[Federal Register Volume 59, Number 43 (Friday, March 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4992]


[[Page Unknown]]

[Federal Register: March 4, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH53-1-6092; FRL-4844-4]

 

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: U.S. Environmental Protection Agency (USEPA).

ACTION: Proposed rule.

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SUMMARY: On August 20, 1993, the Ohio Environmental Protection Agency 
(OEPA) submitted materials in response to requirements in part D of 
title I of the Clean Air Act for new source review in nonattainment 
areas. This submittal included no revisions to any Ohio regulations. 
Instead, the submittal described how Ohio intended to implement various 
applicable part D requirements, and presented a rationale that no 
revisions to State regulations would be necessary to satisfy these 
requirements. USEPA disagrees with this rationale and proposes to 
disapprove the State's submittal for failure to satisfy applicable 
requirements.
DATES: Comments on this proposed action must be received by April 4, 
1994.

ADDRESSES: Comments should be submitted to William L. MacDowell at the 
Region 5 address. Copies of the State's submittals, the public comment 
letter, and USEPA's technical support document of November 9, 1993, are 
available for inspection at the following address: (It is recommended 
that you telephone John Summerhays at (312) 886-6067, before visiting 
the Region 5 Office.)
    U.S. Environmental Protection Agency, Region 5, Air and Radiation 
Division (AE-17J), 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Regulation 
Development Section, Air Enforcement Branch (AE-17J), U.S. 
Environmental Protection Agency, Region 5, Chicago, Illinois 60604, 
(312) 886-6067.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 20, 1993, the Ohio Environmental Protection Agency (OEPA) 
submitted a letter with attachments to the United States Environmental 
Protection Agency (USEPA) addressing new source review in nonattainment 
areas. USEPA notified OEPA on October 22, 1993, that it found this 
submittal complete. This submittal was intended to satisfy Clean Air 
Act requirements for new source review in nonattainment areas, 
particularly the new requirements established by the Clean Air Act 
Amendments of 1990.
    Provisions for new source review in Ohio were included in the 
original State Implementation Plan (SIP) submitted on January 31, 1972, 
and replacement regulations submitted on June 6, 1973. The relevant 
regulations provided for best available control technology (BACT) and 
other requirements applied uniformly throughout the State. 
Subsequently, the Clean Air Act Amendments of 1977 provided for 
designations of areas as being in attainment or nonattainment of the 
air quality standards, and required a further State submittal to impose 
additional requirements (most notably lowest achievable emission rates 
(LAER) and offsets) for new sources in nonattainment areas. Ohio 
submitted relevant material on July 25, 1980, and September 25, 1980. 
USEPA conditionally approved these submittals on October 31, 1980, on 
the condition that Ohio submit regulations delineating requirements 
that new sources in nonattainment areas must meet.
    Ohio submitted revised regulations on October 4, 1982, and January 
24, 1983. These regulations impose nonattainment area new source 
permitting requirements by incorporating appendix S to title 40 of the 
Code of Federal Regulations, part 51 (appendix S to 40 CFR part 51--
''Emission Offset Interpretative Ruling'') into the State regulations. 
USEPA granted limited approval to this submittal on September 8, 1993 
(58 FR 47211), concluding that the regulation strengthened the SIP but 
did not fully satisfy the nonattainment area planning requirements 
established in 1977 in part D of title I of the Clean Air Act. Of 
particular concern were the exemptions of temporary sources and 
resource recovery facilities provided in appendix S (and thus 
incorporated by reference in the State rules) but not approvable under 
the criteria established in 40 CFR part 51, subpart I. By the time of 
this 1993 rulemaking, the Clean Air Act Amendments of 1990 had imposed 
further requirements for nonattainment area new source review. The 
State provided USEPA material concerning the new requirements on 
November 19, 1992, December 2, 1992, January 13, 1993, and April 26, 
1993. USEPA notified the State on June 1, 1993, that these materials 
did not represent a complete submittal. The State then provided 
additional information on August 20, 1993, which USEPA found on October 
22, 1993, to constitute a complete submittal. USEPA has conducted a 
full review and proposes to disapprove the submittal for failing to 
satisfy the current nonattainment area new source review requirements 
of part D of title I of the Clean Air Act.
    The Clean Air Act Amendments of 1990 established numerous new 
requirements for new source review. Among the more significant of these 
requirements that apply to Ohio are provisions for specific emission 
offset requirements in ozone nonattainment areas, including specified 
minimum offset rations, for review of major new sources and major 
modifications for nitrogen oxides (NOx) in ozone nonattainment 
areas, and for an alternative siting analysis for all nonattainment 
area pollutants. Additionally, the State plan must include provisions 
for proper calculation of offsets, provisions reflecting certain 
substantial restrictions on growth allowances, provisions for supplying 
from nonattainment new source review permits to USEPA's RACT/BACT/LAER 
Clearinghouse, provisions relating to rocket engines or motors, 
provisions relating to stripper wells, provisions relating to the 
definition of ``stationary source'' affecting the treatment of internal 
combustion engine sources, and provisions relating to temporary clean 
coal technology demonstration projects.1
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    \1\The amended Act also requires that new source review 
requirements apply to lower size sources in areas classified Serious 
or above, and in some cases requires new source review for 
particulate matter precursor sources in particulate matter 
nonattainment areas. However, Ohio presently has no areas classified 
Serious or above, and the requirement relating to particulate matter 
precursors will not apply if USEPA finalizes a determination 
proposed on August 3, 1993, that precursors do not contribute 
significantly to particulate matter violations.
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    The 1990 Amendments also specify various deadlines for submittal of 
SIP revisions to satisfy these requirements. For areas designated 
nonattainment for fine particulate matter, a plan satisfying the 
requirements of sections 173 and 189 was to be submitted by June 30, 
1992. For areas designated nonattainment and classified as marginal or 
above for ozone, a plan satisfying the requirements of sections 173 and 
182 was to be submitted by November 15, 1992. For areas designated 
nonattainment for carbon monoxide, a plan satisfying the requirements 
of section 173 was to be submitted by November 15, 1993. The State of 
Ohio has areas designated nonattainment for ozone and particulate 
matter, for which it was required to meet these SIP revision deadlines. 
The August 20, 1993, material was submitted in an effort to satisfy 
these requirements.

