Approval and Promulgation of Implementation Plans; Ohio New Source Review Rules, 8496-8500 [2010-3831]
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8496
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Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations
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you telephone Genevieve Damico,
Environmental Engineer, at (312) 353–
4761 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Genevieve Damico, Environmental
Engineer, Air Permit Section, Air
Programs Branch (AR–18J), EPA Region
5, 77 West Jackson Boulevard, Chicago,
Illinois 60604, (312) 353–4761,
damico.genevieve@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
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[FR Doc. 2010–3509 Filed 2–24–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2004–OH–0004; FRL–
9107–4]
Approval and Promulgation of
Implementation Plans; Ohio New
Source Review Rules
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is approving revisions to
the prevention of significant
deterioration (PSD) and nonattainment
new source review (NSR) construction
permit programs to the Ohio State
Implementation Plan (SIP) based on the
State’s November 15, 2005, letter. The
Ohio Environmental Protection Agency
(OEPA) is seeking approval of its rules
to implement the NSR Reform
provisions that were not vacated by the
United States Court of Appeals for the
District of Columbia (DC Circuit) in New
York v. EPA. EPA proposed approval of
these rules on May 11, 2005 and
received adverse comments. In this
action, EPA responds to these comments
and announces EPA’s final rulemaking
action. This action affects major
stationary sources in Ohio that are
subject to or potentially subject to the
PSD and NSR construction permit
programs.
DATES: This final rule is effective on
March 29, 2010.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2004–OH–0004. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy at the Environmental Protection
Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding
Federal holidays. We recommend that
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(DC Cir. 2005). Although the court did
uphold most of EPA’s rules, it vacated
both the clean unit and the PCP
provisions. As a result of this court
ruling, OEPA submitted a letter to EPA
on November 15, 2005, amending its
request for approval of Ohio’s rule.
Specifically, Ohio withdrew its request
for approval of the clean units and PCP
portions of the Ohio rules.
I. What Is Being Addressed by This
Document?
II. What Sections of Ohio’s Rules Are We
Approving in Today’s Action?
III. How Has This Rulemaking Been Affected
by the June 24, 2005 DC Circuit Court of
Appeals?
IV. What Are EPA’s Responses to Adverse
Comments?
V. What Action Is EPA Taking Today?
VI. Statutory and Executive Order Review
Definitions Unchanged From Proposal
In accordance with the May 11, 2005
proposal, EPA is approving the
definitions for actual emissions, actuals
PAL, baseline actual emissions, baseline
concentration, best available control
technology, continuous emission
monitoring system, continuous
emissions rate monitoring system,
continuous parameter monitoring
system, emission unit, lowest
achievable emission rate, major source
baseline date, major stationary source,
minor source baseline, new source
review project, nonattainment or
nonattaiment area, nonattainment new
source review permit, PAL allowable
emissions, PAL effective date, PAL
effective period, PAL major emissions
unit, PAL major modification, PAL
permit, PAL pollutant, PAL significant
emissions unit, PAL small emissions
unit, particulate matter, particulate
matter emissions, plantwide
applicability limit, PM10, PM10
emissions, total suspended particulate,
pollution prevention, predictive
emissions monitoring system,
prevention of significant deterioration
increment, prevention of significant
deterioration permit, projected actual
emission, regulated NSR pollutant,
replacement unit, representative actual
annual emissions, significant emissions
increase, and stationary source in OAC
3745–31–01(C), (D), (O), (Q), (S), (EE),
(FF), (GG), (MM), (FFF), (JJJ), (KKK),
(NNN), (UUU), (VVV), (WWW), (CCCC),
(DDDD), (EEEE), (FFFF), (GGGG),
(HHHH), (IIII), (JJJJ), (KKKK), (LLLL),
(MMMM), (OOOO), (PPPP), (QQQQ),
(UUUUU), (SSSS), (VVVV), (WWWW),
(XXXX), (ZZZZ), (DDDDD), (EEEEE),
(KKKKK), (LLLLL), and (PPPPP)
respectively. EPA is also approving the
definitions in OAC 3745–31–01, the
non-40 CFR 51.166 and 51.165
definitions in OAC 3745–31–01 (E), (J),
(M), (X), (JJ), (QQ), (DDD), (EEE), (XXX),
(HHHHH), and (XXXXX) and the minor
revisions to the definitions for ‘‘available
information’’, ‘‘baseline area’’, ‘‘baseline
concentration’’, ‘‘best available
I. What Is Being Addressed by This
Document?
We are partially approving revisions
to the PSD and nonattainment NSR
construction permit programs of the
State of Ohio. EPA fully approved
Ohio’s nonattainment NSR program on
January 10, 2003 (68 FR 1366). EPA
fully approved Ohio’s PSD program on
January 22, 2003 (68 FR 2909).
On December 31, 2002, EPA
published revisions to the Federal PSD
and NSR regulations in 40 CFR Parts 51
and 52 (67 FR 80186). These revisions
are commonly referred to as ‘‘NSR
Reform’’ regulations and became
effective on March 3, 2003. These
regulatory revisions include provisions
for baseline emissions determinations,
actual-to-future actual methodology,
plantwide applicability limits (PALs),
clean units, and pollution control
projects (PCPs). As stated in the
December 31, 2002, EPA rulemaking,
State and local permitting agencies must
adopt and submit revisions to their part
51 permitting programs implementing
the minimum program elements of that
rulemaking no later than January 2,
2006 (67 FR 80240). OEPA submitted
these regulatory revisions for parallel
processing on September 14, 2004,
which was prior to final adoption of the
State rules. Ohio adopted the final rules
on October 28, 2004. EPA proposed
conditional approval of these rules on
May 11, 2005 (70 FR 24734). On June
24, 2005, the United States Court of
Appeals for the District of Columbia
Circuit issued its ruling on challenges to
the December 2002 NSR reform
revisions. New York v. EPA, 413 F.3d 3
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II. What Sections of Ohio’s Rules Are
We Approving in Today’s Action?
Ohio Administrative Code (OAC) 3745–
31–01 Definitions
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technology’’, ‘‘Clean Air Act’’, ‘‘Clean
Coal Technology’’, ‘‘Clean Coal
Technology Demonstration Project’’,
‘‘Construction’’, ‘‘facility’’, ‘‘non-methane
organic compound’’, ‘‘Non-road engine’’,
and ‘‘Temporary clean coal
demonstration project’’, in accordance
with the May 11, 2005 proposal.
In a November 15, 2005 letter, OEPA
withdrew its request for approval of the
definitions for ‘‘clean unit’’ and ‘‘PCP’’
found in OAC 3745–31–01(Y) and OAC
3745–31–01(RRRR) respectively. EPA
does not approve these definitions into
the SIP.
