Clean Air Act Proposed Approval of Revisions to Operating Permits Program in Ohio

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
  [Federal Register: September 30, 2003 (Volume 68, Number 189)]
[Proposed Rules]
[Page 56220-56225]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se03-34]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[OH 157-1 FRL -7566-5]
 
Clean Air Act Proposed Approval of Revisions to Operating Permits 
Program in Ohio

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve, as revisions to Ohio's operating 
permits program, proposed revisions to Ohio's regulations for 
insignificant emissions units (IEUs), Ohio's regulations requiring 
reports of any required monitoring at least every six months and prompt 
reports of deviations, and other provisions of Ohio's Title V 
regulations. In an April 18, 2002, Notice of Deficiency published in 
the Federal Register, EPA notified Ohio of EPA's finding that Ohio's 
provisions for IEUs and Ohio's monitoring and deviation reporting 
regulations did not meet minimum Federal requirements. These program 
revisions would resolve the deficiencies identified in the Notice of 
Deficiency.
    Ohio published proposed revisions on June 18, 2003, for public 
comment through July 29, 2003. On July 17, 2003, Ohio submitted the 
proposed revisions to EPA for approval as revisions to Ohio's Title V 
program. EPA is proposing to approve Ohio's revisions at the same time 
that Ohio is completing the process of adopting final revisions to its 
regulations. EPA will only finalize its approval of Ohio's revisions 
after Ohio adopts final regulations consistent with the changes 
described in this action.

DATES: Written comments must be received on or before October 30, 2003.

ADDRESSES: Comments may be submitted by mail 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. Comments may also be submitted 
electronically, or through hand delivery/courier, please follow the 
detailed instructions described in Part (I)(B)(1)(i) through (iii) of 
the Supplementary Information section.

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, 
damico.genevieve@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. EPA 
has established an official public rulemaking file for this action 
under Air Docket Number OH157. The official public file consists of the 
documents specifically referenced in this action, any public comments 
received, and other information related to this action. Although a part 
of the official docket, the public rulemaking file does not include 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. The official public rulemaking 
file is the collection of materials that is available for public 
viewing at U.S. Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois, 60604. EPA requests that if at 
all possible, you contact the contact listed in the ``For Further 
Information Contact'' section to schedule your inspection. The Regional 
Office's official hours of business are Monday through Friday, 8:45 to 
4:45 excluding federal holidays.
    2. Copies of the State submittal and EPA's technical support 
document are also available for public inspection during normal 
business hours, by appointment at the State Air Agency. Ohio 
Environmental Protection Agency, Division of Air Pollution Control,

[[Page 56221]]

Lazarus Government Center, 122 South Front Street, Columbus, Ohio, 
43215.
    3. Electronic Access. You may access this Federal Register document 
electronically through the regulations.gov web site located at http://
www.regulations.gov  where you can find, review, and submit 
comments on Federal rules that have been published in the Federal 
Register, the Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking Air docket Number OH157'' in 
the subject line on the first page of your comment. Please ensure that 
your comments are submitted within the specified comment period. 
Comments received after the close of the comment period will be marked 
``late.'' EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD-ROM you submit, and in any cover letter accompanying 
the disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail) to 
blakley.pamela@epa.gov, please include the text ``Public comment on 
proposed rulemaking Air Docket Number OH157'' in the subject line. 
EPA's e-mail system is not an ``anonymous access'' system. If you send 
an e-mail comment directly without going through regulations.gov , 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    ii. Regulations.gov. Your use of regulations.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to 
regulations.gov at http://www.regulations.gov,  then select 
Environmental Protection Agency at the top of the page and use the go 
button. The list of current EPA actions available for comment will be 
listed. Please follow the online instructions for submitting comments. 
The system is an ``anonymous access'' system, which means EPA will not 
know your identity, e-mail address, or other contact information unless 
you provide it in the body of your comment.
    iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM 
that you mail to the mailing address identified in Section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments 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. Please include the text ``Public comment on proposed 
rulemaking Air Docket Number OH157'' in the subject line on the first 
page of your comment.
    3. By Hand Delivery or Courier. Deliver your comments 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. Such deliveries are only accepted 
during the Regional Office's official hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:45 to 
4:45 excluding federal holidays.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the FOR FURTHER INFORMATION CONTACT section.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
regional file/rulemaking identification number in the subject line on 
the first page of your response. It would also be helpful if you 
provided the name, date, and Federal Register citation related to your 
comments.

