[Federal Register Volume 61, Number 22 (Thursday, February 1, 1996)]
[Rules and Regulations]
[Pages 3581-3582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1843]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[IN57-1-7204a; FRL-5333-9]


Approval and Promulgation of Implementation Plans; Indiana

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: On August 25, 1995, the State of Indiana submitted a State 
Implementation Plan (SIP) revision request to the United States 
Environmental Protection Agency (USEPA) for open burning as part of the 
State's 15 percent (%) Rate of Progress (ROP) Plan control measures for 
Volatile Organic Compounds (VOC). VOC is one of the air pollutants 
which combine on hot summer days to form ground-level ozone, commonly 
known as smog. Ozone pollution is of particular concern because of its 
harmful effects upon lung tissue and breathing passages. These ROP 
plans are intended to bring areas which have been exceeding the public 
health based Federal ozone air quality standard closer toward the goal 
of attaining and maintaining this standard. The control measures 
specified in this open burning SIP revision prohibit residential open 
burning in Clark, Floyd, Lake, and Porter Counties beginning June 1, 
1995. Indiana expects that these measures will reduce VOC emissions by 
921 pounds per day in Lake and Porter Counties, and 704 pounds per day 
in Clark and Floyd Counties.

DATES: The ``direct final'' is effective on April 1, 1996, unless USEPA 
receives adverse or critical comments by March 4, 1996. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Copies of the revision request and USEPA's analysis 
(Technical Support Document) are available for inspection at the 
following address: U.S. Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 
60604. (It is recommended that you telephone David Pohlman at (312) 
886-3299 before visiting the Region 5 Office.)
    Written comments should be sent to: J. Elmer Bortzer, Chief, 
Regulation Development Section, Regulation Development Branch (AR-18J), 
U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: David Pohlman at (312) 886-3299.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 182(b)(1) of the Act requires all moderate and above ozone 
nonattainment areas to achieve a 15 percent reduction of 1990 emissions 
of volatile organic compounds by 1996. In Indiana, Lake and Porter 
Counties are classified as ``Severe'' nonattainment for ozone, while 
Clark and Floyd Counties are classified as ``Moderate'' nonattainment. 
As such, these areas are subject to the 15 percent Rate of Progress 
(ROP) requirement. On August 25, 1995, the Indiana Department of 
Environmental Management (IDEM) submitted a SIP revision request which 
amends Title 326 Indiana Administrative Code Article 4 Rule 1 Section 3 
(326 IAC 4-1-3), to include a ban on residential open burning in Clark, 
Floyd, Lake, and Porter Counties. In doing so, IDEM believes that these 
control measures will help reduce VOC emissions enough to meet the 15% 
ROP requirements. The USEPA is undertaking a separate analysis to 
determine whether the 15% ROP requirement has been met as a result of 
this and other States submissions, and will make that determination in 
a separate rulemaking action.
    Public hearings were held on this rule on May 4, 1994, September 7, 
1994, and April 5, 1995, in Indianapolis, Indiana. The rules were 
finally adopted by the Indiana Air Pollution Control Board on April 5, 
1995, became effective on June 23, 1995, and were published in the 
Indiana Register on July 1, 1995.

II. Analysis of State Submittal

    The USEPA first approved an Indiana open burning rule on June 22, 
1978, (43 FR 26721) as rule APC-2. (Indiana has since recodified APC-2 
as 326 IAC 4-1.) Changes in the rule since USEPA's approval include the 
addition of an exemption for prescribed burning by the Department of 
Natural Resources for wildlife habitat maintenance, forestry purposes, 
and Natural Area management (326 IAC 4-1-3(a)(8)), and an exemption for 
United States Department of the Interior burning in order to facilitate 
a National Park Service Fire Management Plan for the Indiana Dunes 
National Lakeshore (326 IAC 4-1-3(a)(9)). These exemptions have been in 
place on the State level for several years, but had not been submitted 
for USEPA approval before the August 25, 1995, submittal.
    The major change in the new rule is the addition of a ban on 
residential open burning for Clark, Floyd, Lake, and Porter Counties. 
The rule continues to allow residential open burning, with certain 
restrictions, in other parts of the State. There are no specific 
requirements or criteria for the USEPA to use in reviewing a ban 
against open burning. However, it is reasonable to conclude that this 
rule will provide reductions in VOC emissions. Therefore, this rule is 
approvable as part of Indiana's 15% ROP plan.

