[Federal Register Volume 65, Number 168 (Tuesday, August 29, 2000)]
[Rules and Regulations]
[Pages 52315-52319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21911]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN98-1a, IN125-1a; FRL-6854-6]


Approval and Promulgation of Implementation Plans; Indiana 
Source-Specific Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to air pollutant emission 
limitations for two facilities in Lake County, Indiana. These 
limitations concern particulate matter emissions from a Lever Brothers 
facility and both particulate matter and sulfur dioxide emissions from 
Northern Indiana Public Service Company's (NIPSCo's) Dean Mitchell 
Station. Indiana requested these revisions on February 3, 1999, and 
December 28, 1999, respectively.

DATES: This rule is effective on October 30, 2000, unless EPA receives 
written adverse comments by September 28, 2000. If adverse comments are 
received, timely notice will be published in the Federal Register 
withdrawing the rule and informing the public that the rule will not 
take effect.

ADDRESSES: Send comments to: J. Elmer Bortzer, Chief, Regulation 
Development Section, Air Programs Branch (AR-18J), United States 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    Copies of the State's submittal are available for inspection at the 
following address:
    (We recommend that you telephone John Summerhays at (312) 886-6067, 
before visiting the Region 5 Office.)
U.S. Environmental Protection Agency, Region 5, Air and Radiation 
Division (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Regulation 
Development Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6067.

SUPPLEMENTARY INFORMATION: This rulemaking approves revisions to limits 
in the Indiana State Implementation Plan (SIP) for two companies in 
Lake County, Indiana. The first company is Lever Brothers, for which 
the Indiana Department of Environmental Management (IDEM) requested 
emission limit revisions for particulate matter on February 3, 1999. 
The second company is Northern Indiana Public Service Company (NIPSCo), 
for which IDEM requested emission limit revisions for both particulate 
matter and sulfur dioxide limits on December 28, 1999.
    This document is organized according to the following table of 
contents:

I. Lever Brothers
    1. What revisions did IDEM request?
    2. What is EPA's evaluation of this request?
II. NIPSCo-Dean Mitchell Station
    1. What revisions did IDEM request?
    2. What is EPA's evaluation of this request?
III. EPA Action
IV. Administrative Requirements

I. Lever Brothers

1. What Revisions Did IDEM Request?

    The principal revision IDEM requested for Lever Brothers concerned 
a limit on pounds of particulate matter emissions per hour for one 
emission point, specifically the milling and pelletizer soap dust 
collection system. This emission point is also subject to a limit on 
particulate matter emissions per standard cubic foot of air, but IDEM 
did not request that this latter limit be revised. Indiana included 
emission limits for this facility in the Lake County SIP for small 
particles (``PM10'') that EPA approved on June 15, 1995, at 
60 FR 31413. According to the State, while the emissions per volume 
limit was correctly set, an erroneous multiplication of emissions per 
volume times capacity air volume flow rate yielded a mistakenly low 
value for the emissions per hour value. IDEM requested that the 
emissions per hour limit be raised to the corrected value.
    2. What Is EPA's Evaluation of This Request?
    The requested revision must be evaluated as a relaxation of the 
Lake County PM10 plan. As such, the principal criterion EPA 
must use is given in section 110(l) of the Clean Air Act, requiring 
that revisions must not ``interfere with any applicable requirement 
concerning attainment and reasonable further progress * * * or any 
other applicable requirement.''
    To address this criterion, IDEM performed a dispersion modeling 
analysis of PM 10 concentrations attributable to Lever 
Brothers and other Lake County sources. IDEM used virtually the same 
inputs and procedures as the attainment plan that EPA approved in 1995, 
except that IDEM used ISC3, a more current dispersion model, as well as 
the revised emission rate for Lever Brothers. This analysis 
demonstrated that, despite the slightly increased allowable emissions 
for Lever Brothers, the plan was still adequate to attain and maintain 
the air quality standards in the vicinity.
    EPA believes the modeling analysis satisfies applicable guidance. 
EPA

[[Page 52316]]

approved most aspects of the analysis in 1995, and finds the use of an 
updated dispersion model and revised emission rate to be necessary and 
sufficient. EPA concurs with IDEM's conclusion from this analysis that 
the revision for Lever Brothers does not interfere with attainment or 
any other relevant requirements of the Clean Air Act. Therefore, EPA 
finds IDEM's request for a revision of Lever Brother's limit to be 
approvable.

