02-2379. Approval and Promulgation of Implementation Plans; Ohio

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

On March 20, 2000, Ohio submitted certain revisions to the State Implementation Plan (SIP) for sulfur dioxide (SO₂) for several Ohio counties. Today, EPA is rulemaking on portions of this submittal which were not addressed in a June 5, 2000, rulemaking (see 65 FR 35577). In today's action, EPA is approving revised emission limits for sources in Butler, Pickaway, and Lake Counties. In addition, EPA is approving selected parts of the State's rules for compliance schedules and test methods. In conjunction with these actions, EPA is rescinding federally promulgated SO₂ emission limits for Butler, Lorain, Coshocton, Gallia, and Lake Counties, since these limitations have been superseded by approved State limits.

DATES:

This “direct final” rule is effective on April 1, 2002, unless EPA receives adverse written comments by March 4, 2002. If EPA receives adverse written comments, EPA will publish a timely withdrawal of the rule in the Federal Register and will inform the public that the rule will not take effect.

ADDRESSES:

You may send written comments to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

Copies of the revision request are available for inspection at the following address: Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (We recommend that you telephone Phuong Nguyen, Environmental Scientist, at [phone] before visiting the Region 5 office.)

FOR FURTHER INFORMATION CONTACT:

Phuong Nguyen at [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we” “us” or “our” are used we mean EPA. This supplemental information section is organized as follows:

I. What rules are EPA addressing today?

II. Summary and analysis of the state rules.

1. Butler County (OAC 3745-18-15)

2. Pickaway County (OAC 3745-18-71)

3. Lake County (OAC 3745-18-49)

4. Compliance Time Schedules (OAC 3745-18-03)

5. Measurement Methods and Procedures (OAC 3745-18-04)

III. Federal Implementation Plan (FIP) replacement.

IV. What action is EPA taking?

1. Action on State rules.

2. Action on Federal Implementation Plan (FIP).

V. Administrative requirements.

I. What Rules Are EPA Addressing Today?

On March 20, 2000, Ohio submitted several revised SO₂ rules to EPA. EPA approved the Coshocton, Gallia, and Lorain county portions of this submittal on June 5, 2000 (65 FR 35577). Today EPA is taking action on the remaining elements of the March 20, 2000 submittal. The rules that EPA is addressing are listed in the following table.

Table 1.—Rules Being Addressed in This Action

State rule	Rule subject
OAC 3745-18-15	Butler County.
OAC 3745-18-71	Pickaway County.
OAC 3745-18-49	Lake County.
OAC 3745-18-03	Compliance Time Schedules.
OAC 3745-18-04	Measurement Methods and Procedures.
40 CFR 52.1881(b)	Removal of Superseded Parts of the FIP.

EPA has prepared a technical support document (TSD) dated September 5, 2001 discussing these rules, providing the history of related rulemaking and a more detailed analysis of the State's submittal.

II. Summary and Analysis of the State Rules

1. Butler County (OAC 3745-18-15)

The TSD describes the history of SO₂ limitations in Butler County. This history includes federal promulgation of limits and the rescission of most of these limits, as well as a State submittal of comparable rules that EPA disapproved. The recent State submittal is intended to fill the gap in federally enforceable rules. The TSD also describes modeling conducted by Ohio EPA to assess the impact of the Butler county revisions.

EPA analyzed the State's submittal by comparing it with existing federally enforceable limits. Due to historical rule rescissions, existing federally enforceable limits still apply to only a few relatively insignificant sources in the County. By contrast, Ohio's new limits establish source-specific limits for the full range of significant sources in the County. For some sources, the new limits are slightly less stringent. However, these sources are relatively insignificant in comparison to the sources that now have limits and were previously unregulated. EPA expects the tightening effect of establishing limits on the most significant sources will far outweigh the slight relaxation in limits for some sources, particularly in the areas most likely to observe exceedances of the National Ambient Air Quality Standards (NAAQS) but also in most, if not all, of the rest of the County. Consequently, EPA is approving the full set of rules Ohio submitted for Butler County on the basis of their effect of strengthening the SIP's protection against NAAQS violations.

2. Pickaway County (OAC 3745-18-71)

The TSD explains the history of SO₂ modeling conducted to assess the impact in Pickaway County of new sources in southern Franklin County. As a result of the modeling, Ohio adopted a lower emission limit for boilers at the Picway Generating Plant. Ohio changed the allowable emission limit for the Columbus Southern Power Company, Picway Generating Plant boiler numbers 7, 8, and 9 from 9.9 to 5.6 pounds of the sulfur dioxide per Million British Thermal Unit (MM BTU) actual heat input for each boiler. EPA reviewed the modeling and concurred that an emission limit of 5.6 pounds of sulfur dioxide per MM BTU is adequate to meet the NAAQS. EPA, therefore, approves this rule revision.

