Air programs; approval and promulgation; State plans for designated facilities and pollutants: Indiana,

[Federal Register: November 18, 1999 (Volume 64, Number 222)]

[Rules and Regulations]

[Page 62978-62982]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr18no99-7]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[IN94-1a; FRL-6476-9]

Approval of Municipal Waste Combustor State Plan for Designated Facilities and Pollutants: Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving Indiana's State Plan to control air pollutants from Municipal Waste Combustors (MWC). The Indiana Department of Environmental Management (IDEM) submitted the State Plan on September 30, 1999. The State Plan adopts the Federal Emissions Guidelines (EG) applicable to existing MWCs with the capacity to combust more than 250 Tons Per Day (TPD) of Municipal Solid Waste (MSW). The State Plan applies to the Indianapolis Resource Recovery Facility in Indianapolis, Indiana. This approval means that EPA finds the State Plan meets applicable Clean Air Act (Act) requirements for MWC State Plans. Once effective, the approval makes the State Plan federally enforceable, and Indiana's MWC will not be subject to the MWC Federal Plan.

DATES: This rule is effective on January 18, 2000, unless EPA receives adverse written comments by December 20, 1999. If adverse written 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. You can inspect copies of the State Plan submittal at the following address: U.S. Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (We recommend you contact Mark J. Palermo, Environmental Protection Specialist, at (312) 886-6082 before visiting the Region 5 Office).

FOR FURTHER INFORMATION CONTACT: Mark J. Palermo, Environmental Protection Specialist, at (312) 886-6082.

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

Table of Contents

1. What is EPA approving in this action? II. The MWC State Plan Requirement

   What is an MWC State Plan?

   Why did Indiana submit an MWC State Plan?

   What pollutants does the MWC State Plan reduce?

   What criteria must an MWC State Plan meet to be approved? III. The Indiana MWC Plan

   Who is affected by the Indiana MWC State Plan?

   Where are the Indiana MWC requirements codified?

   What does the Indiana MWC State Plan require?

   When must the State Plan requirements be met?

   What else does the Indiana MWC State Plan include?

   What public review opportunities were provided? IV. Review and Approval of the Indiana MWC State Plan

   Why is the Indiana MWC State Plan approvable?

   How does the approval of the State Plan affect Federal Plan requirements? V. EPA Rulemaking Action VI. Administrative Requirements

   1. Executive Order 12866

   2. Executive Order 13132

   3. Executive Order 13045

   4. Executive Order 13084

   5. Regulatory Flexibility Act

   6. Unfunded Mandates

   7. Submission to Congress and the Comptroller General

   8. National Technology Transfer and Advancement Act

1. Petitions for Judicial Review

1. What Is EPA Approving in This Action?

   We are approving the September 30, 1999, Indiana State Plan which implements the requirements of sections 111(d) and 129 of the Act as applicable to MWCs. This approval, once effective, will make the Indiana MWC rule included in the plan federally enforceable.

2. The MWC State Plan Requirement

   What Is an MWC State Plan?

   An MWC State Plan is a plan to control air pollutant emissions from certain combustors burning municipal solid waste. The plan also includes source and emission inventory information.

   Why Did Indiana Submit an MWC State Plan?

   Sections 111(d) and 129 of the Act require States to submit State Plans to control emissions from existing MWCs in the State. The State Plan requirement was triggered when we published the EG for MWCs on December 19, 1995 (60 FR 65387). We codified the EG at 40 CFR part 60, subpart Cb.

   Under section 129 of the Act, we are required to promulgate EGs for several categories of existing solid waste incinerators. Section 129 provides that the emission limitations in the EGs may not be less stringent than the average emission limitations achieved by the best performing 12 percent of units in the category. This is commonly referred to as the ``Maximum Available Control Technology (MACT) floor'' for existing units. Emission control options less stringent than the MACT floor can not be considered in developing section 129 EGs. In addition to emission limitations, the MWC EG also establishes requirements for compliance dates, monitoring, and operator training, as required by section 129.

