[Federal Register Volume 59, Number 102 (Friday, May 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12919]
[[Page Unknown]]
[Federal Register: May 27, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH29-1-6066; FRL-4854-9]
Approval And Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: On November 14, 1991, Ohio submitted major revisions to its
particulate matter regulations to make its State Implementation Plan
(SIP) consistent with its Statewide regulations and to satisfy Clean
Air Act requirements for the Cleveland and Steubenville nonattainment
areas. Ohio submitted supplemental material on December 4, 1991, and
January 8, 1992. USEPA published a notice of proposed rulemaking on
August 3, 1993, at 58 FR 41218. Six letters were submitted commenting
on this proposal. Although several commenters requested delay of this
final rulemaking, such delay is impermissible under section 110(k) of
the Act. USEPA has reviewed the submitted comments, and is taking final
action granting limited approval/limited disapproval as proposed, i.e.
approving all regulations except for two paragraphs, but determining
that the plan does not fully satisfy requirements under Part D of Title
I of the Act for the Cleveland and Steubenville areas. If the relevant
deficiencies are not remedied within 18 months, the first of the two
sanctions pursuant to section 179(b) of the Clean Air Act will take
effect.
DATE: This action is effective June 27, 1994.
ADDRESSES: Copies of the State's submittals, the public comment
letters, and USEPA's technical support document of February 24, 1994
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.
A copy of this revision to the Ohio SIP is available for inspection
at: U.S. Environmental Protection Agency, Attn: Jerry Kurtzweg (6102),
401 M Street SW., Washington, DC 20460.
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
Ohio submitted major revisions to its particulate matter
regulations on November 14, 1991, with supplemental submittals on
December 4, 1991, and January 8, 1992. USEPA published notice of
proposed rulemaking on August 3, 1993, at 58 FR 41218, proposing
limited approval of these submittals. The notice of proposed rulemaking
includes a history of requirements and State submittals, a description
of Ohio's submittal, a review of each submitted regulation, and reviews
of whether requirements in section 189 (including requirements for
attainment demonstrations and reasonably available control measures
(RACM)) and elsewhere in the Clean Air Act are satisfied, concluding
with a delineation of the proposed action. For convenience, this
section will provide highlights of relevant history and the next
section will repeat the description of the State submittal that was
provided in the notice of proposed rulemaking. A third section will
summarize the remainder of the notice of proposed rulemaking, including
the proposed action. A fourth section of today's notice will summarize
and review the public comments on the notice of proposed rulemaking.
The final section of discussion in this notice will describe the final
action on the State's submittal.
Ohio submitted its original SIP for particulate matter on January
31, 1972, and submitted substantial revisions on August 4, 1972. USEPA
approved the plan and the revisions, most notably including several
regulations in Chapter AP-3 (Particulate Matter Standards), on April
15, 1974, at 39 FR 13539. Revisions to AP-3-04, submitted on January
25, 1974, were approved on September 23, 1976, at 41 FR 41692. On
August 10, 1976, Ohio submitted EP-12 (Open Burning), which USEPA
approved on February 3, 1978, at 43 FR 4611.
Although the State provided various submittals between June 1980
and March 1985, and USEPA proposed rulemaking to approve these
revisions on January 2, 1987 (52 FR 91), these submittals were
subsequently withdrawn and no Statewide revisions were approved into
the SIP. Thus, with the exception of a small number of source-specific
limitations, the previously approved Ohio SIP for particulate matter
reflects the rules approved in 1974 and 1976, i.e. the 1972 version of
the rules now codified in Ohio Administrative Code (OAC) Chapter 3745-
17 (Particulate Matter Standards) and the 1976 version of the rules now
codified in OAC Chapter 3745-19 (Open Burning Standards).
On July 1, 1987, USEPA revised the National Ambient Air Quality
Standards (NAAQS) for particulate matter, refocussing the standard on
smaller particles. Pursuant to the Clean Air Act Amendments of 1990,\1\
Cuyahoga County and the Steubenville area (including portions of
Jefferson County, Ohio, and Brooke County, West Virginia) were
designated nonattainment for this revised standard, and the State was
required to submit plan revisions to assure attainment, require RACM,
and satisfy other requirements for these two areas.
