Approval and Promulgation of Air Quality Implementation Plans; Ohio; Test Methods; Error Correction, 7412-7417 [2014-01319]
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requirements contained in section 128
of the CAA, and for the states to submit
such provisions for incorporation into
the SIP.
Under section 128 of the CAA, each
SIP must contain provisions that
address two requirements: (i) That any
board or body which approves permits
or enforcement orders under this
chapter shall have at least a majority of
members who represent the public
interest and do not derive any
significant portion of their income from
persons subject to permits and
enforcement orders under this chapter,
and (ii) that any potential conflicts of
interest by members of such board or
body or the head of an executive agency
with similar powers be adequately
disclosed. IDEM’s and Ohio EPA’s
satisfaction of these requirements
follow, below.
On August 19, 2013, EPA proposed
approval of IDEM’s provisions intended
to address the applicable requirements
of section 128 (see 78 FR 50360). No
comments were received regarding our
proposed approval of Indiana’s state
board provisions, and EPA’s final
approval of these provisions was
published on December 24, 2013 (see 78
FR 77599). IDEM had previously
requested in a May 22, 2013, SIP
submission that EPA’s approval of its
state board provisions satisfy any
applicable infrastructure SIP
requirements for the 2006 PM2.5
NAAQS. EPA therefore proposes that
Indiana has met the section
110(a)(2)(E)(ii) requirements for the
2006 PM2.5 NAAQS.
On June 7, 2013, Ohio submitted a SIP
revision clarifying that the state does
not have a board that has the authority
to approve enforcement orders or
permitting actions as outlined in section
128(a)(1) of the CAA; instead, this
authority rests with the Director of Ohio
EPA. Therefore, section 128(a)(1) of the
CAA is not applicable in Ohio.
Under section 128(a)(2), the head of
the executive agency with the power to
approve enforcement orders or permits
must adequately disclose any potential
conflicts of interest. In its June 7, 2013,
submission, Ohio EPA noted that EPA
has previously approved provisions into
Ohio’s SIP addressing these
requirements (see 46 FR 57490).
Specifically, ORC 102: Public Officers—
Ethics contains provisions that require
the Director of Ohio EPA (and his/her
delegate) to file an annual statement
with the ethics committee including
potential conflicts of interest;
furthermore, this annual filing is subject
to public inspection. Ohio EPA
requested in its June 7, 2013,
submission that these SIP-approved
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provisions satisfy any applicable
infrastructure SIP requirements for the
2006 PM2.5 NAAQS. EPA therefore
proposes that Ohio has met the
applicable requirements for section
110(a)(2)(E)(ii) for the 2006 PM2.5
NAAQS.
III. What action is EPA taking?
For the reasons discussed above, EPA
is proposing to approve submissions
from IDEM and Ohio intended to
address the state board requirements
under section 110(a)(2)(E)(ii) for the
2006 PM2.5 NAAQS. To reiterate, this
action does not extend to any other
NAAQS, nor does it extend to any other
element under section 110(a)(1) and (2)
for the 2006 PM2.5 NAAQS.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve State choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves State law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by State law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive 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
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Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Particulate Matter, Reporting
and recordkeeping requirements.
Dated: January 22, 2014.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2014–02701 Filed 2–6–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2009–0807; FRL–9905–69–
Region 5]
Approval and Promulgation of Air
Quality Implementation Plans; Ohio;
Test Methods; Error Correction
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to determine
that an October 26, 2010, action was in
error and to make a correction pursuant
to section 110(k)(6) of the Clean Air Act
(CAA). The correction will bring the
codification section of the October 26,
2010, action into accord with the actual
substance of the rulemaking action. The
October 26, 2010, final rule approved
various revisions to Ohio regulations
that consolidated air quality standards
in a new chapter of rules and adjusted
the rule cross references accordingly in
various related Ohio rules, including a
specific revision to the cross reference
in the Ohio Administrative Code (OAC)
pertaining to methods for measurements
for comparison with the particulate
matter air quality standards. The
correction will remove the appearance
that EPA approved extraneous portions
SUMMARY:
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of this rule in the OAC. EPA is not reopening the comment period on the
October 26, 2010, action.
DATES: Comments must be received on
or before March 10, 2014.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2009–0807, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: aburano.douglas@epa.gov.
3. Fax: (312) 692–2551.
4. Mail: Douglas Aburano, Chief,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
U.S. Environmental Protection Agency,
77 West Jackson Boulevard, Chicago,
Illinois 60604.
5. Hand Delivery: Douglas Aburano,
Chief, Attainment Planning and
Maintenance Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted
during the Regional Office normal hours
of operation, and special arrangements
should be made for deliveries of boxed
information. The Regional Office official
hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R05–OAR–2009–
0807. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
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you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional instructions on
submitting comments, go to Section I of
the SUPPLEMENTARY INFORMATION section
of this document.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
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 John
Summerhays, Environmental Scientist,
at (312) 886–6067, before visiting the
Region 5 office.
FOR FURTHER INFORMATION CONTACT: John
Summerhays, Environmental Scientist,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–6067,
summerhays.john@epa.gov.
SUPPLEMENTARY INFORMATION: This
SUPPLEMENTARY INFORMATION section is
arranged as follows:
I. What should I consider as I prepare my
comments for EPA?
II. Background
III. What was the error?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews
I. What should I consider as I prepare
my comments for EPA?
When submitting comments,
remember to:
1. Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
2. Follow directions—EPA may ask
you to respond to specific questions or
organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
3. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
4. Describe any assumptions and
provide any technical information and/
or data that you used.
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5. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
6. Provide specific examples to
illustrate your concerns, and suggest
alternatives.
7. Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
8. Make sure to submit your
comments by the comment period
deadline identified.
II. Background
This proposed action is to correct an
error in an earlier EPA rulemaking,
using the authority of section 110(k)(6)
of the CAA. Section 110(k)(6) provides
EPA with explicit authority to correct
errors in prior rulemaking actions:
Whenever the Administrator determines
that the Administrator’s action approving,
disapproving, or promulgating any plan or
plan revision (or part thereof), area
designation, redesignation, classification, or
reclassification was in error, the
Administrator may in the same manner as the
approval, disapproval, or promulgation
revise such action as appropriate without
requiring any further submission from the
State. Such determination and the basis
thereof shall be provided to the State and the
public.
EPA notes that this statutory provision
provides EPA with authority to correct
an error ‘‘whenever’’ EPA later
determines that an error occurred. In
addition, this provision does not define
the term ‘‘error,’’ and thus does not
restrict EPA’s authority merely to the
correction of typographical mistakes or
other such limited circumstances.1 EPA
has used this explicit statutory authority
on multiple occasions to correct various
types of errors.2
The error at issue here occurred in an
October 26, 2010, EPA rulemaking
action pertaining to revisions to the SIP
for the State of Ohio. On that date, EPA
1 EPA notes that it is not necessary in this
rulemaking to determine the precise contours of
EPA’s authority under section 110(k)(6), because
the typographical error at issue in this action is
clearly within that authority.
2 See, e.g., ‘‘Determinations Concerning Need for
Error Correction, Partial Approval and Partial
Disapproval, and Federal Implementation Plan
Regarding Texas’s Prevention of Significant
Deterioration Program, 76 FR 25178 (May 3, 2011)
(the error was full approval of a SIP submission
with a legal deficiency); ‘‘Approval and
Promulgation of Implementation Plans; Kentucky:
Approval of Regions to the State Implementation
Plan,’’ 75 FR 2440 (Jan. 15, 2010) (the error was
inclusion of provisions into the SIP); ‘‘Designation
of Areas for Air Quality Planning Purposes;
Correction of Designations of Nonclassified Ozone
Nonattainment Areas; States of Maine and New
Hampshire,’’ 62 FR 14641 (March 27, 1997)
(designations in error because insufficient
information submitted).
