[Federal Register Volume 61, Number 95 (Wednesday, May 15, 1996)]
[Rules and Regulations]
[Pages 24457-24460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12119]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH16-3-7264a; FRL-5439-4]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: On August 23, 1994, the United States Environmental Protection
Agency (USEPA) granted conditional approval of revisions to the
emission limitations, compliance methodologies, and compliance time
schedules in Ohio's State Implementation Plan (SIP) for sulfur dioxide
(SO2) as it applies to Hamilton County. The outstanding condition
has been addressed, and USEPA is now fully approving the Hamilton
County, Ohio, SO2 SIP. Submitted by Ohio in response to modeling
analyses which predicted violations of the SO2 National Ambient
Air Quality Standards (NAAQS) due to Hamilton County sources, this SIP
has been demonstrated to provide for attainment and maintenance of the
SO2 NAAQS in Hamilton County.
DATES: This action will be effective on July 15, 1996 unless adverse or
critical comments not previously addressed by the State or USEPA are
received by June 14, 1996. If the effective date is delayed, timely
notice will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer,
Chief,
[[Page 24458]]
Regulation Development Section, Air Programs Branch (AR-18J), United
States Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal and USEPA's analysis (Technical
Support Document) are available for inspection at the following
location: United States Environmental Protection Agency, Region 5, Air
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois
60604. (It is recommended that you telephone Mary Onischak at (312)
353-5954 before visiting the Region 5 Office.)
FOR FURTHER INFORMATION CONTACT: Mary Onischak at (312) 353-5954.
SUPPLEMENTARY INFORMATION:
I. Background
On October 16, 1991, Ohio submitted SO2 SIP revisions to USEPA
for Hamilton County, Ohio. The State submitted a package on March 17,
1993, which further amended these SIP revisions. The SIP revisions were
intended to provide for attainment of the National Ambient Air Quality
Standards (NAAQS) for SO2, in response to a December 22, 1988,
letter in which USEPA notified the Governor of Ohio that the SO2
SIP was substantially inadequate to maintain the SO2 NAAQS in
Hamilton County. USEPA's notification was based on predicted violations
of the SO2 standards due to SO2 sources located in Hamilton
County, Ohio. Ohio's SIP package included revisions to Ohio
Administrative Code (OAC) 3745-18-03 Attainment Dates and Compliance
Time Schedules, OAC 3745-18-04 Measurement Methods and Procedures, and
OAC 3745-18-37 Hamilton County Emission Limits, supplemented by an
administrative order for Cincinnati Gas and Electric's Miami Fort
facility. Ohio's submittal, including the background information,
attainment demonstration, and compliance methodologies, is discussed in
detail in the January 27, 1994, proposed conditional approval (59 FR
3809). Comments on the proposed conditional approval were addressed in
the August 23, 1994, final conditional approval (59 FR 43287).
II. Conditional Approval Issue
The Hamilton County SO2 SIP was conditionally approved by
USEPA because of an issue related to the air dispersion modeling
analysis submitted by Ohio to demonstrate that the revised SO2 SIP
limits would ensure attainment of the SO2 NAAQS in the Hamilton
County area. The State's modeled attainment demonstration is discussed
in detail in USEPA's 1994 proposed and final rulemaking actions. The
techniques used in the attainment demonstration were set forth in a
modeling protocol approved by USEPA. Because Hamilton County borders
Indiana and Kentucky, the attainment demonstration considered the air
quality impacts of SO2 sources in those States, as well as
SO2 sources in Ohio. During the development of the attainment
demonstration, a modeled violation was predicted near the Joseph E.
Seagram and Sons, Inc., (Seagram) facility in adjacent Dearborn County,
Indiana. The Seagram facility was determined to be the main contributor
to the modeled violation, but facilities located in Hamilton County
also contributed to the violation. Since the Ohio sources were
partially implicated in the Indiana violation, USEPA could not accept
Ohio's attainment demonstration until the predicted violation had been
addressed.
