[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Rules and Regulations]
[Pages 20139-20142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11200]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[OH93-1-7290a; FRL-5467-3]


Approval and Promulgation of Implementation Plans; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving the Particulate Matter contingency 
measures State implementation plan (SIP) revisions submitted by the 
State of Ohio on July 17, 1995. This submittal addresses the Federal 
Clean Air Act requirement to submit contingency measures for 
particulate matter with an aerodynamic diameter less than or equal to a 
nominal 10 micrometers (PM) for the areas designated as nonattainment 
for the PM National Ambient Air Quality Standards (NAAQS). In Ohio, 
Cuyahoga County and portions of Jefferson County are designated as 
nonattainment for PM. Contingency measures are emission reductions 
which are to be implemented, with no further action, in the event that 
an area fails to meet air quality standards. This submittal would 
result in an emissions reduction of 34 pounds of PM per hour in 
Cuyahoga County, and 2.9 pounds of PM per hour in Jefferson County if 
implementation of the contingency measures becomes necessary.

DATES: This action is effective on July 5, 1996, unless EPA receives 
adverse or critical comments by June 5, 1996. If the effective date is 
delayed, timely notice will be published in the Federal Register.

ADDRESSES: Copies of the revision request are available for inspection 
at the following address: U.S. Environmental Protection Agency, Region 
5, Air and Radiation Division 77 West Jackson Boulevard, Chicago, 
Illinois 60604. (It is recommended that you telephone David Pohlman at 
(312) 886-3299 before visiting the Region 5 Office.)
    Written comments should be sent to: J. Elmer Bortzer, Chief, 
Regulation Development Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.

FOR FURTHER INFORMATION CONTACT: David Pohlman (312) 886-3299.

SUPPLEMENTARY INFORMATION:

I. Background

    In Ohio, Cuyahoga County and portions of Jefferson County are 
designated as nonattainment for PM and classified as moderate under 
sections 107(d)(4)(B) and 188(a) of the Clean Air Act. See 56 FR 56694 
(Nov. 6, 1991); 40 CFR 81.336. The air quality planning requirements 
for moderate PM nonattainment areas are set out in subparts 1 and 4 of 
part D, Title I of the Clean Air Act. The EPA has issued a ``General 
Preamble'' describing EPA's preliminary views on how EPA intends to 
review SIPs and SIP revisions submitted under Title I of the Clean Air 
Act, including those State submittals containing moderate PM 
nonattainment area SIP requirements (see generally 57 FR 13498 (April 
16, 1992) and 57 FR 18070 (April 28, 1992)). Because EPA is describing 
its interpretations here only in broad terms, the reader should refer 
to the General Preamble for a more detailed discussion of the 
interpretations of Title I advanced in this action and the supporting 
rationale.
    Those States containing initial moderate PM nonattainment areas 
were required to submit contingency measures by November 15, 1993 (see 
57 FR 13543). This contingency plan supplements the attainment plan, 
and must include measures that become effective, without further action 
by the State or EPA, upon a determination by EPA that the area has 
failed to achieve reasonable further progress (RFP) or to attain the PM 
NAAQS by the applicable statutory deadline. See section 172(c)(9)of the 
Clean Air Act and 57 FR 13510-13512 and 13543-13544.

II. Analysis of State Submittal

    The Ohio Environmental Protection Agency (OEPA) submitted a 
requested SIP revision to the EPA with a letter dated July 17, 1995. 
The submittal

[[Page 20140]]

contained Findings and Orders for facilities which identified 
reasonably available PM emissions reductions as contingency measures 
pursuant to Ohio Administrative Code Rule 3745-17-14. Specifically, 
Findings and Orders for the following facilities were included: Ford 
Motor Company, Cleveland Casting Plant, T & B Foundry Company, 
International Mill Service, Luria Brothers, United Ready Mix.