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published both a proposal and a
companion direct final rule, which
addressed a SIP submission from the
Ohio EPA dated September 10, 2009.3
The state’s September 10, 2009, SIP
submission included a number of
revisions submitted for EPA approval
into the Ohio SIP, including
amendments of some existing state
rules, rescission and replacement of
language in other existing state rules,
and promulgation of a new state rule.4
The state asserted that the overarching
purpose for these various revisions was
‘‘to consolidate the state’s ambient air
quality standards’’ and explicitly stated
that the intent was ‘‘to consolidate
Ohio’s [state regulations] into a single
rule to provide greater accessibility for
the regulated community and the
citizens of Ohio.’’ 5
Among the existing state regulations
revised in the SIP submission was OAC
3745–17–03. The state gave no
indication that it was revising OAC
3745–17–03 substantively or seeking
EPA approval of any substantive
revisions to that state regulation; the
only revision identified by the state in
the SIP submission was a revision to a
cross reference in OAC 3745–17–03(A).
EPA’s October 26, 2010, action
reflected EPA’s evaluation of the state’s
SIP submission, and EPA’s approval of
the various individual revisions
requested by the state for the express
purpose of consolidating the state’s
regulations. Unfortunately, in approving
the state’s SIP submission, EPA erred by
publishing a notice which did not
properly reflect the precise rule revision
submitted by the state in OAC 3745–17–
03. Specifically, the state’s SIP
submission requested that EPA approve
a revision to OAC 3745–17–03, which
the state itself reflected in ‘‘redline and
strikeout’’ as merely one isolated change
in OAC 3745–17–03(A), i.e., the
deletion of an existing cross reference to
rule ‘‘3745–17–02’’ and the insertion of
a replacement cross reference to rule
‘‘3745–25–02.’’ The state did not redline
any other revisions to OAC 3745–17–03
in the version of the regulation attached
to the SIP submission. The state neither
identified nor requested any other
3 See ‘‘Approval and Promulgation of Air Quality
Implementation Plans; Ohio; Ohio Ambient Air
Quality Standards; Proposed rule,’’ 75 FR 65594
(October 26, 2010); ‘‘Approval and Promulgation of
Air Quality Implementation Plans; Ohio; Ohio
Ambient Air Quality Standards, Direct final rule,’’
75 FR 65572 (October 26, 2010).
4 See Letter from Chris Korleski, Director, Ohio
EPA, to Bharat Mathur, Acting Regional
Administrator, U.S. EPA Region V, dated September
10, 2009. A copy of this letter and the attachment
is located in the rulemaking docket for this
proposal.
5 Id. at page 1.
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specific substantive revisions to the
version of OAC 3745–17–03 currently
approved by EPA as part of the SIP.
Likewise, EPA did not identify or
discuss any other revisions to OAC
3745–17–03 in the October 26, 2010,
action.
However, EPA stated in the October
26, 2010, action that it ‘‘is approving the
following Ohio Administrative Code
rules: 3745–17–03 ‘Measurement
methods and procedures’ . . . .’’ This
statement was incorrect because it did
not clearly describe the precise revision
being approved by EPA and the
erroneous omission of the citation to
subsection ‘‘(A)’’ left the misimpression
that EPA was approving more than the
revised cross reference in OAC 3745–
17–03(A). EPA also codified this change
with an incorporation by reference
described in the October 26, 2010,
notice as ‘‘(A) Ohio Administrative
Code Rule 3745–17–03 ‘Measurement
methods and procedures’, effective
April 18, 2009.’’ EPA should have
explicitly limited that codification to
OAC 3745–17–03(A). As evidenced by
the lack of any evaluation or discussion
of any substantive revisions to OAC
3745–17–03 whatsoever, and in light of
the then pending proposed disapproval
of certain substantive revisions to OAC
3745–17–03, it is evident that EPA did
not intend, and could not have
intended, to approve any revisions to
OAC 3745–17–03 beyond the revised
cross reference in OAC 3745–17–03(A).
EPA subsequently discovered the
error in the October 26, 2010,
rulemaking when EPA noticed the
incorrect codification of OAC 3745–17–
03 in the Ohio SIP in early 2013.6 That
incorrect codification wrongly suggested
that EPA had approved revisions to
OAC 3745–17–03 in toto, when it
should have referred only to an
approval of the revision to the cross
reference in OAC 3745–17–03(A) as
requested by Ohio. Accordingly, EPA
6 This error was reflected in 40 CFR
52.1870(c)(151)(i)(A) which erroneously suggested
that EPA had approved revisions to a version of
OAC 3745–17–03 effective April 18, 2009, in its
entirety, when this reference should have been
limited to OAC 3745–17–03(A). This was an error
as EPA did not and could not have approved the
revision in toto in the October 26, 2010, action. EPA
could only have approved the specific revision to
the cross reference requested by the state and could
not have approved other revisions not discussed or
identified by the state in the SIP submission. In
addition, EPA could not have approved any
substantive revisions, regardless of whether the
state requested them in the SIP submission, without
adequate explanation of how such revisions would
have been consistent with the requirements of
section 110(l) and section 193. Moreover, this is
especially the case as EPA has previously proposed
disapproval of certain substantive changes in OAC
3745–17–03(B) for numerous reasons including
noncompliance with those statutory provisions.
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published a final rule announcing the
discovery of the error, explaining the
error, and correcting the error, on April
3, 2013.7 Within that April 3, 2013,
action, EPA also explained its basis for
concluding that notice and comment
rulemaking was not necessary to correct
the error in these specific circumstances
and invoked the good cause exception
to the requirement for notice and
comment rulemaking under section 553
of the Administrative Procedure Act, 5
U.S.C. section 553(b)(B).
In response to EPA’s April 3, 2013
notice, one party filed a petition for
reconsideration requesting that EPA
reconsider its procedure in this matter
and requesting that EPA instead proceed
using the SIP error correction procedure
of section 110(k)(6) of the CAA. The
same party and other parties also filed
petitions for review challenging the
April 3, 2013 action, likewise reflecting
their views that EPA should use the
procedure of section 110(k)(6) to
address the error in the October 26,
2010, rulemaking.
Although EPA believes that the
Administrative Procedures Act
authorizes action without notice and
comment in circumstances such as
those presented in this particular
situation, EPA has nevertheless elected
to correct the error in the October 26,
2010, action through a notice and
comment procedure using the explicit
authority of section 110(k)(6) in this
action.8 Based upon the apparent
confusion caused by EPA’s error as
reflected in the petitions, EPA believes
that proceeding pursuant to section
110(k)(6) at this time will provide
interested parties an opportunity to
provide comment and will better serve
the intended purpose of eliminating any
potential misunderstandings.
Except for this specific error
identified in this proposed action under
section 110(k)(6), EPA is not revising its
action in the October 26, 2010, action.
EPA is not aware of any other errors
associated with that action.
III. What was the error?
A. What was the error in description
and codification?
EPA’s October 26, 2010, action was in
error. In acting upon the September 10,
7 See ‘‘Approval and Promulgation of Air Quality
Implementation Plans; Ohio; Ohio Ambient Air
Quality Standards; Correction, Final rule; correcting
amendment,’’ 78 FR 19990 (April 3, 2013).
