![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Approval and Promulgation of Implementation Plans; Ohio
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 22, 2003 (Volume 68, Number 14)]
[Rules and Regulations]
[Page 2909-2912]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja03-11]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH118-1a; FRL-7428-5]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is approving the remaining portions of the Ohio
Environmental Protection Agency's (OEPA) SIP for Prevention of
Significant Deterioration (PSD) provisions for attainment areas. EPA
had previously
[[Page 2910]]
conditionally approved Ohio's prior SIP submission on October 10, 2001.
Today's final approval is of OEPA's rule revisions submitted in
response to EPA's July 18, 2002, conditional approval. In its July 2002
submittal, Ohio also made additional revisions to the OAC that were not
addressed in EPA's October 10, 2001 conditional approval.
Recently, EPA announced new regulations regarding changes to the
preconstruction permit program under EPA's efforts regarding ``New
Source Review Reform.'' Today's approval of Ohio's SIP submission does
not address EPA's new rules but is limited to portions of Ohio's
preconstruction permit program under the existing rules. EPA is taking
no position today on whether Ohio will need to make changes to its SIP
to meet any requirements that EPA may promulgate as part of New Source
Review Reform.
DATES: This rule is effective on March 10, 2003, unless EPA receives
comments by February 21, 2003. If adverse comment is received, EPA will
publish a timely withdrawal of the rule in the Federal Register
informing the public that the rule will not take effect.
ADDRESSES: Copies of the documents relevant to this action are
available for inspection during normal business hours at the following
location: Permits and Grants Section, Air Programs Branch, (AR-18J),
U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Please contact Genevieve Damico at (312) 353-4761 before visiting
the Region 5 office.
Written comments should be sent to: Pamela Blakley, Chief, Permits
and Grants Section, Air Programs Branch, (AR-18J), U.S. Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Genevieve Damico, Environmental
Engineer, Permits and Grants Section, Air Programs Branch, (AR-18J),
U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 353-4761.
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:
A. What Is the Purpose of This Document?
B. Who Is Affected by This Action?
C. What Is the History of Ohio's PSD Program?
D. How Are OEPA's PSD Rules Structured?
E. Why Are We Granting Approval?
F. How Is This Action Related to EPA's Current Review of Ohio's
programs?
G. How Is This Action Related to EPA's New Preconstruction Permit
Program?
H. How Does This Rulemaking Affect EPA's Preconstruction Permit
Program?
A. What Is the Purpose of This Document?
We are approving the remaining portions of Ohio's SIP for PSD
provisions for attainment areas which was conditionally approved by EPA
on October 10, 2001 (66 FR 51570).
B. Who Is Affected by This Action?
The PSD program applies to facilities constructing major sources of
air pollution. Since the PSD program that we are approving today is
similar to the conditionally approved PSD program that OEPA currently
operates, these facilities will generally not be affected by EPA's
approval of these changes to Ohio's PSD SIP.
C. What Is the History of Ohio's PSD Program?
OEPA submitted its first permitting SIP to EPA on January 31, 1972,
and submitted replacement regulations on June 6, 1973. These
regulations provided requirements, such as best available technology,
that were meant to be uniformly applied throughout the State.
The Clean Air Act Amendments of 1977 (Amendments) required states
to go further than uniformly applied regulations. The Amendments
provided for the designation of areas within a state as ``attainment''
or ``nonattainment.'' An ``attainment'' area meets the national ambient
air quality standards (NAAQS). A ``nonattainment'' area does not meet
the NAAQS.
OEPA requested delegation of the federal PSD attainment
preconstruction permitting program on February 8, 1980, and received
delegation on January 29, 1981.
OEPA submitted a request for approval of Ohio Administrative code
(OAC) sections 3745-31-01 to 3745-31-20 into the SIP on March 1, 1996
as its construction permit program. Ohio subsequently submitted
revisions dated March 1, 1996, April 16, 1997, September 5, 1997,
December 4, 1997, and April 21, 1998. OEPA's PSD program was
conditionally approved on October 10, 2001 (66 FR 51570). On July 18,
2002, OEPA submitted revisions to OAC 3754-31. Today we are acting on
those revisions by approving them.
