[Federal Register Volume 59, Number 162 (Tuesday, August 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20637]


[[Page Unknown]]

[Federal Register: August 23, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[OH16-2-6322; FRL-5053-4]

 

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: On October 18, 1991, USEPA received proposed revisions to the 
emission limitations, compliance methodologies, and compliance time 
schedules in Ohio's Clean Air Act (Act) State Implementation Plan (SIP) 
for sulfur dioxide (SO2) as it applies to sources in Hamilton 
County. These SIP revisions were submitted by the State of Ohio as a 
means of demonstrating attainment of the National Ambient Air Quality 
Standards (NAAQS) for SO2. Subsequent revisions to the Hamilton 
County emission limits were received on March 19, 1993. The USEPA 
proposed to conditionally approve these SIP revisions on January 27, 
1994. As discussed below, three comments were received on the proposed 
rulemaking. The USEPA is now granting conditional approval of the SIP 
revisions for SO2 in Hamilton County, Ohio.

EFFECTIVE DATE: This final rule becomes effective on September 22, 
1994.

ADDRESSES: Copies of the SIP revision, public comments on the 
rulemaking, and other materials relating to this final rule are 
available for inspection at the following address: (It is recommended 
that you telephone Randy Robinson, (312) 353-6713, before visiting the 
Region 5 Office.) United States Environmental Protection Agency, Region 
5, Air and Radiation Division, 77 West Jackson Boulevard (AE-17J), 
Chicago, Illinois 60604.
    A copy of this revision to the Ohio SIP is available for inspection 
at the following address: Air Docket 6102, Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Randy Robinson, Air Enforcement 
Branch, Regulation Development Section (AE-17J), United States 
Environmental Protection Agency, Region 5, Chicago, Illinois 60604, 
(312) 353-6713.

SUPPLEMENTARY INFORMATION:

I. Background

    On October 18, 1991, USEPA received a submittal from the State of 
Ohio to revise the SO2 State Implementation Plan (SIP) for sources 
in Hamilton County. The submittal package included revisions to Ohio 
Administrative Code (OAC) 3745-18-03 Attainment dates and Compliance 
Time Schedules, (OAC) 3745-18-04 Measurements Methods and Procedures, 
and OAC 3745-18-37 Hamilton County Emission Limits, as well as 
technical information demonstrating that the revisions were sufficient 
to assure attainment of the National Ambient Air Quality Standards 
(NAAQS) for SO2 in Hamilton County. Subsequent revisions to the 
Hamilton County emission limits, were submitted by Ohio to USEPA on 
March 17, 1993. The revisions were submitted in response to a December 
22, 1988, letter in which USEPA notified the Governor of Ohio that the 
SIP for SO2 was substantially inadequate to attain and maintain 
the SO2 NAAQS in Hamilton County. The notification was based on 
predicted violations of the SO2 National Ambient Air Quality 
Standards (NAAQS) due to SO2 emissions from sources located in 
Hamilton County, Ohio.

II. Summary of Proposed Rulemaking

    On January 27, 1994, a document was published in the Federal 
Register (59 FR 3809) which proposed conditionally approving the SIP 
revisions submitted by Ohio for Hamilton County. The proposed notice 
discussed the State submittal, including background information, the 
attainment demonstration, compliance methodologies, and the proposed 
rulemaking action.

