[Federal Register Volume 84, Number 71 (Friday, April 12, 2019)]
[Rules and Regulations]
[Pages 14874-14877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07332]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2018-0369; FRL-9992-18-Region 5]


Air Plan Approval; Ohio; Ohio Less Than 10 TPY BAT Exemption

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving, under 
the Clean Air Act (CAA), revisions to Ohio's State Implementation Plan 
(SIP) as requested by the Ohio Environmental Protection Agency (OEPA) 
on May 22, 2018. The revisions to Ohio's SIP exempt sources that emit 
less than 10 tons per year (tpy) of each criteria pollutant from the 
need to employ Best Available Technology (BAT).

DATES: This final rule is effective on May 13, 2019.

[[Page 14875]]


ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2018-0369. All documents in the docket are listed on 
the www.regulations.gov website. 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 
through www.regulations.gov or 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 Richard Angelbeck, Environmental Scientist, at (312) 
886-9698 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Richard Angelbeck, Environmental 
Scientist, Air Permits Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-9698, [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
II. What is EPA's response to the comments?
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    On May 22, 2018, OEPA submitted a SIP revision to Ohio 
Administrative Code (OAC) rule 3745-31-05(A)(3)(a)(ii). This revision 
exempts the smaller emitting sources, those that emit less than 10 tpy 
of each criteria pollutant, from the need to employ BAT. OEPA's less 
than 10 tpy BAT exemption is in OAC 3745-31-05(A)(3)(a)(ii) and reads: 
``BAT is not required if the air contaminant source was installed or 
modified on or after August 3, 2006 and has the potential to emit 
(PTE), taking into account air pollution controls installed on the 
source, less than ten tons per year of emissions of an air contaminant 
or precursor of an air contaminant for which a national ambient air 
quality standard has been adopted under the Clean Air Act.''
    On August 3, 2006, the Ohio General Assembly passed Senate Bill 265 
(SB 265) which required OEPA to modify several of its BAT rules. One of 
the changes implemented was the less than 10 tpy BAT exemption. To 
implement the SB 265 changes, OEPA adopted revisions under OAC Chapter 
3745-31-05(A)(3)(b) on November 20, 2006, and then moved the language 
in OAC rule 3745-31-05 from paragraph (A)(3)(b) to (A)(3)(a)(ii) on 
June 30, 2008. The rule language contained in OAC rule 3745-31-
05(A)(3)(a)(ii) was carried over in OAC rule 3745-31-05, which was 
adopted on April 20, 2016 and is what EPA is now approving as a 
revision to its SIP. On January 18, 2008, OEPA requested that EPA 
approve this rule language as a revision to Ohio's SIP. EPA responded 
with a June 5, 2008 letter to OEPA indicating that the request was 
incomplete due to a lack of a CAA section 110(l) demonstration, thus 
returning the request back to OEPA.
    OEPA's May 22, 2018 SIP revision submittal included the analysis 
required by section 110(l) of the CAA. This demonstration included an 
extensive quantitative and qualitative analysis to show the impact that 
the less than 10 tpy BAT exemption would have on emissions. OEPA's 
110(l) analysis demonstrated that the air quality will not be 
negatively impacted due to the small increase in emissions as result of 
the less than 10 tpy BAT exemption. On November 14, 2018 (83 FR 56775), 
EPA published a proposed approval of the rule revision included in the 
May 22, 2018 submittal from OEPA. The specific details of OEPA's May 
22, 2018 SIP submittal and the rationale for EPA's approval were 
discussed in the November 14, 2018 notice of proposed rulemaking 
(NPRM).