D. How Are OEPA's PSD Rules Structured?
Part C of Title I of the Clean Air Act (CAA) requires a SIP for PSD
rules for attainment areas. 40 CFR 51.165 and 51.166 contain the
requirements for a PSD permitting program. OEPA submitted this SIP in
the form of OAC sections 3745-31-11 to 3745-31-20. OEPA also submitted
general provisions applying to both attainment and nonattainment areas
in the form of OAC sections 3745-31-01 to 3745-31-10.
E. Why Are We Granting Approval?
The October 10, 2001, conditional approval required OAC section
3745-31-01(OOO) to include a 25 tons per year significance level for
particulate matter, and a 50 ton per year significance level for
municipal solid waste landfill emissions, as required by 40 CFR
51.166(b)(23)(i). Furthermore, total reduced sulfur and reduced sulfur
compounds must be defined to include hydrogen sulfide. The OAC now
reflects these requirements.
Ohio also made additional revisions to OAC 3745-31-01, -02, -03, -
05, and -07 that were not reflected in the October 10, 2001 conditional
approval. The July 18, 2002 SIP submittal from Ohio incorporated
definitions for municipal solid waste landfill, non-methane organic
compound, non-road engine, reduced sulfur compound, soil-liquid
extraction remediation activities, soil-vapor extraction remediation
activities and total reduced sulfur in OAC 3745-31-01. We find the
additional definitions to be acceptable in the context of Ohio's permit
to install program.
Ohio added regulatory language in OAC 3745-31-02(A)(1) that
requires the transferee of any permit to install to assume the
responsibilities of the original permit. The permittee must also notify
OEPA of the transfer. EPA finds these changes to the rule acceptable.
The SIP submittal adds permanent exemptions in OAC 3745-31-03 for
non-road engines, crushing and screening plants that are exempt from 40
CFR part 60, subpart OOO, soil-vapor and soil-liquid extraction
remediation activities. The exemption for a permit to install for non-
road engines that has been added to the rule builds upon the exemption
from the previously approved definition of stationary source in 3745-
31-01. This exemption is consistent with section 216 of the Clean Air
Act. The rule further clarifies that these units are not exempt from
the permit to install program if the opacity is greater than twenty
percent. The exemption for a permit to install that has been added for
crushing and screening plants is consistent with the 40 CFR part 60,
subpart OOO exemptions. The exemption for a permit to install for soil-
vapor and soil-liquid remediation activities is limited to
[[Page 2911]]
activities that have total combined emission rates less than 15 pounds
of organic compounds per day and last no longer than 18 months. EPA
finds that the sources exempted by this rule will not have a
significant impact on air quality. EPA therefore finds this rule
acceptable.
OAC 3745-31-07 has been amended to allow the Director of OEPA to
revoke a permit to install if the permittee requests revocation for
cause and the Director determines that the revocation will not result
in the violation of any applicable laws. EPA finds this rule
acceptable.
The rule also makes non-substantive administrative changes to 3745-
31-01, 3745-31-03(A)(1)(p) and (ee), 3745-31-03(A)(4) and (4)(a), 3745-
31-05(A)(2)(d) and (A)(3), and 3745-31-05(E)(3). EPA finds these
changes to the rule acceptable.
F. How Is This Action Related to EPA's Current Review of Ohio's
Programs?
EPA is currently reviewing OEPA's implementation of the delegated
PSD program in response to a petition submitted by D. David Altman on
behalf of Ohio Citizen Action, the Ohio Environmental Council, Rivers
Unlimited, and the Ohio Sierra Club. Any concerns that EPA finds as a
result of this review will be addressed through the process of
responding to the petition. Today's approval only addresses whether or
not specific provisions of Ohio's Administrative Code meet the Federal
criteria for a PSD program, as set forth in 40 CFR part 51, and does
not address any issues regarding how the code is being applied or
enforced by Ohio. We believe the OAC revisions meet the criteria for
approval. No particular findings or conclusions in or from the EPA
petition review should be inferred from today's approval.
G. How Is This Action Related to EPA's New Preconstruction Permit
Program?
Recently, EPA announced new regulations regarding changes to the
preconstruction permit program under EPA's efforts regarding ``New
Source Review Reform.'' See http://www.epa.gov/nsr/. Today's approval
of Ohio's SIP submission does not address EPA's new rules but is
limited to portions of Ohio's preconstruction permit program under the
existing rules. EPA is taking no position today on whether Ohio will
need to make changes to its SIP to meet any requirements that EPA may
promulgate as part of New Source Review Reform.
H. How Does This Rulemaking Affect EPA's Preconstruction Permit
Program?
