Approval and Promulgation of Air Quality Implementation Plans; Ohio; Oxides of Nitrogen Regulations

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 16, 2003 (Volume 68, Number 11)]
[Rules and Regulations]
[Page 2211-2217]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja03-16]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH155-1a; FRL-7425-8]

Approval and Promulgation of Air Quality Implementation Plans;
Ohio; Oxides of Nitrogen Regulations

AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.

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SUMMARY: On July 11, 2002, Ohio submitted a plan which contained rules
to control emissions of oxides of nitrogen (NO_X) from
electric generating units (EGU), non-EGUs and Portland Cement Kilns.
The plan and associated rules represent a strategy submitted by the
Ohio Environmental Protection Agency (Ohio EPA) in response to USEPA's
October 27, 1998, NO_X State Implementation Plan (SIP) Call
and subsequent technical amendments. This direct final rule addresses
the adequacy and acceptability of the Ohio plan, which we believe will
have a major impact in reducing NO_X and ozone in Ohio and in
areas downwind from major sources of NO_X emissions. USEPA
believes the State's plan, which includes a NO_X trading
program, an energy efficiency/renewable energy feature and accommodates
innovative technology projects, adequately addresses the requirements
of the NO_X SIP Call and meets the budget prescribed for
Ohio. USEPA is taking final action today to approve the Ohio EPA plan.

DATES: This rule is effective on March 17, 2003, unless USEPA receives
relevant adverse written comments by February 18, 2003. If USEPA
receives adverse comment, we will publish a timely withdrawal of the
rule in the Federal Register and inform the public that the rule will
not take effect.

ADDRESSES: Send written comments to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air and Radiation Division (AR-18J)
Region 5, U.S. Environmental Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois, 60604. You may obtain a copy of the State
Implementation Plan revision request at the above address. Please
telephone John Paskevicz at (312) 886-6084 if you intend to visit the
Region 5 office.
You may inspect copies of Ohio's submittal at: Regulation
Development Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Regulation Development
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, Chicago, Illinois, 60604. E-Mail Address:
paskevicz.john@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``you''
refer to the reader of this proposed rule and/or to sources subject to
the State rule, and the terms ``we'', ``us'', or ``our'' refers to
USEPA.

Table of Contents

I. Background
A. What Requirements Led to the State's Submittal of the
NO_X Emission Control Plan?
B. What Requirements Must Ohio Meet?
C. What Have Been the Court Rulings Regarding USEPA's
NO_X Emission Control Rule?
II. Summary of the State Submittal
A. When Was the Ohio EPA NO_X Plan Submitted to the
USEPA?
B. What Are the Basic Components of the Ohio EPA NO_X
Plan?
C. Does the Ohio EPA NO_X Plan Meet the Federal
NO_X Statewide Emissions Budget?
D. What Public Review Opportunities Were Provided?
E. What Guidance Did USEPA Use to Evaluate Ohio's NO_X
Control Program?
F. Does the Ohio Plan Meet Federal NO_X SIP Call
Requirements?
G. What Deficiencies Were Noted in the Ohio EPA NO_X
Plan?
III. USEPA Action
IV. Administrative Requirements