8 EPA elected to grant a petition for
reconsideration that specifically requested EPA to
use section 110(k)(6) to correct the error. See Letter
from Robert Kaplan, Regional Counsel, Region 5 to
Cheri Budzynski dated August 27, 2013. A copy of
this letter is located in the rulemaking docket for
this proposal.
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Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules
2009, SIP submission from the State of
Ohio, EPA’s notice of direct final
rulemaking incorrectly indicated that
the Agency was approving revisions to
‘‘OAC 3745–17–03’’ when the notice
should have explicitly indicated that
EPA was only approving the revised
cross reference in OAC 3745–17–03(A).
For the reasons discussed below, EPA
did not approve more than the revision
of the cross reference in OAC 3745–17–
03(A) in the October 26, 2010, action,
but EPA’s notice inadvertently did not
make that point clearly.
EPA’s lack of precision in the
preamble and in the codification in the
October 26, 2010, action led to an
incorrect codification in 40 CFR
52.1870, which erroneously could have
suggested that EPA had approved
substantive revisions to OAC 3745–17–
03 in the Ohio SIP beyond the mere
requested revision to the cross reference
in OAC 3745–17–03(A).9 EPA needs to
correct this codification error in order to
assure that all parties, including
regulators, regulated entities, and
citizens are not confused by the error in
the October 26, 2010, action.
EPA believes that this is precisely the
type of scenario in which Congress has
given EPA explicit authority to revise
prior erroneous actions pursuant to
section 110(k)(6). Accordingly, EPA is
proposing to determine that its October
26, 2010, action was in error to the
extent that it appeared to approve
revisions to OAC 3745–17–03, beyond
the mere approval of the revised cross
reference in OAC 3745–17–03(A).
Even if EPA’s mere failure to include
the specific reference to subsection
‘‘(A)’’ of OAC 3745–17–03 in the
October 26, 2010, action could have
accidentally and unintentionally
resulted in an approval of all of the
other substantive changes in the version
of OAC 3745–17–03 that the state failed
to discuss or identify in the September
10, 2009, SIP submission, and that EPA
failed to discuss or identify in its
October 26, 2010, action, that would
also have been in error as EPA cannot
approve such substantive SIP revisions
without proposing to do so, explaining
the proposal, taking comment on the
proposal, responding to comment on the
proposal, and explaining the final
approval. EPA could not have approved
other substantive revisions claimed by
some parties sub silentio.
9 EPA notes that 40 CFR 52.1870(151)(i)(A)
currently refers to an incorporation by reference of
‘‘Ohio Administrative Code Rule 3745–17–03(A)
‘Measurement methods and procedures.’, effective
April 18,2009.’’ This incorporation by reference is
thus now correct in the Code of Federal
Regulations.
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B. What precipitated this error?
The error at issue resulted from a
combination of causes, related to
unintended ambiguities in both the
state’s SIP submission and EPA’s
October 26, 2010, action upon that SIP
submission. The ambiguities in the
September 10, 2009, SIP submission
include: (i) The state’s cover letter
referred to the amendment of ‘‘OAC
3745–17–03’’ without highlighting that
the actual requested amendment at issue
was only in OAC 3745–17–03(A); (ii)
the state’s cover letter requested that
EPA ‘‘accept the new and amended
rules as replacements for the rules
currently in our SIP’’ but without
enumerating the specific revised
subsections for such replacements; and
(iii) although the state did include a
redline/strikeout version to reflect the
specific amendment in question, the
state provided a redline/strikeout
version against a version of OAC 3745–
17–03 that was not the current version
of OAC 3745–17–03 approved by EPA
in the SIP.10 The confusion injected by
the state’s use of a baseline version of
OAC 3745–17–03 significantly different
from the version that had been approved
by EPA as part of the Ohio SIP, and
failing to identify these differences,
evidently led some parties to believe
that EPA had approved substantive
revisions to OAC 3745–17–03 beyond
those actually approved by EPA,
including certain provisions that EPA
had expressly previously proposed to
disapprove.
Notwithstanding any ambiguity in the
state’s SIP submission, however, EPA
should have noted the ambiguities and
should have been clearer in describing
its own actions in the October 26, 2010,
action. In acting upon the specific
revision to OAC 3745–17–03 at issue in
the September 10, 2009, SIP submission,
EPA should have: (i) Explicitly
articulated that it was evaluating and
approving only the revision to the
replaced cross reference in OAC 3745–
17–03(A) identified in the SIP
submission by the state; (ii) correctly
referred to and cited 3745–17–03(A)
specifically in the notice and the
codification, rather than OAC 3745–17–
03 in general; (iii) should have noticed
and addressed the fact that the version
of OAC 3745–17–03 that the state used
as the baseline from which it identified
revisions was not the current approved
version in the Ohio SIP; and (iv) should
have noted the pending proposed
disapproval of certain substantive
revisions to OAC 3745–17–03 from
10 A copy of the September 10, 2009, SIP
submission is located in the docket for this
proposal.
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another prior SIP submission. The
confusion injected in part by EPA’s
failure to notice and address the
significant unnoted substantive
differences between the SIP version and
the submitted version of OAC 3745–17–
03 led some parties to take the position
that EPA had approved substantive
revisions to OAC 3745–17–03 beyond
those actually approved by EPA.
C. Why was it evident that this was an
error?
EPA believes that it should have been
apparent that the October 26, 2010,
action contained an error. First,
although the state’s September 10, 2009,
SIP submission appeared to request that
EPA approve ‘‘OAC 3745–17–03’’ in its
entirety instead of being clear that only
the cross reference in OAC 3745–17–
03(A) was at issue, the attached redline/
strikeout version of the rule included in
the SIP submission highlighted only the
replaced cross reference OAC 3745–17–
03(A). The state identified no other
revisions to OAC 3745–17–03, either in
its description of the revision or in the
redline/strikeout version of the
regulation. Moreover, the ‘‘Rule
Summary and Fiscal Analysis’’
submitted as part of the state’s
September 10, 2009, submission
explicitly stated that the purpose of the
state’s own regulatory revision to OAC
3745–17–03 was ‘‘to update a citation to
OAC rule 3745–17–02 in paragraph
(A).’’ 11 The single minor redlined
change highlighted in the SIP
submission, in the context of the state’s
explicitly stated intent merely to
consolidate OAC 3745–17–03 along
with other rules, should have been a
clear indication that the state did not
consciously intend to make more
substantive revisions to OAC 3745–17–
03, nor that EPA consciously intended
to approve any such substantive
revisions, in the October 26, 2010,
action.
Second, the version of OAC 3745–17–
03 submitted by the state as part of the
SIP submission did not reflect or
identify revisions relative to the version
of that rule that had actually been
approved by EPA into the SIP. The
version of OAC 3745–17–03 that had
been approved by EPA into the Ohio SIP
was the version effective in the state as
of January 31, 1998, approved by EPA
11 See ‘‘Rule Summary and Fiscal Analysis (Part
A),’’ dated April 8, 2009, 8:07 a.m., submitted by
the state in Article III, Attachment B, RSFAs, as an
attachment to the September 10, 2009, SIP
submission. A copy of the entire SIP submission is
in the docket for this proposal.
