E8-22952. Approval of Revised Municipal Waste Combustor State Plan for Designated Facilities and Pollutants: Indiana

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving revisions to Indiana's State plan to control air pollutants from large Municipal Waste Combustors (MWCs). The Indiana Department of Environmental Management (IDEM) submitted the State plan on August 24, 2007. The revisions are consistent with Emission Guideline (EG) amendments promulgated by EPA on May 10, 2006. This approval means that EPA finds that the State plan amendments meet applicable Clean Air Act (CAA) requirements for large MWCs for which construction commenced on or before September 20, 1994. Once effective, this approval also makes the amended State plan Federally-enforceable. On July 8, 2008, EPA also published a proposed rule (73 FR 38954) and a direct final rule (73 FR 38925) on this revision. The direct final rule stated that if EPA received an adverse comment, it would withdraw the direct final rule and address all public comments received in a subsequent final rule based on the proposed rule. EPA received an adverse comment and removed the direct final rule on August 21, 2008 (73 FR 49349). This rule responds to the comments received and announces EPA's final action.

DATES:

This final rule is effective on October 31, 2008.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2007-0952. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly-available docket materials are available either electronically through www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Margaret Sieffert, Environmental Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Margaret Sieffert, Environmental Engineer, Environmental Protection Agency, Region 5, 77 West Jackson Boulevard (AT-18J), Chicago, Illinois 60604, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

I. What Public Comments Were Received on the Proposed Approval and What is EPA's Response?

II. What Action is EPA Taking?

III. Statutory and Executive Order Reviews

I. What Public Comments Were Received on the Proposed Approval and What is EPA's Response?

EPA received two comments on its July 8, 2008, proposal from the Indiana Department of Environmental Management (IDEM), as follows:

Comment 1. IDEM stated that in the table for particulate matter published in the Federal Register on July 8, 2008 (73 FR 38927), there is a typographical error in identifying the appropriate footnotes for the emission limitation. The first entry in the second column of the table reads “25 milligrams per dry standard cubic meter (mg/dscm) ^1,4 ”when the appropriate footnote designation should be “25 milligrams per dry standard cubic meter (mg/dscm). ¹ ”The final rule for amending 326 IAC 11-7-3 (LSA #06-434(F)) included in the State plan submitted on August 24, 2007 shows a strikeout over the number 4.

Comment 2. IDEM submitted an agency correction to their August 24, 2007, submittal to amend 326 IAC 11-7-3 to correct footnotes for mercury and sulfur dioxide in the emissions limitations table. The agency correction was published on July 23, 2008 in the Indiana Register and is effective September 6, 2008. IDEM is requesting that these corrections be a part of the final Federal approval.

EPA response 1 and 2. EPA is correcting the table to address both comments from IDEM as follows:

Pollutant	Emission limits
Particulate matter	25 milligrams per dry standard cubic meter (mg/dscm) 1
Opacity	10% based on a 6-minute average
Cadmium	0.035 mg/dscm 1
Lead	0.400 mg/dscm 1
Mercury	0.050 mg/dscm; or 15% of the potential mercury emissions concentration 1,3
Sulfur dioxide	29 parts per million by volume (ppmv); or 20% of the potential sulfur dioxide emission concentration 3,4
Hydrogen chloride	29 ppmv; or 5% of the potential hydrogen chloride emissions concentration 2,3
Organic emission (expressed as total mass dioxins/furans)	30 nanograms per dry standard cubic meter (ng/dscm) total mass 1
Nitrogen oxides	205 ppmv 2
Carbon monoxide 5	100 ppmv 5 (based on a 4-hour block averaging time)
1 Corrected to seven percent (7%) oxygen.
2 Corrected to seven percent (7%) oxygen, dry basis.
3 Whichever concentration is less stringent.
4 Corrected to seven percent (7%) oxygen, dry basis, calculated as a 24 hour daily geometric mean.
5 Measured at the combustor outlet in conjunction with a measurement of oxygen concentration, corrected to seven percent (7%) oxygen, dry basis, calculated as an arithmetic mean.

II. What Action Is EPA Taking?

We are approving Indiana's revised State plan for large MWCs, submitted to EPA on August 24, 2007, with corrections submitted on July 29, 2008. This plan revision approval excludes certain authorities retained by EPA, as stated in 40 CFR 60.30b(b) and 60.50b(n).

III. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.

Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000).

Executive Order 13132: Federalism

This action also does not have Federalism implications because it does 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 Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act (CAA).

Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal Standard.

National Technology Transfer Advancement Act

In reviewing state submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Paperwork Reduction Act

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Congressional Review Act

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 action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 2008. 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 62

• Environmental protection
• Air pollution control
• Administrative practice and procedure
• Intergovernmental relations
• Municipal waste combustors
• Reporting and recordkeeping requirements

Dated: September 19, 2008.

Robert A. Kaplan,

Acting Regional Administrator, Region 5.

40 CFR part 62 is amended as follows:

PART 62—[AMENDED]

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

Authority: 42 U.S.C. 7401 et seq.

Subpart P—Indiana

2. Sections 62.3650, 62.3651, and 62.3652 to Subpart P are revised to read as follows:

§ 62.3650

Identification of plan.

(a) 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, filed with 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 (22 IR 1967).

(b) On August 24, 2007 (with corrections submitted on July 29, 2008), Indiana submitted a revised State plan as required by Sections 129(a)(5) and 129(b)(2) of the Act. The revised (Phase II) State plan implements amendments to 40 CFR Part 60, Subpart Cb published in the Federal Register on May 10, 2006. The Phase II State plan includes an amendment to State Rule 326 IAC 11-7 that was adopted by Indiana on February 7, 2007.

§ 62.3651

Identification of sources.

The plan applies to all existing MWCs 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.

§ 62.3652

Effective Date.

The effective date of Phase I of the approval of the Indiana State plan for MWCs with the capacity to combust greater than 250 tons per day of municipal solid waste was January 18, 2000.

Phase II of the State plan revision is effective December 1, 2008.