A. Procedural Requirements

    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. Section 110(a)(2) of the Act provides that each implementation 
plan submitted by a State must be adopted after reasonable notice and 
public hearing. Section 110(l) of the Act similarly provides that each 
revision to an implementation plan submitted by a State under the Act 
must be adopted by such State after reasonable notice and public 
hearing. Also section 172(c)(7) of the Act requires that plan 
provisions for nonattainment areas meet the applicable provisions of 
section 110(a)(2).
    The EPA also must determine whether a submittal is complete and 
therefore warrants further EPA review and action (see Section 110(k)(1) 
and 57 FR 13565). The EPA's completeness criteria for SIP submittals 
are set out at 40 CFR part 51, appendix V. The EPA attempts to make 
completeness determinations within 60 days of receiving a submission. 
However, a submittal is deemed complete by operation of law if a 
completeness determination is not made by EPA six months after receipt 
of the submission.
    The State of Ohio, after providing adequate notice, held a public 
hearing on May 31, 1995, regarding the PM contingency measures. 
Following the public hearing, the final Findings and Orders were signed 
by the Director of the Ohio Environmental Protection Agency (OEPA) on 
July 10, 1995.
    The submittal was reviewed by EPA to determine completeness in 
accordance with the completeness criteria set out at 40 CFR part 51, 
appendix V. The submittal was found to be complete and a letter dated 
July 20, 1995, was sent to the State indicating the completeness of the 
submittals and the next steps to be taken in the review process.

B. Contingency Measures

    The Clean Air Act requires States containing PM nonattainment areas 
to adopt contingency measures that will take effect without further 
action by the State or EPA upon a determination by EPA that an area 
failed to make RFP or to timely attain the applicable NAAQS, as 
described in section 172(c)(9). See generally 57 FR 13510-13512 and 
13543-13544. Pursuant to section 172(b), the Administrator has 
established a schedule providing that states containing initial 
moderate PM nonattainment areas shall submit SIP revisions containing 
contingency measures no later than November 15, 1993. (See 57 FR 13543, 
n. 3.)
    The General Preamble further explains that contingency measures for 
PM should consist of other available control measures, beyond those 
necessary to meet the core moderate area control requirements to 
implement reasonably available control measures and to assure 
attainment (see Clean Air Act sections 172(c)(1), and 189(a)(1) (A) and 
(C). Based on the statutory structure, EPA believes that contingency 
measures must, at a minimum, provide for continued progress toward the 
attainment goal during an interim period between any prospective 
determination that the SIP has failed to achieve RFP or provide for 
timely attainment of the NAAQS and the additional formal air quality 
planning following the determination (57 FR 13511). PM contingency 
measures are also addressed in a memo from the Acting Chief of the 
Sulfur Dioxide/Particulate Matter Programs Branch, Air Quality 
Management Division to the Air Branch Chiefs of EPA Regions 1-10 dated 
August 20, 1991. This memo suggests that PM contingency emissions 
reductions for moderate nonattainment areas should represent one year's 
RFP. For example, reductions equal to 25 percent of the total reduction 
in actual emissions in the SIP control strategy would be appropriate 
for a moderate nonattainment area since the control strategy must 
generally be implemented within a 3 to 4-year period between SIP 
development and the attainment date.
    Section 172(c)(9) of the Act specifies that contingency measures 
shall ``take effect * * * without further action by the State, or the 
[EPA] Administrator.'' EPA has interpreted this requirement (in the 
General Preamble at 57 FR 13512) to mean that no further rulemaking 
activities by the State or EPA would be needed to implement the 
contingency measures. In general, EPA expects all actions needed to 
effect full implementation of the measures to occur within 60 days 
after EPA notifies the State of its failure to attain the standard or 
make RFP.
    The EPA recognizes that certain actions, such as notification of 
sources, modification of permits, etc., may be needed before some 
measures could be implemented. However, States must show that their 
contingency measures can be implemented with minimal further 
administrative action on their part and with no additional rulemaking 
action such as public hearing or legislative review.
    Ohio Administrative Code (OAC) Rule 3745-17-14 (approved by the EPA 
on May 27, 1994, 59 FR 27464) requires principal facilities in the PM 
nonattainment areas to submit control strategies and compliance 
schedules to the OEPA which would reduce particulate emissions by 15 
and 25 percent. OAC Rule 3745-17-14 also requires that the control 
strategies and compliance schedules be approved by the Director of the 
OEPA (as Findings and Orders) and submitted to the EPA as a revision to 
the Ohio PM SIP. The rule further specifies that the requirements of 
the Findings and Orders are to be implemented by each facility upon 
receipt of a formal determination and notification by the OEPA or the 
EPA that the area is not in compliance with the NAAQS. Whether the 15 
percent or the 25 percent control strategy would be implemented will 
depend on the severity of any actual violations.
    The OEPA received contingency plans from the affected facilities 
and worked with them to finalize those plans. The OEPA found various 
situations with respect to the availability of additional particulate 
emission reductions to meet the levels required in OAC Rule 3745-17-14. 
Some of the affected facilities do not have any significant reductions 
of PM emissions available, while others have some available reductions, 
but not enough to meet the required levels in OAC Rule 3745-17-14. 
Others have sufficient reductions available to fully meet the 
requirements. As a result, some affected facilities are not being 
required to commit to any contingency measure reductions.
    The facilities which fully satisfy Rule 3745-17-14, are the Ford 
Motor Company's Cleveland Casting Plant, and the T & B Foundry Company. 
Ohio has issued Final Findings and Orders which incorporate the 
contingency plans for these sources.
    The facilities which have some reductions available, but not enough 
to fully meet the required levels in OAC Rule 3745-17-14 are 
International Mill Service, Luria Brothers, and United Ready Mix 
(formerly Harval). Ohio has issued Final Findings and Orders which 
incorporate the contingency measures. Ohio also submitted fact sheets 
for these sources which explain why further reductions are not 
available.