Definition of Major Modification
In the November 15, 2005 letter,
OEPA withdrew its request for approval
into the SIP of the emission test for NSR
projects that involve clean units and
exclusion of a PCP from a physical
change or change in the method of
operation from the definition of major
modification found in OAC 3745–31–
01(III)(4)(c) and (5)(h) respectively.
OEPA also withdrew the phrase ‘‘3745–
31–31 and’’ from the comment in OAC
3745–31–01(III)(2) and the sentence ‘‘For
example, if a NSR project involves both
an existing emissions unit and a clean
unit, the projected increase is
determined by summing the values
determined using the method specified
in paragraph (III)(4)(a) of this rule for
the existing unit and using the method
specified in paragraph (III)(4)(c) of this
rule for the clean unit.’’ from OAC 3745–
31–01(III)(4)(d). EPA is approving the
definition of ‘‘major modification’’ in
OAC 3745–31–01(III) with the exception
of the portions withdrawn by OEPA in
the November 15, 2005 letter.
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Definition of Net Emissions Increase
In the November 15, 2005 letter,
OEPA withdrew its request for approval
of the exemption of increases or
decreases in clean units from the
determination of a net emissions
increase and the requirements for
credibility of decreases in emissions
from clean units and PCPs when
determining a net emissions increase
found in OAC 3745–31–01(SSS)(3)(d)
and OAC 3745–31–01(SSS)(3)(f)(iv)
respectively. EPA is approving into the
SIP the definition of ‘‘net emissions
increase’’ in OAC 3745–31–01(SSS) with
the exception of the portions withdrawn
by OEPA in the November 15, 2005
letter.
Incorporation by Reference
In the November 15, 2005 letter,
OEPA withdrew its request for approval
into the SIP the reference to 68 FR
61276, October 27, 2003 in OAC 3745–
31–01(ZZZZZ)(2)(h). This is a reference
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to the vacated equipment replacement
provisions (ERP). Ohio’s rules do not
contain any implementing language for
the ERP. OEPA committed in its
November 15, 2005 letter to remove the
reference to the ERP by June 2006. EPA
is approving OAC 3745–31–01(ZZZZZ)
with the exception of the reference to 68
FR 61276, October 27, 2003 in OAC
3745–31–01(ZZZZZ)(2)(h).
years to incorporate these changes. Ohio
has three years to change OAC 3745–
31–10 to meet the requirements of the
December 21, 2007 rulemaking.
OAC 3745–31–09: Air Permit To Install
Completeness Determinations, Public
Participation and Public Notice
EPA is approving OAC 3745–31–09 as
proposed on May 11, 2005.
EPA is approving OAC 3745–31–13 as
proposed on May 11, 2005.
OAC 3745–31–10 Air Stationary
Source Obligations
In the November 15, 2005 letter,
OEPA withdrew its request for approval
of the phrase ‘‘3745–31–30 to’’ from
OAC 3745–31–10(B) and the phrase ‘‘at
a clean unit or’’ from OAC 3745–31–
10(C). EPA is approving OAC 3745–31–
10 into the SIP with the exceptions of
these two phrases.
OAC 3745–31–10(C) specifies record
keeping and reporting requirements for
sources that elect to use the actual-toprojected-actual emission test and
where there is a reasonable possibility
that a project may result in a significant
net emissions increase. In 2005, in New
York v. EPA, the DC Circuit Court
remanded to EPA this provision of the
Federal rule (40 CFR 52.21(r)(6))
because ‘‘EPA has failed to explain how
it can ensure NSR compliance without
the relevant data’’ in the circumstances
where a facility concludes that a
significant emissions increase is not a
reasonably possible. 413 F.3d at 35–36.
As stated in the November 15, 2005
letter, OEPA believes its rules addressed
the court’s decision remanding the
record keeping and reporting
requirements when there is not
‘‘reasonable possibility’’ of a significant
emissions increase. Ohio incorporated a
requirement that all facilities ‘‘where the
sum of the Federally enforceable
potential to emit of the new or modified
emissions units associated with the NSR
project prior to the issuance of the NSR
project’s [minor NSR] permit-to-install
is greater than any one of the significant
levels found in the significant definition
of rule 3745–31–01 of the
Administrative Code’’ must record and
submit the documents required under
the original rule regardless of a
reasonable possibility determination.
EPA promulgated regulations to
clarify the ‘‘reasonable possibility’’
record keeping and reporting standard
of the 2002 NSR reform rules on
December 21, 2007 (72 FR 72607). EPA’s
rules allow permitting authorities three
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OAC 3745–31–13 Attainment
Provisions—Review of Major Stationary
Sources and Major Modifications,
Stationary Source Applicability and
Exemptions
OAC 3745–31–15 Attainment
Provisions—Control Technology Review
EPA is approving OAC 3745–31–15 as
proposed on May 11, 2005.
OAC 3745–31–21
Provisions
Nonattainment
EPA is approving OAC 3745–31–21 as
proposed on May 11, 2005.
OAC 3745–31–22 Nonattainment
Provisions—Conditions for Approval
In the November 15, 2005 letter,
OEPA withdrew its request for approval
for the exclusion of clean unit or PCP
emission reductions from use in
determining emissions offsets found in
OAC 3745–31–22(A)(3)(e) and (A)(3)(f).
EPA is approving OAC 3745–31–22
with the exception of OAC 3745–31–
22(A)(3)(e) and (A)(3)(f).
OAC 3745–31–24 Nonattainment
Provisions—Baseline for Determining
Credit for Emission and Air Quality
Offsets
EPA is approving OAC 3745–31–24 as
proposed on May 11, 2005.
OAC 3745–31–26 Nonattainment
Provisions—Offset Ratio Requirements
EPA is approving OAC 3745–31–26 as
proposed on May 11, 2005.
OAC 3745–31–30
Clean Units
In the November 15, 2005 letter,
OEPA withdrew its request for approval
for OAC 3745–31–30 in its entirety. By
removing OAC 3745–31–30 from the
request for approval and its rules, the
portions of OAC 3745–31 which were
the basis for proposing conditional
approval in the May 11, 2005 Federal
Register are no longer under
consideration by EPA. EPA is not
approving OAC 3745–31–30 into the
SIP.
OAC 3745–31–31
Project
Pollution Control
In the November 15, 2005 letter,
OEPA withdrew its request for approval
for OAC 3745–31–31 in its entirety. EPA
is not approving OAC 3745–31–31 into
the SIP.
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OAC 3745–31–32 Plantwide
Applicability Limit (PAL)
EPA is approving OAC 3745–31–32 as
proposed on May 11, 2005.
III. How Has This Rulemaking Been
Affected by the June 24, 2005 DC
Circuit Court of Appeals?
