[Federal Register Volume 80, Number 214 (Thursday, November 5, 2015)]
[Rules and Regulations]
[Pages 68458-68465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28095]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2009-0807; FRL-9936-54-Region 5]


Air Plan Approval; Ohio; Test Methods; Error Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is determining that 
a portion of an October 26, 2010, action was in error and is making a 
correction pursuant to section 110(k)(6) of the Clean Air Act. The 
October 26, 2010, EPA action approved various revisions to Ohio 
regulations in the EPA approved state implementation plan (SIP). The 
revisions were intended to consolidate air quality standards into a new 
chapter of rules and to adjust the cross references accordingly in 
various related Ohio rules. These changes included a specific revision 
to the cross reference in the Ohio rule pertaining to methods for 
measurements for comparison with the particulate matter air quality 
standards. This final correction action removes any misperception that 
EPA approved any revision to the pertinent rule other than the revised 
cross reference. This action will therefore assure that the 
codification of the October 26, 2010, action is in accord with the 
actual substance of the action.

DATES: This final rule is effective on December 7, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2009-0807. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through 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 John Summerhays, 
Environmental Scientist, at (312) 886-6067 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental 
Scientist, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067, 
[email protected].

SUPPLEMENTARY INFORMATION: This supplementary information section is 
arranged as follows:

I. Summary of EPA's Proposed Rulemaking
II. Comments and EPA's Responses
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Summary of EPA's Proposed Rulemaking

    On June 4, 2003, Ohio submitted a variety of revisions to the EPA 
approved version of Ohio Administrative Code (OAC) 3745-17 in the 
state's SIP, which regulates particulate matter and opacity from 
affected sources. While EPA subsequently approved many of these 
revisions, EPA published action on June 27, 2005, proposing to 
disapprove specific submitted revisions in OAC 3745-17-03(B) that in 
EPA's view relaxed existing SIP opacity limitations without an adequate 
analysis under section 110(l) or section 193 of the Clean Air Act.\1\ 
Consistent with this proposed disapproval, the version of OAC 3745-17-
03(B) submitted by the state on June 4, 2003, was not, and is not, an 
approved provision of the Ohio SIP.
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    \1\ See 70 FR 36901 (June 27, 2005).
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    On September 10, 2009, for purposes of consolidating its existing 
SIP rules identifying applicable air quality standards, and to adjust 
the cross references between rules accordingly, Ohio submitted 
additional revisions to several of its existing rules to EPA for 
approval into the SIP. Most notably, these rule revisions included a 
modification to the existing cross reference in OAC 3745-17-03(A), 
which was necessary because the ambient particulate matter measurement 
method identified in this paragraph was for purposes of assessing 
attainment with the ambient air quality standards now located in OAC 
3745-25-02, rather than in OAC 3745-17-02.
    On October 26, 2010, at 75 FR 65572, EPA published a direct final 
action approving the relevant revisions in the September 10, 2009, 
submission. In the preamble and in the codification of the October 26, 
2010, action, EPA erroneously listed the approved SIP revisions as 
including the entirety of OAC 3745-17-03, rather than specifying more 
precisely that the approval as it pertained to OAC 3745-17-03 applied 
only to the revised cross reference in OAC 3745-17-03(A). This error 
left the misimpression that EPA had approved other significant 
substantive revisions in OAC 3745-17-03, including those in OAC 3745-
17-03(B) that EPA had previously proposed to disapprove. The 
codification in the October 26, 2010, action with respect to OAC 3745-
17-03 should have been explicitly limited to OAC 3745-17-03(A), to 
reflect the EPA approval of only the revised cross reference.
    EPA subsequently recognized that the codification erroneously left 
the misimpression that it had approved more of OAC 3745-17-03 than the 
revision of the cross reference in OAC 3745-17-03(A). On April 3, 2013, 
at 78 FR 19990, EPA published action to correct the error. EPA took 
this action pursuant to its general rulemaking authority under 
Administrative Procedures Act section 553. Two parties challenged EPA's 
April 3, 2013, action, and one of these parties also filed a petition 
for reconsideration of that action, objecting that EPA failed to 
correct the error in the October 26, 2010, action in accordance with 
the procedures of section 110(k)(6) of the Clean Air Act.
    EPA responded to the petition for reconsideration by agreeing to 
take this action pursuant to section 110(k)(6), as requested by the 
petitioner. Accordingly, EPA published proposed rulemaking on February 
7, 2014, using its authority under section 110(k)(6) to correct errors 
in its rulemaking of October 26, 2010.\2\ Given the petitioners' 
expressed interest in commenting on EPA's action, EPA elected to use 
its authority under section 110(k)(6) for this action because, under 
these circumstances, it would provide the best mechanism to correct the 
apparent misunderstandings concerning the error in the October 26, 
2010, action.
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    \2\ See 79 FR 7412 (Feb. 7, 2014).
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    EPA's February 7, 2014, proposal provides an extensive description 
of the error in its October 26, 2010, rulemaking, provided in 
subsections entitled, ``What was the error in description and 
codification?'', ``What precipitated this error?'', and ``Why was it 
evident that this was an error?'' It is not necessary to repeat that 
detailed explanation here. EPA proposed to correct the error to remove 
any misimpression in its October 26, 2010,

