[Federal Register Volume 68, Number 14 (Wednesday, January 22, 2003)]
[Rules and Regulations]
[Pages 2909-2912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1235]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH118-1a; FRL-7428-5]


Approval and Promulgation of Implementation Plans; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving the remaining portions of the Ohio 
Environmental Protection Agency's (OEPA) SIP for Prevention of 
Significant Deterioration (PSD) provisions for attainment areas. EPA 
had previously

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conditionally approved Ohio's prior SIP submission on October 10, 2001. 
Today's final approval is of OEPA's rule revisions submitted in 
response to EPA's July 18, 2002, conditional approval. In its July 2002 
submittal, Ohio also made additional revisions to the OAC that were not 
addressed in EPA's October 10, 2001 conditional approval.
    Recently, EPA announced new regulations regarding changes to the 
preconstruction permit program under EPA's efforts regarding ``New 
Source Review Reform.'' Today's approval of Ohio's SIP submission does 
not address EPA's new rules but is limited to portions of Ohio's 
preconstruction permit program under the existing rules. EPA is taking 
no position today on whether Ohio will need to make changes to its SIP 
to meet any requirements that EPA may promulgate as part of New Source 
Review Reform.

DATES: This rule is effective on March 10, 2003, unless EPA receives 
comments by February 21, 2003. If adverse comment is received, EPA will 
publish a timely withdrawal of the rule in the Federal Register 
informing the public that the rule will not take effect.

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 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 Ohio's PSD Program?
D. How Are OEPA's PSD Rules Structured?
E. Why Are We Granting Approval?
F. How Is This Action Related to EPA's Current Review of Ohio's 
programs?
G. How Is This Action Related to EPA's New Preconstruction Permit 
Program?
H. How Does This Rulemaking Affect EPA's Preconstruction Permit 
Program?

A. What Is the Purpose of This Document?

    We are approving the remaining portions of Ohio's SIP for PSD 
provisions for attainment areas which was conditionally approved by EPA 
on October 10, 2001 (66 FR 51570).

B. Who Is Affected by This Action?

    The PSD program applies to facilities constructing major sources of 
air pollution. Since the PSD program that we are approving today is 
similar to the conditionally approved PSD program that OEPA currently 
operates, these facilities will generally not be affected by EPA's 
approval of these changes to Ohio's PSD SIP.

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 Amendments of 1977 (Amendments) 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 national ambient 
air quality standards (NAAQS). A ``nonattainment'' area does not meet 
the NAAQS.
    OEPA requested delegation of the federal PSD attainment 
preconstruction 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 
as its construction permit program. 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 was 
conditionally approved on October 10, 2001 (66 FR 51570). On July 18, 
2002, OEPA submitted revisions to OAC 3754-31. Today we are acting on 
those revisions by approving them.

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.

E. Why Are We Granting Approval?

    The October 10, 2001, conditional approval required OAC section 
3745-31-01(OOO) to include a 25 tons per year significance level for 
particulate matter, and 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 reduced sulfur 
compounds must be defined to include hydrogen sulfide. The OAC now 
reflects these requirements.
    Ohio also made additional revisions to OAC 3745-31-01, -02, -03, -
05, and -07 that were not reflected in the October 10, 2001 conditional 
approval. The July 18, 2002 SIP submittal from Ohio incorporated 
definitions for municipal solid waste landfill, non-methane organic 
compound, non-road engine, reduced sulfur compound, soil-liquid 
extraction remediation activities, soil-vapor extraction remediation 
activities and total reduced sulfur in OAC 3745-31-01. We find the 
additional definitions to be acceptable in the context of Ohio's permit 
to install program.
    Ohio added regulatory language in OAC 3745-31-02(A)(1) that 
requires the transferee of any permit to install to assume the 
responsibilities of the original permit. The permittee must also notify 
OEPA of the transfer. EPA finds these changes to the rule acceptable.
    The SIP submittal adds permanent exemptions in OAC 3745-31-03 for 
non-road engines, crushing and screening plants that are exempt from 40 
CFR part 60, subpart OOO, soil-vapor and soil-liquid extraction 
remediation activities. The exemption for a permit to install for non-
road engines that has been added to the rule builds upon the exemption 
from the previously approved definition of stationary source in 3745-
31-01. This exemption is consistent with section 216 of the Clean Air 
Act. The rule further clarifies that these units are not exempt from 
the permit to install program if the opacity is greater than twenty 
percent. The exemption for a permit to install that has been added for 
crushing and screening plants is consistent with the 40 CFR part 60, 
subpart OOO exemptions. The exemption for a permit to install for soil-
vapor and soil-liquid remediation activities is limited to

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activities that have total combined emission rates less than 15 pounds 
of organic compounds per day and last no longer than 18 months. EPA 
finds that the sources exempted by this rule will not have a 
significant impact on air quality. EPA therefore finds this rule 
acceptable.
    OAC 3745-31-07 has been amended to allow the Director of OEPA to 
revoke a permit to install if the permittee requests revocation for 
cause and the Director determines that the revocation will not result 
in the violation of any applicable laws. EPA finds this rule 
acceptable.
    The rule also makes non-substantive administrative changes to 3745-
31-01, 3745-31-03(A)(1)(p) and (ee), 3745-31-03(A)(4) and (4)(a), 3745-
31-05(A)(2)(d) and (A)(3), and 3745-31-05(E)(3). EPA finds these 
changes to the rule acceptable.

