[Federal Register Volume 74, Number 110 (Wednesday, June 10, 2009)]
[Rules and Regulations]
[Pages 27442-27444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13486]



40 CFR Part 52

[EPA-R05-OAR-2006-0004; FRL-8900-5]

Approval and Promulgation of Air Quality Implementation Plans; 

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: Pursuant to provisions in the Clean Air Act (Act) which allow 
EPA to correct State Implementation Plan (SIP) actions made in error, 
EPA is taking final action to correct an error in part of its June 12, 
2006 approval of an amendment to Indiana's ozone SIP. In today's 
action, EPA is rescinding its approval of the inclusion of the state's 
codified definition of hazardous air pollutant (HAP) in Indiana's ozone 

DATES: This final rule is effective on July 10, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2006-0004. All documents in the docket are listed on 
the http://www.regulations.gov Web

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site. Although listed in the index, some information is not publicly 
available, i.e., Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form.
    Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Environmental Protection Agency, Region 5, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This 
facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding Federal holidays. We recommend that you telephone Steven 
Rosenthal, Environmental Engineer, at (312) 886-6052 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-6052, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What public comments were received on the proposed correction 
notice and what is EPA's response?
II. What action is EPA taking and what is the reason for this 
III. Statutory and Executive Order Reviews

I. What public comments were received on the proposed correction notice 
and what is EPA's response?

    EPA did not receive any public comments on the August 4, 2008, 
proposed correction notice.

II. What action is EPA taking and what is the reason for this action?

    Section 110 of the Act is the authority under which Congress has 
directed EPA to act on SIPs and SIP revisions. Section 110(a) 
establishes the applicable procedures for SIP development and 
submission. The trigger for these activities is the promulgation of 
national ambient air quality standards (NAAQS); and the focus of the 
State's efforts is to develop ``a plan which provides for 
implementation, maintenance, and enforcement'' of the NAAQS. Section 
110(a)(1). EPA must then determine whether the submission contains the 
air quality-related components prescribed in Section 110(a)(2).
    Other than for lead, which is both a HAP and criteria pollutant, 
Section 110 does not provide parameters to determine the approvability 
of a HAP provision. Instead, in the 1990 Amendments to the Act, 
Congress envisioned that HAPs (including the then-listed ethylene 
glycol monobutyl ether (EGBE)) would be regulated under Section 112. 
State programs for hazardous pollutants, including delegations, are 
governed by Section 112(l) of the Act. They should not be included in 
the SIP under Section 110.
    Section 110(k)(6) of the Act provides that ``whenever EPA 
determines that its action approving, disapproving, or promulgating any 
plan or plan revision (or part thereof), * * * was in error, EPA may 
revise such action as appropriate without requiring any further 
submission from the State.'' Therefore, under section 110(k)(6), EPA is 
rescinding its exclusion of EGBE from Indiana's definition of HAP, and 
is also rescinding Indiana's definition of HAP in 326 IAC 1-2-33.5, 
from Indiana's ozone SIP.
    On June 12, 2006, as requested by the State, EPA took action under 
section 110(a) of the Act and deleted EGBE from the SIP's definition 
for HAP in 326 IAC 1-2-33.5. For the reasons discussed above, EPA 
should not have taken this action under section 110(a) of the Act. On 
January 10, 2008, the Indiana Department of Environmental Management 
requested that EPA correct that earlier action.

III. Statutory and Executive Order Reviews

    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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely corrects an error and approves State law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by State law. Accordingly, the Administrator certifies that 
this final 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 corrects an error and 
approves preexisting requirements under State law and does not impose 
any additional enforceable duty beyond that required by State law, it 
does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4).
    This final rule also does not have Tribal implications because it 
will 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). This final action also does not 
have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action 
merely corrects an error and approves a State rule implementing a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Act. This 
rule also is not subject to Executive Order 13045 ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the 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 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. 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

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the Federal Register. A major rule cannot take effect until 60 days 
after it is published in the Federal Register. This correction to 40 
CFR 52 for Indiana is not a ``major rule'' as defined by 5 U.S.C. 
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 10, 2009. 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, Ozone, Hazardous air 
pollutants, Reporting and recordkeeping requirements, Volatile organic 

    Dated: April 22, 2009.
Walter W. Kovalick, Jr.,
Acting Regional Administrator, Region 5.

40 CFR Part 52 is amended as follows:


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 revising paragraph (c)(176) to read as 

Sec.  52.770  Identification of plan.

* * * * *
    (c) * * *
    (176) On December 21, 2005, Indiana submitted revised regulations 
to the EPA. As a result, the compounds, 1,1,1,2,2,3,3-heptafluoro-3-
methoxy-propane, 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-
(trifluoromethyl)hexane, 1,1,1,2,3,3,3-heptafluoropropane, and methyl 
formate, are added to the list of ``nonphotochemically reactive 
hydrocarbons'' or ``negligibly photochemically reactive compounds'' in 
326 IAC 1-2-48 and these compounds are deleted from the list of VOCs in 
326 IAC 1-2-90. Companies producing or using the four compounds will no 
longer need to follow the VOC rules for these compounds. The 
requirements in 326 IAC 1-2-48 and 1-2-90 were also modified for the 
compound t-butyl acetate. It is not considered a VOC for emission 
limits and content requirements. T-butyl acetate will still be 
considered a VOC for the recordkeeping, emissions reporting, and 
inventory requirements.
    (i) Incorporation by reference.
    (A) Indiana Administrative Code Title 326: Air Pollution Control 
Board, Article 1: General Provisions, Rule 2: Definitions, Section 48: 
```Nonphotochemically reactive hydrocarbon' or `negligibly 
photochemically reactive compounds' defined'', and Section 90: `` 
`Volatile organic compound' or `VOC' defined''. Filed with the 
Secretary of State on October 20, 2005 and effective November 19, 2005. 
Published in 29 Indiana Register 795-797 on December 1, 2005.
* * * * *

[FR Doc. E9-13486 Filed 6-9-09; 8:45 am]