II. NIPSCo-Dean Mitchell Station

1. What Revisions Did Indiana Request?

    For Northern Indiana Public Service Company's (NIPSCo's) Dean 
Mitchell Station, IDEM requested revisions to SIP limits for both 
particulate matter and sulfur dioxide (SO 2). These 
revisions are intended to accommodate mixes of boiler use that are not 
allowed under restrictions in the current SIP. The current SIP 
prohibits NIPSCo from simultaneously operating both units 4 and 5 at 
the Dean Mitchell Station unless one of these boilers is burning 
natural gas. The revised rules that IDEM requested EPA to approve would 
allow operation of these units under any of three scenarios. The first 
scenario is essentially identical to the current SIP scenario. The 
second scenario would allow simultaneous operation of units 4, 5, 6, 
and 11, but would restrict total emissions to a slightly lower level 
than the current SIP by imposing a tighter limit on pounds per million 
British Thermal Units (mmBTU). The third scenario would allow operation 
of half the units, either units 4 and 5 or units 6 and 11, coupled with 
emission limits that are comparable to current SIP limits.
    The following table summarizes the limits in the current and 
submitted rules. The first part of this table shows the limits for 
particulate matter, including columns for the pound per mmBTU and pound 
per hour limits for boilers 4 and 5 and for boilers 6 and 11, as well 
as a column showing the total allowable emissions from the plant in 
pounds per hour. The table includes rows for the limits currently in 
the SIP and the limits for each of the three scenarios in the submitted 
rule. These scenarios are labeled AA, BB, and CC, after the respective 
subparagraph numbers in 326 IAC 6-1-10.1(d)(33) of the submitted rule.
    The second part of the table shows limits for SO2, and 
uses the same columns and similar rows as the particulate matter part. 
Nevertheless, two differences warrant comment. First, for particulate 
matter the SIP rule is the rule in existence immediately prior to 
Indiana's adoption of the submitted rule. For SO2, however, 
the SIP rule is an older rule with a higher limit than the submitted 
rule or the immediately preceding State rule. Thus, the table includes 
an extra row showing the reduced SO2 limits of an 
intermediate State rule, adopted after EPA approved the SIP rule but 
before the State adopted the rule being evaluated here. (The 
intermediate State rule has never been approved into the SIP, and is 
not being approved in today's rulemaking.) Second, neither the SIP rule 
nor the intermediate State rule for SO2 have limits on 
pounds of SO2 emissions per hour. The entries in these 
portions of the table, shown in parentheses, instead reflect a de facto 
limit found by multiplying the limit in pounds per mmBTU times the 
boiler capacities in mmBTU per hour.

----------------------------------------------------------------------------------------------------------------
                                            Limit  /             6 & 11     Total
                 Scenario                     mmBTU    4 &5 hr     hr      max hr       Operating restriction
----------------------------------------------------------------------------------------------------------------
                                               Particulate Matter
----------------------------------------------------------------------------------------------------------------
SIP.......................................       .10    128.75     235.7    364.45  None, but see SO 2
AA........................................       .10    128.75       236    364.75  4 or 5, not both
BB........................................      .074       185       175       360  None
CC........................................       .10       250       236       250  4+5 or 6+11
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                                                 Sulfur Dioxide
----------------------------------------------------------------------------------------------------------------
SIP.......................................       1.2  (1534.2)  (2828.4)  (4362.6)  4 or 5, not both
Int. Rule.................................      1.05  (1342.4)  (2474.9)  (3817.3)  4 or 5, not both
AA........................................      1.05    1313.0    2475.0      3786  4 or 5, not both
BB........................................       .77      1925      1815      3740  None
CC........................................      1.05      2625      2475      2625  4+5 or 6+11
----------------------------------------------------------------------------------------------------------------

2. What Is EPA's Evaluation of This Request?

    The principal criterion for reviewing these rule revisions is their 
impact on air quality. To address this criterion, IDEM presented 
results of two types of atmospheric dispersion modeling. The first type 
of modeling evaluated the concentrations attributable to all sources in 
the area. The second type of modeling focused on the incremental impact 
of the revisions of the NIPSCo-Dean Mitchell limits.
    The modeling for particulate matter impacts of the universe of Lake 
County sources was the same modeling the State submitted for Lever 
Brothers. In brief, this modeling was very similar to modeling 
performed for the Lake County PM10 SIP approved in 1995, 
except for updated model selection and incorporation of the revised 
limits. As with Lever Brothers, this updated modeling is acceptable, 
and EPA agrees with Indiana's conclusion from this modeling that no 
violations of the air quality standards are expected to result from the 
revision of NIPSCo's particulate matter limits. EPA did not review the 
single source modeling, insofar as the more comprehensive modeling 
provided a firmer basis on which to evaluate Indiana's request.
    The situation for SO2 is more complicated. Indiana 
conducted modeling of the emissions allowed by the submitted limits. 
This modeling estimated SO2 concentrations well over both 
the 24-hour and the annual average air quality standards in the 
vicinity of NIPSCo's Dean Mitchell Station. Indiana states that the 
violation is predominantly due to a Marblehead Lime Company facility, 
and that other sources, including NIPSCo, contribute only 10.7 
micrograms per cubic meter (g/m\3\) to the violation. Indiana 
also examined the impact of the revision from intermediate limits to 
the submitted limits. Indiana found the resulting incremental increase 
in concentrations to be insignificant, based on a significance 
threshold given in EPA's emission trading policy statement published in 
1986 for Level II modeling analyses.
    Indiana's submittal focuses on the difference between the new 
limits and the intermediate limits that existed in the State's rules 
prior to adoption of

