[Federal Register Volume 64, Number 109 (Tuesday, June 8, 1999)]
[Rules and Regulations]
[Pages 30394-30396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14052]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH118-1a; FRL-6353-2]


Approval and Promulgation of Implementation Plans; Ohio

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: We, the United States Environmental Protection Agency (EPA), 
are approving the Ohio Environmental Protection Agency's (OEPA) 
September 16, 1998 and December 29, 1998, requests for revisions to the 
Ohio State Implementation Plan (SIP). These requests include an 
exemption for de minimis sources from the requirement to obtain a 
permit to operate (OAC 3745-15-05) and revises the permit to operate 
rule (OAC 3745-35-02). Revisions to OAC 3745-35-02 establish exemptions 
from the rule, revise the application filing deadline, and allow 
applicants the ability to demonstrate that their sources are in 
compliance through a compliance schedule when they are not in 
compliance at the time of permit issuance. These revisions will not 
inhibit OEPA from ensuring compliance with the national ambient air 
quality standards.

DATES: This rule is effective on August 9, 1999, unless EPA receives 
adverse written comments by July 8, 1999. If we receive adverse 
comment, EPA will publish a timely withdrawal of the rule in the 
Federal Register and inform the public that the rule will not take 
effect.

ADDRESSES: Written comments may be mailed to J. Elmer Bortzer, Chief, 
Regulation Development Section, Air Programs Branch (AR-18J), Region 5 
at the address listed below.
    Copies of the documents relevant to this action are available for 
inspection during normal business hours at the following location: 
Permits and Grants Section, Air Programs Branch, (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.
    Please contact Steve Gorg or Genevieve Damico, Environmental 
Engineers, at 312-353-8641 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Steve Gorg or Genevieve Damico, 
Environmental Engineers, Permits and Grants Section, Air Programs 
Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 
West Jackson Boulevard, Chicago, Illinois 60604, 312-353-8641.

SUPPLEMENTARY INFORMATION:
    This Supplementary Information section is organized as follows:
    A. What action are we taking today?
    B. Who is affected by this rulemaking action?
    C. What are the revisions to OAC rule 3745-35-02?
    D. What recordkeeping and reporting requirements are required of my 
facility to be exempted from the requirement to obtain a permit to 
operate?
    E. Why can we approve this request?
    F. What is the background of this rulemaking?

A. What Action Are We Taking Today?

    We are approving OEPA's September 16, 1998 and December 29, 1998, 
requests for revisions to the Ohio SIP. These requests include an 
exemption for de minimis sources from the requirement to obtain a 
permit to operate (OAC 3745-15-05) and revision to the permit to 
operate requirement (OAC 3745-35-02).

B. Who Is Affected by This Rulemaking Action?

    OAC 3745-35-02 applies to all new and existing sources, including 
those sources which are subject to EPA's New Source Performance 
Standards (NSPS) and National Emission Standards for Hazardous Air 
Pollutants (NESHAPS). Generally, this rule requires an owner of an air 
contaminant source (referred to in this notice as ``you''), to apply 
for and obtain a permit to operate from the OEPA.
    Under OAC 3745-15-05, you are not required to get a permit to 
operate if your facility has potential emissions less than ten pounds 
per day, except when the Clean Air Act requirements limit or restrict 
your facility's emissions. This exemption does not apply if your 
facility:
    (1) Is subject to a requirement of the SIP;
    (2) Emits radionuclides;
    (3) Has potential emissions of any air pollutant in excess of 
twenty-five tons per year, alone or in combination with a similar 
source at the same facility; or,
    (4) Emits more than one ton per year of any one or a combination of 
hazardous air pollutants.

C. What Are The Revisions To OAC Rule 3745-35-02?

    The revisions to OAC rule 3745-35-02 establish:
    (1) Exemptions from the rule if you are:
    (a) a source that is exempted under OAC 3745-31-03 (A)(1) or 
(A)(2);
    (b) required to obtain a Title V permit as defined in Chapter 3745-
77 of the OAC; or,
    (c) a source that is exempt from getting a permit to operate under 
OAC 3745-15-05;
    (2) An application filing date no later than thirty days after 
commencement of operation; and,
    (3) The requirement to demonstrate that your facility will be in 
compliance with all applicable air pollution control laws through a 
compliance schedule that is at least as stringent as those laws, if you 
are not complying at the time of permit issuance.