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\1\The 1990 Amendments to the Clean Air Act made significant
changes to the Air quality planning requirements for areas that do
not meet (or that significantly contribute to ambient air quality in
a nearby area that does not meet) the particulate matter national
ambient air quality standards (see Pub. L. No. 101-549, 104 Stat.
2399). References herein are to the Clean Air Act, as amended, 42
U.S.C. sections 7401 et seq.
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II. Description of Ohio's Submittal
The State's submittal of November 14, 1991, as supplemented
December 4, 1991, and January 8, 1992, consisted of two principal
elements: (1) Statewide regulations, and (2) additional regulations,
emissions, and modeling information for Cuyahoga County and the
Steubenville area. The Statewide regulations, submitted pursuant to
Section 110, reflect substantial revisions to the 1974 regulations
presently in the SIP, and constitute the regulations that are presently
maintaining the air quality standards in much of the State. The
materials relating to the Cuyahoga County and Steubenville
nonattainment areas were submitted pursuant to Part D of Title I of the
Act, and include the more stringent regulations that Ohio identified as
needed to attain the standards in these areas.
The regulations submitted by Ohio include all of the rules in OAC
Chapter 3745-17 except Rule 3745-17-05 (``Nondegradation policy'') and
all rules in OAC Chapter 3745-75. (Rule 3745-17-06 contains no language
and is reserved.) The specific submitted rules in Chapter 3745-17
(Particulate Matter Standards) and associated titles are as follows:
Rule 3745-17-01--Definitions
Rule 3745-17-02--Ambient air quality standards
Rule 3745-17-03--Measurement methods and procedures
Rule 3745-17-04--Compliance time schedules
Rule 3745-17-07--Control of visible particulate emissions from
stationary sources
Rule 3745-17-08--Restriction of emission of fugitive dust
Rule 3745-17-09--Restrictions on particulate emissions and odors
from incinerators
Rule 3745-17-10--Restrictions on particulate emissions from fuel
burning equipment
Rule 3745-17-11--Restrictions on particulate emissions from
industrial processes
Rule 3745-17-12--Additional restrictions on particulate emissions
from specific air contaminant sources in Cuyahoga County
Rule 3745-17-13--Additional restrictions on particulate emissions
from specific air contaminant sources in Jefferson County
Rule 3745-17-14--Contingency plan requirements for Cuyahoga and
Jefferson Counties
The specific submitted rules in Chapter 3745-75 (Infectious Waste
Incinerator Limitations) and associated titles are as follows:
Rule 3745-75-01--Applicability and definitions
Rule 3745-75-02--Emission limits
Rule 3745-75-03--Design parameters and operating restrictions
Rule 3745-75-04--Monitoring requirements
Rule 3745-75-05--Recordkeeping
Rule 3745-75-06--Certification and compliance time schedules
Rules 3745-17-01 through 3745-17-11 and Rules 3745-75-01 through
3745-75-06 apply Statewide. Rule 3745-17-12 applies only to selected
sources in Cuyahoga County. Rule 3745-17-13 applies only to selected
sources in Jefferson County. Rule 3745-17-14 applies only to identified
sources in Cuyahoga and Jefferson Counties.
A second group of elements of Ohio's submittal is the documentation
of the State's demonstration that the regulations provide for
attainment in Cuyahoga County and in the Steubenville area, including a
comprehensive emissions inventory and documentation of a dispersion
modeling analysis. A third group of elements in Ohio's submittal is
administrative and regulatory material, principally to demonstrate the
adequacy of the State's rule adoption process.
III. Summary of Review in Notice of Proposed Rulemaking
The notice of proposed rulemaking provided a regulation-by-
regulation review of the State's submittal. Since the public comments
did not question the review of most of these regulations, this review
is not repeated here. The test method for measuring solids in quench
water, given in Rule 3745-17-03(B)(10)(c), was found not approvable
because the provision for monthly averaging provides insufficient
limitation on 24 hour average emissions levels and allows noncompliance
with the limit for a majority of the time. The quench water limit in
Rule 3745-17-12(P)(6)(a) was found not approvable simply because it is
inseparable from the unapprovable test method in Rule 3745-17-
03(B)(10)(c). Otherwise, the conclusion of this review was that all
regulations are approvable.