[[Page 68459]]

rulemaking that EPA had approved any revisions to OAC 3745-17-03 other 
than the cross reference in OAC 3745-17-03(A). Specifically, EPA 
proposed to take action pursuant to Clean Air Act section 110(k)(6) 
repromulgating the correction published on April 3, 2013. EPA solicited 
comments on this proposed error correction, while noting that any 
comments on the technical or legal merits of certain substantive 
revisions to OAC 3745-17-03 (e.g., the opacity-related provisions in 
OAC 3745-17-03(B)) or on the pending proposed disapproval of those 
provisions would not be germane to this error correction rulemaking.
    EPA intended to correct the error in the October 26, 2010, action 
first and then separately to complete the action to address the merits 
of the substantive revisions to OAC 3745-17-03 in the June 4, 2003, SIP 
submission that were the subject of the June 27, 2005, proposed 
disapproval. To this end, EPA published a supplemental proposal on June 
26, 2014, reopening comment on its prior proposed disapproval of 
revisions to OAC 3745-17-03.\3\ Subsequently, however, Ohio has 
withdrawn the portion of the June 4, 2003, submission that EPA proposed 
to disapprove.\4\
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    \3\ See 79 FR 36277 (June 26, 2014).
    \4\ See letter from Craig W. Butler, Director, Ohio EPA, to 
Susan Hedman, Regional Administrator, USEPA Region 5, dated 
September 5, 2014, ``request[ing] withdrawal of [Ohio's] June 4, 
2003 request to incorporate paragraph (B)(1)(b) into Ohio's SIP.''
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    Accordingly, since the provisions is withdrawn, EPA does not need 
to complete action on the June 4, 2003, SIP submission. Significantly, 
this also confirms that the submitted substantive revisions to OAC 
3745-17-03 are not part of the EPA approved SIP and that the EPA's 
October 26, 2010, action could not have revised those elements of the 
existing version of OAC 3745-17-03 in the SIP, inadvertently or 
otherwise. Except for an amendment to the cross reference to ambient 
air quality standards in OAC 3745-17-03(A) (which EPA approved on 
October 26, 2010), the version of OAC 3745-17-03 in the SIP remains the 
version effective in the state on January 31, 1998, approved by EPA on 
October 16, 2007.

II. Comments and EPA's Responses

    EPA received comments on its proposed error correction from three 
parties: (i) The Ohio Environmental Protection Agency (Ohio EPA); (ii) 
the Ohio Utility Group; and (iii) a group including the Ohio Chamber of 
Commerce, Ohio Manufacturers Association, and Ohio Chemistry Technology 
Council (Chamber et al.). The following are significant adverse 
comments from each commenter and EPA's responses.

Ohio EPA

    Comment: The commenter asserted that: ``On February 7, 2014, U.S. 
EPA proposed, as an error correction, to remove from Ohio's State 
Implementation Plan (SIP) a previously approved (October 26, 2010) 
portion of OAC Rule 3745-17-07 regarding methods for measurements to 
determine compliance with Ohio's 20% opacity limitation.'' \5\ With 
this statement, the commenter is implying that EPA in fact approved 
substantive revisions to OAC 3745-17-03 in the October 26, 2010, 
action, rather than merely approved the cross reference in OAC 3745-17-
03(A). The commenter suggested that EPA acted on ``the entirety'' of 
the revisions to OAC 3745-17-03.
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    \5\ EPA's October 26, 2010, rulemaking makes no reference to OAC 
3745-17-07 (containing opacity limits). EPA presumes that the 
commenter intends to refer to OAC 3745-17-03, which among other 
provisions has provisions relating to measurement of opacity.
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    Response: EPA disagrees with the commenter's premise that the 
Agency approved any portion of OAC 3745-17-03 other than the revision 
to the cross reference in OAC 3745-17-03(A). EPA's February 17, 2014, 
proposed action rule provides an extensive explanation of the error 
that occurred in the October 26, 2010, action and the genesis of the 
error. Ohio's clearly stated purpose in making the September 10, 2009, 
submission was to consolidate its existing SIP provisions relating to 
ambient air quality standards and to revise certain cross references in 
existing approved SIP rules in order to reflect that reorganization. 
The specific SIP revisions at issue in the state's submission were 
reflected in redline and the redlined document identified the cross 
reference in OAC 3745-17-03(A) as the only revision relevant to OAC 
3745-17-03. This indicates that approval of any substantive revisions 
in OAC 3745-17-03(B) would have been beyond the scope of the 
rulemaking. Moreover, EPA had already proposed to disapprove revisions 
to OAC 3745-17-03(B) on June 27, 2005, EPA received numerous, 
substantial comments for and against that proposed disapproval, and the 
rulemaking of October 26, 2010, provided no evidence of consideration 
of any of these comments. Although the commenter described EPA's 
proposed error correction action as an action to ``remove . . . a 
previously approved'' portion of rule, this is simply incorrect. EPA 
did not ``previously approve'' the portions of OAC 3745-17-03 that the 
Agency rulemaking of October 26, 2010, did not substantively address. 
EPA fully acknowledged in the February 17, 2014, proposal that the 
error that occurred in the October 26, 2010, action was the result of 
misunderstandings and miscommunications that it is seeking to rectify 
in this final error correction action. EPA is taking this final action 
in order to avoid further confusion on the part of regulated entities, 
regulators, and members of the public.
    Comment: The commenter stated that it ``firmly believes [that the 
provision in OAC 3745-17-03(B)] is fully approvable.'' The commenter 
explained that it was ``attaching, and reaffirming'' its prior comments 
on EPA's proposed disapproval of this provision in the June 27, 2005, 
action. The commenter further requested that ``[c]onsideration should 
be taken to the previous comments submitted by Ohio EPA and others 
regarding the approvability of the provision at question in this 
action.''
    Response: As explained in the February 17, 2014, proposal for this 
action, EPA is focusing this section 110(k)(6) rulemaking on the 
specific error that occurred in the October 26, 2010, action. This 
rulemaking is not addressing the substantive merits of any portion of 
OAC 3745-17-03. Instead, this rulemaking is addressing whether EPA made 
an error in its October 26, 2010, rulemaking by including a 
codification that went beyond the scope of the rulemaking and whether 
EPA should correct that error by correcting the codification to reflect 
that the only portion of OAC 3745-17-03 that was addressed in that 
rulemaking was the cross reference in OAC 3745-17-03(A). Accordingly, 
the commenter's resubmission of its prior comments on the June 27, 
2005, proposed disapproval is inappropriate and not germane to this 
action.
    In addition to being outside the scope of this error correction 
action, EPA notes that the commenter's arguments also support EPA's 
conclusion that the October 26, 2010, action was in error to the extent 
that it appeared to approve any revision beyond the cross reference in 
OAC 3745-17-03(A). The commenter explicitly acknowledged that EPA 
previously received significant comments concerning the merits of OAC 
3745-17-03(B), in particular comments that in the commenter's view 
warrant reversal of EPA's prior proposed disapproval. Furthermore, the 
commenter in effect argued that EPA has not adequately considered these 
comments. This is fully consistent with EPA's own observation that its 
October 26, 2010, rulemaking provided no