III. Final Rulemaking Action

    Revised 326 IAC 4-1-3, contains a ban on residential burning in 
Clark, Floyd, Lake, and Porter Counties, and has been submitted as part 
of Indiana's 15% ROP Plan for VOC. The USEPA has undertaken an analysis 
of this SIP revision request based on a review of the materials 
presented by IDEM and has determined that it is approvable because it 
provides an enforceable mechanism for reducing VOCs and ozone. USEPA 
will take separate action on Indiana's ROP Plan in a future Federal 
Register document.
    The USEPA is publishing this action without prior proposal because 
USEPA views this action as a noncontroversial revision and anticipates 
no adverse comments. However, USEPA is publishing a separate document 
in this Federal Register publication, which constitutes a ``proposed 
approval'' of the requested SIP revision and clarifies that the 
rulemaking will not be deemed final if timely adverse or critical 
comments are filed. The ``direct final'' approval shall be effective on 
April 1, 1996, unless USEPA receives adverse or critical comments by 
March 4, 1996. If USEPA receives comments adverse to or critical of the 
approval discussed above, USEPA will withdraw this approval before its 
effective date by publishing a subsequent Federal Register document 
which withdraws this final action. All public comments received will 
then be addressed in subsequent rulemaking. Please be aware that USEPA 
will institute another comment period on this action only if warranted 
by significant revisions to the rulemaking based on any comments 
received in response to today's action. Any parties interested in 
commenting on this action should do so at this time. If no such 
comments are received, USEPA hereby advises the public that this action 
will be effective on April 1, 1996.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the 

[[Page 3582]]
procedures published in the Federal Register on January 19, 1989 (54 FR 
2214-2225), as revised by a July 9, 1995, memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation. The Office of 
Management and Budget has exempted this regulatory action from 
Executive Order 12866 review.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. USEPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
Mandates Act'') (signed into law on March 22, 1995) requires that the 
USEPA prepare a budgetary impact statement before promulgating a rule 
that includes a Federal mandate that may result in expenditure by 
State, local, and tribal governments, in aggregate, or by the private 
sector, of $100 million or more in any one year. Section 203 requires 
the USEPA to establish a plan for obtaining input from and informing, 
educating, and advising any small governments that may be significantly 
or uniquely affected by the rule.
    Under section 205 of the Unfunded Mandates Act, the USEPA must 
identify and consider a reasonable number of regulatory alternatives 
before promulgating a rule for which a budgetary impact statement must 
be prepared. The USEPA must select from those alternatives the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule, unless the USEPA explains why this 
alternative is not selected or the selection of this alternative is 
inconsistent with law.
    Because this final rule is estimated to result in the expenditure 
by State, local, and tribal governments or the private sector of less 
then $100 million in any one year, the USEPA has not prepared a 
budgetary impact statement or specifically addressed the selection of 
the least costly, most cost-effective, or least burdensome alternative. 
Because small governments will not be significantly or uniquely 
affected by this rule, the USEPA is not required to develop a plan with 
regard to small governments. This rule only approves the incorporation 
of existing state rules into the SIP. It imposes no additional 
requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. (5 U.S.C. 603 and 604.) 
Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP-approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the Act, preparation of a regulatory flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of the 
State action. The Clean Air Act forbids USEPA to base its actions 
concerning SIPs on such grounds. Union Electric Co. v. USEPA., 427 U.S. 
246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
    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 April 1, 1996. 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 Section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference.

    Dated: October 31, 1995.
Valdas V. Adamkus,
Regional Administrator.

    For the reasons stated in the preamble, part 52, chapter I, title 
40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart P--Indiana

    2. Section 52.770 is amended by adding paragraph (c)(100) to read 
as follows:


Sec. 52.770  Identification of Plan.

* * * * *
    (c) * * *
    (100) On August 25, 1995, Indiana submitted a regulation which bans 
residential open burning in Clark, Floyd, Lake, and Porter Counties in 
Indiana. The regulation allows residential open burning, with certain 
restrictions, in other parts of the State, and describes other types of 
open burning which are allowed in Indiana.
    (i) Incorporation by reference.
    (A) Indiana Administrative Code Title 326: Air Pollution Control 
Board, Article 4: Burning Regulations, Rule 1: Open Burning, Section 3: 
Exemptions. Added at 18 In. Reg. 2408 Effective June 23, 1995.

[FR Doc. 96-1843 Filed 1-31-96; 8:45 am]
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