I. Background

A. What Requirements Led to the State's Submittal of the NO_X
Emission Control Plan?

On October 27, 1998, the USEPA promulgated a regulation known as
the NO_X SIP Call for numerous States, including the State of
Ohio. The NO_X SIP Call requires the subject States to
develop NO_X emission control regulations sufficient to
provide for a prescribed NO_X emission budget in 2007.
Preceding the promulgation of USEPA's NO_X SIP Call,
there had been extensive discussions by Federal, State, and local
environmental agencies, industry, and environmental groups regarding
the transport of ozone in the eastern United States. The Environmental
Council of States (ECOS) recommended the formation of a national
workgroup to assess the problem and to develop a consensus approach to
addressing the transport problem. As a result of ECOS' recommendation
and in response to a March 2, 1995, USEPA memorandum, the Ozone
Transport Assessment Group (OTAG) was formed to conduct regional ozone
transport analyses and to develop a recommended ozone transport control
strategy. OTAG was a partnership among USEPA, the 37 eastern States and
the District of Columbia, and industrial, academic, and environmental
groups. OTAG was given the responsibility of conducting the two years
of analyses envisioned in the March 2, 1995, USEPA memorandum.
OTAG conducted a number of regional ozone data analyses and
regional ozone modeling analyses using photochemical grid modeling. In
July 1997, OTAG completed its work and made recommendations to the
USEPA concerning the regional emissions reductions needed to reduce
transported ozone as an obstacle to attainment in downwind areas. OTAG
recommended a possible range of regional NO_X emission
reductions to support the control of transported ozone. Based on OTAG's
recommendations and other information, USEPA issued the NO_X
SIP Call rule on October 27, 1998. 63 FR 57356.
In the NO_X SIP Call, USEPA determined that sources and
emitting activities in 23 jurisdictions \1\ emit NO_X in
amounts that ``significantly contribute'' to ozone nonattainment or
interfere with maintenance of the 1-hour ozone national ambient air
quality standards (NAAQS) in one or more downwind areas in violation of
Clean Air Act (CAA) section 110(a)(2)(D)(I)(I). USEPA identified
NO_X emission reductions by source sector that could be
achieved using cost-effective measures and set state-wide
NO_X emission budgets for each affected jurisdiction for 2007
based on the

[[Page 2212]]

possible cost-effective NO_X emission reductions.
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\1\ Alabama, Connecticut, Delaware, District of Columbia,
Georgia, Illinois, Indiana, Kentucky, Maryland, Massachusetts,
Michigan, Missouri, New Jersey, New York, North Carolina, Ohio,
Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia,
West Virginia, and Wisconsin.
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The source sectors include nonroad mobile, highway mobile,
electricity generating units (EGUs), and major non-EGU stationary point
sources. EGUs include stationary boilers and turbines that generate at
least some electricity, even if they also generate steam for industrial
processes. Non-EGUs include other large stationary boilers and
turbines, typically for the purpose of generating steam for industrial
processes.
USEPA established recommended NO_X emissions caps for
large EGUs (potentially generating more than 25 megawatts) and for
large non-EGUs (minimum design heat input of 250 mmBTU per hour). USEPA
determined that significant NO_X reductions using cost-
effective measures could be obtained as follows: Application of a 0.15
pounds NO_X/mmBtu heat input emission rate limit for large
EGUs; a 60 percent reduction of NO_X emissions from large
non-EGUs; a 30 percent reduction of NO_X emissions from large
cement kilns; and a 90 percent reduction of NO_X emissions
from large stationary internal combustion engines. The 2007 state-wide
NO_X emission budgets established by jurisdiction were based,
in part, by assuming these levels of NO_X emission controls
coupled with NO_X emissions projected by source sector to
2007.
Although the state-wide NO_X emission budgets were based
on the levels of reduction achievable through cost-effective emission
control measures, the NO_X SIP Call allows each State to
determine what measures it will choose to meet the state-wide
NO_X emission budgets. It does not require the States to
adopt the specific NO_X emission rates assumed by the USEPA
in establishing the NO_X emission budgets. The NO_X
SIP Call merely requires States to submit SIPs, which, when
implemented, will require controls that meet the NO_X state-
wide emission budget. The NO_X SIP Call encourages the States
to adopt a NO_X cap and trade program for large EGUs and
large non-EGUs as a cost-effective strategy and provides an interstate
NO_X trading program that the USEPA will administer for the
States. If States choose to participate in the national trading
program, the States must submit SIPs that conform to the trading
program requirements in the NO_X SIP Call.

