[Federal Register Volume 67, Number 46 (Friday, March 8, 2002)]
[Rules and Regulations]
[Pages 10620-10622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5598]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[IN139-1a; FRL-7155-3]


Approval and Promulgation of State Implementation Plans; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving a negative declaration submitted by the 
State of Indiana which indicates that the State does not need 
regulations covering existing Small Municipal Waste Combustors (MWC) 
units. Indiana submitted its negative declaration regarding this 
category of sources in letters dated November 7, 2001, and December 3, 
2001. The declaration was based on a systematic search of the State's 
internal databases, which resulted in the determination that there are 
no affected small MWC units in Indiana.

DATES: This rule is effective on May 7, 2002, unless EPA receives 
adverse written comments by April 8, 2002. 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), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    A copy of the negative declaration is available for inspection at 
the U.S. Environmental Protection Agency, Region 5, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (Please 
telephone John Paskevicz at (312) 886-6084 before visiting the Region 5 
Office.)

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Environmental 
Engineer, Regulation Development Section, Air Programs Branch (AR-18J), 
EPA, Region 5, Chicago, Illinois 60604, (312) 886-6084.

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. Negative Declarations and Their Justification.
III. EPA Review of Indiana's Negative Declaration.
IV. Administrative Requirements.

I. What is the Background for This Action?

    On December 6, 2000, the EPA finalized a rule for small MWC units. 
EPA promulgated this rule based on sections 111(d) and 129 of the Clean 
Air Act (Act) Amendments of 1990. The federal rule includes emission 
guidelines for existing units and standards of performance for new, 
modified or reconstructed sources. EPA published the rule for existing 
small MWC units in the Federal Register on December 6, 2000, (65 FR 
76378), to be codified at 40 CFR part 60, subpart BBBB (Emission 
Guidelines for Small Municipal Waste Combustion Units.) EPA published 
rules for new, modified and reconstructed small MWC units in the 
Federal Register on December 6, 2000, (65 FR 76350), to be codified at 
40 CFR part 60, subpart AAAA (New Source Performance Standards for New 
Small Municipal Waste Combustion Units). The regulatory text and other 
background information for these final rulemakings can be accessed 
electronically from the EPA Technology Transfer Network website. For 
small MWC the website address is: http://www.epa.gov/ttn/atw/129/mwc/rimwc2.html
    Sections 111(d) and 129 of the Act require States in which a 
designated existing facility is operating one or more small MWC units 
to submit to EPA a plan to implement and enforce the emission 
guidelines. If, however, there are no small MWC units and the State 
therefore chooses not to develop and submit such a plan, it must submit 
a negative declaration letter. (40 CFR 60.1510, 62.06.) Section 129 of 
the Act requires that the State plan be at least as protective as the 
emission guidelines and must provide for compliance by the affected 
facilities no later than 3 years after EPA approves the State plan, but 
no later than 5 years after EPA promulgates the emission guidelines. 
Sections 111(d) and 129 of the Act also require EPA to develop, 
implement and

[[Page 10621]]

enforce a Federal Implementation Plan if a State fails to submit an 
approvable State plan. The small MWC plan must address regulatory 
applicability, increments of progress for retrofit, operator training 
and certification, operating practices, emission limits, continuous 
emission monitoring, stack testing, record keeping, and reporting, and 
requirements for air curtain combustors. States are required to follow 
the requirements of 40 CFR part 60, subpart B, and 40 CFR part 62, 
regarding the adoption and submittal of State plans for designated 
facilities.
    In addition to the publication of the emission guidelines document, 
EPA notified each of the States of the requirements listed in the rule. 
On February 23, 2001, EPA, Region 5 asked Indiana to provide 
information so EPA could determine if the State was required to develop 
and submit the required plan. The State began a detailed review of its 
internal databases at the Office of Land Quality to ascertain the 
status of small MWC facilities. This effort resulted in a determination 
there were no small MWC units and culminated in the State's request for 
a negative declaration.

