Approval and Promulgation of Air Quality Implementation Plans; Ohio; Test Methods; Error Correction, 7412-7417 [2014-01319]

Download as PDF mstockstill on DSK4VPTVN1PROD with PROPOSALS 7412 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules 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 VerDate Mar<15>2010 16:38 Feb 06, 2014 Jkt 232001 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 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 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: E:\FR\FM\07FEP1.SGM 07FEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules 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 VerDate Mar<15>2010 16:38 Feb 06, 2014 Jkt 232001 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. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 7413 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). E:\FR\FM\07FEP1.SGM 07FEP1 7414 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS 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. VerDate Mar<15>2010 16:38 Feb 06, 2014 Jkt 232001 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. PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 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. E:\FR\FM\07FEP1.SGM 07FEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 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. VerDate Mar<15>2010 16:38 Feb 06, 2014 Jkt 232001 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. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 7415 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. E:\FR\FM\07FEP1.SGM 07FEP1 7416 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS 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. VerDate Mar<15>2010 16:38 Feb 06, 2014 Jkt 232001 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 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 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 E:\FR\FM\07FEP1.SGM 07FEP1 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS 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); VerDate Mar<15>2010 16:38 Feb 06, 2014 Jkt 232001 • 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 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 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: E:\FR\FM\07FEP1.SGM 07FEP1

Agencies

[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\
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    \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\
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    \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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    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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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