[[Page 56222]]

II. Background

A. Approval of Ohio's Title V Program

    The Clean Air Act (CAA or Act) requires all State and local 
permitting authorities to develop operating permits programs that meet 
the requirements of Title V of the Act, 42 U.S.C. 7661-7661f, and its 
implementing regulations, 40 CFR part 70 (Part 70). Ohio submitted its 
operating permits program in response to this directive. EPA granted 
full approval to Ohio's Title V operating permits program on August 15, 
1995 (60 FR 42045).
    Ohio's Title V operating permits program is implemented by the Ohio 
Environmental Protection Agency (OEPA) and local air pollution control 
agencies.

B. Notice of Deficiency

    Under section 502(i) of the Act and 40 CFR 70.10(b)(1), whenever 
the EPA Administrator makes a determination that a Title V permitting 
authority is not adequately administering and enforcing a program, or a 
portion thereof, in accordance with Title V's requirements, the 
Administrator shall notify the State by publishing a notice in the 
Federal Register. If the permitting authority has not taken 
``significant action to assure adequate administration and enforcement 
of the program'' within 90 days after issuance of a notice of 
deficiency, EPA may withdraw approval of the State program or a portion 
thereof, apply any of the sanctions specified in section 179(b) of the 
Act (i.e., loss of federal highway funds or application of strict 
emissions offset requirements for new sources in certain areas), or 
promulgate, administer, and enforce a Federal Title V program. 40 CFR 
70.10(b)(2). If a State has not corrected the deficiency within 18 
months of the notice of deficiency, EPA will apply the sanctions under 
section 179(b) of the Act, in accordance with section 179(a) of the 
Act. CAA 502(i)(2), 42 U.S.C. 7661a(i)(2); 40 CFR 70.10(b)(3). In 
addition, if the State has not corrected the deficiency with 18 months, 
EPA must promulgate, administer, and enforce a whole or partial federal 
Title V program within 2 years after the date of the finding of 
deficiency. CAA 502(i)(4), 42 U.S.C. 7661a(i)(4); 40 CFR 70.10(b)(4).
    Pursuant to section 502(i) of the Act and 40 CFR 70.10(b)(1), EPA 
notified Ohio of EPA's finding that Ohio's regulations for IEUs and 
Ohio's regulations requiring reports of any required monitoring at 
least every six months and prompt reports of deviations do not meet 
minimum Federal requirements in a Notice of Deficiency published in the 
Federal Register on April 18, 2002 (67 FR 19175).