On June 24, 2005, the United States
Court of Appeals for the District of
Columbia Circuit issued its ruling on
challenges to the December 2002 NSR
reform revisions. New York v. EPA, 413
F.3d 3 (DC Cir. 2005). Although the
Court did uphold most of EPA’s rules,
it vacated both the clean unit and the
PCP provisions. As a result of this court
ruling, OEPA submitted a letter to EPA
on November 15, 2005, amending its
request for approval of Ohio’s rule.
Specifically, Ohio withdrew its request
for approval of the clean unit and PCP
portions of the Ohio rules. By removing
the clean unit provisions from the
request for approval and its rules, the
portions of OAC 3745–31 which were
the basis for proposing conditional
approval in the May 11, 2005 Federal
Register are no longer under
consideration by EPA. Therefore, the
basis for proposing conditional approval
instead of approval is no longer present.
EPA is instead partially approving
Ohio’s rules in this action with no
conditions.
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IV. What Are EPA’s Responses to
Adverse Comments?
EPA received comments in support of
Ohio’s rules, as well as adverse
comments. Several commenters
provided comments on the May 11,
2005 proposal prior to the June 24, 2005
court ruling. Therefore, the comments
do not reflect the DC Circuit Court
decision. This final action takes into
consideration the court’s ruling on the
Federal NSR reform regulations.
Therefore, Ohio’s approved SIP is
consistent with the Federal NSR reform
regulations. This action discusses three
significant adverse comments. However,
EPA responds to all adverse comments
in three documents that can be found in
the docket for this action. These
documents are: Response to Comments
of the National Resources Defense
Council to EPA’s Proposed Rule to
Conditionally Approve Ohio’s Changes
to Its New Source Review Rules,
Response to the State of Vermont’s
Comments, and Response to Comments
of the Ohio Environmental Council to
EPA’s Proposed Rule to Conditionally
Approve Ohio’s Changes to its New
Source Review Rules.
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A. Provisions in Ohio’s Submission
Cause the State’s Revised Plan To
Interfere With Applicable Requirements
Concerning Attainment and Reasonable
Further Progress
Commenters express concern that the
EPA has never made, or even proposed
to make, a finding that revising Ohio’s
permit provisions so that they track the
non-vacated provisions of the 2002 rules
‘‘would not interfere with attainment or
other applicable requirements.’’
Commenters state that neither Ohio nor
EPA has analyzed the particular impact
of each part of the rule, much less the
particular impact that each part’s
adoption by Ohio would have on that
State’s compliance with the
requirements that it provide for
attainment, prohibit emissions that
interfere with attainment or
maintenance of the National Ambient
Air Quality Standards (NAAQS), and
require reasonable further progress
toward expeditious attainment.
Therefore, commenters believe that
finalizing the EPA rulemaking proposal
at issue here would violate section
110(1) of the Clean Air Act (CAA).
EPA responds that Section 110(l) of
the CAA states that ‘‘[t]he Administrator
shall not approve a revision of a plan if
the revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress * * * or any other applicable
requirement of this chapter.’’ 42 U.S.C.
7410(l).
In ‘‘Approval and Promulgation of
Implementation Plans; NSR; State of
Nevada, Clark County Department of Air
Quality and Environmental
Management’’, 69 FR 54006 (Sept. 7,
2004), EPA stated that section 110(l)
does not preclude SIP relaxations. EPA
stated that Section 110(l) only requires
that the ‘‘relaxations not interfere with
specified requirements of the CAA
including requirements for attainment
and reasonable further progress’’, and
that therefore, a State can relax its SIP
provisions if it is able to show that it can
‘‘attain or maintain the NAAQS and
meet any applicable reasonable further
progress goals or other specific
requirements.’’ 69 FR 54011–12.
The Ohio Proposed NSR Reform Rules
track the Federal NSR Reform Rules,
and EPA previously determined that the
implementation of the Federal NSR
Reform Rules will be environmentally
beneficial. (See 68 FR 44620 and 63021).
EPA’s Supplemental Analysis for the
Federal NSR Reform Rules estimated
that there are likely to be reductions in
emissions of volatile organic
compounds (VOC) due to the use of
PALs. Using the same methodology
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used in the Supplemental Analysis to
assess the emissions benefits of the
Ohio’s NSR Reform Rules in Ohio as
EPA used to assess the benefits
nationally, we conclude that the PAL
option would result in a net reduction
of VOC emissions.
It is more difficult to assess the
environmental impacts of the actual-toprojected-actual test and the ‘‘2 in 10’’
baseline provisions. The Supplemental
Analysis determined that there is a
slight national environmental benefit
brought about by these NSR reform
provisions. However, in Ohio, sources
undergoing construction which are not
subject to the best available control
technology or lowest achievable
emission reduction NSR requirements
will need to comply with Ohio’s best
available technology provisions under
OAC 3745–31–05(A)(3).
Overall, we expect changes in air
quality as a result of implementing
PALs, the actual-to-projected-actual test,
and the ‘‘2 in 10’’ baseline provisions in
Ohio to be somewhere between neutral
and providing modest contribution to
reasonable further progress.
Accordingly, EPA determines that these
changes will not interfere with any
applicable requirement concerning
attainment and reasonable further
progress or any other applicable
requirement of the CAA.
B. Provisions in Ohio’s Submission
Cause the State’s Revised Plan To
Interfere With Applicable Requirements
Concerning Backsliding in
Nonattainment Areas.
Commenters expressed concern that
EPA’s approval will allow sources in
Ohio’s nonattainment areas to
‘‘backslide’’ on more stringent pollution
control requirements contrary to section
193 of the CAA. Section 193 of the CAA
provides in part that: ‘‘No control
requirement in effect * * * before
November 15, 1990, in any area which
is a non-attainment area for any air
pollutant may be modified after
November 15, 1990, in any manner
unless the modification insures
equivalent or greater emission
reductions of such air pollutant.’’ 42
U.S.C. 7515. According to commenters,
Ohio has made no demonstration, and
EPA has proposed no finding, that the
modifications to Ohio’s NSR rules
ensure ‘‘equivalent or greater emissions
reductions.’’ Moreover, commenters
state, Ohio cannot make a
demonstration of equivalency, and EPA
cannot make such a finding. Because,
far from ensuring ‘‘equivalent or greater
emission reductions’’ than Ohio’s
preexisting permit provisions, the
modifications ensure that emissions will
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not be reduced as much as under the
preexisting rules. In fact, commenters
believe, the modifications allow
emissions to increase in Ohio’s
nonattainment areas.
