[Federal Register Volume 85, Number 31 (Friday, February 14, 2020)]
[Rules and Regulations]
[Pages 8406-8408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02267]



40 CFR Part 52

[EPA-R05-OAR-2012-0990; FRL-10005-04-Region 5]

Air Plan Approval; Ohio; Prevention of Significant Deterioration 
Greenhouse Gas Tailoring Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is approving, under 
the Clean Air Act (CAA), a revision to Ohio's State Implementation Plan 
(SIP) as requested by the Ohio Environmental Protection Agency (OEPA) 
on March 30, 2011, and amended on August 22, 2019 and December 10, 
2019. The revision to Ohio's SIP modifies Ohio's Prevention of 
Significant Deterioration (PSD) program to establish emission 
thresholds for determining when stationary source projects are 
potentially subject to Ohio's PSD permitting requirements for 
greenhouse gas (GHG) emissions. Consistent with Ohio's requests, EPA is 
taking no action on paragraphs (B), (C), and (D) of Ohio's GHG rule.

DATES: This final rule is effective on March 16, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2012-0990. 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.

I. Background Information

    On November 18, 2019, EPA proposed to approve a revision to Ohio's 
PSD rules contained in Ohio Administrative Code (OAC) 3745-31 to 
include Ohio's 3745-31-34 GHG rule. See 84 FR 63601, November 18, 2019. 
An explanation of the CAA requirements, a detailed analysis of the 
proposed revision, and EPA's reasons for proposing approval were 
provided in the notice of proposed rulemaking (NPRM), and will not be 
restated here. The public comment period for this proposed rule ended 
on December 18, 2019. EPA received four comments on the proposal.

II. Response to Comments

    During the comment period, EPA received four comments on the 
November 18, 2019 NPRM. None of the four comments were adverse to the 
proposed action.
    The first comment was anonymous and was in support of the proposed 
approval of Ohio's GHG rule, and also asked why the rule was only being 
implemented in Ohio. The second comment was Ohio's December 10, 2019 
request that EPA not act on the OAC 3745-31-34(B) paragraph in the 
submittal. The third comment was from the Ohio Chemistry Technology 
Council, the Ohio Chamber of Commerce, and the Ohio Manufacturers' 
Association and was in support of Ohio's December 10, 2019 request that

[[Page 8407]]

EPA not act on paragraph (B) of Ohio's OAC 3745-31-34 GHG rule. The 
last comment was anonymous and not germane or relevant to this action 
because it lacks the required specificity to the proposed SIP revision 
and relevant requirements of CAA section 110(l). Moreover, the comment 
does not recommend a different action on the SIP submission from what 
EPA proposed. All of the comments received are included in the docket 
for this action. A summary of the comments and EPA's responses are 
provided below.
    Comment 1: The anonymous commenter was in support of the proposed 
approval of Ohio's GHG rule, but also asked why this GHG rule was only 
being implemented in Ohio seeing that there are plenty of other states 
with stationary source projects.
    Response 1: OEPA is the air permitting authority for the State of 
Ohio and can only regulate emissions from permitted sources in Ohio. 
Other states have developed GHG rules to regulate GHG emissions from 
their own respective state.
    Comment 2: On December 10, 2019, Ohio submitted a comment on the 
proposed approval of their GHG rule. This comment requested that EPA 
not act on OAC 3745-31-34(B), thus, this request amends the March 30, 
2011 SIP revision submittal. Ohio is considering changes to OAC 3745-
31-34(B), (C), and (D), as well as the OAC 3745-77-11 GHG title V rule, 
thus, requested that EPA not act on those sections.
    Response 2: EPA will grant Ohio's request to not act on paragraph 
(B) of their OAC 3745-31-34 GHG rule. Paragraph (B) is the portion of 
Ohio's submittal that would have allowed GHG sources with actual 
emissions of GHGs less than 100,000 tons per year (tpy) to have their 
potential to emit of GHGs be considered to be less than the 100,000 tpy 
GHG threshold if they submitted a permit application prior to July 1, 
2011. EPA agrees that paragraph (B) is not needed in the Ohio SIP 
because it is moot due to the fact that Ohio doesn't have any pending 
permit applications for which might be affected by this rule section 
which dealt with permit applications submitted prior to July 1, 2011.
    Comment 3: The Ohio Chemistry Technology Council, the Ohio Chamber 
of Commerce and the Ohio Manufacturers' Association expressed support 
of Ohio's request (see comment 2 above) for EPA to not act on OAC 3744-
31-34(B). They explained their concern that paragraph (B) is mooted by 
time because Ohio doesn't have any pending permit applications prior to 
July 1, 2011, and that paragraph (B) deals with GHG Tailoring Rule Step 
2 sources which are no longer regulated by EPA. The comment further 
states that approval of paragraph (B) would serve no purpose and would 
only create confusion over the proper mechanisms for avoiding GHG PSD 
requirements for sources covered by GHG Tailoring Rule Step 1 sources.
    Response 3: EPA agrees with the commenter and will not act on OAC 

