[Federal Register Volume 64, Number 222 (Thursday, November 18, 1999)]
[Rules and Regulations]
[Pages 62978-62982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30021]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[IN94-1a; FRL-6476-9]


Approval of Municipal Waste Combustor State Plan for Designated 
Facilities and Pollutants: Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving Indiana's State Plan to control air 
pollutants from Municipal Waste Combustors (MWC). The Indiana 
Department of Environmental Management (IDEM) submitted the State Plan 
on September 30, 1999. The State Plan adopts the Federal Emissions 
Guidelines (EG) applicable to existing MWCs with the capacity to 
combust more than 250 Tons Per Day (TPD) of Municipal Solid Waste 
(MSW). The State Plan applies to the Indianapolis Resource Recovery 
Facility in Indianapolis, Indiana. This approval means that EPA finds 
the State Plan meets applicable Clean Air Act (Act) requirements for 
MWC State Plans. Once effective, the approval makes the State Plan 
federally enforceable, and Indiana's MWC will not be subject to the MWC 
Federal Plan.

DATES: This rule is effective on January 18, 2000, unless EPA receives 
adverse written comments by December 20, 1999. If adverse written 
comment is received, EPA will publish a timely withdrawal of the rule 
in the Federal Register and inform the public that the rule will not 
take effect.

ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief, 
Regulation Development Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. You can inspect copies of the State Plan submittal at 
the following address: U.S. Environmental Protection Agency, Region 5, 
Air and Radiation Division, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. (We recommend you contact Mark J. Palermo, 
Environmental Protection Specialist, at (312) 886-6082 before visiting 
the Region 5 Office).

FOR FURTHER INFORMATION CONTACT: Mark J. Palermo, Environmental 
Protection Specialist, at (312) 886-6082.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' are used, we mean EPA.

Table of Contents

I. What is EPA approving in this action?
II. The MWC State Plan Requirement
    What is an MWC State Plan?
    Why did Indiana submit an MWC State Plan?
    What pollutants does the MWC State Plan reduce?
    What criteria must an MWC State Plan meet to be approved?
III. The Indiana MWC Plan
    Who is affected by the Indiana MWC State Plan?
    Where are the Indiana MWC requirements codified?
    What does the Indiana MWC State Plan require?
    When must the State Plan requirements be met?
    What else does the Indiana MWC State Plan include?
    What public review opportunities were provided?
IV. Review and Approval of the Indiana MWC State Plan
    Why is the Indiana MWC State Plan approvable?
    How does the approval of the State Plan affect Federal Plan 
requirements?
V. EPA Rulemaking Action
VI. Administrative Requirements
    A. Executive Order 12866
    B. Executive Order 13132
    C. Executive Order 13045
    D. Executive Order 13084
    E. Regulatory Flexibility Act
    F. Unfunded Mandates
    G. Submission to Congress and the Comptroller General
    H. National Technology Transfer and Advancement Act
    I. Petitions for Judicial Review

I. What Is EPA Approving in This Action?

    We are approving the September 30, 1999, Indiana State Plan which 
implements the requirements of sections 111(d) and 129 of the Act as 
applicable to MWCs. This approval, once effective, will make the 
Indiana MWC rule included in the plan federally enforceable.

II. The MWC State Plan Requirement

What Is an MWC State Plan?

    An MWC State Plan is a plan to control air pollutant emissions from 
certain combustors burning municipal solid waste. The plan also 
includes source and emission inventory information.

Why Did Indiana Submit an MWC State Plan?

    Sections 111(d) and 129 of the Act require States to submit State 
Plans to control emissions from existing MWCs in the State. The State 
Plan requirement was triggered when we published the EG for MWCs on 
December 19, 1995 (60 FR 65387). We codified the EG at 40 CFR part 60, 
subpart Cb.
    Under section 129 of the Act, we are required to promulgate EGs for 
several categories of existing solid waste incinerators. Section 129 
provides that the emission limitations in the EGs may not be less 
stringent than the average emission limitations achieved by the best 
performing 12 percent of units in the category. This is commonly 
referred to as the ``Maximum Available Control Technology (MACT) 
floor'' for existing units. Emission control options less stringent 
than the MACT floor can not be considered in developing section 129 
EGs. In addition to emission limitations, the MWC EG also establishes 
requirements for compliance dates, monitoring, and operator training, 
as required by section 129.