C. Exemption of IEUs From Permit Content Requirements

1. Background
    Part 70 authorizes EPA to approve as part of a State program a list 
of IEUs which need not be included in the permit application, provided 
that an application may not omit information needed to determine the 
applicability of, or to impose, any applicable requirement, or to 
evaluate the fee amount required under the EPA-approved schedule. See 
40 CFR 70.5(c). Nothing in Part 70, however, authorizes a state to 
exempt IEUs from the permit content requirements of 40 CFR 70.6.
    Ohio's regulations contain criteria for identifying IEUs. See OAC 
3745-77-01(U). Ohio's regulations require that permit applications 
contain information necessary to determine the applicability of, or to 
impose, any applicable requirement. See OAC 3745-77-03(A). The Ohio 
program, however, specifically exempts from the federally enforceable 
section of its Title V permits federally enforceable applicable 
requirements to which IEUs are subject. See OAC 3745-77-02(E). Although 
the Part 70 regulations provide states some opportunity to exempt or 
limit the amount of information on IEUs required in a Title V 
application, the July 21, 1992, preamble to EPA's Title V regulations 
(57 FR 32250, 32273), 40 CFR part 70, makes it clear that this 
exemption does not apply to the permit content. Therefore, Ohio's 
regulations at OAC 3745-77-02(E) are inconsistent with part 70. For 
additional discussion on this issue, please see 67 FR 19175 (April 18, 
2002) (Notice of Deficiency).
2. Proposed Changes to IEU Provisions
    In response to the Notice of Deficiency, Ohio has proposed to 
revise its regulations so that applicable requirements for IEUs are 
included in the federally enforceable section of its Title V permits. 
Specifically, Ohio has proposed six regulatory changes relating to 
IEUs. First, proposed revisions to OAC 3745-77-02(E)(1), which provide 
in part that the ``federally enforceable portion of the [Title V]
permit shall include all applicable requirements for all relevant 
emissions units at the major source,'' would remove language in the 
current rule which defines ``relevant emissions units'' to exclude 
IEUs. Thus, under the proposed revisions, applicable requirements for 
IEUs would need to be included in the federally enforceable portion of 
Ohio's Title V permits.
    Second, a proposed new provision, OAC 3745-77-07(A)(13)(a), would 
require IEUs that are subject to one or more applicable requirements to 
be listed in the federally enforceable portion of Title V permits along 
with the applicable requirements or the identification number of each 
permit to install that establishes one or more applicable requirements 
for the IEUs.
    Third, another proposed new provision, OAC 3745-77-07(A)(13)(B), 
would create a presumption that monitoring, recordkeeping, and 
reporting requirements established for IEUs in a permit to install or 
under applicable rules are presumed adequate to satisfy the Title V 
monitoring, recordkeeping and reporting requirements of OAC 3745-77-
07(A)(3). Under proposed OAC 3745-77-07(A)(13)(B), however, that 
presumption could be overcome if OEPA determines that additional 
monitoring, recordkeeping or reporting requirements are necessary to 
assure compliance. This proposed provision is consistent with EPA's 
long-standing position that the permitting authority in general has 
broad discretion in determining the nature of any required monitoring 
and that the requirement to include in a permit testing, monitoring, 
recordkeeping, and reporting sufficient to assure compliance does not 
require the permit to impose the same level of rigor with respect to 
all emission units. For example, it does not require extensive testing 
or monitoring to assure compliance with the applicable requirements for 
emissions units that do not have significant potential to violate 
emissions limitations or other requirements under normal operating 
conditions. Because IEUs are typically associated with lesser 
environmental impacts than other emission units and present little or 
no potential for violations of generally applicable requirements, EPA 
has stated that the permitting authority can provide in some cases that 
the status quo (i.e., no monitoring) meets the requirements of Part 70.
    Fourth, Ohio has proposed to add language to OAC 3745-77-08(C)(2) 
to indicate that group processing procedures may be used for changes to 
requirements for IEUs. Fifth, Ohio has proposed to revise OAC 3745-77-
07(I)(2) to clarify that no contemporaneous written notification is 
required for ``off-permit'' changes involving IEUs that are not subject 
to one or more applicable requirements. (Contemporaneous written 
notification

[[Page 56223]]

