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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[IN74-1(a); FRL-5687-8]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving, through a ``direct final'' procedure, 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 June 2, 1997, unless adverse

or critical comments not previously addressed by the State or EPA are

received by May 1, 1997. If the effective date is delayed, timely

notice will be published in the Federal Register.

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 arrange a time if

inspection of the submittal is desired.

FOR FURTHER INFORMATION CONTACT: Sam Portanova, 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

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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 document EPA is taking final action

to approve the program of delegation for Indiana.

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 document 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 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

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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. 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 document, 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 in this rulemaking action.

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 is publishing

this action without prior proposal because EPA views this action as a

noncontroversial revision and anticipates no adverse comments. However,

the rulemaking will not be deemed final if timely unaddressed adverse

or critical comments are filed. The ``direct final'' approval shall be

effective on June 2, 1997, unless EPA receives such adverse or critical

comments by May 1, 1997. EPA is now soliciting public comments on this

action. Any parties interested in commenting on this action should do

so at this time. In the proposed rules section of this Federal

Register, EPA is publishing a separate document which constitutes a

``proposed approval'' of the requested delegation. If EPA receives

timely comments adverse to or critical of the approval discussed above,

which have not been addressed by the State or EPA, EPA will publish a

Federal Register document which withdraws this final action. All public

comments received will then be addressed in a subsequent rulemaking

document based on the proposed approval. EPA will not institute a

second comment period on this action. Any parties interested in

commenting on this action should do so at this time.

Copies of the State's submittal and other information relied upon

for the final approval 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 State's delegated air toxics program 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 by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The Office of Management and Budget exempted this

regulatory action from Executive Order 12866 review.

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 the section 112 standards unchanged from the Federal

standard does not create any new requirements, but simply allows the

State to administer requirements that have been or will be separately

promulgated. Therefore, because this delegation approval does not

impose any new requirements, I certify that it does not have a

significant impact on any small entities affected.

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

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

EPA 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 State,

local, or tribal governments in the aggregate.

EPA has determined that the approval action promulgated today does

not constitute a Federal mandate that may result in estimated costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. The State voluntarily

requested this delegation under section 112(l) for the purpose of

implementing and enforcing the air toxics program with respect to

sources not covered by Part 70. The delegation imposes no new Federal

requirements. Since the State was not required by law to seek

delegation, this Federal action does not impose a mandate on the State.

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 June 2, 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).)

Under 5 U.S.C. 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 this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(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, et seq.

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Dated: January 28, 1997.

David A. Ullrich,

Acting Regional Administrator.

[FR Doc. 97-8181 Filed 3-31-97; 8:45 am]

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