[Federal Register Volume 61, Number 78 (Monday, April 22, 1996)]
[Proposed Rules]
[Pages 17669-17675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9914]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH96-1; FRL-5462-1]
Proposed Approval and Promulgation of Revisions to the New Source
Review State Implementation Plan; Ohio
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Proposed rule.
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SUMMARY: The USEPA proposes to conditionally approve a requested State
Implementation Plan (SIP) revision submitted by the State of Ohio for
the purpose of meeting requirements of the Clean Air Act, as amended in
1990 (CAA) with regard to new source review (NSR) in areas that have
not attained the national ambient air quality standards (NAAQS). The
requested revision was submitted by the State to satisfy certain
Federal requirements for an approvable nonattainment new source review
SIP. This proposed conditional approval is based upon the State's
agreeing with two USEPA interpretations of the Ohio rules and a
commitment by the State to remedy the omission of a definition for
[[Page 17670]]
``Pollution Control Project'' in its NSR rules.
DATES: Comments on this proposed action must be received in writing by
June 21, 1996.
ADDRESSES: Comments on this proposed rule should be addressed to: J.
Elmer Bortzer, Chief, Regulation Development Section, Air Programs
Branch (5AR-18J), United States Environmental Protection Agency, Region
5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal and other information are available
for inspection during normal business hours at the following location:
United States Environmental Protection Agency, Region 5, Air and
Radiation Division, Air Programs Branch, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Genevieve Nearmyer, Environmental
Engineer, Permits and Grants Section, Air Programs Branch, (5AR-18J),
United States Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
Anyone wishing to come to the Region 5 offices should first contact
Ms. Nearmyer at (312) 353-4761. Reference file OH96.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for nonattainment NSR are set
out in part D of title I of the CAA. The USEPA has issued a ``General
Preamble'' describing its preliminary views on how USEPA intends to
review SIPs and SIP revisions submitted under part D, including those
State submittals containing nonattainment area NSR SIP requirements.
[See 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992).]
Because USEPA is describing its interpretations here only in broad
terms, the reader should refer to the General Preamble for a more
detailed discussion of the interpretations of part D advanced in this
proposal and the supporting rationale regarding the approvability of
the submittals. Prior to USEPA's approval of a State's NSR SIP
submittal, the State may continue permitting only in accordance with
the new statutory requirements for permit applications completed after
the relevant SIP submittal date. This policy was explained in
transition guidance memoranda from John Seitz dated March 11, 1991 and
September 3, 1992.
As explained in the March 11 memorandum, USEPA does not believe
Congress intended to mandate the more stringent title I NSR
requirements during the time provided for SIP development. States were
thus allowed to continue to issue permits consistent with requirements
in their current NSR SIPs during that period, or apply 40 CFR part 51,
appendix S for newly designated areas that did not previously have NSR
SIP requirements.
The September 3 memorandum also addressed the situation where
States did not submit the part D NSR SIP requirements or revisions by
the applicable statutory deadline. For permit applications found
complete by the SIP submittal deadline, States may issue final permits
under the prior NSR rules, assuming certain conditions in the September
3 memorandum are met. However, for applications completed after the SIP
submittal deadline, USEPA will consider the source to be in compliance
with the CAA only where the source obtains from the State a permit that
is consistent with the substantive new NSR part D provisions in the
CAA. USEPA believes this guidance continues to apply to permitting
pending final action on NSR SIP submittals.
In this rulemaking action on the Ohio nonattainment NSR SIP
revisions, USEPA is proposing to apply its interpretations taking into
consideration the specific factual issues presented. Thus, USEPA will
consider any timely submitted comments before taking final action on
this proposed rule.
II. Review of the Ohio Submittal
Section 110(k) of the Act sets out provisions governing USEPA's
review of SIP submittals [see 57 FR 13565-66 (April 16, 1992)].
A. Analysis of State Submission
1. Procedural Background
The CAA requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
USEPA. Section 110(a)(2) of the CAA provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing.1 Section 110(l) of the CAA similarly provides that
each revision to an implementation plan submitted by a State under the
Act must be adopted by such State after reasonable notice and public
hearing.