A solution to the attainment problem involved a restriction on the
usage of sulfur-bearing fuels at the Seagram facility. Preliminary
modeling showed that when Seagram's Boilers 5 and 6 were not
simultaneously burning such sulfur-bearing fuels as coal or fuel oil,
the SO2 standards would not be violated. Seagram had, in fact,
been operating in this manner for several years. Seagram agreed, in a
September 1, 1992 letter to Ohio and Indiana, that it would not operate
the two boilers simultaneously on sulfur-bearing fuels without written
approval from both State Agencies (the Ohio Environmental Protection
Agency and the Indiana Department of Environmental Management).
However, because Seagram's letter did not create a federally
enforceable limitation, USEPA required that the State of Indiana adopt
the Seagram restriction and submit it to USEPA as a revision to the
Indiana SO2 SIP.
On the basis of Seagram's September 1, 1992 commitment, Ohio
submitted supplementary modeling data to USEPA which demonstrated that
if the Seagram facility did not operate the two boilers simultaneously
on coal or fuel oil, the predicted SO2 NAAQS violation in Dearborn
County would be eliminated. USEPA has reviewed this modeling and
determined that it is acceptable. Because USEPA had determined that the
emission limits and control measures in the SO2 SIP revision for
Hamilton County would be enforceable and would provide for attainment
of the SO2 NAAQS, USEPA proposed to conditionally approve the
Hamilton County SO2 SIP while the State of Indiana proceeded with
the Seagram rulemaking.
USEPA's proposal to conditionally approve the Hamilton County, Ohio
SIP revisions was published on January 27, 1994 (59 FR 3809). USEPA
finalized the conditional approval action on August 23, 1994 (59 FR
43287). USEPA indicated in the final conditional approval that the
Hamilton County, Ohio SIP revisions would be approved in full if
Indiana submitted a federally approvable SIP revision for Seagram by
September 23, 1995. It was anticipated that an approvable Indiana limit
would be formalized in the allotted time and as a result, the Ohio
revised rules would remain a part of the SIP.
The USEPA notified the State of Indiana in a January 5, 1994,
letter that the Seagram limits must be incorporated into the Indiana
SO2 SIP. On August 25, 1995, Indiana submitted to USEPA a site-
specific SO2 SIP revision request which provided that when
Seagram's Boilers 5 and 6 were being operated simultaneously, only one
boiler would use coal or fuel oil. USEPA published a direct final
approval of Indiana's SIP revision for Seagram on February 9, 1996 (61
FR 4897). Therefore, USEPA is now able to fully accept Ohio's modeled
attainment demonstration and finalize the Hamilton County SO2 SIP
approval. (Adverse or critical comments received on the Seagram SIP
revision may affect the effective date of approval of the Hamilton
County, Ohio SO2 SIP.)
III. Final Rulemaking Action
The USEPA is approving Ohio's October 16, 1991, and March 17, 1993,
Hamilton County SO2 SIP revisions because the approval condition
cited in the Federal Register on August 23, 1994 (59 FR 43287) has been
satisfied. The State of Indiana submitted acceptable SO2 SIP
revisions, as required, and USEPA approved them in a direct final
action on February 9, 1996 (61 FR 4897). As indicated in the August 23,
1994, conditional approval, the USEPA has determined that the Ohio
SO2 SIP revisions for Hamilton County satisfy section 110(A)(2) of
the Clean Air Act and are fully approvable at this time. It is
important to note that if USEPA receives adverse or critical comments
on the SO2 SIP revision for Seagram, the receipt of such comments
may affect the effective date of USEPA's approval of the Hamilton
County, Ohio SO2 SIP.
The USEPA is publishing this action without prior proposal because
USEPA views this action as a noncontroversial revision and anticipates
no adverse comments. However, the rulemaking will not be deemed final
if timely unaddressed adverse or critical
[[Page 24459]]
comments are filed. The ``direct final'' approval shall be effective on
July 15, 1996, unless USEPA receives such adverse or critical comments
by June 14, 1996. The USEPA is now soliciting public comments on this
action. Any parties interested in commenting on this action should do
so at this time. In the proposed rules section of this Federal
Register, USEPA is publishing a separate document which constitutes a
``proposed approval'' of the requested SIP revision. If warranted by
comments adverse to or critical of the approval discussed above, which
have not been addressed by the State or USEPA, USEPA will publish a
Federal Register document which withdraws the final action. The USEPA
will then address public comments received in a subsequent rulemaking
document based on the proposed approval.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The USEPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. (5 U.S.C. 603 and 604.)
