[Federal Register Volume 60, Number 71 (Thursday, April 13, 1995)]
[Proposed Rules]
[Pages 18790-18792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9059]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[OH001; FRL-5189-8]
Clean Air Act Proposed Approval of Operating Permit Program; Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed full approval.
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SUMMARY: The EPA proposes full approval of the operating permit program
submitted by the State of Ohio for the purpose of complying with
Federal requirements which mandate that States develop, and submit to
EPA, programs for issuing operating permits to all major stationary
sources and to certain other sources.
DATES: Comments on this proposed action must be received in writing by
May 15, 1995.
ADDRESSES: Comments should be addressed to Steven Pak at the Region 5
address. Copies of the State's submittal and other supporting
information used in developing the proposed full approval are available
for inspection during normal business hours at the following location:
EPA Region 5, Air and Radiation Division (AE-17J), 77 West Jackson
Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Steven Pak, EPA Region 5, Air and
Radiation Division (AE-17J), 77 West Jackson Boulevard, Chicago,
Illinois 60604, (312) 886-1497.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
As required under title V of the Clean Air Act (``the Act'') as
amended by the 1990 Clean Air Act Amendments, EPA promulgated rules on
July 21, 1992 (57 FR 32250), which define the minimum elements of an
approvable State operating permit program and the corresponding
standards and procedures by which EPA will approve, oversee, and
withdraw approval of State operating permit programs. These rules are
codified at 40 Code of Federal Regulations (CFR) part 70. Title V and
part 70 require that States develop, and submit to EPA, programs for
issuing operating permits to all major stationary sources and to
certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within one year after receiving the submittal. If the
State's submission is materially changed during the one-year review
period, 40 CFR 70.4(e)(2) allows EPA to extend the review period for no
more than one year following receipt of the additional materials.
Because Ohio provided EPA with additional materials that materially
changed the State's Title V program submittal on September 12, 1994,
November 21, 1994, December 9, 1994, and January 5, 1995, EPA has
extended the review period and will work expeditiously to promulgate a
final decision on the State's program.
EPA reviews State operating permit programs pursuant to section 502
of the Act and 40 CFR part 70, which together outline criteria for
approval or disapproval. When a program substantially, but not fully,
meets the requirements of 40 CFR part 70, EPA may grant the program
interim approval for a period of up to two years. If EPA has not fully
approved a program by November 15, 1995, or by the end of an interim
program, it must establish and implement a Federal operating permit
program for that State.
[[Page 18791]]
II. Proposed Action and Implications
A. Analysis of State Submission
EPA has concluded that the operating permit program submitted by
Ohio meets the requirements of title V and part 70 and is proposing to
grant full approval to the program. For more detailed information on
the analysis of the State's submission, please refer to the technical
support document (TSD) included in the docket at the address noted
above.
1. Support Materials
Donald Schregardus, Director of the Ohio Environmental Protection
Agency and the Governor of Ohio's designee, submitted Ohio's title V
operating permit program to EPA on July 22, 1994. The State
supplemented the submittal on September 12, 1994, November 21, 1994,
December 9, 1994, and January 5, 1995. The submittal contains all
required elements of 40 CFR 70.4, including a description of Ohio's
operating permit program, relevant permitting program documentation,
and the Attorney General's legal opinion that the laws of the State
provide adequate authority to carry out all aspects of the program.
2. Regulations and Program Implementation
EPA has determined that the Ohio operating permit program,
including State statutes (Ohio Revised Code (ORC) 3704.035, 3704.036,
3704.05, 3704.06, 3704.99, 3745.11, and 3745.112) and regulations (Ohio
Administrative Code (OAC) 3745-77 and 3745-78), meets the requirements
of 40 CFR 70.2 and 70.3 for applicability; 40 CFR 70.5 for criteria
which define insignificant activities1 and for complete
application forms; 40 CFR 70.4, 70.5, and 70.6 for permit content
(including operational flexibility); 40 CFR 70.7 and 70.8 for permit
processing requirements (including public participation and minor
permit modifications); and 40 CFR 70.11 for requirements for
enforcement authority. The TSD contains a detailed analysis of Ohio's
program and describes the manner in which the State's program meets all
the operating permit program requirements of 40 CFR Part 70.