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\1\ Section 172(c)(7) of the CAA provides that plan provisions
for nonattainment areas shall meet the applicable provisions of
section 110(a)(2) of the CAA.
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The USEPA also must determine whether a submittal is complete and
therefore warrants further USEPA review and action. [See section
110(k)(1) and 57 FR 13565 (April 16, 1992).] The USEPA's completeness
criteria for SIP submittals are set out at 40 CFR part 51, appendix V.
The USEPA attempts to make completeness determinations within 60 days
of receiving a submittal. However, a submittal is deemed complete by
operation of law under section 110(k)(1)(B) of the CAA if a
completeness determination is not made by USEPA within 6 months after
receipt of the submission.
It should be noted that Ohio's initial NSR SIP submittal was
submitted in response to the part D requirements in 1977 Amendments to
the CAA. USEPA approved these provisions on October 31, 1980 (45 FR
72119). The State SIP submittal that is the subject of this proposed
rule concerns amendments to the earlier rules to satisfy the
requirements of the 1990 Amendments to the CAA. Ohio's previous attempt
at satisfying these additional with a submittal to USEPA on August 20,
1993 ended in final disapproval by USEPA on September 21, 1994 (59 FR
48392). This final rule initiated the sanctions process as discussed
below.
The State of Ohio submitted draft NSR rules to USEPA for parallel
processing on March 1, 1996. Parallel processing is a mechanism
developed to expedite USEPA action and a State SIP revision request.
Under parallel processing, the State submits its rules to USEPA when
their substance has been finalized but before they become finally
adopted by the State. The USEPA then initiates its analysis and rule
adoption process on the draft State rules. Although final action on the
requested SIP revision cannot occur until the rules are adopted and
effective, the time between final adoption by the State and approval by
USEPA is shortened because USEPA begins its review and approval process
before the State completes its rule adoption process.
The State of Ohio held a public hearing on January 6, 1996, to
provide the public an opportunity to present oral comments on the NSR
implementation plan revisions. After the public hearing the rules were
filed with the legislative rules committee. They were adopted by the
State and became effective on April 12, 1996, and submitted to USEPA on
April 12, 1996 as a requested revision to the SIP. Although the
requested SIP revision includes both NSR rules and attainment area
rules intended to provide for Prevention of Significant Deterioration
(PSD), at this time USEPA is only rulemaking on the Ohio NSR rules. The
PSD rules will be the subject of a separate action.
[[Page 17671]]
2. General Nonattainment NSR Requirements
The statutory requirements for nonattainment new source review SIPs
and permitting are found at sections 172 and 173 of the CAA. Part D of
title I of the CAA requires States to address a number of nonattainment
NSR provisions in a SIP revision submittal. These statutory
requirements have been supplemented with more detailed regulations
which have been codified at section 51.165 of title 40 of the Code of
Federal Regulations (40 CFR 51.165). What follows is a summary of how
the Ohio submittal addresses and satisfies each of the requirements for
an approvable NSR plan. A more detailed presentation is provided in
this proposed rule only in those areas where the Ohio submittal has not
clearly satisfied the requirements for approval. USEPA's complete
evaluation of the Ohio NSR Plan is contained in a technical support
document which is available at the Region 5 office listed in the
address section of this proposed rule.
a. Ohio has established provisions in response to section 173(a)(1)
of the CAA to assure that calculations of emissions offsets are based
on the same emissions baseline used in the demonstration of Reasonable
Further Progress (RFP). These provisions satisfy USEPA's requirements
for approval.
b. Ohio has established provisions in response to section 173(c)(1)
of the CAA to allow offsets to be obtained in another nonattainment
area if the area has an equal or higher nonattainment classification
and emissions from the other nonattainment area contribute to a NAAQS
violation in the area in which the source would construct. These
provisions satisfy USEPA's requirements for approval.
c. Ohio has established provisions in response to section 173(c)(1)
of the CAA which requires that any emissions offsets obtained in
conjunction with the issuance of a permit to a new or modified source
must be in effect and enforceable by the time the new or modified
source commences operation. These provisions satisfy USEPA's
requirements for approval.
d. Ohio has established provisions in response to section 173(c)(1)
of the CAA to assure that emissions increases from new or modified
sources are offset by real reductions in actual emissions. These
provisions satisfy USEPA's requirements for approval.
e. Section 173(c)(2) of the CAA prevents emission offsets from
being taken from reductions that are otherwise required by the CAA.
