[Federal Register Volume 70, Number 90 (Wednesday, May 11, 2005)]
[Proposed Rules]
[Pages 24734-24740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9403]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R05-OAR-2004-OH-0004; FRL-7910-5]


Approval and Promulgation of Implementation Plans; Ohio New 
Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to conditionally approve revisions to the 
prevention of significant deterioration (PSD) and nonattainment new 
source review (NSR) construction permit programs submitted by the Ohio 
Environmental Protection Agency (OEPA). EPA fully approved Ohio's 
nonattainment NSR program on January 10, 2003. EPA fully approved 
Ohio's PSD program on January 22, 2003, which became effective on March 
10, 2003.
    On December 31, 2002, EPA published revisions to the Federal PSD 
and NSR regulations. These revisions are commonly referred to as ``NSR 
Reform'' regulations and became effective on March 3, 2003. These 
regulatory revisions include provisions for baseline emissions 
determinations, actual-to-future actual methodology, plantwide 
applicability limits (PALs), clean units, and pollution control 
projects (PCPs). The OEPA is seeking approval of rules to implement 
these NSR Reform provisions in Ohio.

DATES: Comments must be received on or before June 10, 2005. EPA will 
address the public comments in a subsequent final rule based on this 
proposed rule.

ADDRESSES: Submit comments, identified by Regional Material in EDocket 
(RME) ID No. R05-OAR-2004-OH-0004, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    Agency Web site: http://docket.epa.gov/rmepub/. RME, EPA's 
electronic public docket and comments system, is EPA's preferred method 
for receiving comments. Once in the system, select ``quick search,'' 
then key in the appropriate RME Docket identification number. Follow 
the on-line instructions for submitting comments.
    E-mail: [email protected].
    Fax: (312) 886-5824.
    Mail: You may send written comments to:
    Pamela Blakley, Chief, Air Permits Section, (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    Hand delivery: Deliver your comments to: Pamela Blakley, Chief, Air 
Permits Section, (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 a.m. to 4:30 p.m. excluding Federal 
holidays.
    Instructions: Direct your comments to RME ID No. R05-OAR-2004-OH-
0004. EPA's policy is that all comments received will be included in 
the public docket without change, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov, 
or e-mail. The EPA RME Web site and the Federal regulations.gov Web 
site are ``anonymous access'' systems, which means EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA

[[Page 24735]]

recommends that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. 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. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses. For 
additional instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the electronic docket are listed in the 
RME index at http://docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Publicly 
available docket materials are available either electronically in RME 
or in hard copy at Environmental Protection Agency, Region 5, Air and 
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
We recommend that you telephone Genevieve Damico, Environmental 
Engineer, at (312) 353-4761 before visiting the Region 5 office. The 
Regional Office's official hours of business are Monday through Friday, 
8:30 a.m. to 4:30 p.m. excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Genevieve Damico, Air Permits Section 
(AR-18J), U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois, 60604, Telephone Number: (312) 353-4761, 
E-Mail Address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of this document and other related 
information?
    C. How and to whom do I submit comments?
II. Program Review
    A. What is being addressed in this document?
    B. What are the program changes that EPA is approving?
III. Conditional Approval
    A. Why are we proposing to conditionally approve Ohio's rules?
    B. How can this conditional approval become fully approved?
    C. What are the ramifications for not submitting the necessary 
changes?
IV. What Action is EPA Taking Today?
V. Statutory and Executive Order Reviews

I. General Information

A. Does this action apply to me?

    This action applies to air pollution sources which are subject to 
Ohio's permit to install regulations in OAC 3745-31.

B. How can I get copies of this document and other related information 
?

    1. The EPA Regional Office has established an electronic public 
rulemaking file available for inspection at RME under ID No. R05-OAR-
2004-OH-0004, and a hard copy file which is available for inspection at 
the Regional Office. 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 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 viewing at the Air Programs Branch, Air and 
Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. EPA requests that, if at all possible, you contact the 
person 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 a.m. to 4:30 p.m. 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, the 
Government's legal newspaper, and that 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 viewing 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.

C. 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 proposed rulemaking Region 5 Air Docket R05-OAR-
2004-OH-0004'' 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.