3. Lake County (OAC 3745-18-49)

The TSD describes the history of SO₂ emission limits in Lake County. This history includes the approval of State-adopted limits which were covered in the March 17, 1999 rulemaking (64 FR 13071). The TSD also discusses the lawsuit involved with the Painesville Municipal Plant. This lawsuit concluded with a consent decree which required Painesville to physically modify the unit to derate its capacity to below the new source performance standards (NSPS) threshold (250 MMBTU per hour). The consent decree also established an interim limit of 4.7 pounds per MM BTU and called for establishment of a final limit pursuant to modeling.

EPA has previously approved modeling for this area of Lake County. The modeling showed attainment based, in part, on a limit of 5.7 pounds per MM BTU for all units at the Painesville Municipal Plant. EPA previously approved application of this limit to other boilers at the Painesville Municipal Plant besides boiler number 5. EPA is relying on that same modeling as a basis for approving the same limit for boiler number 5.

4. Compliance Time Schedules (OAC 3745-18-03)

Rule OAC 3745-18-03 addresses the compliance time and schedules for sources in the entire State of Ohio. The TSD explains in detail why EPA did not rulemake on the entire 1979 version of this rule in January 27, 1981 (46 FR 8482).

In today's action, EPA is approving the overall compliance deadline for Butler County (OAC 3745-18-03(A)(2)(d)) as well as certification and permit application requirements for sources in Butler County (OAC 3745-18-03(B)(8)). EPA is also approving the compliance time schedules for sources in both Butler County (3745-18-03(C)(6)), and Pickaway County (3745-18-03(C)(10)).

In a previous rulemaking approving the Lorain County limits, EPA inadvertently failed to approve the associated compliance provisions, in particular, the certification and permit application requirements for U.S. Steel Corporation in Lorain County (OAC 3745-18-03(B)(4)). EPA is approving these provisions today.

5. Measurement Methods and Procedures (OAC 3745-18-04)

Rule OAC 3745-18-04 addresses the measurement methods and procedures for sources in the entire State of Ohio. The TSD describes the history and provides a more detailed review of these rule revisions.

In today's action, EPA approves the test methods and procedures for sources in Butler County (OAC 3745-18-04(D)(9)). The rule allows sources which are burning coal in Butler County to be able to use stack tests, continuous emission monitoring, or coal sampling and analysis as the methods for determining compliance with the applicable SO₂ emission limits. EPA also approves paragraph OAC 3745-18-04(E)(7) which specifies the test methods and procedures for determining compliance with the applicable SO₂ limits for any boiler burning fuel other than coal in Butler County.

In addition, Ohio changed paragraphs (D)(7), (D)(8), and (G) for sources in Hamilton County, which EPA had approved in 1994 (59 FR 43287). The revised rule OAC 3745-18-04 changes a conversion factor in the emission rate calculation for solid fuel in Hamilton County from 1.95 to 1.9. Hamilton County sources would now apply the same conversion factor as other sources in the State. EPA believes this is an appropriate revision to the SIP.

Finally, EPA is approving an amendment in OAC 3745-18-04(F)(4). The amendment increases the cut point from 0.5 to 0.6 pounds of SO₂ per million standard cubic feet in natural gas that has a heat content greater than 950 BTU per standard cubic feet. EPA believes that such an emissions increase is insignificant; therefore, we approve this revision.

III. FIP Replacement

Several of the FIP limits that EPA promulgated in 1976 have become superseded by approval of corresponding state rules. EPA approved State adopted emission limits for Lorain, Coshocton, and Gallia on June 5, 2000 (65 FR 35577), and for Lake County on March 30, 1998 (63 FR 15091). In this action, EPA is approving the emission limits for Butler County. These state-adopted emission limits supersede the FIP limits. Therefore, EPA rescinds the federal promulgated emission limitations for SO₂ for Butler, Lorain, Coshocton, Gallia, and Lake Counties since the FIP limits are no longer needed.

IV. What Action Is EPA Taking?

A. Action on State Rules

In this action, EPA is approving the emission limits for specific sources in Butler (OAC 3745-18-15), Pickaway (OAC 3745-18-71), and Lake (OAC 3745-1849) Counties. In addition, EPA is approving the overall compliance deadlines, certification and permit application, and compliance time schedule for Butler (OAC 3745-18-03(A)(2)(d), OAC 3745-18-03(B)(8), and OAC 3745-18-03 (C)(6)), Pickaway Counties (OAC 3745-18-03(C)(10)).

EPA is also approving the certification and permit application for U.S. Steel Corporation in Lorain County (OAC 3745-18-03(B)(4)).

Finally, EPA is approving the test methods and procedures for sources in Butler County (OAC 3745-18-04 (D)(9), OAC 3745-18-04(D)(8), OAC 3745-18-04(E)(7)). EPA is also approving a change in the sulfur to sulfur-dioxide conversion factor used in Hamilton County (OAC 3745-18-04-(F)(1)), as well as a change in the sulfur content used to define a de minimis exemption for natural gas (OAC 3745-18-04(F)(4)).