[[Page 68460]]

evidence of any consideration of public comments concerning OAC 3745-
17-03(B) whatsoever (again, because this provision was outside the 
scope of that rulemaking). Thus, the commenter appeared to agree with 
EPA's view that the October 26, 2010, rulemaking does not provide any 
evidence of the consideration of comments regarding OAC 3745-17-03(B) 
that would be necessary for any approval or disapproval of OAC 3745-17-
03(B) to be considered lawful. Moreover, the commenter did not appear 
to dispute EPA's view that rulemaking on OAC 3745-17-03(B) could not be 
considered a lawful and valid part of the October 26, 2010, rulemaking 
even if it had been intended to be within the scope of the rulemaking. 
As explained in the February 17, 2014, proposal for this action, EPA 
had no such intentions and the fact that EPA did not address prior 
substantive comments on the merits of OAC 3745-17-03(B) should have 
alerted the commenter and other parties to this fact.
    Finally, EPA acknowledges the commenter's request that that EPA 
complete its consideration of comments on the merits of OAC 3745-17-
03(B), but such consideration is outside the scope of this rulemaking. 
By separate action, EPA intended to address the merits of the 
substantive revisions to OAC 3745-17-03 in the June 4, 2003, SIP 
submission that were the subject of the June 27, 2005, proposed 
disapproval. To this end, EPA published a supplemental proposal on June 
26, 2014, reopening comment on its prior proposed disapproval of 
certain substantive revisions to OAC 3745-17-03.\6\ Subsequently, 
however, Ohio withdrew its submittal of revisions to OAC 3745-17-
03(B).\7\ This renders consideration of comments with respect to the 
withdrawn submission moot, both for purposes of the June 27, 2005, 
proposed disapproval and for purposes of this error correction action.
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    \6\ See 79 FR 36277 (June 26, 2014).
    \7\ See letter from Craig W. Butler, Director, Ohio EPA, to 
Susan Hedman, Regional Administrator, USEPA Region 5, dated 
September 5, 2014, which may be found in the docket for this final 
action.
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    Comment: The commenter objected that ``U.S. EPA has made certain 
assertions regarding [OAC 3745-17-03(B)] that go beyond the scope of 
this proposed correction. U.S. EPA refers to the provision as 
`significant and substantive' and states the `unapproved' revisions 
`would allow significantly more opacity during certain periods.' '' The 
commenter disputed these statements. The commenter asserted its belief 
that ``U.S. EPA has crossed the threshold and cannot go forward with 
the package under 110(k), since U.S. EPA is now making a technical 
argument as to why the previously approved SIP revision is no longer 
acceptable.'' The commenter also argued that ``as a procedural matter, 
U.S. EPA must start over from the beginning and outline and address the 
entire technical issue in full and not use the 110(k) `error' 
approach.''
    Response: The premise of the commenter's arguments is that EPA's 
February 17, 2014, action in effect proposed to finalize EPA's prior 
proposed disapproval of certain portions of OAC 3745-17-03, not merely 
correcting the error that led to the misimpression that EPA had already 
approved the revisions in toto. The commenter is thereby ignoring EPA's 
clear statements about the actual scope of this error correction.
    As explained in the February 17, 2014, proposal for this action, 
EPA is focusing this section 110(k)(6) rulemaking on the specific error 
that occurred in the October 26, 2010, action. EPA provided extensive 
discussion and explanation of the error that occurred in the October 
26, 2010, action and why EPA could not be considered to have acted on 
any revisions to OAC 3745-17-03 that were outside the scope of that 
rulemaking. EPA explained the significance of OAC 3745-17-03(B) in the 
February 17, 2014, proposal as a means of explaining why EPA considered 
it important to correct the errors in its October 26, 2010, rulemaking. 
EPA noted in passing that it had already proposed to disapprove certain 
provisions for reasons that were already a matter of public record in 
the Federal Register as a means of emphasizing that it could not have 
approved those revisions in the October 26, 2010, action without an 
explicit discussion and justification for any such approval.
    The commenter appears to agree that the revisions in OAC 3745-17-
03(B) that it advocated for EPA to approve are significant and 
substantive. EPA statements regarding the significance of the error, 
however, cannot be considered to constitute final review of the merits 
of the erroneously addressed provisions. The October 26, 2010, action 
clearly did not address the merits of OAC 3745-17-03(B), and EPA's 
action proposing to correct an error related to these provisions did 
not address the merits of these provisions either.
    The commenter disagreed in particular with EPA's characterization 
of OAC 3745-17-03(B) in the February 17, 2014, proposal as allowing 
significantly more opacity during certain periods. A more precise 
statement would have been that EPA had proposed to disapprove the 
pertinent revisions to OAC 3745-17-03(B) in the June 27, 2005, proposal 
based in significant part on the view that the revisions would allow 
significantly more opacity during certain periods. The commenter, along 
with several other commenters, has disputed EPA's proposed views 
regarding the merits of OAC 3745-17-03(B). As explained in detail in 
the February 17, 2014, proposal for this error correction, however, EPA 
did not intend, and could not have intended, to address the substantive 
merits of those revisions in the October 26, 2010, action. Indeed, with 
Ohio's withdrawal of its request for rulemaking on these provisions, 
EPA will no longer be conducting final rulemaking on the merits of OAC 
3745-17-03(B). Nevertheless, the more relevant point is that the 
existence of these disputes as to the merits of OAC 3745-17-03(B) 
illustrates the importance of correcting any errors that might create 
the misimpression that EPA had completed its review of these issues. 
EPA believes that the significance of the provisions in OAC 3745-17-
03(B) and the outstanding questions regarding whether those provisions 
could have been approved consistent with CAA requirements provide added 
value to correcting any misimpressions regarding the status of those 
provisions, namely misimpressions reasserted in these comments that EPA 
had already completed rulemaking on these provisions.
    Contrary to the commenter's statement, EPA's proposed rulemaking to 
correct the errors in its October 26, 2010, action was not based on a 
technical argument regarding the merits of OAC 3745-17-03(B), including 
any technical argument as to whether these provisions allow 
significantly more opacity during certain periods. This assertion 
regarding whether the now withdrawn revisions to OAC 3745-17-03 would 
allow more opacity (made in EPA's 2005 proposed rulemaking addressing 
the merits of Ohio's now withdrawn SIP revision and contested by 
various commenters) illustrates the significance of the error in the 
October 26, 2010, action. However, the commenter provided no reason why 
characterization of the issue as significant and identification of any 
of the unresolved issues that were not addressed in the October 26, 
2010, rulemaking (or elsewhere) should preclude EPA from assuring that 
the

