[Federal Register Volume 65, Number 111 (Thursday, June 8, 2000)]
[Rules and Regulations]
[Pages 36346-36349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13839]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR part 52

[IN112-1a, FRL-6708-5]


Approval and Promulgation of Implementation Plans; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving nine negative declarations submitted by 
the State of Indiana on November 8, 1999. Each of these negative 
declarations concerns sources located in Clark and Floyd Counties, 
which are classified as a moderate nonattainment area for the pollutant 
ozone. Each of the negative declarations indicates that the State has 
searched its emissions source inventory and permit files for Clark and 
Floyd Counties and determined that there are no sources with a 
potential to emit 100 tons per year or more of volatile organic 
compounds (VOC) in the following source categories: aerospace coating 
operations, industrial clean up solvents, industrial wastewater 
processes, offset lithographic printing, business plastics, automotive 
plastics, and synthetic organic chemical manufacturing industries 
(SOCMI) batch processes, reactors and distillation units.

DATES: This rule is effective on August 7, 2000 unless EPA receives 
adverse written comments by July 10, 2000. If adverse 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), 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    Copies of the negative declarations are available for inspection at 
the Environmental Protection Agency, Region 5, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (Please 
telephone Randolph O. Cano at (312) 886-6036 before visiting the Region 
5 Office.)

FOR FURTHER INFORMATION CONTACT: Randolph O. Cano, Environmental 
Protection Specialist, Regulation Development Section, Air Programs 
Branch (AR-18J), EPA, Region 5, Chicago, Illinois 60604, (312) 886-
6036.

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

Table of Contents

I. What is the background for this action?
II. What are negative declarations and what is their purpose?
III. What types of sources are covered by these negative 
declarations?
IV. If new sources are constructed in Clark and Floyd Counties, will 
VOC emissions from these source categories be uncontrolled?
V. EPA Rulemaking Action.
VI. Administrative Requirements.
    A. Executive Order 12866
    B. Executive Order 13045
    C. Executive Order 13084
    D. Executive Order 13132
    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 the Background for This Action?

    The Clean Air Act (Act), as amended in 1977, required States to 
adopt emission controls reflective of reasonably available control 
technology (RACT) for sources of VOC emissions in ozone nonattainment 
areas. Subsequently, EPA issued three sets of control technique 
guidelines (CTGs) documents, establishing a ``presumptive norm'' for 
RACT for various categories of VOC sources. The three sets of CTGs were 
(1) Group I--issued before January 1978 (15 CTGs); (2) Group II--issued 
in 1978 (9 CTGs); and (3) Group III--issued in the early 1980's (5 
CTGs). Those sources not covered by a CTG were called non-CTG sources. 
EPA determined that an area's State Implementation Plan (SIP) approved 
attainment date established which RACT rules the State needed to adopt 
and implement and for which areas. In those areas where the State 
sought an extension of the attainment date under section 172(a)(2) to 
as late as December 31, 1987, RACT was required for all CTG sources and 
for all major (100 tons per year or more of VOC emissions under the 
1977 Act) non-CTG sources. Indiana sought and received such an 
extension from EPA for Clark and Floyd Counties.
    When Congress amended the Act in 1999, it included section 
182(b)(2) which required States to adopt RACT rules for all areas 
designated nonattainment for ozone and classified as moderate or above. 
There are three parts to the section 182(b)(2) RACT requirement: (1) 
RACT for sources covered by an existing CTG-- i.e., a CTG issued prior 
to the enactment of the amended Act of 1990; (2) RACT for sources 
covered by a post-enactment CTG; and (3) all major sources not covered 
by a CTG. These section 182(b)(2) RACT requirements are referred to as 
the RACT ``catch-up'' requirements.
    Section 183 of the 1990 Amendments required EPA to issue CTGs for 
13 source categories by November 15, 1993. EPA published a CTG by this 
date for the following source categories: Synthetic Organic Chemical 
Manufacturing Industry (SOCMI) Reactors and Distillation, aerospace 
manufacturing coating operation, shipbuilding and ship repair coating 
operations, and wood furniture coating operation; however, EPA has not 
completed the CTGs for the remaining source categories. The amended Act 
requires States to submit rules for sources covered by a post-enactment 
CTG in accordance with a schedule specified in a CTG document.
    The EPA created a CTG document as appendix E to the General 
Preamble for the Implementation of Title I of the Clean Air Act 
Amendments of 1990. (57 FR 18070, 18077, April 28, 1992). In appendix 
E, EPA interpreted the Act to allow a State to submit a non-CTG rule by 
November 15, 1992, or to defer submittal of a RACT rule for sources 
that the State anticipated would be covered by a post-enactment CTG, 
based on the list of CTGs EPA expected to issue to meet the requirement 
in section 183. Appendix E states that if EPA fails to issue a CTG by 
November 15, 1993 (which it did for 11 source categories), the 
responsibility shifts to the State to submit a non-CTG RACT rule for 
those sources by November 15, 1994. In accordance with section 
182(b)(2), implementation of that RACT rule should occur by May 31, 
1995.

