[Federal Register Volume 69, Number 55 (Monday, March 22, 2004)]
[Rules and Regulations]
[Pages 13231-13234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6303]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH160-1a; FRL-7632-4]


Approval and Promulgation of State Implementation Plans; Ohio; 
Approval of Revision to Oxides of Nitrogen Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This document approves the change to the start date of flow 
control from 2006 to 2005 in the Ohio Oxides of Nitrogen 
(NOX) State Implementation Plan (SIP) Call rule in the Ohio 
Administrative Code (OAC). Flow control is a limitation on the use of 
banked allowances for compliance with the requirement to hold 
allowances which cover emissions from affected units. The limitation 
would apply in the second year of operation of the budget trading 
program. EPA is approving the change in the flow control date submitted 
by Ohio.

DATES: This rule is effective on May 21, 2004, unless EPA receives 
relevant adverse written comments by April 21, 2004. If such adverse 
comment is received, 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: You may obtain a copy of the plan revisions at the address 
below. Please telephone John Paskevicz at (312) 886-6084 if you intend 
to visit the Region 5 office.
    You may inspect copies of the submittal at: Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    Comments may also be submitted electronically or through hand 
delivery/courier, please follow the detailed instructions described in 
subsection (B)(1)(i) through (iii) of the Supplementary Information 
section.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Engineer, Criteria 
Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, Chicago, Illinois 60604. E-Mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: 
    Throughout this document, the terms ``you'' refer to the reader of 
this rule and/or to sources subject to the State rule, and the terms 
``we,'' ``us,'' or ``our'' refers to EPA.
    This SUPPLEMENTARY INFORMATION section is organized as follows:

Table of Contents

I. General Information
II. Background
III. Summary of the State Submittal
    A. What sources are affected by this rule change?
    B. What criterion did EPA use to judge the acceptability of this 
change?
    C. What rule change did Ohio make?
    D. Did the Ohio rule change satisfy the requirement of the 
conditional approval?
    E. What public review opportunities did Ohio provide?
IV. EPA Action
V. Statutory and Executive Order Reviews

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. EPA 
has established an official public rulemaking file for this action 
under ``Region 5 Air Docket OH160.'' The official public file consists 
of the documents specifically referenced in this action, any public 
comments received, and other information related to this action. 
Although a part of the official docket, the public rulemaking file does 
not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The official 
public rulemaking file is the collection of materials that is available 
for public

[[Page 13232]]

viewing at the Air Programs Branch, Air and Radiation Division, EPA 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA 
requests that you contact the contact listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.
    2. Electronic Access. You may access this Federal Register document 
electronically through the regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register and are 
open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public review at the EPA Regional Office, as 
EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on Direct Final rulemaking Region 5 Air Docket OH160'' 
in the subject line on the first page of your comment. Please ensure 
that your comments are submitted within the specified comment period. 
Comments received after the close of the comment period will be marked 
``late.'' EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected]. Please include the text ``Public Comment on Direct 
Final Rulemaking Region 5 Air Docket OH160'' in the subject line. EPA's 
e-mail system is not an ``anonymous access'' system. If you send an e-
mail comment directly without going through Regulations.gov, EPA's e-
mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket.
    ii. Regulations.gov. Your use of Regulations.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to 
Regulations.gov at http://www.regulations.gov then click on the button 
``TO SEARCH FOR REGULATIONS CLICK HERE,'' and select Environmental 
Protection Agency as the Agency name to search on. The list of current 
EPA actions available for comment will be listed. Please follow the 
online instructions for submitting comments. The system is an 
``anonymous access'' system, which means EPA will not know your 
identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments to: J. Elmer Bortzer, Acting Chief, 
Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please 
include the text ``Public comment on Direct Final Rulemaking Regional 
Air Docket OH160'' in the subject line on the first page of your 
comment.
    3. By Hand Delivery or Courier. Deliver your comments to: J. Elmer 
Bortzer, Acting Chief, Air Programs Branch, (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
18th floor, Chicago, Illinois 60604. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection. If you have any questions about CBI or the 
procedures for claiming CBI, please consult the person identified in 
the FOR FURTHER INFORMATION CONTACT section.

II. Background

    On August 5, 2003, EPA gave conditional approval of the Ohio plan 
to control oxides of nitrogen from major sources in the State (68 FR 
46089). The conditional approval requires Ohio to revise the date of 
the start of flow control in OAC rule 3745-14-06 from 2006 to 2005. 
This makes the date consistent with both the requirements in EPA's 
model rule, and also with the start date of flow control for all other 
states subject to the NOX SIP Call. Further information on 
the subject of flow control in the Ohio rule is available in the direct 
final rule at 68 FR 46089, dated August 5, 2003.

III. Summary of the State Submittal

A. What Sources Are Affected by This Rule Change?

    All sources in Ohio subject to the State NOX SIP Call 
rules in OAC

[[Page 13233]]

Chapter 3745-14, are affected by this rule revision.