would continue to be required for ``off-permit'' changes involving non-
IEUs.)
    Finally, Ohio proposed to revise OAC 3745-77-08(C)(3)(a) to clarify 
that significant permit modification procedures do not apply to IEUs. 
In particular, proposed OAC 3745-77-08(C)(3)(a) would provide that the 
minor permit modification procedures of OAC 3745-77-08(C)(1), rather 
than the significant permit modification procedures of OAC 3745-77-
08(C)(3), would apply to the relaxation of reporting or recordkeeping 
permit terms or conditions relating to best available technology 
emission limitations, operational restrictions or other standards for 
IEUs.
    Under Ohio's proposed regulations, any change to an IEU may use the 
minor permit modification procedures of OAC 3745-77-08(C)(1) if it 
meets the criteria applicable to all permit modifications. OAC 3745-77-
08(C)(1)(a); see 40 CFR 70.7(e)(2)(i)(A). OEPA expressed concern that 
allowing changes to IEU's to utilize the minor permit modification 
procedures only if they meet the minor permit modification criteria set 
out in subparagraphs (i) through (vi) of OAC 3745-77-08(C) could mean 
that some changes to IEU's would be required to use the significant 
permit modification process. Specifically, Ohio is concerned that a 
change to the monitoring, recordkeeping or reporting for an IEU could 
be considered ``significant'' and therefore would require use of the 
significant permit modification process. Ohio is also concerned that a 
change to a best available technology (BAT) emission limit for an IEU 
created in a permit to install could require use of the significant 
permit modification process. Ohio has requested clarification from EPA 
on both of these outcomes. EPA believes that these two outcomes are not 
required under the revised Ohio rule that EPA is proposing to approve 
in this action.
    EPA believes that 40 CFR part 70 does not require that all changes 
to the monitoring, recordkeeping or reporting for an IEU use the 
significant permit modification process for two reasons. First, while 
Part 70 does require ``significant changes to existing monitoring, 
reporting, or recordkeeping requirements in the permit'' to use the 
significant modification process, it also gives Ohio flexibility to 
determine its own criteria governing which changes to monitoring are 
significant. See 40 CFR 70.7(e)(2)(i)(A)(2), 70.7(e)(4)(i). Section 
70.7(e)(4)(i) provides that a ``State program shall contain criteria 
for determining whether a change is significant. At a minimum, every 
significant change in existing monitoring permit terms or conditions * 
* * shall be considered significant.'' Accordingly, Ohio has determined 
that the environmental consequences of monitoring changes is an 
important criterion and that monitoring changes to units smaller than 5 
tons per year would not have significant environmental consequences. 
Therefore, Ohio has submitted proposed changes to its part 70 program 
providing that all changes to monitoring at IEUs are not significant 
because IEUs are limited to units less than 5 tons per year. Because of 
the size limitation, EPA believes that Part 70 allows Ohio to conclude 
that the environmental consequences of a change to monitoring at an IEU 
would be quite small, and to determine that such changes are not 
significant and therefore are eligible for minor modification 
procedures.
    Second, EPA believes that Ohio may interpret its rules such that 
changes to recordkeeping and reporting for IEUs do not require use of 
the significant modification process, because under that 
interpretation, Ohio's permit modification procedures for IEUs would be 
``substantially equivalent'' to those in section 70.7(e).\1\ Section 
70.7(e)(4)(i) provides that ``[a]t a minimum, * * * every relaxation of 
reporting or recordkeeping permit terms or conditions shall be 
considered significant.'' Unlike Sec.  70.7(e)(4)(i)'s reference to 
changes in existing monitoring (discussed above), this phrase is not 
modified by the word ``significant'' and Sec.  70.7(e)(4)(i) contains 
no express authority for permitting authorities to exempt relaxations 
of recordkeeping and reporting permit terms or conditions from use of 
the significant permit modification process based on their significance 
or any other grounds. Nonetheless, EPA believes that Ohio's rules, as 
interpreted by the State, are substantially equivalent to the permit 
revision process set forth in Sec.  70.7(e). First, the relaxations 
allowed to use minor permit modification procedures are limited to the 
smallest units, and given their small size, EPA believes that a full, 
significant permit modification process is not warranted or practical. 
Ohio's rules define IEUs as units with a potential to emit no larger 
than 5 tons per year for nonhazardous air pollutants and no larger than 
2 tons per year for hazardous air pollutants. Second, Ohio's rules 
allow minor permit modification procedures only for relaxations of 
recordkeeping or reporting permit terms for Ohio's BAT emission limits 
issued under the state minor new source review program. Relaxations of 
recordkeeping and reporting for other applicable requirements would 
require use of the significant permit modification process. EPA 
believes these limitations mean that any relaxations would be 
environmentally inconsequential. An example of a relaxation of 
recordkeeping or reporting provided by Ohio would be a change in the 
frequency of reporting for a BAT limit from semi-annual to annual. EPA 
is also relying on Ohio, as the creator of the BAT limits, to be in the 
best position to determine whether relaxations to recordkeeping or 
reporting for those limits would affect its ability to determine a 
source's compliance with the BAT limit. Accordingly, EPA finds the 
procedures under Ohio's rules, as interpreted by the State so as not to 
require relaxations in existing recordkeeping or reporting for IEUs to 
use the significant permit modification process, to be substantially 
equivalent to those required by Part 70. Ohio also sought clarification 
that changes to BAT emission limits that apply to IEUs will not require 
use of the significant permit modification process. EPA concurs that 
under Ohio's revised rules, for IEUs that are subject to BAT emission 
limits, changes to such limits that are accomplished through revisions 
to permits to install will not require use of the significant permit 
modification process.
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    \1\ Section 70.7(e)(1) authorizes EPA to approve Part 70 
programs that include permit modification procedures that are 
``substantially equivalent'' to those in Sec.  70.7(e). 
Specifically, Section 70.7(e)(1) provides: ``The State shall provide 
adequate, streamlined, and reasonable procedures for expeditiously 
processing permit modifications. The State may meet this obligation 
by adopting the procedures set forth below or ones substantially 
equivalent'' (emphasis added).
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    EPA believes that the proposed revisions to OAC 3745-77-02(E), 
3745-77-07(A)(13), 3745-77-07(I)(2), and 3745-77-08(C) meet the 
requirements of the CAA and Part 70. See White Paper Number 2 for 
Improved Implementation of the Part 70 Operating Permits Program, pp. 
30-31 (March 5, 1996). Therefore, EPA proposes to approve these changes 
as revisions to Ohio's Title V program if Ohio adopts the proposed 
changes as final regulations consistent with this notice. Final 
adoption of these changes by Ohio would adequately address the 
deficiencies identified in the Notice of Deficiency regarding Ohio's 
regulations for IEUs.

