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Approval of Section 112(l) Program of Delegation; Indiana

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[Federal Register: July 8, 1997 (Volume 62, Number 130)]
[Rules and Regulations]
[Page 36460-36463]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy97-8]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[IN 74-3; FRL-5854-4]

Approval of Section 112(l) Program of Delegation; Indiana

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is approving a request for delegation of the Federal air
toxics program contained within 40 CFR parts 61 and 63 pursuant to
section 112(l) of the Clean Air Act (CAA) of 1990. The State's
mechanism of delegation involves State rule adoption of all existing
and future section 112 standards unchanged from the Federal standards.
The actual delegation of authority of individual standards will be in
the form of a letter from EPA to the Indiana Department of
Environmental Management (IDEM). This request for approval of a
mechanism of delegation encompasses all sources not covered by the Part
70 program.

DATES: This action will become effective August 7, 1997.

ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the approval are available for
inspection during normal business hours at the following location: EPA
Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois, 60604.
Please contact Sam Portanova at (312) 886-3189 to

[[Page 36461]]

arrange a time if inspection of the submittal is desired.

FOR FURTHER INFORMATION CONTACT: Sam Portanova, EPA Region 5, AR-18J,
77 West Jackson Boulevard, Chicago, Illinois, 60604, (312) 886-3189.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    Section 112(l) of the CAA enables the EPA to approve State air
toxics programs or rules to operate in place of the Federal air toxics
program. The Federal air toxics program implements the requirements
found in section 112 of the CAA pertaining to the regulation of
hazardous air pollutants. Approval of an air toxics program is granted
by the EPA if the Agency finds that the State program: (1) is ``no less
stringent'' than the corresponding Federal program or rule, (2) the
State has adequate authority and resources to implement the program,
(3) the schedule for implementation and compliance is sufficiently
expeditious, and (4) the program is otherwise in compliance with
Federal guidance. Once approval is granted, the air toxics program can
be implemented and enforced by State or local agencies, as well as EPA.
Implementation by local agencies is dependent upon appropriate
subdelegation.
    On February 7, 1996, Indiana submitted to EPA a request for
delegation of authority to implement and enforce the air toxics program
under section 112 of the CAA. On February 29, 1996, EPA found the
State's submittal complete. In this notice EPA is taking final action
to approve the program of delegation for Indiana.
    EPA published a direct final rule approving Indiana's request for
delegation of authority to implement and enforce the air toxics program
under section 112 in the April 1, 1997, Federal Register (62 FR 15404).
EPA also published a proposed approval of Indiana's request in the
April 1, 1997, Federal Register (62 FR 15453). In the event that EPA
received adverse comments, it would withdraw the direct final rule and
publish a final action based on the proposed rule. EPA received a
public comment on this action on April 30, 1997. As a result of that
public comment, the April 1, 1997, direct final rule will be removed.
In this document, EPA addresses the public comment and takes final
action to approve Indiana's request for delegation of authority to
implement and enforce the air toxics program under section 112. This
action is based on the April 1, 1997, proposed rule (62 FR 15453).

II. Review of State Submittal

A. Program Summary

    Requirements for approval, specified in section 112(l)(5), require
that a State's program contain adequate authorities, adequate resources
for implementation, and an expeditious compliance schedule. These
requirements are also requirements for an adequate operating permits
program under Part 70 (40 CFR 70.4). On November 14, 1995, EPA
promulgated a final interim approval under Part 70 of the State of
Indiana's Operating Permit Program. The notice included the approval of
a mechanism for delegation of all section 112 standards for sources
subject to the Part 70 program. Sources subject to the Part 70 program
are those sources that are operating pursuant to a Part 70 permit
issued by the State, local agency, or EPA. Sources not subject to the
Part 70 program are those sources that are not required to obtain a
Part 70 permit from either the State, local agency, or EPA. This action
supplements the Part 70 rulemaking in that Indiana will have the
authority to implement and enforce the section 112 air toxics program
regardless of a source's Part 70 applicability. The Indiana program of
delegation for sources not subject to Part 70 will not include
delegation of section 112(r) authority or section 112(i)(5) Early
Reductions Program authority.
    As stated above, this notice constitutes EPA's approval of
Indiana's program of delegation of all existing and future air toxics
standards, except for section 112(r) standards as they pertain to non-
Part 70 sources. This delegation is for State rule adoption of all
existing and future section 112 standards unchanged from the Federal
standards delegation. Indiana intends to seek such delegation for all
section 112 standards with the exception of section 112(r). The Indiana
program of delegation will operate as follows:
    1. For existing section 112 standards, IDEM has submitted a
schedule for their adoption into the State regulations.
    2. For a future section 112 standard for which IDEM intends to
accept delegation, EPA will automatically delegate the authority to
implement a standard to the State by letter unless IDEM notifies EPA
differently within 45 days of EPA final promulgation of the standard.
Upon receipt of the EPA letter, the State will be responsible for the
implementation of the standard. Some activities necessary for effective
implementation of the standard include receipt of initial
notifications, recordkeeping, reporting and generally assuring that
sources subject to the standard are aware of its existence.
    3. IDEM will adopt the standard unchanged from the Federal standard
into the State regulations as expeditiously as practicable. Indiana
Code (IC) 13-7-7-5 requires IDEM to adopt such standards within 9
months of the effective date of the Federal standard.
    4. Upon completion of regulatory action, IDEM will submit to EPA
proof of rule adoption.
    5. EPA will respond with a letter delegating enforcement authority
to the State. EPA will enforce the standard until such time the State
has been delegated the enforcement authority.
    Indiana will assume responsibility for the timely implementation
and enforcement required by the standard, as well as any further
activities agreed to by IDEM and EPA. When deemed appropriate, IDEM
will utilize the resources of its Small Business Assistance Program to
assist in general program implementation.

