00-21911. Approval and Promulgation of Implementation Plans; Indiana Source-Specific Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving revisions to air pollutant emission limitations for two facilities in Lake County, Indiana. These limitations concern particulate matter emissions from a Lever Brothers facility and both particulate matter and sulfur dioxide emissions from Northern Indiana Public Service Company's (NIPSCo's) Dean Mitchell Station. Indiana requested these revisions on February 3, 1999, and December 28, 1999, respectively.

DATES:

This rule is effective on October 30, 2000, unless EPA receives written adverse comments by September 28, 2000. If adverse comments are received, timely notice will be published in the Federal Register withdrawing the rule and informing the public that the rule will not take effect.

ADDRESSES:

Send comments to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), United States Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

Copies of the State's submittal are available for inspection at the following address:

(We recommend that you telephone John Summerhays at [phone], before visiting the Region 5 Office.)

U.S. Environmental Protection Agency, Region 5, Air and Radiation Division (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

John Summerhays, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, Chicago, Illinois 60604, [phone].

SUPPLEMENTARY INFORMATION:

This rulemaking approves revisions to limits in the Indiana State Implementation Plan (SIP) for two companies in Lake County, Indiana. The first company is Lever Brothers, for which the Indiana Department of Environmental Management (IDEM) requested emission limit revisions for particulate matter on February 3, 1999. The second company is Northern Indiana Public Service Company (NIPSCo), for which IDEM requested emission limit revisions for both particulate matter and sulfur dioxide limits on December 28, 1999.

This document is organized according to the following table of contents:

I. Lever Brothers

1. What revisions did IDEM request?

2. What is EPA's evaluation of this request?

II. NIPSCo-Dean Mitchell Station

1. What revisions did IDEM request?

2. What is EPA's evaluation of this request?

III. EPA Action

IV. Administrative Requirements

I. Lever Brothers

1. What Revisions Did IDEM Request?

The principal revision IDEM requested for Lever Brothers concerned a limit on pounds of particulate matter emissions per hour for one emission point, specifically the milling and pelletizer soap dust collection system. This emission point is also subject to a limit on particulate matter emissions per standard cubic foot of air, but IDEM did not request that this latter limit be revised. Indiana included emission limits for this facility in the Lake County SIP for small particles (“PM₁₀”) that EPA approved on June 15, 1995, at 60 FR 31413. According to the State, while the emissions per volume limit was correctly set, an erroneous multiplication of emissions per volume times capacity air volume flow rate yielded a mistakenly low value for the emissions per hour value. IDEM requested that the emissions per hour limit be raised to the corrected value.

2. What Is EPA's Evaluation of This Request?

The requested revision must be evaluated as a relaxation of the Lake County PM₁₀ plan. As such, the principal criterion EPA must use is given in section 110(l) of the Clean Air Act, requiring that revisions must not “interfere with any applicable requirement concerning attainment and reasonable further progress * * * or any other applicable requirement.”

To address this criterion, IDEM performed a dispersion modeling analysis of PM ₁₀ concentrations attributable to Lever Brothers and other Lake County sources. IDEM used virtually the same inputs and procedures as the attainment plan that EPA approved in 1995, except that IDEM used ISC3, a more current dispersion model, as well as the revised emission rate for Lever Brothers. This analysis demonstrated that, despite the slightly increased allowable emissions for Lever Brothers, the plan was still adequate to attain and maintain the air quality standards in the vicinity.

EPA believes the modeling analysis satisfies applicable guidance. EPA approved most aspects of the analysis in 1995, and finds the use of an updated dispersion model and revised emission rate to be necessary and sufficient. EPA concurs with IDEM's conclusion from this analysis that the revision for Lever Brothers does not interfere with attainment or any other relevant requirements of the Clean Air Act. Therefore, EPA finds IDEM's request for a revision of Lever Brother's limit to be approvable.

