[Federal Register Volume 59, Number 205 (Tuesday, October 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26352]
[[Page Unknown]]
[Federal Register: October 25, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH65-1-6498a; FRL-5080-9]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: Ohio submitted its Rule 3745-35-07, entitled ``federally
Enforceable Limitations on Potential to Emit,'' for Federal approval.
The rule would establish a mechanism for creating federally enforceable
limitations that would reduce sources' potential to emit such that
sources could avoid major source permitting requirements. This
rulemaking conditionally approves this rule as satisfying the
requirements, set forth in the Federal Register of June 28, 1989, and
authorizes Ohio to issue federally enforceable State operating permits
addressing both criteria pollutants (regulated under section 110 of the
Clean Air Act) and hazardous air pollutants (regulated under section
112).
DATES: This final rule will be effective December 27, 1994 unless
notice is received by November 25, 1994, that someone wishes to submit
adverse or critical comments. If the effective date is delayed, timely
notice will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to: William L.
MacDowell, Chief, Regulation Development Section, Air Enforcement
Branch (AE-17J), United States Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
Copies of the SIP revision request and USEPA's analysis are
available for public inspection during normal business hours at the
following addresses:
United States Environmental Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson Boulevard (AE-17J), Chicago,
Illinois 60604; and Air Docket (6102), United States Environmental
Protection Agency, 401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: John Summerhays, Air Enforcement
Branch, Regulation Development Section (AE-17J), United States
Environmental Protection, Region 5, Chicago, Illinois 60604, (312) 886-
6067.
SUPPLEMENTARY INFORMATION:
I. Review of State Submittal
For many years, Ohio has been issuing permits for major new sources
and for major modifications of existing sources. Throughout this time,
Ohio has also been issuing permits establishing limitations on the
potential emissions from new sources so as to avoid major source
permitting requirements. This latter type of permitting has been the
subject of various guidance from the United States Environmental
Protection Agency (USEPA), most notably the memorandum entitled
``Guidance on Limiting Potential to Emit in New Source Permitting''
dated June 13, 1989.
The operating permit provisions in title V of the Clean Air Act
Amendments of 1990 have created interest in mechanisms for limiting
sources' potential to emit, thereby allowing the sources to avoid being
defined as ``major'' with respect to title V operating permit programs.
A key mechanism for such limitations is the use of federally
enforceable State operating permits (FESOPs). USEPA issued guidance on
FESOPs in the Federal Register of June 28, 1989 (54 FR 27274). On April
20, 1994, Ohio submitted its newly adopted Rule 3745-35-07 to provide
for FESOPs in Ohio. This rule would supplement the pre-existing
mechanisms for establishing federally enforceable limitations on
potential to emit (i.e., State rules, administrative orders, and in
some cases new source permits). This rulemaking evaluates whether Ohio
has satisfied the requirements for this type of federally enforceable
limitations on potential to emit.
As specified in the Federal Register of June 28, 1989, the first
requirement for approval of a FESOP program is that the State must have
approved operating permit regulations. Rule 3745-35-07 supplements
other rules in Ohio Chapter 3745-35 rules, collectively entitled ``Air
Permits to Operate and Variances.'' These other rules were approved on
June 10, 1982 (at 47 FR 25144), and today's rulemaking approves Rule
3745-35-07.
The second requirement is that sources have a legal obligation to
comply with permit terms, and that USEPA may deem as ``not federally
enforceable'' those permits which it finds fail to satisfy applicable
requirements. Rule 3745-35-02 requires sources to obtain permits to
operate, authorizes Ohio to establish terms and conditions in these
permits ``to ensure compliance with [applicable requirements],'' and
authorizes the State to suspend or revoke permits if the source
violates the terms or conditions. Thus, this rule imposes a legal
obligation on sources to comply with permit terms.
