[Federal Register Volume 60, Number 71 (Thursday, April 13, 1995)]
[Proposed Rules]
[Pages 18790-18792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9059]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[OH001; FRL-5189-8]


Clean Air Act Proposed Approval of Operating Permit Program; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes full approval of the operating permit program 
submitted by the State of Ohio for the purpose of complying with 
Federal requirements which mandate that States develop, and submit to 
EPA, programs for issuing operating permits to all major stationary 
sources and to certain other sources.

DATES: Comments on this proposed action must be received in writing by 
May 15, 1995.

ADDRESSES: Comments should be addressed to Steven Pak at the Region 5 
address. Copies of the State's submittal and other supporting 
information used in developing the proposed full approval are available 
for inspection during normal business hours at the following location: 
EPA Region 5, Air and Radiation Division (AE-17J), 77 West Jackson 
Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Steven Pak, EPA Region 5, Air and 
Radiation Division (AE-17J), 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-1497.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    As required under title V of the Clean Air Act (``the Act'') as 
amended by the 1990 Clean Air Act Amendments, EPA promulgated rules on 
July 21, 1992 (57 FR 32250), which define the minimum elements of an 
approvable State operating permit program and the corresponding 
standards and procedures by which EPA will approve, oversee, and 
withdraw approval of State operating permit programs. These rules are 
codified at 40 Code of Federal Regulations (CFR) part 70. Title V and 
part 70 require that States develop, and submit to EPA, programs for 
issuing operating permits to all major stationary sources and to 
certain other sources.
    The Act requires that States develop and submit these programs to 
EPA by November 15, 1993, and that EPA act to approve or disapprove 
each program within one year after receiving the submittal. If the 
State's submission is materially changed during the one-year review 
period, 40 CFR 70.4(e)(2) allows EPA to extend the review period for no 
more than one year following receipt of the additional materials. 
Because Ohio provided EPA with additional materials that materially 
changed the State's Title V program submittal on September 12, 1994, 
November 21, 1994, December 9, 1994, and January 5, 1995, EPA has 
extended the review period and will work expeditiously to promulgate a 
final decision on the State's program.
    EPA reviews State operating permit programs pursuant to section 502 
of the Act and 40 CFR part 70, which together outline criteria for 
approval or disapproval. When a program substantially, but not fully, 
meets the requirements of 40 CFR part 70, EPA may grant the program 
interim approval for a period of up to two years. If EPA has not fully 
approved a program by November 15, 1995, or by the end of an interim 
program, it must establish and implement a Federal operating permit 
program for that State. 

[[Page 18791]]


II. Proposed Action and Implications

A. Analysis of State Submission

    EPA has concluded that the operating permit program submitted by 
Ohio meets the requirements of title V and part 70 and is proposing to 
grant full approval to the program. For more detailed information on 
the analysis of the State's submission, please refer to the technical 
support document (TSD) included in the docket at the address noted 
above.
1. Support Materials
    Donald Schregardus, Director of the Ohio Environmental Protection 
Agency and the Governor of Ohio's designee, submitted Ohio's title V 
operating permit program to EPA on July 22, 1994. The State 
supplemented the submittal on September 12, 1994, November 21, 1994, 
December 9, 1994, and January 5, 1995. The submittal contains all 
required elements of 40 CFR 70.4, including a description of Ohio's 
operating permit program, relevant permitting program documentation, 
and the Attorney General's legal opinion that the laws of the State 
provide adequate authority to carry out all aspects of the program.
2. Regulations and Program Implementation
    EPA has determined that the Ohio operating permit program, 
including State statutes (Ohio Revised Code (ORC) 3704.035, 3704.036, 
3704.05, 3704.06, 3704.99, 3745.11, and 3745.112) and regulations (Ohio 
Administrative Code (OAC) 3745-77 and 3745-78), meets the requirements 
of 40 CFR 70.2 and 70.3 for applicability; 40 CFR 70.5 for criteria 
which define insignificant activities1 and for complete 
application forms; 40 CFR 70.4, 70.5, and 70.6 for permit content 
(including operational flexibility); 40 CFR 70.7 and 70.8 for permit 
processing requirements (including public participation and minor 
permit modifications); and 40 CFR 70.11 for requirements for 
enforcement authority. The TSD contains a detailed analysis of Ohio's 
program and describes the manner in which the State's program meets all 
the operating permit program requirements of 40 CFR Part 70.