Such prohibitions are not expressly identified in Ohio Rule 3745-31-
22(A)(3) Emission Offsets. However, in the general provisions covering
all installation permits, Rule 3745-31-05(A)(2), a permit must not
violate any applicable laws. The term ``applicable laws'' is defined in
Rule 3745-31-01(f) as including provisions of the CAA. The USEPA views
this provision as effectively preventing the State from using emission
offsets from reductions otherwise required by the CAA. Ohio has
confirmed that USEPA's interpretation of the term ``applicable laws'',
is the same interpretation that the State uses in a April 12, 1996
letter; therefore, USEPA believes that this provision of the State rule
satisfies the approval requirements of section 173(c)(2) of the CAA.
f. Ohio has established provisions in response to sections
172(c)(4) and 173(a)(1)(B) of the CAA that reflect changes in growth
allowances; specifically, (1) the elimination of existing growth
allowances in any nonattainment area that received a notice prior to
the amended CAA that the SIP was substantially inadequate or receives
such a notice in the future; and (2) the restriction of growth
allowances to only those portions of nonattainment areas formally
targeted as special zones for economic development. These provisions
satisfy USEPA's requirements for approval.
g. Ohio has provided for the supplying of information from
nonattainment new source review permits to USEPA's Reasonably Available
Control Technology, Best Available Control Technology, Lowest
Achievable Emissions Reduction (RACT/BACT/LAER) clearinghouse in
response to the requirement in section 173(d) of the CAA. This
provision which is contained in the State's workplan of its NSR grant
satisfies USEPA's requirement for approval.
h. Ohio has established provisions in response to section 819 of
the CAA that effectively exempt activities related to stripper wells
from the new additional NSR requirements of subparts 2, 3, and 4 for
Particulate Matter of 10 microns or less (PM-10), Ozone, or Carbon
Monoxide (CO) nonattainment areas classified as serious or less and
having a population of less than 350,000. Although Ohio does not intend
to issue permits to stripper wells, Ohio's rules are consistent with
the requirements of the CAA and satisfy USEPA's requirements for
approval.
i. Ohio has established a definition of ``stationary source'' which
includes internal combustion engines other than the newly defined
category of ``nonroad engines''. This provision is consistent with the
requirements in sections 302(z) and 111(a)(3) of the CAA and,
therefore, approvable.
j. Ohio has established provisions in response to section 173(a)(3)
of the CAA to assure that owners or operators of each proposed new or
modified major stationary source demonstrate, as a condition of permit
issuance, the compliance of all other major stationary sources under
the same ownership in the State. These provisions satisfy USEPA's
requirements for approval.
k. Ohio has established provisions in response to 40 CFR
51.165(a)(3)(ii)(A) to ensure that emissions offset credit will be
allowed only for control below an emission limitation under an
applicable SIP that allows greater emissions than the potential to emit
of a source. These provisions satisfy USEPA's requirements for
approval.
l. Ohio has established provisions in response to 40 CFR
51.165(a)(3)(ii)(B) for existing fuel combustion sources which assure
that emissions credit is based on the allowable emissions under the
applicable SIP for the type of fuel being burned at the time the
application to construct is being filed. The provisions require that
should a source commit to switching to a cleaner fuel in the future,
the permit must be conditioned to require the use of a specified
alternative control measure which would achieve the same degree of
emission reduction should the source switch back to a dirtier fuel.
