[Federal Register Volume 62, Number 62 (Tuesday, April 1, 1997)] [Rules and Regulations] [Pages 15404-15407] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-8181] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [IN74-1(a); FRL-5687-8] Approval of Section 112(l) Program of Delegation; Indiana AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: EPA is approving, through a ``direct final'' procedure, a request for delegation of the Federal air toxics program contained within 40 CFR Parts 61 and 63 pursuant to section 112(l) of the Clean Air Act (CAA) of 1990. The State's mechanism of delegation involves State rule adoption of all existing and future section 112 standards unchanged from the Federal standards. The actual delegation of authority of individual standards will be in the form of a letter from EPA to the Indiana Department of Environmental Management (IDEM). This request for approval of a mechanism of delegation encompasses all sources not covered by the Part 70 program. DATES: This action will become effective June 2, 1997, unless adverse or critical comments not previously addressed by the State or EPA are received by May 1, 1997. If the effective date is delayed, timely notice will be published in the Federal Register. ADDRESSES: Copies of the State's submittal and other supporting information used in developing the approval are available for inspection during normal business hours at the following location: EPA Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois, 60604. Please contact Sam Portanova at (312) 886-3189 to arrange a time if inspection of the submittal is desired. FOR FURTHER INFORMATION CONTACT: Sam Portanova, AR-18J, 77 West Jackson Boulevard, Chicago, Illinois, 60604, (312) 886-3189. SUPPLEMENTARY INFORMATION: I. Background and Purpose Section 112(l) of the CAA enables the EPA to approve State air toxics programs or rules to operate in place of the Federal air toxics program. The Federal air toxics program implements the requirements found in section 112 of the CAA pertaining to the regulation of hazardous air pollutants. Approval of an [[Page 15405]] air toxics program is granted by the EPA if the Agency finds that the State program: (1) Is ``no less stringent'' than the corresponding Federal program or rule, (2) the State has adequate authority and resources to implement the program, (3) the schedule for implementation and compliance is sufficiently expeditious, and (4) the program is otherwise in compliance with Federal guidance. Once approval is granted, the air toxics program can be implemented and enforced by State or local agencies, as well as EPA. Implementation by local agencies is dependent upon appropriate subdelegation. On February 7, 1996, Indiana submitted to EPA a request for delegation of authority to implement and enforce the air toxics program under section 112 of the CAA. On February 29, 1996, EPA found the State's submittal complete. In this document EPA is taking final action to approve the program of delegation for Indiana. II. Review of State Submittal A. Program Summary Requirements for approval, specified in section 112(l)(5), require that a State's program contain adequate authorities, adequate resources for implementation, and an expeditious compliance schedule. These requirements are also requirements for an adequate operating permits program under Part 70 (40 CFR 70.4). On November 14, 1995, EPA promulgated a final interim approval under Part 70 of the State of Indiana's Operating Permit Program. The notice included the approval of a mechanism for delegation of all section 112 standards for sources subject to the Part 70 program. Sources subject to the Part 70 program are those sources that are operating pursuant to a Part 70 permit issued by the State, local agency, or EPA. Sources not subject to the Part 70 program are those sources that are not required to obtain a Part 70 permit from either the State, local agency, or EPA. This action supplements the Part 70 rulemaking in that Indiana will have the authority to implement and enforce the section 112 air toxics program regardless of a source's Part 70 applicability. The Indiana program of delegation for sources not subject to Part 70 will not include delegation of section 112(r) authority or section 112(i)(5) Early Reductions Program authority. As stated above, this document constitutes EPA's approval of Indiana's program of delegation of all existing and future air toxics standards, except for section 112(r) standards as they pertain to non- Part 70 sources. This delegation is for State rule adoption of all existing and future section 112 standards unchanged from the Federal standards delegation. Indiana intends to seek such delegation for all section 112 standards with the exception of section 112(r). The Indiana program of delegation will operate as follows: 1. For existing section 112 standards, IDEM has submitted a schedule for their adoption into the State regulations. 2. For a future section 112 standard for which IDEM intends to accept delegation, EPA will automatically delegate the authority to implement a standard to the State by letter unless IDEM notifies EPA differently within 45 days of EPA final promulgation of the standard. Upon receipt of the EPA letter, the State will be responsible for the implementation of the standard. Some activities necessary for effective implementation of the standard include receipt of initial notifications, recordkeeping, reporting and generally assuring that sources subject to the standard are aware of its existence. 3. IDEM will adopt the standard unchanged from the Federal standard into the State regulations as expeditiously as practicable. Indiana Code (IC) 13-7-7-5 requires IDEM to adopt such standards within 9 months of the effective date of the Federal standard. 4. Upon completion of regulatory action, IDEM will submit to EPA proof of rule adoption. 5. EPA will respond with a letter delegating enforcement authority to the State. EPA will enforce the standard until such time the State has been delegated the enforcement authority. Indiana will assume responsibility for the timely implementation and enforcement required by the standard, as well as any further activities agreed to by IDEM and EPA. When deemed appropriate, IDEM will utilize the resources of its Small Business Assistance Program to assist in general program implementation. B. Criteria for Approval On November 26, 1993, EPA promulgated regulations to provide guidance relating to the approval of State programs under section 112(l) of the CAA. 58 FR 62262. That rulemaking outlined the requirements of approval with respect to various delegation options. The requirements for approval, pursuant to section 112(l)(5) of the CAA, of a program to implement and enforce Federal section 112 rules as promulgated without changes are found at 40 CFR 63.91. Any request for approval must meet all section 112(l) approval criteria, as well as all approval criteria of 40 CFR 63.91. A more detailed analysis of the State's submittal pursuant to 40 CFR 63.91 is contained in the Technical Support Document included in the docket of this rulemaking. Under section 112(l) of the CAA, approval of a State program is granted by the EPA if the Agency finds that it: (1) Is ``no less stringent'' than the corresponding Federal program, (2) that the State has adequate authority and resources to implement the program, (3) the schedule for implementation and compliance is