III. Final Action

    EPA is approving Ohio's March 30, 2011 SIP submittal, as amended on 
August 22, 2019 and December 10, 2019, relating to PSD requirements for 
GHG-emitting sources in OAC 3745-31-34. Specifically, Ohio's SIP 
revision establishes appropriate emissions thresholds for determining 
PSD applicability for new and modified GHG-emitting sources in 
accordance with EPA's GHG Tailoring Rule and the 2014 Utility Air 
Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427 decision. Per Ohio's 
August 22, 2019 and December 10, 2019 amended SIP requests, EPA is not 
acting on OAC 3745--31-34(B), (C), and (D), or OAC 3745-77-11, which is 
Ohio's GHG title V rule. In the November 18, 2019 NPRM, EPA proposed to 
approve OAC 3745-31-34(B), but EPA is not acting on that paragraph due 
to Ohio's December 10, 2019 request.
    As a result of EPA's approval of Ohio's changes to its air quality 
regulations to incorporate the appropriate thresholds for GHG 
permitting applicability into Ohio's SIP, paragraph (b) in 40 CFR 
52.1873, as included in EPA's PSD Narrowing Rule, is no longer 
necessary. In this final action, EPA is also amending 40 CFR 52.1873 to 
remove this unnecessary regulatory language.

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\

    \1\ 62 FR 27968 (May 22, 1997).

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

[[Page 8408]]

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. 
    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 April 14, 2020. 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, Incorporation by 
reference, Intergovernmental relations, and Reporting and recordkeeping 

    Dated: January 23, 2020.
Kurt A. Thiede,
Regional Administrator, Region 5.
    40 CFR part 52 is amended as follows:


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

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

2. In Sec.  52.1870, the table in paragraph (c) is amended by adding an 
entry in numerical order under ``Chapter 3745-31 Permit-to Install New 
Sources and Permit-to-Install and Operate Program'' for ``3745-31-34'' 
to read as follows:

Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *

                                          EPA-Approved OHIO Regulations
                                                   Ohio effective
      Ohio citation                Subject              date          EPA approval date           Comments
                                                  * * * * * * *
             Chapter 3745-31 Permit-to Install New Sources and Permit-to-Install and Operate Program
                                                  * * * * * * *
3745-31-34...............  Permits to install for       3/31/2011  2/14/2020, [insert      Except for (B), (C)
                            major stationary                        Federal Register        and (D).
                            sources and major                       citation].
                            modifications of
                            sources emitting
                            greenhouse gases.
                                                  * * * * * * *

* * * * *

Sec.  52.1873   [Amended]

3. Section 52.1873 is amended by removing and reserving paragraph (b).

[FR Doc. 2020-02267 Filed 2-13-20; 8:45 am]