[[Page 62979]]

    The intent of the State Plan requirement is to reduce several types 
of air pollutants associated with waste incineration.

What Pollutants Does the MWC State Plan Reduce?

    The State Plan establishes control requirements which reduce the 
following emissions from MWCs: particulate matter, opacity, sulfur 
dioxide, hydrogen chloride, nitrogen oxides, carbon monoxide, lead, 
cadmium, mercury, dioxins and dibenzofurans, and visible emissions of 
fugitive ash.
    These pollutants can cause adverse effects to the public health and 
the environment. For instance, dioxin, lead, and mercury can 
bioaccumulate in the environment. Exposure to mercury has been linked 
to serious developmental and adult effects in humans, primarily damage 
to the nervous system. Exposure to dioxin and furans can cause skin 
disorders, cancer, and reproductive effects such as endometriosis. 
Dioxin and furans can also affect the immune system. Acid gases, such 
as sulfur dioxide and nitrogen oxides, contribute to the acid rain that 
damages lakes and harms forests and buildings. Exposure to particulate 
matter has been linked to adverse health effects, including aggravation 
of existing respiratory and cardiovascular disease and increased risk 
of premature death. Nitrogen oxides emissions can also contribute to 
ground level ozone, which is associated with a number of adverse health 
and environmental effects.

What Criteria Must an MWC State Plan Meet To Be Approved?

    The following table summarizes the criteria for approving an MWC 
State Plan:

------------------------------------------------------------------------
              Requirement                            Elements
------------------------------------------------------------------------
Sections 111(d) and 129: State Plan      --Applicability.
 must be at least as protective as the   --Emission Limits.
 EG.                                     --Compliance Schedules.
                                         --Performance Testing.
                                         --Monitoring/Inspection.
                                         --Work Practices.
                                         --Operator Training/
                                          Certification.
                                         --Recordkeeping/Reporting.
40 CFR part 60, subpart B: Criteria for  --Demonstration of Legal
 an approvable section 111(d) plan.       Authority.
                                         --Enforceable Mechanism.
                                         --Evidence of public hearing.
                                         --Source and Emission
                                          Inventories.
                                         --State Progress Report
                                          Commitment.
------------------------------------------------------------------------

    We issued a guidance document which contains the requirements for 
an approvable MWC State Plan, entitled ``Municipal Waste Combustion: 
Summary of the Requirements for Section 111(d)/129 States Plans for 
Implementing the Municipal Waste Combustor Emission Guidelines,'' 
published July 1996 (EPA-456/R-96-003) (see EPA web site http: //
www.epa.gov/ttn/uatw/129/mwc/rimwc.html). Indiana used this document to 
develop its State Plan.

III. The Indiana MWC Plan

Who Is Affected by the Indiana MWC State Plan?

    The State Plan requirements are applicable to each MWC unit with a 
combustion capacity greater than 250 TPD of MSW for which construction 
was commenced on or before September 20, 1994.
    According to the source inventory in Indiana's State Plan, there is 
only one existing applicable MWC source operating in the State, 
Indianapolis Resource Recovery Facility, in Indianapolis.
    The State Plan needs only to address MWC units with a combustion 
capacity greater than 250 TPD of MSW because the United States Court of 
Appeals for the District of Columbia Circuit has vacated the portion of 
the EG applicable to MWC units with capacity to combust less than or 
equal to 250 TPD of MSW. See Davis County Solid Waste Management and 
Recovery District versus EPA, 101 F.3d 1395 (D.C. Cir. 1996), as 
amended, 108 F.3d 1454 (D.C. Cir. 1997).
    The State Plan does not need to cover new MWCs, since they are 
subject to the applicable New Source Performance Standards (NSPS), also 
promulgated December 19, 1995. See 40 CFR part 60, subpart Eb.

Where Are the Indiana MWC Requirements Codified?

    The State Plan requirements are codified under 326 Indiana 
Administrative Code (IAC) 11-7. The Indiana Pollution Control Board 
adopted the rule on September 2, 1998. The rule was filed with the 
Secretary of State on January 18, 1999, and became effective on 
February 17, 1999. The rule was published in the Indiana Register on 
March 1, 1999, at 22 IR 1967.

What Does the Indiana MWC State Plan Require?