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on October 16, 2007.12 EPA has not
approved a substantive revision to OAC
3745–17–03 (or any other revision
beyond the referencing revision in
paragraph A) since that time. The later
version of OAC 3745–17–03 mistakenly
used in the state’s September 10, 2009,
SIP submission as a baseline for
identifying revisions has substantial
differences from the version previously
approved by EPA into the SIP. EPA’s
October 26, 2010, action did not include
any discussion whatsoever of these
differences between the version of OAC
3745–17–03 that had been approved by
EPA in the Ohio SIP and the later
version that the state used as a baseline
in its September 10, 2009, SIP
submission. Those differences are
significant and substantive, e.g., the
provisions that address compliance
methods for opacity standards
applicable to certain stationary sources,
for which the unapproved revisions
would allow significantly more opacity
during certain periods. Such significant
and substantive revisions to the existing
approved version of OAC 3745–17–03,
even if valid, would have required an
analysis under section 110(l) and
section 193, as appropriate, to support
approval. The state’s September 10,
2009, SIP submission contained no such
analysis. EPA would have needed to
provide an explanation of this analysis
in the October 26, 2010, action or in the
administrative record supporting that
action. EPA provided no such analysis
because it did not intend to approve
those substantive changes to OAC 3745–
17–03, merely the revision to the cross
reference in OAC 3745–17–03(A). The
absence of any such analysis should
have been a clear indication that EPA
was not approving any revisions to OAC
3745–17–03 beyond the cross reference.
Third, there is a pending rulemaking
in which EPA proposed to disapprove
certain substantive revisions to OAC
3745–17–03 contained in a June 4, 2003,
SIP submission, during which EPA
received comments both supporting and
opposing the proposed disapproval.13
The fact that EPA neither referred to
that prior proposed disapproval action,
nor responded to any of the comments
that pertain to that prior proposed
action in the October 26, 2010, notice,
is further evidence that EPA did not and
could not have approved any
substantive revisions to OAC 3745–17–
03 and could only have intended to
approve the revisions to the cross
reference in OAC 3745–17–03(A). Basic
principles of administrative law, under
both the CAA and the Administrative
Procedures Act, require an agency to
respond to significant adverse
comments on a proposed action as part
of notice and comment rulemaking, and
it would have been improper for EPA to
ignore the comments on the prior
proposed disapproval of substantive
revisions to OAC 3745–17–03. This
absence of responses to comments on
such significant substantive changes
should have been a clear indication that
EPA was in fact not intending to
approve those revisions, and could only
be approving the limited revision to the
cross reference in OAC 3745–17–03(A),
in the October 26, 2013, action.14
Given the foregoing facts, EPA
believes that its October 26, 2010, action
with respect to OAC 3745–17–03 was
clearly in error. EPA could not have
approved any revision, except with
respect to the revision to the cross
reference in OAC 3745–17–03(A)
specifically requested by the state in the
SIP submission. Moreover, given the
context, EPA believes that the error
should have been evident at the time of
the action. The foregoing facts form the
basis for EPA’s proposed determination
that the October 26, 2010, action was in
error.
12 See ‘‘Approval and Promulgation of
Implementation Plans; Ohio Particulate Matter,’’ 72
FR 58523 (Oct. 16, 2007). This 2007 action
pertained to a SIP revision that the state submitted
on July 18, 2000. This specific SIP submission
preceded the revisions that the state submitted to
EPA on June 4, 2003, that EPA has proposed to
disapprove. The only revision to OAC 3745–17–03
that EPA has approved since 2007 is the revision
to amend the cross reference in OAC 3745–17–
03(A).
13 See ‘‘Approval and Disapproval of Ohio
Implementation Plan for Particulate Matter;
Proposed Rule,’’ 70 FR 36901 (June 27, 2005). The
June 4, 2003, SIP submission was not at issue in
EPA’s October 26, 2010, action, and is not at issue
here.
14 EPA notes that commenters on the Agency’s
June 27, 2005, proposed disapproval of certain
substantive revisions to OAC 3745–17–03 included
the Ohio Chamber of Commerce, the Ohio EPA, and
representatives of various industry groups.
Accordingly, EPA presumes that some parties are
familiar with that proposed disapproval and would
have noted that none of the comments concerning
the prior disapproval were addressed in the October
26, 2010, action, including their own. The
substance of those comments is not germane to this
action, but EPA includes those comment letters in
the docket for this action solely for the purpose of
illustrating that some parties would have been
aware of the significance of the substantive
revisions in OAC 3745–17–03 that EPA did not
intend to approve on October 26, 2010.
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IV. What action is EPA taking?
Pursuant to section 110(k)(6), EPA is
proposing to determine that its October
26, 2010, rulemaking was in error to the
extent that it appeared to approve
revisions to OAC 3745–17–03 beyond
the revision to the cross reference in
OAC 3745–17–03(A). Through today’s
action, EPA is proposing to clarify that
in the October 26, 2010, action, EPA did
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not approve any revisions to OAC 3745–
17–03 except for the specific revision to
the cross reference in OAC 3745–17–
03(A) requested by the state. But for that
change, the currently applicable version
of OAC 3745–17–03 in the Ohio SIP is
the version effective in the state on
January 31, 1998, approved by EPA on
October 16, 2007. The currently
applicable version of OAC 3745–17–03
in the Ohio SIP does not contain any
revisions addressed in EPA’s proposed
approval and disapproval on June 27,
2005.
On April 3, 2013, EPA used its
authority under section 553 of the
Administrative Procedures Act to
amend the erroneous codification in its
October 26, 2010, rulemaking without
notice and comment rulemaking to
reflect more clearly that EPA had only
approved the one isolated revision
requested by the state in OAC 3745–17–
03, i.e, the revision of the cross
reference in OAC 3745–17–03(A). That
corrected codification is already
reflected in the CFR, i.e., the status quo
is that the codification is correct. In
response to a petition for
reconsideration, EPA is proposing today
to correct the misleading codification as
an error pursuant to section 110(k)(6)
rather than rely on the corrected
codification identified in the April 3,
2013, final action.
EPA is soliciting comment on this
proposed action under section 110(k)(6).
By this means, EPA is taking proposed
action to correct the erroneous
codification of its October 26, 2010,
rulemaking by clarifying that the only
portion of Ohio’s submittal on
September 10, 2009, of OAC 3745–17–
03 that should be codified as approved
by EPA is OAC 3745–17–03(A). To
reiterate, the only revision that EPA
approved to OAC 3745–17–03 in the
October 26, 2010, action is the revised
cross reference in OAC 3745–17–03(A).
EPA believes that the facts set forth in
this proposal demonstrate clearly that
the October 26, 2010, action was in error
to the extent that it appeared to approve
revisions to OAC 3745–17–03 beyond
the revision to the cross reference in
OAC 3745–17–03(A). If EPA takes final
action as proposed in this notice, EPA
will also reaffirm the codification of
OAC 3745–17–03(A) in 40 CFR 52.1870
(c)(151)(i)(A). EPA is not reconsidering
its October 26, 2010, action with respect
to any other issues. EPA is also not in
this rulemaking addressing the
substance of provisions of OAC 3745–
17–03 other than paragraph (A), which
are outside the scope of the revision
requested in the state’s September 10,
2009, SIP submission and EPA’s
October 26, 2010, rulemaking. In
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particular, any substantive revisions to
OAC 3745–17–03, including any
revisions to OAC 3745–17–03(B)(1), are
not at issue in this rulemaking. Only
comments regarding EPA’s correction of
the error in the October 26, 2010, action
are germane to this rulemaking under
section 110(k)(6).