sufficiently expeditious, and (4) the program is otherwise in compliance with Federal guidance. C. Analysis EPA is approving Indiana's mechanism of delegation because the State's submittal meets all requirements necessary for approval under section 112(l). The first requirement is that the program be no less stringent than the Federal program. The Indiana program is no less stringent than the corresponding Federal program or rule because the State has requested delegation of all standards unchanged from the Federal standards. Second, the State has shown that it has adequate authority and resources to implement the program. The Indiana Air Pollution Control Board has statutory authority to adopt rules necessary to implement the Federal Clean Air Act, as amended by the Clean Air Act Amendments of 1990. IC 13-1-1-4. This authority includes the ability to adopt federal section 112 rules as promulgated without change. Indiana has adopted several existing section 112 rules, is in the process of adopting the remaining existing section 112 rules, and commits to the expeditious adoption of future section 112 rules. Adequate resources will be obtained through section 105 grant monies awarded to States by EPA, through State matching funds, and through any monies from the State's Title V program that can be used to fund acceptable Title V activities with respect to these non-Part 70 sources. Third, upon promulgation of a standard, Indiana will immediately begin activities necessary for timely implementation of the standard. These activities will involve identifying sources subject to the applicable requirement, education and outreach to affected sources, and providing assistance to sources in completing and submitting initial notifications. Indiana has already conducted such activities for several section 112 standards. In addition, Indiana is committed to [[Page 15406]] adopting section 112 standards into the State regulations within 9 months of Federal promulgation. This schedule is sufficiently expeditious for approval. Fourth, nothing in the Indiana program for delegation is contrary to Federal guidance. D. Determinations In approving this delegation, EPA expects that the State will obtain concurrence from EPA on any matter involving the interpretation of section 112 of the Clean Air Act or 40 CFR Part 63 to the extent that implementation, administration, or enforcement of these sections have not been covered by EPA determinations or guidance. III. Final Action The EPA is promulgating final approval of the February 7, 1996, request by the State of Indiana for delegation of section 112 standards unchanged from Federal standards because the request meets all requirements of 40 CFR 63.91 and section 112(l) of the CAA. Upon the effective date of this document, all existing section 112 standards which have been adopted unchanged into the State rules are delegated to the State of Indiana. Future delegation of the section 112 standards to the State will occur upon EPA's promulgation of the standard according to the procedures outlined in this rulemaking action. Upon the effective date of this action, all notifications, reports and other correspondence required under section 112 standards should be sent to the State of Indiana rather than to the EPA, Region 5, in Chicago. Affected sources should send this information to: Indiana Department of Environmental Management, Office of Air Management, 100 North Senate Avenue, P.O. Box 6015, Indianapolis, Indiana 46206-6015. In this action, EPA approves the delegation of the Federal air toxics program pursuant to section 112(l) of the CAA. EPA is publishing this action without prior proposal because EPA views this action as a noncontroversial revision and anticipates no adverse comments. However, the rulemaking will not be deemed final if timely unaddressed adverse or critical comments are filed. The ``direct final'' approval shall be effective on June 2, 1997, unless EPA receives such adverse or critical comments by May 1, 1997. EPA is now soliciting public comments on this action. Any parties interested in commenting on this action should do so at this time. In the proposed rules section of this Federal Register, EPA is publishing a separate document which constitutes a ``proposed approval'' of the requested delegation. If EPA receives timely comments adverse to or critical of the approval discussed above, which have not been addressed by the State or EPA, EPA will publish a Federal Register document which withdraws this final action. All public comments received will then be addressed in a subsequent rulemaking document based on the proposed approval. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Copies of the State's submittal and other information relied upon for the final approval are contained in a docket maintained at the EPA Regional Office. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this final approval. The docket is available for public inspection at the location listed under the ADDRESSES section of this document. Nothing in this action should be construed as permitting, allowing or establishing a precedent for any future request for revision to the State's delegated air toxics program. EPA shall consider each request for revision to the State's delegated air toxics program in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements. This action has been classified as a Table 3 action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation. The Office of Management and Budget exempted this regulatory action from Executive Order 12866 review. Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 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, EPA 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. Delegation of the section 112 standards unchanged from the Federal standard does not create any new requirements, but simply allows the State to administer requirements that have been or will be separately promulgated. Therefore, because this delegation approval does not impose any new requirements, I certify that it does not have a significant impact on any small entities affected. Under sections 202, 203 and 205 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must undertake various actions in association with proposed or final rules that include a Federal mandate that may result in estimated costs of $100 million or more to the private sector, or to State, local, or tribal governments in the aggregate. EPA has determined that the approval action promulgated today does not constitute a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. The State voluntarily requested this delegation under section 112(l) for the purpose of implementing and enforcing the air toxics program with respect to sources not covered by Part 70. The delegation imposes no new Federal requirements. Since the State was not required by law to seek delegation, this Federal action does not impose a mandate on the State. 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 June 2, 1997. 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).) Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of this rule in today's Federal Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 63 Environmental Protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations. Authority: 42 U.S.C. 7401, et seq. [[Page 15407]] Dated: January 28, 1997. David A. Ullrich, Acting Regional Administrator. [FR Doc. 97-8181 Filed 3-31-97; 8:45 am] BILLING CODE 6560-50-P