II. Review of State's Submittal

A. Review Relative to Pre-1990 Requirements

    The State's recent submittal does not address new source review 
requirements that applied prior to the Clean Air Act Amendments of 
1990. Therefore, the USEPA review of the State's plan relative to pre-
1990 requirements published on September 8, 1993 (58 FR 47211), remains 
current. The September 8 notice granted limited approval on the basis 
of the strengthening effect of the 1982 regulations relative to the 
prior SIP, but found the State's plan to be insufficient to meet the 
pre-1990 new source review requirements. The 1982 regulations 
essentially incorporate appendix S of 40 CFR part 51 by reference. 
USEPA identified deficiencies relating to the exemptions from offset 
requirements for resource recovery facilities and temporary sources 
provided in appendix S and therefore incorporated by reference into 
Ohio's regulations. Since these deficiencies have not been addressed, 
the State's new source review program continues to fail to satisfy part 
D requirements.
    The September 8 notice also noted that the provisions of appendix 
S, as incorporated by reference into Ohio's regulations, are not as 
explicit as the current requirements of subpart I of 40 CFR part 51 for 
annual, actual emissions offsets. Although USEPA interprets Ohio's 
regulations to require that federally enforceable actual emission 
offsets be obtained as a condition of any permit pursuant to part D, 
section 173(c) requires that Ohio clarify that this requirement 
applies.