EPA responds that assuming that
section 193 applies to NSR, section 193
does not require additional emission
reductions before this SIP revision is
approved. As of November 15, 1990, the
approved SIP did not contain a major
source NSR program consistent with the
requirements of the CAA, which
requires offsets for construction of major
sources or major modifications in
nonattainment areas. The SIP in effect
on November 15, 1990 did include a
preconstruction permitting program, but
that program did not require offsets for
any sources. Under Ohio’s new rules,
major sources are subject to permitting
requirements that are consistent with
current CAA requirements (while minor
sources remain subject to the 1990
permitting program). This SIP revision
affects only the major source permitting
program.
Thus, assuming that section 193
applies in some fashion to the
permitting program in the SIP as of
November 15, 1990 as it applied to
major sources, that program did not
achieve any ‘‘emission reductions’’ from
major sources because it did not require
offsets for any sources. It follows that if
there were no emission reductions
generated by the 1990 permitting
program, then the section 193
requirement to provide ‘‘equivalent or
greater emission reductions’’ of any air
pollutant as part of this SIP revision
would be satisfied with no additional
reductions. Furthermore, for the reasons
discussed above with respect to Section
110(l), EPA has found that the net effect
of these changes will be neutral or
environmentally beneficial.
C. Ohio’s Incorporation of EPA’s 2003
New Source Review Rule by Reference
Commenters express concern that
EPA’s May 11, 2005, action appears to
propose to approve Ohio provisions that
incorporate by reference an EPA rule
that has been stayed by order of the DC
Circuit, as well as a second EPA rule—
a related Federal implementation plan
rule—that the agency has acknowledged
to be stayed by virtue of the same DC
Circuit order. If EPA approves those
provisions, the action will be a violation
of the DC Circuit’s order. Additionally,
the action will exceed EPA’s authority
under section 110(k)(3) of the CAA
while violating sections 110(l) and 193.
EPA responds that in a November 15,
2005 letter, OEPA withdrew its request
for approval of the phrase ‘‘68 FR 61276,
Oct. 27, 2003:’’ in OAC 3745–31–01
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(ZZZZZ)(2)(h). EPA is not approving
this section into the SIP. Furthermore,
in the November 15, 2005 letter, OEPA
commits to strike this phrase during its
next five-year review which is expected
to be completed by June 2006.
V. What Action Is EPA Taking Today?
EPA is partially approving revisions
to Ohio’s permit to install provisions,
which were submitted by Ohio to EPA
on September 14, 2004. These revisions
meet the minimum program
requirements of the December 31, 2002
EPA NSR Reform rulemaking. As
requested by OEPA’s November 15,
2005 letter, EPA is not taking action on
the provisions of Ohio’s rule relating to
clean units, PCP, and ERP. Furthermore,
OEPA has removed the respective clean
unit, PCP and ERP provisions from its
rules.
VI. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
State choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves State law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by State law. For that reason,
this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
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8499
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
Tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on Tribal governments or preempt
Tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the 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 April 26, 2010.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
E:\FR\FM\25FER1.SGM
25FER1
8500
Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: January 21, 2010.
Walter W. Kovalick Jr.,
Acting Regional Administrator, Region 5.
■
40 CFR part 52 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 K—Ohio
2. Section 52.1870 is amended by
adding paragraph (c)(145) to read as
follows:
■
§ 52.1870
Identification of plan.
jlentini on DSKJ8SOYB1PROD with RULES
*
*
*
*
*
(c) * * *
(145) On September 14, 2004, Ohio
submitted modifications to its
Prevention of Significant Deterioration
and nonattainment New Source Review
rules as a revision to the State
implementation plan.
(i) Incorporation by reference.
(A) Ohio Administrative Code Rule
3745–31–01, Definitions: (C), (D), (E),
(J), (M), (N), (O), (P), (Q), (S), (T), (U),
(V), (W), (X), (DD), (EE), (FF), (GG), (JJ),
(MM), (NN), (QQ), (DDD), (EEE), (FFF),
(JJJ), (KKK), (NNN), (UUU), (VVV),
(WWW), (XXX), (YYY), (ZZZ), (CCCC),
(DDDD), (EEEE), (FFFF), (GGGG),
(HHHH), (IIII), (JJJJ), (KKKK), (LLLL),
(MMMM), (OOOO), (PPPP), (QQQQ),
(SSSS), (VVVV), (WWWW), (XXXX),
(ZZZZ), (DDDDD), (EEEEE), (HHHHH),
(KKKKK), (LLLLL), (PPPPP), (QQQQQ),
(UUUUU), and (XXXXX), adopted on
October 18, 2004, effective October 28,
2004.
(B) Ohio Administrative Code Rules
3745–31–01, Definitions: (III) and (SSS),
3745–31–10 ‘‘Air Stationary Source
Obligations.’’, and 3745–31–22
‘‘Nonattainment Provisions—Conditions
for Approval’’, adopted on October 18,
2004, effective October 28, 2004 and
revised by the November 15, 2005 letter
from Joseph P. Koncelik to Thomas
Skinner. This letter, included as
Additional material in paragraph
(145)(ii)(B) below, removes references to
the Pollution Control Project (PCP) and
Clean Unit provisions vacated by a June
24, 2005 DC Circuit Court of Appeals
decision.
(C) Ohio Administrative Code Rules
3745–31–09 ‘‘Air permit to install
completeness determinations, public
participation and public notice.’’, 3745–
31–13 ‘‘Attainment provisions—review
of major stationary sources and major
modifications, stationary source
VerDate Nov<24>2008
16:14 Feb 24, 2010
Jkt 220001
applicability and exemptions.’’, 3745–
31–15 ‘‘Attainment provisions—Control
Technology Review.’’, 3745–31–21
‘‘Nonattainment provisions—review of
major stationary sources and major
modifications—stationary source
applicability and exemptions.’’, 3745–
31–24 ‘‘Non-attainment Provisions—
Baseline for Determining Credit for
Emission and Air Quality Offsets.’’,
3745–31–26 ‘‘Nonattainment
Provisions—Offset Ratio
Requirements.’’, and 3745–31–32
‘‘Plantwide applicability limit (PAL).’’,
adopted on October 18, 2004, effective
October 28, 2004.
(D) October 18, 2004, ‘‘Director’s Final
Findings and Orders’’, signed by
Christopher Jones, Director, Ohio
Environmental Protection Agency,
adopting rules 3745–31–01, 3745–31–
09, 3745–31–10, 3745–31–13, 3745–31–
15, 3745–31–21, 3745–31–22, 3745–31–
24, 3745–31–26, 3745–31–30, 3745–31–
31, and 3745–31–32.
(ii) Additional material.
(A) Ohio Administrative Code Rule
3745–31–01, Definitions: (ZZZZZ)
adopted on October 18, 2004, effective
October 28, 2004.
(B) Letter dated November 15, 2005,
from Ohio EPA Director Joseph P.
