Approval and Promulgation of Implementation Plans; Indiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN57-1-7204a; FRL-5333-9]

Approval and Promulgation of Implementation Plans; Indiana

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: On August 25, 1995, the State of Indiana submitted a State

Implementation Plan (SIP) revision request to the United States

Environmental Protection Agency (USEPA) for open burning as part of the

State's 15 percent (%) Rate of Progress (ROP) Plan control measures for

Volatile Organic Compounds (VOC). VOC is one of the air pollutants

which combine on hot summer days to form ground-level ozone, commonly

known as smog. Ozone pollution is of particular concern because of its

harmful effects upon lung tissue and breathing passages. These ROP

plans are intended to bring areas which have been exceeding the public

health based Federal ozone air quality standard closer toward the goal

of attaining and maintaining this standard. The control measures

specified in this open burning SIP revision prohibit residential open

burning in Clark, Floyd, Lake, and Porter Counties beginning June 1,

1995. Indiana expects that these measures will reduce VOC emissions by

921 pounds per day in Lake and Porter Counties, and 704 pounds per day

in Clark and Floyd Counties.

DATES: The ``direct final'' is effective on April 1, 1996, unless USEPA

receives adverse or critical comments by March 4, 1996. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Copies of the revision request and USEPA's analysis

(Technical Support Document) are available for inspection at the

following address: U.S. Environmental Protection Agency, Region 5, Air

and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois

60604. (It is recommended that you telephone David Pohlman at (312)

886-3299 before visiting the Region 5 Office.)

Written comments should be sent to: J. Elmer Bortzer, Chief,

Regulation Development Section, Regulation Development Branch (AR-18J),

U.S. Environmental Protection Agency, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: David Pohlman at (312) 886-3299.

SUPPLEMENTARY INFORMATION:

I. Background

Section 182(b)(1) of the Act requires all moderate and above ozone

nonattainment areas to achieve a 15 percent reduction of 1990 emissions

of volatile organic compounds by 1996. In Indiana, Lake and Porter

Counties are classified as ``Severe'' nonattainment for ozone, while

Clark and Floyd Counties are classified as ``Moderate'' nonattainment.

As such, these areas are subject to the 15 percent Rate of Progress

(ROP) requirement. On August 25, 1995, the Indiana Department of

Environmental Management (IDEM) submitted a SIP revision request which

amends Title 326 Indiana Administrative Code Article 4 Rule 1 Section 3

(326 IAC 4-1-3), to include a ban on residential open burning in Clark,

Floyd, Lake, and Porter Counties. In doing so, IDEM believes that these

control measures will help reduce VOC emissions enough to meet the 15%

ROP requirements. The USEPA is undertaking a separate analysis to

determine whether the 15% ROP requirement has been met as a result of

this and other States submissions, and will make that determination in

a separate rulemaking action.

Public hearings were held on this rule on May 4, 1994, September 7,

1994, and April 5, 1995, in Indianapolis, Indiana. The rules were

finally adopted by the Indiana Air Pollution Control Board on April 5,

1995, became effective on June 23, 1995, and were published in the

Indiana Register on July 1, 1995.

II. Analysis of State Submittal

The USEPA first approved an Indiana open burning rule on June 22,

1978, (43 FR 26721) as rule APC-2. (Indiana has since recodified APC-2

as 326 IAC 4-1.) Changes in the rule since USEPA's approval include the

addition of an exemption for prescribed burning by the Department of

Natural Resources for wildlife habitat maintenance, forestry purposes,

and Natural Area management (326 IAC 4-1-3(a)(8)), and an exemption for

United States Department of the Interior burning in order to facilitate

a National Park Service Fire Management Plan for the Indiana Dunes

National Lakeshore (326 IAC 4-1-3(a)(9)). These exemptions have been in

place on the State level for several years, but had not been submitted

for USEPA approval before the August 25, 1995, submittal.

The major change in the new rule is the addition of a ban on

residential open burning for Clark, Floyd, Lake, and Porter Counties.

The rule continues to allow residential open burning, with certain

restrictions, in other parts of the State. There are no specific

requirements or criteria for the USEPA to use in reviewing a ban

against open burning. However, it is reasonable to conclude that this

rule will provide reductions in VOC emissions. Therefore, this rule is

approvable as part of Indiana's 15% ROP plan.