II. Program Review

A. What is being addressed in this document?

    As stated in the December 31, 2002, EPA ``NSR Reform'' rulemaking, 
State and local permitting agencies must adopt and submit revisions to 
their part 51 permitting programs implementing the minimum program 
elements of that rulemaking no later than January 2, 2006 (67 FR 
80240). With this submittal, Ohio requests approval of program 
revisions to satisfy this requirement.
    The OEPA submitted these regulatory revisions to EPA for parallel 
processing on September 14, 2004, which was prior to final adoption of 
the State rules. Ohio adopted the final rules on October 28, 2004.

B. What are the program changes that EPA is approving?

Ohio Administrative Code (OAC) 3745-31-01 Definitions

3745-31-01(A)
    Ohio has incorporated the definitions codified in OAC 3745-21-01 to 
apply in OAC 3745-31 of the new rules. EPA proposes to approve these 
changes.
Actual Emissions
    Ohio has revised the definition of ``actual emissions'' in OAC 
3745-31-01(C) to add the term ``regulated NSR pollutant'' (see 
definition below), to revise the language to specify the time frame as 
a ``consecutive twenty-four (24) month period,'' and to add language 
stating that this definition does not apply for calculating a 
significant emissions increase or for establishing a Plantwide 
Applicability Limit (PAL). Ohio also revised the rule language to 
require that electric utility steam generating unit actual emissions 
are to be based on potential to emit rather than representative actual 
annual emissions. The revised definition of ``actual

[[Page 24736]]

