[Federal Register Volume 61, Number 22 (Thursday, February 1, 1996)]
[Rules and Regulations]
[Pages 3581-3582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1843]
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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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