[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Rules and Regulations]
[Pages 19670-19674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06819]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2019-0522; FRL-10007-21-Region 5]


Air Plan Approval; Ohio; Revisions to NOX SIP Call Rules

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) a request from the Ohio Environmental 
Protection Agency (Ohio EPA) to revise the Ohio State Implementation 
Plan (SIP) to incorporate revisions to Ohio Administrative Code (OAC) 
Chapter 3745-14 regarding the Nitrogen Oxides (NOX) SIP 
Call. This SIP revision approves additional monitoring options for 
certain covered sources for NOX SIP Call purposes.

DATES: This final rule is effective on April 8, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2019-0522. 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 Eric Svingen, Environmental Engineer, at (312) 353-
4489 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer, 
Attainment Planning and Maintenance

[[Page 19671]]

Section, Air Programs Branch (AR-18J), Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 
353-4489, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. What is the background for this final rule?

    On October 27, 1998, EPA published the NOX SIP Call, 
which required eastern states, including Ohio, to submit SIPs that 
prohibit excessive emissions of ozone season NOX by 
implementing statewide emissions budgets (63 FR 57356). Under the 
NOX SIP Call regulations as originally promulgated, where a 
state's SIP relies on control measures for Electric Generating Units 
(EGUs) and large non-EGUs to achieve the required emissions reductions, 
the SIP must also require these sources to monitor emissions according 
to the provisions of 40 CFR part 75, which generally entails the use of 
continuous emission monitoring systems (CEMS). Ohio triggered this 
requirement by including control measures in their SIP for these types 
of sources, and the requirement has remained in effect despite the 
discontinuation of the NOX Budget Trading Program under the 
NOX SIP Call after the 2008 ozone season.
    On March 8, 2019, EPA finalized updates to the NOX SIP 
Call regulations that make the inclusion of 40 CFR part 75 monitoring 
requirements for these sources in SIPs optional rather than mandatory 
for NOX SIP Call purposes (84 FR 8422). Under the updated 
provision, a state's SIP would still need to include some form of 
emissions monitoring requirements for these types of sources, 
consistent with the NOX SIP Call's general enforceability 
and monitoring requirements, but states would no longer be required to 
satisfy these general NOX SIP Call requirements specifically 
through the adoption of 40 CFR part 75 monitoring requirements. In 
Ohio, the sources potentially affected by this amendment include large 
non-EGUs covered by the NOX SIP Call that are not required 
to monitor according to 40 CFR part 75 under other programs such as the 
Acid Rain Program or a Cross-State Air Pollution Rule (CSAPR) trading 
program.
    On August 26, 2019, Ohio EPA submitted a request that EPA update 
Ohio's SIP to reflect revised rules at OAC Chapter 3745-14. The revised 
rules expand the set of allowed monitoring methodologies available to 
Ohio's large non-EGUs for NOX SIP Call purposes and set 
forth the process by which an affected source's designated 
representative may apply to the Ohio EPA director for an installation 
or operating permit authorizing the source to switch to one of the 
newly allowed methodologies. The new methodologies include one based on 
40 CFR part 60 monitoring procedures and another based on monitoring of 
heat input combined with the use of an approved source-specific 
emission factor. On November 4, 2019, EPA published a rulemaking 
proposing to approve Ohio's request to update the Ohio SIP to reflect 
these revised rules (84 FR 59327). Public comments on the proposal were 
due by December 4, 2019. EPA's rationale for approving Ohio's request, 
including EPA's basis for finding that approval of the request is not 
prohibited by section 110(l) of the CAA, is set forth in the proposal 
and is not repeated here except as necessary to respond to comments.