emissions'' is consistent with the definition in 40 CFR 51.166(b)(21) 
and 40 CFR 51.165(a)(1)(xii), therefore we propose to approve this 
definition.
Actuals PAL
    Ohio has established the definition of ``actuals PAL'' in OAC 3745-
31-01(D). This definition is consistent with the definition of ``clean 
unit'' in 40 CFR 51.166(w)(2)(i) and 40 CFR 51.165(f)(2)(i), therefore 
we propose to approve this definition.
Baseline Actual Emissions
    Ohio has added a definition in OAC 3745-31-01 (O) to establish the 
baseline actual emissions for any existing electric utility steam 
generating unit to be the average rate at which the unit actually 
emitted the pollutant during any consecutive 24-month period within the 
5-year period immediately preceding when the owner or operator begins 
actual construction of the project. This definition also establishes 
the baseline actual emissions for any existing emission unit other than 
an electric utility steam generating unit to be the average rate at 
which the unit actually emitted the pollutant during any consecutive 
24-month period within the 10-year period immediately preceding either 
the date when the owner or operator beings actual construction of the 
project or the date a complete permit application is received by the 
permitting authority for a permit required by this rule. This 
definition establishes a zero baseline for actual emissions for a new 
emissions unit for purposes of determining the emissions increase that 
will result from the initial construction and operation of the unit. 
Thereafter, for all other purposes, the baseline actual emissions shall 
equal the unit's potential to emit. Finally, this definition also 
establishes the baseline actual emissions for a PAL. This definition is 
consistent with the definition in 40 CFR 51.166(b)(47) and 40 CFR 
51.165(a)(1)(xxxv), therefore we propose to approve this definition.
Baseline Concentration
    Ohio has modified the definition of ``baseline concentration'' in 
OAC 3745-31-01(Q). The definition now follows the language of 40 CFR 
51.166(b)(13), therefore we propose to approve this definition.
Best Available Control Technology
    Ohio has modified the definition of ``best available control 
technology'' in OAC 3745-31-01(S). The language ``maximum degree of 
reduction for each air pollutant subject to regulation under the 
provisions of the CAA'' has been replaced with ``maximum degree of 
reduction for each regulated NSR pollutant''. This definition is 
consistent with the definition in 40 CFR 51.166(b)(12)) and 40 CFR 
51.165(a)(1)(xl), therefore we propose to approve this definition.
Clean Unit
    Ohio has established the definition of ``clean unit'' in OAC 3745-
31-01(Y). This definition is consistent with the definition of ``clean 
unit'' in 40 CFR 51.166(b)(41) and 40 CFR 51.165(a)(1)(xxix), therefore 
we propose to approve this definition.
Continuous Emissions Monitoring System
    Ohio has established the definition of ``continuous emissions 
monitoring system'' in OAC 3745-31-01(EE). This is consistent with the 
definition of ``continuous emissions monitoring system'' in 40 CFR 
51.166(b)(43) and 40 CFR 51.165(a)(1)(xxxi), therefore we propose to 
approve this definition.
Continuous Emissions Rate Monitoring System (CERMS)
    Ohio has established the definition of ``continuous emissions rate 
monitoring system'' in OAC 3745-31-01(FF). This is consistent with the 
definition of ``continuous emissions rate monitoring system'' in 40 CFR 
51.166(b)(46) and 40 CFR 51.165(a)(1)(xxxiv), therefore we propose to 
approve this definition.
Continuous Parameter Monitoring System (CPMS)
    Ohio has established the definition of ``continuous parameter 
monitoring system'' in OAC 3745-31-01(GG). This is consistent with the 
definition of ``continuous parameter monitoring system'' in 40 CFR 
51.166(b)(45)) and 40 CFR 51.165(a)(1)(xxxiii), therefore we propose to 
approve this definition.
Emissions Unit
    Ohio has modified the definition of ``emissions unit'' in OAC 3745-
31-01(MM). This definition is consistent with the definition of 
``emissions unit'' in 40 CFR 51.166(b)(7) and 40 CFR 51.165(a)(1)(vii), 
therefore we propose to approve this definition.
Lowest Achievable Emission Rate (LAER)
    Ohio has modified the definition of ``lowest achievable emission 
rate'' in OAC 3745-31-01(FFF) by replacing ``stationary source'' with 
``emissions unit'' in the definition from 40 CFR 51.165(a)(1)(xiii). 
OEPA believes that the term emissions unit is more appropriate than the 
term stationary source because LAER universally applies at the 
emissions unit level. OEPA believes that LAER must be determined at the 
emissions unit level so that similar technologies can be reviewed. OEPA 
also believes that establishing LAER at the stationary source level may 
cause overlooking of the fact that a subpart of the stationary source 
(an emissions unit) may be able to emit at a lower level, even though 
the stationary source may appear to meet LAER.
    This change is consistent with the federal program concerning clean 
units and PALs where LAER requirements apply. In those instances, LAER 
is applied at the emissions unit level. Ohio's change eliminates a dual 
definition of ``stationary source'' and makes clear that LAER is to be 
determined at the emissions unit. EPA proposes to approve this 
definition of LAER.
Major Modification
    Ohio has modified the definition of ``major modification'' in OAC 
3745-31-01(III) to add provisions regarding PCPs and PALs. This 
modification is consistent with 40 CFR 51.166(a)(7) and (b)(2) and 40 
CFR 51.165(a)(1)(v), therefore we propose to approve this definition.
Major Source Baseline Date
    Ohio has established the definition of ``Major Source Baseline 
Date'' in OAC 3745-31-01(JJJ). This is consistent with the definition 
in 40 CFR 51.166(b)(14), therefore we propose to approve this 
definition.
Major Stationary Source
    Ohio has modified the definition of ``major stationary source'' in 
OAC 3745-31-01(KKK) to replace the phrase ``air pollutant subject to 
regulation under the Clean Air Act including lead compounds but 
excluding other air pollutants regulated due to being listed under 
section 112 of the Clean Air Act'' with ``regulated NSR pollutant.'' 
These modifications are consistent with the definition in 40 CFR 
51.166(b)(1) and 40 CFR 51.165(a)(1)(iv), therefore we propose to 
approve this definition.
Minor Source Baseline
    Ohio has established the definition of ``Major Source Baseline 
Date'' in OAC 3745-31-01(NNN). This is consistent with the definition 
in 40 CFR 51.166(b)(14), therefore we propose to approve this 
definition.
Net Emissions Increase
    Ohio has modified the definition of ``net emissions increase'' in 
OAC 3745-

[[Page 24737]]