[[Page 68461]]

October 26, 2010, rulemaking is characterized properly.
    Comment: The commenter objected to EPA statements in a separate 
unrelated rulemaking regarding SIP revisions for the State of Alabama. 
The commenter referred to EPA statements that the commenter 
characterized as citing ``the 2005 proposed disapproval of Ohio's 
revision, in part, as justification for the proposed disapproval of 
Alabama's revision.'' The commenter further asserted that this 
``mislead[s] the readers of the Alabama proposal that Ohio's proposed 
disapproval has followed its due course, when it has not.'' The 
commenter requested that ``any action taken on the Alabama proposal 
should not be used as justification for disapproving Ohio's 
provision.''
    Response: EPA acknowledges that the proposed action concerning the 
State of Alabama mentioned the June 27, 2005, proposed disapproval of 
the Ohio submission. The existence of that proposal was, and is, a 
matter of record. EPA mentioned the June 27, 2005, proposed disapproval 
merely as means of explaining its views on relevant issue, not as a 
basis for a particular final action. The commenter did not explain why 
this comment concerning a proposed action in another state is relevant 
to the present error correction action concerning Ohio, nor does EPA 
consider it germane to this final action. In any event, the state has 
now withdrawn the portion of the submission that EPA proposed to 
disapprove, so this comment is moot.