EPA notes that it is neither staying
nor revoking the correction action in the
April 3, 2013, notice, because that could
be misleading to regulated entities,
regulators, and members of the public
alike. Because the error in the October
26, 2010, action was in essence a
typographical error, and because there
was no actual approval of any revisions
to OAC 3745–17–03 other than the
revised cross reference in OAC 3745–
17–03(A), the previously approved
version of the remainder of OAC 3745–
17–03 remains in effect in the Ohio SIP.
Based upon the still pending proposed
disapproval of certain substantive
revisions to OAC 3745–17–03, EPA
believes that parties such as regulated
entities affected by those substantive
revisions would be well aware of this
fact, but not all other parties should be
expected or presumed to have this
degree of understanding or
responsibility to be informed. While
EPA is pursuing correcting action under
authority of CAA section 110(k)(6), to
supersede the correcting action under
the Administrative Procedures Act, that
EPA published on April 3, 2013, EPA
anticipates that the codification as
corrected pursuant to section 110(k)(6)
will replicate the codification as
corrected on April 3, 2013. Accordingly,
EPA is not staying or revoking the
correction in the April 3, 2013, action,
in the interim during this rulemaking
under section 110(k)(6). The April 3,
2013, action will become moot once
EPA takes final action on today’s
proposal.
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. This action merely corrects an
error in EPA’s prior action 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);
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• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements.
Dated: January 13, 2014.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2014–01319 Filed 2–6–14; 8:45 am]
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7417
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR PART 82
[FRL–9906–16–OAR]
Request for Public Engagement in the
Interagency Special Report on the
Impacts of Climate Change on Human
Health in the United States
U.S. Environmental Protection
Agency (EPA) on behalf of the United
States Global Change Research Program
(USGCRP).
ACTION: Request for Public Submissions
of Comments on a Draft Report
Prospectus, Information, and
Contributing Author Nominations, and
Notice of a Public Forum.
AGENCY:
As part of the President’s
Climate Action Plan and ongoing efforts
within the US Global Change Research
Program (USGCRP), the Interagency
Crosscutting Group on Climate Change
and Human Health (CCHHG) and a
subset of the Interagency National
Climate Assessment Working Group
(INCA) have initiated an interagency
Special Report on the impacts of
observed and projected climate change
on human health in the United States.
This data-driven technical synthesis and
assessment will be an interagency
product of the USGCRP organized by
the CCHHG. This request for public
engagement presents opportunities to
submit comments on the Draft Report
Prospectus, scientific information to
inform the assessment, and nominations
for contributing authors, and announces
a Public Forum to Inform the
Interagency Special Report on the
Impacts of Climate Change on Human
Health in the United States.
DATES: Comments: Comments on the
draft prospectus, information to inform
the Special Report, and contributing
author nominations may be submitted
during a 30-day period beginning March
1, 2014. All submissions should be
received by USGCRP on or before 11:59
p.m. Eastern Time. March 31, 2014. The
Public Forum will be held March 13,
2013 from 10 a.m.–5 p.m. Eastern Time.
Public Forum: The Public Forum,
organized by the CCHHG, will be held
on March 13, 2014.
ADDRESSES: The March 13, 2014 Public
Forum will be held at the EPA William
Jefferson Clinton East building, Room
1153, 1301 Constitution Avenue NW.,
Washington, DC 20460. To register,
please follow the detailed instructions
as provided below.
Information in response to the
Request for Comments on the Draft
SUMMARY:
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[Federal Register Volume 79, Number 26 (Friday, February 7, 2014)]
[Proposed Rules]
[Pages 7412-7417]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-01319]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2009-0807; FRL-9905-69-Region 5]
Approval and Promulgation of Air Quality Implementation Plans;
Ohio; Test Methods; Error Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
determine that an October 26, 2010, action was in error and to make a
correction pursuant to section 110(k)(6) of the Clean Air Act (CAA).
The correction will bring the codification section of the October 26,
2010, action into accord with the actual substance of the rulemaking
action. The October 26, 2010, final rule approved various revisions to
Ohio regulations that consolidated air quality standards in a new
chapter of rules and adjusted the rule cross references accordingly in
various related Ohio rules, including a specific revision to the cross
reference in the Ohio Administrative Code (OAC) pertaining to methods
for measurements for comparison with the particulate matter air quality
standards. The correction will remove the appearance that EPA approved
extraneous portions
[[Page 7413]]
of this rule in the OAC. EPA is not re-opening the comment period on
the October 26, 2010, action.
DATES: Comments must be received on or before March 10, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0807, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: aburano.douglas@epa.gov.
3. Fax: (312) 692-2551.
4. Mail: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0807. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. 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. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
instructions on submitting comments, go to Section I of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in 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 John Summerhays, Environmental
Scientist, at (312) 886-6067, before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental
Scientist, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067,
summerhays.john@epa.gov.
SUPPLEMENTARY INFORMATION: This SUPPLEMENTARY INFORMATION section is
arranged as follows:
I. What should I consider as I prepare my comments for EPA?
II. Background
III. What was the error?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews
I. What should I consider as I prepare my comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. Background
This proposed action is to correct an error in an earlier EPA
rulemaking, using the authority of section 110(k)(6) of the CAA.
Section 110(k)(6) provides EPA with explicit authority to correct
errors in prior rulemaking actions:
Whenever the Administrator determines that the Administrator's
action approving, disapproving, or promulgating any plan or plan
revision (or part thereof), area designation, redesignation,
classification, or reclassification was in error, the Administrator
may in the same manner as the approval, disapproval, or promulgation
revise such action as appropriate without requiring any further
submission from the State. Such determination and the basis thereof
shall be provided to the State and the public.
EPA notes that this statutory provision provides EPA with authority to
correct an error ``whenever'' EPA later determines that an error
occurred. In addition, this provision does not define the term
``error,'' and thus does not restrict EPA's authority merely to the
correction of typographical mistakes or other such limited
circumstances.\1\ EPA has used this explicit statutory authority on
multiple occasions to correct various types of errors.\2\
---------------------------------------------------------------------------
\1\ EPA notes that it is not necessary in this rulemaking to
determine the precise contours of EPA's authority under section
110(k)(6), because the typographical error at issue in this action
is clearly within that authority.
\2\ See, e.g., ``Determinations Concerning Need for Error
Correction, Partial Approval and Partial Disapproval, and Federal
Implementation Plan Regarding Texas's Prevention of Significant
Deterioration Program, 76 FR 25178 (May 3, 2011) (the error was full
approval of a SIP submission with a legal deficiency); ``Approval
and Promulgation of Implementation Plans; Kentucky: Approval of
Regions to the State Implementation Plan,'' 75 FR 2440 (Jan. 15,
2010) (the error was inclusion of provisions into the SIP);
``Designation of Areas for Air Quality Planning Purposes; Correction
of Designations of Nonclassified Ozone Nonattainment Areas; States
of Maine and New Hampshire,'' 62 FR 14641 (March 27, 1997)
(designations in error because insufficient information submitted).