B. What Criterion Did EPA Use To Judge the Acceptability of This 
Change?

    EPA's Part 51, Requirements for Preparation, Adoption, and 
Submittal of Implementation Plans enumerates the requirements of the 
trading program. Included in these requirements is the date by which 
the trading program is to be fully implemented, and also a date by 
which the provision limiting banked emissions (flow control) is to be 
triggered. These requirements specify that flow control is to be 
implemented in the second year of the trading program, if necessary. 
The requirement for flow control to be implemented in the second year 
is applicable to all States involved in the NOX Budget 
Trading Program. Flow control is a limitation on the use of banked 
allowances for compliance with the requirement to hold allowances which 
cover emissions from affected units. The limitation would apply in the 
second year of operation of the budget trading program. The limitation 
on banked allowances would be applied if the total number of emission 
reduction credits or banked allowances held by a source subject to the 
program exceeds ten percent of the sum of the allowable NOX 
emissions during the ozone season for all sources in the State subject 
to the trading program. 40 CFR 51.121(b)(1)(ii) and (2)(ii)(E).
    At the time of compliance determination for each ozone season, if 
the total number of banked emission reduction credits or emission 
allowances held by a source subject to the trading program exceeds ten 
percent of the source's allowable NOX emissions, the 
source's total banked emission reduction credits used for compliance 
during the ozone season shall be subject to the reduction technique 
described in the Ohio rule. The Ohio NOX trading program 
begins in 2004, so therefore, the second year of the program is 2005. 
EPA conditioned the approval of the Ohio program on the change to the 
flow control date from 2006 to 2005.

C. What Rule Change Did Ohio Make?

    To satisfy the conditional approval of the Ohio NOX 
Budget Trading Program, the State changed the flow control date from 
2006 to 2005, found at OAC 3745-14-06(E)(6). Ohio EPA submitted the 
change as a revision the the SIP on November 26, 2003. This date change 
is the subject of this action.

D. Did the Ohio Rule Change Satisfy the Requirement of the Conditional 
Approval?

    The change in the date for flow control conforms to the requirement 
of the NOX Budget Trading Program provision noted above that 
flow control shall begin, if needed, in the second year of the trading 
program. Ohio satisfied the condition, and we are approving the change 
in this action.

E. What Public Review Opportunities Did Ohio Provide?

    Notice was given and public hearing announced regarding revision to 
OAC rule 3745-14-06, which regulates the NOX allowance 
tracking system. A public hearing was held on September 24, 2003, at 2 
p.m. at Ohio EPA offices in Columbus, Ohio. Interested parties were 
invited to make oral comment and/or provide written comments on the 
rule revision. The rule was also available for review on the Ohio EPA 
Web site. Comments were also invited electronically to an address on 
the Ohio Web site. A transcript of the public hearing was submitted 
with the revised rule package. There were no comments made at the 
public hearing, and there were no comments submitted electronically or 
subsequently in writing.

IV. EPA Action

    EPA is approving the revision submitted by Ohio EPA which changes 
the application of flow control from 2006 to 2005. In the event we 
receive written adverse comment, this direct final rule will be 
withdrawn and all public comments received will be addressed in a 
subsequent final rule based on a proposal published elsewhere in 
today's Federal Register.

V. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    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.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    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).

Regulatory Flexibility Act

    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.).

Unfunded Mandates Reform Act

    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).

Executive Order 13175: Coordination With Indian Tribal Governments

    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).

Executive Order 13132: Federalism

    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 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.

Executive Order 13045: Protection of Children From Environmental Health 
Risks and Safety Risks

    This rule is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997), because it is not economically significant.

National Technology Transfer and Advancement Act

    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

[[Page 13234]]

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.

Paperwork Reduction Act

    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.).

Congressional Review Act

    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). This rule will be effective May 21, 2004.

Petitions for Judicial Review

    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 May 21, 2004. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements.

    Dated: February 19, 2004.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
For the reasons stated in the preamble, part 52, chapter I, title 40 of 
the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart KK--Ohio

0
2. Section 52.1870 is amended by adding paragraph (c)(130) to read as 
follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *
    (130) On November 26, 2003, the Ohio Environmental Protection 
Agency submitted revisions to OAC rule 3745-14-06 (NOX 
Allowance Tracking System) that changes the flow control date to 2005.
    (i) Incorporation by reference.
    (A) Amended OAC rule 3745-14-06. Adopted by the Ohio Environmental 
Protection Agency on November 12, 2003. Effective November 24, 2003.
0
3. Section 52.1876 is added to read as follows:


Sec.  52.1876  Control strategy: Nitrogen dioxide.

    (a) The condition to EPA's approval of the oxides of nitrogen State 
Implementation Plan (SIP) codified at 40 CFR 52.1870(c)(128) is 
satisfied by Ohio's November 26, 2003, submittal of the change to the 
flow control date in the oxides of nitrogen budget trading SIP.
    (b) [Reserved]
[FR Doc. 04-6303 Filed 3-19-04; 8:45 am]
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