Ohio Utility Group

    Comment: The commenter asserted that ``U.S. EPA's action is not 
trivial and is not a mere `correction.' In support of this statement, 
the commenter recited its view of the history of rulemaking on OAC 
3745-17-03(B), including adoption by Ohio and proposed disapproval by 
EPA. The commenter observed that EPA received extensive comments on the 
June 27, 2005, proposed disapproval, but acknowledged that ``U.S. EPA 
never finalized this proposed action and, based on a review of the 
record, U.S. EPA never responded to comments submitted on this proposed 
rule.'' The commenter presented a summary of arguments in support of 
the merits of the opacity ``exemption'' in OAC 3745-17-03(B) that EPA 
proposed to disapprove in the June 27, 2005, proposal, and concluded 
that ``this exemption is technically defensible and the data [compiled 
to formulate the exemption] were never rebutted by U.S. EPA.''
    Response: The commenter did not elaborate on its argument that 
EPA's proposed error correction action ``is not trivial'' or why EPA's 
proposed action is not consistent with EPA's authority to correct 
errors under section 110(k)(6). To the extent that the commenter is 
arguing that EPA's authority under section 110(k)(6) is limited to 
correcting ``trivial'' errors, EPA disagrees. On its face, section 
110(k)(6) authorizes EPA to correct any error in a rulemaking action 
and does not restrict that authority to correction of errors that other 
parties might characterize as ``trivial.'' By its plain terms, EPA's 
authority under section 110(k)(6) extends broadly to ``action 
approving, disapproving, or promulgating any plan or plan revision (or 
part thereof), area designation, redesignation, classification, or 
reclassification.'' Similarly, by its plain terms EPA's authority is 
not limited with respect to the nature or seriousness of the error, 
i.e., it is not restricted to correction of ``trivial'' errors.
    EPA and the commenters appear to agree on the fact that the 
revisions to OAC 3745-17-03(B) that EPA proposed to disapprove are 
important substantive provisions. In EPA's view, the importance of 
these provisions makes it necessary for EPA to clarify the fact that 
the October 26, 2010, rulemaking did not make any substantive revision 
to these provisions, and EPA cannot be considered to have lawfully 
acted on the revisions provisions without considering the comments for 
and against its June 27, 2005, proposal to disapprove them. Regardless 
of whether the error was ``trivial'' or not, EPA has concluded that the 
error warrants correction pursuant the authority of section 110(k)(6) 
(or under authorities that EPA is not using in this action).
    The commenters' substantive arguments regarding the merits of OAC 
3745-17-03(B) are not germane here, because they are not relevant to 
determining whether the codification contained in EPA's October 26, 
2010, action was an erroneous description of that rulemaking action. 
The only issue in this action is EPA's correction of the error. 
Moreover, now that the state has withdrawn the submission seeking 
substantive revisions to OAC 3745-17-03(B), these comments are moot.
    Comment: The commenter, in describing EPA's actions, states that 
``[i]n 2010, . . . it appeared that U.S. EPA approved [OAC] 3745-17-03 
in its entirety.''
    Response: The commenter evidently agrees that EPA had only 
``appeared'' to have approved substantive revisions to OAC 3745-17-
03(B) in the October 26, 2010, action, because that is how they 
themselves describe what occurred.
    Comment: The commenter made several assertions that it believes 
preclude EPA from finalizing this error correction. First, the 
commenter ``object[ed] to U.S. EPA's statement that a comment period 
was not required in issuing [the correction EPA published on April 3, 
2013].'' The commenter stated that section 110(k)(6) dictates how EPA 
should make corrections to past rulemakings. The commenter also noted 
that section 110(k)(6) in particular requires that an error made 
through notice and comment rulemaking can only be corrected through 
notice and comment rulemaking. The commenter asserted that EPA's April 
3, 2013, action to effectuate the correction of the October 26, 2010, 
action was invalid because it failed to meet this requirement of 
section 110(k)(6).
    Response: While EPA continues to believe that the Administrative 
Procedures Act provides independent authority for agencies to issue 
corrections, that authority was not the basis of this rulemaking. The 
commenter submitted a petition for reconsideration requesting that EPA 
publish notice and solicit comment pursuant to its error correction 
authority under Clean Air Act section 110(k)(6). EPA granted that 
request, and this action is the final step of the requested error 
correction rulemaking. The commenter objected to the procedure EPA used 
to correct the error in the April 3, 2013, rulemaking, but that 
rulemaking is being replaced by this rulemaking under section 
110(k)(6). Thus, comments concerning the procedure EPA should or should 
not have followed with respect to the April 3, 2013, rulemaking are not 
relevant and in fact are made moot by this action. In short, EPA is 
correcting the error by the procedure that the commenter advocated.
    Comment: The commenter also objected that EPA did not have ``good 
cause'' (in its April 3, 2013, rulemaking) under the Administrative 
Procedures Act section 553(b) to make corrections without undergoing 
notice and comment. The commenter asserted its view that notice and 
comment (for EPA's April 3, 2013, action) was ``not impracticable, 
unnecessary or contrary to the public interest.'' In other words, the 
commenter disagreed with EPA's determination that there was a good 
cause exception to the normal requirements for notice and comment, 
given the nature of error at issue.
    Response: EPA disagrees with the commenter's conclusion that 
correction of what was essentially a typographical

[[Page 68462]]

