[Federal Register Volume 67, Number 35 (Thursday, February 21, 2002)]
[Rules and Regulations]
[Pages 7954-7957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3760]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH118-1a; FRL-7133-8]


Approval and Promulgation of Implementation Plans; OH

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) approves the State 
Implementation Plan (SIP) for New Source Review (NSR) provisions for 
nonattainment areas for the Ohio Environmental Protection Agency 
(OEPA). This action follows up an April 22, 1996 rulemaking action, in 
which EPA proposed to conditionally approve the requested revisions to 
the Ohio Administrative Code (OAC). Since that rulemaking action, OEPA 
has submitted a series of revisions to address problems that were 
preventing full approval and to make other, approvable changes in the 
rules. The rules incorporate the general NSR provisions applying to 
both attainment and nonattainment areas. Other rules incorporate the 
NSR provisions that only apply to nonattainment areas. EPA also 
approves the rules for public notice procedure in a August 10, 1999 SIP 
revision request made by OEPA. These rules apply to air pollution 
construction permits issued under the attainment and nonattainment 
parts of the SIP.

DATES: This rule is effective on April 22, 2002, unless the EPA 
receives relevant adverse written comments by March 25, 2002. If 
adverse comment is received, the 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 should be sent to:
    Pamela Blakley, Chief, Permits and Grants Section (IL/IN/OH), Air 
Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 
5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    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 Kaushal Gupta at (312) 886-6803 or Jorge Acevedo at 
(312) 886-2263 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Kaushal Gupta, Environmental Engineer, 
Permits and Grants Section (IL/IN/OH), Air Programs Branch, (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-6803. For further 
information regarding OEPA's rules for public notice procedure, please 
contact Jorge Acevedo, Environmental Engineer, Permits and Grants 
Section (IL/IN/OH), Air Programs Branch, (AR-18J), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-2263.

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

A. What is the purpose of this document?
B. Who is affected by this action?
C. What is the history of OEPA's NSR program?
D. How are OEPA's NSR rules structured?
E. Are OEPA's NSR general nonattainment rules now approvable?
F. Are OEPA's NSR attainment rules now approvable?
G. Are OEPA's rules for public notice procedure approvable?
H. What comments have the public submitted, and what are EPA's 
responses?
I. What is today's final action?

A. What Is the Purpose of This Document?

    This document is our approval of the SIP revision request that OEPA 
has submitted for its NSR program. In part, this document follows up on 
our April 22, 1996 proposed rulemaking action (61 FR 17669), in which 
we proposed to conditionally approve the SIP for general NSR rules and 
NSR rules for nonattainment areas. In this document, we address a 
series of SIP revisions made by OEPA since our April 22, 1996 proposal 
and explain why those revisions are approvable. We also approve 
additions to the SIP for general NSR language and for public notice 
procedures.

B. Who Is Affected by This Action?

    Because the fully approved NSR program is similar to the program 
that OEPA already operates under delegated

[[Page 7955]]

authority, air pollution sources will generally not be affected by this 
action. Under the additional public notice procedures, however, people 
must file NSR permit appeals with OEPA rather than with the EPA 
Environmental Appeals Board as they have been doing under the delegated 
program.