   [[Page 62979]]

   The intent of the State Plan requirement is to reduce several types of air pollutants associated with waste incineration.

   What Pollutants Does the MWC State Plan Reduce?

   The State Plan establishes control requirements which reduce the following emissions from MWCs: particulate matter, opacity, sulfur dioxide, hydrogen chloride, nitrogen oxides, carbon monoxide, lead, cadmium, mercury, dioxins and dibenzofurans, and visible emissions of fugitive ash.

   These pollutants can cause adverse effects to the public health and the environment. For instance, dioxin, lead, and mercury can bioaccumulate in the environment. Exposure to mercury has been linked to serious developmental and adult effects in humans, primarily damage to the nervous system. Exposure to dioxin and furans can cause skin disorders, cancer, and reproductive effects such as endometriosis. Dioxin and furans can also affect the immune system. Acid gases, such as sulfur dioxide and nitrogen oxides, contribute to the acid rain that damages lakes and harms forests and buildings. Exposure to particulate matter has been linked to adverse health effects, including aggravation of existing respiratory and cardiovascular disease and increased risk of premature death. Nitrogen oxides emissions can also contribute to ground level ozone, which is associated with a number of adverse health and environmental effects.

   What Criteria Must an MWC State Plan Meet To Be Approved?

   The following table summarizes the criteria for approving an MWC State Plan:

   Requirement

   Elements

   Sections 111(d) and 129: State Plan --Applicability. must be at least as protective as the --Emission Limits. EG.

   --Compliance Schedules. --Performance Testing. --Monitoring/Inspection. --Work Practices. --Operator Training/ Certification. --Recordkeeping/Reporting. 40 CFR part 60, subpart B: Criteria for --Demonstration of Legal an approvable section 111(d) plan. Authority. --Enforceable Mechanism. --Evidence of public hearing. --Source and Emission Inventories. --State Progress Report Commitment.

   We issued a guidance document which contains the requirements for an approvable MWC State Plan, entitled ``Municipal Waste Combustion: Summary of the Requirements for Section 111(d)/129 States Plans for Implementing the Municipal Waste Combustor Emission Guidelines,'' published July 1996 (EPA-456/R-96-003) (see EPA web site http: // www.epa.gov/ttn/uatw/129/mwc/rimwc.html). Indiana used this document to develop its State Plan.

3. The Indiana MWC Plan

   Who Is Affected by the Indiana MWC State Plan?

   The State Plan requirements are applicable to each MWC unit with a combustion capacity greater than 250 TPD of MSW for which construction was commenced on or before September 20, 1994.

   According to the source inventory in Indiana's State Plan, there is only one existing applicable MWC source operating in the State, Indianapolis Resource Recovery Facility, in Indianapolis.

   The State Plan needs only to address MWC units with a combustion capacity greater than 250 TPD of MSW because the United States Court of Appeals for the District of Columbia Circuit has vacated the portion of the EG applicable to MWC units with capacity to combust less than or equal to 250 TPD of MSW. See Davis County Solid Waste Management and Recovery District versus EPA, 101 F.3d 1395 (D.C. Cir. 1996), as amended, 108 F.3d 1454 (D.C. Cir. 1997).

   The State Plan does not need to cover new MWCs, since they are subject to the applicable New Source Performance Standards (NSPS), also promulgated December 19, 1995. See 40 CFR part 60, subpart Eb.

   Where Are the Indiana MWC Requirements Codified?

   The State Plan requirements are codified under 326 Indiana Administrative Code (IAC) 11-7. The Indiana Pollution Control Board adopted the rule on September 2, 1998. The rule was filedwith the Secretary of State on January 18, 1999, and became effective on February 17, 1999. The rule was published in the Indiana Register on March 1, 1999, at 22 IR 1967.

   What Does the Indiana MWC State Plan Require?