error requires full notice and comment rulemaking in all cases. 
Nevertheless, EPA notes that this comment suggests that the commenter 
acknowledged that Administrative Procedures Act section 553(b) 
authorizes corrections, even without notice and opportunity for 
comment, so long as EPA adequately justifies the decision not to 
undergo notice and opportunity for comment. In any case, EPA concludes 
that this rulemaking does not invoke that authority to forego notice 
and comment for good cause, and this action makes moot the rulemaking 
(published April 3, 2013) that did invoke that authority.
    Comment: The commenter also objected to EPA's description of the 
error in the October 26, 2010, action as essentially a typographical 
error. The commenter claimed that ``[t]he Utilities did not submit 
comments [at the time of EPA's October 26, 2010, rulemaking] because 
U.S. EPA approved Ohio Adm. Code 3745-17-03 in its entirety as the 
notice indicated. Had the Utilities understood that these rules were 
selective to subpart (A), the Utilities may have submitted comments on 
this proposal.''
    Response: As an initial matter, EPA notes that the commenter's 
claim supports the Agency's view that the error in the October 26, 
2010, action engendered confusion and misunderstanding among some 
affected parties. The commenter speculates that had EPA's October 26, 
2010, rulemaking used preamble language and a codification that more 
clearly identified that the only revision to OAC 3745-17-03 that EPA 
was approving was the cross reference in OAC 3745-17-03(A), it might 
have commented. Presumably those comments would have urged EPA to 
approve portions of OAC 3745-17-03 that were outside the scope and 
purpose of the applicable state submission, which with respect to OAC 
3745-17-03 only requested the revision of the cross reference in OAC 
3745-17-03(A). In such a hypothetical situation, EPA presumably would 
have responded to those comments by explaining that it was not 
approving any revision to OAC 3745-17-03 beyond the cross reference in 
OAC 3745-17-03(A) and that comments beyond that narrow issue were 
beyond the scope of the October 26, 2010, rulemaking.
    In any case, the commenter has now had the opportunity to comment 
on the very issue that it speculated it would have commented on under 
the 2010 conditions it hypothesized. The proposed rulemaking for this 
error correction action proposed to find that rulemaking on portions of 
OAC 3745-17-03 other than OAC 3745-17-03(A) in the 2010 air quality 
standards rulemaking would have been outside the scope of that 
rulemaking. Thus, EPA solicited comment on precisely the issue that the 
commenter speculated it would have commented on in its hypothesized 
2010 circumstances, i.e., whether or not rulemaking on OAC 3745-17-
03(B) would have been an appropriate part of the 2010 rulemaking on 
Ohio's air quality standards submittal. Of note is that in the actual, 
present circumstances, the commenter had the benefit of express EPA 
statements in the February 7, 2014, proposal, stating that any action 
in response to Ohio's submittal of September 10, 2009, on portions of 
OAC 3745-17-03 other than OAC 3745-17-03(A) would be outside the scope 
of the rulemaking because it would not be pertinent to the SIP revision 
request that EPA was considering.
    Finally, EPA notes that the commenter did in fact comment, to urge 
approval of revisions in OAC 3745-17-03(B), without contesting EPA's 
view that these provisions are outside the scope of the relevant state 
submission and EPA's rulemaking thereon. As explained in the proposal 
for this action, those revisions were not at issue in its October 26, 
2010, rulemaking and are not at issue in this error correction. EPA 
regrets the inconvenience to all parties that arose from the error in 
its October 26, 2010, rulemaking. However, the point here is that it is 
unnecessary to speculate on how the commenter would have commented on 
the October 26, 2010, rulemaking had that rulemaking more clearly 
stated that the only revision to OAC 3745-17-03 under consideration was 
the revision to the cross reference in OAC 3745-17-03(A). The commenter 
has now had the opportunity to comment on the applicable issues, and 
EPA is addressing its comments here.
    Comment: The commenter also objected to EPA's statements in the 
proposal for this action that it is correcting what is essentially a 
typographical error. The commenter asserted that this ``correction is 
not trivial.''
    Response: The commenter did not explain its substantive grounds for 
objecting to EPA's proposed error correction. The commenter omits any 
rationale for why the significance of the provisions of OAC 3745-17-
03(B) would justify labeling the mistaken codification in EPA's October 
26, 2010, rulemaking as anything other than an error or why, regardless 
of label, the misleading codification does not warrant correction. For 
example, the commenter implies that a significance criterion applies in 
judging whether a statement is in error, as if an action with 
significant ramifications cannot be in error or that errors cannot have 
significant consequences. However, the commenter offered no rationale 
for why the misstatements in the October 26, 2010, rulemaking, whatever 
the significance of those misstatements, should not be considered to be 
in error.
    EPA's proposed rulemaking provides extensive discussion of why EPA 
believes that the codification in its October 26, 2010, action was in 
error, including multiple reasons that demonstrate that EPA did not 
intend and could not have intended to approve provisions in OAC 3745-
17-03 that were beyond the stated purpose of Ohio's submission, which 
with respect to OAC 3745-17-03 was only to revise the cross reference 
in OAC 3745-17-03(A). Conspicuously absent from the commenter's 
comments is any specific argument contesting EPA's rationale for this 
error correction, be it to question EPA's interpretation of Ohio's 
September 10, 2009, submission, to dispute that EPA did not intend and 
could not have intended to take action on OAC 3745-17-03(B), or to 
challenge EPA's assertion that in any case there has been no legally 
valid action on OAC 3745-17-03(B) because EPA has not addressed 
pertinent comments on its prior proposed disapproval of that separate 
revision (including comments that the commenter itself attests to 
making).
    Comment: The commenter states, ``the Utilities disagree with U.S. 
EPA's assertion that its `correction' does not allow substantive 
comments on Ohio Adm. Code 3745-17-03.'' The commenter further asserted 
that ``U.S. EPA's action is essentially making Ohio's SIP more 
stringent than it was when it approved Ohio Adm. Code 3745-17-03 in 
2010. . . . [Therefore,] the Utilities believe that substantive 
comments on Ohio Adm. Code 3745-17-03 are proper and should be 
considered by U.S. EPA.''
    Response: These comments misrepresent EPA's assertion, 
mischaracterize EPA's action, and provide no rationale for EPA to 
change its views on relevant matters. EPA's proposed rulemaking states: 
``any substantive revisions to OAC 3745-17-03, including any revisions 
to OAC 3745-17-03(B)(1), are not at issue in this rulemaking. Only 
comments regarding EPA's correction of the error in the October 26, 
2010, action are germane to this rulemaking under section 110(k)(6).'' 
The commenter may elect to make comments that are not germane, and the 
commenter has