---------------------------------------------------------------------------
The error at issue here occurred in an October 26, 2010, EPA
rulemaking action pertaining to revisions to the SIP for the State of
Ohio. On that date, EPA
[[Page 7414]]
published both a proposal and a companion direct final rule, which
addressed a SIP submission from the Ohio EPA dated September 10,
2009.\3\ The state's September 10, 2009, SIP submission included a
number of revisions submitted for EPA approval into the Ohio SIP,
including amendments of some existing state rules, rescission and
replacement of language in other existing state rules, and promulgation
of a new state rule.\4\ The state asserted that the overarching purpose
for these various revisions was ``to consolidate the state's ambient
air quality standards'' and explicitly stated that the intent was ``to
consolidate Ohio's [state regulations] into a single rule to provide
greater accessibility for the regulated community and the citizens of
Ohio.'' \5\
---------------------------------------------------------------------------
\3\ See ``Approval and Promulgation of Air Quality
Implementation Plans; Ohio; Ohio Ambient Air Quality Standards;
Proposed rule,'' 75 FR 65594 (October 26, 2010); ``Approval and
Promulgation of Air Quality Implementation Plans; Ohio; Ohio Ambient
Air Quality Standards, Direct final rule,'' 75 FR 65572 (October 26,
2010).
\4\ See Letter from Chris Korleski, Director, Ohio EPA, to
Bharat Mathur, Acting Regional Administrator, U.S. EPA Region V,
dated September 10, 2009. A copy of this letter and the attachment
is located in the rulemaking docket for this proposal.
\5\ Id. at page 1.
---------------------------------------------------------------------------
Among the existing state regulations revised in the SIP submission
was OAC 3745-17-03. The state gave no indication that it was revising
OAC 3745-17-03 substantively or seeking EPA approval of any substantive
revisions to that state regulation; the only revision identified by the
state in the SIP submission was a revision to a cross reference in OAC
3745-17-03(A).
EPA's October 26, 2010, action reflected EPA's evaluation of the
state's SIP submission, and EPA's approval of the various individual
revisions requested by the state for the express purpose of
consolidating the state's regulations. Unfortunately, in approving the
state's SIP submission, EPA erred by publishing a notice which did not
properly reflect the precise rule revision submitted by the state in
OAC 3745-17-03. Specifically, the state's SIP submission requested that
EPA approve a revision to OAC 3745-17-03, which the state itself
reflected in ``redline and strikeout'' as merely one isolated change in
OAC 3745-17-03(A), i.e., the deletion of an existing cross reference to
rule ``3745-17-02'' and the insertion of a replacement cross reference
to rule ``3745-25-02.'' The state did not redline any other revisions
to OAC 3745-17-03 in the version of the regulation attached to the SIP
submission. The state neither identified nor requested any other
specific substantive revisions to the version of OAC 3745-17-03
currently approved by EPA as part of the SIP. Likewise, EPA did not
identify or discuss any other revisions to OAC 3745-17-03 in the
October 26, 2010, action.
However, EPA stated in the October 26, 2010, action that it ``is
approving the following Ohio Administrative Code rules: 3745-17-03
`Measurement methods and procedures' . . . .'' This statement was
incorrect because it did not clearly describe the precise revision
being approved by EPA and the erroneous omission of the citation to
subsection ``(A)'' left the misimpression that EPA was approving more
than the revised cross reference in OAC 3745-17-03(A). EPA also
codified this change with an incorporation by reference described in
the October 26, 2010, notice as ``(A) Ohio Administrative Code Rule
3745-17-03 `Measurement methods and procedures', effective April 18,
2009.'' EPA should have explicitly limited that codification to OAC
3745-17-03(A). As evidenced by the lack of any evaluation or discussion
of any substantive revisions to OAC 3745-17-03 whatsoever, and in light
of the then pending proposed disapproval of certain substantive
revisions to OAC 3745-17-03, it is evident that EPA did not intend, and
could not have intended, to approve any revisions to OAC 3745-17-03
beyond the revised cross reference in OAC 3745-17-03(A).
EPA subsequently discovered the error in the October 26, 2010,
rulemaking when EPA noticed the incorrect codification of OAC 3745-17-
03 in the Ohio SIP in early 2013.\6\ That incorrect codification
wrongly suggested that EPA had approved revisions to OAC 3745-17-03 in
toto, when it should have referred only to an approval of the revision
to the cross reference in OAC 3745-17-03(A) as requested by Ohio.
Accordingly, EPA published a final rule announcing the discovery of the
error, explaining the error, and correcting the error, on April 3,
2013.\7\ Within that April 3, 2013, action, EPA also explained its
basis for concluding that notice and comment rulemaking was not
necessary to correct the error in these specific circumstances and
invoked the good cause exception to the requirement for notice and
comment rulemaking under section 553 of the Administrative Procedure
Act, 5 U.S.C. section 553(b)(B).
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\6\ This error was reflected in 40 CFR 52.1870(c)(151)(i)(A)
which erroneously suggested that EPA had approved revisions to a
version of OAC 3745-17-03 effective April 18, 2009, in its entirety,
when this reference should have been limited to OAC 3745-17-03(A).
This was an error as EPA did not and could not have approved the
revision in toto in the October 26, 2010, action. EPA could only
have approved the specific revision to the cross reference requested
by the state and could not have approved other revisions not
discussed or identified by the state in the SIP submission. In
addition, EPA could not have approved any substantive revisions,
regardless of whether the state requested them in the SIP
submission, without adequate explanation of how such revisions would
have been consistent with the requirements of section 110(l) and
section 193. Moreover, this is especially the case as EPA has
previously proposed disapproval of certain substantive changes in
OAC 3745-17-03(B) for numerous reasons including noncompliance with
those statutory provisions.
\7\ See ``Approval and Promulgation of Air Quality
Implementation Plans; Ohio; Ohio Ambient Air Quality Standards;
Correction, Final rule; correcting amendment,'' 78 FR 19990 (April
3, 2013).
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In response to EPA's April 3, 2013 notice, one party filed a
petition for reconsideration requesting that EPA reconsider its
procedure in this matter and requesting that EPA instead proceed using
the SIP error correction procedure of section 110(k)(6) of the CAA. The
same party and other parties also filed petitions for review
challenging the April 3, 2013 action, likewise reflecting their views
that EPA should use the procedure of section 110(k)(6) to address the
error in the October 26, 2010, rulemaking.
Although EPA believes that the Administrative Procedures Act
authorizes action without notice and comment in circumstances such as
those presented in this particular situation, EPA has nevertheless
elected to correct the error in the October 26, 2010, action through a
notice and comment procedure using the explicit authority of section
110(k)(6) in this action.\8\ Based upon the apparent confusion caused
by EPA's error as reflected in the petitions, EPA believes that
proceeding pursuant to section 110(k)(6) at this time will provide
interested parties an opportunity to provide comment and will better
serve the intended purpose of eliminating any potential
misunderstandings.
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\8\ EPA elected to grant a petition for reconsideration that
specifically requested EPA to use section 110(k)(6) to correct the
error. See Letter from Robert Kaplan, Regional Counsel, Region 5 to
Cheri Budzynski dated August 27, 2013. A copy of this letter is
located in the rulemaking docket for this proposal.
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Except for this specific error identified in this proposed action
under section 110(k)(6), EPA is not revising its action in the October
26, 2010, action. EPA is not aware of any other errors associated with
that action.
III. What was the error?
A. What was the error in description and codification?
EPA's October 26, 2010, action was in error. In acting upon the
September 10,
[[Page 7415]]
2009, SIP submission from the State of Ohio, EPA's notice of direct
final rulemaking incorrectly indicated that the Agency was approving
revisions to ``OAC 3745-17-03'' when the notice should have explicitly
indicated that EPA was only approving the revised cross reference in
OAC 3745-17-03(A). For the reasons discussed below, EPA did not approve
more than the revision of the cross reference in OAC 3745-17-03(A) in
the October 26, 2010, action, but EPA's notice inadvertently did not
make that point clearly.