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

    OEPA submitted its first NSR SIP revision request on January 31, 
1972, and submitted replacement regulations on June 6, 1973. The 
regulations submitted by the State provided requirements, such as best 
available technology, that were meant to be uniformly applied 
throughout the State.
    The Clean Air Act Amendments (CAAA) of 1977, however, required 
States to go further than uniformly applied regulations. The CAAA of 
1977 provided for the designation of areas within a State as 
``attainment'' or ``nonattainment.'' An ``attainment'' area meets the 
National Ambient Air Quality Standards (NAAQS) for one of six criteria 
pollutants: Total suspended particulates, sulfur dioxide, ozone, carbon 
monoxide, nitrogen dioxide and lead. A ``nonattainment'' area does not 
meet the NAAQS for one or more pollutants. The CAAA of 1977 required 
States to adopt more stringent regulations, such as offsets and lowest 
achievable emission rate (LAER), for new pollution sources in 
nonattainment areas.
    OEPA submitted a request to incorporate revised regulations in the 
SIP on October 4, 1982, and January 24, 1993, in order to comply with 
the CAAA of 1977. These revised regulations sought to add the offset 
requirements to the SIP by incorporating Appendix S to Title 40, Part 
51 of the Code of Federal Regulations. We granted only limited approval 
of the revised regulations on September 8, 1993 (58 FR 47214), stating 
that the regulations did not satisfy the nonattainment area planning 
requirements of Title I, Part D of the Clean Air Act (CAA).
    The CAAA of 1990 imposed yet further NSR requirements for 
nonattainment areas. Pursuant to these latter amendments, OEPA 
submitted a request to revise the entire SIP package on August 20, 
1993. We proposed to disapprove the SIP revision request because it was 
not sufficient to satisfy the Part D requirements of the CAA on March 
4, 1994 (59 FR 10349). The final disapproval of the State request was 
published on September 21, 1994 (59 FR 48392).
    OEPA submitted another SIP revision request on March 1, 1996. On 
April 22, 1996 (61 FR 17669), we proposed to conditionally approve the 
general and nonattainment provisions in the SIP. We stated that the 
proposed provisions were deficient for not providing a definition for 
``pollution control project.'' We stated that this deficiency had to be 
corrected in order for the nonattainment provisions to be fully 
approved. OEPA subsequently submitted revisions to its request dated 
March 1, 1996, April 16, 1997, September 5, 1997, December 4, 1997, and 
April 21, 1998. We have not taken formal action on our proposed 
conditional approval of the nonattainment NSR program, nor have we 
previously acted on the subsequent SIP revision requests. The 
subsequent SIP revision requests allow us to fully approve the program 
for reasons described below.
    The CAA requires that the public be given sufficient time to 
comment on a permit before the permit is issued. On August 19, 1999, 
OEPA submitted a request for approval of the incorporation of OAC 3745-
47-01, 3745-47-02, 3745-47-03, 3745-47-05, 3745-47-07, and 3745-47-
08(D) into the SIP.

D. How Are OEPA's NSR Rules Structured?

    Part D of Title I of the CAA requires OEPA to submit a SIP revision 
for NSR rules for nonattainment areas. OEPA submitted this SIP in the 
form of OAC 3745-31-21 to 3745-31-27. These rules were the subject of 
our April 22, 1996 proposed conditional approval. OEPA also submitted 
general NSR provisions applying to both attainment and nonattainment 
areas in the form of OAC 3745-31-01 to 3745-31-10.
    Part C of Title I of the CAA requires public notice procedures for 
attainment areas. 40 CFR 51.165 and 51.166 contain the requirements for 
an NSR permitting program and for the public noticing of permits. OEPA 
satisfied these requirements by submitting OAC 3745-47-01, 3745-47-02, 
3745-47-03, 3745-47-05, 3745-47-07 and 3745-47-08(D).

E. Are OEPA's NSR General and Nonattainment Rules Now Approvable?

    Yes, because OEPA has submitted rules that correct the deficiency 
that had prevented us from fully approving the rules. The January 21, 
1997 submittal introduced a definition for ``pollution control 
project'' at OAC 3745-31-01(TT). OEPA's definition comports with the 
Federal definition at 40 CFR 51.165 (a)(1)(xxv).
    The OEPA submittals subsequent to the March 1, 1996 revision 
request made some other definitional changes that we find approvable. 
The submittals amended or added the definitions for the following terms 
in OAC 3745-31-01 to make the Rule more consistent with 40 CFR 51: 
``Actual emissions,'' ``electric utility steam generating unit,'' 
``major modification,'' ``reactivation of a very clean coal-fired 
electric utility steam generating unit,'' ``repowering,'' and 
``representative actual emissions.'' Because these amendments and 
additions make the Rule more consistent with Federal regulations, we 
find them approvable.
    The submittals amended or added the definitions of the following 
terms to make them clearer or to consolidate the definitions at OAC 
3745-31-01: ``Clean coal technology demonstration project,'' ``major 
modification,'' ``modify'' or ``modification,'' ``net emissions 
increase,'' and ``temporary clean coal technology demonstration 
project.'' Because these amendments and additions clarify and 
reorganize the rule without changing any of the definitions, we find 
them approvable.
    The submittals amended the definition of ``potential to emit'' 
(PTE) at OAC 3745-31-01 in order to allow emission limits that are 
practically and legally enforceable by the State to be used to restrict 
the potential to emit of a source. OEPA has made this clarifying change 
based on the Federal definition of PTE being stricken by the Court 
ruling in National Mining Ass'n v. United States Environmental 
Protection Agency, 59 F.3d 1351 (D.C. Cir. 1995). Because we have not 
reformulated a definition for PTE, and because OEPA's amendment here 
comports with our guidance, we find this requested amendment 
approvable. Future changes to the requested SIP revision's definition 
of PTE may become necessary if we reformulate our PTE policy in the 
future.
    The SIP revision requests amended the definition of ``modify or 
modification'' at OAC 3745-31-01 as it applies to solid waste disposal 
facilities and infectious waste treatment facilities. The definition 
now requires a permit only for modifications that substantially 
increase the limits of solid waste placement horizontally or 
vertically, rather than for modifications that substantially change the 
depth of excavation, finished topography, or total capacity. We find 
this amendment approvable because it will reduce the number of permits 
issued for modifications that have no significant impact on air 
quality. Second, the definition of ``modify or modification'' now 
requires permits for a modification in waste handling, an increase in 
treatment capacity, or any other substantial change of an infectious 
waste treatment facility. Because this