31-01(RRR) to add provisions regarding clean units and PCPs and other 
minor wording changes. These modifications are consistent with the 
definition in 40 CFR 51.166(b)(3) and 40 CFR 51.165(a)(1)(vi), 
therefore we propose to approve this definition.
New Source Review Project
    Ohio has established the definition of ``new source review 
project'' in OAC 3745-31-01(UUU). This is consistent with the 
definition in 40 CFR 51.165(a)(1)(xxxix) and 40 CFR 51.166(a)(51), 
therefore we propose to approve this definition.
Nonattainment or Nonattainment Area
    Ohio has established the definition of ``nonattainment or 
nonattainment area'' in OAC 3745-31-01(VVV). This is consistent with 
the requirements in 40 CFR 51.165(a)(2)(i), therefore we propose to 
approve this definition.
Nonattainment New Source Review Permit
    Ohio has established the definition of ``nonattainment new source 
review permit'' in OAC 3745-31-01(WWW). This is consistent with the 
definition in 40 CFR 51.165(a)(1)(xxx), therefore we propose to approve 
this definition.
PAL Allowable Emissions
    Ohio has established the definition of ``PAL allowable emissions'' 
in OAC 3745-31-01(CCCC). This is consistent with the definition in 40 
CFR 51.166(w)(2)(ii) and 40 CFR 51.165(f)(2)(ii), therefore we propose 
to approve this definition.
PAL Effective Date
    Ohio has established the definition of ``PAL effective date'' in 
OAC 3745-31-01(DDDD). This is consistent with the definition in 40 CFR 
51.166(w)(2)(vi) and 40 CFR 51.165(f)(2)(vi), therefore we propose to 
approve this definition.
PAL Effective Period
    Ohio has established the definition of ``PAL effective date'' in 
OAC 3745-31-01(EEEE). This is consistent with the definition in 40 CFR 
51.166(w)(2)(vii) and 40 CFR 51.165(f)(2)(vii), therefore we propose to 
approve this definition.
PAL Major Emissions Unit
    Ohio has established the definition of ``plantwide applicability 
limit'' in OAC 3745-31-01(FFFF). This is consistent with the definition 
in 40 CFR 51.166(w)(2)(iv) and 40 CFR 51.165(f)(2)(iv), therefore we 
propose to approve this definition.
PAL Major Modification
    Ohio has established the definition of ``PAL major modification'' 
in OAC 3745-31-01(GGGG). This is consistent with the definition in 40 
CFR 51.166(w)(2)(viii) and 40 CFR 51.165(f)(2)(viii), therefore we 
propose to approve this definition.
PAL Permit
    Ohio has established the definition of ``PAL permit'' in OAC 3745-
31-01(HHHH). This is consistent with the definition in 40 CFR 
51.166(w)(2)(ix) and 40 CFR 51.165(f)(2)(ix), therefore we propose to 
approve this definition.
PAL Pollutant
    Ohio has established the definition of ``PAL pollutant'' in OAC 
3745-31-01(IIII). This is consistent with the definition in 40 CFR 
51.166(w)(2)(x) and 40 CFR 51.165(f)(2)(x), therefore we propose to 
approve this definition.
PAL Significant Emissions Unit
    Ohio has established the definition of ``PAL significant emissions 
unit'' in OAC 3745-31-01(JJJJ). This is consistent with the definition 
in 40 CFR 51.166(w)(2)(xi) and 40 CFR 51.165(f)(2)(xi), therefore we 
propose to approve this definition.
PAL Small Emissions Unit