[[Page 56224]]

D. Limitation of Deviation Reports to Deviations Detected by Compliance 
Methods Required by Permits

1. Background
    OAC 3745-77-07(A)(3)(c)(ii) and (iii) limits the reporting of 
deviations to those which can be detected by the compliance method 
required by the permit. This limitation is contrary to the requirements 
of the Act and 40 CFR part 70. Specifically, section 70.6(a)(3)(iii)(A) 
requires that permittees submit reports of required monitoring at least 
every 6 months and that all instances of deviations from permit 
requirements be identified in these reports. Section 70.6(a)(3)(iii)(B) 
requires that permittees promptly report deviations from permitting 
requirements to the permitting authority. Section 70.6 does not provide 
for any exceptions to these requirements. Section 113(c)(2) of the Act, 
among other things, prohibits any person from knowingly making a false 
certification or omitting material information from any reports. 
Finally, 40 CFR 70.5(d) and 70.6(a)(3) require responsible officials to 
certify that all reports are true, accurate and complete. See also 62 
FR 8314 (February 24, 1997) (final rule promulgating credible evidence 
revisions). Together these statutory and regulatory requirements 
obligate sources to consider all available material information in 
evaluating and reporting deviations for purposes of promptly reporting 
deviations and submitting reports of any required monitoring at least 
semi-annually. Because Ohio's rule, OAC 3745-77-07(A)(3)(c)(ii)-(iii), 
only requires permittees to consider compliance method test data when 
reporting deviations from permit requirements, Ohio's Title V program 
does not meet the minimum requirements of part 70.
2. Proposed Changes to Deviation Provisions
    Ohio has proposed a number of changes to OAC 3745-77-
07(A)(3)(c)(ii) and (iii). Under the proposal, the language in OAC 
3745-77-07(A)(3)(c)(ii) requiring the permittee to include in its six-
month monitoring reports only those deviations ``that have been 
detected by the compliance method required under the permit'' would be 
deleted. Clarifying language would be added requiring that the reports 
``clearly identify'' deviations from ``the permit requirements that 
have occurred since the previous report has been submitted.''
    Under the proposal, OAC 3745-77-07(A)(3)(c)(iii) would be changed 
to reflect that prompt reports of deviations required under this 
provision will include the written and verbal malfunction reports 
required by OAC 3745-15-06. Prompt reporting would be further defined 
by the proposed OAC 3745-77-07(A)(3)(c)(iii) to be quarterly for all 
deviations from emission limitations, operational restrictions, and 
control device operating parameter limitations (except as prescribed in 
OAC 3745-15-06) and semi-annually for all deviations from monitoring, 
recordkeeping, and reporting requirements unless otherwise stated in 
the permit. The requirement that only deviations detected by the 
compliance method required under the permit would be removed along with 
the requirements for verbal reports. The verbal report requirements are 
also included in OAC 3745-15-06 and would, therefore, be duplicative 
here.
    EPA believes that the proposed revisions to OAC 3745-77-
07(A)(3)(c)(ii) and (iii) meet the requirements of the CAA and Part 70 
for reports of required monitoring at least every six months and prompt 
reports of deviations. Therefore, EPA proposes to approve these changes 
as revisions to Ohio's Title V program if Ohio adopts in final 
regulations the proposed changes consistent with this notice. Final 
adoption of these changes by Ohio would adequately address the 
deficiencies in OAC 3745-77-07(A)(3)(c)(ii) and (iii) identified in the 
Notice of Deficiency.