    The State Plan's enforceable mechanism for the EG is 326 IAC 11-7. 
The Indiana rule incorporates the requirements set forth in the 
December 19, 1995, EG, as well as the amendments made to the EG on 
August 25, 1997 (62 FR 45116; 62 FR 45124). The rule contains the 
appropriate emission limits and requirements concerning performance 
testing, work practices, operator training and certification 
requirements, monitoring, and recordkeeping and reporting, as specified 
under the EG.

When Must the State Plan Requirements Be Met?

    The rule establishes two compliance schedules to meet the EG 
requirements. The first compliance schedule is to meet full compliance 
within one year of the effective date of the rule, or February 17, 
2000. If the source will not be able to meet the first compliance 
schedule, then it must meet the second compliance schedule. The second 
compliance schedule includes a final compliance date of December 19, 
2000, as mandated by the Act.
    If the source intends to meet the December 19, 2000, compliance 
date, instead of the February 17, 2000, date, the source must submit 
post-1990 performance test results for dioxin/furans, and must comply 
with enforceable increments of progress, as required by the EG. The 
increments of progress ensure subject facilities will be in final 
compliance by December 19, 2000, the final compliance date. The 
Indianapolis Resource Recovery Facility has indicated its intent to 
comply with

[[Page 62980]]

the second compliance schedule and has submitted dioxin/furan test 
data.
    The increments of progress and respective compliance dates are as 
follows:

----------------------------------------------------------------------------------------------------------------
                   Increment of progress                                           Due date
----------------------------------------------------------------------------------------------------------------
Submit a final control plan to IDEM. (This date does not     March 19, 1999.
 affect the date a final control plan is required to be
 submitted to EPA under the Federal Plan).
Award contracts for emission control systems or for process  May 18, 1999.
 modifications, or issuance of orders for the purchase of
 component parts to accomplish emission control or process
 modifications.
Initiate on-site construction or installation of emission    November 16, 1999.
 control equipment or process change.
Complete on-site construction or installation of emission    November 19, 2000.
 control equipment or process change.
Complete the initial performance test in accordance with     Within 180 days of initial start-up.
 rule requirements.
----------------------------------------------------------------------------------------------------------------

    Notwithstanding the above compliance dates, the rule requires the 
source to be in compliance with the operator training and certification 
requirements of the rule by September 1, 1999.
    If the source is not in compliance with the rule by December 19, 
2000, it must cease operation.

What Else Does the Indiana MWC State Plan Include?

    The State Plan includes a demonstration of legal authority to 
implement the EG, documentation of public hearing, comment, and 
response, a source and emissions inventory, and a provision for State 
progress reports to EPA. Indiana submitted these materials to satisfy 
the section 111(d) requirements under 40 CFR part 60, subpart B.

What Public Review Opportunities Were Provided?

    Indiana held two public hearings on the MWC rule. It held the first 
hearing on May 6, 1998, and the second hearing was held on September 2, 
1998, both in Indianapolis. Indiana also published a public notice on 
June 30, 1999, to let the public know that the State Plan was available 
for viewing at several locations around the State, and that there was a 
30-day public comment period and opportunity to request a public 
hearing on the State Plan. The public comment period closed on July 3, 
1999. Indiana did not receive any comments from the public, and no one 
requested a third public hearing.

IV. Review and Approval of the Indiana MWC State Plan

Why is the Indiana MWC State Plan Approvable?

    We compared the Indiana MWC rule, 326 IAC 11-7, to our MWC EG. We 
find the Indiana rule to be at least as protective as the EG. 
Therefore, we find the State Plan to meet the requirements of section 
129 of the Act. Also, the Indiana State Plan satisfies the requirement 
for an approvable section 111(d) plan under subparts B and Cb of 40 CFR 
part 60. For these reasons, we are approving the Indiana MWC State 
Plan.

How Does the Approval of the State Plan Affect Federal Plan 
Requirements?

    On November 12, 1998, we promulgated a Federal Plan implementing 
the EG in those States that did not have approved State Plans (see 63 
FR 63191). Indiana became subject to the Federal Plan as of that date 
because it had not yet submitted a State Plan.
    In the Federal Plan's preamble, we indicated that once EPA approves 
a State Plan, the Federal Plan no longer applies in that State, as of 
the effective date of the State Plan approval. The State will implement 
and enforce the State Plan in lieu of the Federal Plan. The Federal 
Plan also states that we will periodically amend the Federal Plan 
exclusion table to identify States that have approved State Plans. MWC 
units subject to approved and effective State Plans are not subject to 
the Federal Plan. The State Plan is effective on the date specified in 
the Federal Register announcing EPA's approval, whether or not we have 
revised the exclusion table. Therefore, once this final action 
approving the Indiana MWC State Plan becomes effective, the existing 
MWC Federal Plan requirements will no longer apply to Indiana.