An associated issue is whether Ohio's rules authorize USEPA to deem
selected permits ``not federally enforceable.'' Rule 3745-35-07
provides explicitly that Ohio may not issue a FESOP if USEPA objects
during the public comment period. Language inadvertently included in
the adopted rule could be interpreted not to allow USEPA to object to a
permit's enforceability after permit issuance. However, this
interpretation does not reflect State intent, and USEPA instead
interprets Rule 3745-35-07 to deem permits not federally enforceable
after as well as before issuance. Nevertheless, on June 16, 1994, Ohio
submitted a commitment to revise its regulation to include the language
it had intended to adopt, which would remove the potential for the
above misinterpretation. This commitment serves to support a
conditional approval of the rule.
While it is Ohio's intent that USEPA be authorized to deem permits
not federally enforceable after permit issuance, Ohio also requested
that USEPA make these determinations during Ohio's public comment
period (prior to permit issuance) whenever possible. Although USEPA is
authorized to deem permit conditions not federally enforceable at any
later date, USEPA will strive to determine Federal enforceability
during Ohio's public comment period.
The third requirement for FESOPs is that the program require all
limits to be at least as stringent as other applicable federally
enforceable provisions. Rule 3745-35-02(D) provides for terms and
conditions in permits ``as are necessary to ensure compliance with
applicable [air pollution requirements].'' These rules contain no
provisions authorizing terms and conditions any less stringent than the
applicable requirements.
The fourth requirement is that the permit provisions must be
permanent, quantifiable, and otherwise enforceable as a practical
matter. Permit ``permanence'' does not mean never providing for a
modification, reissuance, or revocation, for these elements are
fundamental in all air permit programs. Permanence instead is
considered in terms of provisions having continuing mandates, i.e. that
USEPA has assurance that the provisions are in effect through the life
of the permit and that any reissued permit will continue the provisions
in effect. In this case, the limitations on potential to emit will
generally be sought by sources so as to be redefined from ``major'' to
``minor'' for permitting purposes. USEPA is assured that sources that
obtain such limitations will keep these limitations in effect, so as
never to be a ``major'' source violating the requirement for a
``major'' source permit. The requirement for permit provisions to be
quantifiable and practically enforceable must be met on a permit-by-
permit basis. Ohio's rules do provide in general for the issuance of
enforceable permits. Thus, Ohio's rules provide for legally enforceable
permits that USEPA may evaluate for practical enforceability.
The fifth requirement is that the permits be subject to public
notice and review. Rule 3745-35-07 (B)(2) provides that permits
intended to establish federally enforceable limitations on potential to
emit may not be issued without first providing opportunity for public
comment, ``with concurrent notice and opportunity for comment given to
[USEPA].''
The USEPA technical support document discusses a possible
misinterpretation of Rule 3754-35-07 relating to emissions trading. The
rule provides that federally enforceable limitations on potential to
emit may be established through permits to install, permits to operate
(i.e. FESOPs), or State rules or administrative orders, and provides
for sources to request provisions allowing emissions trading in any of
these vehicles for emissions limitations. USEPA identified the
potential argument that this rule authorizes sources to require the
State to adopt rules to provide trading on a broad scale. However, upon
reconsideration, USEPA finds this interpretation implausible, and
concludes that neither Ohio's statute nor this rule would dictate that
a source could require the State to adopt such rules.
Ohio has requested that USEPA authorize federally enforceable
limitations on potential to emit both pollutants regulated under
section 110 of the Act (``criteria pollutants'') and pollutants
regulated under section 112 (``hazardous air pollutants'' or ``HAPs'').
As discussed above, the June 28, 1989 Federal Register notice provided
five specific criteria for approval of State operating permit programs
for the purpose of establishing federally enforceable limits on a
source's potential to emit. This notice, because it was written prior
to the 1990 amendments, addressed only SIP programs to control criteria
pollutants. Federally enforceable limits on criteria pollutants
(especially volatile organic compounds (VOCs) and particulate matter)
may have the incidental effect of limiting certain HAPs listed pursuant
to section 112(b). This situation would occur when a pollutant
classified as a HAP is also classified as a criteria pollutant (e.g.,
benzene).1 As a legal matter, no additional program approval by
USEPA is required in order for these criteria pollutant limits to be
recognized for this purpose.