A. Attainment Demonstration

    The principal requirement for the Ohio SO2 SIP under section 
110 of the Act is that the plan provide sufficient enforceable measures 
to assure attainment of the NAAQS for SO2. The State of Ohio 
provided enforceable limits in the form of State regulations, 
supplemented by an administrative order for one source, along with an 
air dispersion modeling analysis which demonstrated that these limits 
assure attainment in the Hamilton County area. The demonstration also 
relied on a non-Federally enforceable operation limit for an Indiana 
source. This issue is being resolved by the State of Indiana and is 
discussed later in this document.
    The modeling techniques used in the attainment demonstration 
supporting this revision were based on procedures in the ``Guideline on 
Air Quality Models (Revised),'' July 1986, including ``Supplement A,'' 
July 1987. The attainment demonstration incorporated air dispersion 
models which are appropriate for modeling sources of SO2. The 
majority of the attainment demonstration was comprised of output from 
the Industrial Source Complex--Short Term (ISCST) air dispersion model; 
however, several areas of Hamilton County were modeled using the Rough 
Terrain Diffusion Model (RTDM). The appropriateness of the RTDM model 
for use in this application was determined through a ``Model Evaluation 
and Comparison Study'', conducted by the Greater Cincinnati Chamber of 
Commerce, in cooperation with the OEPA and USEPA, Region 5. Based on 
the results of the study, USEPA approved the RTDM model for use in 
modeling sulfur dioxide sources in Hamilton County in a June 9, 1992, 
letter from David Kee, Director, Air and Radiation Division, to Robert 
Hodanbosi, Chief, Division of Air Pollution Control. The modeling 
demonstration accompanying the SIP revision submittal incorporated 
dispersion modeling output from both the ISCST model and the RTDM 
model. Background concentrations were added to the modeled 
concentrations for each averaging period, to produce overall maximum 
concentrations of 1296 g/m\3\, 364 g/m\3\, and 78 
g/m\3\, for the 3-hour, 24-hour, and annual averages, 
respectively. These values were compared against the 3-hour, 24-hour, 
and annual NAAQS concentrations of 1300 g/m\3\, 365 
g/m\3\, and 80 g/m\3\.
    During the development of the attainment demonstration, a modeled 
violation was predicted near the Joseph E. Seagram and Sons, Inc. 
(Seagram's) facility in Dearborn County, Indiana. In response to this 
modeled violation, a commitment was obtained from Seagram's, 
communicated in a letter from Seagram's to both the OEPA and the 
Indiana Department of Environmental Management (IDEM), dated September 
1, 1992, agreeing to not operate its two boilers simultaneously on 
sulfur-bearing fuels without written permission from both State 
Agencies. Utilizing this commitment, the OEPA submitted supplementary 
modeling which demonstrated that areas near Seagram's, in Indiana, did 
not exceed the sulfur dioxide NAAQS. However, in order for the 
Seagram's limit to be Federally enforceable, it must be incorporated 
into the Indiana sulfur dioxide SIP. Therefore, the Hamilton County 
SO2 SIP revision is being approved conditioned on Seagram's 
commitment, described above, being proposed for adoption into the 
Indiana SO2 SIP within one year from the date of publication of 
this Hamilton County SO2 SIP revision final rulemaking. It is 
fully anticipated that the Indiana limit will be formalized in the 
allotted time and, as a result, the Ohio revised rules will remain a 
part of the SIP.

B. Compliance

    The general compliance determination method denoted in OAC 3745-18-
04(D)(7), which applies specifically to Hamilton County, utilizes stack 
gas sampling using Methods 1 through 4 and 6, 6A, 6B, or 6C, as 
specified in 40 CFR 60.46, for any fuel burning equipment. Additional 
compliance monitoring is required under OAC 3745-18-04(D)(8), which, on 
a source-specific basis, requires either daily or weekly coal sampling. 
The USEPA has determined, based on guidance contained in the ``General 
preamble for future proposed rulemakings,'' published in the Federal 
Register on April 16, 1992 (57 FR 13498), that compliance methods 1 
through 4, 6, 6A, 6B, and 6C, in conjunction with regular fuel 
sampling, provide for continuous SO2 compliance monitoring. 
Additionally, documentation criteria listed in OAC 3745-18-04(I) 
requires sources subject to the Hamilton County emission limits to 
document and retain information needed to demonstrate compliance with 
applicable emission limits, emission tracking requirements, and/or 
operating limits.