B. Criteria for Approval

    On November 26, 1993, EPA promulgated regulations to provide
guidance relating to the approval of State programs under section
112(l) of the CAA. 58 FR 62262. That rulemaking outlined the
requirements of approval with respect to various delegation options.
The requirements for approval, pursuant to section 112(l)(5) of the
CAA, of a program to implement and enforce Federal section 112 rules as
promulgated without changes are found at 40 CFR 63.91. Any request for
approval must meet all section 112(l) approval criteria, as well as all
approval criteria of 40 CFR 63.91. A more detailed analysis of the
State's submittal pursuant to 40 CFR 63.91 is contained in the
Technical Support Document included in the docket of this rulemaking.
    Under section 112(l) of the CAA, approval of a State program is
granted by the EPA if the Agency finds that it: (1) is ``no less
stringent'' than the corresponding Federal program, (2) that the State
has adequate authority and resources to implement the program, (3) the
schedule for implementation and compliance is sufficiently expeditious,
and (4) the program is otherwise in compliance with Federal guidance.

C. Analysis

    EPA is approving Indiana's mechanism of delegation because the
State's submittal meets all requirements necessary for approval under
section 112(l). The first requirement is that the program be no less
stringent than the Federal program. The Indiana program is no less
stringent than the

[[Page 36462]]

corresponding Federal program or rule because the State has requested
delegation of all standards unchanged from the Federal standards.
    Second, the State has shown that it has adequate authority and
resources to implement the program. The Indiana Air Pollution Control
Board has statutory authority to adopt rules necessary to implement the
Federal Clean Air Act, as amended by the Clean Air Act Amendments of
1990. IC 13-1-1-4. This authority includes the ability to adopt federal
section 112 rules as promulgated without change. Indiana has adopted
several existing section 112 rules, is in the process of adopting the
remaining existing section 112 rules, and commits to the expeditious
adoption of future section 112 rules. Adequate resources will be
obtained through section 105 grant monies awarded to States by EPA,
through State matching funds, and through any monies from the State's
Title V program that can be used to fund acceptable Title V activities
with respect to these non-Part 70 sources.
    Third, upon promulgation of a standard, Indiana will immediately
begin activities necessary for timely implementation of the standard.
These activities will involve identifying sources subject to the
applicable requirement, education and outreach to affected sources, and
providing assistance to sources in completing and submitting initial
notifications. Indiana has already conducted such activities for
several section 112 standards. In addition, Indiana is committed to
adopting section 112 standards into the State regulations within 9
months of Federal promulgation. This schedule is sufficiently
expeditious for approval.
    Fourth, nothing in the Indiana program for delegation is contrary
to Federal guidance.

D. Determinations.

    In approving this delegation, EPA expects that the State will
obtain concurrence from EPA on any matter involving the interpretation
of section 112 of the Clean Air Act or 40 CFR part 63 to the extent
that implementation, administration, or enforcement of these sections
have not been covered by EPA determinations or guidance.

