[Federal Register Volume 59, Number 43 (Friday, March 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4992]
[[Page Unknown]]
[Federal Register: March 4, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH53-1-6092; FRL-4844-4]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: U.S. Environmental Protection Agency (USEPA).
ACTION: Proposed rule.
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SUMMARY: On August 20, 1993, the Ohio Environmental Protection Agency
(OEPA) submitted materials in response to requirements in part D of
title I of the Clean Air Act for new source review in nonattainment
areas. This submittal included no revisions to any Ohio regulations.
Instead, the submittal described how Ohio intended to implement various
applicable part D requirements, and presented a rationale that no
revisions to State regulations would be necessary to satisfy these
requirements. USEPA disagrees with this rationale and proposes to
disapprove the State's submittal for failure to satisfy applicable
requirements.
DATES: Comments on this proposed action must be received by April 4,
1994.
ADDRESSES: Comments should be submitted to William L. MacDowell at the
Region 5 address. Copies of the State's submittals, the public comment
letter, and USEPA's technical support document of November 9, 1993, are
available for inspection at the following address: (It is recommended
that you telephone John Summerhays at (312) 886-6067, before visiting
the Region 5 Office.)
U.S. Environmental Protection Agency, Region 5, Air and Radiation
Division (AE-17J), 77 West Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: John Summerhays, Regulation
Development Section, Air Enforcement Branch (AE-17J), U.S.
Environmental Protection Agency, Region 5, Chicago, Illinois 60604,
(312) 886-6067.
SUPPLEMENTARY INFORMATION:
I. Background
On August 20, 1993, the Ohio Environmental Protection Agency (OEPA)
submitted a letter with attachments to the United States Environmental
Protection Agency (USEPA) addressing new source review in nonattainment
areas. USEPA notified OEPA on October 22, 1993, that it found this
submittal complete. This submittal was intended to satisfy Clean Air
Act requirements for new source review in nonattainment areas,
particularly the new requirements established by the Clean Air Act
Amendments of 1990.
Provisions for new source review in Ohio were included in the
original State Implementation Plan (SIP) submitted on January 31, 1972,
and replacement regulations submitted on June 6, 1973. The relevant
regulations provided for best available control technology (BACT) and
other requirements applied uniformly throughout the State.
Subsequently, the Clean Air Act Amendments of 1977 provided for
designations of areas as being in attainment or nonattainment of the
air quality standards, and required a further State submittal to impose
additional requirements (most notably lowest achievable emission rates
(LAER) and offsets) for new sources in nonattainment areas. Ohio
submitted relevant material on July 25, 1980, and September 25, 1980.
USEPA conditionally approved these submittals on October 31, 1980, on
the condition that Ohio submit regulations delineating requirements
that new sources in nonattainment areas must meet.
Ohio submitted revised regulations on October 4, 1982, and January
24, 1983. These regulations impose nonattainment area new source
permitting requirements by incorporating appendix S to title 40 of the
Code of Federal Regulations, part 51 (appendix S to 40 CFR part 51--
''Emission Offset Interpretative Ruling'') into the State regulations.
USEPA granted limited approval to this submittal on September 8, 1993
(58 FR 47211), concluding that the regulation strengthened the SIP but
did not fully satisfy the nonattainment area planning requirements
established in 1977 in part D of title I of the Clean Air Act. Of
particular concern were the exemptions of temporary sources and
resource recovery facilities provided in appendix S (and thus
incorporated by reference in the State rules) but not approvable under
the criteria established in 40 CFR part 51, subpart I. By the time of
this 1993 rulemaking, the Clean Air Act Amendments of 1990 had imposed
further requirements for nonattainment area new source review. The
State provided USEPA material concerning the new requirements on
November 19, 1992, December 2, 1992, January 13, 1993, and April 26,
1993. USEPA notified the State on June 1, 1993, that these materials
did not represent a complete submittal. The State then provided
additional information on August 20, 1993, which USEPA found on October
22, 1993, to constitute a complete submittal. USEPA has conducted a
full review and proposes to disapprove the submittal for failing to
satisfy the current nonattainment area new source review requirements
of part D of title I of the Clean Air Act.