B. What Requirements Must Ohio Meet?

The State of Ohio has the primary responsibility under the Clean
Air Act for ensuring that Ohio meets the ozone air quality standards
and is required to submit a SIP that specifies emission limitations,
control measures, and other measures necessary for meeting the
NO_X emissions budget. The SIP for ozone must meet the ozone
transport SIP Call requirements, must be adopted pursuant to notice and
comment rulemaking, and must be submitted to the USEPA for approval.
These NO_X emission reductions will address ozone
transport in the area of the country primarily east of the Mississippi
River. USEPA promulgated the NO_X SIP Call pursuant to the
requirements of CAA section 110(a)(2)(D) and our authority under CAA
section 110(k). Section 110(a)(2)(D) applies to all SIPs for each
pollutant covered by a NAAQS and for all areas regardless of their
attainment designation. It requires a SIP to contain adequate
provisions that prohibit any source or type of source or other types of
emissions within a State from emitting any air pollutants in amounts
which will contribute significantly to nonattainment in, or interfere
with maintenance of attainment of a standard by any other State with
respect to any NAAQS.
Pursuant to its authority under section 110(k)(5), USEPA concluded
that the SIPs for Ohio and other states were substantially inadequate
to prohibit NO_X emissions that significantly contribute to
ozone nonattainment. As a result, Ohio was required to submit SIP
revisions that addressed this inadequacy.
USEPA has published a model rule for control of NO_X
emissions from boilers and turbines. This model rule, codified at title
40 of the Code of Federal Regulations part 96 (40 CFR part 96),
reflects USEPA's recommendations for the general design of the
necessary NO_X emission control programs as well as detailed
recommendations for specific program features. Similarly, at 63 FR
56393 (October 21, 1998), USEPA has published a proposed Federal
implementation plan including rules regulating cement kilns, which
serve as sample rules for this source type. USEPA recommends the cost-
effective levels of control noted above. The budget that USEPA
established for states reflects these control levels. USEPA further
recommends that states take the necessary steps to allow their sources
to participate in a multi-state NO_X emissions trading
program that USEPA will run. While USEPA offers flexibility to states
on various elements of program design, particularly in the distribution
of projected emission reductions, USEPA can offer more streamlined
approval of programs that more closely follow USEPA's model rule. (See
63 FR 57365)

C. What Have Been the Court Rulings Regarding USEPA's NO_X
Emission Control Rule?

When the USEPA published the NO_X SIP Call on October 27,
1998, a number of States and industry groups filed petitions
challenging the rulemaking before the United States Court of Appeals
for the District of Columbia. The court, on May 25, 1999, stayed the
States' obligation to submit SIPs in response to the NO_X SIP
Call rule. Subsequently, on March 3, 2000, the court upheld most of
USEPA's NO_X SIP Call rule. The court, however, vacated the
rule as it applied to Missouri and Georgia, and remanded for further
consideration the inclusion of portions of Missouri and Georgia in the
rule. The court also vacated the rule as it applied to Wisconsin
because the court believed that USEPA had not made a showing that
sources in Wisconsin significantly contributed to nonattainment or
interfered with maintenance of the ozone NAAQS in any other State.
Finally, the court remanded to USEPA two issues concerning a limited
portion of the NO_X emission budgets. See Michigan et al. v.
EPA, 213 F.3d 663 (D.C. Cir. 2000). On April 11, 2000, based on the
remanded issues, USEPA initiated a two phase approach to implement the
NO_X SIP Call. Phase I of this approach addressed the portion
of the NO_X SIP Call upheld by the court. Phase I will
achieve the majority of the reductions in the NO_X SIP Call.
The Phase I plan was due from Ohio on October 30, 2000.
Phase II will address the few narrow issues that the DC Circuit
court remanded to USEPA, including: Whether, and if so, how, a small
subclass of facilities that generate electricity should be included in
the rule; and what control levels should be assumed for large,
stationary internal combustion engines. Phase II of the NO_X
SIP Call will not require a submittal from the States until USEPA has
proposed and finalized rules in response to the court's remand.
On June 22, 2000, the court removed the stay of the state's
obligation to submit SIPs in response to the NO_X SIP Call
and denied petitioner's motions for rehearing and rehearing en banc. In
removing the stay, the court provided that USEPA should allow 128 days
for States to submit SIPs to the USEPA, i.e., by October 30, 2000.
Shortly after removing the stay, petitioners requested that the court
adjust the NO_X SIP Call compliance date. In an action
related to Michigan v. EPA, 213 F.3d 663 (D.C. Cir

[[Page 2213]]

2000) the court then determined that the compliance date for the SIP
Call would be May 31, 2004. Although the court's action affected only
the compliance deadline, other dates in the rule for related
requirements (such as flow control) were also extended because they
were established relative to the original compliance deadline.

