, or some, that has

17 a strong feeling that this is necessarily the

18 right way that we ought to be going about this.

19 I think unfortunately we're in a dilemma based on

20 the federal rule, you know.

21 And to Patrick's comment, you know, there

22 are lots of rules, unfortunately, that are on the

23 state level; i.e., the Constitution, that are
59

1 from other bodies that are applied within our

2 state or directly driven by our state, so this is

3 one of those situations where if we want to keep

4 control, or have the potential to lose control --

5 MR. BENSHOOF: Well -- and I respect

6 that, and I -- but I think we're missing an issue

7 here, and the issue is, is that if we adopt

8 something, we may be, quote, in control of our

9 permitting process in the state, but we've opened

10 up our businesses to other liabilities that now

11 is going to be placed on them, like third-party

12 suits that are a lot more hungry to put a company

13 out of business than EPA would be.

14 And so, here we are. You're saying we

15 need to move forward on one end because we're

16 scared that EPA's going to come in and take our

17 program, and that's going to hurt our economic

18 development. On the other hand, we get something

19 on the books, even for a short period of time,

20 and now we've opened those entities up for

21 third-party suits and for other actions that

22 aren't even in the regulatory process.

23 And so, that's -- you know, if I'm a
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1 business, what is my biggest threat? My biggest

threat is going to be somebody's going to get

ahold of something and is going to sue me.

clarify that those are the other issues that are

out there. It's just not about permitting and

what the state wants, to keep control of

permitting. There are other issues out there

that we -- we're not dealing with this at the

same level, and they're a just as real, if not,

in my mind, a more real live threat to a business

than the regulatory process.

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CHAIRMAN MINER:

speak to that personally.

MR. BENSHOOF:

Well, I mean I can't

I mean I don't have

I'm just trying to

15 COMM. EASTERLY: But you would need

16 to be subject to the rule. You need to have

MR. BENSHOOF: Right.

COMM. EASTERLY: -- which means right

have done something to the rule that you didn't

do --

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taken an action that

CHAIRMAN MINER:

COMM. EASTERLY:

Right.

you would have to
61

now, between now and July 1st, you would have had

to have built a source that had a significant

increase in greenhouse gas emissions without

liability.

After July 1st, you would have to either

have done that or be a source that is so large

that it needs greenhouse gases in its Title V

permit, which we're talking about, I suspect,

power plants, steel mills, maybe BP.

Can you think of anybody else?

getting a permit. Otherwise, you don't have any

And again, I would

A handful of these

Indiana generating

COMM. EASTERLY:

CHAIRMAN MINER:

MR. PINEGAR:

stations.

sources.

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17 assume the liability would lie more with us,

18 outside of failing to have a permitting rule or

19 having some detrimental ruling against a company

20 would fall more with us not acting as a third

21 party coming at somebody, it would be, "IDEM, how

22 come you're not enforcing your rule?" so to

23 speak. And I don't know if you want to speak to
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1 that or if that's an issue for you or --

2 COMM. EASTERLY: Well, that's why we

3 want to repeal the rule if --

4 CHAIRMAN MINER: Yes.

5 COMM. EASTERLY: -- the underlying

6 federal thing goes away. The emergency rule,

7 that will be effective as the repeal the date

8 it's filed, can happen at any Board meeting after

9 the federal action happens, which means that's

10 the most - - the worst -case, if we really had

11 something and we couldn't withdraw our other rule

12 is we have to give notice of the Board meeting,

13 which is -- you know, and a special Board

14 meeting, which is the 30-day thing, so we'd have

to wait 30 days to get an action from you to make

it repealed.

MR. QUYLE: Could I ask one question?

Could you actually begin the Section 8 process to

adopt the off-ramp language and have that going

through the process?

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21 COMM. EASTERLY: I'll have to ask

22 Ann, but I don't think so, because you need a

23 federal date, usually, to have the Section 8
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1 speedy thing.

2 Is that correct, Ann?

3 MS. LONG: Yes, and that -- and I am

4 grateful to Mr. Patrick Bennett for bringing up

5 the Constitutional issue, which I could talk

6 about, but I won't, okay, for time's sake,

7 because it's kind of like the sword cuts both

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ways.

The story on the off-ramp issue is it's a

problem with the Attorney General's Office and

with Indiana law no matter how you do it. If

you -- if you all wanted to put off-ramp language

in the rule, I can almost guarantee -- because

nothing in life is certain, I can almost

guarantee the Attorney General's Office will

disapprove the rule, because they're going to

say, among other things, that we're putting

language in the rule where, oh, the existence or

nonexistence of a particular law depends on what

happens in a Federal Court in Washington, D.C.

MR. DELONEY: In the future.

MS. LONG: In the future.

COMM. EASTERLY: I think Jeff's other
1 question was:

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Could we start the Section 8 next

2 week, you know, notice it, because there's still

3 30, 40 days in the --

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MS. LONG: Oh.

COMM. EASTERLY: -- Section 8

6 process more than at that, actually, because

7 we have to respond to the comments - - to repeal

8 it, and I thought we could only do that if we had

9 an underlying federal thing that drives it.

