[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
[[Page 19673]]
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.
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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 3745-14 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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