    Ohio has established the definition of ``PAL small emissions unit'' 
in OAC 3745-31-01(KKKK). This is consistent with the definition in 40 
CFR 51.166(w)(2)(iii) and 40 CFR 51.165(f)(2)(iii), therefore we 
propose to approve this definition.
Particulate Matter and Particulate Matter Emissions
    Ohio referred to the definitions for particulate matter and 
particulate matter emissions from OAC 3745-17-01 which is already 
approved by EPA.
Plantwide Applicability Limit (PAL)
    Ohio has established the definition of ``plantwide applicability 
limit'' in OAC 3745-31-01(OOOO). This is consistent with the definition 
in 40 CFR 51.166(w)(2)(v) and 40 CFR 51.165(f)(2)(v), therefore we 
propose to approve this definition.
PM10, PM10 Emissions, Total Suspended Particulate
    Ohio has established the definitions of ``PM10'', 
``PM10 emissions'' and ``total suspended particulate'' in 
OAC 3745-31-01(PPPP), (QQQQ), and (UUUUU). These definitions are 
consistent with 40 CFR 50 and 51, therefore we propose to approve these 
definitions.
Pollution Control Project (PCP)
    Ohio has modified the definition of ``pollution control project'' 
in OAC 3745-31-01(RRRR). This is consistent with the definition in 40 
CFR 51.166(b)(31) and 40 CFR 51.165(a)(1)(xxv), therefore we propose to 
approve this definition.
Pollution Prevention
    Ohio has established the definition of ``pollution prevention'' in 
OAC 3745-31-01(SSSS). This is consistent with the definition in 40 CFR 
51.166(b)(38)) and 40 CFR 51.165(a)(1)(xxvi), therefore we propose to 
approve this definition.
Predictive Emissions Monitoring System (PEMS)
    Ohio has established the definition of ``predictive emissions 
monitoring system'' in OAC 3745-31-01(SSSS). This is consistent with 
the definition in 40 CFR 51.166(b)(44) and 40 CFR 51.165(a)(1)(xxxii), 
therefore we propose to approve this definition.
Prevention of Significant Deterioration Increment
    Ohio has established the definition of ``prevention of significant 
deterioration increment'' in OAC 3745-31-01(WWWW). This is consistent 
with the definition in 40 CFR 51.166(c), therefore we propose to 
approve this definition.
Prevention of Significant Deterioration Permit
    Ohio has established the definition of ``prevention of significant 
deterioration permit'' in OAC 3745-31-01(XXXX). This is consistent with 
the definition in 40 CFR 51.166(b)(42) and 40 CFR 51.165(a)(1)(xli), 
therefore we propose to approve this definition.
Projected Actual Emissions
    Ohio has established the definition of ``projected actual 
emissions'' in OAC 3745-31-01(ZZZZ). This is consistent with the 
definition in 40 CFR 51.166(b)(40) and 40 CFR 51.165(a)(1)(xxviii), 
therefore we propose to approve this definition.
Regulated NSR Pollutant
    Ohio has established the definition of ``regulated NSR pollutant'' 
in OAC 3745-31-01(DDDDD). This definition is consistent with the 
definition in 40 CFR 51.166(b)(49) and 40 CFR 51.165(a)(1)(xxxvii), 
therefore we propose to approve this definition.
Replacement Unit
    Ohio has established the definition of ``replacement unit'' in OAC 
3745-31-01(EEEEE). This definition is consistent with the definition in 
40 CFR