D. What Recordkeeping and Reporting Requirements Are Required of My 
Facility To Be Exempted From The Requirement To Obtain a Permit To 
Operate?

    If your facility meets the exemption criteria in OAC 3745-15-05, 
then you must:
    (1) Keep records that prove actual emissions of any air contaminant 
from your facility did not exceed the de minimis level,
    (2) Maintain records for two years; and
    (3) Submit an exceedence report and an application for a permit to 
install if your facility exceeds the de minimis level.

E. Why Can We Approve This Request?

    These revisions are approvable because:
    (1) The revisions to OAC 3745-35-02 affect the Ohio state operating 
permit program and do not affect the requirements established by Title 
V of the Clean Air Act. If you are required to obtain a Title V permit, 
you must apply for such a permit under OAC 3745-77.
    (2) OAC 3745-15-05 establishes exemptions for small sources of air 
pollution that have little or no adverse impact on air quality. This 
rule does not apply if your facility is subject to a requirement of the 
SIP.

F. What Is the Background of This Rulemaking?

    OAC 3745-35-02 and 3745-15-05 became effective as a matter of Ohio 
State law on April 20, 1994. OEPA's original OAC 3745-35-02 was 
approved on June 10, 1982 (47 FR 25144).

EPA Action

    In this rulemaking action, EPA approves OEPA's September 21, 1998 
and January 8, 1999 request for revisions to OAC rule 3745-35-02 and 
OAC rule 3475-15-05, respectively. The EPA is publishing this action 
without prior proposal because EPA views this as a noncontroversial 
revision and anticipates no adverse comments. However, should adverse 
written

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comments be filed, in a separate document in this Federal Register 
publication, the EPA is proposing to approve the SIP revision. This 
action will be effective August 9, 1999 without further notice unless 
EPA receives relevant adverse written comment by July 8, 1999. Should 
the Agency receive such comments, we will publish a withdrawal document 
informing the public that this action will not take effect. Any parties 
interested in commenting on this action should do so at this time. If 
no such comments are received, the public is advised that this action 
will be effective on August 9, 1999.

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's rule does not 
create a mandate on state, local or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks 
that may have a disproportionate effect on children.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, E.O. 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.'' This rule does not significantly 
or uniquely affect the communities of Indian tribal governments. 
Accordingly, the requirements of section 3(b) of E.O. 13084 do not 
apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because 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 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the economic reasonableness of state 
action. The Clean Air Act forbids EPA to base its actions concerning 
SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 
255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Audit Privilege and Immunity Law

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Ohio's audit 
privilege and immunity law (sections 3745.70-3745.73 of the Ohio 
Revised Code ). EPA will be reviewing the effect of the Ohio audit 
privilege and immunity law on various Ohio environmental programs, 
including those under the Clean Air Act, and taking appropriate 
action(s), if any, after thorough analysis and opportunity for Ohio to 
state and explain its views and positions on the issues raised by the 
law. The action

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taken herein does not express or imply any viewpoint on the question of 
whether there are legal deficiencies in this or any Ohio Clean Air Act 
program resulting from the effect of the audit privilege and immunity 
law. As a consequence of the review process, the regulations subject to 
the action taken herein may be disapproved, federal approval for the 
Clean Air Act program under which they are implemented may be 
withdrawn, or other appropriate action may be taken, as necessary.

H. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

I. Petitions for Judicial Review

    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 August 9, 1999. 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: May 20, 1999.
Francis X. Lyons,
Regional Administrator, Region 5.
    For the reasons stated in the preamble, part 52, chapter I, and 
part 81 subpart c of 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 et seq.

    2. Section 52.1870 is amended by adding (c)(119) and (c)(120) to 
read as follows:


Sec. 52.1870  Identification of plan.

* * * * *
    (c) * * *
    (119) On September 21, 1998, Ohio submitted revisions to its Permit 
to Operate rules as a revision to the State implementation plan.
    (i) Incorporation by reference
    (A) Ohio Administrative Code 3745-35-02, adopted April 4, 1994, 
effective April 20, 1994.
    (120) On January 3, 1999, Ohio submitted, as a State implementation 
plan revision, de minimus exemption provisions for its permitting 
rules.
    (i) Incorporation by reference
    (A) Ohio Administrative Code 3745-15-05, adopted April 4, 1994, 
effective April 20, 1994.

[FR Doc. 99-14052 Filed 6-7-99; 8:45 am]
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