[Federal Register Volume 66, Number 126 (Friday, June 29, 2001)]
[Proposed Rules]
[Pages 34596-34598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16437]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH118-1a; FRL-7005-5]


Conditional Approval Implementation Plans; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The United States Environmental Protection Agency (USEPA) is 
proposing conditional approval of the Ohio Environmental Protection 
Agency's (OEPA) SIP for Prevention of Significant Deterioration (PSD) 
provisions for attainment areas.
    Ohio submitted a request for a SIP-approved PSD program on March 1, 
1996. The request was supplemented on April 16, 1997, September 5, 
1997, December 4, 1997, and April 21, 1998. Ohio Administrative Code 
(OAC) sections 3745-31-11 to 3745-31-20 contain the permitting 
provisions for areas attaining the national ambient air quality 
standards (NAAQS). The general provisions applying to both attainment 
and nonattainment areas are found in OAC sections 3745-31-01 to 3745-
31-10.

DATES: Comments must be received on or before July 30, 2001.

ADDRESSES: 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 Genevieve Damico at (312) 353-4761 before visiting 
the Region 5 office.
    Written comments should be sent to: Pamela Blakley, Chief, Permits 
and Grants Section, Air Programs Branch, (AR-18J), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Genevieve Damico, Environmental 
Engineer, Permits and Grants Section, Air Programs Branch, (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 353-4761.

SUPPLEMENTARY INFORMATION: This supplemental information section is 
organized as follows:

    A. What is the purpose of this document?
    B. Who will be affected by this action?
    C. What is the history of OEPA's PSD program?
    D. How are OEPA's PSD rules structured?
    E. Why are we granting a conditional approval?
    F. How will 51.166(b)(23)(i) be implemented under this action?
    G. How can this conditional approval become fully approved?

A. What Is the Purpose of This Document?

    We are soliciting public comments on the proposal for conditional 
approval of Ohio's request for its Prevention of Significant 
Deterioration (PSD) program to be approved into the SIP. We will 
consider these comments before we take final action. Interested parties 
may participate in the Federal rulemaking procedure by submitting 
written comments to the EPA Regional office listed in the ADDRESSES 
section of this document.

B. Who Is Affected by This Action?

    Because the fully approved PSD program will be similar to the PSD 
program that OEPA already operates under delegated authority, air 
pollution sources will generally not be affected by this action. 
However, once the program is fully approved, persons wishing to appeal 
PSD permits will have to file their appeals with OEPA under the SIP-
approved program, rather than with USEPA's Environmental Appeals Board 
as they have been doing under the delegated PSD program.

C. What Is the History of Ohio's PSD Program?

    OEPA submitted its first permitting SIP to USEPA on January 31, 
1972, and submitted replacement regulations on June 6, 1973. These 
regulations provided requirements, such as best available technology, 
that were meant to be uniformly applied throughout the state.
    The Clean Air Act Amendments of 1977 required states to go further 
than uniformly applied regulations. The Amendments provided for the 
designation of areas within a state as ``attainment'' or 
``nonattainment.'' An ``attainment'' area meets the NAAQS. A 
``nonattainment'' area does not meet the NAAQS.
    OEPA requested delegation of the PSD attainment permitting program 
on February 8, 1980, and received delegation on January 29, 1981.
    OEPA submitted a request for approval of Ohio Administrative code 
(OAC) sections 3745-31-01 to 3745-31-20 into the SIP on March 1, 1996. 
Ohio subsequently submitted revisions dated March 1, 1996, April 16, 
1997, September 5, 1997, December 4, 1997, and April 21, 1998. OEPA's 
PSD program has since remained in delegated status. The subsequent 
requests for SIP-approval of Ohio's regulations allow us to grant 
conditional approval to the program for reasons described below.

D. How Are OEPA's PSD Rules Structured?

    Part C of Title I of the Clean Air Act (CAA) requires a SIP for PSD 
rules for attainment areas. 40 CFR 51.165 and 51.166 contain the 
requirements for a PSD permitting program. OEPA submitted this SIP in 
the form of OAC sections 3745-31-11 to 3745-31-20. OEPA also submitted 
general provisions applying to both attainment and nonattainment areas 
in the form of OAC sections 3745-31-01 to 3745-31-10.

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E. Why Are We Granting a Conditional Approval?