[[Page 52317]]

these new limits. These two sets of limits are approximately 
equivalent. EPA, on the other hand, is focusing on the difference 
between the new limits and the limits in the SIP. As seen in the above 
table, the new limits are clearly tighter than the limits in the SIP.
    EPA is not accepting Indiana's arguments for approving NIPSCo's new 
limits. While an attainment strategy for the relevant area must clearly 
focus on emissions from Marblehead Lime, NIPSCo has a sufficient impact 
that it must also be considered a candidate for further controls if 
needed to attain the standards. In addition, under EPA's emission 
trading policy statement, in footnote 39, EPA states that emission 
trades may not generally be approved if the trade would create or 
exacerbate a violation of the air quality standard.
    On the other hand, from EPA's perspective, Indiana is not simply 
requesting approval of limits that are equivalent to existing SIP 
limits, but in fact is requesting a tightening of the SIP limits for 
this source. The revised limits will not achieve attainment, and 
therefore the submission does not fully meet the Clean Air Act 
applicable requirements for demonstrating attainment of the air quality 
standards. However, the submission will allow EPA to enforce emission 
levels under which the area would be closer to attainment than with the 
current SIP limits. EPA has authority to approve revisions that tighten 
limits, even if the revised limits are insufficient to assure 
attainment. EPA finds the revised limits approvable on that basis and 
for that limited SIP-strengthening purpose, but not for purposes of 
demonstrating attainment of the air quality standards.
    EPA is also working with Indiana on the larger question of 
achieving attainment of the SO2 air quality standards. EPA 
approved Indiana's plan for meeting the SO2 standards in 
Lake County on January 19, 1989 (54 FR 2112) based on our belief at the 
time that the plan assured attainment. However, EPA has now become 
aware that modeling shows that portions of the county may still be 
violating these standards. Indiana has conducted analyses to indicate 
which sources contribute most significantly to these potential 
violations. EPA will be assisting Indiana in evaluating and adopting 
strategies for further emission reductions as needed to assure adequate 
protection of public health in Lake County. EPA intends to provide the 
State a reasonable period of time to devise and submit a plan that 
fully meets the Clean Air Act requirements for attainment, before 
taking further action to address the problem.

III. EPA Action

    EPA is approving the limit revisions for Lever Brothers that 
Indiana requested on February 3, 1999. EPA is also approving the limit 
revisions for NIPSCo-Dean Mitchell Station that Indiana requested on 
December 28, 1999, for the limited purpose of strengthening the 
approved SIP. EPA is publishing this action without prior proposal 
because EPA views these as noncontroversial revisions and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing the action taken in this 
final rule. This final rule will be effective on October 30, 2000 
unless, by September 28, 2000, adverse written comments are received.
    If the EPA receives such comments, EPA will withdraw this final 
action before the effective date by publishing a subsequent document in 
the Federal Register. All public comments received will be addressed in 
a subsequent final rule based on the associated proposed rule. The EPA 
does not intend to provide a second comment period on this action. 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 October 30, 2000.

IV. 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 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

[[Page 52318]]

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

    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. Section 804, however, exempts from section 801 the 
following types of rules: rules of particular applicability; rules 
relating to agency management or personnel; and 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.

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 October 30, 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, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur dioxide.

    Dated: August 4, 2000.
Francis X. Lyons,
Regional Administrator, Region 5.

    For the reasons set out in the preamble, 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 52.770 is amended by adding paragraph (c)(134) to read 
as follows:


Sec. 52.770  Identification of plan.

* * * * *
    (c) * * *
    (134) On February 3, 1999, the State of Indiana submitted a 
revision to particulate matter limitations for the Lever Brothers 
facility in Lake County. On December 28, 1999, Indiana submitted 
revisions to particulate matter and sulfur dioxide limitations for 
NIPSCo's Dean Mitchell Station.
    (i) Incorporation by reference.
    (A) Title 326 of the Indiana Administrative Code (326 IAC) 6-1-10.1 
(d)(28) and (d)(33), filed with the Secretary of State on May 13, 1999,

[[Page 52319]]

effective June 12, 1999. Published at Indiana Register Volume 22, 
Number 10, July 1, 1999 (22 IR 3047).
    (B) Title 326 of the Indiana Administrative Code (326 IAC) 7-4-1.1 
(c)(17), filed with the Secretary of State on May 13, 1999, effective 
June 12, 1999. Published at Indiana Register Volume 22, Number 10, July 
1, 1999 (22 IR 3070).

[FR Doc. 00-21911 Filed 8-28-00; 8:45 am]
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