II. Summary of the State Submittal

A. When Was the Ohio EPA NO_X Plan Submitted to the USEPA?

Ohio EPA submitted the NO_X plan on July 11, 2002. USEPA
had an opportunity to review and comment on earlier draft versions of
the rules during the stakeholder review process. USEPA made both formal
and informal comments, and these comments are available in the Docket.
The plan was submitted in sufficient time for the USEPA to make a
finding of completeness, which terminated the imposition of sanctions
which were scheduled to go into effect on July 25, 2002, due to Ohio's
failure to submit a plan. The Region 5 Regional Administrator signed
the completeness finding on July 24, 2002. (See 67 FR 50600)

B. What Are the Basic Components of the Ohio EPA NO_X Plan?

The Ohio EPA plan includes the following documents: (1) A letter
from the Director of Ohio EPA requesting a revision to the Ohio EPA
plan; (2) a copy of the rules containing the provisions and
requirements to implement a NO_X budget trading program to
control and reduce emissions of NO_X in Ohio; (3) a copy of
the Ohio code indicating the authority of the Ohio EPA Director to
develop and submit the revision; (4) a notice of the proposed
rulemaking and public hearing; (5) a transcript of the public hearing
on the rules containing comments and testimony; (6) the Ohio Director's
Findings and Orders announcing the adoption of rules controlling
NO_X from sources in Ohio; (7) a list of Ohio's ``interested
parties'' or stakeholders to whom draft rules were distributed for
comment; (8) summary of comments submitted into Ohio's formal hearing
record regarding the proposed rules which establish a NO_X
budget trading program in Ohio; and, (9) Ohio's budget demonstration
including a list of units (operating or under construction) subject to
the State's NO_X rules.
Ohio's NO_X plan and rules apply to, and establish, a
trading program for EGUs, non-EGUs, and portland cement kilns. The
rules contained in chapter 3745-14, establish the provisions and
requirements to implement a NO_X budget trading program in
Ohio. The net effect of the rules is to cap emissions from major
emitters and provide allowances to units to operate within the State's
budget during the control period. Allowance allocations are made for
five year periods with the exception of the first period, which is for
a four-year period.
The State's market-based program which follows the model
NO_X budget trading rule is the method selected by Ohio to
meet its NO_X emissions reduction obligations under the
NO_X SIP Call. The trading program caps total emissions in
order to ensure that emissions reductions are achieved and maintained.
Also, the flexibility in the State's program allows sources to reduce
emissions and where possible, and if desired, generate allowances for
trading.
The Ohio EPA plan includes Ohio rule 3745-14. This trading rule
contains eleven separate rule elements, listed in Table 1, which
correspond with part 96 model rule of the NO_X SIP Call.

Table 1.--Comparison of State Rule to Model Rule
----------------------------------------------------------------------------------------------------------------
Ohio Rule 3745-14 Corresponds with USEPA rule . . .
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01, General Provisions................................. Subpart A, sections 96.1, 96.2, and 96.3 Purpose,
Definitions and Abbreviations. 96.4, Applicability.
96.5, Retired unit exemptions. 96.6, Standard
requirements. 96.7, Computation of time.
02, NO_X authorized account representative.............. Subpart B, section 96.10 . . . the NO_X authorized
account representative. 96.11, Alternate NO_X
authorized account representative. 96.12, Changing the
account representative. 96.13, Account certificate of
representation. 96.14, Objections re: NO_X account
representative.
03, NO_X budget permit.................................. Subpart C, section 96.20, NO_X budget permit
requirements. 96.21, Submission of NO_X budget permit
application. 96.22, Information requirements for NO_X
budget permit applications. 96.23, content. 96.25,
revisions.
04, Compliance certification........................... Subpart D, section 96.30, Compliance certification
report. 96.31, State and USEPA's action on compliance
certification.
05, NO_X allowance allocations.......................... Subpart E, section 96.40, NO_X allowance allocations.
96.41, Timing requirements. 96.42 NO_X allowance
allocations. 96.55 Banking (Early reduction credit
portion of this section).
06, NO_X allowance tracking system...................... Subpart F, section 96.50, NO_X allowance tracking system
(ATS) accounts. 96.51, Establishment of accounts.
96.52, NO_X ATS responsibilities of NO_X authorized
account rep. 96.53, Recordation of NO_X allowance
allocations. 96.54, Compliance. 96.55, Banking. 96.56,
Account error. 96.57, Closing of general accounts.
07, NO_X allowance transfers............................ Subpart G, section 96.60, Submission of NO_X allowance
transfers transfers. 96.61, EPA recordation. 96.62,
Notification.
08, Monitoring and reporting........................... Subpart H, Monitoring and Reporting. 96.70, General
requirements. 96.71, Initial certification and
recertification procedures. 96.72, Out of control
periods. 96.73, Notifications. 96.74, Recordkeeping
and reporting. 96.75, Petitions. 96.76, Additional
requirements to provide heat input data for
allocations.
09, NO_X budget opt-in units............................ Subpart I, Individual Unit Opt-ins. Section 96.80,
Applicability. 96.81, General. 96.82, NO_X authorized
account representative. 96.83, Applying for NO_X budget
opt-in permit. 96.84, Opt-in process. 96.85, NO_X
budget opt-in permit contents. 96.86, Withdrawal from
NO_X budget trading program. 96.87, Change in
regulatory status. 96.88, NO_X allowance allocations to
opt-in units.
10, Alternative compliance plans....................... This rule allows a source to participate in alternate
compliance multi-pollutant reduction schemes such as
the President's Clear Skies proposal.
11, Portland cement kilns.............................. Part 98, subpart B, Emissions from cement
manufacturing, proposed rules, October 21, 1998.
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Ohio's plan includes opportunities for sources to obtain, beginning
in 2006, an allocation for energy efficiency/ renewable energy
projects. The Ohio rule contains a provision which sets aside one
percent of the tons of NO_X emissions in the State trading
budget. This set-aside is for units that during the control period
reduce end-use demand for electricity or displace electrical energy
utilization by use of wind power,