[[Page 20141]]

    The facilities which have no significant particulate emission 
reductions that are reasonably available are Granger Materials, Boyas 
Excavating, Cuyahoga Foundry Company, Drummond Dolomite (formerly 
Cleveland Builders Supply), Independence Excavating, Kenmore Asphalt 
Products (formerly Lake Erie Asphalt Products), Ohio Aluminum 
Industries, Schloss Paving Company, Standard Lafarge Company (formerly 
Standard Slag Company), Stein, Wheeling-Pittsburgh Steel Corporation (2 
facilities: Mingo Junction and Steubenville).
    In addition, two facilities, Boyas Excavating, and Satralloy, have 
shut down. LTV Steel Company (East Side and West Side) will have rule 
revisions that require no actual emission reductions. EPA guidance 
calls for contingency measures only in proportion to the actual 
reductions obtained by the nonattainment area. Because LTV has zero 
emissions reductions associated with the initial PM attainment plan, it 
was not required to commit to any contingency measure reductions.
    While Ohio's Rule 3745-17-14 requires contingency emission 
reductions of the magnitude called for by the EPA (25% of the actual 
reductions in the SIP control plan), it was found that some sources 
were not able to reasonably obtain such reductions. Ohio carefully 
analyzed the facilities' contingency plans to ensure that all 
reasonably available measures are included. The EPA agrees that Ohio 
has obtained a sufficient level of reductions to provide for a 
reasonable level of continued progress toward the attainment goal 
during an interim period between any prospective determination that the 
SIP has failed to achieve RFP or provide for timely attainment of the 
NAAQS and the additional formal air quality planning following the 
determination. Ohio's PM contingency plan is, therefore, approvable by 
the EPA.

C. Enforceability

    All measures and other elements in the SIP must be enforceable by 
the State and EPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR 
13556). The EPA criteria addressing the enforceability of SIPs and SIP 
revisions were stated in a September 23, 1987 memorandum (with 
attachments) from J. Craig Potter, Assistant Administrator for Air and 
Radiation, et al. (see 57 FR 13541). State implementation plan 
provisions also must contain a program to provide for enforcement of 
control measures and other elements in the SIP (see section 
110(a)(2)(C)).
    The Final Findings and Orders issued by OEPA are clearly written, 
and are legally enforceable by OEPA. The Final Findings and Orders will 
be enforceable by the EPA upon their approval as a SIP revision. The 
EPA believes that the State's existing air enforcement program will be 
adequate to enforce PM contingency plans.