Adequate supplies of the new fuel must also be available. These
provisions satisfy USEPA's requirements for approval.
m. Ohio has established provisions in response to 40 CFR
51.165(a)(3)(ii)(C) that detail the criteria which must be met in order
for a source to receive credit for emissions reductions achieved by
shutting down an existing source or curtailing production or operating
hours below baseline levels. These provisions satisfy USEPA's
requirements for approval.
n. Ohio has established provisions in response to 40 CFR
51.165(a)(3)(ii)(D) that assure that no emissions credit may be allowed
for replacing one hydrocarbon compound with another with lesser
reactivity. These provisions satisfy USEPA requirements for approval.
o. Ohio has established provisions in response to 40 CFR
51.165(a)(3)(ii)(F) for procedures relating to the permissible location
of offsetting emissions. These provisions satisfy USEPA requirements
for approval.
p. Ohio has established provisions in response to 40 CFR
51.165(a)(3)(ii)(G) to assure that credit for an emission
[[Page 17672]]
reduction can be claimed to the extent that the State has not relied on
it in issuing a permit, preparing an attainment demonstration, or
demonstration of further reasonable progress.
q. Ohio has established provisions in response to 40 CFR
51.165(a)(4) which allow that fugitive emissions may be excluded from
the calculation of the potential of a stationary source or modification
to emit if the source does not belong to any of the source categories
listed in 40 CFR 51.165(a)(4). These provisions satisfy USEPA's
requirements for approval.
r. Ohio has established provisions in response to 40 CFR
51.165(a)(5)(i) to assure that being granted an approval to construct
shall not relieve any owner or operator of the responsibility to comply
fully with applicable provisions of the SIP and under any other
requirements under local, State or Federal law. These provisions
satisfy USEPA's requirements for approval.
s. Ohio has established provisions in response to 40 CFR
51.165(a)(5)(ii) to assure that a source or modification that becomes a
major stationary source or major modification by virtue of a relaxation
in any enforceable limitation would be required to apply the applicable
State rules to the source or modification as though construction had
not yet commenced. These provisions satisfy USEPA's requirements for
approval.
t. Ohio has established provisions in response to 40 CFR 51.165(b)
to assure that the Ohio nonattainment rules would apply to any new
major stationary source or major modification locating in areas
designated as attainment or unclassifiable when it would cause or
contribute to a violation of any national ambient air quality standard.
The new source or modification could alternatively choose to obtain
sufficient emission reductions to compensate for its adverse impact on
ambient air quality. These provisions satisfy USEPA's requirements for
approval.
u. Ohio has made some changes to the existing and previously
approved Rule 3745-3103 (Permit to Install Exemptions). This rule
addresses the cases in which exemptions from the requirement to obtain
a permit to install would be considered by Ohio. These changes are in
four sections: permanent exemptions, federal based exemptions,
discretionary exemptions, and permit-by-rule exemptions. USEPA's
analysis of these provisions is as follows.
A. The introductory paragraph to the permanent exemption section
states that the exemptions ``do not apply to a combination of common
emissions units that are a major stationary source or major
modification.'' USEPA interprets this language to mean that no sources
or modifications that are major under the federal rules would be
excused from the obligation to obtain a permit to install by this
section of the rule.
B. The federal based exemptions section excludes cleanup activities
associated with the Comprehensive Environmental Response, Compensation,
and Liability Act from the requirement to obtain a permit to install.
USEPA considers this approvable.
C. The discretionary exemptions section has been approved in a
previous rulemaking (45 FR 72119).
D. The permit-by-rule exemption section currently applies to one
exemption, emergency electrical generators or emergency fire fighting
water pumps. The equipment size constraints and recordkeeping
conditions of this exemption are consistent with the September 6, 1995
memo from John Seitz to Air Division Directors regarding calculating
potential to emit for emergency generators, and is therefore
approvable.
3. Ozone
According to section 172(c)(5) of the CAA, SIPs must require
permits for the construction and operation of new or modified major
stationary sources. The statutory permit requirements in ozone
nonattainment areas are generally contained in section 173, and in
subpart 2 of part D of the CAA. These are the minimum requirements that
States must include in an approvable implementation plan. For all
classifications of ozone nonattainment areas and for ozone transport
regions, States must adopt the appropriate major source thresholds and
offset ratios, and must adopt provisions to ensure that any new or
modified major stationary source of Oxides of Nitrogen (NOX)
satisfies the requirements applicable to any major source of Volatile
Organic Compounds (VOC), unless a special NOX exemption is granted
by the Administrator under the provision of section 182(f) of the CAA.