[[Page 2214]]

solar power, biomass or landfill methane gas generation.
Ohio's plan also sets aside one percent of the trading budget
beginning in 2006 for innovative technology projects. This means that
an industry can compete for a set-aside, using stationary or mobile
source technology which has not yet been adequately demonstrated in
practice but where there is a likelihood that the technology will
reduce NO_X emissions and increase energy efficiency.

C. Does the Ohio EPA NO_X Plan Meet the Federal
NO_X Statewide Emissions Budget?

Yes, on July 11, 2002, Ohio submitted a plan containing rules in
OAC Chapter 3745-14 to respond to USEPA's NO_X SIP Call
published in the Federal Register on October 27, 1998. We reviewed the
plan and found it complete on July 23, 2002. (See 67 FR 50600, dated
August 5, 2002)
USEPA's NO_X SIP Call affected sources of oxides of
nitrogen (NO_X) in 22 states (including Ohio) and the
District of Columbia. The NO_X SIP Call rulemaking
established statewide budgets for NO_X emissions beginning in
the 2003 ozone season (May 1 to September 30). Each state was required
to submit a State Implementation Plan (SIP) containing rules necessary
to reduce NO_X emissions to the NO_X budget levels.
On March 2, 2000, USEPA published a final rule amending state
NO_X budgets (65 FR 11222). Ohio used the information from
this final rule to develop its budget. Further, Ohio describes the
process it used to develop the budget in the budget demonstration
contained in its plan submittal. A summary of the base and budget
NO_X emissions contained in this rule for Ohio are provided
in table 2.

Table 2.--NO_X Emissions Budget by Source Category
[In tons]
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Source Category
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2007 final non-road Highway
EGU non-EGU Area source mobile mobile Total
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Base.................................................... 163,132 50,001 21,860 43,380 94,850 373,223
Budget.................................................. 48,990 40,194 21,860 43,380 94,850 249,274
Reduction............................................... 114,142 9,807 0 0 0 123,949
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On November 15, 2000, Ohio informally provided draft rules for
preliminary review to stakeholders and USEPA to start the rulemaking
process. Ohio received comments on these draft rules from USEPA and 22
other interested parties. Ohio's draft rules were revised to take into
account the comments received, and the revised draft rules were
distributed to interested parties on November 19, 2001. Ohio EPA,
again, received comments on these draft rules from USEPA and 38 other
interested parties. The rules, to be submitted to Ohio's Joint
Committee for Administrative Rule Review (JCARR), were revised again
taking into consideration the comments. Ohio believes that these rules
will achieve the NO_X reductions required by USEPA's
NO_X SIP Call, and has finalized them for inclusion in its
submitted NO_X plan.
The budget projections used to prepare Ohio's submission are the
same as the State budget established by USEPA in the final rule
published in the Federal Register on March 2, 2000 (65 FR 11222). A
minor change was made by Ohio EPA and is addressed in the State's
submittal. This change corresponds with a technical correction to the
Ohio inventory made by USEPA on October 31, 2001 (66 FR 54992).
Ohio's budgets for Area Sources, Mobile Sources and Non-Mobile
sources reflect emissions during the ozone control period from May 1
through September 30 for each year. The original USEPA budgets that
Ohio used in it's analysis can be found on the electronic file entitled
``OH.zip'' on USEPA's web site ftp://ftp.epa.gov/EmisInventory/NO
_XSIPCall--Mar2--2000. Ohio submitted similar budgets for
area, mobile and non-mobile source categories on a compact disk (CD)
along with the Budget Demonstration. The CD is available in the Region
5 Docket. Table 3 identifies the 2007 base budgets for these sources
and the name of the attached file in which they are found. No
NO_X reductions from these source categories (mobile, area,
and non-mobile) are projected for Ohio's budget demonstration.
Furthermore, Ohio does not expect to have to develop additional
NO_X emission reduction measures to meet the statewide budget
during the 5-month ozone season.