   The State Plan's enforceable mechanism for the EG is 326 IAC 11-7. The Indiana rule incorporates the requirements set forth in the December 19, 1995, EG, as well as the amendments made to the EG on August 25, 1997 (62 FR 45116; 62 FR 45124). The rule contains the appropriate emission limits and requirements concerning performance testing, work practices, operator training and certification requirements, monitoring, and recordkeeping and reporting, as specified under the EG.

   When Must the State Plan Requirements Be Met?

   The rule establishes two compliance schedules to meet the EG requirements. The first compliance schedule is to meet full compliance within one year of the effective date of the rule, or February 17, 2000. If the source will not be able to meet the first compliance schedule, then it must meet the second compliance schedule. The second compliance schedule includes a final compliance date of December 19, 2000, as mandated by the Act.

   If the source intends to meet the December 19, 2000, compliance date, instead of the February 17, 2000, date, the source must submit post-1990 performance test results for dioxin/furans, and must comply with enforceable increments of progress, as required by the EG. The increments of progress ensure subject facilities will be in final compliance by December 19, 2000, the final compliance date. The Indianapolis Resource Recovery Facility has indicated its intent to comply with

   [[Page 62980]]

   the second compliance schedule and has submitted dioxin/furan test data.

   The increments of progress and respective compliance dates are as follows:

   Increment of progress

   Due date

   Submit a final control plan to IDEM. (This date does not March 19, 1999. affect the date a final control plan is required to be submitted to EPA under the Federal Plan). Award contracts for emission control systems or for process May 18, 1999. modifications, or issuance of orders for the purchase of component parts to accomplish emission control or process modifications. Initiate on-site construction or installation of emission November 16, 1999. control equipment or process change. Complete on-site construction or installation of emission November 19, 2000. control equipment or process change. Complete the initial performance test in accordance with Within 180 days of initial start-up. rule requirements.

   Notwithstanding the above compliance dates, the rule requires the source to be in compliance with the operator training and certification requirements of the rule by September 1, 1999.

   If the source is not in compliance with the rule by December 19, 2000, it must cease operation.

   What Else Does the Indiana MWC State Plan Include?

   The State Plan includes a demonstration of legal authority to implement the EG, documentation of public hearing, comment, and response, a source and emissions inventory, and a provision for State progress reports to EPA. Indiana submitted these materials to satisfy the section 111(d) requirements under 40 CFR part 60, subpart B.

   What Public Review Opportunities Were Provided?

   Indiana held two public hearings on the MWC rule. It held the first hearing on May 6, 1998, and the second hearing was held on September 2, 1998, both in Indianapolis. Indiana also published a public notice on June 30, 1999, to let the public know that the State Plan was available for viewing at several locations around the State, and that there was a 30-day public comment period and opportunity to request a public hearing on the State Plan. The public comment period closed on July 3, 1999. Indiana did not receive any comments from the public, and no one requested a third public hearing.

4. Review and Approval of the Indiana MWC State Plan

   Why is the Indiana MWC State Plan Approvable?

   We compared the Indiana MWC rule, 326 IAC 11-7, to our MWC EG. We find the Indiana rule to be at least as protective as the EG. Therefore, we find the State Plan to meet the requirements of section 129 of the Act. Also, the Indiana State Plan satisfies the requirement for an approvable section 111(d) plan under subparts B and Cb of 40 CFR part 60. For these reasons, we are approving the Indiana MWC State Plan.

   How Does the Approval of the State Plan Affect Federal Plan Requirements?

   On November 12, 1998, we promulgated a Federal Plan implementing the EG in those States that did not have approved State Plans (see 63 FR 63191). Indiana became subject to the Federal Plan as of that date because it had not yet submitted a State Plan.