In addition, while EPA is approving Ohio's PSD SIP, EPA recognizes
that it has a responsibility to insure that all States properly
implement their preconstruction permitting programs. EPA's approval of
Ohio's PSD program does not divest the Agency of the duty to continue
appropriate oversight to insure that PSD determinations made by Ohio
are consistent with the requirements of the CAA, EPA regulations, and
the SIP.
EPA's authority to oversee PSD program implementation is set forth
in sections 113, 167, and 505(b) of the Act. For example, section 167
provides that EPA shall issue administrative orders, initiate civil
actions, or take whatever other enforcement action may be necessary to
prevent construction of a major stationary source that does not
``conform to the requirements of'' the PSD program. Similarly, section
113(a)(5) provides for administrative orders and civil actions whenever
EPA finds that a State ``is not acting in compliance with'' any
requirement or prohibition of the Act regarding construction of new or
modified sources. Likewise, section 113(a)(1) provides for a range of
enforcement remedies whenever EPA finds that a person is in violation
of an applicable implementation plan.
Enactment of Title V of the CAA and the EPA objection opportunity
provided therein has added new tools for addressing deficient new
source review decisions by states. Section 505(b) requires EPA to
object to the issuance of a permit issued pursuant to Title V whenever
the Administrator finds during the applicable review period, either on
her own initiative or in response to a citizen petition, that the
permit is ``not in compliance with the requirements of an applicable
requirement of this Act, including the requirements of an applicable
implementation plan.''
Regardless of whether EPA addresses deficient permits using
objection authorities or enforcement authorities or both, EPA cannot
intervene unless the state decision fails to comply with applicable
requirements. Thus, EPA may not intrude upon the significant discretion
granted to states under new source review programs, and will not
``second guess'' state decisions. Rather, in determining whether a
Title V permit incorporating PSD provisions calls for EPA objection
under section 505(b) or use of enforcement authorities under sections
113 and 167, EPA will consider whether the applicable substantive and
procedural requirements for public review and development of supporting
documentation were followed. In particular, EPA will review the process
followed by the permitting authority in determining best available
control technology, assessing air quality impacts, meeting Class I area
requirements, and other PSD requirements, to ensure that the required
SIP procedures (including public participation and Federal Land Manager
consultation opportunities) were met. EPA will also review whether any
determination by the permitting authority was made on reasonable
grounds properly supported on the record, described in enforceable
terms, and consistent with all applicable requirements. Finally, EPA
will review whether the terms of the PSD permit were properly
incorporated into the operating permit.
EPA Action
In this rulemaking action, we are approving the sections addressed
above as a revision to the Ohio SIP for PSD. The sections discussed in
this notice were conditionally approved on October 10, 2001, and EPA is
approving them based on the State's July 18, 2002 submittal.
EPA is publishing this rule without prior proposal because EPA
views this as a noncontroversial revision and anticipates no adverse
comments. However, in a separate document in this Federal Register
publication, the EPA is proposing to approve the State Plan should
adverse written comments be filed. This rule will be effective without
further notice unless the Agency receives relevant adverse written
comment by February 21, 2003. Should the Agency receive such comments,
it 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 such comments are received, the public
is advised that this action will be effective on March 10, 2003.
Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. This proposed action merely approves state regulation as
meeting federal requirements and imposes no additional requirements
beyond those imposed by the State. Accordingly, the Administrator
certifies that this proposed rule will not have a significant economic
impact on a substantial
[[Page 2912]]
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). Because this rule proposes to approve 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). For the same reason, this proposed rule also does
not significantly or uniquely affect the communities of tribal
governments, as specified by Executive Order 13084 (63 FR 27655, May
10, 1998). This proposed rule will not 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 proposed 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, EPA'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 EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
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 proposed rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA 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.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 13, 2002.
Bharat Mathur,
Acting Regional Administrator, Region 5.
For the reasons stated in the preamble, part 52, chapter I, of
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.
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 18, 2002, Ohio submitted revisions to its Permit to
Install rules as a revision to the State implementation plan.
(i) Incorporation by reference.
(A) Ohio Administrative Code Rules 3745-31-01, 3745-31-02, 3745-31-
03, 3745-31-05, and 3745-31-07 effective November 30, 2001.
[FR Doc. 03-1235 Filed 1-21-03; 8:45 am]
BILLING CODE 6560-50-P