Koncelik to Regional Administrator
Thomas Skinner, titled Request for
Approval of Ohio Administrative Code
(‘‘OAC’’) Chapter 3745–31 NSR Reform
Rule Changes into the State
Implementation Plan (‘‘SIP’’).
*
*
*
*
*
[FR Doc. 2010–3831 Filed 2–24–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2009–0213; FRL–8813–8]
tolerance. This regulation eliminates the
need to establish a maximum
permissible level for residues of
triglycerol diisostearate.
DATES: This regulation is effective
February 25, 2010. Objections and
requests for hearings must be received
on or before April 26, 2010, and must
be filed in accordance with the
instructions provided in 40 CFR part
178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
ADDRESSES: EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2009–0213. All documents in the
docket are listed in the docket index
available at https://www.regulations.gov.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Fertich, Registration Division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001; telephone number:
(703) 347–8560; e-mail address:
fertich.elizabeth@epa.gov.
SUPPLEMENTARY INFORMATION:
1,2,3-Propanetriol, Homopolymer
Diisooctadecanoate; Exemption from
the Requirement of a Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: This regulation establishes an
exemption from the requirement of a
tolerance for residues of 1,2,3propanetriol, homopolymer
diisooctadecanoate, herein referred to as
triglycerol diisostearate, when used as
an inert ingredient (emulsifier) when
applied to animals. Valent Biosciences
Corporation submitted a petition to EPA
under the Federal Food, Drug, and
Cosmetic Act (FFDCA), requesting an
exemption from the requirement of a
PO 00000
Frm 00040
Fmt 4700
Sfmt 4700
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
This listing is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
E:\FR\FM\25FER1.SGM
25FER1
Agencies
[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Rules and Regulations]
[Pages 8496-8500]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3831]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2004-OH-0004; FRL-9107-4]
Approval and Promulgation of Implementation Plans; Ohio New
Source Review Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving revisions to the prevention of significant
deterioration (PSD) and nonattainment new source review (NSR)
construction permit programs to the Ohio State Implementation Plan
(SIP) based on the State's November 15, 2005, letter. The Ohio
Environmental Protection Agency (OEPA) is seeking approval of its rules
to implement the NSR Reform provisions that were not vacated by the
United States Court of Appeals for the District of Columbia (DC
Circuit) in New York v. EPA. EPA proposed approval of these rules on
May 11, 2005 and received adverse comments. In this action, EPA
responds to these comments and announces EPA's final rulemaking action.
This action affects major stationary sources in Ohio that are subject
to or potentially subject to the PSD and NSR construction permit
programs.
DATES: This final rule is effective on March 29, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2004-OH-0004. All documents in the docket are listed on
the https://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through https://www.regulations.gov or in hard copy at
the Environmental Protection Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This
facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding Federal holidays. We recommend that you telephone Genevieve
Damico, Environmental Engineer, at (312) 353-4761 before visiting the
Region 5 office.
FOR FURTHER INFORMATION CONTACT: Genevieve Damico, Environmental
Engineer, Air Permit Section, Air Programs Branch (AR-18J), EPA Region
5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4761,
damico.genevieve@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What Is Being Addressed by This Document?
II. What Sections of Ohio's Rules Are We Approving in Today's
Action?
III. How Has This Rulemaking Been Affected by the June 24, 2005 DC
Circuit Court of Appeals?
IV. What Are EPA's Responses to Adverse Comments?
V. What Action Is EPA Taking Today?
VI. Statutory and Executive Order Review
I. What Is Being Addressed by This Document?
We are partially approving revisions to the PSD and nonattainment
NSR construction permit programs of the State of Ohio. EPA fully
approved Ohio's nonattainment NSR program on January 10, 2003 (68 FR
1366). EPA fully approved Ohio's PSD program on January 22, 2003 (68 FR
2909).
On December 31, 2002, EPA published revisions to the Federal PSD
and NSR regulations in 40 CFR Parts 51 and 52 (67 FR 80186). These
revisions are commonly referred to as ``NSR Reform'' regulations and
became effective on March 3, 2003. These regulatory revisions include
provisions for baseline emissions determinations, actual-to-future
actual methodology, plantwide applicability limits (PALs), clean units,
and pollution control projects (PCPs). As stated in the December 31,
2002, EPA rulemaking, State and local permitting agencies must adopt
and submit revisions to their part 51 permitting programs implementing
the minimum program elements of that rulemaking no later than January
2, 2006 (67 FR 80240). OEPA submitted these regulatory revisions for
parallel processing on September 14, 2004, which was prior to final
adoption of the State rules. Ohio adopted the final rules on October
28, 2004. EPA proposed conditional approval of these rules on May 11,
2005 (70 FR 24734). On June 24, 2005, the United States Court of
Appeals for the District of Columbia Circuit issued its ruling on
challenges to the December 2002 NSR reform revisions. New York v. EPA,
413 F.3d 3 (DC Cir. 2005). Although the court did uphold most of EPA's
rules, it vacated both the clean unit and the PCP provisions. As a
result of this court ruling, OEPA submitted a letter to EPA on November
15, 2005, amending its request for approval of Ohio's rule.
Specifically, Ohio withdrew its request for approval of the clean units
and PCP portions of the Ohio rules.
II. What Sections of Ohio's Rules Are We Approving in Today's Action?
Ohio Administrative Code (OAC) 3745-31-01 Definitions
Definitions Unchanged From Proposal
In accordance with the May 11, 2005 proposal, EPA is approving the
definitions for actual emissions, actuals PAL, baseline actual
emissions, baseline concentration, best available control technology,
continuous emission monitoring system, continuous emissions rate
monitoring system, continuous parameter monitoring system, emission
unit, lowest achievable emission rate, major source baseline date,
major stationary source, minor source baseline, new source review
project, nonattainment or nonattaiment area, nonattainment new source
review permit, PAL allowable emissions, PAL effective date, PAL
effective period, PAL major emissions unit, PAL major modification, PAL
permit, PAL pollutant, PAL significant emissions unit, PAL small
emissions unit, particulate matter, particulate matter emissions,
plantwide applicability limit, PM10, PM10 emissions, total suspended
particulate, pollution prevention, predictive emissions monitoring
system, prevention of significant deterioration increment, prevention
of significant deterioration permit, projected actual emission,
regulated NSR pollutant, replacement unit, representative actual annual
emissions, significant emissions increase, and stationary source in OAC
3745-31-01(C), (D), (O), (Q), (S), (EE), (FF), (GG), (MM), (FFF),
(JJJ), (KKK), (NNN), (UUU), (VVV), (WWW), (CCCC), (DDDD), (EEEE),
(FFFF), (GGGG), (HHHH), (IIII), (JJJJ), (KKKK), (LLLL), (MMMM), (OOOO),
(PPPP), (QQQQ), (UUUUU), (SSSS), (VVVV), (WWWW), (XXXX), (ZZZZ),
(DDDDD), (EEEEE), (KKKKK), (LLLLL), and (PPPPP) respectively. EPA is
also approving the definitions in OAC 3745-31-01, the non-40 CFR 51.166
and 51.165 definitions in OAC 3745-31-01 (E), (J), (M), (X), (JJ),
(QQ), (DDD), (EEE), (XXX), (HHHHH), and (XXXXX) and the minor revisions
to the definitions for ``available information'', ``baseline area'',
``baseline concentration'', ``best available
[[Page 8497]]
technology'', ``Clean Air Act'', ``Clean Coal Technology'', ``Clean
Coal Technology Demonstration Project'', ``Construction'',
``facility'', ``non-methane organic compound'', ``Non-road engine'',
and ``Temporary clean coal demonstration project'', in accordance with
the May 11, 2005 proposal.