The Clean Air Act Amendments of 1990 established numerous new
requirements for new source review. Among the more significant of these
requirements that apply to Ohio are provisions for specific emission
offset requirements in ozone nonattainment areas, including specified
minimum offset rations, for review of major new sources and major
modifications for nitrogen oxides (NOx) in ozone nonattainment
areas, and for an alternative siting analysis for all nonattainment
area pollutants. Additionally, the State plan must include provisions
for proper calculation of offsets, provisions reflecting certain
substantial restrictions on growth allowances, provisions for supplying
from nonattainment new source review permits to USEPA's RACT/BACT/LAER
Clearinghouse, provisions relating to rocket engines or motors,
provisions relating to stripper wells, provisions relating to the
definition of ``stationary source'' affecting the treatment of internal
combustion engine sources, and provisions relating to temporary clean
coal technology demonstration projects.1
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\1\The amended Act also requires that new source review
requirements apply to lower size sources in areas classified Serious
or above, and in some cases requires new source review for
particulate matter precursor sources in particulate matter
nonattainment areas. However, Ohio presently has no areas classified
Serious or above, and the requirement relating to particulate matter
precursors will not apply if USEPA finalizes a determination
proposed on August 3, 1993, that precursors do not contribute
significantly to particulate matter violations.
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The 1990 Amendments also specify various deadlines for submittal of
SIP revisions to satisfy these requirements. For areas designated
nonattainment for fine particulate matter, a plan satisfying the
requirements of sections 173 and 189 was to be submitted by June 30,
1992. For areas designated nonattainment and classified as marginal or
above for ozone, a plan satisfying the requirements of sections 173 and
182 was to be submitted by November 15, 1992. For areas designated
nonattainment for carbon monoxide, a plan satisfying the requirements
of section 173 was to be submitted by November 15, 1993. The State of
Ohio has areas designated nonattainment for ozone and particulate
matter, for which it was required to meet these SIP revision deadlines.
The August 20, 1993, material was submitted in an effort to satisfy
these requirements.
II. Review of State's Submittal
A. Review Relative to Pre-1990 Requirements
The State's recent submittal does not address new source review
requirements that applied prior to the Clean Air Act Amendments of
1990. Therefore, the USEPA review of the State's plan relative to pre-
1990 requirements published on September 8, 1993 (58 FR 47211), remains
current. The September 8 notice granted limited approval on the basis
of the strengthening effect of the 1982 regulations relative to the
prior SIP, but found the State's plan to be insufficient to meet the
pre-1990 new source review requirements. The 1982 regulations
essentially incorporate appendix S of 40 CFR part 51 by reference.
USEPA identified deficiencies relating to the exemptions from offset
requirements for resource recovery facilities and temporary sources
provided in appendix S and therefore incorporated by reference into
Ohio's regulations. Since these deficiencies have not been addressed,
the State's new source review program continues to fail to satisfy part
D requirements.
The September 8 notice also noted that the provisions of appendix
S, as incorporated by reference into Ohio's regulations, are not as
explicit as the current requirements of subpart I of 40 CFR part 51 for
annual, actual emissions offsets. Although USEPA interprets Ohio's
regulations to require that federally enforceable actual emission
offsets be obtained as a condition of any permit pursuant to part D,
section 173(c) requires that Ohio clarify that this requirement
applies.
B. Review Relative to Post-1990 Requirements
The substance of Ohio's submittal of August 20, 1993, is a document
entitled ``Ohio EPA New Source Review State Implementation Plan--
Requirements for Major New Sources in Nonattainment Areas.'' This
document focuses on requirements established by the Clean Air Act
Amendments of 1990 and identifies OEPA's plans for implementing these
requirements. This document is referred to below as Ohio's statement of
permitting criteria.
The State's submittal provides no new regulations to govern review
of new sources in nonattainment areas. Instead, the submittal states
that regulations adopted in 1974 provide the necessary authority to
implement the new requirements for new source review, and that these
SIP approved regulations in conjunction with the submittal's statement
of permitting criteria should satisfy Clean Air Act requirements. Thus,
a key question in this rulemaking is whether USEPA can approve this
approach and enforce the intended permitting requirements.
