E8-1320. State Operating Permit Programs; Ohio; Revisions to the Acid Rain Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve, as a revision to Ohio's operating permits program, revisions to Ohio's Acid Rain Permits and Compliance Rules found in Chapter 3745-103 of the Ohio Administrative Code (OAC). The changes made to Ohio's OAC 3745-103 Rules include rules for phase II acid rain permits and new information on items incorporated by reference. EPA granted full approval of Ohio's operating permits program on August 15, 1995, which became effective on October 1, 1995. On March 23, 2007 Ohio submitted the revised acid rain rules to EPA for approval. This Federal Register notice approves these revised acid rain rules into Ohio's Title V operating permits program.

DATES:

This direct final rule will be effective on March 25, 2008, unless EPA receives adverse comments by February 25, 2008. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-1198, by one of the following methods:

• www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: Pamela Blakley, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
• Hand Delivery: At the previously-listed EPA Region 5 address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-2007-1198. 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 e-mail. 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 e-mail comment directly to EPA without going through www.regulations.gov,, your e-mail 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.

Docket: All documents in the electronic 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 form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

Richard Angelbeck, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. What is being addressed in this document?

II. What are the program changes that EPA is approving?

III. What action is EPA taking today?

IV. Statutory and Executive Order Reviews.

I. What is being addressed in this document?

The Clean Air Act (Act) requires all state and local permitting authorities to develop operating permits programs that meet the requirements of Title V of the Act, 42 U.S.C. 7661-7661(f), and its implementing regulations, 40 CFR part 70 (part 70). EPA fully approved Ohio's Title V operating permits program on August 15, 1995 (60 FR 42045). On December 19, 1996, EPA promulgated a final rule (61 FR 67111) for the second phase of the Nitrogen Oxides Program under Title IV of the Act. The Ohio Environmental Protection Agency (OEPA) revised its acid rain rules in OAC Chapter 3745-103. The revised acid rain rules became effective on June 27, 2002.

On October 2, 2002, OEPA submitted to EPA the revised acid rain rules for approval into the Ohio Title V operating permits program. On November 27, 2002, EPA provided to OEPA comments on the acid rain rules. In response to EPA's comments, and pursuant to a five-year mandatory rule review, OEPA again revised its acid rain rules, which became effective on January 12, 2007. On March 23, 2007, OEPA submitted to EPA these new and revised acid rain rules as a revision to Ohio's fully approved Title V operating permits program.

II. What are the program changes that EPA is approving?

On June 27, 2002 OEPA revised its acid rain rules in OAC chapter 3745-103 to include rules for Phase II acid rain permits. On May 12, 2005, EPA published amendments to the final acid rain rules (70 FR 25334), listing criteria for the state operating permit program (40 CFR 72.72) and requirements for the state issuance of Phase II permits (40 CFR 72.73). These requirements became effective July 1, 2006. OEPA was required to adopt these rules as part of its acid rain program. On January 12, 2007, OEPA again revised its acid rain rules in response to EPA comments on the June 27, 2002 rules, and also to correct typos, rule language formatting issues, and to add information on items incorporated by reference.

EPA has determined that, because OEPA's amendments to its acid rain rules do not interfere with the operation of the acid rain program, they meet the criteria of 40 CFR 72.72. The State submission likewise complies with the provisions of 40 CFR 72.73, which requires that a state authorized to administer and enforce an operating permit program under part 70 must have a state acid rain program accepted by the Administrator, and that the state must be responsible for administering and enforcing acid rain permits effective in Phase II for all affected sources. Among other things, Ohio has demonstrated that (a) it had issued all Phase II acid rain permits on or before December 31, 1997, and (b) for units subject to an acid rain NO_X emissions limitation, on or before January 1, 1999, it had amended the acid rain permits as required by 40 CFR 72.83 to include any NO_X early election plan that was approved by the Administrator under 40 CFR 76.8.

EPA is approving, and incorporating into OEPA's Title V operating permits program, the following revisions to OEPA's acid rain rules: OAC rules 3745-103-01 to 3745-103-09, 3745-103-11 to 3745-103-63, 3745-103-65, and 3745-103-66. EPA is also approving into the Ohio Title V program new OAC rule 3745-103-43, and the rescission of OAC rules 3745-103-10, 3745-103-43, 3745-103-64, and 3745-103-67. The new 3745-103-43 rule replaced the prior rule of the same title because Ohio's rule-writing procedures require that changes to this rule be managed as a rescission followed by a replacement. OEPA rules 3745-103-10, 3745-103-64, and 3745-103-67 were rescinded because OEPA judged that rule language to be obsolete.

III. What action is EPA taking today?

EPA is approving into Ohio's Title V operating permits program the revision submitted by OEPA on March 23, 2007. EPA is taking this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the state plan if adverse comments are filed. This rule will be effective on March 25, 2008 without further notice unless EPA receives adverse comments by February 25, 2008. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

IV. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing State Implementation Plan (SIP) submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.)

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 25, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approves changes to Ohio's Title V operating permits program and may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the Act.)

Lists of Subjects in 40 CFR Part 70

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Reporting and recordkeeping requirements
• Incorporation by reference
• Nitrogen dioxide, and Sulfur oxides

Dated: January 15, 2008.

Margaret Guerriero,

Acting Regional Administrator, Region 5.

40 CFR part 70 is amended as follows:

PART 70—[AMENDED]

1. The authority citation for part 70 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. Appendix A to part 70 is amended by adding paragraph (c) in the entry for Ohio to read as follows:

Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs

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Ohio

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(c) The Ohio Environmental Protection Agency submitted an operating permits program amendment on March 23, 2007. The program amendment contained in the March 23, 2007 submittal will update Ohio's existing Acid Rain program. The state is hereby granted approval effective on March 25, 2008.

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