00-4045. Approval and Promulgation of Implementation Plan; Indiana

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving revisions to particulate matter (PM) emissions regulations for Indianapolis Power and Light Company (IPL) in Marion County, Indiana, which were submitted by the Indiana Department of Environmental Management (IDEM) on November 22, 1999, as amendments to its State Implementation Plan (SIP). The revisions include relaxation of some PM limits, tightening of other limits, and the elimination of limits for several boilers which are no longer operating. The revisions also include the combination of annual emissions limits for several boilers, and correction of a typographical error in one limit. This SIP revision results in an overall decrease in allowed PM emissions of 52.54 tons per year (tpy).

DATES:

This rule is effective on April 24, 2000, unless EPA receives relevant adverse written comments by March 24, 2000. If adverse comment is received, EPA will publish a timely withdrawal of the rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

You should mail written comments to:

J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

You may inspect copies of the State submittal and EPA's analysis of it at:

Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

David Pohlman, Environmental Scientist, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” are used we mean EPA.

Table of Contents

I. What is the EPA approving?

II. What are the changes from current rules?

A. Sources eliminated from the rules.

B. Revised limits.

C. Combined annual limits.

D. Typographical error.

III. Analysis of supporting materials provided by Indiana.

IV. What are the environmental effects of this action?

V. EPA rulemaking action.

VI. Administrative requirements.

A. Executive Order 12866

B. Executive Order 12875

C. Executive Order 13045

D. Executive Order 13084

E. Regulatory Flexibility Act

F. Unfunded Mandates

G. Submission to Congress and the Comptroller General

H. National Technology Transfer and Advancement Act

I. Petitions for Judicial Review

I. What is the EPA Approving?

We are approving revisions to PM emissions regulations for IPL in Marion County, Indiana, which were submitted by the IDEM on November 22, 1999, as amendments to its SIP. The revisions apply to 3 generating stations located in Indianapolis: Perry K, Perry W (demolished), and E. W. Stout. The revisions include relaxation of some PM limits, tightening of other limits, and the elimination of limits for several boilers which are no longer operating. The revisions also include the combination of annual emissions limits for several boilers, and the correction of a typographical error in one limit. The submitted revisions are contained in Title 326 Indiana Administrative Code, Article 6, Rule 1, Section 12 (326 IAC 6-1-12).

II. What are the Changes From Current Rules?

A. Sources eliminated from the rules

Indiana has eliminated from rule 326 IAC 6-1-12 boilers 17 and 18 at IPL's Perry W generating station, and boilers 1 through 8 at IPL's E. W. Stout generating station. The annual PM emission limits for these eliminated sources totaled 52.54 tons per year.

B. Revised Limits

Indiana has revised some short-term PM emissions limits for sources at IPL's Perry K generating station. Indiana has decreased the PM emissions limits for boilers 17 and 18 from 0.082 pounds per million British Thermal Units (lb/MMBTU) each to 0.015 lb/MMBTU each. Indiana has increased the PM emissions limits for boilers 15 and 16 from 0.082 lb/MMBTU each to 0.106 lb/MMBTU each. Indiana has increased the PM emissions limit for boiler 12 from 0.125 lb/MMBTU to 0.175 lb/MMBTU.

C. Combined Annual Limits

Indiana combined the annual emissions limits for boilers 11 through 18 at IPL's Perry K generating station into one overall limit. The previous version of the rule contained limits of 302.2 tpy for boilers 11 and 12 combined, 135.4 tpy for boilers 13 and 14 combined, and 46.8 tpy for boilers 15, 16, 17, and 18 combined. The revised rule contains one PM limit of 484.4 tpy for boilers 11 through 18 combined.

D. Typographical Error

Indiana promulgated the annual PM emission limit for Boiler 70 at IPL's E.W. Stout generating station as 830.7 tpy in 1981. However, this limit was printed in the November 1, 1981 Indiana Register (4 IR 2386) as 0.38 tpy. This SIP revision corrects this typographical error.

III. Analysis of supporting materials provided by Indiana

The general criteria used by the EPA to evaluate such emissions trades, or “bubbles”, under the Clean Air Act and applicable regulations are set out in the EPA's December 4, 1986, Emissions Trading Policy Statement (ETPS) (see 51 FR 43814). Emissions trades such as IPL's, which result in an overall decrease in allowable emissions, require a “Level II” modeling analysis under the ETPS to ensure that the NAAQS will be protected. A Level II analysis must include emissions from the sources involved in the trade, and must demonstrate that the air quality impact of the trade does not exceed set significance levels. For PM, the significance levels are 10 micrograms per cubic meter (μg/m³) for any 24-hour period, and 5 μg/m³ for any annual period.

The modeling analysis submitted by the IDEM in support of the requested IPL SIP revision is consistent with a Level II analysis. The analysis shows that the SIP revision will not cause or contribute to any exceedances of the PM NAAQS. The maximum modeled PM air quality impacts were 4.3 μg/m³ in 24-hours, and 0.1 μg/m³ on an annual basis. Therefore, IDEM has demonstrated that this SIP revision will not have a significant impact on air quality.

IV. What are the environmental effects of this action?

This SIP revision will result in a decrease in allowable PM emissions of 52.54 tons per year. In addition, an air quality modeling analysis conducted by IDEM shows that the maximum daily and annual impacts of this SIP revision are well below established significance levels. Therefore, this SIP revision will not have an adverse effect on PM air quality.

V. EPA Rulemaking Action

We are approving, through direct final rulemaking, revisions to PM emissions regulations for IPL in Marion County, Indiana. We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in a separate document in this Federal Register publication, we are proposing to approve the SIP revision should adverse written comments be filed. This action will be effective without further notice unless we receive relevant adverse written comment by March 24, 2000. Should we receive such comments, we will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, you are advised that this action will be effective on April 24, 2000.

VI. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their concerns, copies of written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments “to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.” Today's rule does not create a mandate on state, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because 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 create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

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. Section 804, however, exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this rulemaking action under section 801 because this is a rule of particular applicability.

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

I. Petitions for Judicial Review

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 24, 2000. 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
• Particulate matter
• Reporting and recordkeeping requirements

Dated: February 4, 2000.

Francis X. Lyons,

Regional Administrator, Region 5.

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 et seq.

Subpart P—Indiana

2. Section 52.770 is amended by adding paragraph (c)(133) to read as follows:

§ 52.770

Identification of plan.

* * * * *

(c) * * *

(133) On November 22, 1999, Indiana submitted revised particulate matter emissions regulations for Indianapolis Power and Light Company in Marion County, Indiana. The submittal amends 326 IAC 6-1-12, and includes relaxation of some PM limits, tightening of other limits, and the elimination of limits for several boilers which are no longer operating. The revisions also include the combination of annual emissions limits for several boilers, and correction of a typographical error in one limit.

(i) Incorporation by reference. Emissions limits for Indianapolis Power and Light in Marion County contained in Indiana Administrative Code Title 326: Air Pollution Control Board, Article 6: Particulate Rules, Rule 1: Nonattainment Area Limitations, Section 12: Marion County, subsection (a). Added at 22 In. Reg. 2857. Effective May 27, 1999.