[[Page 24738]]

51.166(b)(32) and 40 CFR 51.165(a)(1)(xxi), therefore we propose to 
approve this definition.
Representative Actual Annual Emissions
    Ohio has deleted this definition. It is not required by the federal 
program.
Significant
    Ohio has modified the definition of ``significant'' in OAC 3745-31-
01(KKKKK) to change the phrase ``an air pollutant subject to regulation 
under the Clean Air Act'' to ``a regulated NSR pollutant.'' This 
definition has also been modified to remove the reference to pollutants 
listed in section 112(b) of the Clean Air Act because section 112(b) 
pollutants are exempt from NSR. These changes are consistent with the 
definition in 40 CFR 51.166(b)(23) and 40 CFR 51.165(a)(1)(x), 
therefore we propose to approve this definition.
Significant Emissions Increase
    Ohio has established the definition of ``significant emissions 
increase'' in OAC 3745-31-01(LLLLL). This is consistent with the 
definition in 40 CFR 51.166(b)(39) and 40 CFR 51.165(a)(1)(xxvii), 
therefore we propose to approve this definition.
Stationary Source
    Ohio has modified the definition of ``stationary source'' in 326 
IAC 2-2-1(zz) to change the phrase ``pollutant subject to regulation 
under the CAA'' to ``regulated NSR pollutant.'' This change is 
consistent with the definition in 40 CFR 51.166(b)(5) and 40 CFR 
51.165(a)(1)(i), therefore we propose to approve this definition.
Non-40 CFR 51.166 and 51.165 Definitions
OAC 3745-31-01 (E), (J), (M), (X), (JJ), (QQ), (DDD), (EEE), (XXX), 
(HHHHH), and (XXXXX)
    These definitions are associated with future changes to OAC 3745-
31-03 relating to Ohio's minor source permitting program. EPA proposes 
to approve these definitions.
Minor Revisions to Definitions
    Ohio has made changes to the definitions of ``available 
information,'' ``baseline area,'' ``baseline concentration,'' ``best 
available technology,'' ``Clean Air Act,'' ``Clean Coal Technology,'' 
``Clean Coal Technology Demonstration Project,'' ``Construction,'' 
``facility,'' ``non-methane organic compound,'' ``Non-road engine,'' 
and ``Temporary clean coal demonstration project,'' that are 
grammatical in nature and do not change the substance of the 
definition, therefore we propose to approve this definition.
Incorporation by Reference
    Ohio has added the Aerometric Information Retrieval System, 
California Air Resources Board, Chemical Abstract Service, Chemical 
Rubber Company Handbook for Chemistry and Physics, Compilation of Air 
Pollutant Emission Factors, AP-42, Control Technology Center, Great 
Lakes Binational Toxics Strategy, Integrated Risk Management System, 
and Recommended Policy on Control of Volatile Organic Compounds to OAC 
3745-31-01(ZZZZZ)(1). Ohio has removed the reference to the Further 
Continuing Appropriations Act of 1985 from this section.
    Ohio has also updated and added to the incorporations by reference 
in OAC 3745-31-01(ZZZZZ)(2). Ohio has added references to 40 CFR 
51.165; 40 CFR 60.15(b)(1); 40 CFR 60.111b; 40 CFR 81.336; 40 CFR part 
50, appendix J; 40 CFR part 51, appendix M; 40 CFR part 51, appendix S; 
40 CFR part 53; 40 CFR part 60, appendix A; 40 CFR part 60, subpart Dc; 
40 CFR part 82, subpart A; 42 U.S.C. 7401 to 7671q; Chemical Rubber 
Company Handbook for Chemistry and Physics; Federal Power Act; New 
Source Performance Standards; Part C of Title I of the Clean Air Act; 
Part D of Title I of the Clean Air Act; Recommended Policy on Control 
of Volatile Organic Compounds; Section 2(A) and (B) of the Energy 
Supply and Environmental Coordination Act of 1974; Section 110 of the 
Clean Air Act; Section 107(d) of the Clean Air Act; Section 108 of the 
Clean Air Act; Section 109 of the Clean Air Act; Section 111 of the 
Clean Air Act; Section 112 of the Clean Air Act; Section 112(b) of the 
Clean Air Act; Section 112(c) of the Clean Air Act; Section 113 of the 
Clean Air Act; Section 121(e) of the Clean Air Act; Section 125 of the 
Clean Air Act; Section 173 of the Clean Air Act, Section 182(c) of the 
Clean Air Act; Section 182(f) of the Clean Air Act; Section 189 of the 
Clean Air Act; Section 202 of the Clean Air Act; Section 216 of the 
Clean Air Act; Section 402(12) of Title IV of the Clean Air Act; 
Section 409 of the Clean Air Act; Standard Industrial Classification 
Manual; Title II of the Clean Air Act; Title IV of the Clean Air Act, 
and Title VI of the Clean Air Act. Ohio has removed from OAC 3745-31-
01(ZZZZZ)(2) Title II sec. 101(d) of the Further Continuing 
Appropriations Act of 1985.

OAC 3745-31-09 Air Permit To Install Completeness Determinations, 
Public Participation and Public Notice

    Ohio has modified OAC 3745-31-09(H)(1) to replace the phrase ``air 
contaminant source or modification'' with `` nonattainment NSR permit 
or the PSD permit''. This change is consistent with the changes in 
definitions required by 40 CFR 51.166(b)(42), 40 CFR 51.165(a)(1)(xxx) 
and 40 CFR 51.165(a)(1)(xli). Ohio also made a spelling correction in 
OAC 3745-31-09(H)(2)(d). Therefore we propose to approve this rule.

OAC 3745-31-10 Air Stationary Source Obligations

    Ohio has added the source obligations in 40 CFR 51.166 (r). Ohio 
doesn't include the requirements of 70.4(b)(3)(vii). Ohio also adds the 
language ``if any provision of OAC 3745-31-10 through 3745-31-32 or the 
application of such provision to any person or circumstance, is held 
invalid, the remainder of this section, or the application of such 
provision to persons or circumstances other then those as to which it 
is held invalid, shall not be affected thereby.'' EPA proposes to 
approve these changes.