EPA's lack of precision in the preamble and in the codification in
the October 26, 2010, action led to an incorrect codification in 40 CFR
52.1870, which erroneously could have suggested that EPA had approved
substantive revisions to OAC 3745-17-03 in the Ohio SIP beyond the mere
requested revision to the cross reference in OAC 3745-17-03(A).\9\ EPA
needs to correct this codification error in order to assure that all
parties, including regulators, regulated entities, and citizens are not
confused by the error in the October 26, 2010, action.
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\9\ EPA notes that 40 CFR 52.1870(151)(i)(A) currently refers to
an incorporation by reference of ``Ohio Administrative Code Rule
3745-17-03(A) `Measurement methods and procedures.', effective April
18,2009.'' This incorporation by reference is thus now correct in
the Code of Federal Regulations.
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EPA believes that this is precisely the type of scenario in which
Congress has given EPA explicit authority to revise prior erroneous
actions pursuant to section 110(k)(6). Accordingly, EPA is proposing to
determine that its October 26, 2010, action was in error to the extent
that it appeared to approve revisions to OAC 3745-17-03, beyond the
mere approval of the revised cross reference in OAC 3745-17-03(A).
Even if EPA's mere failure to include the specific reference to
subsection ``(A)'' of OAC 3745-17-03 in the October 26, 2010, action
could have accidentally and unintentionally resulted in an approval of
all of the other substantive changes in the version of OAC 3745-17-03
that the state failed to discuss or identify in the September 10, 2009,
SIP submission, and that EPA failed to discuss or identify in its
October 26, 2010, action, that would also have been in error as EPA
cannot approve such substantive SIP revisions without proposing to do
so, explaining the proposal, taking comment on the proposal, responding
to comment on the proposal, and explaining the final approval. EPA
could not have approved other substantive revisions claimed by some
parties sub silentio.
B. What precipitated this error?
The error at issue resulted from a combination of causes, related
to unintended ambiguities in both the state's SIP submission and EPA's
October 26, 2010, action upon that SIP submission. The ambiguities in
the September 10, 2009, SIP submission include: (i) The state's cover
letter referred to the amendment of ``OAC 3745-17-03'' without
highlighting that the actual requested amendment at issue was only in
OAC 3745-17-03(A); (ii) the state's cover letter requested that EPA
``accept the new and amended rules as replacements for the rules
currently in our SIP'' but without enumerating the specific revised
subsections for such replacements; and (iii) although the state did
include a redline/strikeout version to reflect the specific amendment
in question, the state provided a redline/strikeout version against a
version of OAC 3745-17-03 that was not the current version of OAC 3745-
17-03 approved by EPA in the SIP.\10\ The confusion injected by the
state's use of a baseline version of OAC 3745-17-03 significantly
different from the version that had been approved by EPA as part of the
Ohio SIP, and failing to identify these differences, evidently led some
parties to believe that EPA had approved substantive revisions to OAC
3745-17-03 beyond those actually approved by EPA, including certain
provisions that EPA had expressly previously proposed to disapprove.
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\10\ A copy of the September 10, 2009, SIP submission is located
in the docket for this proposal.
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Notwithstanding any ambiguity in the state's SIP submission,
however, EPA should have noted the ambiguities and should have been
clearer in describing its own actions in the October 26, 2010, action.
In acting upon the specific revision to OAC 3745-17-03 at issue in the
September 10, 2009, SIP submission, EPA should have: (i) Explicitly
articulated that it was evaluating and approving only the revision to
the replaced cross reference in OAC 3745-17-03(A) identified in the SIP
submission by the state; (ii) correctly referred to and cited 3745-17-
03(A) specifically in the notice and the codification, rather than OAC
3745-17-03 in general; (iii) should have noticed and addressed the fact
that the version of OAC 3745-17-03 that the state used as the baseline
from which it identified revisions was not the current approved version
in the Ohio SIP; and (iv) should have noted the pending proposed
disapproval of certain substantive revisions to OAC 3745-17-03 from
another prior SIP submission. The confusion injected in part by EPA's
failure to notice and address the significant unnoted substantive
differences between the SIP version and the submitted version of OAC
3745-17-03 led some parties to take the position that EPA had approved
substantive revisions to OAC 3745-17-03 beyond those actually approved
by EPA.
C. Why was it evident that this was an error?
EPA believes that it should have been apparent that the October 26,
2010, action contained an error. First, although the state's September
10, 2009, SIP submission appeared to request that EPA approve ``OAC
3745-17-03'' in its entirety instead of being clear that only the cross
reference in OAC 3745-17-03(A) was at issue, the attached redline/
strikeout version of the rule included in the SIP submission
highlighted only the replaced cross reference OAC 3745-17-03(A). The
state identified no other revisions to OAC 3745-17-03, either in its
description of the revision or in the redline/strikeout version of the
regulation. Moreover, the ``Rule Summary and Fiscal Analysis''
submitted as part of the state's September 10, 2009, submission
explicitly stated that the purpose of the state's own regulatory
revision to OAC 3745-17-03 was ``to update a citation to OAC rule 3745-
17-02 in paragraph (A).'' \11\ The single minor redlined change
highlighted in the SIP submission, in the context of the state's
explicitly stated intent merely to consolidate OAC 3745-17-03 along
with other rules, should have been a clear indication that the state
did not consciously intend to make more substantive revisions to OAC
3745-17-03, nor that EPA consciously intended to approve any such
substantive revisions, in the October 26, 2010, action.
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\11\ See ``Rule Summary and Fiscal Analysis (Part A),'' dated
April 8, 2009, 8:07 a.m., submitted by the state in Article III,
Attachment B, RSFAs, as an attachment to the September 10, 2009, SIP
submission. A copy of the entire SIP submission is in the docket for
this proposal.
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Second, the version of OAC 3745-17-03 submitted by the state as
part of the SIP submission did not reflect or identify revisions
relative to the version of that rule that had actually been approved by
EPA into the SIP. The version of OAC 3745-17-03 that had been approved
by EPA into the Ohio SIP was the version effective in the state as of
January 31, 1998, approved by EPA
[[Page 7416]]
on October 16, 2007.\12\ EPA has not approved a substantive revision to
OAC 3745-17-03 (or any other revision beyond the referencing revision
in paragraph A) since that time. The later version of OAC 3745-17-03
mistakenly used in the state's September 10, 2009, SIP submission as a
baseline for identifying revisions has substantial differences from the
version previously approved by EPA into the SIP. EPA's October 26,
2010, action did not include any discussion whatsoever of these
differences between the version of OAC 3745-17-03 that had been
approved by EPA in the Ohio SIP and the later version that the state
used as a baseline in its September 10, 2009, SIP submission. Those
differences are significant and substantive, e.g., the provisions that
address compliance methods for opacity standards applicable to certain
stationary sources, for which the unapproved revisions would allow
significantly more opacity during certain periods. Such significant and
substantive revisions to the existing approved version of OAC 3745-17-
03, even if valid, would have required an analysis under section 110(l)
and section 193, as appropriate, to support approval. The state's
September 10, 2009, SIP submission contained no such analysis. EPA
would have needed to provide an explanation of this analysis in the
October 26, 2010, action or in the administrative record supporting
that action. EPA provided no such analysis because it did not intend to
approve those substantive changes to OAC 3745-17-03, merely the
revision to the cross reference in OAC 3745-17-03(A). The absence of
any such analysis should have been a clear indication that EPA was not
approving any revisions to OAC 3745-17-03 beyond the cross reference.