II. What are EPA's responses to comments?

    During the comment period, EPA received two comments, both of which 
are available in the docket for this action. One comment is supportive 
of EPA's proposed action. The second comment, which was submitted in 
two parts, questions whether approval of the revised rules into the 
Ohio SIP would be consistent with certain EPA guidance documents and 
requests that the monitoring requirements for individual sources be 
approved into the SIP. A summary of the second comment and EPA's 
response is provided below.
    Comment: The commenter first cites an EPA guidance document, 
referred to here as the Blue Book, which discusses SIP approvability 
considerations for state rules establishing reasonably available 
control technology (RACT) requirements for volatile organic compounds 
(VOC).\1\ The comment quotes from a section headed ``Exemptions, 
Variances, and Alternative Means of Control'' addressing state rules 
that include what the document calls ``generic'' provisions. The 
commenter asks how EPA is ``meeting the requirements that pertain to 
generic regulations'' in the Blue Book.
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    \1\ ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations--Clarification to Appendix D of November 24, 1987 
Federal Register,'' May 25, 1988, revised January 11, 1990 (the 
``Blue Book''). Though the commenter did not submit a copy of the 
cited document with its comment, the document is available in the 
docket for this action and online at https://www.epa.gov/sites/production/files/2016-08/documents/voc_bluebook_25may1988.pdf. The 
commenter cites to page 238 of a compilation that includes most of 
the original 1988 version of the Blue Book along with over 40 other 
EPA guidance documents. EPA has docketed the revised 1990 version of 
the Blue Book but has not docketed the other documents in the 
compilation because the comment does not address them. The changes 
between the 1988 and 1990 versions of the Blue Book are not germane 
to the comment. The Blue Book section containing the quoted language 
appears on pages 1-3 to 1-4 of both versions.
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    Next, the commenter cites a different EPA guidance document, 
referred to here as the Generic RACT Rule Guidance, which discusses SIP 
approvability considerations for state rules that do not currently have 
specific RACT requirements established for sources, but where there is 
a general regulatory requirement that certain sources meet RACT and 
that those RACT limits be submitted to EPA for approval.\2\ The 
commenter quotes from the document's definition of a ``generic'' rule 
and asks EPA to ``explain how Ohio's generic process-setting rule is 
allowed when no specific monitoring requirements are being established 
at this time.''
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    \2\ ``Approval Options for Generic RACT Rules Submitted to Meet 
the Non-CTG VOC RACT Requirement and Certain NOX RACT 
Requirements,'' November 7, 1996 (the ``Generic RACT Rule 
Guidance''). Though the commenter did not submit a copy of the cited 
document with its comment, the document is available in the docket 
for this action and online at https://www.epa.gov/sites/production/files/2016-08/documents/shavermemogenericract_7nov1996.pdf.
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    Finally, the commenter asks EPA to ``affirmatively state that 
sources wishing to use alternative monitoring methods under [Ohio's 
monitoring rule] must be approved by EPA into the Ohio SIP'' and that 
``without this approval the sources must still comply with the normal 
monitoring methods even if the source is granted approval at the state 
level.''
    Response: EPA does not agree that approval of Ohio's rule revisions 
into the SIP would be inconsistent with the cited EPA guidance 
documents or that individual sources' specific monitoring requirements 
for NOX SIP Call purposes must be approved into the SIP.
    With respect to the suggestions of inconsistencies with the cited 
guidance documents, EPA disagrees that the documents apply to this 
action, for two principal reasons. The first reason is that the focus 
of both documents is the approvability of state rules establishing 
emission control requirements to meet certain provisions of the CAA 
requiring SIPs to include provisions to implement RACT at certain 
sources in nonattainment areas, see CAA section 182(b)(2), not 
monitoring requirements. This action does not concern such RACT 
emission control requirements. The control measure that Ohio's affected 
non-EGUs are using to meet the underlying emissions reduction

[[Page 19672]]

requirements under the NOX SIP Call for purposes of 
addressing the provisions of CAA section 110(a)(2)(D)(i)(I)--
specifically, a collective cap on the sources' seasonal NOX 
mass emissions--has already been approved into the Ohio SIP, see 84 FR 
48789 (September 17, 2019), and Ohio has not sought to modify those 
requirements in this SIP revision. The Ohio rule revisions at issue in 
this action address only the monitoring methodologies that will be 
available for use by the affected sources to demonstrate compliance 
with the approved section 110(a)(2)(D)(i)(I) control measure.
    The second reason EPA disagrees that the cited guidance documents 
apply to this action is that--even assuming that in some situations the 
considerations raised in the documents with regard to a ``generic'' 
emission control provision might also be relevant to a ``generic'' 
monitoring rule--the revised Ohio monitoring rule at issue in this 
action is not a ``generic'' rule as defined in either document. Those 
guidance documents generally define a ``generic'' rule as one that 
commits sources to comply with an underlying Federal obligation in the 
future while deferring establishment of the actual requirements that 
sources must meet. The commenter does not identify what aspect of the 
State's monitoring rule would indicate that it is ``generic,'' and EPA 
believes that the revised Ohio monitoring rule is not ``generic'' under 
the definition provided in these guidance documents. Rather, the rule 
in fact does prescribe the actual monitoring requirements that sources 
must meet and it does not authorize deviations from these 
requirements.\3\ The fact that the rule provides flexibility by 
allowing sources to choose from a menu of several alternative approved 
monitoring methodologies does not render the rule ``generic.'' Other 
monitoring regulations, including the provisions at 40 CFR part 75 
which the State's SIP currently applies for purposes of meeting the 
NOX SIP Call requirements, similarly offer at least some 
sources a choice among multiple approved monitoring methodologies. See, 
e.g., appendices D and E to 40 CFR part 75 and 40 CFR 75.19. Consistent 
with EPA's 2019 amendments to the NOX SIP Call regulations, 
Ohio's revised monitoring rule merely expands the menu of approved 
monitoring methodologies available to its large non-EGUs for 
NOX SIP Call purposes to include certain additional 
alternatives (beyond the previously allowed 40 CFR part 75 monitoring 
methodologies) and sets forth the permit modification process that 
sources must follow when switching from one approved methodology to 
another.
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    \3\ EPA acknowledges that under the revised Ohio monitoring 
rule, the State rather than EPA is responsible for approving the 
source-specific ``emission factors'' that sources would use to 
calculate reported NOX mass emissions under one of the 
allowed monitoring methodologies. However, the rule includes 
criteria to guide the State's determination for each source and 
requires periodic verification of the approved emission factors 
through stack testing. EPA does not view the rule as providing the 
State a degree of discretion sufficient for the rule to be 
considered ``generic'' in the sense discussed in either guidance 
document, should such documents even apply to such provisions.
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    With respect to the commenter's request that EPA require the 
NOX SIP Call monitoring requirements for individual sources 
to be approved into the SIP (in addition to approval by the State under 
the rule at issue in this action), EPA does not agree that this is a 
necessary condition of approving the SIP revision under the 
NOX SIP Call regulations. In the proposal for this action, 
EPA explained the proposed rationale for approval of the SIP revision--
namely, that the emissions data monitored and reported under Ohio's 
revised rules using the expanded menu of allowed monitoring approaches 
would be sufficient to determine whether the State's large non-EGUs are 
in compliance with their collective emissions cap for NOX 
SIP Call purposes. See 84 FR at 59330. The commenter has provided no 
information suggesting either that the emissions data obtained under 
Ohio's revised rules as submitted would be insufficient to determine 
compliance with the collective emissions cap or that approval of 
individual sources' monitoring requirements into the SIP is needed to 
ensure that the data would be sufficient. Accordingly, EPA is approving 
Ohio's revised rules into the SIP for the reasons discussed in the 
proposal and does not find it necessary for the State to seek SIP 
approval of the individual sources' monitoring requirements for 
NOX SIP Call purposes.