    \1\Ohio includes research and development (R&D) units, as 
defined at Ohio Revised Code (ORC) 3704.01(P), as an insignificant 
activity. However, this definition of all R&D units as insignificant 
activities is limited in effect because an R&D unit is not exempt 
from the State's permit application requirements if the unit's 
emissions exceed one ton per year of total hazardous air pollutants 
or has a potential to emit more than five tons per year or twenty 
percent of an applicable major source threshold under the Act for 
any regulated air pollutant other than a HAP (OAC 3745-77-02(G)). In 
addition, Ohio's general provisions governing insignificant 
activities and emissions levels apply to R&D units. Ohio regulations 
provide that insignificant activities and emissions levels that are 
exempted because of size or production rate must be listed in the 
permit application and do not affect the determination of whether a 
stationary source is a major source (OAC 3745-77-02(G)). In 
addition, an applicant may not omit information, including the 
emissions levels for insignificant activities, that is necessary to 
determine the applicability of any applicable requirement, to impose 
any applicable requirement, or to evaluate any fee amount (OAC 3745-
77-03(A)).
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3. Permit Fee Demonstration
    EPA has determined that the Ohio operating permit program meets the 
fee requirements of 40 CFR 70.9. Ohio is adopting the presumptive 
minimum approach to fees outlined in 40 CFR 70.9(b)(2).
4. Provisions Implementing the Requirements of Other Titles of the Act
    a. Authority for Section 112 Implementation. In its program 
submittal, Ohio demonstrates adequate legal authority to implement and 
enforce all section 112 requirements through the Title V permit. This 
legal authority is contained in Ohio's enabling legislation and in 
regulatory provisions defining ``applicable requirements'' and stating 
that permits must incorporate all applicable requirements. EPA has 
determined that this legal authority is sufficient to allow the State 
to issue permits that assure compliance with all section 112 
requirements.
    EPA is interpreting the above legal authority to mean that Ohio is 
able to carry out all section 112 activities with respect to part 70 
sources. For further rationale on this interpretation, please refer to 
the TSD.
    b. Implementation of 112(g). EPA issued an interpretive notice on 
February 14, 1995 (60 FR 8333), which outlines EPA's revised 
interpretation of 112(g) applicability. The notice postpones the 
effective date of 112(g) until after EPA has promulgated a rule 
addressing that provision. The notice sets forth in detail the 
rationale for the revised interpretation.
    The section 112(g) interpretive notice explains that EPA is still 
considering whether the effective date of section 112(g) should be 
delayed beyond the date of promulgation of the Federal rule so as to 
allow States time to adopt rules implementing the Federal rule and that 
EPA will provide for any such additional delay in the final section 
112(g) rulemaking. Unless and until EPA provides for such an additional 
postponement of section 112(g), Ohio must have a federally enforceable 
mechanism for implementing section 112(g) during the period between 
promulgation of the Federal section 112(g) rule and adoption of 
implementing Federal regulations.
    EPA is aware that Ohio lacks a program designed specifically to 
implement section 112(g). However, Ohio does have a preconstruction 
review program (OAC 3745-31) that can serve as an adequate 
implementation vehicle during the transition period because it would 
allow Ohio to select control measures that would meet MACT, as defined 
in section 112, and incorporate these measures into a federally 
enforceable preconstruction permit.
    EPA is approving Ohio's preconstruction permitting program (OAC 
3745-31) under the authority of Title V and Part 70 solely for the 
purpose of implementing section 112(g) to the extent necessary during 
the transition period between 112(g) promulgation and adoption of a 
State rule implementing EPA's section 112(g) regulations. Although 
section 112(l) generally provides authority for approval of State air 
programs to implement section 112(g), Title V and section 112(g) 
provide for this limited approval because of the direct linkage between 
the implementation of section 112(g) and Title V. The scope of this 
approval is narrowly limited to section 112(g) and does not confer or 
imply approval for purposes of any other provision under the Act (e.g., 
section 110). This approval will be without effect if EPA decides in 
the final section 112(g) rule that sources are not subject to the 
requirements of the rule until State regulations are adopted. The 
duration of this approval is limited to 18 months following 
promulgation by EPA of the 112(g) rule to provide adequate time for the 
State to adopt regulations consistent with the Federal requirements.
    c. Program for delegation of Section 112 Standards as Promulgated. 
The requirements for program approval, specified in 40 CFR 70.4(b), 
encompass section 112(l)(5) requirements for approval of a State 
program for delegation of section 112 standards, as promulgated by EPA, 
as they apply to part 70 sources. Section 112(l)(5) requires that the 
State's program contain adequate authorities, adequate resources for 
implementation, and an expeditious compliance schedule, which are also 
requirements under 40 CFR part 70. Therefore, EPA is also proposing to 
grant approval, under section 112(l)(5) and 40 CFR 63.91, of Ohio's 
program for receiving delegation of section 112 standards that are 
unchanged from the Federal standards as promulgated. 

