[Federal Register Volume 70, Number 122 (Monday, June 27, 2005)]
[Proposed Rules]
[Pages 36901-36907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12659]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R05-OAR-2005-OH-0002; FRL-7928-2]


Approval and Disapproval of Ohio Implementation Plan for 
Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing action on various particulate matter rule 
revisions that Ohio submitted on June 4, 2003. EPA is proposing to 
approve numerous minor provisions that clarify a variety of elements of 
these rules. However, EPA is proposing to disapprove revisions that 
provide for use of continuous opacity monitoring data but allow more 
exceedances of the general opacity limit in cases where an eligible 
large coal fired boiler opts to use these data for determining 
compliance. EPA proposes to find that these revisions constitute a 
relaxation of the opacity rules, and that, contrary to section 110(l) 
of the Clean Air Act, these revisions may interfere with satisfaction 
of relevant state planning requirements.

DATES: Comments shall be received by July 27, 2005.

ADDRESSES: Submit comments, identified by Regional Material in EDocket 
(RME) ID No. R05-OAR-2005-OH-0002, 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: John M. Mooney, Chief, 
Criteria Pollutant Section, (AR-18J), U.S. Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    Hand delivery: Deliver your comments to: John M. Mooney, Chief, 
Criteria Pollutant 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 AM to 4:30 PM 
excluding Federal holidays.
    Instructions: Direct your comments to RME ID No. R05-OAR-2005-OH-
0002. 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 website and the federal regulations.gov website 
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 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

[[Page 36902]]

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 V 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 John Summerhays at 312-886-6067 before 
visiting the Region 5 office. This facility is open from 8:30 AM to 
4:30 PM, Monday through Friday, excluding legal holidays.

U.S. Environmental Protection Agency, Region 5, Air and Radiation 
Division (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 
60604.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, Region 5, Chicago, Illinois 60604, (312) 886-6067. 
[email protected].

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

I. Background Information
    A. Does this action apply to me?
    B. What did Ohio submit?
II. Review of Ohio's Submittal
    A. Review of revisions of opacity limits
    B. Review of other revisions
III. Rulemaking Action
IV. Statutory and Executive Order Reviews
V. Procedures for Commenting

I. Background Information

A. Does This Action Apply to Me?

    This action addresses opacity as measured continuously and other 
particulate matter issues in Ohio. This action applies to you if you 
have an interest in these issues.