III. Public Comment/USEPA Response

    In response to the request for written comments on the proposed 
rulemaking, USEPA received two sets of comments. The first set of 
comments were received from Counsel for the Greater Cincinnati Chamber 
of Commerce SO2 Task Force, in a letter dated February 25, 1994. 
The second set of comments were received from the Ohio Environmental 
Protection Agency, in a letter dated February 24, 1994. The following 
discussion summarizes the comments and USEPA's response.
    Comment: The notice of proposed rulemaking stated that it was 
possible that future resolution of the U.S. D.C. Court of Appeals 
remand, involving USEPA stack height guidance, would result in the 
State of Ohio being required to revise the emission limitations for 
Unit 5 at the CG&E Miami Fort facility. Both OEPA and the Cincinnati 
Chamber of Commerce SO2 Task Force commented that, due to the 
construction of a new 590-foot Good Engineering Practice (GEP) formula 
stack, which was shown to be necessary through a fluid modeling study, 
emission limitations at the CG&E Miami Fort Facility are not subject to 
revision pending resolution of the stack height remand court case. The 
Cincinnati Chamber of Commerce SO2 Task Force requested that USEPA 
clarify this issue in the final rulemaking.
    Response: In 1976, Miami Fort raised its Unit 5 stack from 70 
meters to 87 meters. This was a within-GEP formula stack height 
increase which occurred between December 31, 1970, and October 11, 
1983, and was not supported by a fluid modeling study. Consequently, 
this was an issue that fell into the scope of the D.C. stack height 
remand case. However, USEPA agrees that the resolution of the stack 
height remand case will not affect the within-GEP formula stack height 
increase issue involving Unit 5, since a fluid modeling study has 
subsequently been conducted to justify the construction of a new, 590-
foot GEP stack which now serves Units 5 and 6. The wind tunnel fluid 
modeling study demonstrated that emissions from the older stacks at 
CG&E's Miami Fort Station Units 5 and 6 created excessive 
concentrations of SO2 due to building induced downwash, therefore 
justifying the construction of the newer GEP stack.
    Good Engineering Practice questions pertaining to Miami Fort 
Station Unit 7 were resolved in a December 10, 1992, letter from USEPA 
to OEPA, which concluded that the Unit 7 stack height was fully 
creditable, based on the determination that the stack had been ``in 
existence'' prior to December 31, 1970.
    Comment: The OEPA and the Cincinnati Chamber of Commerce SO2 
Task Force also both requested that the approved rule incorporate a 
proposed variance for Procter and Gamble which would offer alternative 
emission scenarios pertaining to start-up and shut-down of 4 boilers.
    Response: The proposed variances have not been submitted to USEPA 
as proposed SIP revisions. The USEPA is proceeding with final 
rulemaking on the rule revisions which have been formally submitted by 
the OEPA. The USEPA cannot approve a variance which has not been 
adopted or submitted by the State. The Procter and Gamble proposed rule 
revision, if and when submitted, will be dealt with through separate 
rulemaking.
    Comment: The Cincinnati Chamber of Commerce SO2 Task Force 
commented that the proposed conditional approval of the Hamilton County 
SIP revisions (conditional on the State of Indiana incorporating limits 
into its SO2 SIP) is not necessary because of the commitment 
letter submitted by the Indiana source, which would limit them 
sufficiently to show attainment. Additionally, they commented that the 
limits in the letter could easily be incorporated into a title V permit 
for the source.
    Response: It is necessary to condition the Hamilton County SO2 
SIP revision approval upon action to be taken by the State of Indiana 
because it is evident from the technical support that sources in Ohio, 
although not the major contributors, are significant contributors to 
modeled violations in Indiana. Subsequent modeling demonstrations, 
using the self-imposed limits on the Indiana source, show attainment. 
However, these limits can only support an attainment demonstration if 
they are Federally enforceable. The USEPA notified the State of 
Indiana, in a January 5, 1994 letter from Stephen Rothblatt, Chief, 
Regulation Development Branch, Region 5 to Timothy J. Method, Assistant 
Commissioner, Office of Air Management, IDEM, that the Seagram's limits 
must be incorporated into the SO2 SIP by April 1, 1995, or a 
notice of SIP deficiency will be issued. The IDEM responded in a letter 
dated June 27, 1994, that the Seagram's limits will be incorporated 
into Indiana's SO2 rule for Dearborn County and submitted to USEPA 
as a SIP revision by April 1, 1995.