[[Page 18792]]
Because Ohio has historically accepted delegation of section 112 
standards through automatic delegation, EPA proposes to approve the 
delegation of section 112 standards and requirements through automatic 
delegation. The details of this delegation mechanism will be set forth 
in a Memorandum of Agreement between Ohio and EPA. This approval 
applies to both existing and future standards but is limited to sources 
covered by the part 70 operating permit program.
    d. Limiting HAP Emissions Through a FESOP Program. On October 25, 
1994, EPA conditionally approved OAC 3745-35-07 for establishing a 
mechanism for creating federally enforceable limits on a sources 
potential to emit (59 FR 53586). This rulemaking, which became 
effective on December 27, 1994, authorizes the State to issue federally 
enforceable State operating permits addressing both criteria pollutants 
and HAPs.
    e. Title IV. Ohio's program contains adequate authority to issue 
permits which reflect the requirements of Title IV and its implementing 
regulations. Further, Ohio provided a commitment on January 5, 1995, to 
incorporate by reference the Federal Acid Rain Program regulations (40 
CFR part 72) by October 1, 1995.

B. Potential Interim Approval Issue

    Ohio's definition of ``title I modification'' does not include 
changes reviewed under a minor source preconstruction review program. 
On August 29, 1994, EPA solicited public comment on whether the phrase 
``modification under any provision of title I of the Act'' in 40 CFR 
70.7(e)(2)(i)(A)(5) should be interpreted to mean literally any change 
at a source that would trigger permitting authority review under 
regulations approved or promulgated under Title I of the Act (59 FR 
44573). EPA is currently reviewing the public comments on this issue 
and is in the process of determining the proper definition of that 
phrase. EPA does not believe that it is appropriate to determine 
whether this is a program deficiency for Ohio until EPA completes its 
rulemaking on this issue. For a more complete discussion of this issue 
see the November 9, 1994, approval of the operating permit program for 
the State of Washington (59 FR 55813).

C. Proposed Action

    EPA is proposing to grant full approval of the operating permit 
program submitted by Ohio on July 22, 1994, and amended on September 
12, 1994, November 21, 1994, December 9, 1994, and January 5, 1995. 
Among other things, Ohio has demonstrated that the program meets the 
minimum elements of an approvable State operating permit program as 
specified in 40 CFR part 70.
    The scope of the Ohio program that EPA proposes to approve in this 
notice would apply to all part 70 sources (as defined in the approved 
program) within the State of Ohio.
    As outlined in II.A.4.c., EPA is also proposing to grant approval 
under section 112(l)(5) and 40 CFR 63.91 of the State's program for 
receiving delegation of section 112 standards that are unchanged from 
Federal standards as promulgated. This program for delegations only 
applies to sources covered by the part 70 program.

III. Administrative Requirements

A. Request for Public Comments

    EPA is requesting comments on all aspects of this proposed full 
approval. Copies of the State's submittal and other information relied 
upon for the proposed full approval are contained in a docket 
maintained at the EPA Regional Office. The docket is an organized and 
complete file of all the information submitted to, or otherwise 
considered by, EPA in the development of this proposed full approval. 
The principal purposes of the docket are:
    (1) To allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process; and
    (2) To serve as the record in case of judicial review. EPA will 
consider any comments received by May 15, 1995.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    EPA's actions under section 502 of the Act do not create any new 
requirements, but simply address operating permit programs submitted to 
satisfy the requirements of 40 CFR part 70. Because this action does 
not impose any new requirements, it does not have a significant impact 
on a substantial number of small entities.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: March 29, 1995.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 95-9059 Filed 4-12-95; 8:45 am]
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