III. Final Action

    The EPA approves Ohio's PM contingency measure rules, submitted by 
OEPA on July 17, 1995. This submittal addressed PM contingency measure 
plans that were due on November 15, 1993. The State's PM contingency 
measures are included in Final Findings and Orders issued by the OEPA. 
Previously approved OAC Rule 3745-17-14 requires that facilities 
implement the contingency measures upon receipt of a formal 
determination and notification by the OEPA or the EPA that the area is 
not in compliance with the NAAQS.
    The EPA is publishing this action without prior proposal because 
EPA views this action as a noncontroversial revision and anticipates no 
adverse comments. However, EPA is publishing a separate document in 
this Federal Register publication, which constitutes a ``proposed 
approval'' of the requested SIP revision and clarifies that the 
rulemaking will not be deemed final if timely adverse or critical 
comments are filed. The ``direct final'' approval shall be effective on 
July 5, 1996, unless EPA receives adverse or critical comments by June 
5, 1996. If EPA receives comments adverse to or critical of the 
approval discussed above, EPA will withdraw this approval before its 
effective date by publishing a subsequent Federal Register document 
which withdraws this final action. All public comments received will 
then be addressed in subsequent rulemaking. Please be aware that EPA 
will institute another comment period on this action only if warranted 
by significant revisions to the rulemaking based on any comments 
received in response to today's action. Any parties interested in 
commenting on this action should do so at this time. If no such 
comments are received, EPA hereby advises the public that this action 
will be effective on July 5, 1996.
    This action has been classified as a Table 3 action for signature 
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 9, 1995, memorandum from Mary D. Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from Executive Order 12866 review.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. EPA 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.
    Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
Mandates Act'') (signed into law on March 22, 1995) requires that the 
EPA prepare a budgetary impact statement before promulgating a rule 
that includes a Federal mandate that may result in expenditure by 
State, local, and tribal governments, in aggregate, or by the private 
sector, of $100 million or more in any one year. Section 203 requires 
the EPA to establish a plan for obtaining input from and informing, 
educating, and advising any small governments that may be significantly 
or uniquely affected by the rule.
    Under section 205 of the Unfunded Mandates Act, the EPA must 
identify and consider a reasonable number of regulatory alternatives 
before promulgating a rule for which a budgetary impact statement must 
be prepared. The EPA must select from those alternatives the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule, unless the EPA explains why this 
alternative is not selected or the selection of this alternative is 
inconsistent with law.
    Because this final rule is estimated to result in the expenditure 
by State, local, and tribal governments or the private sector of less 
than $100 million in any one year, the EPA has not prepared a budgetary 
impact statement or specifically addressed the selection of the least 
costly, most cost-effective, or least burdensome alternative. Because 
small governments will not be significantly or uniquely affected by 
this rule, the EPA is not required to develop a plan with regard to 
small governments. This rule only approves the incorporation of 
existing state rules into the SIP. It imposes no additional 
requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
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, EPA may certify that the rule will not have a 
significant impact on a substantial number of small

[[Page 20142]]

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 
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 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 the 
State action. The Clean Air Act forbids EPA 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).
    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 July 5, 1996. 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, Particulate matter.

    Dated: April 19, 1996.
Valdas V. Adamkus,
Regional Administrator.

    For the reasons stated in the preamble, 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 52.1870 is amended by adding paragraph (c)(109) to read 
as follows:


Sec. 52.1870   Identification of plan.

* * * * *
    (c) * * *
    (109) On July 17, 1995, Ohio submitted a Particulate Matter (PM) 
contingency measures State Implementation Plan (SIP) revision request. 
The submittal includes Final Findings and Orders for 5 companies. The 
Findings and Orders provide PM emission reductions which will take 
effect if an area fails to attain the National Ambient Air Quality 
Standards for PM.
    (i) Incorporation by reference.
    Director's Final Findings and Orders for Ford Motor Company 
(Cleveland Casting Plant), T&B Foundry Company, International Mill 
Service, Luria Brothers, and United Ready Mix, issued by the Ohio 
Environmental Protection Agency on July 10, 1995.

[FR Doc. 96-11200 Filed 5-3-96; 8:45 am]
BILLING CODE 6560-50-P