II. NIPSCo-Dean Mitchell Station

1. What Revisions Did Indiana Request?

For Northern Indiana Public Service Company's (NIPSCo's) Dean Mitchell Station, IDEM requested revisions to SIP limits for both particulate matter and sulfur dioxide (SO ₂). These revisions are intended to accommodate mixes of boiler use that are not allowed under restrictions in the current SIP. The current SIP prohibits NIPSCo from simultaneously operating both units 4 and 5 at the Dean Mitchell Station unless one of these boilers is burning natural gas. The revised rules that IDEM requested EPA to approve would allow operation of these units under any of three scenarios. The first scenario is essentially identical to the current SIP scenario. The second scenario would allow simultaneous operation of units 4, 5, 6, and 11, but would restrict total emissions to a slightly lower level than the current SIP by imposing a tighter limit on pounds per million British Thermal Units (mmBTU). The third scenario would allow operation of half the units, either units 4 and 5 or units 6 and 11, coupled with emission limits that are comparable to current SIP limits.

The following table summarizes the limits in the current and submitted rules. The first part of this table shows the limits for particulate matter, including columns for the pound per mmBTU and pound per hour limits for boilers 4 and 5 and for boilers 6 and 11, as well as a column showing the total allowable emissions from the plant in pounds per hour. The table includes rows for the limits currently in the SIP and the limits for each of the three scenarios in the submitted rule. These scenarios are labeled AA, BB, and CC, after the respective subparagraph numbers in 326 IAC 6-1-10.1(d)(33) of the submitted rule.

The second part of the table shows limits for SO₂, and uses the same columns and similar rows as the particulate matter part. Nevertheless, two differences warrant comment. First, for particulate matter the SIP rule is the rule in existence immediately prior to Indiana's adoption of the submitted rule. For SO₂, however, the SIP rule is an older rule with a higher limit than the submitted rule or the immediately preceding State rule. Thus, the table includes an extra row showing the reduced SO₂ limits of an intermediate State rule, adopted after EPA approved the SIP rule but before the State adopted the rule being evaluated here. (The intermediate State rule has never been approved into the SIP, and is not being approved in today's rulemaking.) Second, neither the SIP rule nor the intermediate State rule for SO₂ have limits on pounds of SO₂ emissions per hour. The entries in these portions of the table, shown in parentheses, instead reflect a de facto limit found by multiplying the limit in pounds per mmBTU times the boiler capacities in mmBTU per hour.

Scenario	Limit /mmBTU	4 &5 hr	6 & 11 hr	Total max hr	Operating restriction
Particulate Matter
SIP	.10	128.75	235.7	364.45	None, but see SO 2
AA	.10	128.75	236	364.75	4 or 5, not both
BB	.074	185	175	360	None
CC	.10	250	236	250	4+5 or 6+11
Sulfur Dioxide
SIP	1.2	(1534.2)	(2828.4)	(4362.6)	4 or 5, not both
Int. Rule	1.05	(1342.4)	(2474.9)	(3817.3)	4 or 5, not both
AA	1.05	1313.0	2475.0	3786	4 or 5, not both
BB	.77	1925	1815	3740	None
CC	1.05	2625	2475	2625	4+5 or 6+11

2. What Is EPA's Evaluation of This Request?

The principal criterion for reviewing these rule revisions is their impact on air quality. To address this criterion, IDEM presented results of two types of atmospheric dispersion modeling. The first type of modeling evaluated the concentrations attributable to all sources in the area. The second type of modeling focused on the incremental impact of the revisions of the NIPSCo-Dean Mitchell limits.

The modeling for particulate matter impacts of the universe of Lake County sources was the same modeling the State submitted for Lever Brothers. In brief, this modeling was very similar to modeling performed for the Lake County PM₁₀ SIP approved in 1995, except for updated model selection and incorporation of the revised limits. As with Lever Brothers, this updated modeling is acceptable, and EPA agrees with Indiana's conclusion from this modeling that no violations of the air quality standards are expected to result from the revision of NIPSCo's particulate matter limits. EPA did not review the single source modeling, insofar as the more comprehensive modeling provided a firmer basis on which to evaluate Indiana's request.

The situation for SO₂ is more complicated. Indiana conducted modeling of the emissions allowed by the submitted limits. This modeling estimated SO₂ concentrations well over both the 24-hour and the annual average air quality standards in the vicinity of NIPSCo's Dean Mitchell Station. Indiana states that the violation is predominantly due to a Marblehead Lime Company facility, and that other sources, including NIPSCo, contribute only 10.7 micrograms per cubic meter (μg/m³) to the violation. Indiana also examined the impact of the revision from intermediate limits to the submitted limits. Indiana found the resulting incremental increase in concentrations to be insignificant, based on a significance threshold given in EPA's emission trading policy statement published in 1986 for Level II modeling analyses.

