Approval and Promulgation of Implementation Plans; Indiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN62-1-7234a; FRL-5342-7]

Approval and Promulgation of Implementation Plans; Indiana

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (USEPA) is

approving an August 25, 1995, State request for a site-specific

revision to the Indiana sulfur dioxide (SO2) State Implementation

Plan (SIP). This revision amends the SO2 emission limitations

applicable to the Joseph E. Seagram and Sons, Inc. (Seagram), facility

in Lawrenceburg, Indiana, so that two boilers may not operate

simultaneously on coal or fuel oil. The Seagram facility has

essentially operated under these restrictions for several years,

thereby emitting less SO2 than the previous rules had allowed. The

incorporation of this restriction into the Indiana SO2 SIP was

deemed to be necessary after dispersion modeling in support of an

SO2 SIP revision for Cincinnati, Ohio predicted violations of the

National Ambient Air Quality Standards (NAAQS) for SO2 in Dearborn

County, Indiana, if Seagram were to operate at the previously allowed

SO2 emission rates. The restrictions contained in Indiana's August

25, 1995, submittal will eliminate the predicted violations in Dearborn

County, and their approval by USEPA will enable final Federal approval

of the Cincinnati, Ohio SO2 SIP revision.

DATES: This action is effective on April 9, 1996 unless an adverse

comment is received by March 11, 1996. If the effective date is

delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer,

Chief, Regulation Development Section, Regulation Development Branch

(AR-18J), United States Environmental Protection Agency, Region 5, 77

West Jackson Boulevard, Chicago, Illinois 60604.

Copies of the State's submittal and USEPA's analysis (Technical

Support Document) are available for inspection at the following

location: United States Environmental Protection Agency, Region 5, Air

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

60604. (It is recommended that you telephone Mary Onischak at (312)

353-5954 before visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT: Mary Onischak at (312) 353-5954.

SUPPLEMENTARY INFORMATION:

I. Introduction

Indiana has revised the SO2 emission limits for the Joseph E.

Seagram and Sons, Inc., distillery in Lawrenceburg, Indiana, as

codified by the State at 326 Indiana Administrative Code (326 IAC) 7-4-

13 (3) (Dearborn County Sulfur Dioxide Emission Limitations), and

submitted this rule on August 25, 1995, to USEPA as a site-specific

SO2 SIP revision. The SIP revision limits the use of sulfur-

bearing fuels at the Seagram distillery in Lawrenceburg, Indiana, and

is intended to address potential

[[Page 4898]]

violations of the SO2 NAAQS in Dearborn County, Indiana. The SIP

revision was found complete in a letter dated October 20, 1995.

II. Emission Limitation

In the previously approved SO2 SIP for Dearborn County,

Indiana's rule 326 IAC 7-4-13 limited the emissions at each of

Seagram's Boilers 5 and 6 to 1.92 pounds sulfur dioxide per million

British Thermal Units (lb/MMBTU). In addition, if Boiler Number 6 was

operating on any fuel other than natural gas, the previous rule only

allowed Boiler Number 5 to emit 1.07 lb/MMBTU. In response to a January

5, 1994, request by USEPA, Indiana amended 326 IAC 7-4-13(3) to state

that when both Boilers 5 and 6 are in operation, only one boiler may

use coal or fuel oil. The rule also requires Seagram to keep records of

its fuel usage and report this information to the State of Indiana.

III. Relationship to the Hamilton County, Ohio SIP

The need for revisions to Indiana's Dearborn County SO2 SIP

became apparent during USEPA's review of an Ohio SO2 SIP revision,

which had been requested by USEPA on December 22, 1988. On October 18,

1991, the State of Ohio submitted to USEPA the revised SO2 SIP for

Hamilton County, Ohio. Hamilton County, Ohio, is adjacent to Dearborn

County, Indiana. In the course of Ohio's SIP development, dispersion

modeling was used to evaluate the emissions from significant SO2

sources in and around Hamilton County, including some sources in

Indiana. One of the Indiana sources considered in the Ohio modeling

study was the Seagram facility. Ohio's modeling predicted violations of

the 3-hour and 24-hour SO2 standard at receptor points in Dearborn

County, Indiana, when Seagram was modeled at its highest allowable

SO2 emission rate in accordance with USEPA guidance; in addition,

the Seagram facility was shown to be the main contributor to the

modeled violations in Dearborn County.