In a November 15, 2005 letter, OEPA withdrew its request for
approval of the definitions for ``clean unit'' and ``PCP'' found in OAC
3745-31-01(Y) and OAC 3745-31-01(RRRR) respectively. EPA does not
approve these definitions into the SIP.
Definition of Major Modification
In the November 15, 2005 letter, OEPA withdrew its request for
approval into the SIP of the emission test for NSR projects that
involve clean units and exclusion of a PCP from a physical change or
change in the method of operation from the definition of major
modification found in OAC 3745-31-01(III)(4)(c) and (5)(h)
respectively. OEPA also withdrew the phrase ``3745-31-31 and'' from the
comment in OAC 3745-31-01(III)(2) and the sentence ``For example, if a
NSR project involves both an existing emissions unit and a clean unit,
the projected increase is determined by summing the values determined
using the method specified in paragraph (III)(4)(a) of this rule for
the existing unit and using the method specified in paragraph
(III)(4)(c) of this rule for the clean unit.'' from OAC 3745-31-
01(III)(4)(d). EPA is approving the definition of ``major
modification'' in OAC 3745-31-01(III) with the exception of the
portions withdrawn by OEPA in the November 15, 2005 letter.
Definition of Net Emissions Increase
In the November 15, 2005 letter, OEPA withdrew its request for
approval of the exemption of increases or decreases in clean units from
the determination of a net emissions increase and the requirements for
credibility of decreases in emissions from clean units and PCPs when
determining a net emissions increase found in OAC 3745-31-01(SSS)(3)(d)
and OAC 3745-31-01(SSS)(3)(f)(iv) respectively. EPA is approving into
the SIP the definition of ``net emissions increase'' in OAC 3745-31-
01(SSS) with the exception of the portions withdrawn by OEPA in the
November 15, 2005 letter.
Incorporation by Reference
In the November 15, 2005 letter, OEPA withdrew its request for
approval into the SIP the reference to 68 FR 61276, October 27, 2003 in
OAC 3745-31-01(ZZZZZ)(2)(h). This is a reference to the vacated
equipment replacement provisions (ERP). Ohio's rules do not contain any
implementing language for the ERP. OEPA committed in its November 15,
2005 letter to remove the reference to the ERP by June 2006. EPA is
approving OAC 3745-31-01(ZZZZZ) with the exception of the reference to
68 FR 61276, October 27, 2003 in OAC 3745-31-01(ZZZZZ)(2)(h).
OAC 3745-31-09: Air Permit To Install Completeness Determinations,
Public Participation and Public Notice
EPA is approving OAC 3745-31-09 as proposed on May 11, 2005.
OAC 3745-31-10 Air Stationary Source Obligations
In the November 15, 2005 letter, OEPA withdrew its request for
approval of the phrase ``3745-31-30 to'' from OAC 3745-31-10(B) and the
phrase ``at a clean unit or'' from OAC 3745-31-10(C). EPA is approving
OAC 3745-31-10 into the SIP with the exceptions of these two phrases.
OAC 3745-31-10(C) specifies record keeping and reporting
requirements for sources that elect to use the actual-to-projected-
actual emission test and where there is a reasonable possibility that a
project may result in a significant net emissions increase. In 2005, in
New York v. EPA, the DC Circuit Court remanded to EPA this provision of
the Federal rule (40 CFR 52.21(r)(6)) because ``EPA has failed to
explain how it can ensure NSR compliance without the relevant data'' in
the circumstances where a facility concludes that a significant
emissions increase is not a reasonably possible. 413 F.3d at 35-36. As
stated in the November 15, 2005 letter, OEPA believes its rules
addressed the court's decision remanding the record keeping and
reporting requirements when there is not ``reasonable possibility'' of
a significant emissions increase. Ohio incorporated a requirement that
all facilities ``where the sum of the Federally enforceable potential
to emit of the new or modified emissions units associated with the NSR
project prior to the issuance of the NSR project's [minor NSR] permit-
to-install is greater than any one of the significant levels found in
the significant definition of rule 3745-31-01 of the Administrative
Code'' must record and submit the documents required under the original
rule regardless of a reasonable possibility determination.
EPA promulgated regulations to clarify the ``reasonable
possibility'' record keeping and reporting standard of the 2002 NSR
reform rules on December 21, 2007 (72 FR 72607). EPA's rules allow
permitting authorities three years to incorporate these changes. Ohio
has three years to change OAC 3745-31-10 to meet the requirements of
the December 21, 2007 rulemaking.
OAC 3745-31-13 Attainment Provisions--Review of Major Stationary
Sources and Major Modifications, Stationary Source Applicability and
Exemptions
EPA is approving OAC 3745-31-13 as proposed on May 11, 2005.
OAC 3745-31-15 Attainment Provisions--Control Technology Review
EPA is approving OAC 3745-31-15 as proposed on May 11, 2005.
OAC 3745-31-21 Nonattainment Provisions
EPA is approving OAC 3745-31-21 as proposed on May 11, 2005.
OAC 3745-31-22 Nonattainment Provisions--Conditions for Approval
In the November 15, 2005 letter, OEPA withdrew its request for
approval for the exclusion of clean unit or PCP emission reductions
from use in determining emissions offsets found in OAC 3745-31-
22(A)(3)(e) and (A)(3)(f). EPA is approving OAC 3745-31-22 with the
exception of OAC 3745-31-22(A)(3)(e) and (A)(3)(f).
OAC 3745-31-24 Nonattainment Provisions--Baseline for Determining
Credit for Emission and Air Quality Offsets
EPA is approving OAC 3745-31-24 as proposed on May 11, 2005.
OAC 3745-31-26 Nonattainment Provisions--Offset Ratio Requirements
EPA is approving OAC 3745-31-26 as proposed on May 11, 2005.