    We are proposing to grant conditional approval to Ohio's PSD rules, 
OAC sections 3745-31-01 to 3745-31-20. These rules, for the most part, 
fulfill part C of Title I of the CAA by incorporating the critical 
provisions at 40 CFR 51.165 and 51.166 for ambient air increment 
consumption, area designation and redesignation restrictions, best 
available control technology, impact analysis, and air quality 
modeling. OAC sections 3745-31-01(OOO) does not, however, include a 25 
tons per year significance level for particulate matter, or a 50 ton 
per year significance level for municipal solid waste landfill 
emissions, as required by 40 CFR 51.166(b)(23)(i). Furthermore, total 
reduced sulfur and reduce sulfur compounds are incorrectly defined to 
exclude hydrogen sulfide. Therefore, the definition of significant as 
required by 40 CFR 51.166(b)(23)(i) is not complete. In a December 5, 
2000, letter, OEPA has committed to correct the definition of 
significance in OAC 3745-31. Because OAC sections 3745-31-01 through 
3745-31-20 meet all requirements of 40 CFR 51.165 and 51.166 with this 
exception, and OEPA has committed to correct these deficiencies, we 
believe it is appropriate to grant conditional approval. When Ohio 
demonstrates that the deficiencies identified above are cured, USEPA 
can grant final approval to these rules.
    USEPA is currently reviewing OEPA's implementation of the delegated 
PSD program in response to a petition submitted by D. David Altman on 
behalf of Ohio Citizen Action, the Ohio Environmental Council, Rivers 
Unlimited, and the Ohio Sierra Club. Any concerns that USEPA finds as a 
result of this review will be addressed through the process of 
responding to the petition. Today's proposed conditional approval only 
addresses whether or not specific provisions of Ohio's administrative 
code meet the federal criteria for a PSD program, as set forth in 40 
CFR part 51, and does not address any issues regarding how the code is 
being applied or enforced by Ohio. We believe the OAC revisions meet 
the criteria for approval with the exceptions listed above, and are 
therefore proposing to conditionally approve them. No particular 
findings or conclusions in or from the USEPA petition review should be 
inferred from today's proposed conditional approval.

F. How Will 51.166(b)(23)(i) Be Implemented Under This Action?

    Although Ohio will have a SIP-approved PSD program, until this 
conditional approval becomes final OEPA will continue to be delegated 
the authority under Sec. 51.166(b)(23)(i) of the federal PSD 
regulations to permit sources of significant particulate matter, 
municipal solid waste landfill emissions, and total reduced sulfur and 
reduce sulfur compounds. The delegation will continue until such time 
as the identified deficiencies are corrected and full approval is 
granted (or unless USEPA otherwise addresses the delegation after the 
review of Ohio's implementation of the PSD program pursuant to the 
petition discussed above).

G. How Can This Conditional Approval Become Fully Approved?

    OEPA will have one year from the time that the conditional approval 
is final to submit the necessary changes to its rules to correct the 
deficiencies identified in this notice. If OEPA does not submit 
approvable changes within the one year timeframe, USEPA will disapprove 
Ohio's PSD program.

USEPA Action

    In this rulemaking action, we propose conditional approval of 
OEPA's March 1, 1996 request, as amended by OEPA's April 16, 1997 
request, for additions and revisions to OAC sections 3745-31-01 to 
3745-31-10, and OAC sections 3745-31-11 to 3745-31-20 because the 
request meets all of the requirements of 40 CFR 51.165 and 51.166 with 
the exception of a 25 ton per year significance level for particulate 
matter; a 50 ton per year significance level for municipal solid waste 
landfill emissions as required by 40 CFR 51.166(b)(23)(i); and because 
total reduced sulfur and reduce sulfur compounds are incorrectly 
defined to exclude hydrogen sulfide. OEPA has also committed to correct 
the definition of significance in OAC 3745-31.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. This proposed action merely approves state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4). For the same reason, this proposed rule also does 
not significantly or uniquely affect the communities of tribal 
governments, as specified by Executive Order 13084 (63 FR 27655, May 
10, 1998). This proposed rule will not have substantial direct effects 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government, as specified in Executive Order 13132 
(64 FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This proposed rule also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, USEPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), USEPA has no 
authority to disapprove a SIP submission for failure to use VCS. It 
would thus be inconsistent with applicable law for USEPA, when it 
reviews a SIP submission, to use VCS in place of a SIP submission that 
otherwise satisfies the provisions of the Clean Air Act. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this proposed rule, USEPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. USEPA has 
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by 
examining the takings implications of the rule in accordance with the 
``Attorney General's Supplemental Guidelines for the Evaluation of Risk 
and Avoidance of Unanticipated Takings'' issued under the executive 
order. This rule does not impose an information collection

[[Page 34598]]

burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, 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.

    Authority: 42 U.S.C 7401 et seq.

    Dated: May 8, 2001.
Norman Neidergang,
Acting Regional Administrator, Region 5.
[FR Doc. 01-16437 Filed 6-28-01; 8:45 am]
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