II. What is EPA's response to the comments?

    EPA received three comments on the November 14, 2018 NPRM. The 
first two comments were in support of the proposed approval of OEPA's 
BAT exemption for the less than 10 tpy sources and were from the Ohio 
Chemistry Technology Council and the Ohio Chamber of Commerce, as well 
as American Municipal Power, Inc. and the Ohio Municipal Electric 
Association. The third comment was anonymous, and it expressed concern 
that the exemption was unnecessary and instead of exempting the smaller 
sources completely from the CAA and from requiring BAT, OEPA could 
provide different ways to reduce emissions from the smaller sources 
because they still emit pollutants. The comment did not indicate 
suggested ways to accomplish this goal.
    EPA Response: The CAA does not require BAT for minor sources. It 
does, however, require a states' minor NSR permit program to ensure 
that construction or modification of new sources will not interfere 
with attaining or maintaining the national ambient air quality 
standards (NAAQS). See CAA section 110(a)(2)(C) and 40 CFR 51.160(a). 
The CAA also ensures that SIP revisions such as this will not interfere 
with attainment or maintenance of the NAAQS. See CAA section 110(l). 
OEPA submitted a 110(l) analysis to demonstrate that these requirements 
are met. For sources that are constructed or modified after this SIP 
revision takes effect, OEPA relies on OAC 3745-31-05(A)(1) to ensure 
that construction or modification of new sources will not interfere 
with attaining or maintaining the NAAQS. For existing sources, OEPA 
submitted a technical analysis, discussed in the NPRM (83 FR 56775), 
demonstrating that the air quality will not be negatively impacted due 
to the small increase in emissions from existing sources as result of 
the less than 10 tpy BAT exemption. The 110(l) analysis estimated an 
increase of 23.53 tpy of volatile organic compound (VOC) emissions in 
Ohio ozone nonattainment areas resulting from the rule revisions, and 
OEPA opted to use emissions credits to mitigate any possibility of 
adverse air quality impact that may result from this increase in VOC 
emissions. These emissions credits reflect emissions reductions from 
permanently shut down emissions units in the Cleveland and Cincinnati 
areas in Ohio. The reductions are creditable because they are surplus, 
quantifiable, permanent and federally enforceable. OEPA has entered the 
23.53 tpy of VOC emission credits in its ``tracking 110(l) permanent 
retirement and SIP credits used'' database that it uses to track 
retired emissions used as emissions credits for offset purposes.

III. What Action is EPA taking?

    EPA is approving the OEPA May 22, 2018 SIP revision submittal for 
OAC 3745-31-05(A)(3)(a)(ii) that exempts the smaller sources, those 
that emit less than 10 tpy of each criteria pollutant, from the need to 
employ BAT. Ohio provided a section 110(l) demonstration with the SIP 
revision request. In order to offset potential increases in VOC 
emissions due to the less than 10 tpy BAT exemption, the demonstration 
uses 23.53 tpy of VOC emission credits from emission units at 
industrial facilities that have shut down, or permanently reduced 
emissions, in the Cleveland and

[[Page 14876]]

Cincinnati areas. The emissions credits are: 4.88 tpy of VOC emissions 
credits from the permanently shut down emission unit R010 (permanently 
shut down on 7/16/2014) at the RMC USA Inc. facility (Facility ID 
0204000423) in Ashtabula County, which is the Cleveland, Ohio area; and 
18.65 tpy of VOC emissions from the permanently shut down emission unit 
P001 (permanently shut down on 11/21/2014) at the Rock-Tenn Converting 
Co. facility (Facility ID 1431070952) in Hamilton County, which is the 
Cincinnati, Ohio area. The emissions credits have already been retired. 
Upon approval of this SIP revision, OEPA will make final in its 
database the designation of these permanent retirements as offsets for 
this rule revision and EPA bases our approval on this retirement and 
designation.
    EPA finds that Ohio's exemption of the less than 10 tpy sources 
from the need to employ BAT is consistent with Federal requirements and 
is approving the rule revision as a component of the Ohio SIP because, 
as discussed above, EPA has found that the less than 10 tpy BAT 
exemption does not interfere with attainment or maintenance of any of 
the NAAQS and would not interfere with any other applicable 
requirements of the CAA, and thus, along with the permanent retirement 
of the emissions credits, is approvable under CAA section 110(l).

IV. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the Ohio 
Regulations described in the amendments to 40 CFR part 52 set forth 
below. EPA has made, and will continue to make, these documents 
generally available through www.regulations.gov, and at the EPA Region 
5 Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information). 
Therefore, these materials have been approved by EPA for inclusion in 
the State implementation plan, have been incorporated by reference by 
EPA into that plan, are fully federally enforceable under sections 110 
and 113 of the CAA as of the effective date of the final rulemaking of 
EPA's approval, and will be incorporated by reference in the next 
update to the SIP compilation.\1\
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    \1\ 62 FR 27968 (May 22, 1997).
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V. 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 June 11, 2019. 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)).

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: March 26, 2019.
Cathy Stepp,
Regional Administrator, Region 5.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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


0
2. In Sec.  52.1870, the table in paragraph (c) is amended by revising 
the entry for ``3745-31-05'' to read as follows:

[[Page 14877]]

Sec.  52.1870  Identification of plan.

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    (c) * * *

                                          EPA-Approved Ohio Regulations
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                                                   Ohio effective
       Ohio citation             Title/subject          date        EPA approval date             Notes
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             Chapter 3745-31 Permit-to-Install New Sources and Permit-to-Install and Operate Program
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                                                  * * * * * * *
3745-31-05.................  Criteria for                5/1/2016  4/12/2019, [insert   Except for (E).
                              Decision by the                       Federal Register
                              Director.                             citation].
 
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[FR Doc. 2019-07332 Filed 4-11-19; 8:45 am]
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