Table 3.--Unaffected Source Categories
[In tons]
----------------------------------------------------------------------------------------------------------------
2007 base
Source category budget File name
----------------------------------------------------------------------------------------------------------------
Area Sources.............................................. 21,860 OH--ar.wb3
Mobile Sources............................................ 94,850 OH--mb.wb3
Non-Road Mobile Sources................................... 43,380 OH--nr.wb3
----------------------------------------------------------------------------------------------------------------

Table 4 contains the base and final NO_X budget for EGUs.
Ohio obtained these data from USEPA Clean Air Markets Division. The
file was not part of the technical amendment to the NO_X SIP
Call of March 2, 2000 (see 65 FR 11222). The files for EGUs on USEPA's
Web site ``ftp://ftp.epa.gov/EmisInventory/NOX SIPCall--Mar2--2000''
did not contain 2007 base or budget numbers. This file contains
information which includes the base and final budgets for EGUs. Ohio
submitted this file (along with other files referenced here) on a CD
with the Budget Demonstration. The CD is available in the Region 5
Docket.

[[Page 2215]]

Table 4.--Base and Final Budgets
[In tons]
----------------------------------------------------------------------------------------------------------------
2007 base 2007 final
Source category budget budget File name
----------------------------------------------------------------------------------------------------------------
EGU........................................ 163,132 48,990 UT--budget.wb3
----------------------------------------------------------------------------------------------------------------

Table 5 contains the original budget that USEPA calculated for
large industrial boilers (non-EGUs) located in Ohio. The information in
Table 5 can be found on USEPA's web-site at ``ftp://ftp.epa.gov/
EmisInventory/NO_XSIPCall--Mar2--2000,'' in the file entitled
``OH--pt.wb3.'' USEPA modified the original non-EGU budget because on
October 31, 2001, we made a determination (66 FR 54992) that Marathon
Ashland Petroleum LLC's Plant 1576000301, emissions unit B015 was not a
NO_X budget unit. USEPA's original non-EGU budget was
modified to remove 18 NO_X allowances initially designated
for B015 and to add 36 tons of uncontrolled NO_X emissions
from B015 to the total budget for this source category. The budget
submitted by Ohio EPA reflects these changes and the electronic file
reflecting these changes is located on the CD submitted by Ohio in the
file entitled ``NonEGU Adjusted.wb3.''

Table 5.--Sources Regulated by State Rules
----------------------------------------------------------------------------------------------------------------
2007 Base 2007 Final
Source budget budget File name
----------------------------------------------------------------------------------------------------------------
non-EGUs...................................... 50,001 40,194 OH--pt.wb3
----------------------------------------------------------------------------------------------------------------

The information in Table 6, presents the components of Ohio's
NO_X budget for EGUs and non-EGUs.

Table 6.--Ohio NO_X Budget
[In tons]
----------------------------------------------------------------------------------------------------------------
EGU non-EGU
-----------------------------------------------
2006 and
2004,2005 after 2004 and after
----------------------------------------------------------------------------------------------------------------
Total for source categories............................... 48,990 48,990 40,194
-----------------
non-Regulated Units............................................. 3,558 3,558 36,127
Set-Asides...................................................... \1\ 2,272 \2\ 3,181 \1\ 203
Allowances available for existing units......................... 43,160 42,251 3,846
----------------------------------------------------------------------------------------------------------------
\1\ In each year, 5% of the Regulated Units' budget will be set aside to be allocated to new units.
\2\ After 2005, an additional 2% of the EGU Regulated Units' budget will be set aside to fund two set-asides: 1%
for Energy Efficiency/Renewable Energy Projects and 1% for Innovative Technology Projects.