B. What Did Ohio Submit?

    On June 4, 2003, Ohio submitted to EPA several revised rules for 
control of particulate matter emissions into the atmosphere. These rule 
revisions arose from a State legislative requirement that the State 
review its rules every five years and incorporate any updates and 
clarifications that are judged to be warranted. Most of the revisions 
Ohio submitted represent clarifications and relatively minor updates to 
its rules. However, these rule revisions also include a significant 
revision to Ohio's rules on opacity, providing for use of continuous 
opacity monitoring data for judging compliance with a modified set of 
opacity limitations. The following delineation of revisions identifies 
the revisions included in each submitted rule, including a description 
of the revisions to the opacity test method provisions in Rule 3745-17-
03. The next section of this notice describes EPA's review of Ohio's 
submittal.
    Rule 3745-17-01, entitled ``Definitions,'' includes a more precise 
definition of ``British thermal unit'' than the prior rule, and 
includes updated version dates for the Code of Federal Regulations 
(CFR) citations included in the rule.
    Rule 3745-17-02, entitled ``Ambient air quality standards,'' 
incorporates the changes EPA made in 1997 and 1999 to Appendix K of 40 
CFR part 50, describing procedures for analyzing concentrations of 
particulate matter of a nominal aerodynamic diameter of 10 micrometers 
or less (PM10). The focus of EPA's revisions on the dates cited in Rule 
3745-17-02, i.e. July 18, 1997, and April 22, 1999, were on particulate 
matter nominally 2.5 micrometers or less (PM2.5) and the procedures for 
analyzing concentrations of PM2.5 as identified in Appendix N of 40 CFR 
part 50. EPA's rulemaking of April 22, 1999, did not amend Appendix K. 
However, EPA's rulemaking of July 18, 1997, did amend Appendix K, to 
apply a format for this appendix similar to the format for other 
appendices to 40 CFR part 50. Ohio did not revise its rules to 
incorporate the PM2.5 air quality standards (which have been upheld by 
decisions of the Supreme Court and the Circuit Court of Appeals for the 
District of Columbia), or the new PM10 standards in 40 CFR part 50.7 
and 40 CFR part 50 Appendix N (which were subsequently vacated by the 
Circuit Court of Appeals for the District of Columbia).
    Rule 3745-17-03, entitled ``Measurement methods and procedures,'' 
most significantly incorporates new provisions relating to continuous 
opacity monitoring. The rule was also revised to update references to 
the CFR and to remove an unused test of gaseous fuel heat content.
    The version of Rule 3745-17-03(B)(1) currently in the SIP 
designates Method 9 of Appendix A to 40 CFR part 60 as the sole 
reference method for assessing whether the opacity of stack emissions 
exceeds the limits specified in Rule 3745-17-07(A)(1). These limits are 
20 percent opacity as a 6-minute average, except that one 6-minute 
average per hour may be as high as 60 percent opacity. The rule also 
identifies some exemptions that are limited in circumstance and limited 
in duration.
    Ohio's revised version of Rule 3745-17-03 states that ``as an 
alternative to [Method 9], coal-fired boilers with heat input 
capacities equal to or greater than 250 million Btu per hour that are 
controlled with either baghouses or electrostatic precipitators may 
determine the compliance with the visible particulate emission 
limitations specified in paragraph (A)(1) of rule 3745-17-07 * * * 
through the use of continuous opacity monitoring data.'' The rule 
stipulates that the monitoring system must comply with the requirements 
of 40 CFR 60.13, and must be certified in accordance with 40 CFR part 
60, Appendix B, Performance Specification 1.
    For eligible sources that assess compliance with opacity limits 
using data from continuous opacity monitoring systems (COMS), Ohio's 
revised Rule 3745-17-03(B)(1) allows additional time of excess opacity 
(between 20 and 60 percent opacity) beyond the current provision for 
one 6-minute period per hour of such opacity. Specifically, this rule 
provides that the time of such additional excess opacity values may 
represent up to 1.1 percent of the operating time per calendar quarter. 
This rule also provides that the total time of excess opacity, 
including any hour's initial 6-minute period above 20 percent opacity 
plus any newly allowed additional time of excess opacity, may not 
exceed 10 percent of the operating time in any calendar quarter.
    EPA submitted adverse comments on these rule revisions to Ohio 
during its rulemaking process. Ohio's submittal presents EPA's comments 
and other comments and provides Ohio's responses. While Ohio made 
selected changes in its final rule, EPA's comments and Ohio's responses 
remain fully pertinent to Ohio's final revised rule. EPA's comments, 
Ohio's responses, and EPA's proposed evaluation of Ohio's final rule, 
are described in the following section describing EPA's review of 
Ohio's submittal.
    Rule 3745-17-04, entitled ``Compliance time schedules,'' 
incorporates several simplifications and clarifications. For numerous 
compliance schedules involving final compliance over 10 years ago, Ohio 
has removed various interim deadlines, e.g. for initiating construction 
of control equipment, and retained only the final compliance deadline. 
Ohio removed

[[Page 36903]]