III. What action is EPA taking?

    EPA is approving Ohio EPA's request to modify its SIP to include 
the revisions at OAC rules 3745-14-01, 3745-14-04, and 3745-14-08.
    This action is effective immediately upon publication in the 
Federal Register. Section 553(d) of the Administrative Procedure Act (5 
U.S.C. 553(d)), which applies to this action, generally requires that 
actions covered by the section become effective not less than 30 days 
after publication but also provides several exceptions. Under section 
553(d)(1), a rulemaking action may become effective less than 30 days 
after publication if the rule ``grants or recognizes an exemption or 
relieves a restriction.'' This action falls within the exception under 
section 553(d)(1) because the nature of the rule changes being approved 
is to relieve a restriction by allowing certain additional types of 
monitoring instead of allowing only monitoring in accordance with 40 
CFR part 75. Additionally, section 553(d)(3) allows an effective date 
less than 30 days after publication ``as otherwise provided by the 
agency for good cause found and published with the rule.'' The purpose 
of the 30-day waiting period generally prescribed in section 553(d) is 
to give affected parties a reasonable time to adjust their behavior and 
prepare before the final rule takes effect. This action, however, does 
not create any new regulatory requirements such that affected parties 
would need time to prepare before the rule takes effect. Rather, this 
action allows Ohio to authorize the use of approved monitoring 
methodologies from a menu of alternatives that would be expanded to 
include options beyond the previously allowed 40 CFR part 75 monitoring 
methodologies, following a request by the source. Any changes in the 
specific requirements applicable to a particular affected source will 
be authorized through state permitting processes that provide 
additional notice to the source. For these reasons, EPA finds good 
cause under 5 U.S.C. 553(d)(3) for this action to become effective on 
the date of publication in the Federal Register.
    In addition to approving the State rule revisions discussed above 
into the Ohio SIP, in this action EPA is also revising the table entry 
in the regulations at 40 CFR 52.1870(c) for OAC rule 3745-14-03, which 
was approved into the SIP in a previous action (84 FR 48789, September 
17, 2019). The revisions to the table entry have no substantive effect 
but clarify EPA's regulations by correcting the title and State-
effective date shown for Ohio's rule.

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

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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.\4\
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    \4\ 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 8, 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, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    Dated: March 27, 2020.
Kurt Thiede,
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 section entitled ``Chapter 3745-14 Nitrogen Oxides--Reasonably 
Available Control Technology'' to read as follows:


Sec.  52.1870   Identification of plan.

* * * * *
    (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 3745-14 Nitrogen Oxides--Reasonably Available Control Technology
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3745-14-01.......................  Definitions and           8/22/2019  4/8/2020, [Insert
                                    General Provisions.                  Federal Register
                                                                         citation].
3745-14-03.......................  Permit Requirements       1/29/2018  9/17/2019, 84 FR
                                                                         48789.
3745-14-04.......................  Compliance                8/22/2019  4/8/2020, [Insert
                                    Certification.                       Federal Register
                                                                         citation].
3745-14-08.......................  Monitoring and            8/22/2019  4/8/2020, [Insert
                                    Reporting.                           Federal Register
                                                                         citation].
3745-14-11.......................  Portland Cement           7/18/2002  8/5/2003, 68 FR
                                    Kilns.                               46089.
3745-14-12.......................  Stationary Internal        5/7/2005  2/4/2008, 73 FR
                                    Combustion Engines.                  6427.

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[FR Doc. 2020-06819 Filed 4-7-20; 8:45 am]
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