B. Review Relative to Post-1990 Requirements

    The substance of Ohio's submittal of August 20, 1993, is a document 
entitled ``Ohio EPA New Source Review State Implementation Plan--
Requirements for Major New Sources in Nonattainment Areas.'' This 
document focuses on requirements established by the Clean Air Act 
Amendments of 1990 and identifies OEPA's plans for implementing these 
requirements. This document is referred to below as Ohio's statement of 
permitting criteria.
    The State's submittal provides no new regulations to govern review 
of new sources in nonattainment areas. Instead, the submittal states 
that regulations adopted in 1974 provide the necessary authority to 
implement the new requirements for new source review, and that these 
SIP approved regulations in conjunction with the submittal's statement 
of permitting criteria should satisfy Clean Air Act requirements. Thus, 
a key question in this rulemaking is whether USEPA can approve this 
approach and enforce the intended permitting requirements.
    The USEPA, in its technical support document, evaluated the 
adequacy with which Ohio's submittal satisfies selected key 
requirements. USEPA's review indicated that the statement of permitting 
criteria does not provide adequate specificity and clarity of criteria 
by which detailed implementation decisions would be made. The following 
discussion of sample requirements illustrates the basis for this 
conclusion.
    The Clean Air Act Amendments of 1990 require that specified offset 
ratios for volatile organic compounds (VOC) emissions and presumptively 
for nitrogen oxides (NOx) emissions must be obtained in ozone 
nonattainment areas. That is, any significant increase in potential 
emissions for either of these pollutants must be accompanied by an 
decrease in actual emissions that is larger by at least a specified 
ratio. Ohio's statement of permitting criteria includes: (1) A 
preliminary clause stating that ``the following additional requirements 
will be applicable,'' (2) an item 1 identifying ``minimum required 
offset ratios,'' and (3) an item 4 noting that ``NOx . . . shall 
be treated as a nonattainment pollutant'' in ozone nonattainment areas. 
No definition of offset ratio is provided, and so it is unclear what 
averaging time applies, whether offsets are to reflect allowable or 
actual emissions, whether all emission increases must be offset (e.g., 
fugitive and secondary emissions), where the offsets must occur, and 
whether interpollutant offsets are permissible. (Item 4 of Ohio's 
statement implies that NOx offsets must come from the same county 
as the emission increases.) The statement also does not explicitly 
state that either VOC or NOx offsets are required.
    A second new requirement is that the other various major source 
requirements (e.g., lowest achievable emission rates) also apply to 
major sources of NOx in ozone nonattainment areas, unless USEPA 
makes certain determinations that NOx control would not be 
beneficial. Ohio implies the applicability of these requirements by 
making the above statement that NOx is to be treated as a 
nonattainment pollutant. Ohio's statement continues that ``[n]ew source 
applicants are required to meet the major new source definitions and 
major modifications thresholds as specified in the CAA.'' However, the 
Clean Air Act itself does not explicitly define ``major new source'' 
and does not specify major modification thresholds. Also, Ohio's 
statement could be read to require all sources to meet the size 
minimums for major new sources or major modifications. Ohio's statement 
continues: ``For major modifications, these CAA requirements will be 
applicable to sources of NOx greater than 40 tons per year.'' It 
is not clear whether Ohio intends this apparent reduction from 100 to 
40 tons per year of the threshold of source sizes at which major 
modifications trigger new source review requirements.
    Review of further requirements established by the 1990 Amendments 
is provided in the technical support document. The conclusion of 
USEPA's review is that the statement of permitting criteria does not 
address many of the questions that would arise in imposing the 
identified requirements.

C. Analysis of the Need for Regulations

    The above examples clarify a central issue in this rulemaking, i.e. 
whether formal regulations are necessary to establish the requirements 
dictated by the Clean Air Act. Ohio's statement and the submittal cover 
letter present the State's position that existing Ohio statutes and 
regulations already require that the provisions of the amended Clean 
Air Act be met. Specifically, Ohio notes that its Rule 3745-31-05 
requires that permits to install shall be issued only if the 
construction and operation will ``not result in a violation of any 
applicable laws,'' which is defined to include the Clean Air Act 
including any amendments. Although Ohio proceeds to describe in general 
terms how it intends to apply the new requirements, the submittal cover 
letter expressly states that ``the current, federally approved, Ohio 
SIP is adequate for fulfilling the requirements of a NSR SIP, and that 
no changes are necessary.''
    Ohio's position raises fundamental questions about the role of 
implementing regulations. In general, statutes present general criteria 
that must be met, whereas regulations define the specific requirements 
that apply in each circumstance. In limited circumstances a statute may 
be enforced without implementing regulations, but generally regulations 
are necessary to define the precise obligations of affected individuals 
and the precise criteria by which relevant decisions (e.g. 
determinations of compliance) will be made. The proper adoption of 
clearly defined criteria for making relevant decisions is essential to 
support these decisions. Therefore, in the absence of exhaustively 
detailed statutes, the adoption of detailed regulations is essential 
for successful program implementation.
    In the case of new source review, the Clean Air Act identifies 
general provisions which are to be included in State plans. The State's 
statement of permitting criteria closely parallels the language in the 
Clean Air Act. As the above examples illustrate, Ohio's submittal fails 
to define many of the details of how these requirements would be 
implemented. In the absence of these details, a subject source could 
not be expected to know its obligations pursuant to these requirements, 
and could object to the imposition of the general requirements based on 
the failure of the State to pre-define the specific criteria that would 
be applied. Further, as a commenter noted when the State proposed its 
SIP revision, the statement of permitting criteria was not adopted 
according to the full procedures in Ohio for adoption of regulations, 
even though this statement is intended to serve purposes normally 
served by regulations. Consequently, the statement of permitting 
criteria lacks the specificity, the regulatory standing, and the 
assurance of being enforceable that are needed to satisfy Clean Air Act 
requirements.

