[Federal Register Volume 75, Number 89 (Monday, May 10, 2010)]
[Rules and Regulations]
[Pages 25770-25772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10836]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2009-0290; FRL-9142-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; General Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a request submitted by the Ohio Environmental 
Protection Agency (Ohio EPA) on March 17, 2009, to revise the Ohio 
State Implementation Plan (SIP) under the Clean Air Act (CAA). The 
State has submitted revisions to rules for approval under Ohio 
Administrative Code (OAC) Chapter 3745-15, ``General Provisions,'' 
which include the adoption of the Federal definition and citation of 
the CAA, and clarifications for exemptions and new requirements for 
sources regulated under the Title V permitting program. These revisions 
are included in OAC 3745-15-01 and OAC 3745-15-05, respectively.

DATES: This direct final rule will be effective July 9, 2010, unless 
EPA receives adverse comments by June 9, 2010. If adverse comments are 
received, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0290, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (312) 692-2054.
    4. Mail: Jay Bortzer, Chief, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    5. Hand Delivery: Jay Bortzer, Chief, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604. Such deliveries are only accepted during the 
Regional Office normal hours of operation, and special arrangements 
should be made for deliveries of boxed information. The Regional Office 
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 Docket ID No. EPA-R05-OAR-
2009-0290. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, 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 http://www.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 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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. We recommend that you telephone Andy Chang, Environmental 
Engineer, at (312) 886-0258 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer, 
Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-0258, [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. Background
    When did the State submit the requested rule revisions to EPA, 
and did the State satisfy the administrative requirements of 40 CFR 
Part 51, Appendix V?
II. Analysis of the State's Requests
    A. OAC 3745-15-01--Definitions.
    B. OAC 3745-15-05--``De Minimis'' Air Contaminant Source 
Exemption
III. What action is EPA taking?

[[Page 25771]]

IV. Statutory and Executive Order Reviews

I. Background

When did the state submit the requested rule revisions to EPA, and did 
the State satisfy the administrative requirements of 40 CFR part 51, 
Appendix V?

    Ohio EPA submitted the requested revisions to EPA on March 17, 
2009, and demonstrated through its submittal that the State satisfied 
all the requirements of 40 CFR part 51, Appendix V, ``Criteria for 
Determining the Completeness of Plan Submissions.'' The administrative 
requirements are outlined in Section 2.1 of this appendix. Most 
notably, a public hearing was held on January 8, 2007, and the rules 
became effective State-wide on January 22, 2009.

II. Analysis of the State's Requests

    The State has requested that EPA approve revisions to rules under 
Chapter 3745-15, ``General Provisions,'' of the OAC. These rules 
include 3745-15-01, ``Definitions'' and 3745-15-05, `` `De minimis' air 
contaminant source exemption.'' The revisions and EPA's responses are 
described in detail below.

A. OAC 3745-15-01--Definitions

    Ohio EPA has requested that the Federal definition and citation of 
``Clean Air Act,'' or ``CAA,'' be incorporated into the SIP. As this 
request would align State and Federal definitions and eliminate any 
ambiguity related to the term, EPA finds the requested revision to be 
approvable. Furthermore, this is a revision that EPA has found to be 
approvable in other States and SIPs.
    Additionally, the State has requested several other minor revisions 
for incorporation into the SIP, which include the addition of a 
``Comment'' at the beginning of the rule to refer readers to the 
``Incorporation by Reference'' section at the end of the rule, and 
small wording changes. The ``Incorporation by Reference'' section at 
the end of the rule contains a listing of the supplementary 
publications referenced through OAC Chapter 3745-15. References to 
these materials, as well as a list of these materials themselves, serve 
to assist any interested parties with obtaining these documents and do 
not detract value from the existing rules; therefore, EPA finds the 
corresponding requested revisions to be approvable. Lastly, Ohio EPA's 
requested wording changes are minor and ministerial, and they serve to 
clarify or disambiguate the existing rules; therefore, EPA finds the 
corresponding revisions to be approvable.