10 MS. LONG: See, that's the deal, and

11 I think there were two questions: One, could we

12 do a Section 8 to amend this rule, to put an

13 off-ramp, and that's the one that just kind of

14 runs into the legal brick wall with the A.G. 's

15 Office.

16 And the other problem is if you start a

17 Section 8, anticipating that the rule's going to

18 be -- or I'm sorry -- that the federal rule will

19 be vacated, then you're anticipating an action

20 that mayor may not happen. You just don't have

21 any justification, let's say, to do that until

22 there is some kind of federal vacation or

23 invalidation.
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1 And I have to say the procedure protects

2 people. It protects everyone, legally and in

3 terms of going through jumping the hoops, by

4 doing a repeal rulemaking after there's some kind

5 of federal validation or vacation. That's the

6 process that needs to be followed under the law.

No, because, see, there's

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COMM. EASTERLY:

that process today?

MS. LONG:

But I couldn't start

10 no justification, and that you're building a

11 procedural weakness into that rule, if you see

12 what I mean. You're starting out ahead of time,

13 ahead of a vacation, and so there's another issue

14 that could potentially involve third-party

15 lawsuits, because a rule could be challenged for

16 not being procedurally correct within two years

17 after it's enacted. Okay.

18 MR. DELONEY: There could be a

19 partial vacature as opposed to a complete

20 vacature.

21 MS. LONG: Right, and that's why I

22 have to go back and say -- let me go back to the

23 whole ·We can do an emergency rule basically to
1 get rid of these provisions." It has to fit into

2 the emergency rule statute, and the emergency

3 rule statute says that you can do an emergency

4 rule when you have a federal action that has a

5 deadline.

6 And again, I've discussed this with the

7 Attorney General's Office. It's conceivable, the

8 way this could come down, you wouldn't exactly

9 fit into the emergency rule action, and so

10 probably it would, but I don't know that. I

11 don't know how it's going to come down.

12 And that's why I'm trying to be cautious

13 and say that if we can possibly justify doing an

14 emergency rule to repeal these amendments, we

15 will go ahead and bring that before the Board as

16 soon as possible. If not, we can rely on a

17 Section 8 rulemaking, if it's appropriate. If we

18 have the right kind of thing going on with the

19 federal action, that will repeal this rule.

20 And we've really gamed this all out, so to

21 speak, with the Attorney General's Office. We've

22 looked at all of our options, and anything else

23 really does build a procedural weakness into the
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1 system, and that's as much of a potential danger

for Ann?

(No response.)

as the enforcement discretion issue.

And I guess I want to say if there's a

total federal vacature of this rule, and we've

said this in the response to comments, that the

underlying authority is gone; okay? And so, the

idea that the rule could be as part of the state

SIP and kind of just be lingering there until

something is done with it, practically speaking,

I just don't see a problem with that, if you've

got a federal action that in effect just

invalidates the rulemaking, because you're really

taking away that underlying authority to regulate

greenhouse gases in the way that the Tailoring

Rule and EPA's scheme would suggest.

So, is there anything else?

CHAIRMAN MINER: Any other questions

MS. LONG: Okay.

CHAIRMAN MINER: Any other questions

CHAIRMAN MINER: Thank you again,

Ann.

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1 from the Board regarding the rule?

2 (No response.)

3 CHAIRMAN MINER: I would now

4 entertain a motion for adoption of 326 lAC 2.

5 MR. ANDERSON: So moved.

6 CHAIRMAN MINER: I have a motion from

7 Mr. Anderson.

8 DR. STEVENS: Second.

9 CHAIRMAN MINER: A second from

no.

yes.

Mr. Cundiff?

MR. CUNDIFF: Yes.

CHAIRMAN MINER: Mr. Cundiff votes

Mr. Benshoof?

MR. BENSHOOF: No.

CHAIRMAN MINER: Mr. Benshoof votes

Yes.

Eric votes yes.

Yes.

I will now do a roll-call vote.

MR. HORN:

MR. LEVENHAGEN:

CHAIRMAN MINER:

Mr. Horn?

Eric?

10 Dr. Stevens.

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yes.

1 Mr. Horn votes yes.

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CHAIRMAN MINER:

Mr. Staley?

MR. STALEY: Aye.

CHAIRMAN MINER: Mr. Staley votes

Mr. Quyle?

MR. QUYLE: Yes.

CHAIRMAN MINER: Mr. Quyle votes yes.

Dr. Stevens?

DR. STEVENS: Yes.

CHAIRMAN MINER: Dr. Stevens votes

Dr. -- Mr. Bacone?

14 MR. BACONE: Yes.

15 CHAIRMAN MINER: Mr. Bacone votes

16 yes.

17 Mr. Anderson?

18 MR. ANDERSON: Yes.

19 CHAIRMAN MINER: Mr. Anderson votes

20 yes, and I vote yes as well, so the decision

21 passes.

22 The next item on our agenda is a public

23 hearing before the Air pollution Control Board of
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2

CERTIFI'CATE

I, Lindy L. Meyer, Jr., the undersigned

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3 Court Reporter and Notary Public residing in the

4 City of Shelbyville, Shelby County, Indiana, do

5 hereby certify that the foregoing is a true and

6 correct transcript of the proc.e.edings taken by me

7 on Wednesday, December 1, 2010 in this matter and

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transcribed by me.

Lindy

~~~~. L. Meyer, Jr.,

Notary Public in and

for the State of Indiana.

15 My Commission expires October 27, 2016.

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. ,.