III. Final Rulemaking Action

Revised 326 IAC 4-1-3, contains a ban on residential burning in

Clark, Floyd, Lake, and Porter Counties, and has been submitted as part

of Indiana's 15% ROP Plan for VOC. The USEPA has undertaken an analysis

of this SIP revision request based on a review of the materials

presented by IDEM and has determined that it is approvable because it

provides an enforceable mechanism for reducing VOCs and ozone. USEPA

will take separate action on Indiana's ROP Plan in a future Federal

Register document.

The USEPA is publishing this action without prior proposal because

USEPA views this action as a noncontroversial revision and anticipates

no adverse comments. However, USEPA is publishing a separate document

in this Federal Register publication, which constitutes a ``proposed

approval'' of the requested SIP revision and clarifies that the

rulemaking will not be deemed final if timely adverse or critical

comments are filed. The ``direct final'' approval shall be effective on

April 1, 1996, unless USEPA receives adverse or critical comments by

March 4, 1996. If USEPA receives comments adverse to or critical of the

approval discussed above, USEPA will withdraw this approval before its

effective date by publishing a subsequent Federal Register document

which withdraws this final action. All public comments received will

then be addressed in subsequent rulemaking. Please be aware that USEPA

will institute another comment period on this action only if warranted

by significant revisions to the rulemaking based on any comments

received in response to today's action. Any parties interested in

commenting on this action should do so at this time. If no such

comments are received, USEPA hereby advises the public that this action

will be effective on April 1, 1996.

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the

[[Page 3582]]

procedures published in the Federal Register on January 19, 1989 (54 FR

2214-2225), as revised by a July 9, 1995, memorandum from Mary D.

Nichols, Assistant Administrator for Air and Radiation. The Office of

Management and Budget has exempted this regulatory action from

Executive Order 12866 review.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. USEPA shall consider each request for revision to the SIP in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded

Mandates Act'') (signed into law on March 22, 1995) requires that the

USEPA prepare a budgetary impact statement before promulgating a rule

that includes a Federal mandate that may result in expenditure by

State, local, and tribal governments, in aggregate, or by the private

sector, of $100 million or more in any one year. Section 203 requires

the USEPA to establish a plan for obtaining input from and informing,

educating, and advising any small governments that may be significantly

or uniquely affected by the rule.

Under section 205 of the Unfunded Mandates Act, the USEPA must

identify and consider a reasonable number of regulatory alternatives

before promulgating a rule for which a budgetary impact statement must

be prepared. The USEPA must select from those alternatives the least

costly, most cost-effective, or least burdensome alternative that

achieves the objectives of the rule, unless the USEPA explains why this

alternative is not selected or the selection of this alternative is

inconsistent with law.

Because this final rule is estimated to result in the expenditure

by State, local, and tribal governments or the private sector of less

then $100 million in any one year, the USEPA has not prepared a

budgetary impact statement or specifically addressed the selection of

the least costly, most cost-effective, or least burdensome alternative.

Because small governments will not be significantly or uniquely

affected by this rule, the USEPA is not required to develop a plan with

regard to small governments. This rule only approves the incorporation

of existing state rules into the SIP. It imposes no additional

requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA

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, USEPA 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.

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 impose any new requirements, I certify

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 Act, preparation of a regulatory flexibility analysis would

constitute Federal inquiry into the economic reasonableness of the

State action. The Clean Air Act forbids USEPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. USEPA., 427 U.S.

246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

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 April 1, 1996. 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.

Dated: October 31, 1995.

Valdas V. Adamkus,

Regional Administrator.

For the reasons stated in the preamble, part 52, 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. 7401-7671q.

Subpart P--Indiana

2. Section 52.770 is amended by adding paragraph (c)(100) to read

as follows:

Sec. 52.770 Identification of Plan.

* * * * *

(c) * * *

(100) On August 25, 1995, Indiana submitted a regulation which bans

residential open burning in Clark, Floyd, Lake, and Porter Counties in

Indiana. The regulation allows residential open burning, with certain

restrictions, in other parts of the State, and describes other types of

open burning which are allowed in Indiana.

(i) Incorporation by reference.

(A) Indiana Administrative Code Title 326: Air Pollution Control

Board, Article 4: Burning Regulations, Rule 1: Open Burning, Section 3:

Exemptions. Added at 18 In. Reg. 2408 Effective June 23, 1995.

[FR Doc. 96-1843 Filed 1-31-96; 8:45 am]

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