B. OAC 3745-15-05--``De Minimis'' Air Contaminant Source Exemption

    Ohio EPA has requested that several revisions pertaining to the 
``de minimis'' air contaminant source exemption be incorporated into 
the SIP. The requested revisions to introductory paragraph (E) of OAC 
3745-15-05 specify that any one of the following seven record types 
outlined in OAC 3745-15-05(E)(1) to (7) are adequate to demonstrate the 
actual emissions from an eligible source. Previously, the last line of 
OAC 3745-15-05(E) read, ``All the following information, if applicable, 
shall be adequate to make that demonstration:''. These requested 
revisions clarify the existing SIP; EPA therefore finds them to be 
approvable.
    The revision requested by Ohio EPA to OAC 3745-15-05(E)(7) is meant 
to clarify ambiguity in the rule concerning the phrase, ``certification 
under oath.'' The last part of this paragraph now reads, ``* * * and a 
written certification by the owner or operator that the applicable 
exemption levels were complied with,'' i.e. the notion of 
``certification under oath'' has been replaced with ``written 
certification'' in the rule. As this revision not only clarifies the 
existing rule but specifies what type of certification is necessary to 
meet the records requirement, EPA finds the request to be approvable.
    The State has revised paragraph (H) of OAC 3745-15-05 to require 
that insignificant emissions units (IEUs) be identified, and not merely 
listed. Ohio EPA has made this revision because an emissions activity 
category form must be included in the Title V application for each IEU 
that is subject to one or more applicable requirements. As this 
revision strengthens the State's authority to oversee sources regulated 
under the Title V program, EPA finds the revisions to OAC 3745-15-05 
(H) to be approvable.
    Paragraph (I) of OAC 3745-15-05 has been revised to state that if 
the owner or operator of a source exceeds the exempt emission levels 
provided in this rule, he or she may be required to submit an 
application for a permit to operate pursuant to OAC 3745-77, ``General 
Title V Rules.'' As this revision strengthens the State's authority to 
oversee sources regulated under the Title V program, EPA finds the 
revision to OAC 3745-15-05 (I) to be approvable.
    Ohio EPA communicated to EPA via electronic mail on December 2, 
2009, attesting that the preceding changes to this rule were only 
clerical in nature, and that the rule did not include any changes that 
would affect how Ohio EPA determines if a source is exempt due to ``de 
minimis'' air emissions. The State has therefore quantified the effect 
of the changes as having no effect on emissions.
    Additionally, the State has requested several other minor revisions 
for incorporation into the SIP, which include the addition of a 
``Comment'' at the beginning of the rule to refer readers to the 
``Incorporation by Reference'' section at the end of the rule, and 
small wording changes. As discussed in the section addressing OAC 3745-
15-01, references to the materials in the ``Incorporation by 
Reference'' section, as well as a list of these materials themselves, 
serve to assist any interested parties with obtaining these documents 
and do not detract value from the existing rules; therefore, EPA finds 
the corresponding requested revisions to be approvable. Lastly, Ohio 
EPA's requested wording changes are minor and ministerial, and they 
serve to clarify or disambiguate the existing rules; therefore, EPA 
finds the corresponding revisions to be approvable.

III. What action is EPA taking?

    EPA is approving revisions to the Ohio SIP; the State has submitted 
revisions to rules Chapter 3745-15, ``General Provisions,'' of the OAC. 
These rules include OAC rule 3745-15-01 and OAC rule 3745-15-05. We are 
approving these rules because they are consistent with the regulatory 
framework which helps the State maintain healthy air quality levels. 
The revisions that the State has submitted are based on Federal 
definitions, requirements under Federal permitting laws, or amendments 
that aim to remove ambiguity from existing language in the SIP. The 
State's submittal meets the requirements of 40 CFR part 51, Appendix V, 
and strengthens OAC 3745-15-01 and OAC 3745-15-05.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the Proposed Rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the State plan if relevant adverse 
written comments are filed. This rule will be effective July 9, 2010 
without further notice unless we receive relevant adverse written 
comments by June 9, 2010. If we receive such comments, we will withdraw 
this action before the effective date by publishing a subsequent 
document that will withdraw the final action. All public comments 
received will then be addressed in a subsequent final rule

[[Page 25772]]

based on the proposed action. EPA will not institute a second comment 
period; therefore, any parties interested in commenting on this action 
should do so at this time. If we do not receive any comments, this 
action will be effective July 9, 2010.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.
    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 action 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).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 9, 2010. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the Proposed Rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: April 19, 2010.
Walter W. Kovalick Jr.,
Acting Regional Administrator, Region 5.

0
40 CFR part 52 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)(148) to read as 
follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *
    (148) On March 17, 2009, Ohio submitted revisions to Ohio 
Administrative Code Chapter 3745-15, Rules 3745-15-01 and 3745-15-05. 
The revisions pertain to general provisions of OAC Chapter 3745.
    (i) Incorporation by reference.
    (A) Ohio Administrative Code Rule 3745-15-01 ``Definitions.'' and 
Rule 3745-15-05 `` `De minimis' air contaminant source exemption.'' The 
rules were adopted on January 12, 2009, and became effective on January 
22, 2009.
    (B) January 12, 2009, ``Director's Final Findings and Orders'', 
signed by Chris Korleski, Director, Ohio Environmental Protection 
Agency.

[FR Doc. 2010-10836 Filed 5-7-10; 8:45 am]
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