The USEPA, in its technical support document, evaluated the
adequacy with which Ohio's submittal satisfies selected key
requirements. USEPA's review indicated that the statement of permitting
criteria does not provide adequate specificity and clarity of criteria
by which detailed implementation decisions would be made. The following
discussion of sample requirements illustrates the basis for this
conclusion.
The Clean Air Act Amendments of 1990 require that specified offset
ratios for volatile organic compounds (VOC) emissions and presumptively
for nitrogen oxides (NOx) emissions must be obtained in ozone
nonattainment areas. That is, any significant increase in potential
emissions for either of these pollutants must be accompanied by an
decrease in actual emissions that is larger by at least a specified
ratio. Ohio's statement of permitting criteria includes: (1) A
preliminary clause stating that ``the following additional requirements
will be applicable,'' (2) an item 1 identifying ``minimum required
offset ratios,'' and (3) an item 4 noting that ``NOx . . . shall
be treated as a nonattainment pollutant'' in ozone nonattainment areas.
No definition of offset ratio is provided, and so it is unclear what
averaging time applies, whether offsets are to reflect allowable or
actual emissions, whether all emission increases must be offset (e.g.,
fugitive and secondary emissions), where the offsets must occur, and
whether interpollutant offsets are permissible. (Item 4 of Ohio's
statement implies that NOx offsets must come from the same county
as the emission increases.) The statement also does not explicitly
state that either VOC or NOx offsets are required.
A second new requirement is that the other various major source
requirements (e.g., lowest achievable emission rates) also apply to
major sources of NOx in ozone nonattainment areas, unless USEPA
makes certain determinations that NOx control would not be
beneficial. Ohio implies the applicability of these requirements by
making the above statement that NOx is to be treated as a
nonattainment pollutant. Ohio's statement continues that ``[n]ew source
applicants are required to meet the major new source definitions and
major modifications thresholds as specified in the CAA.'' However, the
Clean Air Act itself does not explicitly define ``major new source''
and does not specify major modification thresholds. Also, Ohio's
statement could be read to require all sources to meet the size
minimums for major new sources or major modifications. Ohio's statement
continues: ``For major modifications, these CAA requirements will be
applicable to sources of NOx greater than 40 tons per year.'' It
is not clear whether Ohio intends this apparent reduction from 100 to
40 tons per year of the threshold of source sizes at which major
modifications trigger new source review requirements.
Review of further requirements established by the 1990 Amendments
is provided in the technical support document. The conclusion of
USEPA's review is that the statement of permitting criteria does not
address many of the questions that would arise in imposing the
identified requirements.
C. Analysis of the Need for Regulations
The above examples clarify a central issue in this rulemaking, i.e.
whether formal regulations are necessary to establish the requirements
dictated by the Clean Air Act. Ohio's statement and the submittal cover
letter present the State's position that existing Ohio statutes and
regulations already require that the provisions of the amended Clean
Air Act be met. Specifically, Ohio notes that its Rule 3745-31-05
requires that permits to install shall be issued only if the
construction and operation will ``not result in a violation of any
applicable laws,'' which is defined to include the Clean Air Act
including any amendments. Although Ohio proceeds to describe in general
terms how it intends to apply the new requirements, the submittal cover
letter expressly states that ``the current, federally approved, Ohio
SIP is adequate for fulfilling the requirements of a NSR SIP, and that
no changes are necessary.''
Ohio's position raises fundamental questions about the role of
implementing regulations. In general, statutes present general criteria
that must be met, whereas regulations define the specific requirements
that apply in each circumstance. In limited circumstances a statute may
be enforced without implementing regulations, but generally regulations
are necessary to define the precise obligations of affected individuals
and the precise criteria by which relevant decisions (e.g.
determinations of compliance) will be made. The proper adoption of
clearly defined criteria for making relevant decisions is essential to
support these decisions. Therefore, in the absence of exhaustively
detailed statutes, the adoption of detailed regulations is essential
for successful program implementation.