For serious and severe ozone nonattainment areas, State plans must
implement sections 182(c)(6), (7) and (8) of the CAA with regard to
modifications.
For emissions of VOC and NOX in ozone nonattainment areas,
Ohio has established the following major source thresholds in Rule
3745-31-01 (Definitions) under the definition of ``Major Stationary
Source'' and offset ratios in Rule 3745-31-26 (Offset Ratio
Requirements) as follows:
------------------------------------------------------------------------
Major source Offset NOX
Area classification threshold ratios provisions
----------------------------------------------------------------\2\-----
Marginal...................... 100 tpy....... 1.1:1 1.1:1
Moderate...................... 100 tpy....... 1.15:1 1.15:1
------------------------------------------------------------------------
\2\ It should be noted that Rule 3745-31-26(B) provides that NOx
emissions from stationary sources shall be treated as a nonattainment
air pollutant in each county that is designated nonattainment for
ozone. The offset requirements for ozone apply to NOX as well except
in areas that have been granted a waiver under section 182(f) of the
CAA. It should be noted that Ohio petitioned for and was granted a NOX
control waiver pursuant to the provisions of section 182(f)(1)(B) of
the CAA because additional NOX reductions would not produce net ozone
air quality benefits. See 60 FR 36051 (July 13, 1995). Since the ozone
nonattainment areas have been granted a NOx waiver under section
182(f), no NOX offsets will be required as long as this waiver remains
in effect.
Ohio does not have any serious, severe, or extreme ozone
nonattainment areas. Butler, Warren, Hamilton, and Clermont are all
designated as moderate ozone nonattainment areas.
Rule 3745-31-01 (Definitions) details that a net emissions increase
for VOC and NOX is significant under the definition of
``significant'' when the increase is greater than 40 tons per year. In
order to establish whether an increase in emissions is significant, the
net emissions increase must be calculated by comparing the average of
the most recent actual emissions of two consecutive years within the
past five year period that is representative of actual emissions unit
operation to the potential emissions of the modification. These
provisions satisfy USEPA's requirements for approval.
4. Carbon Monoxide Nonattainment NSR Requirements
The statutory permit requirements for carbon monoxide (CO)
nonattainment areas are generally contained in section 173, and in
subpart 3 of part D of the CAA. These are the minimum requirements that
States must include in an approvable implementation plan. States must
also adopt the appropriate major source threshold and offset ratio.
Rule 3745-31-01 (Definitions) under the definition of
``significant'' adopts a significance level of 100 tpy for CO. Rule
3745-31-01 (Definitions), under the definition of ``Major Stationary
Source'', adopts a major source threshold level of 100 tpy in a
nonattainment area. The offset requirement of an amount equal to the
amount of emissions increase for CO nonattainment areas would fall
under Rule 3745-31-26. Ohio does not currently have any CO
nonattainment areas. Even though these provisions
[[Page 17673]]
were not required they satisfy USEPA's approval requirements.
5. Particulate Matter Nonattainment NSR Requirements
The statutory permit requirements for PM-10 nonattainment areas are
generally contained in section 173, and in subpart 4 of part D of the
CAA. These are the minimum requirements that States must include in an
approvable implementation plan. For both the moderate and severe
classifications of PM-10 nonattainment areas, States must adopt the
appropriate major source threshold, offset ratio, significance level
for modifications, and provisions for PM-10 precursors.
Ohio has established major source thresholds, offset ratios,
modification significance levels, and PM-10 precursor provisions as
follows:
A. In Rule 3745-31-01 (Definitions), under the definition of
``Major Stationary Source'', a major source threshold level of 100 tpy
in areas classified as nonattainment has been established.