F. How Is This Action Related to EPA's Current Review of Ohio's 
Programs?

    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 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. No particular findings or conclusions in or from the EPA 
petition review should be inferred from today's approval.

G. How Is This Action Related to EPA's New Preconstruction Permit 
Program?

    Recently, EPA announced new regulations regarding changes to the 
preconstruction permit program under EPA's efforts regarding ``New 
Source Review Reform.'' See http://www.epa.gov/nsr/. Today's approval 
of Ohio's SIP submission does not address EPA's new rules but is 
limited to portions of Ohio's preconstruction permit program under the 
existing rules. EPA is taking no position today on whether Ohio will 
need to make changes to its SIP to meet any requirements that EPA may 
promulgate as part of New Source Review Reform.

H. How Does This Rulemaking Affect EPA's Preconstruction Permit 
Program?

    In addition, while EPA is approving Ohio's PSD SIP, EPA recognizes 
that it has a responsibility to insure that all States properly 
implement their preconstruction permitting programs. EPA's approval of 
Ohio's PSD program does not divest the Agency of the duty to continue 
appropriate oversight to insure that PSD determinations made by Ohio 
are consistent with the requirements of the CAA, EPA regulations, and 
the SIP.
    EPA's authority to oversee PSD program implementation is set forth 
in sections 113, 167, and 505(b) of the Act. For example, section 167 
provides that EPA shall issue administrative orders, initiate civil 
actions, or take whatever other enforcement action may be necessary to 
prevent construction of a major stationary source that does not 
``conform to the requirements of'' the PSD program. Similarly, section 
113(a)(5) provides for administrative orders and civil actions whenever 
EPA finds that a State ``is not acting in compliance with'' any 
requirement or prohibition of the Act regarding construction of new or 
modified sources. Likewise, section 113(a)(1) provides for a range of 
enforcement remedies whenever EPA finds that a person is in violation 
of an applicable implementation plan.
    Enactment of Title V of the CAA and the EPA objection opportunity 
provided therein has added new tools for addressing deficient new 
source review decisions by states. Section 505(b) requires EPA to 
object to the issuance of a permit issued pursuant to Title V whenever 
the Administrator finds during the applicable review period, either on 
her own initiative or in response to a citizen petition, that the 
permit is ``not in compliance with the requirements of an applicable 
requirement of this Act, including the requirements of an applicable 
implementation plan.''
    Regardless of whether EPA addresses deficient permits using 
objection authorities or enforcement authorities or both, EPA cannot 
intervene unless the state decision fails to comply with applicable 
requirements. Thus, EPA may not intrude upon the significant discretion 
granted to states under new source review programs, and will not 
``second guess'' state decisions. Rather, in determining whether a 
Title V permit incorporating PSD provisions calls for EPA objection 
under section 505(b) or use of enforcement authorities under sections 
113 and 167, EPA will consider whether the applicable substantive and 
procedural requirements for public review and development of supporting 
documentation were followed. In particular, EPA will review the process 
followed by the permitting authority in determining best available 
control technology, assessing air quality impacts, meeting Class I area 
requirements, and other PSD requirements, to ensure that the required 
SIP procedures (including public participation and Federal Land Manager 
consultation opportunities) were met. EPA will also review whether any 
determination by the permitting authority was made on reasonable 
grounds properly supported on the record, described in enforceable 
terms, and consistent with all applicable requirements. Finally, EPA 
will review whether the terms of the PSD permit were properly 
incorporated into the operating permit.

EPA Action

    In this rulemaking action, we are approving the sections addressed 
above as a revision to the Ohio SIP for PSD. The sections discussed in 
this notice were conditionally approved on October 10, 2001, and EPA is 
approving them based on the State's July 18, 2002 submittal.
    EPA is publishing this rule without prior proposal because EPA 
views this as a noncontroversial revision and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, the EPA is proposing to approve the State Plan should 
adverse written comments be filed. This rule will be effective without 
further notice unless the Agency receives relevant adverse written 
comment by February 21, 2003. Should the Agency 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 March 10, 2003.

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 regulation as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by the State. Accordingly, the Administrator 
certifies that this proposed rule will not have a significant economic 
impact on a substantial

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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 
(Public Law 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, 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 proposed 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
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: December 13, 2002.
Bharat Mathur,
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)(127) to read 
as follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *
    (127) On July 18, 2002, Ohio submitted revisions to its Permit to 
Install rules as a revision to the State implementation plan.
    (i) Incorporation by reference.
    (A) Ohio Administrative Code Rules 3745-31-01, 3745-31-02, 3745-31-
03, 3745-31-05, and 3745-31-07 effective November 30, 2001.
[FR Doc. 03-1235 Filed 1-21-03; 8:45 am]
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