arguably redundant language in places, and Ohio clarified that the 
limits applicable to one facility would become the responsibility of 
any subsequent owner of such facility should the facility be sold. The 
rule changes did not change any final compliance deadlines.
    Rule 3745-17-07, entitled ``Control of visible particulate 
emissions from stationary sources,'' reflects changes only in 3745-17-
07(A)(3)(h). The version of this provision in the current SIP provides 
an exemption from the general stack opacity limits for sources that are 
not subject to the requirements of Rules 3745-17-08(B)(3) or (B)(4), 
3745-17-10, and 3745-17-11. The revised rule provides this same 
exemption for sources that are not subject to any mass emission 
limitation in these rules. With one exception, the limitations in these 
rules are mass emission limitations, so sources that are subject to 
requirements of these three rules are also subject to mass emission 
limitations, and the rule language change has no effect. The one 
exception is in Rule 3745-17-08(B)(4), which provides that ship loading 
operations at grain terminals may satisfy the requirement for 
reasonably available control technology either (a) by installing 
control equipment that achieves an outlet emission rate of 0.030 grains 
of particulate matter per dry standard cubic foot or (b) by installing 
and using ``control measures such as deadbox or bullet-type loading 
spouts which are equivalent to or better than'' the controls under (a). 
Thus, the revision to Rule 3745-17-07(A)(3)(h) would clarify that ship 
loading operations at a grain terminal that implement alternate control 
measures would not be subject to stack opacity limits.
    Rule 3745-17-08, entitled ``Restriction of emission of fugitive 
dust,'' has a small number of clarifications and minor corrections. The 
revisions correct source identification numbers for one plant and the 
spelling of the town name for another plant. The revisions clarify that 
one of the criteria for judging whether a source has met the 
requirement for reasonably available control measures is the definition 
of ``reasonably available control measures'' given in Rule 3745-17-
01(B)(15). The revisions clarify that a source that has both stack and 
fugitive emissions is subject to both stack and fugitive emission 
limits as applicable. The revisions clarify that used oil that is 
regulated under a specified separate Ohio rule may not be spread on 
roadways to satisfy road dust control requirements. The revisions also 
clarify a previously established rule effective date.
    Rule 3745-17-11, entitled ``Restrictions on particulate emissions 
from industrial processes,'' reflects one editorial change and one 
clarification. The clarification is essentially the same as the 
clarification of Rule 3745-17-08, that a source that has both stack and 
fugitive emissions is subject to both stack and fugitive emission 
limitations if applicable.

II. Review of Ohio's Submittal

A. Review of Revisions of Opacity Limits

    The most significant revision that Ohio made provides for use of 
continuous opacity monitoring data to assess compliance with modified 
opacity limits. Currently the SIP only identifies Method 9 (delineated 
in Appendix A to 40 CFR part 60) as a reference method for assessing 
compliance with opacity limits. Ohio's revision establishes continuous 
opacity monitoring as a reference method for assessing compliance with 
opacity limits, but provides sources that use this method with expanded 
exemptions from those limits.
    EPA provided comments to the State objecting to these revisions 
during the comment period of the State's rulemaking. The State's 
submittal repeats EPA's comments and provides responses. The following 
discussion summarizes EPA's comments and Ohio's responses and evaluates 
Ohio's responses.
    EPA's first concern is that the expansion of exemptions from Ohio's 
opacity limits constitute a relaxation that may interfere with 
applicable requirements and thus contravene Clean Air Act section 
110(l). Ohio responded that it ``believe[s] it would be beneficial to 
implement an additional exemption category, that does not affect the 
total amount of exemptible time or maximum exemptible opacity values 
under the existing regulations, in exchange for a clearly enforceable, 
technically-supported, 24-hour per day compliance approach using a 
continuous monitoring system for a specific source category--an 
approach that does not have to pass any credible evidence 
demonstration.''
    Ohio is correct that its rule revisions do not increase the total 
amount of allowable time of excess opacity (i.e. opacity between 20 and 
60 percent), nor do the revisions alter the 60 percent opacity cap. 
However, the revised rules allow excess opacity on occasions that 
excess opacity is currently prohibited, without any compensating 
prohibitions of emissions that are currently allowed. For example, a 
source that routinely has 1 full hour of excess opacity and then 9 
subsequent hours of no excess opacity would comply with the new revised 
rule but would clearly violate the existing SIP rule. Therefore, 
contrary to Ohio's implication, the revised rule clearly allows 
emissions that are prohibited by the current SIP.
    Section 110(l) states that EPA ``shall not approve a revision of a 
plan if the revision would interfere with any applicable requirement 
concerning attainment * * * or any other applicable requirement of this 
Act.'' Ohio provided no analyses or demonstration that the emissions 
that are allowed by its revised rule but are prohibited by the current 
SIP would not interfere with attainment or other applicable 
requirements. Therefore, EPA must disapprove this revised rule.
    Currently, COMS data may be used as credible evidence of 
violations, and EPA would welcome rule revisions that provide more 
clearly that valid COMS data are enforceable evidence of a source's 
compliance status. However, EPA cannot approve such a revision that 
also includes a less stringent set of opacity limits without a 
demonstration pursuant to section 110(l) that the revisions would not 
interfere with applicable requirements of the Clean Air Act.
    EPA's second, related concern is that the language of the rule 
essentially authorizes the source to choose its approach for addressing 
opacity, either to use Method 9 with existing limits or to use COMS 
data with less stringent opacity limits. The rule states that ``As an 
alternative to [Method 9], coal-fired boilers [meeting certain 
criteria] may determine compliance * * * through the use of continuous 
opacity monitoring data.'' This language suggests that such sources may 
also choose instead to determine compliance through the use of Method 
9. This suggests that a source that has COMS data indicating 
impermissibly frequent excess opacity could attempt to avoid 
noncompliance status simply by choosing to rely on well-timed Method 9 
readings instead. At the same time, Ohio's rule has the effect of 
reducing the utility of Method 9 readings, because violations according 
to Method 9 can be rendered moot by COMS data indicating compliance.
    In comments during the Ohio rulemaking, EPA requested that the 
State clearly provide in the rule that enforcement action may be taken 
for noncompliance based either on Method 9 data or on COMS data. Ohio 
stated in its response that COMS data that are appropriate to use for 
enforcement are by definition equivalent to data that