OAC 3745-31-13 Attainment Provisions--Review of Major Stationary 
Sources and Major Modifications, Stationary Source Applicability and 
Exemptions

    Ohio has modified OAC 3745-31-13 (B) and (G) to replace the phrase 
``air pollutant subject to regulation under the Clean Air Act that the 
stationary source would emit, except for air pollutants listed under 
112 of the Clean Air Act'' and ``air pollutant subject to regulation 
under the Clean Air Act'' respectively with ``regulated NSR 
pollutant''. This is consistent with 40 CFR 51.166(b)(49) and 40 CFR 
51.165(a)(1)(xxxvii). Ohio also modified OAC 3745-31-13(D)(2)(d) by 
replacing the term ``reviewing authority'' with ``director,'' and OAC 
3745-31-13(H) by clarifying that the units of measure are [mu]g/m\3\, 
and removing mercury, beryllium, and vinyl chloride. This is consistent 
with 40 CFR 51.166(i). Therefore we propose to approve this rule.

OAC 3745-31-15 Attainment Provisions--Control Technology Review

    Ohio has modified OAC 3745-31-15(B) to include references to 40 CFR 
part 63 and OAC 3745-31-1 (C), and (D) to replace the phrase ``air 
pollutant subject to regulation under the Clean Air Act excluding 
pollutants regulated due to being listed under Section 112 of the Clean 
Air Act'' and ``air pollutant

[[Page 24739]]

subject to regulation under the Clean Air Act'' with ``regulated NSR 
pollutant.'' This is consistent with 40 CFR 51.166(b)(49) and 40 CFR 
51.165(a)(1)(xxxvii). Therefore we propose to approve this rule.

OAC 3745-31-21 Nonattainment Provisions

    Ohio has modified OAC 3745-31-21 (B) to replace the phrase ``air 
pollutant subject to regulation under the Clean Air Act'' with 
``regulated NSR pollutant''. This is consistent with 40 CFR 
51.166(b)(49) and 40 CFR 51.165(a)(1)(xxxvii). Ohio also added language 
to OAC 3745-31-21 (E) to clarify that projects referenced therein are 
clean coal technology demonstration projects, and that ``Section 111 
and Part C'' refer to Section 111 and Part C of the Clean Air Act. EPA 
proposes to approve these changes.

OAC 3745-31-22 Nonattainment Provisions--Conditions for Approval

    In addition to grammatical updates to OAC 3745-31-22, Ohio has 
established OAC 3745-31-22(A)(3)(e) and (f) not permitting decreases 
from actual emissions from the installation of add-on control 
technology or application of pollution prevention measures and clean 
units or pollution control projects except as provided by the rule. 
This language is consistent with 40 CFR 51.165(a)(3)(ii)(H) and (I).
    Ohio also established OAC 3745-31-22(A)(3)(g) providing the offset 
requirements for increased emissions from major modifications. This 
language is consistent with 40 CFR 51.165(a)(3)(ii)(J). Therefore we 
propose to approve this rule.

OAC 3745-31-24 Non-Attainment Provisions--Baseline for Determining 
Credit for Emission and Air Quality Offsets

    In addition to grammatical updates to OAC 3745-31-24(A), (E) and 
(H), Ohio has established rules for establishing a baseline for 
determining credit for emission reductions in OAC 3745-31-24(B) and 
(C). This language is consistent with 40 CFR 51.165(a)(3)(i) and 
(ii)(A). Ohio has removed language describing the baseline time period 
and calculation of baseline emissions which primarily refer to the most 
recent two year period as the basis for the baseline. The federal 
program no longer has such a requirement.
    Ohio also established OAC 3745-31-24(K) which requires all emission 
reductions claimed as offset credit to be federally enforceable. This 
language is consistent with 40 CFR 51.165(a)(3)(ii)(E). Therefore we 
propose to approve this rule.

OAC 3745-31-26 Nonattainment Provisions--Offset Ratio Requirements

    Ohio has modified the VOC offset requirement provision in OAC 3745-
31-26(A) to include an offset ratio for unclassified areas of greater 
than 1.0 to 1.0. This language is consistent with section 173(c) of the 
Clean Air Act. Therefore we propose to approve this rule.