USEPA believes the Ohio NO_X sources addressed here,
which includes a cap and an allowance trading program, will be
adequately controlled to ensure the sources in the State will meet the
statewide NO_X budget established by USEPA.

D. What Public Review Opportunities Were Provided?

The Director of the Ohio Environmental Protection Agency ``* * *
may conduct public hearings on any plans for the prevention, control,
and abatement of air pollution that the director is required to submit
to the federal government.'' (Ohio Revised Code chapter 3704.03, Powers
of the director of environmental protections.) Ohio's Director held
several meetings early on in the rule development process, shortly
after the USEPA promulgated the Finding of Significant Contribution and
Rulemaking for the Purpose of Reducing Regional Transportation of Ozone
Rule (see 63 FR 57356, dated October 27, 1998). During the course of
development, Ohio sent draft rules to stakeholders for review and
comment. This process was repeated several times until the State was
satisfied it had fulfilled the public process. Stakeholders included
affected utilities, major heavy industry, environmental groups (both
local and national), consultants, industry and manufacturing
associations, planning commissions and councils of government, and one
university.
Finally, a public hearing was held in Columbus, Ohio, on April 11,
2002, and Ohio accepted written comments until April 26, 2002. The
transcript of the public hearing is included as part of the State's
submittal and can be found in the Docket at Region 5.

E. What Guidance Did USEPA Use To Evaluate Ohio's NO_X
Control Program?

USEPA used the final NO_X SIP Call rule at 40 CFR part 96
for review of portions of the Ohio submittal. We also used 40 CFR
51.121 and 51.122 to evaluate Ohio's rules and the plan. The Ohio rules
also apply to portland cement kilns. For USEPA's current position on
these types of sources the public can consult USEPA's proposed part 98,
dated October 21, 1998 (see 63 FR 56394), which USEPA expects to
finalize shortly.

F. Does the Ohio Plan Meet Federal NO_X SIP Call
Requirements?

USEPA is satisfied that the Ohio plan meets the requirements of the
NO_X SIP

[[Page 2216]]

Call. Ohio's rules are patterned directly from the USEPA model rule and
Ohio EPA included in the rules all of the requirements needed for
approval by USEPA. The plan includes a budget trading program, and
addresses all of the components of the emissions budget listed in the
USEPA technical amendment. Ohio's analysis indicates that additional
NO_X control strategies will not be necessary to meet the
NO_X budget for the State. USEPA has previously determined,
on August 5, 2002 (67 FR 50600), that Ohio had satisfied the
requirements for submittal of a complete plan to address NO_X
controls on major sources of emission.

G. What Deficiencies Were Noted in the Ohio EPA NO_X Plan?

USEPA found a small deficiency in Ohio's submittal regarding the
trigger date for flow control. In reviewing Ohio's July 11, 2002,
NO_X SIP Call submittal, USEPA found that the State's rule
triggers flow control in 2006. (See OAC chapter 3745-14-06(E)(6)) The
NO_X SIP Call model rule requires flow control to be
triggered in the second year of the program. This means Ohio's rule
should require flow control to be triggered in 2005. Flow control is a
mechanism to limit the excessive use of banked allowances. It is more
of an insurance policy, rather than a provision that is routinely
expected to be carried out. Furthermore, we do not believe it is
appropriate to delay implementation of flow control beyond 2005.
Ohio used the model rule (63 FR 57356, dated October 27, 1998) to
develop its plan. The State also used language from elements of the
section 126 rule (65 FR 2674, dated January 18, 2000) in place of some
of the language from the model rule. An amendment to the section 126
rule dated April 30, 2002, (see 67 FR 21522) extended the flow control
date to 2006. This one year extension corresponds to the extension of
the compliance date noted earlier. While the extension by one year of
flow control to 2006 is appropriate for section 126, it is not
appropriate for Ohio's rule in the NO_X SIP Call. A detailed
discussion regarding the difference in the trigger dates for flow
control between section 126 program and the NO_X SIP Call can
be found in 65 FR 2674, dated January 18, 2000. We do not expect there
will be any States subject to section 126. All affected States are
expected to implement an NO_X SIP Call plan by the compliance
date of May 2004. In order for flow control to be universally applied
to all sources in the NO_X SIP Call region, the flow control
trigger date must be the same for all of the States in the ozone
transport region.
USEPA believes the 2006 date in the Ohio rule is a deficiency which
can be cured by Ohio via the submittal of a State rule to revise the
flow control date at the soonest possible time before the
NO_X compliance date.
USEPA also found a deficiency in OAC chapter 3745-14-09(G)(7)
entitled NO_X Budget Opt-in Units. The Ohio rule states that
opt-in units that have withdrawn from the program can reapply for a
permit after 2 years. A previous version of the Ohio rule had this time
period as 4 years, which is the time period found in both the
NO_X SIP Call model rule and the section 126 rule. The
purpose of the 4 year period in the model rule is to discourage these
opt-in sources from coming in and out of the budget trading program at
a frequency that would be disruptive to the operation of the trading
program. USEPA recommends Ohio change this time period from 2 years to
4 years.

