EnviroNotes

By Matt Gernand, Attorney, Environmental Law Department, Bingham McHale LLP

On June 18, 2007, the U.S. EPA announced a partial approval of revisions to the prevention of significant deterioration (“PSD”) and nonattainment new source review (“NSR”) construction permit programs as requested by the Indiana Department of Environmental Management (“IDEM”). See 72 Fed. Reg. 33395 (June 18, 2007).

As requested by the IDEM, the approval did not include Indiana’s Clean Unit and Pollution Control Project (“PCP”) provisions. The federal Clean Unit and PCP rules were vacated by the United States Court of Appeals for the District of Columbia on June 25, 2005. See New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005). In a separate rulemaking on June 13, 2007, the U.S. EPA amended its PSD and NSR rules to eliminate the Clean Unit and PCP provisions. See 72 Fed. Reg. 32526 (June 13, 2007). Indiana is preparing a rulemaking that will remove the Clean Unit and PCP provisions from its state rules.

In addition, at the IDEM’s request, the U.S. EPA did not approve Indiana’s inclusion of hazardous air pollutants (“HAPs”) in the definition of “regulated NSR pollutant.” Under Indiana’s definition of “regulated NSR pollutant” at 326 IAC 2-2-1(uu)(5) and (xx)(1), asbestos, beryllium, hydrogen fluoride (with fluorides), mercury, and vinyl chloride are included as regulated NSR pollutants. These pollutants are listed as HAPs under Section 112(b) of the Clean Air Act. 40 CFR Part 63, Subpart C. Section 112(b)(6) of the Clean Air Act provides that the PSD permitting program shall not apply to HAPs. 42 U.S.C. § 7412(b)(6). After receiving adverse comments, the IDEM requested that the U.S. EPA withdraw 326 IAC 2-2-1(uu)(5) from its SIP approval request. U.S. EPA agreed with the adverse commentors and stated that the IDEM did not have an “independent basis” to support the inclusion of HAPs in the definition of “regulated NSR pollutant.” As a result U.S. EPA did not incorporate 326 IAC 2-2-1(uu)(5) into Indiana’s SIP.

The SIP approval becomes effective on July 18, 2007.

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