[[Page 36904]]

would be obtained by Method 9. However, conformance of COMS data with 
human observations in accordance with criteria in 40 CFR part 60 does 
not signify that opacity values from the two methods will be equivalent 
under all circumstances, or that compliance with a calendar quarter-
based limit based on COMS data should prevent enforcement action based 
on violation of a short-term limit based on Method 9.
    Ohio elaborated on its response to EPA by making several additional 
points for EPA's consideration, enumerated as points A through G. In 
points A through C, Ohio clarified the accounting of excess opacity 
values and explained its basis for concluding that the revised rule 
allows no more total time of excess opacity than the current SIP rule. 
In point D, Ohio explained that its exemption level was derived by 
analyzing an extensive set of COMS data, and suggested that the 
allowance of excess opacity for 1.1 percent of operating time reflects 
a level that sources meet for 95 percent of the data sets. In point E, 
Ohio commented that EPA did not provide input for selection of an 
exemption level and did not provide data to support a view that large 
coal-fired boilers can continuously meet Ohio's opacity limitations. In 
point F, Ohio made several responses to an EPA comment about Method 9 
potentially detecting opacity from sulfate that is not observed by a 
COMS. Ohio noted that compliance with its mass emission limits is 
typically determined with a method that does not include most sulfate 
emissions; Ohio argued on this basis that it is inappropriate to use 
Method 9 to evaluate a detached sulfate plume. Ohio stated that EPA 
inherently finds COMS data as equivalent to Method 9 data by using COMS 
data for enforcement purposes, an equivalence that Ohio apparently 
views as invalidating the need for COMS-based limits and Method 9-based 
limits to be independently enforceable. Finally, in point G, Ohio noted 
``concerns raised in [two federal court opinions identified in a 
subsequent e-mail as National Parks Conservation Association, Inc. v. 
Tennessee Valley Authority, Case No. 3:00-cv-547, issued by the Eastern 
District of Tennessee on November 26, 2001; and Appalachian Power Co. 
v. EPA, 208 F. 3d 1015, issued by the Circuit Court for the District of 
Columbia on April 14, 2000] regarding the method of measuring 
compliance as related to the stringency of the limitations.''
    EPA appreciates the clarifications in points A through C, which 
have assisted EPA in the above review of Ohio's rules. Regarding point 
D, the critical point, not addressed by Ohio, is how the selected 
compliance level affects the stringency relative to the limitation in 
the current SIP. Regarding the first part of point E, EPA provided 
input which focused not on Ohio's analyses of noncompliance frequencies 
but rather on the statutory requirements of section 110(l) of the Clean 
Air Act. Regarding the second part of point E, Ohio already has data 
within its own COMS data base that documents numerous occasions for 
numerous facilities in which the facilities report operating entire 
quarters in full compliance with the previous rule, in some cases 
having no 6-minute opacity values above 20 percent whatsoever. 
Regarding point F, there is no question that sulfate is found in 
particulate form; indeed, sulfate is a major constituent of the 
PM2.5 concentrations in Ohio that violate the 
PM2.5 standard. Method 9 provides detailed procedures that 
measure the opacity of sulfate and other particles irrespective of 
whether the plume is detached or attached. The changes that have been 
made to mass emission test methods to address concerns about their 
measurement of sulfate particles do not warrant changes in the 
measurement of the opacity of these particles. Use of COMS data as 
credible evidence of noncompliance in selected cases does not signify 
that the particular COMS-based opacity limits in Ohio's revised rule 
are equivalent to the Method 9-based rule in the Ohio SIP or that a 
rule that provides the source the choice of which set of limits to 
comply with is equivalent to a rule that requires compliance with both 
sets of limits.
    With regard to point G, EPA finds that the above-cited court cases 
were decided on grounds that were not relevant to a decision in a SIP 
context. Furthermore, the discussion contained in these court opinions 
does not address several issues pertinent to section 110(l). For 
example, the opinions do not address how to conduct a quantitative 
comparison between opacity monitoring data collected continuously 
versus Method 9 data obtained at indeterminate frequency. As another 
example, the opinions do not address how to compare a rule that 
specifies continuous opacity monitoring as a reference method (used on 
a voluntary basis) versus the current SIP under which COMS data are 
used on a credible evidence basis.
    Several other commenters submitted comments to Ohio during its 
rulemaking comments. A member of the law firm Shumaker, Loop & 
Kendrick, LLP submitted a variety of comments on the derivation and use 
of the data base that Ohio used to derive its COMS-based opacity limit 
exemptions; however, as indicated above, the data base analyses used to 
derive these exemptions do not address the question of whether the 
exemption levels can be justified under section 110(l). Other comments 
generally either did not result in any rule changes or are addressed 
above. Therefore, EPA is not providing an exhaustive discussion of 
other comments that were submitted to Ohio.