\1\Ohio includes research and development (R&D) units, as
defined at Ohio Revised Code (ORC) 3704.01(P), as an insignificant
activity. However, this definition of all R&D units as insignificant
activities is limited in effect because an R&D unit is not exempt
from the State's permit application requirements if the unit's
emissions exceed one ton per year of total hazardous air pollutants
or has a potential to emit more than five tons per year or twenty
percent of an applicable major source threshold under the Act for
any regulated air pollutant other than a HAP (OAC 3745-77-02(G)). In
addition, Ohio's general provisions governing insignificant
activities and emissions levels apply to R&D units. Ohio regulations
provide that insignificant activities and emissions levels that are
exempted because of size or production rate must be listed in the
permit application and do not affect the determination of whether a
stationary source is a major source (OAC 3745-77-02(G)). In
addition, an applicant may not omit information, including the
emissions levels for insignificant activities, that is necessary to
determine the applicability of any applicable requirement, to impose
any applicable requirement, or to evaluate any fee amount (OAC 3745-
77-03(A)).
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3. Permit Fee Demonstration
EPA has determined that the Ohio operating permit program meets the
fee requirements of 40 CFR 70.9. Ohio is adopting the presumptive
minimum approach to fees outlined in 40 CFR 70.9(b)(2).
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority for Section 112 Implementation. In its program
submittal, Ohio demonstrates adequate legal authority to implement and
enforce all section 112 requirements through the Title V permit. This
legal authority is contained in Ohio's enabling legislation and in
regulatory provisions defining ``applicable requirements'' and stating
that permits must incorporate all applicable requirements. EPA has
determined that this legal authority is sufficient to allow the State
to issue permits that assure compliance with all section 112
requirements.
EPA is interpreting the above legal authority to mean that Ohio is
able to carry out all section 112 activities with respect to part 70
sources. For further rationale on this interpretation, please refer to
the TSD.
b. Implementation of 112(g). EPA issued an interpretive notice on
February 14, 1995 (60 FR 8333), which outlines EPA's revised
interpretation of 112(g) applicability. The notice postpones the
effective date of 112(g) until after EPA has promulgated a rule
addressing that provision. The notice sets forth in detail the
rationale for the revised interpretation.
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow States time to adopt rules implementing the Federal rule and that
EPA will provide for any such additional delay in the final section
112(g) rulemaking. Unless and until EPA provides for such an additional
postponement of section 112(g), Ohio must have a federally enforceable
mechanism for implementing section 112(g) during the period between
promulgation of the Federal section 112(g) rule and adoption of
implementing Federal regulations.
EPA is aware that Ohio lacks a program designed specifically to
implement section 112(g). However, Ohio does have a preconstruction
review program (OAC 3745-31) that can serve as an adequate
implementation vehicle during the transition period because it would
allow Ohio to select control measures that would meet MACT, as defined
in section 112, and incorporate these measures into a federally
enforceable preconstruction permit.
EPA is approving Ohio's preconstruction permitting program (OAC
3745-31) under the authority of Title V and Part 70 solely for the
purpose of implementing section 112(g) to the extent necessary during
the transition period between 112(g) promulgation and adoption of a
State rule implementing EPA's section 112(g) regulations. Although
section 112(l) generally provides authority for approval of State air
programs to implement section 112(g), Title V and section 112(g)
provide for this limited approval because of the direct linkage between
the implementation of section 112(g) and Title V. The scope of this
approval is narrowly limited to section 112(g) and does not confer or
imply approval for purposes of any other provision under the Act (e.g.,
section 110). This approval will be without effect if EPA decides in
the final section 112(g) rule that sources are not subject to the
requirements of the rule until State regulations are adopted. The
duration of this approval is limited to 18 months following
promulgation by EPA of the 112(g) rule to provide adequate time for the
State to adopt regulations consistent with the Federal requirements.
c. Program for delegation of Section 112 Standards as Promulgated.