OAC 3745-31-30 Clean Units
In the November 15, 2005 letter, OEPA withdrew its request for
approval for OAC 3745-31-30 in its entirety. By removing OAC 3745-31-30
from the request for approval and its rules, the portions of OAC 3745-
31 which were the basis for proposing conditional approval in the May
11, 2005 Federal Register are no longer under consideration by EPA. EPA
is not approving OAC 3745-31-30 into the SIP.
OAC 3745-31-31 Pollution Control Project
In the November 15, 2005 letter, OEPA withdrew its request for
approval for OAC 3745-31-31 in its entirety. EPA is not approving OAC
3745-31-31 into the SIP.
[[Page 8498]]
OAC 3745-31-32 Plantwide Applicability Limit (PAL)
EPA is approving OAC 3745-31-32 as proposed on May 11, 2005.
III. How Has This Rulemaking Been Affected by the June 24, 2005 DC
Circuit Court of Appeals?
On June 24, 2005, the United States Court of Appeals for the
District of Columbia Circuit issued its ruling on challenges to the
December 2002 NSR reform revisions. New York v. EPA, 413 F.3d 3 (DC
Cir. 2005). Although the Court did uphold most of EPA's rules, it
vacated both the clean unit and the PCP provisions. As a result of this
court ruling, OEPA submitted a letter to EPA on November 15, 2005,
amending its request for approval of Ohio's rule. Specifically, Ohio
withdrew its request for approval of the clean unit and PCP portions of
the Ohio rules. By removing the clean unit provisions from the request
for approval and its rules, the portions of OAC 3745-31 which were the
basis for proposing conditional approval in the May 11, 2005 Federal
Register are no longer under consideration by EPA. Therefore, the basis
for proposing conditional approval instead of approval is no longer
present. EPA is instead partially approving Ohio's rules in this action
with no conditions.
IV. What Are EPA's Responses to Adverse Comments?
EPA received comments in support of Ohio's rules, as well as
adverse comments. Several commenters provided comments on the May 11,
2005 proposal prior to the June 24, 2005 court ruling. Therefore, the
comments do not reflect the DC Circuit Court decision. This final
action takes into consideration the court's ruling on the Federal NSR
reform regulations. Therefore, Ohio's approved SIP is consistent with
the Federal NSR reform regulations. This action discusses three
significant adverse comments. However, EPA responds to all adverse
comments in three documents that can be found in the docket for this
action. These documents are: Response to Comments of the National
Resources Defense Council to EPA's Proposed Rule to Conditionally
Approve Ohio's Changes to Its New Source Review Rules, Response to the
State of Vermont's Comments, and Response to Comments of the Ohio
Environmental Council to EPA's Proposed Rule to Conditionally Approve
Ohio's Changes to its New Source Review Rules.
A. Provisions in Ohio's Submission Cause the State's Revised Plan To
Interfere With Applicable Requirements Concerning Attainment and
Reasonable Further Progress
Commenters express concern that the EPA has never made, or even
proposed to make, a finding that revising Ohio's permit provisions so
that they track the non-vacated provisions of the 2002 rules ``would
not interfere with attainment or other applicable requirements.''
Commenters state that neither Ohio nor EPA has analyzed the particular
impact of each part of the rule, much less the particular impact that
each part's adoption by Ohio would have on that State's compliance with
the requirements that it provide for attainment, prohibit emissions
that interfere with attainment or maintenance of the National Ambient
Air Quality Standards (NAAQS), and require reasonable further progress
toward expeditious attainment. Therefore, commenters believe that
finalizing the EPA rulemaking proposal at issue here would violate
section 110(1) of the Clean Air Act (CAA).
EPA responds that Section 110(l) of the CAA states that ``[t]he
Administrator shall not approve a revision of a plan if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress * * * or any other applicable
requirement of this chapter.'' 42 U.S.C. 7410(l).
In ``Approval and Promulgation of Implementation Plans; NSR; State
of Nevada, Clark County Department of Air Quality and Environmental
Management'', 69 FR 54006 (Sept. 7, 2004), EPA stated that section
110(l) does not preclude SIP relaxations. EPA stated that Section
110(l) only requires that the ``relaxations not interfere with
specified requirements of the CAA including requirements for attainment
and reasonable further progress'', and that therefore, a State can
relax its SIP provisions if it is able to show that it can ``attain or
maintain the NAAQS and meet any applicable reasonable further progress
goals or other specific requirements.'' 69 FR 54011-12.
The Ohio Proposed NSR Reform Rules track the Federal NSR Reform
Rules, and EPA previously determined that the implementation of the
Federal NSR Reform Rules will be environmentally beneficial. (See 68 FR
44620 and 63021). EPA's Supplemental Analysis for the Federal NSR
Reform Rules estimated that there are likely to be reductions in
emissions of volatile organic compounds (VOC) due to the use of PALs.
Using the same methodology used in the Supplemental Analysis to assess
the emissions benefits of the Ohio's NSR Reform Rules in Ohio as EPA
used to assess the benefits nationally, we conclude that the PAL option
would result in a net reduction of VOC emissions.
It is more difficult to assess the environmental impacts of the
actual-to-projected-actual test and the ``2 in 10'' baseline
provisions. The Supplemental Analysis determined that there is a slight
national environmental benefit brought about by these NSR reform
provisions. However, in Ohio, sources undergoing construction which are
not subject to the best available control technology or lowest
achievable emission reduction NSR requirements will need to comply with
Ohio's best available technology provisions under OAC 3745-31-05(A)(3).
Overall, we expect changes in air quality as a result of
implementing PALs, the actual-to-projected-actual test, and the ``2 in
10'' baseline provisions in Ohio to be somewhere between neutral and
providing modest contribution to reasonable further progress.
Accordingly, EPA determines that these changes will not interfere with
any applicable requirement concerning attainment and reasonable further
progress or any other applicable requirement of the CAA.
B. Provisions in Ohio's Submission Cause the State's Revised Plan To
Interfere With Applicable Requirements Concerning Backsliding in
Nonattainment Areas.
Commenters expressed concern that EPA's approval will allow sources
in Ohio's nonattainment areas to ``backslide'' on more stringent
pollution control requirements contrary to section 193 of the CAA.
Section 193 of the CAA provides in part that: ``No control requirement
in effect * * * before November 15, 1990, in any area which is a non-
attainment area for any air pollutant may be modified after November
15, 1990, in any manner unless the modification insures equivalent or
greater emission reductions of such air pollutant.'' 42 U.S.C. 7515.
According to commenters, Ohio has made no demonstration, and EPA has
proposed no finding, that the modifications to Ohio's NSR rules ensure
``equivalent or greater emissions reductions.'' Moreover, commenters
state, Ohio cannot make a demonstration of equivalency, and EPA cannot
make such a finding. Because, far from ensuring ``equivalent or greater
emission reductions'' than Ohio's preexisting permit provisions, the
modifications ensure that emissions will
[[Page 8499]]
not be reduced as much as under the preexisting rules. In fact,
commenters believe, the modifications allow emissions to increase in
Ohio's nonattainment areas.