B. A general offset requirement of an amount equal to the amount of
emissions increase is established in Rule 3745-31-26.
C. Rule 3745-31-01 (Definitions) adopts a significance level of 15
tpy for PM-10 under the definition of ``significant''.
D. In accordance with the requirements of section 189 of the CAA,
Rule 3745-31-21 states that major stationary sources of PM-10
precursors shall be subject to the applicable control requirements
except where the Director determines that such sources do not
contribute significantly to the PM-10 levels that exceed the standard
in the area. It should be noted that on May 27, 1994 (59 FR 27464),
USEPA made a finding that PM-10 precursors do not contribute
significantly to PM-10 levels that exceed the standard.
PM precursors are pollutants emitted as gases that undergo
chemical transformations to become particulate, and principally include
sulfates and nitrates. Cuyahoga and a portion of Jefferson County are
designated as a moderate nonattainment area for particulate matter. No
area has been designated as a severe nonattainment area for particulate
matter. These provisions are consistent with USEPA approval
requirements.
6. Sulfur Dioxide Nonattainment NSR Requirements
The statutory permit requirements for sulfur dioxide (SO2)
nonattainment areas are generally contained in section 173, and in
subpart 5 of part D of the CAA. These are the minimum requirements that
States must include in an approvable implementation plan. For SO2
nonattainment areas, States must adopt the appropriate major source
threshold, offset ratio, and significance level for modifications.
The State of Ohio has established a major source threshold level of
100 tpy in Rule 3745-31-01 (Definitions), under the definition of Major
Stationary Source. A general offset requirement of an amount equal to
the amount of emissions increase is established in Rule 3745-31-26.
Rule 3745-31-01 (Definitions) under the definition of ``significant''
adopts a significance level of 40 tpy for SO2. Currently, portions
of Coshocton, Cuyahoga, Gallia, Jefferson, Lake, Lorain, and Lucas
Counties are designated as nonattainment for SO2. Summit County
has no designation pending USEPA action on a remand. These provisions
are sufficient for USEPA approval.
7. Lead Nonattainment NSR Requirements
The statutory permit requirements for lead nonattainment areas are
generally contained in section 173 and in subpart 5 of part D of the
CAA. These are the minimum requirements that States must include in an
approvable implementation plan. For lead nonattainment areas, States
must adopt the appropriate major source threshold, offset ratio, and
significance level for modifications.
Ohio established a major source threshold level for stationary
sources which emit or have the potential to emit 100 tpy of any
pollutant for which the area is designated as nonattainment in Rule
3745-31-01 under the definition of ``Major Stationary Source''. The
offset requirement of an amount equal to the amount of emission
increases would fall under the general definition of Rule 3745-31-26
and is acceptable to USEPA. Under the definition of Significant, Rule
3745-31-01 includes a significance level of 0.6 tpy for lead. There are
no areas of Ohio currently designated as not attaining the lead
standard.
8. Nitrogen Dioxide Nonattainment NSR Requirements
The statutory permit requirements for nitrogen dioxide (NO2)
nonattainment areas are generally contained in section 173, and in
subpart 5 of part D of the CAA. These are the minimum requirements that
States must include in an approvable implementation plan. For
nonattainment areas, States must adopt the appropriate major source
threshold, offset ratio and significance level for modifications.
Although Ohio has no NO2 nonattainment areas it has complied with
these requirements.
The State of Ohio has established a major source threshold level of
100 tpy in Rule 3745-31-01 (Definitions), under the definition of
``Major Stationary Source'' for nonattainment areas. Rule 3745-31-01
(Definitions), under the definition of ``significant'', adopts a
significance level of 40 tpy for nitrogen oxide (NOX). The
NOX offset requirement established in Rule 3745-31-26 states that
the offset requirements for ozone shall also apply to NOX unless a
NOX waiver is granted under section 182(f) of the CAA. NO2 is
considered a NOX so these provisions are also applicable to
NO2. As discussed in footnote 2, a NOX waiver has been
granted for all Ohio ozone nonattainment areas and the waiver
effectively suspends enforcement of these requirements as long as the
waiver remains in effect. These provisions satisfy USEPA's approval
requirements.
