[Federal Register Volume 66, Number 196 (Wednesday, October 10, 2001)]
[Rules and Regulations]
[Pages 51570-51572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25260]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH118-2; FRL-7062-5]


Conditional Approval Implementation Plans; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is conditionally approving the Ohio Environmental 
Protection Agency's (OEPA) State Implementation Plan (SIP) for 
Prevention of Significant Deterioration (PSD) provisions for attainment 
areas based on the State's December 5, 2000, letter of commitment to 
submit the needed changes to its program within one year of the final 
conditional approval.
    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.

EFFECTIVE DATE: This final rule is effective October 10, 2001.

ADDRESSES: Materials relevant to this rulemaking are available for 
inspection at the following address: 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.

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 Ohio's PSD program?
    D. How are OEPA's PSD rules structured?
    E. Why are we granting a conditional approval?
    F. How can this conditional approval become fully approved?
    G. What are the ramifications for not submitting the necessary 
changes?

A. What Is the Purpose of This Document?

    We are conditionally approving Ohio's PSD program into the SIP. The 
public comment period for the June 29, 2001, notice of proposed 
rulemaking closed on July 30, 2001. One comment was received in favor 
of the conditional approval action. If Ohio fails to timely submit the 
materials discussed above within one year of EPA's final conditional 
approval, the final conditional approval will automatically convert to 
a disapproval.

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, persons wishing to appeal PSD permits will have to file their 
appeals with OEPA under the SIP-approved program, rather than with 
EPA'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 EPA 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 (CAA) 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.

[[Page 51571]]

    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 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.

E. Why Are we Granting a Conditional Approval?

    We are granting 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, EPA can 
grant final approval to these rules.
    EPA 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 EPA 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 granting conditional approval. No particular findings or 
conclusions in or from the EPA petition review should be inferred from 
today's conditional

F. 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, EPA will disapprove 
Ohio's PSD program. Until Ohio's program is finally approved, 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 EPA otherwise addresses the 
delegation after the review of Ohio's implementation of the PSD program 
pursuant to the petition discussed above).

G. What Are the Ramifications for Not Submitting the Necessary 
Changes?

    If OEPA fails to submit the necessary rule changes to us, final 
conditional approval will automatically convert to a disapproval. We 
will notify the State by letter to this effect. Once the SIP has been 
disapproved, these commitments will no longer be a part of the approved 
SIP. We will subsequently publish a notice to this effect in the notice 
section of the Federal Register indicating that the commitment or 
commitments have been disapproved and removed from the SIP. If OEPA 
adopts and submits the final rule amendments to EPA within the 
applicable time frame, the conditionally approved commitments will 
remain part of the SIP until the EPA takes final action approving or 
disapproving the new submittal, those newly approved rules will become 
part of the SIP.
    If after considering the comments on the subsequent submittal, we 
issue a final disapproval, the sanctions clock under 179(a) will begin. 
If OEPA does not submit and we do not approve the rule on which any 
disapproval is based within 18 months of the disapproval, we must 
impose one of the sanctions under section 179(b)-highway funding 
restrictions or the offset sanction. In addition, any final disapproval 
would start the 24 month clock for the imposition of section 110(c) 
Federal Implementation Plan. Finally, under section 110(m) the EPA has 
discretionary authority to impose sanctions at any time after final 
disapproval.
    We find that this is good cause for this final conditional approval 
to become effective immediately upon publication because a delayed 
effective date is unnecessary due to the nature of a conditional 
approval, which requires that the State make certain submittals within 
one year of the final conditional approval. Any delay in the effective 
date of this conditional approval further delays the compliance date by 
which the State has to submit the rule changes committed to in this 
document.

EPA Action

    In this rulemaking action, we grant 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 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For

[[Page 51572]]

this reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 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 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 approves 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 (Public Law 104-4). This rule also does not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it 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 CAA. This 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, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. 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 
rule, EPA has taken the necessary steps to eliminate drafting errors 
and ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA 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 burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.
    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 the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the 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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 10, 2001. 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, Carbon monoxide, 
hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: September 5, 2001.
Thomas V. Skinner,
Regional Administrator, Region 5.

    For the reasons stated in the preamble, part 52, chapter I 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 52.1919 is amended by adding paragraph(a)(4) to read as 
follows:


Sec. 52.1919  Identification of plan-conditional approval.

* * * * *
    (a) * * *
    (4) On March 1, 1996, Ohio submitted revisions to its Permit to 
Install rules as a revision to the State implementation plan. The 
request was supplemented on April 16, 1997, September 5, 1997, December 
4, 1997, and April 21, 1998.
    (i) Incorporation by reference.
    (A) Rule 3745-31-01 through 3745-31-20, effective September 25, 
1998.

[FR Doc. 01-25260 Filed 10-9-01; 8:45 am]
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