Approval and Promulgation of State Plans for Facilities and Pollutants: Indiana; Plan for Controlling Emissions from Existing Commercial and Industrial Solid Waste Incinerators

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving the plan submitted by the Indiana Department of Environmental Management (IDEM) on December 20, 2002, under sections 111(d) and 129 of the Clean Air Act (Act). This plan is designed to implement and enforce the federal Emission Guidelines (EG) applicable to existing Commercial and Industrial Solid Waste Incineration units (CISWI) for which construction commenced on or before November 30, 1999.

DATES:

This rule is effective on August 11, 2003 without further notice unless EPA receives significant adverse written comment by July 14, 2003. If EPA receives such comments, we will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Comments must be submitted to J. Elmer Bortzer, Chief, Regulation Development Section, Air and Radiation Division (AR-18J) Region 5, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. You may examine copies of materials relevant to this action during normal business hours, by appointment at the following locations: Environmental Protection Agency, Region 5, 18th Floor Docket Room, 77 West Jackson Boulevard, Chicago, Illinois, 60604.

FOR FURTHER INFORMATION CONTACT:

John Paskevicz, Engineer, at (312) 886-6084, or e-mail at paskevicz.john@epa.gov, if you intend to visit the Region 5 office.

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms “you” refer to the reader of this rule and/or to sources subject to the State rule, and the terms “we”, “us”, or “our” refers to EPA.

Table of Contents

I. Background

II. What does the State plan contain?

III. Does the State plan meet EPA requirements?

IV. What action is EPA taking today?

V. Statutory and Executive Order Reviews

I. Background

On December 1, 2000, in accordance with sections 111 and 129 of the Act, the EPA promulgated CISWI EGs and compliance schedules for the control of emissions from CISWI units. See 65 FR 75362. EPA codified these regulations at 40 CFR part 60, subpart DDDD. Under section 129(b)(2) of the Act and the regulations at subpart DDDD, states with subject sources must submit to EPA plans that implements the EGs. These plans must be at least as protective as the EGs, which are not federally enforceable until EPA approves a State plan (or adopts a federal plan for implementation and enforcement).

On February 23, 2001, Region 5, EPA sent a letter to Indiana, as well as other States in the Region, informing the State of the need to develop a CISWI plan for its subject sources. We also identified the nine elements necessary for an approvable CISWI plan, as contained in 40 CFR 60.2515.

On December 20, 2002, IDEM submitted to EPA its CISWI plan. This submission followed public hearings on February 6, 2002 and public notice of the State plan on October 7, 2002. The State adopted the rule in final form on May 1, 2002; it became effective on September 6, 2002. The plan includes State rule 326 IAC 11-8, which establishes emission standards for existing CISWI consistent with 40 CFR part 60, subpart DDDD.

II. What Does the State Plan Contain?

The State submittal is based on the CISWI model rule (40 CFR 60.2575 to 60.2875) and incorporates by reference significant portions of that rule. As indicated in Table 1, the State plan contains the nine required elements.

The State plan contained or addressed all of the elements listed in Section 60.2515 of the December 1, 2000, model rule. The plan contained:

1. An inventory of affected CISWI units.

2. An inventory of the emissions from each of the CISWI units.

3. A State rule (326 IAC 11-8-2 ) specifying the requirement for a final control plan and specifying when the units must be in final compliance.

4. Incorporation by reference (IBR) of EPA emission limitations, operator training and qualification requirements, a waste management plan, and operating limits for affected CISWI units.

5. IBR for performance testing, recordkeeping, and reporting requirements.

6. Certification that a hearing on the State plan was held, and a brief written summary of comments.

7. A statement that the State will submit data and information using the EPA Aerometric Emissions Information Retrieval System.

8. A discussion that the State chose as an enforcement mechanism, a State rule (326 IAC 11-8) which contains IBR of the EPA's CISWI EG.

9. A detailed list which demonstrates the State has legal authority to carry out sections 111(d) and 129 of the Clean Air Act, in the State plan.

The Indiana rule details the increments of progress for the affected CISWI. It also calls for final compliance by September 1, 2005, and, in this regard, is somewhat more restrictive than the EPA requirement.

III. Does the State Plan Meet the EPA Requirements?

EPA evaluated the CISWI State plan submitted by Indiana for consistency with the Act, EPA regulations and policy. EPA has determined that the plan meets all applicable requirements and, therefore, is approving it. This approval is based on our findings that in addition to the technical elements provided by IDEM, that:

(a) Provided adequate public notice of public hearings for the proposed rulemaking that allows Indiana to carry out and enforce provisions that are at least as protective as the EGs for CISWIs; and,

(b) Demonstrated legal authority to: incorporate by reference emission standards and compliance schedules applicable to the designated facilities; enforce applicable laws, regulations, standards and compliance schedules; seek injunctive relief; obtain information necessary to determine compliance; require record keeping; conduct inspections and tests; require the use of monitors; require emission reports of owners and operators; and, make emission data publicly available.

Additional details concerning EPA's evaluation of the Indiana plan are included in the technical support file available for inspection from the EPA contact listed above.

IV. What Action Is EPA Taking Today?

EPA is approving the plan which Indiana submitted on December 20, 2002, for the control of emissions from existing CISWI sources in the State. EPA is publishing this approval notice without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rule section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the State plan in the event adverse comments are filed. If we do not receive any adverse comments by July 14, 2003 this action will be effective on August 11, 2003.

V. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175 Consultation and Coordination with Indian Tribal Governments

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 13132 Federalism

This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

Executive Order 13045 Protection of Children From Environmental Health and Safety Risks

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

National Technology Transfer Advancement Act

In reviewing plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a plan submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Paperwork Reduction Act

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 11, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See § 307(b)(2).)

List of Subjects in 40 CFR Part 62

• Environmental protection
• Air pollution control
• Metals
• Sulfur oxides
• Particulate matter
• Carbon monoxide
• Acid gases
• Waste treatment and disposal
• Reporting and recordkeeping requirements

Part 62 of chapter 1, title 40, of the Code of Federal Regulations is amended as follows:

PART 62—[AMENDED]

1. The authority citation for part 62 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart P—Indiana

2. A new undesignated center heading and § 62.3660 are added to Subpart P to read as follows:

CONTROL OF AIR EMISSIONS FROM EXISTING COMMERCIAL AND INDUSTRIAL SOLID WASTE INCINERATOR UNITS