9. Miscellaneous Definition Changes
Any definitional changes under Rule 3745-31-01 as compared to the
definitions under 40 CFR 51.165 not specifically mentioned in this
proposed rule are not significant.
The definition of ``Building, Structure, Facility, or
Installation'' and ``Stationary Source'' in 40 CFR 51.165 have been
combined under the definition of ``Stationary Source'' under Rule 3745-
31-01. This combination of definitions satisfies USEPA's requirements
for approval.
The definition of ``Major Modification'' under Rule 3745-31-01 does
not provide for the exemptions allowed under 51.165 (a)(1)(v)(C) (8)
and (9) pertaining to pollution control projects and clean coal
technology demonstration projects. USEPA considers the absence of these
exemptions to be more stringent than the Federal definition and is,
therefore, approvable.
Ohio has chosen to omit the definition of ``electric utility steam
generating unit'' and the related definition of ``Representative Actual
Annual Emissions'' from 40 CFR 51.165 (a)(1) (xx) and (xxi) since those
terms are not used within the Ohio NSR rules. Electric utility steam
generating units under the Federal definition would be required by Ohio
rules to follow the same permitting process and applicable baseline
calculations as other source categories. In other words, Ohio has not
given electric utility steam generating units the additional
flexibility that the Federal rules would otherwise allow. On this point
the State rule is more
[[Page 17674]]
stringent than the Federal requirement and, therefore, approvable.
Under the definition of ``Actual Emissions'' in Rule 3745-31-01,
Ohio has not provided for a separate interpretation of actual emissions
for electric steam generating units provided for in 40 CFR
51.165(a)(1)(xii)(E). This omission is acceptable to USEPA and
approvable.
The definitions of ``Temporary Clean Coal Technology Demonstration
Project'' and ``Clean Coal Technology Demonstration Project'' are
contained in Rule 3745-31-21 as opposed to Ohio's Rule which holds the
definitions (3745-31-01). The placement of these definitions is
acceptable to USEPA and approvable.
The definition of ``Pollution Control Project'' from 40 CFR 51.165
(a)(1)(xxv) has been omitted from the Ohio rules although the term is
utilized in the definitions of ``modify'' and ``modification''.
Inclusion of the Federal definition of this term is a mandatory
requirement for Federal approval of the Ohio NSR requested SIP revision
unless the State demonstrates that the definition used in the State
rule is more or equally stringent as the Federal definition. Because
Ohio has not used this term in its NSR rule, it has not satisfied this
requirement. In an April 12, 1996 transmittal letter of Ohio's finally
adopted NSR rules to USEPA, Ohio has committed to modify its NSR rules
to incorporate the definition of ``Pollution Control Project'' not
later than September 21, 1997. Based on this commitment, USEPA proposes
approval of the Ohio NSR rules.
Each time Ohio used the term regulated pollutant in their rules,
such as the definitions of ``Major Stationary Source'' and
``Significant,'' the term is qualified with the statement ``including
lead compounds but excluding other air pollutants regulated due to
being listed under section 112 of the CAA''.
This statement is consistent with section 112(b)(6) of the CAA and
is, therefore, approvable.
III. Proposed Rulemaking Action
As stated above, the Ohio NSR submittal contains one deficiency
which is sufficient to serve as a basis for USEPA disapproval of the
State's requested SIP revision. Furthermore, two interpretations listed
in e. and u. of II(A)(1) could be a disapproval item in the absence of
State concurrence with USEPA's interpretation. Because, however, the
State has committed to remedy the deficiency identified not later than
September 21, 1997 and agreed that USEPA's interpretations of the State
rules are consistent with the State's own interpretations, USEPA
proposes to conditionally approve the requested SIP revision.
Conditional approval would allow the State one year from final
rulemaking to remedy the deficiencies identified above. If the State
remedies the deficiencies prior to the one year deadline, USEPA will
rulemake to convert the conditional approval to an approval. If the
State does not remedy the deficiencies within the allowed one year
period, the conditional approval will become a disapproval.