The requirements for program approval, specified in 40 CFR 70.4(b),
encompass section 112(l)(5) requirements for approval of a State
program for delegation of section 112 standards, as promulgated by EPA,
as they apply to part 70 sources. Section 112(l)(5) requires that the
State's program contain adequate authorities, adequate resources for
implementation, and an expeditious compliance schedule, which are also
requirements under 40 CFR part 70. Therefore, EPA is also proposing to
grant approval, under section 112(l)(5) and 40 CFR 63.91, of Ohio's
program for receiving delegation of section 112 standards that are
unchanged from the Federal standards as promulgated.
[[Page 18792]]
Because Ohio has historically accepted delegation of section 112
standards through automatic delegation, EPA proposes to approve the
delegation of section 112 standards and requirements through automatic
delegation. The details of this delegation mechanism will be set forth
in a Memorandum of Agreement between Ohio and EPA. This approval
applies to both existing and future standards but is limited to sources
covered by the part 70 operating permit program.
d. Limiting HAP Emissions Through a FESOP Program. On October 25,
1994, EPA conditionally approved OAC 3745-35-07 for establishing a
mechanism for creating federally enforceable limits on a sources
potential to emit (59 FR 53586). This rulemaking, which became
effective on December 27, 1994, authorizes the State to issue federally
enforceable State operating permits addressing both criteria pollutants
and HAPs.
e. Title IV. Ohio's program contains adequate authority to issue
permits which reflect the requirements of Title IV and its implementing
regulations. Further, Ohio provided a commitment on January 5, 1995, to
incorporate by reference the Federal Acid Rain Program regulations (40
CFR part 72) by October 1, 1995.
B. Potential Interim Approval Issue
Ohio's definition of ``title I modification'' does not include
changes reviewed under a minor source preconstruction review program.
On August 29, 1994, EPA solicited public comment on whether the phrase
``modification under any provision of title I of the Act'' in 40 CFR
70.7(e)(2)(i)(A)(5) should be interpreted to mean literally any change
at a source that would trigger permitting authority review under
regulations approved or promulgated under Title I of the Act (59 FR
44573). EPA is currently reviewing the public comments on this issue
and is in the process of determining the proper definition of that
phrase. EPA does not believe that it is appropriate to determine
whether this is a program deficiency for Ohio until EPA completes its
rulemaking on this issue. For a more complete discussion of this issue
see the November 9, 1994, approval of the operating permit program for
the State of Washington (59 FR 55813).
C. Proposed Action
EPA is proposing to grant full approval of the operating permit
program submitted by Ohio on July 22, 1994, and amended on September
12, 1994, November 21, 1994, December 9, 1994, and January 5, 1995.
Among other things, Ohio has demonstrated that the program meets the
minimum elements of an approvable State operating permit program as
specified in 40 CFR part 70.
The scope of the Ohio program that EPA proposes to approve in this
notice would apply to all part 70 sources (as defined in the approved
program) within the State of Ohio.
As outlined in II.A.4.c., EPA is also proposing to grant approval
under section 112(l)(5) and 40 CFR 63.91 of the State's program for
receiving delegation of section 112 standards that are unchanged from
Federal standards as promulgated. This program for delegations only
applies to sources covered by the part 70 program.
III. Administrative Requirements
A. Request for Public Comments
EPA is requesting comments on all aspects of this proposed full
approval. Copies of the State's submittal and other information relied
upon for the proposed full approval are contained in a docket
maintained at the EPA Regional Office. The docket is an organized and
complete file of all the information submitted to, or otherwise
considered by, EPA in the development of this proposed full approval.
The principal purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process; and
(2) To serve as the record in case of judicial review. EPA will
consider any comments received by May 15, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permit programs submitted to
satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: March 29, 1995.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 95-9059 Filed 4-12-95; 8:45 am]
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