III. This Action

    USEPA's review indicates that Ohio's submittal does not clearly 
establish the specific criteria by which judgments in new source 
permitting will be made. Furthermore, by relying not on properly 
adopted regulations but rather on a general regulatory provision 
(requiring compliance with the Clean Air Act) in conjunction with a 
statement of permitting criteria, the State has failed to follow proper 
procedures to become authorized to impose specific, detailed permit 
conditions in accordance with the Clean Air Act requirements. In 
addition, the existing regulations exempt two types of sources which 
may not be exempted under applicable USEPA regulations. For these 
reasons, USEPA proposes to disapprove Ohio's submittal for failure to 
satisfy part D requirements.
    Under section 179(a)(2), if USEPA takes final action to disapprove 
a submission under section 110(k) for an area designated nonattainment 
based on the submission's failure to meet one or more of the elements 
required by the Act, USEPA must apply one of the sanctions set forth in 
section 179(b) unless the deficiency has been corrected within 18 
months of such disapproval. Section 179(b) provides two sanctions 
available to USEPA: highway funding restrictions, and a requirement for 
two-for-one offsets. The 18-month period referred to in section 179(a) 
would begin to run at the time USEPA publishes final notice of this 
disapproval. Moreover, the final disapproval would trigger the Federal 
Implementation Plan (FIP) requirement under section 110(c). Separate 
rulemaking is being conducted to identify which sanction would apply 
first and to address related issues on the application of sanctions, 
for example whether USEPA must publish final approval of a new 
submittal before the deficiency may be considered corrected.
    Public comment is solicited on this proposed rulemaking action. 
Comments received by [Insert date 30 days from date of publication] 
will be considered in the development of USEPA's final rulemaking 
action.
    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.
    USEPA's disapproval of the State request under section 110 and part 
D of the Clean Air Act does not affect any existing requirements 
applicable to small entities. Any pre-existing Federal requirements 
remain in place after this disapproval. Federal disapproval of the 
State submittal does not affect its State enforceability. Moreover, 
USEPA's disapproval of the submittal does not impose any new Federal 
requirements. Therefore, USEPA certifies that this disapproval action 
would not have a significant impact on a substantial number of small 
entities because it does not remove existing requirements nor does it 
impose any new Federal requirements.
    This action has been classified as a Table Two action by the 
Regional Administrator under the procedures published in the Federal 
Register on January 19, 1989 (54 FR 2214-2225), based on revised SIP 
processing review tables approved by the Acting Assistant Administrator 
for Air and Radiation on October 4, 1993 (Michael Shapiro's memorandum 
to Regional Administrators). On January 6, 1989, the Office of 
Management and Budget waived Tables Two and Three SIP revisions (54 FR 
222) from the requirements of section 3 of Executive Order 12291 for a 
period of 2 years. USEPA has submitted a request for a permanent waiver 
for Table 2 and Table 3 SIP revisions. OMB has agreed to continue the 
waiver until such time as it rules on USEPA's request. This request 
continued in effect under Executive Order 12866, which superseded 
Executive Order 12291 on September 30, 1993.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Nitrogen oxides, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
dioxide.

    Authority: 7401-7671q.

    Dated: February 14, 1994.
David Ullrich,
Acting Regional Administrator.
[FR Doc. 94-4992 Filed 3-3-94; 8:45 am]
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