Alternatively, USEPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the Clean Air Act, preparation of a regulatory flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Clean Air Act forbids USEPA to
base its actions concerning SIPs on such grounds.Union Electric Co. v.
USEPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act''), signed into law on March 22, 1995, requires that the
USEPA prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure by
State, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more in any one year. Section 203 requires
the USEPA to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly
or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the USEPA must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The USEPA must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the USEPA explains why this
alternative is not selected or the selection of this alternative is
inconsistent with law.
This rule only approves the incorporation of existing state rules
into the SIP. It imposes no additional requirements. Because this final
rule is estimated to result in the expenditure by State, local, and
tribal governments or the private sector of less then $100 million in
any one year, the USEPA has not prepared a budgetary impact statement
or specifically addressed the selection of the least costly, most cost-
effective, or least burdensome alternative. Because small governments
will not be significantly or uniquely affected by this rule, the USEPA
is not required to develop a plan with regard to small governments.
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 July 15, 1996. 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, Sulfur oxides.
Note: Incorporation by reference of the State Implementation
Plan for the State of Ohio was approved by the Director of the
Federal Register on July 1, 1982.
Dated: February 14, 1996.
David A. Ullrich,
Acting Regional Administrator.
For the reasons set forth in the preamble 40 CFR part 52 is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart KK--Ohio
2. Section 52.1870 is amended by adding paragraph (c)(92) to read
as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(92) On October 16, 1991, and March 17, 1993, the Ohio
Environmental Protection Agency (OEPA) submitted revisions to the State
Implementation Plan for sulfur dioxide for sources in Hamilton County,
Ohio.
(i) Incorporation by reference.
(A) Ohio Administrative Code (OAC) Rule 3745-18-03 Attainment dates
and compliance time schedules, Sections (A)(2)(c); (B)(7)(a);
(B)(7)(b); (C)(8)(a); (C)(8)(b); (C)(9)(a); (C)(9)(b); (D)(1); (D)(2);
dated October 11, 1991, and effective on October 31, 1991.
(B) Ohio Administrative Code (OAC) Rule 3745-18-04 Measurement
methods and procedures, Sections (D)(7); (D)(8)(a) to (D)(8)(e);
(E)(5); (E)(6)(a); (E)(6)(b); (F); (G)(1) to (G)(4); (I); dated October
11, 1991, and effective on October 31, 1991.
(C) Ohio Administrative Code (OAC) Rule 3745-18-37, Hamilton county
emission limits, dated February 22, 1993, and effective on March 10,
1993.
(D) Director's Final Findings and Order for Cincinnati Gas and
Electric Company, Miami Fort Station, dated February 22, 1993.
* * * * *
3. Section 52.1919 is revised to read as follows.
[[Page 24460]]
Sec. 52.1919 Identification of plan-conditional approval.
(a) The plan commitments listed below were submitted on the dates
specified.
(1) [Reserved]
(2) On April 20, 1994, Ohio submitted Rule 3745-35-07, entitled
``Federally Enforceable Limitations on Potential to Emit,'' and
requested authority to issue such limitations as conditions in State
operating permits. On June 16, 1994, Ohio submitted a commitment to
revise Rule 3745-35-07 to clarify that the rule provides for USEPA
objection to permits after issuance. The revisions are approved
provided Ohio fulfills this commitment by October 25, 1995.
(i) Incorporation by reference.
(A) Rule 3745-35-07, adopted April 4, 1994, effective April 20,
1994.
(b) (Reserved)
[FR Doc. 96-12119 Filed 5-14-96; 8:45 am]
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