V. EPA Rulemaking Action

    We are approving, through direct final rulemaking action, Indiana's 
sections 111(d) and 129 State Plan for large MWCs, submitted on 
September 30, 1999. As of the effective date of this action, Indiana 
sources will no longer be subject to the November 12, 1998, Federal 
Plan. The EPA is publishing this action without prior proposal because 
EPA views this as a noncontroversial revision and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the State Plan 
should adverse written comments be filed. This action will be effective 
January 18, 2000 without further notice unless EPA receives relevant 
adverse written comment by December 20, 1999. Should the Agency receive 
such comments, it will publish a final rule informing the public that 
this action will not take effect. Any parties interested in commenting 
on this action should do so at this time. If no such comments are 
received, the public is advised that this action will be effective on 
January 18, 2000.

VI. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces E.O. 
12612 (Federalism) and E.O. 12875 (Enhancing the Intergovernmental 
Partnership). E.O. 13132 requires EPA to develop an accountable process 
to ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' is 
defined in the E.O. to include regulations that 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.'' Under E.O. 
13132, EPA may not issue a regulation that has federalism implications, 
that imposes substantial direct compliance costs, and that is not 
required by statute, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by State and 
local governments, or EPA consults with State and local officials early 
in the

[[Page 62981]]

process of developing the proposed regulation. EPA also may not issue a 
regulation that has federalism implications and that preempts State law 
unless the Agency consults with State and local officials early in the 
process of developing the proposed regulation.
    This final rule will 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 E.O. 13132. Thus, the 
requirements of section 6 of the E.O. do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation.
    In addition, E.O. 13084 requires EPA to develop an effective 
process permitting elected and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.'' Today's rule does not significantly or uniquely 
affect the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because 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 create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    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. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. Petitions for Judicial Review

    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 January 18, 2000. 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

[[Page 62982]]

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 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Municipal waste 
combustors, Reporting and recordkeeping requirements.

    Dated: November 4, 1999.
Jerri-Anne Garl,
Acting Regional Administrator, Region 5.

PART 52--[AMENDED]

    40 CFR Part 62 of the Code of Federal Regulations is amended as 
follows:
    1. The authority citation for Part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401-7642.

Subpart P--Indiana

    2. Part 62 is amended by adding an undesignated centerhead and 
Secs. 62.3650, 62.3651, and 62.3652 to Subpart P to read as follows:
* * * * *

Metals, Acid Gases, Organic Compounds and Nitrogen Oxide Emissions 
From Existing Municipal Waste Combustors With the Capacity To 
Combust Greater Than 250 Tons Per Day of Municipal Solid Waste


Sec. 62.3650  Identification of plan.

    On September 30, 1999, Indiana submitted the State Plan for 
implementing the Federal Large Municipal Waste Combustor (MWC) Emission 
Guidelines to control emissions from existing MWCs with the capacity to 
combust greater than 250 tons per day of municipal solid waste. The 
enforceable mechanism for this plan is a State rule codified in 326 
Indiana Administrative Code (IAC) 11-7. The rule was adopted on 
September 2, 1998, filed with the Secretary of State on January 18, 
1999, and became effective on February 17, 1999. The rule was published 
in the Indiana State Register on March 1, 1999 (22 IR 1967).


Sec. 62.3651  Identification of sources.

    The plan applies to all existing municipal waste combustors with 
the capacity to combust greater than 250 tons per day of municipal 
solid waste, and for which construction, reconstruction, or 
modification was commenced on or before September 20, 1994, as 
consistent with 40 CFR part 60, subpart Cb. Subject facilities include 
the Indianapolis Resource Recovery Facility in Indianapolis, Indiana.


Sec. 62.3652  Effective Date.

    The effective date of the approval of the Indiana State Plan for 
municipal waste combustors with the capacity to combust greater than 
250 tons per day of municipal solid waste is January 18, 2000.

[FR Doc. 99-30021 Filed 11-17-99; 8:45 am]
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