[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Rules and Regulations]
[Pages 55200-55202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26589]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[OH83-1-6991a; FRL-5299-6]


Approval and Promulgation of Implementation Plans; Ohio

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: USEPA is approving revisions to Ohio's program for issuing 
federally enforceable State operating permits. These revisions clarify 
that USEPA may deem individual permits to be deficient and not 
federally enforceable, even if the deficiencies are discovered only 
after the permit is issued. Then, if the company wishes to retain the 
benefits of the operating permit (typically, reduced requirements for 
sources with ``minor source'' allowable emissions levels), USEPA could 
require correction of the permit deficiencies to ensure that the permit 
limitations are truly federally enforceable.

DATES: This action is effective December 29, 1995 unless adverse or 
critical comments are received by November 29, 1995. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer, 
Chief, Regulation Development Section, Regulation Development Branch 
(AR-18J), United States Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    Copies of the SIP revision and USEPA's analysis are available for 
public inspection during normal business hours at the following 
addresses: United States Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard (AE-17J), Chicago, 
Illinois 60604; and Office of Air and Radiation (OAR), Docket and 
Information Center (Air Docket 6102) Room M1500, United States 
Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460.

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

SUPPLEMENTARY INFORMATION:

I. Review of State Submittal

    On April 20, 1994, Ohio submitted rules to provide the option for 
the State to issue federally enforceable State operating permits 
(FESOPs). Unfortunately, the version of the rules that Ohio adopted and 
submitted inadvertently excluded some revisions requested by the United 
States Environmental Protection Agency (USEPA). On June 16, 1994, Ohio 
committed to make these intended revisions. On the basis of this 
commitment, USEPA conditionally approved Ohio's submittal on October 
25, 1994, at 59 FR 53586.
    On March 7, 1995, in accordance with its commitment, Ohio submitted 
revisions to its operating permit rules. USEPA found this submittal 
complete on March 27, 1995.
    The principal revision in this submittal was to language in Rule 
3745-35-07(B)(2). The language of the rule that Ohio submitted on April 
20, 1994, stated:

    During the public comment period, the administrator may object 
that the terms and conditions of the permit to operate are not 
federally enforceable and the director shall not issue the permit to 
operate until such objection has been resolved.

USEPA expressed concern that this language could be construed to mean 
that USEPA had no authority to deem permits not federally enforceable 
once the permits had been issued. The March 7, 1995, submittal, in 
accordance with the State's commitment as submitted June 16, 1994, 
includes revised language that states:

    During the public comment period, IF the administrator OBJECTS 
that the terms and conditions of the permit to operate are not 
federally enforceable the director shall not issue the permit to 
operate until such objection has been resolved.

This revised language removes the implication that USEPA's authority to 
deem State operating permits not federally enforceable is limited to 
the State's public comment period. The fact that Ohio made this change, 
the revised language itself, and the discussion of the language by Ohio 
all indicate that USEPA is granted the authority to deem State 
operating permits to be not federally enforceable after permit issuance 
as well as before issuance. This change provides for satisfaction of 
the second criterion for FESOP program approval specified in USEPA's 
guidance published in the Federal Register of June 28, 1989 (at 54 FR 
27274), that USEPA be authorized to deem relevant permits not federally 
enforceable. As a result, Ohio's rules now fully satisfy all criteria 
for FESOP program approval. (Ohio also revised the language concerning 
advance notification by sources of implementation of emissions trades, 
replacing the phrase ``advance notification * * * as specified in 40 
CFR 70.4(6)(12)'' with the phrase ``seven day advance notification''; 
this clarification does not significantly affect program 
approvability.)
    During the comment period on the October 25, 1994, direct final 
rulemaking, USEPA received two comment letters. The comments in these 
letters were not adverse or critical and did not require withdrawal of 
the direct final rulemaking. Nevertheless, it is appropriate to address 
these comments in the context of this rulemaking on Ohio's March 7, 
1995, submittal.
    The first comment was sent by the Natural Resources Defense Council 
(NRDC). NRDC did not object to USEPA approval of Ohio's rule. However, 
NRDC requested that the codification of USEPA's approval specify that 
FESOPs shall be enforceable not just by USEPA but also ``by any person 
under section 304 of the Clean Air Act.'' Section 304 indeed provides 
authority to any person to bring suits to enforce limits such as those 
contained in FESOPs. Thus, it is appropriate to amend the codification 
in 40 CFR 52.1888 as requested by NRDC.
    The second comment was sent by Ohio EPA, by letter dated November 
18, 1994. As discussed above, Ohio changed rule language that could be 
interpreted as limiting USEPA's authority to deem a State operating 
permit as not federally enforceable after permit issuance. Ohio takes 
the position that USEPA inherently has the authority to deem these 
permits not federally enforceable, and that ``Ohio does not believe it 
is in a position to make a specific authorization regarding the scope 
of USEPA's authority in this area.'' Therefore, Ohio argues that its 
rule revisions were not intended to provide ``veto'' authority to USEPA 
after permit issuance but instead were intended simply to remove an 
obstacle to USEPA exercising its preexisting authority.
    This issue is somewhat moot, insofar as Ohio is not questioning 
USEPA's ``veto'' authority after permit issuance but is merely 
questioning the origins of that authority. In any case, USEPA believes 
that State operating permits are not inherently federally enforceable, 
and that these permits can only be federally enforceable if the State 
grants 

