[Federal Register Volume 67, Number 150 (Monday, August 5, 2002)]
[Rules and Regulations]
[Pages 50600-50602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19692]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[OH1521; FRL72553]


Completeness Status of Oxides of Nitrogen Regulations; Submission 
of a Complete Plan by the State of Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; completeness determination.

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SUMMARY: EPA is notifying the public that it has made a finding that 
Ohio's July 11, 2002 submission regarding State Implementation Plan 
(SIP) revisions for the reduction of oxides of nitrogen 
(NOX) is a complete submission under the Clean Air Act. 
Ohio's SIP revision was submitted to satisfy EPA's October 27, 1998 
regulation entitled, ``Finding of Significant Contribution and 
Rulemaking for Certain States in the Ozone Transport Assessment Group 
Region for Purposes of Reducing Regional Transport of Ozone,'' 
otherwise known as the ``NOX SIP Call''. The NOX 
SIP Call originally required 22 states and the District of Columbia to 
submit enforceable SIP measures to control NOX emissions. 
The intended effect of a NOX SIP revision is to reduce 
emissions of NOX in order to help attain the national 
ambient air quality standard for ozone.
    On December 26, 2000, EPA determined that Ohio, along with several 
other states, had failed to submit a SIP in response to the 
NOX SIP Call, thus starting an 18-month clock for the 
mandatory imposition of sanctions and the obligation for EPA to 
promulgate a Federal Implementation Plan (FIP) within 24 months. On 
July 11, 2002, Ohio submitted a NOX SIP and EPA has 
determined that Ohio's SIP submission is complete. Therefore, through 
this rule, EPA is notifying the public that the sanctions clock as it 
pertains to Ohio is terminated.
    This determination is limited to the completeness of Ohio's 
submission and is not an approval of Ohio's plan. A determination as to 
the adequacy of Ohio's plan will be made at a later date and only after 
a thorough review of Ohio's submission by EPA personnel and the 
completion of rule and comment rulemaking.

EFFECTIVE DATE: August 5, 2002.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Engineer, Regulation 
Development Section, Air Programs Branch, Air and Radiation Division 
(AR-18J), U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, Telephone: (312) 886-6084. Copies 
of documents relative to this action are available at the above listed 
contact for inspection during normal business hours. The interested 
persons wanting to examine these documents should make an appointment 
at least 24 hours before the visiting day.

SUPPLEMENTARY INFORMATION:
    The contents of this rule are listed in the following outline:

I. Background
    A. What Criteria are Used to Judge the Submission Complete?
    B. What is the Next Step?
II. What Action is EPA Taking Today?
III. Administrative Requirements

I. Background

    Throughout this document, whenever ``we,'' ``us'' or ``our'' is 
used, we mean EPA.
    This rule is simply an announcement that the NOX SIP 
revision submitted by Ohio to EPA on July 11, 2002 has been found to be 
complete. NOX control plans are required from certain 
states, including Ohio, as a result of EPA's NOX SIP Call 
that found that certain upwind states were significantly contributing 
to ozone transport and preventing east coast states from attaining the 
ambient ozone air quality standard (63 FR 57356, October 27, 1998). 
Sources within states affected by this finding are large emitters of 
NOX which, using available technology, can control 
NOX emissions. These large emitters include coal fired 
electric generating units (EGUs) and industrial boilers (non-EGUs).
    EPA's SIP Call established emission budgets, for all of the listed 
states (including the District of Columbia). Listed states are required 
to demonstrate in their NOX plans that they can meet the EPA 
specified NOX emissions budget. A major feature of the plans 
are allowance trading programs which states, including Ohio, have 
included to provide flexibility for sources to meet the strict emission 
reduction requirements of a state plan.
    After a series of court challenges, the deadline by which most of 
the 22 states and the District of Columbia were required to submit 
NOX SIP revisions was extended to October 30, 2000. See 65 
FR 81366, December 26, 2000 (discussion of legal history surrounding 
EPA's NOX SIP Call). Several states, including the State of 
Ohio, failed to submit NOX plans by the October 2000 
deadline. As a result, EPA published a finding of this failure in the 
Federal Register on December 26, 2000 (65 FR 81366). This finding 
triggered, among

[[Page 50601]]

other things, a mandatory application of sanctions in the ozone non-
attainment areas of states that did not submit a plan. The sanctions 
were scheduled to take effect within 18 months of January 25, 2001, the 
effective date of EPA's December 2000 finding. The triggered sanctions 
included, among other things, the imposition of 2:1 offsets on new 
source construction in ozone non-attainment areas.
    On July 11, 2002, Ohio submitted a NOX plan to EPA. EPA 
has reviewed the plan and has determined that it contains all of the 
required elements for a complete submission. Therefore, EPA is taking 
action to stop the previously scheduled sanctions from taking effect in 
Ohio.