OAC 3745-31-30 Clean Units

    Ohio has added a new rule section for emission units that are 
subject to BACT or LAER and qualify for a clean unit designation. These 
rules, for the most part, are consistent with provisions at 40 CFR 
51.166(t) and (u) and 40 CFR 51.165(c) and (d) for clean units. 
However, although Ohio intended only LAER to apply in nonattainment 
areas, as drafted, OAC 3745-31-30 is not clear that a LAER 
determination is required for a clean unit designation in an existing 
nonattainment area. The language in OAC 3745-31-30(A)(5)(a) must also 
include current-day LAER requirements for non-attainment areas, in 
addition to BACT for attainment areas.
    In a March 2, 2005 letter to EPA, OEPA has committed to clarify its 
rules in this regard, and, until the rule is clarified, the 
conditionally approved rules will be implemented as requiring a LAER 
determination in nonattainment areas in order to obtain a clean unit 
designation. Therefore we propose to conditionally approve this rule.

OAC 3745-31-31 Pollution Control Project

    OAC 3745-31-31 establishes a pollution control project exclusion 
provision in Ohio's permit to install regulations. This addition to 
Ohio's rule is consistent with the requirements in 40 CFR 51.166(v) and 
40 CFR 51.165(e). Therefore we propose to approve this rule.

OAC 3745-31-32 Plantwide Applicability Limit (PAL)

    This section of the Ohio permit to install rules regarding PAL 
applicability is consistent with 40 CFR 51.166(w) and 40 CFR 51.165(f). 
Therefore we propose to approve this rule.

III. Conditional Approval

A. Why are we proposing to conditionally approve Ohio's rules?

    We are proposing to conditionally approve Ohio's permit to install 
rules, OAC 3745-31-30. 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 clean units. However, although Ohio intended 
only LAER to apply in nonattainment areas, the proposed language of OAC 
3745-31-30 does not make clear that a LAER determination is required 
for a clean unit designation in an existing nonattainment area. In 
addition to BACT for attainment areas, the language in OAC 3745-31-
30(A)(5)(a) must also include current-day LAER requirements for non-
attainment areas.
    OEPA has committed, in a March 2, 2005 letter, to clarify its rules 
in this regard and, in the interim, to require a LAER determination in 
nonattainment areas in order to obtain a clean unit designation. 
Because OAC 3745-31-30 meets all requirements of 40 CFR 51.165 and 
51.166 for clean units with the exceptions noted above, and because 
OEPA has committed to correct the deficiencies, we believe that it is 
appropriate to propose to conditionally approve these rules. Once OEPA 
submits the rule changes to address these deficiencies, we can take 
action to fully approve the State Implementation Plan (SIP) revision.

B. 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 action. If OEPA does not submit changes 
within the one year timeframe, this conditional approval will 
automatically revert to a disapproval of the Ohio SIP.

C. 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. EPA 
would confirm such disapproval to the State by letter. If the SIP 
becomes disapproved, these commitments will no longer be a part of the 
approved SIP. We would 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

[[Page 24740]]

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.

IV. What Action Is EPA Taking Today?

    EPA is proposing conditional approval of Ohio permit to install 
revisions. On December 31, 2002, EPA published revisions to the federal 
PSD and NSR regulations in 40 CFR parts 51 and 52 (67 FR 80186). These 
``NSR Reform'' regulatory revisions became effective on March 3, 2003, 
and include provisions for baseline emissions determinations, actual-
to-future actual methodology, plantwide applicability limits (PALs), 
clean units, and pollution control projects (PCPs). EPA is proposing to 
conditionally approve OEPA's revised rules to implement these NSR 
Reform provisions.

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

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' 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 proposed action merely proposes to approve State law as 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by State law. Accordingly, the Administrator 
certifies that this proposed 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 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).

Executive Order 13175 Consultation and Coordination With Indian Tribal 
Governments

    This proposed 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 (59 FR 22951, 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 proposes to approve 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 
and Safety Risks

    This proposed 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.

National Technology Transfer 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 
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 proposed 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 Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: April 29, 2005.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 05-9403 Filed 5-10-05; 8:45 am]
BILLING CODE 6560-50-P