[[Page 55201]]
USEPA that authority. Indeed, one of the criteria for USEPA approval of 
FESOP programs in the guidance cited above is that the State provide 
that USEPA has such authority. From this perspective, Ohio has 
satisfied these criteria by providing USEPA the authority to ``veto'' 
permits before and after issuance.
    It is also clear that Ohio prefers for USEPA to use its pre-
issuance ``veto'' authority rather than its post-issuance ``veto'' 
authority. USEPA will attempt to honor their preference to the extent 
practicable. While it may become necessary in limited cases to address 
problems that were only discovered after permit issuance, USEPA will 
endeavor to identify permits that are not federally enforceable prior 
to their issuance.

II. Rulemaking Action

    Ohio's submittal satisfies its commitment to revise its rules to 
clarify that USEPA may deem State operating permits not federally 
enforceable. Therefore, USEPA is converting the prior conditional 
approval to a full approval. In the sense that a conditional approval 
is a ``temporary'' approval, today's action makes permanent Ohio's 
authorization to issue federally enforceable State operating permits.
    The USEPA is publishing this action without prior proposal because 
USEPA views this action as a noncontroversial revision and anticipates 
no adverse comments. However, USEPA is publishing a separate document 
in today's Federal Register, which constitutes a ``proposed approval'' 
of the requested SIP revision and clarifies that the rulemaking will 
not be deemed final if we receive timely adverse or critical comments. 
The ``direct final'' approval shall be effective on December 29, 1995, 
unless USEPA receives adverse or critical comments by November 29, 
1995, in which case USEPA will publish a Federal Register document 
which withdraws this final action. All public comments received will 
then be addressed in a subsequent rulemaking document.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. 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.
    This action has been classified as a Table 3 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995 
memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation. The Office of Management and Budget exempted this regulatory 
action from Executive Order 12866 review.
    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.
    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. USEPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).
    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995, signed into law on March 22, 1995, USEPA must undertake 
various actions in association with proposed or final rules that 
include a Federal mandate that may result in estimated costs of $100 
million or more to the private sector, or to State, local, or tribal 
governments in the aggregate.
    Through submission of the State implementation plan or plan 
revisions approved in this action, the State has elected to adopt the 
program provided for under sections 110 and 112 of the Clean Air Act. 
The rules and commitments being approved in this action allow sources 
to request additional limitations (typically for the purpose of 
avoiding major source permitting requirements), but otherwise do not 
impose any requirements on State, local and tribal governments or 
private sector concerns. Thus, USEPA's action will impose no new 
requirements; and sources requesting limitations may in any case 
already request these limitations under State law. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action. The USEPA has also determined 
that this action does not include a mandate that may result in 
estimated costs or $100 million or more to State, local, or tribal 
governments in the aggregate or to the private sector.
    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 December 29, 1995. 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, Carbon monoxide, Hydrocarbons, Incorporation 
by reference, Intergovernmental relations, Lead, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

    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: September 5, 1995.
Michelle D. Jordan,
Acting Regional Administrator.

    Title 40 of the Code of Federal Regulations, chapter I, part 52, 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 52.1870 is amended by adding paragraph (c)(98) to read 
as follows:


Sec. 52.1870  Identification of plan.

* * * * *
    (c) * * *
    (98) On April 20, 1994, and March 7, 1995, Ohio submitted Rule 
3745-35-07, entitled ``Federally Enforceable Limitations on Potential 
to Emit,'' and requested authority to issue such limitations as 
conditions in State operating permits. 

[[Page 55202]]

    (i) Incorporation by reference. Rule 3745-35-07, adopted November 
3, 1994, effective November 18, 1994.
* * * * *
    3. Section 52.1888 is revised to read as follows:


Sec. 52.1888  Operating permits.

    Emission limitations and related provisions which are established 
in Ohio operating permits as federally enforceable conditions in 
accordance with Rule 3745-35-07 shall be enforceable by USEPA and by 
any person under section 304 of the Clean Air Act. USEPA reserves the 
right to deem permit conditions not federally enforceable. Such a 
determination will be made according to appropriate procedures, and 
will be based upon the permit, permit approval procedures or permit 
requirements which do not conform with the operating permit program 
requirements or the requirements of USEPA's underlying regulations.


Sec. 52.1919  [Amended]

    4. Section 52.1919 is amended by removing paragraph (a)(2).

[FR Doc. 95-26589 Filed 10-27-95; 8:45 am]
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