B. Action on FIP

EPA is rescinding the federal promulgated emission limits for SO₂ sources in Butler, Lorain, Coshocton, Gallia, and Lake Counties codified at 40 CFR 52.1881(b)(12),(14),(17),(18), and (20), respectively.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

C. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will 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, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

D. Executive Order 13175

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

E. Executive Order 13211

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or use” (66 FR 28355, May 22, 2001) because it is not a significant regulation action under Executive Order 12866.

F. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

G. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

H. 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective April 1, 2002, unless EPA receives adverse written comments by March 4, 2002.

I. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

J. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 1, 2002. 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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping
• Sulfur dioxide

Dated: November 29, 2001.

Christine Todd Whitman,

Administrator.

For the reasons stated in the preamble, part 52, chapter I, title 40 of the Code of Federal Regulations are amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart KK—Ohio

2. Section 52.1870 is amended by adding paragraph (c)(125) to read as follows:

§ 52.1870

Identification of plan.

* * * * *

(c)* * *

(125) On March 20, 2000, the Ohio Environmental Protection Agency submitted revised rules to control sulfur dioxide emissions in Butler and Pickaway Counties, and a revision to compliance time schedules as well as measurement methods and procedures for SO₂ sources for the State of Ohio. Ohio has rescinded OAC 3745-18-04 (G), which had special emission calculation procedures for Hamilton County.

(i) Incorporation by reference.

(A) Rules OAC 3745-18-03(A)(2)(d); OAC 3745-18-03(B)(4); OAC 3745-18-03(B)(8); OAC 3745-18-03(C)(6); OAC 3745-18-03(C)(10); 3745-18-04(D)(8); 3745-18-04(D)(9); OAC 3745-18-04(E)(7); OAC 3745-18-04(F); OAC 3745-18-15; OAC 3745-18-71. Adopted March 1, 2000, effective March 21, 2000.

(B) Rule OAC 3745-18-49(F), effective May 11, 1987.

* * * * *

3. Section 52.1881 is amended by revising paragraphs (a)(4), (a)(8), and removing and reserving paragraphs (b)(12), (b)(14), (b)(17), (b)18), and (b)(20) to read as follows:

§ 52.1881

Control strategy: Sulfur oxides (sulfur dioxide).

(a) * * *

(4) Approval—EPA approves the sulfur dioxide emission limits for the following counties: Adams County (except Dayton Power & Light-Stuart), Allen County (except Cairo Chemical), Ashland County, Ashtabula County, Athens County, Auglaize County, Belmont County, Brown County, Butler County, Carroll County, Champaign County, Clark County, Clermont County, (except Cincinnati Gas & Electric-Beckjord), Clinton County, Columbiana County, Coshocton County, Crawford County, Darke County, Defiance County, Delaware County, Erie County, Fairfield County, Fayette County, Fulton County, Gallia County, Geauga County, Greene County, Guernsey County, Hamilton County, Hancock County, Hardin County, Harrison County, Henry County, Highland County, Hocking County, Holmes County, Huron County, Jackson County, Jefferson County, Knox County, Lake County, Lawrence County (except Allied Chemical-South Point), Licking County, Logan County, Lorain County, Lucas County (except Gulf Oil Company, Coulton Chemical Company, and Phillips Chemical Company), Madison County, Marion County, Medina County, Meigs County, Mercer County, Miami County, Monroe County, Montgomery County (except Bergstrom Paper, Miami Paper), Morgan County, Morrow County, Muskingum County, Noble County, Ottawa County, Paulding County, Perry County, Pickaway County, Pike County (except Portsmouth Gaseous Diffusion Plant), Portage County, Preble County, Putnam County, Richland County, Ross County (except Mead Corporation), Sandusky County (except Martin Marietta Chemicals), Scioto County, Seneca County, Shelby County, Trumbull County, Tuscarawas County, Union County, Van Wert County, Vinton County, Warren County, Washington County (except Shell Chemical), Wayne County, Williams County, Wood County (except Libbey-Owens-Ford Plants Nos. 4 and 8 and No. 6), and Wyandot County.

* * * * *

(8) No Action—EPA is neither approving nor disapproving the emission limitations for the following counties/sources pending further review: Adams County (Dayton Power & Light-Stuart), Allen County (Cairo Chemical), Clermont County (Cincinnati Gas & Electric-Beckjord), Cuyahoga County, Franklin County, Lawrence County (Allied Chemical-South Point), Lucas County (Gulf Oil Company, Coulton Chemical Company, and Phillips Chemical Company), Mahoning County, Montgomery County (Bergstrom Paper and Miami Paper), Pike County (Portsmouth Gaseous Diffusion Plant), Ross County (Mead corporation), Sandusky County (Martin Marietta Chemicals), Stark County, Washington County (Shell Chemical Company), and Wood County (Libbey-Owens-Ford Plants Nos. 4 and 8 and No. 6).

* * * * *