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\1\USEPA intends to issue guidance addressing the technical
aspects of how these criteria pollutant limits may be recognized for
purposes of limiting a source's potential to emit of HAPs to below
section 112 major source levels.
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USEPA has determined that the five approval criteria for approving
FESOP programs into the SIP, as specified in the June 28, 1989, Federal
Register notice, are also appropriate for evaluating and approving the
programs under section 112(l). The June 28, 1989, notice does not
address HAPs because it was written prior to the 1990 amendments to
section 112 and not because it establishes requirements unique to
criteria pollutants. Hence, the five criteria discussed above are
applicable to FESOP approvals under section 112(l) as well as under
section 110.
In addition to meeting the criteria in the June 28, 1989, notice, a
FESOP program for HAPs must meet the statutory criteria for approval
under section 112(l)(5). This section allows USEPA to approve a program
only if it: (1) Contains adequate authority to assure compliance with
any section 112 standards or requirements; (2) provides for adequate
resources; (3) provides for an expeditious schedule for assuring
compliance with section 112 requirements; and (4) is otherwise likely
to satisfy the objectives of the Act.
USEPA plans to codify the approval criteria for programs limiting
potential to emit HAPs in subpart E of part 63, the regulations
promulgated to implement section 112(l) of the Act. USEPA currently
anticipates that these criteria, as they apply to FESOP programs, will
mirror those set forth in the June 28, 1989, notice, with the addition
that the State's authority must extend to HAPs instead of, or in
addition to, VOCs and particulate matter. USEPA currently anticipates
that FESOP programs that are approved pursuant to section 112(l) prior
to the subpart E revisions will have had to meet these criteria, and
hence, will not be subject to any further approval action.
USEPA believes it has authority under section 112(l) to approve
programs to limit potential to emit HAPs directly under section 112(l)
prior to this revision to subpart E. Section 112(l)(5) requires USEPA
to disapprove programs that are inconsistent with guidance required to
be issued under section 112(l)(2). This might be read to suggest that
the ``guidance'' referred to in section 112(l)(2) was intended to be a
binding rule. Even under this interpretation, USEPA does not believe
that section 112(l) requires this rulemaking to be comprehensive. That
is, it need not address all instances of approval under section 112(l).
USEPA has already issued regulations under section 112(l) that would
satisfy this requirement. Given the severe timing problems posed by
impending deadlines under section 112 and title V, USEPA believes it is
reasonable to read section 112(l) to allow for approval of programs to
limit potential to emit prior to issuance of a rule specifically
addressing this issue.
Ohio's satisfaction of the criteria published in the Federal
Register of June 28, 1989, has been discussed above. In addition,
Ohio's FESOP program meets the statutory criteria for approval under
section 112(l)(5). USEPA believes that Ohio has adequate authority to
assure compliance with section 112 requirements since the third
criteria of the June 28, 1989, notice is met, that is, since the
program does not provide for waiving any section 112 requirement.
Nonmajor sources would still be required to meet applicable section 112
requirements.
Regarding adequate resources, Ohio has included in its request for
approval under section 112(l) a commitment to provide adequate
resources to implement and enforce the program, which will be obtained
from fees collected under title V. USEPA believes that this mechanism
will be sufficient to provide for adequate resources to implement this
program, and will monitor the State's implementation of the program to
assure that adequate resources continue to be available.
Ohio's FESOP program also meets the requirement for an expeditious
schedule for assuring compliance. A source seeking a voluntary limit on
potential to emit is probably doing so to avoid a Federal requirement
applicable on a particular date. Nothing in this program would allow a
source to avoid or delay compliance with the Federal requirement if it
fails to obtain the appropriate federally enforceable limit by the
relevant deadline.
Finally, Ohio's FESOP program is consistent with the objectives of
the section 112 program since its purpose is to enable sources to
obtain federally enforceable limits on potential to emit to avoid major
source classification under section 112. USEPA believes this purpose is
consistent with the overall intent of section 112. Accordingly, USEPA
finds that Ohio's program satisfies applicable criteria for
establishing federally enforceable limitations on potential to emit
both criteria and hazardous air pollutants.