III. USEPA Action

We are approving, in this direct final rule, the Ohio
NO_X SIP because it meets the requirements of the USEPA
NO_X trading program by meeting Ohio's NO_X budget.
Ohio's rule mirrors the USEPA model rule for the NO_X SIP
Call and the State adequately responded to all of the concerns of
stakeholders during the public process. Ohio's plan is approved with
the understanding that it will take action to change the date (the flow
control trigger date) in OAC 3745-14-06(E) (6) from 2006 to 2005. If
this date is not changed from 2006 to 2005, and Ohio fails to submit
the change as a revision to its plan by May 31, 2004, USEPA will remove
the approval of Ohio's NO_X SIP and take subsequent
rulemaking action, as necessary. USEPA is publishing this action
without prior proposal because we view this as a noncontroversial
revision and we anticipate no adverse comments. However, in a separate
document in this Federal Register publication, USEPA is proposing to
approve the State's NO_X plan should adverse written comments
be filed. This action will be effective without further notice unless
USEPA receives relevant adverse written comment by February 18, 2003.
Should USEPA receive such comments, we will publish a final rule
informing the public that this action will not take effect. Any parties
interested in commenting on this action should do so at this time. If
no comments are received, the public is advised that this action will
be effective on March 17, 2003.

IV. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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). This rule also does not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it
merely approves a state rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant.
In reviewing SIP submissions, USEPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for USEPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise

[[Page 2217]]

satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing
this rule, USEPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. USEPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
The Congressional Review Act, 5 U.S.C. section 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. USEPA will submit a report containing
this rule 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. section 804(2). This rule will be effective February 18, 2003.
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 March 17, 2003. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 oxides, Ozone,
Reporting and recordkeeping requirements.

Dated: December 13, 2002.
Bharat Mathur,
Acting Regional Administrator, Region 5.

For the reasons stated in the preamble, part 52, chapter I, title
40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

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

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

Subpart KK--Ohio

2. Section 52.1870 is amended by adding paragraph (c)(127) to read
as follows:

Sec. 52.1870 Identification of plan.

* * * * *
(c) * * *
(127) On July 11, 2002, the Ohio Environmental Protection Agency
submitted revisions to Chapter 3745-14-(1 through 11 and Appendices A
and B) of the Ohio Administrative Code (OAC), an oxides of nitrogen
(NO_X) budget trading program in Ohio, with a request that
the Ohio State Implementation Plan be revised to include these
NO_X rules.
(i) Incorporation by reference.
(A) Ohio NO_X rules: 3745-14-01, 3745-14-02, 3745-14-03,
3745-14-04, 3745-14-05, 3745-14-06, 3745-14-07, 3745-14-08, 3745-14-09,
3745-14-10, 3745-14-11, Appendix A to Chapter 3745-14 Annual No_X
allowance allocations to regulated electric generating units for each
year from 2004 through 2007, Appendix B to Chapter 3745-14 Annual
NO_X allowance allocation for the control period in years
2004 through 2007 for non-electrical generating units, in the OAC all
with an effective date of July 18, 2002.

[FR Doc. 03-962 Filed 1-15-03; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
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1994

Approval and Promulgation of Air Quality Implementation Plans; Ohio; Oxides of Nitrogen Regulations

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