B. Review of Other Revisions

    This review is organized by rule and proceeds in order of rule 
number.
    In Rule 3745-17-01, the formalizing of the definition of British 
thermal unit should have no substantive effect. EPA finds this revision 
approvable.
    In Rule 3745-17-02, Ohio provided updated version dates for 
Appendix K to 40 CFR part 50, specifying use of the version as of July 
18, 1997, as amended on April 22, 1999. These revisions must be 
examined in the context of two extant sets of particulate matter air 
quality standards, one of which addresses particles that are nominally 
10 micrometers and smaller (``PM10'') and the other of which 
addresses particles that are nominally 2.5 micrometers and smaller 
(``PM2.5''). Appendix K describes data handling procedures 
for the PM10 standards promulgated in 1987. (Newer air 
quality standards for PM10 were promulgated in 1997 but were 
subsequently vacated by the District of Columbia Circuit Court of 
Appeals.) On July 18, 1997, EPA reformatted Appendix K for consistency 
with the appendices associated with the PM2.5 and 
PM10 standards promulgated that day, but EPA made no 
substantive changes to Appendix K that day. On April 22, 1999, EPA 
amended Appendix L but not Appendix K. Thus, EPA interprets Ohio's rule 
to apply the reformatted Appendix K published on July 18, 1997, and 
concludes that this appendix continues to provide the appropriate 
procedures for data handling for the 1987 PM10 standards.
    Rule 3745-17-03 includes several paragraphs in which the version 
date of the referenced part of the Code of Federal Regulations was 
updated. These revisions are approvable. Rule 3745-17-03 was also 
revised to identify a single test method for determining the heat 
content of gaseous fuels rather than identifying a second method if the 
first method ``does not apply.'' This revision simplifies the 
identification of test methods and is approvable.
    Rule 3745-17-04 includes various simplifications and 
clarifications. Rule 3745-17-04(A)(6) is clarified to state that the 
requirements in that paragraph apply to the Columbus and Southern

[[Page 36905]]