The rules proposed for conditional approval in this rulemaking
action are OAC 3745-31-01(A)(B)(C)(D)(E)(F)
(G)(H)(I)(J)(K)(L)(M)(N)(O)(Q)(R)(S)(V)(W)(X)(Y)(Z)(AA)(BB)(CC)
(DD)(EE)(FF)(GG)(HH)(II)(JJ)(KK)(LL)(MM)(NN)(OO)(PP)(SS)(TT)(WW)
(XX)(YY)(ZZ)(BBB)(DDD), 3745-31-02(A)(2)(C)(D), 3745-31-03
(A)(1)(2)(a)(3)(4), 3745-31-05(A)(2)(d)(f)(D)(F), 3745-31-09, 3745-31-
10, 3745-31-21, 3745-31-22, 3745-31-23, 3745-31-24, 3745-31-25, 3745-
31-26, 3745-31-27.
IV. Impact on Sanctions
In a final rule published on September 21, 1994 (59 FR 48392),
USEPA disapproved Ohio's August 20, 1993 submittal of a requested SIP
revision for NSR. That final rule initiated USEPA's sanction process as
discussed in USEPA's August 4, 1994 (59 FR 39832) Final Rule and Notice
on CAA Sanctions. This August 4, 1994 final rule finalized USEPA's
selection of sequence of mandatory sanctions for findings made pursuant
to section 179 of the CAA. See 59 FR 39832. This rulemaking states that
the section 179(b)(2) of the CAA offset sanction applies in an area 18
months from the date when the USEPA makes a finding under section
179(a) of the CAA with regard to that area. Furthermore, the section
179(b)(1) of the CAA highway funding restrictions apply in an area 6
months following application of the offset sanction. Because the
effective date of USEPA's disapproval of Ohio's earlier NSR SIP
revision request is October 21, 1994, the requirement for-two-for one
offsets of sources receiving permits for major new sources or
modifications located in Ohio nonattainment areas is scheduled to begin
April 21, 1996. Similarly the start date for imposing highway funding
sanctions is October 21, 1996. Any sanction USEPA imposes must remain
in place until USEPA determines that the State has come into
compliance.
Because USEPA is proposing to conditionally approve Ohio's
requested NSR SIP submittal, in the rules section of this Federal
Register the USEPA is issuing an interim final determination that the
Ohio has corrected the deficiency created when the USEPA disapproved
the Ohio requested SIP revision for NSR. This interim determination is
intended to defer the application of the two-for-one offset and highway
funding sanctions until USEPA makes a final determination on the Ohio's
NSR submittal.
V. Request for Public Comments
The USEPA is requesting comments on all aspects of the requested
SIP revision and USEPA's proposed rulemaking action. Comments received
by the date indicated above will be considered in the development of
USEPA's final rulemaking action.
VI. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866 review.
VII. Regulatory Flexibility
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
subchapter I, part D of the CAA 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 does 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.
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
[[Page 17675]]
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 SIP's on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (S.Ct 1976); 42 U.S.C. 7410(a)(2).
VIII. Unfunded Mandates
Under sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,
USEPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to a State,
local and/or tribal government(s) in the aggregate. The USEPA must also
develop a plan with regard to small governments that would be
significantly or uniquely affected by the rule.
Because this proposed rule if finally adopted is estimated to
result in the expenditure by State, local and tribal governments or the
private sector of less than $100 million in any one year, USEPA has not
prepared a budgetary impact statement or specifically addressed the
selection of the least costly, most cost effective, or least burdensome
alternative and because small governments will not be significantly or
uniquely affected by this rule, USEPA is not required to develop a plan
for small governments. Further, this proposed rule if finally adopted
only approves existing State regulations; it imposes no new
requirements.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, New source review, Nitrogen dioxide,
Particulate matter, Lead, Carbon monoxide, Reporting and recordkeeping
requirements, Sulfur dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 15, 1996.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 96-9914 Filed 4-19-96; 8:45 am]
BILLING CODE 6560-50-P
