IDEM Proposes Change to Definition of “Major Source” in Title V Rules to Address Greenhouse Gases
By Jennifer Thompson, Attorney, Bingham Greenebaum Doll LLP
On February 23, 2011 the Indiana Department of Environmental Management (“IDEM”) public noticed its “Findings and Determination of the Commissioner regarding the Development of Amendments to Rules Concerning the Title V Greenhouse Gas (“GHG”) Tailoring Rule and the Definition of Major Source” in the Indiana Register (LSA #11-85). The proposed rule seeks to amend 326 IAC 2-7-1(22), Indiana’s Title V definition of “major source,” which currently includes sources with a potential to emit 100 tons per year or more of “any regulated air pollutant subject to regulation.” IDEM seeks to amend the definition because the term “regulated air pollutant” defined at 326 IAC 2-7-1(32) does not include GHGs.
IDEM’s notice for the rulemaking explains that an additional change is necessary to clarify the inconsistencies created when IDEM adopted Indiana’s GHG Tailoring Rulemaking, LSA #10-505. Along with establishing GHG thresholds for New Source Review Prevention of Significant Deterioration (“PSD”), LSA #10-505 also sets the Title V Operating Permit thresholds for GHG pollutants. This was done by amending the Title V definition of “major source” by inserting the phrase “subject to regulation” and by adding a definition of “subject to regulation” which includes any air pollutants that are regulated under the Clean Air Act and includes permitting thresholds for GHG pollutants.
Because the LSA #10-505 definition of “major source” includes a reference to “subject to regulation” which differs from the definition of “regulated air pollutant,” IDEM has noticed the following change to the definition of “major source” at 326 IAC 2-7-1(22)(B), consistent with the federal definition of “major source” found at 40 CFR § 70.2.
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 proposed amendment leaves the door open for the argument that new pollutants regulated by U.S. EPA in the future would automatically be incorporated into Indiana’s Title V rules, just as LSA #10-505 opened the door for arguments that these pollutants would automatically be incorporated into Indiana’s PSD rules.
IDEM has opted to adopt the proposed amendment utilizing the expedited Section 8 Rulemaking procedures (IC § 13-14-9-8). The first public comment period for the proposed amendment closed on March 25, 2011. Therefore, IDEM may now proceed with bringing the proposed rule to the Indiana Air Pollution Control Board (“APCB”) for adoption. Another opportunity to comment on the proposed rule will be afforded at said APCB meeting.
A copy of IDEM’s February 23, 2011 notice of LSA #11-85 can be viewed at: www.in.gov/legislative/iac/irtoc.htm?id=1.7.3&hdate=20110228&ldate=20110201.