E8-1797. Final Rule; Ohio; Revised Oxides of Nitrogen (NOX

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a revision to the Ohio oxides of nitrogen (NO_X) State Implementation Plan (SIP) containing provisions which control emissions of NO_X from large internal combustion (IC) engines, makes corrections to typographical errors in the previously approved Phase I NO_X SIP, and expands the definition of NO_X budget unit. This approval requires reductions in NO_X emissions from large IC engines, based on cost-effective control measures. Large IC engines are defined in the State rule as emitting one ton or more of NO_X per day during the ozone season. The Ohio NO_X SIP Call IC engine inventory is based on the inventory of IC engines compiled by EPA as part of the NO_X SIP Call rule. Including these engines in the Ohio plan reduces NO_X to a level at which the State will meet its ozone season NO_X budget. EPA is approving the State's revision because it satisfies the Federal requirements for Phase II sources and demonstrates that these rules will meet the Phase II budget for Ohio.

DATES:

This direct final rule is effective April 4, 2008 without further notice, unless EPA receives adverse comment by March 5, 2008. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-1085, by one of the following methods:

I. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

II. E-mail: [e-mail].

III. Fax: [phone]

IV. Mail: Reference EPA-R05-OAR-2007-1085 Docket, Air Programs Branch, U.S. Environmental Protection Agency, (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604.

V. Hand Delivery or Courier: John Mooney, Chief, Criteria Pollutant Section, Air Programs Branch, U.S. Environmental Protection Agency (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

Instructions: Direct your comments to Docket ID No. “EPA-R05-OAR-2007-1085”. 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 through www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected. 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 and any form of encryption and should be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

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, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at 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. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

John Paskevicz, Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. The telephone number is [phone]. Mr. Paskevicz can also be reached via electronic mail at: [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” refer to the U.S. Environmental Protection Agency.

Table of Contents

I. Does this rule apply to me?

II. The State's Submittal

A. Why did the State submit this revision and how does it fit in with the State's NO_X plan?

B. What did Ohio submit?

III. EPA's Evaluation and Final Action

A. Is the Ohio submittal complete?

B. Did the State submit the revision in time to meet EPA requirements?

C. Does the Ohio submittal meet the evaluation criteria?

IV. What action is EPA taking today?

V. Statutory and Executive Order Reviews

I. Does this rule apply to me?

This rule applies to owners or operators of any large NO_X SIP Call stationary internal combustion engines as defined in the State rule and located in the State of Ohio. A “large NO_X SIP Call engine” means any engine in the Ohio NO_X SIP Call engine inventory emitting more than one ton of NO_X emissions per control period day in 1995. Ohio used the EPA 1995 baseline inventory list that contained the NO_X emission units for all of the States including Ohio. A search of that list shows that there are 12 large lean burn IC engines, as described by EPA, in Ohio. These engines are located at pipeline pumping stations and are required by State rule to meet the NO_X SIP Call Phase II budget. Compliance plans are expected to show that control of these 12 units will bring about reductions of NO_X to meet the portion of the NO_X budget associated with these units.

II. The State's Submittal

A. Why did the State submit this revision and how does it fit in with the State's NO_X plan?

In order to reduce ozone transport in the eastern part of the United States, the EPA issued the NO_X SIP Call on October 27, 1998, (63 FR 57356) to reduce emissions of NO_X, a precursor of ozone. Subsequent litigation affecting this SIP Call prompted the EPA to divide the SIP Call into two phases. The majority of the SIP Call was upheld by the D.C. Circuit Court of Appeals and these requirements became Phase I of the SIP Call. A second phase of the SIP Call was necessary to address the portions of the October 1998 action which were vacated or remanded to EPA by the Court. EPA published the final Phase II Rule on April 21, 2004 (69 FR 21604). The plans that cover the portion of the rule re-issued after the Court decision are known as “Phase II” SIPs and were due to be submitted to EPA on April 1, 2005, with full compliance by May 1, 2007. The Ohio plan revision was received by EPA on June 16, 2005. Additional information regarding compliance plan approval by Ohio was provided on November 7, 2006.

In addition to the Phase II rule, EPA published a draft example rule on September 15, 2004, for States to use as a model for their State rules. A copy of this draft example rule is available at the Web site: http://www.epa.gov/​ttn/​oarpg/​t1/​meta/​m25546.html. Coincidental with the draft example rule EPA provided a list of questions and answers for use by States in response to some common questions expressed by the regulated community. (http://www.epa.gov/​ttn/​oarpg/​t1/​reports/​23814qnaasfin.pdf) The EPA Phase II rule identifies the incremental budget for Ohio which the State is expected to comply with in order to fulfill the requirements of the NO_X SIP Call.

B. What did Ohio submit?

Ohio's revision contains rules which add IC engines to the list of affected sources of NO_X. The revision also includes some language changes to the original NO_X SIP, and also changes in definitions and the addition of specific language for cogeneration units. These changes are located in OAC 3745-14-01, -05, and -12, and Appendix B.

OAC 3745-14-01 was changed in the areas of Definitions and Applicability. Ohio made changes in the Definitions section addressing continuous emissions monitoring, linking the language to Ohio rule 3745-14-08, and 40 CFR part 75, and expanded the language in the state's rule pertaining to automated data acquisition and handling system and NO_X monitoring. An additional list of definitions was added pertaining to IC engines, clearly defining to which source types this rule applies. In the applicability portion of the rule a separate section addressing (and including) cogeneration units was added.