Indiana's submittal focuses on the difference between the new limits and the intermediate limits that existed in the State's rules prior to adoption of these new limits. These two sets of limits are approximately equivalent. EPA, on the other hand, is focusing on the difference between the new limits and the limits in the SIP. As seen in the above table, the new limits are clearly tighter than the limits in the SIP.

EPA is not accepting Indiana's arguments for approving NIPSCo's new limits. While an attainment strategy for the relevant area must clearly focus on emissions from Marblehead Lime, NIPSCo has a sufficient impact that it must also be considered a candidate for further controls if needed to attain the standards. In addition, under EPA's emission trading policy statement, in footnote 39, EPA states that emission trades may not generally be approved if the trade would create or exacerbate a violation of the air quality standard.

On the other hand, from EPA's perspective, Indiana is not simply requesting approval of limits that are equivalent to existing SIP limits, but in fact is requesting a tightening of the SIP limits for this source. The revised limits will not achieve attainment, and therefore the submission does not fully meet the Clean Air Act applicable requirements for demonstrating attainment of the air quality standards. However, the submission will allow EPA to enforce emission levels under which the area would be closer to attainment than with the current SIP limits. EPA has authority to approve revisions that tighten limits, even if the revised limits are insufficient to assure attainment. EPA finds the revised limits approvable on that basis and for that limited SIP-strengthening purpose, but not for purposes of demonstrating attainment of the air quality standards.

EPA is also working with Indiana on the larger question of achieving attainment of the SO₂ air quality standards. EPA approved Indiana's plan for meeting the SO₂ standards in Lake County on January 19, 1989 (54 FR 2112) based on our belief at the time that the plan assured attainment. However, EPA has now become aware that modeling shows that portions of the county may still be violating these standards. Indiana has conducted analyses to indicate which sources contribute most significantly to these potential violations. EPA will be assisting Indiana in evaluating and adopting strategies for further emission reductions as needed to assure adequate protection of public health in Lake County. EPA intends to provide the State a reasonable period of time to devise and submit a plan that fully meets the Clean Air Act requirements for attainment, before taking further action to address the problem.

III. EPA Action

EPA is approving the limit revisions for Lever Brothers that Indiana requested on February 3, 1999. EPA is also approving the limit revisions for NIPSCo-Dean Mitchell Station that Indiana requested on December 28, 1999, for the limited purpose of strengthening the approved SIP. EPA is publishing this action without prior proposal because EPA views these as noncontroversial revisions and anticipates no adverse comments. However, in a separate document in this Federal Register publication, the EPA is proposing the action taken in this final rule. This final rule will be effective on October 30, 2000 unless, by September 28, 2000, adverse written comments are received.

If the EPA receives such comments, EPA will withdraw this final action before the effective date by publishing a subsequent document in the Federal Register. All public comments received will be addressed in a subsequent final rule based on the associated proposed rule. The EPA does not intend to provide a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on October 30, 2000.

IV. 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 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.

C. 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, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to 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 officials 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. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will 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, because it 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

E. Regulatory Flexibility

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 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 sections 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 costs to State, local, or tribal governments in the aggregate; or to the 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 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 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 October 30, 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
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur dioxide

Dated: August 4, 2000.

Francis X. Lyons,

Regional Administrator, Region 5.

For the reasons set out in the preamble, 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)(134) to read as follows:

§ 52.770

Identification of plan.

* * * * *

(c) * * *

(134) On February 3, 1999, the State of Indiana submitted a revision to particulate matter limitations for the Lever Brothers facility in Lake County. On December 28, 1999, Indiana submitted revisions to particulate matter and sulfur dioxide limitations for NIPSCo's Dean Mitchell Station.

(i) Incorporation by reference.

(A) Title 326 of the Indiana Administrative Code (326 IAC) 6-1-10.1 (d)(28) and (d)(33), filed with the Secretary of State on May 13, 1999, effective June 12, 1999. Published at Indiana Register Volume 22, Number 10, July 1, 1999 (22 IR 3047).

(B) Title 326 of the Indiana Administrative Code (326 IAC) 7-4-1.1 (c)(17), filed with the Secretary of State on May 13, 1999, effective June 12, 1999. Published at Indiana Register Volume 22, Number 10, July 1, 1999 (22 IR 3070).