II. Rulemaking Action
USEPA finds that the criteria for Ohio to be able to issue FESOPs
are essentially met, and is today approving Rule 3745-35-07. This
approval is conditioned on fulfillment of Ohio's commitment to revise
its rule to clarify USEPA's authority to deem permits unenforceable
after issuance. This conditional approval authorizes Ohio to establish
federally enforceable limitations on potential to emit both criteria
pollutants and hazardous air pollutants.
USEPA evaluated whether to defer Ohio's authority to issue FESOPs
pending adoption and USEPA approval of Ohio's intended rule
clarification. Although Ohio's rule inadvertently included language
that could be read to imply otherwise, USEPA believes it has adequate
assurances of its authority to make post-issuance determinations that
State-issued permits are not federally enforceable. First, USEPA
interprets Ohio's rule to provide this authority now. Second, this
authority will be further clarified in the near future. USEPA believes
that Ohio will revise its rule shortly to clarify this authority for
individual permits, possibly even before any FESOP permits are issued;
but if Ohio fails to make the expected rule revisions, today's
conditional approval will revert to a disapproval, and all ``FESOP''
permit conditions will no longer be federally enforceable.
If Ohio fulfills its commitment, this conditional approval would be
converted to full approval and the FESOP permitting authority
continued. If Ohio fails to satisfy its commitment within one year of
today, the conditional approval will convert to a disapproval and
Ohio's authority to issue federally enforceable limitations on
potential to emit will be rescinded. In either alternative, USEPA's
authority to deem permits not federally enforceable both before and
after permit issuance will be further clarified. Consequently, this
rulemaking authorizes Ohio to issue FESOPs commencing immediately upon
the effective date of this rule, which will be December 27, 1994,
unless in the meantime USEPA defers or rescinds the effective date at a
commenter's request.
This action is being taken without prior proposal because the
changes are believed to be noncontroversial and USEPA anticipates no
significant comments on them. This action will be effective December
27, 1994, unless notice is received by November 25, 1994, that someone
wishes to submit adverse or critical comments. If the effective date is
delayed, timely notice will be published in the Federal Register.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. The OMB has exempted this regulatory action from
Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. (5 U.S.C. 603 and 604.)
Alternatively, USEPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
CAA forbids USEPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 27, 1994. 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
Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation
by reference, Intergovernmental relations, Lead, Nitrogen dioxide,
Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of Ohio was approved by the Director of the
Federal Register on July 1, 1982.
Dated: September 19, 1994.
Valdas V. Adamkus,
Regional Administrator.
Title 40 of the Code of Federal Regulations, chapter I, part 52, is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart KK--Ohio
2. Section 52.1888 is added to subpart KK to read as follows:
Sec. 52.1888 Operating permits.
Emission limitations and related provisions which are established
in Ohio operating permits as federally enforceable conditions in
accordance with Rule 3745-35-07 shall be enforceable by USEPA. USEPA
reserves the right to deem permit conditions not federally enforceable.
Such a determination will be made according to appropriate procedures,
and be based upon the permit, permit approval procedures or permit
requirements which do not conform with the operating permit program
requirements or the requirements of USEPA's underlying regulations.
3. Section 52.1919 is amended by adding paragraph (a)(2) to read as
follows:
Sec. 52.1919 Identification of plan-conditional approval.
(a) * * *
(2) On April 20, 1994, Ohio submitted Rule 3745-35-07, entitled
``federally Enforceable Limitations on Potential to Emit,'' and
requested authority to issue such limitations as conditions in State
operating permits. On June 16, 1994, Ohio submitted a commitment to
revise Rule 3745-35-07 to clarify that the rule provides for USEPA
objection to permits after issuance. The revisions are approved
provided Ohio fulfills this commitment by October 25, 1995.
(i) Incorporation by reference.
(A) Rule 3745-35-07, adopted April 4, 1994, effective April 20,
1994.
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[FR Doc. 94-26352 Filed 10-24-94; 8:45 am]
BILLING CODE 6560-50-F