[[Page 68463]]

exercised its right to do so, though the commenter has not challenged 
EPA's proposed rationale as to the scope of comments that should be 
considered germane. For example, even if EPA's action could be 
misconstrued as a substantive revision to the approved SIP (which it is 
not), and whether the newer version of OAC 3745-17-03(B) is less 
stringent than the older version (as the commenter contended in these 
comments) or not (as the commenter contended in its attached comments 
from 2005), the commenter does not explain why this asserted change in 
stringency justifies predicating EPA's action to correct an error on 
the substantive merits of erroneously codified provisions. Therefore, 
EPA concludes that comments as to the substantive merits of OAC 3745-
17-03(B) are not germane to this action, which only addresses the error 
that occurred in the October 26, 2010, action pertaining to Ohio EPA's 
submission regarding its air quality standards rules.
    Similarly, the commenter mischaracterized EPA's proposed error 
action, asserting that EPA is hereby removing an approval of portions 
of OAC 3745-17-03 that, it asserted, EPA approved in the October 26, 
2010, action. The proposed rulemaking explained at length that EPA 
cannot have approved any portion of 3745-17-03 in 2010 other than the 
cross reference in OAC 3745-17-03(A), and so the action EPA proposed 
clarifies the approved SIP without changing the substance of what has 
actually been approved. Again, the commenter provided no rationale for 
adopting its views as to the nature of EPA's proposed action rather 
than the views EPA proposed.

Chamber et al.

    Comment: The commenter provided an extensive description of 
provisions in OAC 3745-17-03(B). The commenter also provided a history 
of this provision, including Ohio's submission of the provision to EPA 
in June 2003, EPA's proposal to disapprove the provision in June 2005, 
the (erroneous) appearance of EPA approving the provision on October 
26, 2010, the EPA correction of this appearance on April 3, 2013, 
without reference to correction authority in Clean Air Act section 
110(k)(6), a petition for EPA to reconsider this correction, and EPA's 
proposal published on February 7, 2014, to make this correction under 
the authority of Clean Air Act section 110(k)(6).
    Response: EPA generally agrees with the commenters recitation of 
the facts, but does not agree with the implication that ``appearing'' 
to approve the revision means that it was in fact approved. Moreover, 
this portion of these comments provides background information and does 
not urge any changes to EPA's views underlying the relevant proposed 
action, and so no detailed review of this portion of these comments is 
warranted. Any history of the provisions of OAC 3745-17-03(B) should 
also note that Ohio (subsequent to these comments) has withdrawn its 
submission that sought approval of the provision.
    Comment: The commenter stated that it ``submit[ted] these comments 
for two reasons. First, we would like to briefly address EPA's comment 
that the COMS provision is `significant and substantive' and `would 
allow significantly more opacity during certain periods.' This appears 
to be a reference to [text in EPA's June 2005 proposed rulemaking (at 
70 FR 36903), quoted in the comment].''
    The commenter raised several objections to these EPA statements. 
The commenter asserted that the scenario EPA discussed in the June 2005 
proposed disapproval, intended as an example case in which the revised 
version of OAC 3745-17-03(B) ``allow[s] excess opacity on occasions 
that excess opacity is currently prohibited,'' to reflect an unlikely 
pattern of operation that would not be expected to be identified as a 
violation using the reference method (Method 9) of the unrevised rule. 
``In summary, the alternative of continuous instrumental monitoring of 
in-stack opacity in lieu of periodic Method 9 visible emission 
observations may be `significant and substantive' in terms of imposing 
more stringent performance obligations, but it certainly [is] not a 
`significant and substantive' relaxation of the performance obligation 
where Method 9 is the SIP reference test for opacity.''
    Response: The commenter is correct that the pertinent statement in 
the February 7, 2014, proposed rulemaking reflects the views expressed 
in the cited statement in EPA's June 27, 2005, proposed rulemaking. The 
commenter also observed that EPA has not completed rulemaking pursuant 
to this June 2005 proposed disapproval. EPA's purpose for making these 
statements in the proposal for this error correction was to provide 
context and to explain the significance of the error, not to take a 
substantive position. To be clear, in the June 2005 proposal, EPA 
proposed to find that the revised version of OAC 3745-17-03(B) would 
have allowed significantly more opacity during certain periods and that 
the state had failed to provide a section 110(l) or section 193 
analysis to justify the resulting relaxation; subsequently, EPA 
received comments disputing that finding, and EPA has not yet taken 
final action on that proposal.
    Because Ohio has withdrawn its June 2003 submission, however, EPA 
will be conducting no further rulemaking on that submission. Therefore, 
it is no longer germane to any ongoing rulemaking whether Ohio's June 
2003 submission would have tightened or relaxed the stringency of 
Ohio's existing SIP. In any case, the desirability of clarifying the 
status of OAC 3745-17-03(B) is not contingent on any final judgment 
regarding the effect of previously submitted revisions to OAC 3745-17-
03(B) on allowable opacity. In its February 7, 2014, proposal, EPA 
sought merely to explain why the error in its October 26, 2010, final 
rule warranted correction. Comments from the Ohio Utilities Group 
discussed above suggest that the provisions of OAC 3745-17-03(B), and 
the associated relaxation of requirements, are too important to be the 
subject of an error correction. These comments from the Chamber et al. 
argue that the provisions of OAC 3745-17-03(B) are not a ``significant 
and substantive'' relaxation of the opacity-related requirements and in 
fact may be a ``significant and substantive'' tightening of performance 
obligations. Regardless of these conflicting comments, three parties 
have concluded that the status of OAC 3745-17-03(B) is sufficiently 
important to comment on rulemaking proposing to clarify the status of 
this rule. Even aside from questions regarding the substantive 
consequences of revisions to OAC 3745-17-03(B), EPA seeks clarity 
regarding which rules have been approved into the SIP, especially for 
rules that prompt significant substantive interest. Consequently, EPA 
has concluded that it is important to clarify the scope of EPA's 
rulemaking on Ohio's submittal addressing air quality standards and to 
correct the errors in the October 26, 2010, action that created a 
misimpression that EPA had approved OAC 3745-17-03(B)as a part of the 
SIP.
    Comment: The commenter also asked that EPA complete its rulemaking 
action on the June 2003 SIP revision that EPA addressed in the June 
2005 proposed disapproval.
    Response: Ohio has withdrawn the pertinent elements of its June 
2003 SIP revision submission. Thus, no portion of this submission 
remains pending.