IV. Rulemaking Action

    On January 27, 1994, USEPA proposed to conditionally approve 
revisions to the emission limitations, compliance methodologies, and 
compliance time schedules in Ohio's State Implementation Plan for 
sulfur dioxide (SO2) for Hamilton County. The USEPA received two 
sets of comments pertaining to the proposed rulemaking. All of the 
comments were responded to in the above section of this document.
    The USEPA concludes that the Ohio submittal will satisfy the 
requirements of section 110(a)(2) of the Act, once Indiana fulfills its 
commitment to incorporate the Seagrams limits into the Indiana SO2 
SIP. Therefore, USEPA is taking final action to conditionally approve 
the revisions to Ohio Administrative Code (OAC) rules 3745-18-03 
Attainment Dates and Compliance Time Schedules, 3745-18-04 Measurement 
Methods and Procedures, and 3745-18-37 Hamilton County Emission Limits, 
as they apply to Hamilton County sources.
    Under section 110(k)(4) of the Act, pertaining to conditional 
approval, the SIP elements regarding the Seagram's limits must be 
adopted by the State of Indiana and submitted to USEPA as a SIP 
revision, by a date not later than one year after the date of approval 
of this Hamilton County, Ohio SIP revision. In this case, if the State 
of Indiana fails to adopt or submit the necessary rules within the 
required time frame (September 23, 1995) or if USEPA disapproves the 
limits as a SIP revision, this approval would become a disapproval upon 
USEPA notification of Ohio by letter. The USEPA subsequently would 
publish a document announcing such action in the Federal Register. If 
the State of Indiana adopts and submits the rule within the above 
timeframe, the conditionally approved rules would remain a part of the 
Ohio SIP pending final action on the Indiana submittal.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. The 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.
    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.
    Conditional SIP approvals under section 110 and subchapter I, part 
D of the 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 state 
action. The Act forbids USEPA to base its actions concerning SIPs on 
such grounds. Union Electric Co. v. EPA., 427 U.S. 246, 256-66 (S.Ct. 
1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k) of the Act, based on the State's failure to meet the 
commitment, it will not affect any existing state requirements 
applicable to small entities. Federal disapproval of the State 
submittal does not affect its state-enforceability. Moreover, USEPA's 
disapproval of the submittal would not impose a new Federal 
requirement. Therefore, USEPA certifies that this disapproval action 
does not have a significant impact on a substantial number of small 
entities because it does not remove existing State requirements nor 
does it substitute a new Federal requirement.
    This action makes final the action proposed at 59 FR 3809. The 
USEPA received no significant adverse public comment on the proposed 
action. The comments received did not object to the overall 
approvability of the proposed revisions. One comment requested that 
USEPA not condition the approval on actions to be taken by another 
State. However, there is agreement that the limits on the Indiana 
source are necessary and required for the Hamilton County attainment 
demonstration. The remainder of the comments requested clarifications 
and additional rulemaking. As a result of receiving no comments 
substantively adverse to the approvability of the Hamilton County SIP, 
the Regional Administrator has reclassified this action from Table 2 to 
a Table 3 under the processing procedures published in the Federal 
Register on January 19, 1989 (54 FR 2214-2225), as revised by an 
October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation. On January 6, 1989, the Office of 
Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions 
(54 FR 2222) from the requirements of section 3 of Executive Order 
12291 for a period of 2 years. The USEPA has submitted a request for a 
permanent waiver for Table 2 and 3 SIP revisions. The OMB has agreed to 
continue the waiver until such time as it rules on USEPA's request. 
This request continues in effect under Executive Order 12866 which 
superseded Executive Order 12291 on September 30, 1993.
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 24, 1994. 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

    Air pollution control, Incorporation by reference, Reporting and 
record keeping requirements, Sulfur oxides.

    Note--Incorporation by reference of the State Implementation 
Plan for the State of Ohio was approved by the Director of the 
Federal Register on July 1, 1982.

    Dated: July 26, 1994.
Michelle D. Jordan,
Acting Regional Administrator.

    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 KK--Ohio

    2. Section 52.1919 is added to read as follows.


Sec. 52.1919  Identification of plan-conditional approval.

    (a)(1) On October 16, 1991, and March 17, 1993, the Ohio 
Environmental Protection Agency (OEPA) submitted revisions to the State 
Implementation Plan (SIP) for sulfur dioxide for sources in Hamilton 
County, Ohio. The revisions are approved provided that the State of 
Indiana Department of Environmental Management (IDEM) submits to USEPA, 
by September 23, 1995, a proposed SIP revision incorporating the limits 
identified in the September 1, 1992, letter from Joseph E. Seagram and 
Sons, Inc. to IDEM and the Ohio Environmental Protection Agency.
    (i) Incorporation by reference.
    (A) Ohio Administrative Code (OAC) Rule 3745-18-03 Attainment dates 
and compliance time schedules, Sections (A)(2)(c); (B)(7)(a); 
(B)(7)(b); (C)(8)(a); (C)(8)(b); (C)(9)(a); (C)(9)(b); (D)(1); (D)(2); 
dated October 11, 1991, and effective on October 31, 1991.
    (B) Ohio Administrative Code (OAC) Rule 3745-18-04 Measurement 
methods and procedures, Sections (D)(7); (D)(8)(a) to D(8)(e); (E)(5); 
(E)(6)(a); (E)(6)(b); (F); (G)(1) to (G)(4); (I); dated October 11, 
1991, and effective on October 31, 1991.
    (C) Ohio Administrative Code (OAC) Rule 3745-18-37, Hamilton County 
sulfur dioxide emission limits, dated February 22, 1993, and effective 
on March 10, 1993.
    (D) Director's Findings and Order for Cincinnati Gas And Electric 
Company, Miami Fort Station, dated February 22, 1993.
    (b) [reserved].

[FR Doc. 94-20637 Filed 8-22-94; 8:45 am]
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