In the case of new source review, the Clean Air Act identifies
general provisions which are to be included in State plans. The State's
statement of permitting criteria closely parallels the language in the
Clean Air Act. As the above examples illustrate, Ohio's submittal fails
to define many of the details of how these requirements would be
implemented. In the absence of these details, a subject source could
not be expected to know its obligations pursuant to these requirements,
and could object to the imposition of the general requirements based on
the failure of the State to pre-define the specific criteria that would
be applied. Further, as a commenter noted when the State proposed its
SIP revision, the statement of permitting criteria was not adopted
according to the full procedures in Ohio for adoption of regulations,
even though this statement is intended to serve purposes normally
served by regulations. Consequently, the statement of permitting
criteria lacks the specificity, the regulatory standing, and the
assurance of being enforceable that are needed to satisfy Clean Air Act
requirements.
III. This Action
USEPA's review indicates that Ohio's submittal does not clearly
establish the specific criteria by which judgments in new source
permitting will be made. Furthermore, by relying not on properly
adopted regulations but rather on a general regulatory provision
(requiring compliance with the Clean Air Act) in conjunction with a
statement of permitting criteria, the State has failed to follow proper
procedures to become authorized to impose specific, detailed permit
conditions in accordance with the Clean Air Act requirements. In
addition, the existing regulations exempt two types of sources which
may not be exempted under applicable USEPA regulations. For these
reasons, USEPA proposes to disapprove Ohio's submittal for failure to
satisfy part D requirements.
Under section 179(a)(2), if USEPA takes final action to disapprove
a submission under section 110(k) for an area designated nonattainment
based on the submission's failure to meet one or more of the elements
required by the Act, USEPA must apply one of the sanctions set forth in
section 179(b) unless the deficiency has been corrected within 18
months of such disapproval. Section 179(b) provides two sanctions
available to USEPA: highway funding restrictions, and a requirement for
two-for-one offsets. The 18-month period referred to in section 179(a)
would begin to run at the time USEPA publishes final notice of this
disapproval. Moreover, the final disapproval would trigger the Federal
Implementation Plan (FIP) requirement under section 110(c). Separate
rulemaking is being conducted to identify which sanction would apply
first and to address related issues on the application of sanctions,
for example whether USEPA must publish final approval of a new
submittal before the deficiency may be considered corrected.
Public comment is solicited on this proposed rulemaking action.
Comments received by [Insert date 30 days from date of publication]
will be considered in the development of USEPA's final rulemaking
action.
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.
USEPA's disapproval of the State request under section 110 and part
D of the Clean Air Act does not affect any existing requirements
applicable to small entities. Any pre-existing Federal requirements
remain in place after this disapproval. Federal disapproval of the
State submittal does not affect its State enforceability. Moreover,
USEPA's disapproval of the submittal does not impose any new Federal
requirements. Therefore, USEPA certifies that this disapproval action
would not have a significant impact on a substantial number of small
entities because it does not remove existing requirements nor does it
impose any new Federal requirements.
This action has been classified as a Table Two action by the
Regional Administrator under the procedures published in the Federal
Register on January 19, 1989 (54 FR 2214-2225), based on revised SIP
processing review tables approved by the Acting Assistant Administrator
for Air and Radiation on October 4, 1993 (Michael Shapiro's memorandum
to Regional Administrators). On January 6, 1989, the Office of
Management and Budget waived Tables Two and Three SIP revisions (54 FR
222) from the requirements of section 3 of Executive Order 12291 for a
period of 2 years. USEPA has submitted a request for a permanent waiver
for Table 2 and Table 3 SIP revisions. OMB has agreed to continue the
waiver until such time as it rules on USEPA's request. This request
continued in effect under Executive Order 12866, which superseded
Executive Order 12291 on September 30, 1993.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen oxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide.
Authority: 7401-7671q.
Dated: February 14, 1994.
David Ullrich,
Acting Regional Administrator.
[FR Doc. 94-4992 Filed 3-3-94; 8:45 am]
BILLING CODE 6560-50-F