II. Negative Declarations and Their Justification

    The EPA does not require States to develop plans or regulations to 
control emissions from sources for which there are none present in the 
State (40 CFR 62.06). If the State thinks that there may be some small 
MWC units in operation, it should examine available records on these 
sources before initiating the planning and regulation development 
process. If after a careful examination of available information, the 
State finds no sources for this source category, then it may prepare 
and submit to EPA a negative declaration stating there are no sources 
in the State which match this source category. This is done in lieu of 
submitting a control strategy.
    On November 7, 2001, the State of Indiana submitted to EPA a 
negative declaration regarding the need for a regulation covering small 
MWC units. The State supplemented this submission on December 3, 2001. 
The Indiana Department of Environmental Management (IDEM) reviewed its 
Office of Land Quality rules, 329 IAC 11-17-1, which call for permits 
for solid waste processing facilities. IDEM evaluated the applicability 
criteria in the final emission guidelines (40 CFR part 60, subpart 
BBBB, 40 CFR 60.1550 through 60.1565) and searched a database 
containing the applicable records. Three facilities were identified but 
found to be either a ``major source'' and thus subject to the large MWC 
emission guideline at 40 CFR part 60, subpart Cb, or a source subject 
to the Hospital and Medical Infectious Waste Incinerator (HMIWI) rule 
at 40 CFR part 60, subpart Ce. These sources are referenced by the 
State in its letter submitting the negative declaration.
    The State also searched a second database as a source of 
information on small MWC units. This database is part of the State's 
Office of Air Quality emission reporting system developed under Indiana 
emission reporting rule, 326 IAC 2-6, and contains emission information 
for sources at the process level. Indiana searched in this database by 
Source Classification Codes (SCC) for solid waste or refuse-derived 
fuel combustion processes. The SCCs selected included 101-012-02, 103-
012-02, and 501-001-01 through 501-001-05. They identified only sources 
that are subject to the large MWC and HMIWI emission guidelines. No 
small MWC sources sizes were found. Based on this search, the IDEM 
concluded that there are no affected small MWC units in Indiana.
    This conclusion is consistent with an inventory review conducted in 
May 1998 by EPA Regional Offices and State air pollution control 
agencies. Those agencies did not find any small MWC units in Indiana.

III. EPA Review of Indiana's Negative Declaration

    EPA has examined the State's negative declaration regarding the 
lack of need for a regulation controlling emissions from small MWC 
units. EPA agrees that, at this time, there appear to be no unregulated 
small incinerators in Indiana which would require the adoption of rules 
to control this source category. If a new source chooses to construct 
in Indiana, it would be required to comply with new source performance 
standard requirements published for small MWC units on December 6, 2000 
(65 FR 76350). If, at a later date, an existing small MWC unit is 
identified in the State, the Federal plan implementing the emission 
guidelines contained in subpart BBBB will automatically apply to that 
MWC unit until the State develops a plan and EPA approves it. 40 CFR 
60.1530.
    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's negative 
declaration should adverse written comments be filed. This action will 
be effective without further notice unless EPA receives relevant 
adverse written comment by April 8, 2002. 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 comments are received, the 
public is advised that this action will be effective on May 7, 2002.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves Indiana's declaration that there are no small MWC's 
located in Indiana which would be subject to an MWC regulation if one 
were adopted. Therefore, the State does not need to adopt a MWC 
regulation. Any new MWC's built in Indiana will be subject to New 
Source Performance Standards. Because this rule approves state negative 
declarations and does not impose any additional enforceable duty, it 
does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Public Law 104-4). This rule also does not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it 
merely approves a state declaration that a rule implementing a federal 
standard, is unnecessary and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. This rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant.

[[Page 10622]]

    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    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 May 7, 2002 unless EPA receives 
adverse written comments by April 8, 2002.
    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 May 7, 2002. 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 62

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

    Dated: February 28, 2002.
Norman Niedergang,
Acting Regional Administrator, Region 5.

    For the reasons stated in the preamble, part 62, chapter I, title 
40 of the Code of Federal Regulations is amended as follows:

PART 62--[AMENDED]

    1. The authority citation for part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart P--Indiana

    2. A new center heading and Sec. 62.3645 are added to read as 
follows:

Emissions From Small Municipal Waste Combustion Units With the 
Capacity to Combust at Least 35 Tons Per Day of Municipal Solid 
Waste But No More Than 250 Tons Per Day of Municipal Solid Waste 
and Commenced Construction on or Before Aust 30, 1999


Sec. 62.3645  Identification of plan--negative declaration.

    On November 7, 2001, and December 3, 2001, the State of Indiana 
certified to the satisfaction of the United States Environmental 
Protection Agency that no sources categorized as small Municipal Waste 
Combustors are located in the State of Indiana.

[FR Doc. 02-5598 Filed 3-7-02; 8:45 am]
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