   In the Federal Plan's preamble, we indicated that once EPA approves a State Plan, the Federal Plan no longer applies in that State, as of the effective date of the State Plan approval. The State will implement and enforce the State Plan in lieu of the Federal Plan. The Federal Plan also states that we will periodically amend the Federal Plan exclusion table to identify States that have approved State Plans. MWC units subject to approved and effective State Plans are not subject to the Federal Plan. The State Plan is effective on the date specified in the Federal Register announcing EPA's approval, whether or not we have revised the exclusion table. Therefore, once this final action approving the Indiana MWC State Plan becomes effective, the existing MWC Federal Plan requirements will no longer apply to Indiana.

5. EPA Rulemaking Action

   We are approving, through direct final rulemaking action, Indiana's sections 111(d) and 129 State Plan for large MWCs, submitted on September 30, 1999. As of the effective date of this action, Indiana sources will no longer be subject to the November 12, 1998, Federal Plan. The 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, the EPA is proposing to approve the State Plan should adverse written comments be filed. This action will be effective January 18, 2000 without further notice unless EPA receives relevant adverse written comment by December 20, 1999. Should the Agency 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 January 18, 2000.

6. Administrative Requirements

   1. Executive Order 12866

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

   2. Executive Order 13132

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

      [[Page 62981]]

      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 final 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 E.O. 13132. Thus, the requirements of section 6 of the E.O. do not apply to this rule.

   3. 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 E.O. 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 E.O. 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

   4. Executive Order 13084

      Under E.O. 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. If the mandate is unfunded, EPA must 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, E.O. 13084 requires EPA to develop an effective process permitting elected 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. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

   5. 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 final 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).

   6. Unfunded Mandates

      Under section 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 annual costs to State, local, or tribal governments in the aggregate; or to 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 annual 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.

   7. 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 rule is not a ``major'' rule as defined by 5 U.S.C. 804(2).

   8. 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.

1. Petitions for Judicial Review

   Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by January 18, 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

   [[Page 62982]]

   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, Municipal waste combustors, Reporting and recordkeeping requirements.

   Dated: November 4, 1999. Jerri-Anne Garl, Acting Regional Administrator, Region 5.

   PART 52--[AMENDED]

   40 CFR Part 62 of the Code of Federal Regulations is amended as follows:

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

      Authority: 42 U.S.C. 7401-7642.

      Subpart P--Indiana

   2. Part 62 is amended by adding an undesignated centerhead and Secs. 62.3650, 62.3651, and 62.3652 to Subpart P to read as follows: * * * * *

      Metals, Acid Gases, Organic Compounds and Nitrogen Oxide Emissions From Existing Municipal Waste Combustors With the Capacity To Combust Greater Than 250 Tons Per Day of Municipal Solid Waste

      Sec. 62.3650 Identification of plan.

      On September 30, 1999, Indiana submitted the State Plan for implementing the Federal Large Municipal Waste Combustor (MWC) Emission Guidelines to control emissions from existing MWCs with the capacity to combust greater than 250 tons per day of municipal solid waste. The enforceable mechanism for this plan is a State rule codified in 326 Indiana Administrative Code (IAC) 11-7. The rule was adopted on September 2, 1998, filedwith the Secretary of State on January 18, 1999, and became effective on February 17, 1999. The rule was published in the Indiana State Register on March 1, 1999 (22 IR 1967).

      Sec. 62.3651 Identification of sources.

      The plan applies to all existing municipal waste combustors with the capacity to combust greater than 250 tons per day of municipal solid waste, and for which construction, reconstruction, or modification was commenced on or before September 20, 1994, as consistent with 40 CFR part 60, subpart Cb. Subject facilities include the Indianapolis Resource Recovery Facility in Indianapolis, Indiana.

      Sec. 62.3652 Effective Date.

      The effective date of the approval of the Indiana State Plan for municipal waste combustors with the capacity to combust greater than 250 tons per day of municipal solid waste is January 18, 2000.

      [FR Doc. 99-30021Filed11-17-99; 8:45 am]

      BILLING CODE 6560-50-P