[[Page 36347]]

II. What Are Negative Declarations and What Is Their Purpose?

    The EPA does not require States to develop plans or regulations to 
control emissions from major sources which are not located in the 
planning area. In order to determine whether this might be the case, 
the State may examine its emissions inventory before initiating the 
planning and development process. If the State finds no subject 
sources, then it may prepare and submit to EPA, a negative declaration 
stating there are no sources in the planning area which would be 
subject to the required rule, rather than a control plan for sources in 
a particular category. In addition to reviewing its emissions 
inventory, Indiana reviewed its permit files for sources with a 
potential to emit 100 tons or more of VOC annually located in Clark and 
Floyd Counties.

III. What Types of Sources Are Covered by These Negative 
Declarations?

    The State negative declarations addressed two CTG categories: 
Control of Volatile Organic Compound Emissions from Industrial 
Wastewater (EPA Document Number: EPA-453/D-93-056) and Control of 
Volatile Organic Emissions from Coating Operations at Aerospace 
Manufacturing and Rework Facilities (EPA Document Number: EPA-453/R-97-
004, December, 1997). The State's negative declarations also includes 
two source categories addressed by the Alternative Control Document 
\1\: Surface Coating of Automotive/Transportation and Business Machine 
Plastic Parts (EPA 4531R-94-017, February 1994 including page 4-3a as 
revised April 4, 1994). The State negative declarations also addressed 
five non-CTG source categories because the State must control VOC 
emissions from all sources with a potential to emit 100 tons or more of 
VOC annually located in Clark and Floyd Counties. Indiana searched its 
inventory and determined that no sources with a potential to emit 100 
tons or more of VOC per year were located in Clark and Floyd Counties 
in the following five non-CTG source categories: industrial clean up 
solvents, offset lithography operations, and SOCMI batch processes, 
reactors and distillation units.
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    \1\ Alternative Control Documents are prepared by EPA to provide 
information on emissions, controls, control options and costs which 
the State can use in developing rules based on RACT.
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IV. If New Sources Are Constructed in Clark and Floyd Counties, 
Will the VOC Emissions From These Source Categories Be 
Uncontrolled?

    No, new major sources locating in a nonattainment area are subject 
to the more stringent emission control requirements of New source 
Review under part D of the Act.

V. EPA Rulemaking Action

    EPA has examined the State's negative declarations regarding the 
lack of need for regulations controlling emissions from these source 
categories from sources located in Clark and Floyd Counties. EPA also 
examined the supporting evidence provided by the State. As a result, 
EPA approves Indiana's negative declarations for these sources.
    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, EPA is proposing to approve the State Plan should adverse 
written comments be filed. This action will be effective without 
further notice unless EPA receives relevant adverse written comment by 
July 10, 2000. Should EPA 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 August 7, 2000.

VI. Administrative Requirements

A. Executive Order 12866

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

B. 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 
Executive Order 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 Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13084

    Under Executive Order 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, or EPA consults 
with those governments. If EPA complies by consulting, Executive Order 
13084 requires EPA to 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, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials 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. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

D. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 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 Executive Order 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

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Executive Order 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 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 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 Executive Order 13132, because it 
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. Thus, the 
requirements of section 6 of the Executive Order 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 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 sections 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 
costs to State, local, or tribal governments in the aggregate; or to 
the 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 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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective August 7, 2000 unless EPA receives 
adverse written comments by July 10, 2000.

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 August 7, 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 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, Administrative practice and procedure, 
Air pollution control, Hydrocarbons, Intergovernmental relations, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: May 24, 2000.
Francis X. Lyons,
Regional Administrator, Region 5.

    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 et seq.

Subpart P--Indiana

    2. Section 52.777 is amended by adding paragraph (v) to read as 
follows:


Sec. 52.777  Control strategy: Photochemical oxidants (hydrocarbons).

* * * * *
    (v) Negative declarations--Aerospace coating operations, industrial 
clean up solvents, industrial wastewater processes, offset lithography 
operations, business plastics, automotive plastics, and synthetic 
organic chemical

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manufacturing industries (SOCMI) batch processes, reactors and 
distillation units categories. On November 8, 1999, the State of 
Indiana certified to the satisfaction of the Environmental Protection 
Agency that no major sources categorized as part of the nine categories 
listed above and have a potential to emit 100 tons or more of volatile 
organic compounds annually are located in Clark or Floyd Counties in 
southeast Indiana, adjacent to Louisville, Kentucky.

[FR Doc. 00-13839 Filed 6-7-00; 8:45 am]
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