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\12\ See ``Approval and Promulgation of Implementation Plans;
Ohio Particulate Matter,'' 72 FR 58523 (Oct. 16, 2007). This 2007
action pertained to a SIP revision that the state submitted on July
18, 2000. This specific SIP submission preceded the revisions that
the state submitted to EPA on June 4, 2003, that EPA has proposed to
disapprove. The only revision to OAC 3745-17-03 that EPA has
approved since 2007 is the revision to amend the cross reference in
OAC 3745-17-03(A).
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Third, there is a pending rulemaking in which EPA proposed to
disapprove certain substantive revisions to OAC 3745-17-03 contained in
a June 4, 2003, SIP submission, during which EPA received comments both
supporting and opposing the proposed disapproval.\13\ The fact that EPA
neither referred to that prior proposed disapproval action, nor
responded to any of the comments that pertain to that prior proposed
action in the October 26, 2010, notice, is further evidence that EPA
did not and could not have approved any substantive revisions to OAC
3745-17-03 and could only have intended to approve the revisions to the
cross reference in OAC 3745-17-03(A). Basic principles of
administrative law, under both the CAA and the Administrative
Procedures Act, require an agency to respond to significant adverse
comments on a proposed action as part of notice and comment rulemaking,
and it would have been improper for EPA to ignore the comments on the
prior proposed disapproval of substantive revisions to OAC 3745-17-03.
This absence of responses to comments on such significant substantive
changes should have been a clear indication that EPA was in fact not
intending to approve those revisions, and could only be approving the
limited revision to the cross reference in OAC 3745-17-03(A), in the
October 26, 2013, action.\14\
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\13\ See ``Approval and Disapproval of Ohio Implementation Plan
for Particulate Matter; Proposed Rule,'' 70 FR 36901 (June 27,
2005). The June 4, 2003, SIP submission was not at issue in EPA's
October 26, 2010, action, and is not at issue here.
\14\ EPA notes that commenters on the Agency's June 27, 2005,
proposed disapproval of certain substantive revisions to OAC 3745-
17-03 included the Ohio Chamber of Commerce, the Ohio EPA, and
representatives of various industry groups. Accordingly, EPA
presumes that some parties are familiar with that proposed
disapproval and would have noted that none of the comments
concerning the prior disapproval were addressed in the October 26,
2010, action, including their own. The substance of those comments
is not germane to this action, but EPA includes those comment
letters in the docket for this action solely for the purpose of
illustrating that some parties would have been aware of the
significance of the substantive revisions in OAC 3745-17-03 that EPA
did not intend to approve on October 26, 2010.
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Given the foregoing facts, EPA believes that its October 26, 2010,
action with respect to OAC 3745-17-03 was clearly in error. EPA could
not have approved any revision, except with respect to the revision to
the cross reference in OAC 3745-17-03(A) specifically requested by the
state in the SIP submission. Moreover, given the context, EPA believes
that the error should have been evident at the time of the action. The
foregoing facts form the basis for EPA's proposed determination that
the October 26, 2010, action was in error.
IV. What action is EPA taking?
Pursuant to section 110(k)(6), EPA is proposing to determine that
its October 26, 2010, rulemaking was in error to the extent that it
appeared to approve revisions to OAC 3745-17-03 beyond the revision to
the cross reference in OAC 3745-17-03(A). Through today's action, EPA
is proposing to clarify that in the October 26, 2010, action, EPA did
not approve any revisions to OAC 3745-17-03 except for the specific
revision to the cross reference in OAC 3745-17-03(A) requested by the
state. But for that change, the currently applicable version of OAC
3745-17-03 in the Ohio SIP is the version effective in the state on
January 31, 1998, approved by EPA on October 16, 2007. The currently
applicable version of OAC 3745-17-03 in the Ohio SIP does not contain
any revisions addressed in EPA's proposed approval and disapproval on
June 27, 2005.
On April 3, 2013, EPA used its authority under section 553 of the
Administrative Procedures Act to amend the erroneous codification in
its October 26, 2010, rulemaking without notice and comment rulemaking
to reflect more clearly that EPA had only approved the one isolated
revision requested by the state in OAC 3745-17-03, i.e, the revision of
the cross reference in OAC 3745-17-03(A). That corrected codification
is already reflected in the CFR, i.e., the status quo is that the
codification is correct. In response to a petition for reconsideration,
EPA is proposing today to correct the misleading codification as an
error pursuant to section 110(k)(6) rather than rely on the corrected
codification identified in the April 3, 2013, final action.
EPA is soliciting comment on this proposed action under section
110(k)(6). By this means, EPA is taking proposed action to correct the
erroneous codification of its October 26, 2010, rulemaking by
clarifying that the only portion of Ohio's submittal on September 10,
2009, of OAC 3745-17-03 that should be codified as approved by EPA is
OAC 3745-17-03(A). To reiterate, the only revision that EPA approved to
OAC 3745-17-03 in the October 26, 2010, action is the revised cross
reference in OAC 3745-17-03(A).
EPA believes that the facts set forth in this proposal demonstrate
clearly that the October 26, 2010, action was in error to the extent
that it appeared to approve revisions to OAC 3745-17-03 beyond the
revision to the cross reference in OAC 3745-17-03(A). If EPA takes
final action as proposed in this notice, EPA will also reaffirm the
codification of OAC 3745-17-03(A) in 40 CFR 52.1870 (c)(151)(i)(A). EPA
is not reconsidering its October 26, 2010, action with respect to any
other issues. EPA is also not in this rulemaking addressing the
substance of provisions of OAC 3745-17-03 other than paragraph (A),
which are outside the scope of the revision requested in the state's
September 10, 2009, SIP submission and EPA's October 26, 2010,
rulemaking. In
[[Page 7417]]
particular, any substantive revisions to OAC 3745-17-03, including any
revisions to OAC 3745-17-03(B)(1), are not at issue in this rulemaking.
Only comments regarding EPA's correction of the error in the October
26, 2010, action are germane to this rulemaking under section
110(k)(6).
EPA notes that it is neither staying nor revoking the correction
action in the April 3, 2013, notice, because that could be misleading
to regulated entities, regulators, and members of the public alike.
Because the error in the October 26, 2010, action was in essence a
typographical error, and because there was no actual approval of any
revisions to OAC 3745-17-03 other than the revised cross reference in
OAC 3745-17-03(A), the previously approved version of the remainder of
OAC 3745-17-03 remains in effect in the Ohio SIP. Based upon the still
pending proposed disapproval of certain substantive revisions to OAC
3745-17-03, EPA believes that parties such as regulated entities
affected by those substantive revisions would be well aware of this
fact, but not all other parties should be expected or presumed to have
this degree of understanding or responsibility to be informed. While
EPA is pursuing correcting action under authority of CAA section
110(k)(6), to supersede the correcting action under the Administrative
Procedures Act, that EPA published on April 3, 2013, EPA anticipates
that the codification as corrected pursuant to section 110(k)(6) will
replicate the codification as corrected on April 3, 2013. Accordingly,
EPA is not staying or revoking the correction in the April 3, 2013,
action, in the interim during this rulemaking under section 110(k)(6).
The April 3, 2013, action will become moot once EPA takes final action
on today's proposal.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. This action merely
corrects an error in EPA's prior action 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 CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: January 13, 2014.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2014-01319 Filed 2-6-14; 8:45 am]
BILLING CODE 6560-50-P