A number of minor wording revisions were made in OAC 3745-14-05, relating to Ohio's incorporation by reference of EPA's technical amendments to the NO_X SIP Call Rule and ASTM standard test methods for several pollutants including NO_X. This State rule revision includes Appendix B to the chapter, and lists the non-electric generating unit's (non-EGU) annual NO_X allowance allocations. This appendix contains corrections to errors on the list made in the point identification portion of the State's Appendix B for non-EGUs.

OAC 3745-14-12, Stationary internal combustion engines, is an entirely new rule which applies to large NO_X SIP Call engines as defined in OAC 3745-14-01. The rule lists the requirements for a compliance plan, and the requirements for monitoring, recordkeeping and reporting of data.

III. EPA's Evaluation and Final Action

A. Is the Ohio submittal complete?

Yes, Ohio submitted a complete SIP revision. The revision is complete from the point of view of satisfying the Ohio state code for submitting State plans to EPA. And the revision is complete based on the requirements of 40 CFR part 51, Appendix V.

This revision augments a number of earlier revisions to the Ohio NO_X SIP Call. On August 5, 2003, 68 FR 46089, EPA published a final rule giving conditional approval of the Ohio NO_X SIP Call plan, following receipt of a written commitment from Ohio to revise the flow control date.

On June 27, 2005, 70 FR 36845, EPA published a final rule approving the Ohio revision which excludes carbon monoxide boilers at fluid catalytic cracking units in oil refineries from Ohio's NO_X trading program.

B. Did the State submit the revision in time to meet EPA requirement?

The State Phase II SIP was required to be submitted one year following the approval by the EPA Administrator establishing the final full NO_X budgets for States subject to the NO_X SIP Call. The final full NO_X budget rule was signed by the administrator on April 1, 2004. (69 FR 21604) The revised State plans were due on April 1, 2005. The Ohio plan was received by EPA on June 16, 2005.

C. Does the Ohio submittal meet the evaluation criteria?

EPA evaluated the Ohio plan submittal based on the guidance EPA provided to states affected by the NO_X SIP Call. We are satisfied that the plan submitted by Ohio meets this guidance. EPA published an example rule (EPA guidance) illustrating a means by which States can meet the NO_X SIP Call Phase II requirements. The example rule contained: A set of new definitions associated with stationary internal combustion engines; a description of a compliance plan containing provisions applicable to each owner/operator of a large IC engine; and a detailed list of reporting, monitoring, and recordkeeping requirements with which an owner/operator must comply. We reviewed the Ohio Phase II submittal against our example rule and find the Ohio IC engine rule to be consistent with applicable elements of the EPA example rule.

Ohio also included an incorporation by reference (in OAC 3745-14-01) of: (1) A standard test method for determining NO_X concentrations in emissions from natural gas-fired reciprocating engines, combustion turbines, boilers, and process heaters using portable analyzers; (2) Technical Amendment to the Finding of Significant Contribution and Rulemaking for Certain States for Purposes of Reducing Regional Transport of Ozone, (65 FR 11222, March 2, 2000); and, (3) Interstate Ozone Transport Response to Court Decisions on the NO_X SIP Call, NO_X SIP Call Technical Amendments, and Section 126 Rules (69 FR 21603, April 21, 2004.)

IV. What action is EPA taking?

EPA is approving the revision to the Ohio NO_X SIP Call which adds provisions affecting large stationary internal combustion engines. We are also approving a number of changes to the State's plan including the revised budget demonstration for IC engines, rule changes affecting continuous emissions monitoring, and additional language affecting cogeneration units.

V. Statutory and Executive Order Reviews

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 making progress toward meeting Federal requirements and would impose no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule would 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 action approves pre-existing requirements under State law and would 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 would 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 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it would 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 approves a State rule making progress toward implementing a Federal standard. It does not alter the relationship or the distribution of power and responsibilities established in the Clean Air 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 would approve a State rule making progress toward implementing a Federal Standard.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air 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 Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 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).

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 4, 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 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
• Oxides of nitrogen
• Reporting and recordkeeping requirements

Dated: January 11, 2008.

Gary Gulezian,

Acting Regional Administrator, Region 5.

For the reasons stated in the preamble, part 52, chapter I, of title 40 of the Code of Federal Regulations is 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)(141) to read as follows:

§ 52.1870

Identification of plan.

* * * * *

(c) * * *

(141) Ohio Environmental Protection Agency, on June 16, 2005, submitted amendments to the State Implementation Plan to control nitrogen oxide emissions from internal combustion engines in new rule Ohio Administrative Code (OAC) 3745-14-12. This rule adds stationary internal combustion engines to the list of sources in the Ohio NO_X SIP Call emission reduction program. Also, OAC 3745-14-01, General Provisions, is amended. This rule contains definitions used for the nitrogen oxides rules, expands the definition of NO_X budget unit, adds definitions for the internal combustion engine rule, amends definition associated with continuous emissions monitoring, and makes corrections to typographical errors. OAC 3745-14-05 Portions of this rule are amended to correctly line up with the changes made in the definitions section of the NO_X plan. Typographical errors are also corrected.

(i) Incorporation by reference. The following sections of the Ohio Administrative Code (OAC) are incorporated by reference.

(A) OAC 3745-14-01, General Provisions, effective on May 07, 2005.

(B) OAC 3745-14-05, NO_X Allowance Allocations, effective on May 07, 2005.

(C) OAC 3745-14-12, Stationary Internal Combustion Engines, effective on May 7, 2005.