III. What action is EPA taking?

    Pursuant to section 110(k)(6), EPA is determining that its October 
26, 2010, rulemaking was in error to the extent

[[Page 68464]]

that it appeared to approve revisions to OAC 3745-17-03 beyond the 
revision to the cross reference in OAC 3745-17-03(A). Through this 
action, EPA is clarifying that in the October 26, 2010, action, the 
Agency did not approve any revisions to OAC 3745-17-03 except for the 
specific revision to the cross reference in OAC 3745-17-03(A) requested 
by the state. But for that change, the currently applicable version of 
OAC 3745-17-03 in the Ohio SIP is the version effective in the state on 
January 31, 1998, approved by EPA on October 16, 2007. The currently 
applicable version of OAC 3745-17-03 in the Ohio SIP does not contain 
any revisions addressed in EPA's proposed approval and disapproval on 
June 27, 2005. This action establishes that the codification of EPA's 
October 26, 2010, action, in relevant part at 40 CFR 
52.1870(c)(151)(i)(A), is clarified pursuant to the authority of Clean 
Air Act section 110(k)(6) to codify the approval of only the revised 
cross reference in OAC 3745-17-03(A) and not of any other portions of 
OAC 3745-17-03. In particular, EPA in that action did not approve any 
revisions related to OAC 3745-17-03(B).
    On April 3, 2013, EPA used its authority under section 553 of the 
Administrative Procedures Act to amend the erroneous codification in 
its October 26, 2010, rulemaking without notice and comment rulemaking. 
In that rulemaking, EPA corrected the erroneous statements and the 
misleading codification to reflect more clearly that EPA had only 
approved the one narrow revision requested by the state in OAC 3745-17-
03, i.e., the revision of the cross reference in OAC 3745-17-03(A). 
Thus, effective April 3, 2013, the Code of Federal Regulations has 
properly reflected the corrected codification. In response to a 
petition for reconsideration, EPA today is replacing that prior 
correction with an error correction pursuant to section 110(k)(6). 
Nevertheless, during the pendency of the current rulemaking pursuant to 
section 110(k)(6), EPA opted not to stay or revoke the correction 
action of April 3, 2013, to avoid exacerbating the misimpressions 
caused by the October 26, 2010, error. Therefore, the status quo is 
that the Code of Federal Regulations already reflects the corrected 
codification.
    Ordinarily, a rulemaking establishing a corrected codification 
would include not just a preamble but would also include a codification 
section, in which the Office of the Federal Register is instructed to 
amend the applicable sections of the Code of Federal Regulations. 
However, this action involves circumstances in which the pertinent 
section of the Code of Federal Regulations already correctly reflects 
the EPA approved version of OAC 3745-17-03, as a result of action taken 
April 3, 2013. Conceptually, this action replaces the pertinent 
revisions to the Code of Federal Regulations promulgated on April 3, 
2013, with identical revisions pursuant to this action. In practical 
terms, the net effect of this action is no change in the Code of 
Federal Regulations. It is inappropriate to provide a null set of 
instructions, to instruct the Office of the Federal Register to make no 
changes to the Code of Federal Regulations. Therefore, this action 
includes no instructions to the Office of the Federal Register, no 
requested revisions to the Code of Federal Regulations, and indeed no 
codification section. As a result, the Office of the Federal Register's 
records will show the pertinent revisions as being made April 3, 2013. 
Nevertheless, this action should be viewed as replacing those 
corrections, promulgated under the authority of Administrative 
Procedures Act section 553, with identical corrections, promulgated 
under the authority of Clean Air Action section 110(k)(6).

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
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 Clean Air Act. 
This action merely corrects an error in EPA's prior action 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 (Public Law 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 CAA; 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 4, 2016. 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. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2)).

[[Page 68465]]

List of Subjects in 40 CFR Part 52

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

    Dated: October 22, 2015.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2015-28095 Filed 11-4-15; 8:45 am]
 BILLING CODE 6560-50-P