EPA responds that assuming that section 193 applies to NSR, section
193 does not require additional emission reductions before this SIP
revision is approved. As of November 15, 1990, the approved SIP did not
contain a major source NSR program consistent with the requirements of
the CAA, which requires offsets for construction of major sources or
major modifications in nonattainment areas. The SIP in effect on
November 15, 1990 did include a preconstruction permitting program, but
that program did not require offsets for any sources. Under Ohio's new
rules, major sources are subject to permitting requirements that are
consistent with current CAA requirements (while minor sources remain
subject to the 1990 permitting program). This SIP revision affects only
the major source permitting program.
Thus, assuming that section 193 applies in some fashion to the
permitting program in the SIP as of November 15, 1990 as it applied to
major sources, that program did not achieve any ``emission reductions''
from major sources because it did not require offsets for any sources.
It follows that if there were no emission reductions generated by the
1990 permitting program, then the section 193 requirement to provide
``equivalent or greater emission reductions'' of any air pollutant as
part of this SIP revision would be satisfied with no additional
reductions. Furthermore, for the reasons discussed above with respect
to Section 110(l), EPA has found that the net effect of these changes
will be neutral or environmentally beneficial.
C. Ohio's Incorporation of EPA's 2003 New Source Review Rule by
Reference
Commenters express concern that EPA's May 11, 2005, action appears
to propose to approve Ohio provisions that incorporate by reference an
EPA rule that has been stayed by order of the DC Circuit, as well as a
second EPA rule--a related Federal implementation plan rule--that the
agency has acknowledged to be stayed by virtue of the same DC Circuit
order. If EPA approves those provisions, the action will be a violation
of the DC Circuit's order. Additionally, the action will exceed EPA's
authority under section 110(k)(3) of the CAA while violating sections
110(l) and 193.
EPA responds that in a November 15, 2005 letter, OEPA withdrew its
request for approval of the phrase ``68 FR 61276, Oct. 27, 2003:'' in
OAC 3745-31-01 (ZZZZZ)(2)(h). EPA is not approving this section into
the SIP. Furthermore, in the November 15, 2005 letter, OEPA commits to
strike this phrase during its next five-year review which is expected
to be completed by June 2006.
V. What Action Is EPA Taking Today?
EPA is partially approving revisions to Ohio's permit to install
provisions, which were submitted by Ohio to EPA on September 14, 2004.
These revisions meet the minimum program requirements of the December
31, 2002 EPA NSR Reform rulemaking. As requested by OEPA's November 15,
2005 letter, EPA is not taking action on the provisions of Ohio's rule
relating to clean units, PCP, and ERP. Furthermore, OEPA has removed
the respective clean unit, PCP and ERP provisions from its rules.
VI. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the 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 April 26, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate
[[Page 8500]]
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: January 21, 2010.
Walter W. Kovalick Jr.,
Acting Regional Administrator, Region 5.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart K--Ohio
0
2. Section 52.1870 is amended by adding paragraph (c)(145) to read as
follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(145) On September 14, 2004, Ohio submitted modifications to its
Prevention of Significant Deterioration and nonattainment New Source
Review rules as a revision to the State implementation plan.
(i) Incorporation by reference.
(A) Ohio Administrative Code Rule 3745-31-01, Definitions: (C),
(D), (E), (J), (M), (N), (O), (P), (Q), (S), (T), (U), (V), (W), (X),
(DD), (EE), (FF), (GG), (JJ), (MM), (NN), (QQ), (DDD), (EEE), (FFF),
(JJJ), (KKK), (NNN), (UUU), (VVV), (WWW), (XXX), (YYY), (ZZZ), (CCCC),
(DDDD), (EEEE), (FFFF), (GGGG), (HHHH), (IIII), (JJJJ), (KKKK), (LLLL),
(MMMM), (OOOO), (PPPP), (QQQQ), (SSSS), (VVVV), (WWWW), (XXXX), (ZZZZ),
(DDDDD), (EEEEE), (HHHHH), (KKKKK), (LLLLL), (PPPPP), (QQQQQ), (UUUUU),
and (XXXXX), adopted on October 18, 2004, effective October 28, 2004.
(B) Ohio Administrative Code Rules 3745-31-01, Definitions: (III)
and (SSS), 3745-31-10 ``Air Stationary Source Obligations.'', and 3745-
31-22 ``Nonattainment Provisions--Conditions for Approval'', adopted on
October 18, 2004, effective October 28, 2004 and revised by the
November 15, 2005 letter from Joseph P. Koncelik to Thomas Skinner.
This letter, included as Additional material in paragraph (145)(ii)(B)
below, removes references to the Pollution Control Project (PCP) and
Clean Unit provisions vacated by a June 24, 2005 DC Circuit Court of
Appeals decision.
(C) Ohio Administrative Code Rules 3745-31-09 ``Air permit to
install completeness determinations, public participation and public
notice.'', 3745-31-13 ``Attainment provisions--review of major
stationary sources and major modifications, stationary source
applicability and exemptions.'', 3745-31-15 ``Attainment provisions--
Control Technology Review.'', 3745-31-21 ``Nonattainment provisions--
review of major stationary sources and major modifications--stationary
source applicability and exemptions.'', 3745-31-24 ``Non-attainment
Provisions--Baseline for Determining Credit for Emission and Air
Quality Offsets.'', 3745-31-26 ``Nonattainment Provisions--Offset Ratio
Requirements.'', and 3745-31-32 ``Plantwide applicability limit
(PAL).'', adopted on October 18, 2004, effective October 28, 2004.
(D) October 18, 2004, ``Director's Final Findings and Orders'',
signed by Christopher Jones, Director, Ohio Environmental Protection
Agency, adopting rules 3745-31-01, 3745-31-09, 3745-31-10, 3745-31-13,
3745-31-15, 3745-31-21, 3745-31-22, 3745-31-24, 3745-31-26, 3745-31-30,
3745-31-31, and 3745-31-32.
(ii) Additional material.
(A) Ohio Administrative Code Rule 3745-31-01, Definitions: (ZZZZZ)
adopted on October 18, 2004, effective October 28, 2004.
(B) Letter dated November 15, 2005, from Ohio EPA Director Joseph
P. Koncelik to Regional Administrator Thomas Skinner, titled Request
for Approval of Ohio Administrative Code (``OAC'') Chapter 3745-31 NSR
Reform Rule Changes into the State Implementation Plan (``SIP'').
* * * * *
[FR Doc. 2010-3831 Filed 2-24-10; 8:45 am]
BILLING CODE 6560-50-P