[[Page 7956]]

revision request broadens the scope of the term ``modify or 
modification'' to include substantial changes at infectious waste 
treatment facilities, we find it approvable.

F. Are OEPA's NSR Attainment Rules Now Approvable?

    Yes. OEPA's NSR attainment rules fulfill the requirements of the 
Clean Air Act with three exceptions: OEPA's rules do not include a 25 
tons per year significance level for particulate matter; the 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 reduced sulfur compounds incorrectly exclude hydrogen sulfide. In a 
December 5, 2000, letter seeking comment on rule changes to OAC 3745-
31, OEPA committed to correct the definition of significance in OAC 
3745-31. Because OEPA's rules meet all of the requirements of 40 CFR 
51.165 and 51.166 with these exceptions and OEPA has started the 
process to correct the deficiencies, it is appropriate to finalize the 
conditional approval. The conditional approval provides that if OEPA 
does not submit approvable changes within one year timeframe, we will 
disapprove OEPA's attainment rules.

G. Are OEPA's Rules for Public Notice Procedure Approvable?

    Yes, because they fulfill the public participation requirements 
specified in Part C of Title I of the CAA, 40 CFR 51.165, and 40 CFR 
51.166.

H. What Comments Have the Public Submitted, and What Are EPA's 
Responses?

    In a June 21, 1996 letter, the Ohio Electric Utility Institute 
submitted two formal comments in response to our proposed conditional 
approval of Ohio's NSR program. Below are the comments and our 
responses.
    Comment: ``In [the April 22, 1996 proposed conditional approval 61 
FR 17669], USEPA states that, because of certain definitional 
omissions, ``Ohio has not given electric operating units the additional 
flexibility that the Federal rules would otherwise allow'' (presumably 
under the so-called WEPCO rules, which are incorporated into the 
Federal New Source Review program). USEPA goes on to state: ``On this 
point, the state [requirements are] more stringent than the federal 
requirements and, therefore, are approvable.'' (See pages 17673-17674.) 
Regarding USEPA's contention that OEPA did not intend to incorporate 
the flexibility afforded by the WEPCO rules as part of the Ohio New 
Source Review program, the Utilities have the following two comments.
    ``First, the mere absence of certain federal definitions from the 
submitted New Source Review rules cannot be construed as evidence of 
Ohio EPA's intent to adopt a more stringent federal program. On the 
contrary, Ohio EPA has had a consistent policy of implementing its New 
Source Review program to afford the maximum flexibility provided by 
Federal law. Ohio EPA has implemented its policy of maximum 
flexibility, even though Ohio New Source Review rules did not include 
many specific Federal definitions. For instance, although Ohio EPA 
regulations never specifically provided for a ``netting'' rule in order 
to avoid PSD [Prevention of Significant Deterioration] or nonattainment 
review, Ohio EPA has consistently implemented its New Source Review 
permitting program to allow sources to ``net'' out of PSD or 
nonattainment review. Ohio accomplished this important policy decision 
by relying on other parts of Ohio statutory law and regulatory 
provisions which required Ohio EPA to issue permits in accordance with 
Federal law. This practice of incorporating Federal flexibility ``by 
reference'' into the Ohio air pollution control laws is one that is 
well established in Ohio and well understood by the Region. 
Accordingly, it is inappropriate for USEPA to infer that certain 
definitional omissions reflect an intent by Ohio EPA to be more 
stringent than Federal law. The Utilities suggest that in any final 
action on these rules, USEPA delete any textual material which implies 
or suggests that Ohio EPA did not intend to allow maximum WEPCO 
flexibility.''
    Our response to this comment: EPA's comment in the relevant 
proposed rule deals only with OEPA's rulemaking, and not the State's 
implementation policy. It is in the public interest to note whenever 