Ohio Electric Company but also to any subsequent owner or operator of 
the Conesville Station. Rule 3745-17-04(B) is revised to eliminate 
numerous interim compliance deadlines that generally date back to 1993 
and earlier and to simplify some of the language. These revisions are 
approvable. Rule 3745-17-04 also clarifies in some cases that ``the 
effective date of this rule'' is January 31, 1998. While EPA has no 
objection to this revision, the pertinent requirements for which these 
compliance dates apply are still under EPA review. Because EPA has not 
approved the pertinent requirements, EPA may not act on the paragraphs 
in Rule 3745-17-04 (specifically paragraphs (B)(5)(c), (B)(6)(f), 
(B)(7)(e), and (B)(8)) that set compliance deadlines for requirements 
that EPA has not approved. EPA will act on these paragraphs in 
conjunction with its action on the corresponding requirements.
    Rule 3745-17-07 includes one revision, in 3745-17-07(A)(h), that 
revises this exemption from applying to any source ``which is not 
subject to the requirements of [Rule 3745-17-08(B)(3) or (B)(4) or 
other specified rules]'' to apply to any source ``which is not subject 
to any mass emission limitation in'' those rules. That is, the 
exemption is being broadened beyond sources with no applicable 
requirement in those paragraphs to also exempt sources for which those 
paragraphs impose requirements other than mass emission limitations. 
Rule 3745-17-08(B)(3) requires use of emission capture equipment and 
achievement of outlet gases that either contain no more than 0.030 
grains of particulate emissions per standard cubic foot or have no 
visible emissions. It is clearly not a relaxation to provide that a 
source that has no visible emissions is exempt from a 20 percent 
opacity limit. (A source that is subject to the 0.030 grains limit is 
subject to a mass emissions limitation and thus is not affected by the 
change in the language of Rule 3745-17-07(A)(h).) Rule 3745-17-08(B)(4) 
requires ship loading operations at grain terminals either to achieve 
controlled emission rates to achieve a limit of 0.030 grains of 
particulate emissions per standard cubic foot or to install and use 
``control measures such as deadbox or bullet-type loading spouts which 
are equivalent to or better than [measures that would achieve 0.030 
grains per standard cubic foot].'' These alternative control measures 
would not necessarily have an outlet to which the normal stack opacity 
limit would reasonably apply, and yet the installed equipment would be 
achieving equivalent emission reductions. Therefore, EPA believes that 
this exemption is reasonable and does not decrease the stringency of 
the requirements for such sources.
    Rule 3745-17-08 reflects a variety of clarifications. Paragraph 
3745-17-08(A)(3)(b) reflects updated Ohio EPA source numbers for three 
units at Armco Steel Middletown Works. Paragraph 3745-17-08(A)(4) is a 
new paragraph, also added to Rule 3745-17-11, that clarifies that a 
source can be subject to both stack emission limits and fugitive 
emission control requirements if the source has both stack and fugitive 
emissions. Paragraph 3745-17-08(B)(2) is amended by clarifying that 
used oil is not an acceptable dust suppression material. Paragraph 
3745-17-08(C) is amended by adding subparagraph (3), providing that an 
additional criterion for judging whether a source has applied 
reasonably available control measures for fugitive dust is whether the 
measures comply with the definition of reasonably available control 
measures given in Rule 3745-17-01(B)(15). These revisions all clarify 
the State rules and do not relax the requirements in any way.
    Rule 3745-17-11, as noted above, includes a new paragraph that 
clarifies that a source can be subject to both stack emission limits 
and fugitive emission control requirements if the source has both stack 
and fugitive emissions. The rule also contains one editorial 
improvement. These revisions are approvable.

III. Rulemaking Action

    For reasons described in the previous section, EPA proposes to 
disapprove the revision to Ohio Rule 3745-17-03(B)(1), which would 
provide for optional use of COMS data for enforcing a revised set of 
opacity limitations. EPA is not acting on revisions to Ohio Rule 3745-
17-04 (B)(5)(c), (B)(6)(f), (B)(7)(e), and (B)(8), because these 
represent compliance dates for requirements that EPA has not approved. 
EPA is proposing to approve all other revisions in Ohio's request of 
June 4, 2003.

IV. 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 (Pub. L. 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 (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 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.

[[Page 36906]]

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.).

V. Procedures for Commenting

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 R05-OAR-2005-OH-0002''. 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 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 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, the 
Government's legal newspaper, 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 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.

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 proposed rulemaking Region 5 Air Docket R05-OAR-
2005-OH-0002'' 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 
proposed rulemaking Region 5 Air Docket OHxxx'' 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: John Mooney, Chief, Criteria 
Pollutant Section (AR-18J), U.S. Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please 
include the text ``Public comment on proposed rulemaking Regional Air 
Docket OHxxx'' in the subject line on the first page of your comment.
    3. By Hand Delivery or Courier. Deliver your comments to: John 
Mooney, Chief, Criteria Pollutant 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

[[Page 36907]]

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 without prior notice. 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovermental relations, Particulate Matter, Reporting 
and recordkeeping requirements.

    Dated: May 24, 2005.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 05-12659 Filed 6-24-05; 8:45 am]
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