III. Response to Public Comment

    The EPA received one comment on the April 1, 1997, Federal Register
notice. RSR Corporation (RSR) submitted comments on behalf of its
wholly owned subsidiary Quemetco, Incorporated. RSR commented that
``EPA has stated its intent to issue substantial revisions to the
secondary lead NESHAP provisions.'' RSR expressed concern that IDEM
could adopt unchanged federal regulations that ``are or will be
obsolete'' and urged EPA to delay implementation of the delegation of
the NESHAP for secondary lead smelters until EPA has promulgated final
revisions to the secondary lead NESHAP.
    EPA's approval of the delegation of authority to implement and
enforce the air toxics program under section 112 only provides a
mechanism for the State to accept delegation of authority to implement
NESHAPs. State implementation of a particular NESHAP would not occur
until Indiana adopts the standard into the State rule. Therefore,
approval of the delegation of authority under 112(l) would not cause
the State to receive automatic delegation of a standard. In addition,
the delegation of authority under section 112(l) for Title V sources
was established as part of the Indiana Title V program interim approval
rulemaking (60 FR 57188). As a major source, Quemetco will be subject
to the Title V program and, thus, Indiana already has delegation of
authority under section 112(l) for this source. EPA's approval of this
delegation need not be delayed in order to prevent the State
implementation of the secondary lead NESHAP.
    Furthermore, delegation of authority under section 112(l) and
subsequent adoption of the State rule only transfers authority to
implement and enforce a NESHAP from the EPA to the State. Until this
action occurs, the NESHAP is implemented and enforced by EPA and
sources are subject to all requirements of the Federally-promulgated
standard.
    RSR also requested that EPA ``establish the secondary lead NESHAP
as the lead standard for use in attainment areas in the country.'' ``To
promote consistency and environmental protection, RSR requests that EPA
determine that the secondary lead NESHAP should replace existing,
scattered lead emission standards in attainment areas.'' Since this
action only addresses the delegation of authority to implement and
enforce the air toxics program under section 112 to the State of
Indiana, it will not address the issue of establishing lead standards
in attainment areas nationwide.
    RSR requests that, in this delegation, EPA ``direct Indiana to use
the NESHAP to replace the standard for Quemetco in Marion County
because those standards were developed in a piecemeal, fragmented
fashion.'' This action only addresses delegation of authority under
112(l) and not State implementation plan rules which have been adopted
by Indiana. Therefore, EPA will not address Indiana's regulatory
actions for the State implementation plan in this rulemaking. Moreover,
the CAA gives States the authority and primary responsibility to
develop rules to address nonattainment areas within their borders. In a
given case, a State may determine it is necessary to adopt or maintain
requirements different from those contained in the nationally
applicable rules.

IV. Final Action

    The EPA is promulgating final approval of the February 7, 1996,
request by the State of Indiana for delegation of section 112 standards
unchanged from Federal standards because the request meets all
requirements of 40 CFR 63.91 and section 112(l) of the CAA. Upon the
effective date of this rule, all existing section 112 standards which
have been adopted unchanged into the State rules are delegated to the
State of Indiana. Future delegation of the section 112 standards to the
State will occur upon EPA's promulgation of the standard according to
the procedures outlined earlier in this rule.
    Upon the effective date of this action, all notifications, reports
and other correspondence required under section 112 standards should be
sent to the State of Indiana rather than to the EPA, Region 5, in
Chicago. Affected sources should send this information to: Indiana
Department of Environmental Management, Office of Air Management, 100
North Senate Avenue, P.O. Box 6015, Indianapolis, Indiana 46206-6015.
    In this action, EPA approves the delegation of the Federal air
toxics program pursuant to section 112(l) of the CAA. EPA published a
proposed approval of this delegation on April 1, 1997, and is granting
final approval with this rulemaking. The final approval shall be
effective on August 7, 1997.
    Copies of the State's submittal and other information relied upon
for the final approval of the requested delegation are contained in a
docket maintained at the EPA Regional Office. The docket is an
organized and complete file of all the information submitted to, or
otherwise considered by, EPA in the development of this final approval.
The docket is available for public inspection at the location listed
under the ADDRESSES section of this document.
    Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to the
State's delegated air toxics program. EPA shall consider each request
for revision to the

[[Page 36463]]

State's delegated air toxics program in light of specific technical,
economic, and environmental factors and in relation to relevant
statutory and regulatory requirements.

Administrative Requirements

A. Executive Order 12866
    This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
B. Regulatory Flexibility
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. (5 U.S.C. 603 and 604.)
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
    Delegation of pre-existing Federal requirements under section 112
of the CAA does not create any new requirements, but simply allows the
State to enforce Federal requirements that have been or will be
separately promulgated. Therefore, because this Federal delegation
approval does not impose any new requirements, the Administrator
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the CAA, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of the
State action. The CAA forbids EPA to base its actions concerning State
plans on such grounds. Union Electric Co. v. EPA., 427 U.S. 246, 256-66
(1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
    Under sections 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must undertake various actions
in association with proposed or final rule that include 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. This Federal action approves delegation of pre-existing
Federal requirements to the State. No new Federal requirements are
imposed. Accordingly, no additional costs to local or tribal
governments, or the private sector, result from this action. EPA
believes that the cost of any additional authority voluntarily
undertaken by the State will be less than $100 million.
D. Submission to Congress and the General Accounting Office
    Under section 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a major rule as defined by section
804(2).
E. 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 September 8, 1997. 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 63

    Environmental Protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations.

    Authority: 42 U.S.C. 7401-7671(q).

    Dated: June 26, 1997.
David A. Ullrich,
Acting Regional Administrator.

[FR Doc. 97-17737 Filed 7-7-97; 8:45 am]
BILLING CODE 6560-50-P

 
 

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