Ohio's SIP is more stringent or less stringent than Federal 
requirements. Neither the State's implementation history nor their 
opinion on WEPCO flexibility bear on EPA's evaluation that the SIP 
provisions are acceptable. No inference is made or intended in this 
action regarding OEPA's ``intent.''
    Comment: ``As a second comment, the Utilities note that several 
other commentors (including the Ohio Chamber of Commerce and the Ohio 
Petroleum Council) have suggested that USEPA refrain from any final 
approval of the Ohio New Source Review rules until Ohio EPA is afforded 
time to submit technical conforming amendments to the regulations which 
will clearly and explicitly refer to the WEPCO definitional 
requirements. The Utilities strongly support other Ohio industry groups 
on this point. Because of the vital importance of the WEPCO rule to the 
Utilities in Ohio, USEPA should take no final position that suggests 
such flexibility has been revoked. Rather, USEPA should allow Ohio EPA 
the time to submit the technical amendments necessary to conform the 
Ohio rules to the WEPCO definitions.''
    Our response to this comment: We are obligated to act on OEPA's 
rule submittals as they are received unless OEPA requests a delay in 
action. OEPA has made no such request, nor have they stated any 
intention to submit technical amendments. Therefore, we are acting on 
the request as submitted by the State.

I. What Is Today's Final Action?

    In this rule, EPA approves OEPA's March 1, 1996 request, as amended 
by OEPA's April 16, 1997 request, for additions and revisions to OAC 
3745-31-01 to 3745-31-10, and OAC 3745-31-21 to 3745-31-27. EPA also 
approves OEPA's August 10, 1999 request for additions to OAC 3745-47-
01, 3745-47-02, 3745-47-03, 3745-47-05, 3745-47-07 and 3745-47-08(D).
    EPA is publishing this action without prior proposal because EPA 
views this action as a noncontroversial revision and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the State Plan should 
adverse or critical written comments be filed. This action will be 
effective without further notice unless EPA receives relevant adverse 
written comment by March 25, 2002. Should EPA receive such comments, it 
will publish a final rule 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 April 22, 2002.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
State plan. Each request for revision to a State Plan shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and

[[Page 7957]]

therefore is not subject to review by the Office of Management and 
Budget. For 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 (Pub. L. 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 Clean Air Act. 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 Clean Air Act. 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 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 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. section 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. 
section 804(2). This rule will be effective April 22, 2002.
    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 April 22, 2002. 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).)

V. 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 Oxide, 
Volatile organic compounds.

    Dated: December 6, 2001.
Norman Niedergang,
Acting 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 52.1870 is amended by adding paragraph (c)(126) to read 
as follows:


Sec. 52.1870  Identification of plan.

* * * * *
    (c) * * *
    (126) 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, April 21, 1998, and August 19, 1999.
    (i) Incorporation by reference.
    (A) Ohio Administrative Code Rules 3745-31-01 through 3745-31-03, 
3745-31-05, 3745-31-09, 3745-31-10, 3745-31-21 through 3745-31-27, 
effective April 12, 1996; 3745-31-04 and 3745-31-06, effective 
September 18, 1987; 3745-31-07 and 3745-31-08, effective August 15, 
1982.
    (B) Ohio Administrative Code Rules 3745-47-01, 3745-47-02, 3745-47-
03, 3745-47-05, 3745-47-07 and 3745-47-08 (D), effective June 30, 1981.

[FR Doc. 02-3760 Filed 2-20-02; 8:45 am]
BILLING CODE 6560-50-P