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Indiana Office of Environmental Adjudication Rules Preventative Maintenance Plans Required for Emission Units

02.01.2007

By Jennifer Thompson, Attorney, Bingham Greenebaum Doll LLP

On December 9, 2003 Nucor Steel Corporation (“Nucor’) filed its objections to Prevention of Significant Deterioration (“PSD”) and Part 70 Significant Source Modification (“SSM”) No. 107-16823-00038 regarding modifications to its steel mini mill located in Crawfordsville with the Indiana Office of Environmental Adjudication (“OEA”). Additionally, on May 12, 2006 Nucor filed objections to the issuance of PSD and Part 70 SSM No. 107-21359-00038 with the OEA. These two permit appeals were consolidated. Central to the appeal was Nucor’s contention that IDEM incorrectly required preventative maintenance plans (“PMPs”) for emission units, rather than requiring PMPs only for the emission control devices at Nucor’s facility. Prior to 2002 no permit issued to Nucor had required a PMP for an emission unit.

Nucor moved for partial summary judgment on the issue of whether PMPs can be required for emission units, rather than only for emission control devices at its facility. In response to Nucor’s motion, Environmental Law Judge Catherine Gibbs entered Findings of Fact and Conclusions of Law concluding “[t]he first sentence of this section [326 IAC 1-6-3] clearly states that the owner or operator of a facility shall have a preventive maintenance plan” and goes on to hold that 326 IAC 1-6-3 authorizes IDEM to require PMPs for emission units in addition to emission control units. Judge Gibbs, citing to Indiana Rule of Trial Procedure 56(B), then granted summary judgment in favor of the IDEM.

Although Judge Gibbs concluded “that 326 IAC 1-6-3 authorizes IDEM to require PMPs for emission units in addition to emission control units,” her analysis did not address the apparent inconsistency between 326 IAC 1-6-3(a) and (b). The specific wording of 326 IAC 1-6-3(a) commands that a permittee shall prepare and maintain a preventative maintenance plan. While, 326 IAC 1-6-3(b), on the other hand appears to be discretionary where it states: “As deemed necessary by the commissioner, any person operating a facility shall comply with the requirements of subsection (a) of this section.” If 326 IAC 1-6-3(a) requires all facilities to have a PMP for both emission units and their control devices, the decision is not only a departure from IDEM’s current policy of not requiring PMPs for all emission units but also raises a question as to whether IDEM has been including all applicable requirements in Title V Permits.

Because Judge Gibbs’ order does not resolve all of the issues in Nucor’s appeal, we must await her Final Findings of Fact and Conclusions of Law to see whether or how the inconsistency between 326 IAC 1-6-3(a) and (b) is addressed. Nucor’s appeal is docketed under Cause Nos. 03-A-J-3253 and 06-A-J-3716.

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