Seagram's highest allowable emission rate assumed that Boiler

Number 5 operated continuously on fuel oil. However, in a letter dated

September 1, 1992, Seagram informed Ohio and Indiana that Boiler Number

5, Seagram's standby boiler, had not operated on fuel oil in the

previous six years.1 On January 5, 1994, USEPA requested that

Indiana incorporate this restriction into its SO2 SIP as an

enforceable limitation on Seagram's operation.

\1\ The company also stated in the letter that it did not intend

to operate Boiler Number 5 on fuel oil while Boiler Number 6 was

operating on coal or fuel oil, without first notifying and obtaining

permission from Ohio and Indiana. USEPA notes that the rule being

approved today does not contain any such notification/permission

mechanism.

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Because some Hamilton County, Ohio, SO2 sources also

contributed to the modeled violations in Dearborn County, Indiana,

USEPA could not approve the Hamilton County, Ohio SO2 SIP before

the modeled violations were fully addressed. Instead, USEPA

conditionally approved the Hamilton County, Ohio, SO2 SIP on

August 23, 1994, under the condition that approvable revisions to the

Dearborn County, Indiana SO2 SIP would be submitted to USEPA by

September 23, 1995. Indiana met this condition, submitting the Seagram

rule revision to USEPA on August 25, 1995. With enforceable boiler use

restrictions in the Indiana SIP, the Seagram facility's SO2

emissions may be included in the Hamilton County SO2 dispersion

modeling study at a lower level than had been assumed previously. Ohio

has already modeled the Seagram facility at the lower emissions allowed

under the boiler restrictions, and found that the predicted SO2

NAAQS violations in Dearborn County were eliminated. USEPA has reviewed

this modeling and determined that it is acceptable. Federal approval of

Indiana's August 25, 1995, SIP revision will therefore enable USEPA to

finalize the Hamilton County, Ohio, SO2 SIP approval.

IV. Final Rulemaking Action

For the reasons discussed above, USEPA is approving 326 IAC 7-4-13

(3). Indiana's revised Dearborn County SO2 rule creates an

enforceable restriction on the operations of fossil fuel-fired boilers

at the Seagram facility. This rule addresses the potential SO2

NAAQS violations predicted by an Ohio modeling study, and will provide

for attainment of the SO2 NAAQS in Dearborn County, Indiana.

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 9, 1996, unless USEPA receives adverse or critical comments by

March 11, 1996.

If the 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 a subsequent rulemaking document. Please be aware

that the USEPA will institute a second comment period on this action

only if warranted by significant revisions to the rulemaking based on

comments received in response to this 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 9, 1996.

Nothing in this action should be construed as permitting, allowing

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

SIP. The 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.

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.

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, USEPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to a

State, local, and/or tribal government, in the aggregate. The USEPA

must also develop a plan with regard to small governments that would be

significantly or uniquely affected by the rule.

This rule approves the incorporation into the SIP of an existing

State rule which applies only to a single private sector source located

in Dearborn County, Indiana. It imposes no additional requirements. To

the extent that the rules being approved by this action will impose any

mandate upon this source, such a mandate will not result in estimated

annual costs of $100 million or more to the source. The rule does not

impact any governments.

[[Page 4899]]

Therefore, no action is required under the Unfunded Mandates Act.

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 Clean Air 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 9, 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

Air pollution control, Incorporation by reference, Sulfur oxides.

Note: Incorporation by reference of the State Implementation

Plan for the State of Indiana was approved by the Director of the

Federal Register on July 1, 1982.

Dated: November 21, 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)(103) to read

as follows:

Sec. 52.770 Identification of plan.

* * * * *

(c) * * *

(103) On August 25, 1995, the State submitted regulations adopted

by the Indiana Air Pollution Control Board as part of title 326 of the

Indiana Administrative Code for incorporation into the Indiana sulfur

dioxide State Implementation Plan.

(i) Incorporation by reference.

(A) 326 Indiana Administrative Code 7-4-13(3); Dearborn County

sulfur dioxide emission limitations; effective May 18, 1995. Published

in the Indiana Register, Volume 18, Number 9, June 1, 1995.

[FR Doc. 96-2832 Filed 2-8-96; 8:45 am]

BILLING CODE 6560-50-P