D. Other Proposed Changes to Ohio's Title V Regulations

    Ohio has also proposed other minor changes to its Title V operating 
permits program regulations, which EPA also proposes to approve.
1. Change to the Definition of Major Source
    On November 29, 2002, Ohio changed its definition of major source 
in OAC 3754-77-01(W)(2)(aa) to make it consistent with the changes EPA 
made to Part 70 on November 27, 2001 (66FR 59161). As revised, the rule 
requires sources to consider all pollutants when counting fugitive 
emissions from facilities subject to Section 111 or 112 standards 
promulgated on or before August 7, 1980. Therefore, EPA proposes to 
approve these changes as revisions to Ohio's Title V program.
2. Addition of the Definition of Incorporation by Reference
    Ohio proposes to add the definition of incorporation by reference 
in OAC 3745-77-01(NN), clarifying that referenced materials are made a 
part of the regulations. This definition is not required by part 70 but 
by Ohio law. EPA proposes to approve this language as part of Ohio's 
Title V program.
3. Addition of the Definition of Uncontrolled Potential Emissions
    On November 30, 2001, Ohio added the definition of ``uncontrolled 
potential emissions'' to OAC 3745-77-01(MM). Ohio defined uncontrolled 
potential emissions as the calculated annual emissions rate without any 
air pollution controls assuming 24 hours per day and 365 days per year 
of operation. If the emission unit has an inherent physical limitation, 
then the number of hours per day and days per year can be restricted to 
the maximum possible under the inherent physical limitation. The term 
``uncontrolled potential emissions'' is used in the definition of 
insignificant activities and emissions levels (OAC 3745-77-01(U)(3)). 
Ohio has changed OAC 3745-77-01(U)(3) to clarify that insignificant 
activities and emissions levels, in part, are emission units with 
uncontrolled potential emissions of five tons or less per year of any 
regulated air pollutant other than a hazardous air pollutant as opposed 
to emissions units with the potential to emit five tons or less per 
year. Potential to emit includes any physical or operational limitation 
on the capacity of a source to emit an air pollutant, including air 
pollution control equipment and restrictions on hours of operation or 
on the type or amount of material combusted, stored, or processed. 
Uncontrolled potential emissions only considers inherent physical 
limitation. EPA proposes to approve this language as part of Ohio's 
Title V program.

III. Final Action

    EPA is proposing to approve as revisions to Ohio's CAA Title V 
operating permits program proposed revisions to Ohio's regulations for 
IEUs, specifically, revisions to OAC 3745-77-02(E), 3745-77-07(A)(13), 
3745-77-07(A)(3)(c)(ii) and (iii), 3745-77-07(I), and 3745-77-08(C). 
EPA has determined that the proposed changes meet the requirements of 
Title V and Part 70 relating to IEUs and reporting and adequately 
address the deficiencies identified in the Notice of Deficiency 
published in the Federal Register on April 18, 2002 (67 FR 19175). EPA 
is also proposing to approve Ohio's new provisions at 3745-77-01(U), 
3745-77-01(W)(2)(aa), 3745-77-01(MM) and 3745-77-01(NN). Because the 
proposed revisions apply throughout the State of Ohio, this proposed 
approval applies to all State and local agencies that implement Ohio's 
operating permits program.

[[Page 56225]]

IV. Statutory and Executive Order Requirements

Executive Order 12866; Regulatory Planning and Review

    Under Executive Order 12866, ``Regulatory Planning and Review'' 
(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.

Executive Order 13211; Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    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).

Regulatory Flexibility Act

    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.).

Unfunded Mandates Reform Act

    Because this action 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 an unfunded mandate nor does 
it significantly or uniquely affect small governments, as described in 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175 Consultation and Coordination With Indian Tribal 
Governments

    This proposed rule also does not have tribal implications because 
it will 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, ``Consultation and Coordination with Indian Tribal 
Governments'' (59 FR 22951, November 9, 2000).

Executive Order 13132 Federalism

    This action also does not have federalism implications because it 
does 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, ``Federalism'' 
(64 FR 43255, August 10, 1999). This action merely proposes to approve a 
state rule implementing a federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Act.

Executive Order 13045 Protection of Children From Environmental Health 
and Safety Risks

    This proposed approval also is not subject to Executive Order 
13045, ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997), because it is not a 
significant regulatory action under executive order 12866.

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272, requires federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing program submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Absent a prior 
existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a program submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program submission that otherwise satisfies the provisions of the 
Act. Therefore, the requirements of section 12(d) of the NTTA do not 
apply.

Civil Justice Reform

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this 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.

Governmental Interference With Constitutionally Protected Property 
Rights

    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, and has determined that the rule's 
requirements do not constitute a taking.

Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Congressional Review Act

    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 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. 
804(2).
    In reviewing State operating permit programs submitted pursuant to 
Title V of the Act, EPA will approve State programs provided that they 
meet the requirements of the Act and EPA's regulations codified at Part 
70. 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 State operating permit program for failure to 
use VCS. It would, thus, be inconsistent with applicable law for EPA, 
when it reviews an operating permit program, to use VCS in place of a 
State program that otherwise satisfies the provisions of the 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.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: September 17, 2003.
Thomas V. Skinner,
Regional Administrator, Region 5.
[FR Doc. 03-24776 Filed 9-29-03; 8:45 am]
BILLING CODE 6560-50-P
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