A. What Criteria Are Used To Judge the Submission Complete?

    The criteria by which we determined the submission to be complete 
are outlined in 40 CFR part 51, appendix V, Criteria for Determining 
the Completeness of Plan Submissions. These criteria include: (1) A 
formal letter of submittal from the governor or his designee requesting 
approval; (2) approved rules or regulations noting the dates of 
adoption or effective date of the plan; (3) evidence that the state has 
legal authority to adopt and implement the plan; (4) a copy of the 
regulation or rule; signed, stamped, and dated by the appropriate state 
official; (5) evidence that the procedural requirements of the state 
were followed; (6) evidence of public notice; (7) evidence of public 
hearings; (8) compilation of public comments; (9) inventory of affected 
sources; and (10) a budget demonstration. EPA has determined that the 
State of Ohio's July 11, 2002 submission, contains all of these 
elements.

B. What Is the Next Step?

    EPA is taking the next step to perform a detailed technical review 
of Ohio's rules and budget demonstration to determine if Ohio's plan is 
approvable. EPA intends to publish the results of this review at a 
later date. Ohio has indicated, in its effort to develop a State plan, 
that it wishes to have an approved SIP for the control of 
NOX emissions from affected sources and intends to work 
diligently to that end. EPA, therefore, will continue to work with Ohio 
towards the goal of approving Ohio's plan.

II. What Action Is EPA Taking Today?

    Today, EPA is announcing to the public that Ohio has submitted a 
complete NOX State implementation plan in response to EPA's 
NOX SIP Call, originally published on October 27, 1998 (63 
FR 57356). We are also announcing that all of the potential sanctions, 
some of which were scheduled to take effect on July 25, 2002, in Ohio 
non-attainment areas, will not take effect because we are affirmatively 
determining that Ohio has corrected the original deficiency (failure to 
file a plan) that formed the basis of EPA's December 2000 finding (65 
FR 81366). EPA will take action regarding the approval or disapproval 
of Ohio's submission at a later date.

III. 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 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 finds that a State submission meets Federal requirements and 
imposes no additional requirements. 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.). This rule finds that a State submission is 
complete and as such does not impose any additional enforceable duty, 
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 tribal implications because it will 
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). This action also does not have Federalism 
implications because it does 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). This action merely finds that a state 
submission is complete, 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 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    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. 
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.).
    This document is final agency action but is not subject to notice-
and-comment requirements of the Administrative Procedures Act (APA), 5 
U.S.C. 553(b). The EPA invokes, consistent with past practice (for 
example, 61 FR 36294), the good cause exception pursuant to the APA, 5 
U.S.C. 553(b)(3)(B). The USEPA believes that because of the limited 
time provided to make findings of failure to submit and findings of 
incompleteness regarding SIP submissions or elements of SIP submission 
requirements, Congress did not intend such findings to be subject to 
notice-and-comment rulemaking. Notice and comment are unnecessary 
because no significant EPA judgment is involved in making a 
nonsubstantive findings of a SIP submission or elements of SIP 
submissions required by the CAA. Furthermore, providing notice and 
comment would be impracticable because of the limited time provided 
under the statute for making such determinations. The APA also provides 
that notice and comment may not be necessary where a rule relieves a 
restriction. Finally, notice and comment rulemaking would be contrary 
to the public interest because it would divert agency resources from 
the critical substantive review of complete SIPs. See 58 FR 51270, 
51272, n.17 (October 1, 1993); 59 FR 39832, 39853 (August 4, 1994).
    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).

[[Page 50602]]

    Under the 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 27, 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).)

    Authority: 42 U.S.C. 7401-7671q.

    Dated: July 23, 2002.
Thomas V. Skinner,
Regional Administrator, Region 5.
[FR Doc. 02-19692 Filed 8-2-02; 8:45 am]
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