The stack opacity provisions of Rule 3745-17-07(A) contain several
provisions allowing sources to claim exemptions from the applicable
opacity limitation due to factors such as malfunction, startups,
shutdowns, soot blowing, and ash pulling. Generally, under the CAA and
U.S. EPA policy, sources are required to meet, without interruption,
all applicable emission limitations and other control requirements. For
an exemption from such requirement of continuous compliance to be
justified, the source must prove that an exemption applies and that the
violation could not have been prevented.
In accordance with these principles, USEPA has conducted a further
evaluation of various aspects of the stack opacity provisions of Rule
3745-17-07(A). This rule provides that stacks must generally exhibit 20
percent opacity or less, except for one 6-minute period of up to 60
percent opacity. Exempted from these limitations are restricted
conditions of malfunctions, startups, shutdowns, soot blowing, and ash
pulling. The rule authorizing the exemptions is approvable so long as
it is interpreted and applied consistently with the requirements of the
CAA and U.S. EPA policy regarding such exemptions.
In the case of malfunctions, the exemption is not available unless
the malfunction was unavoidable and unless the source has notified the
State of the claimed malfunction, demonstrated that it performed proper
operation and maintenance, and met various other conditions. USEPA
policy requires such regulations to place the burden of proof on the
source to demonstrate that the conditions for applicability of the
malfunction exemption are met, including: that the claimed malfunction
was caused by circumstances entirely beyond the control of the source;
could not have been prevented through installation of proper control
equipment, or through proper operation and maintenance procedures; and
that any activity which is or should be planned, or can be foreseen and
avoided, is not properly excused as a malfunction. USEPA interprets
Ohio's regulation to place this burden of proof appropriately on the
source. In accordance with USEPA policy, USEPA interprets Ohio's
regulation to provide that the enforcement authority (Ohio EPA, USEPA,
or both) must then evaluate whether the exemption has in fact been
demonstrated to apply.
Similarly, in the case of startups and shutdowns, an exemption from
the general opacity limit is available only until flue gas temperature
reaches 250 deg.F or for a 3-hour period, depending on the control
equipment in place. In cases where a source claims high opacity values
are to be exempted, USEPA interprets Ohio's rule to place the burden on
the source to document, based on temperature or operation records as
appropriate, that the exemption applies. USEPA also interprets the
exemption for soot blowing and ash handling to apply only if the source
can provide documentary evidence to demonstrate to the satisfaction of
the enforcement agency (Ohio EPA, USEPA, or both) that the exemption
criteria are satisfied.
USEPA is approving the rule containing above types of exemptions
based specifically on these interpretations of Ohio's rules, and with
the understanding that the exemptions are to be strictly interpreted,
as well as applied in a method that is consistent with the prohibition
of relaxation of existing control requirements in section 193 of the
CAA, 42 U.S.C. 7515. For further guidance on interpretation of
exemptions see 42 FR 21472 (April 27, 1977).
Additionally, with regard to the above exemptions, U.S. EPA will
treat the submission of any incomplete or erroneous information by a
source as a violation of this regulation, and will not allow an
exemption supported by such information. U.S. EPA's action does not
constitute advance approval of any exemptions which may be claimed or
issued under Ohio's regulations. Thus, U.S. EPA may take independent
enforcement action to the extent allowed by sections 113 and any other
applicable provisions of the CAA, notwithstanding the issuance of an
exemption by the State.
The fourth section of the notice of proposed rulemaking provided a
review of whether the submittal satisfied the requirements of section
189. These requirements apply to plans for particulate matter
nonattainment areas, which in Ohio include Cuyahoga County and a
portion of Jefferson County in and near Steubenville. Section
189(a)(1)(A) requires a suitable new source review program, and is
being addressed in a separate rulemaking. Section 189(a)(1)(B) requires
a demonstration that the plan will provide for attainment no later than
December 31, 1994, or, alternatively, a demonstration that attainment
by this date is impracticable. Section 189(a)(1)(C) requires the
implementation of RACM by December 10, 1993. Finally, Section 189(e)
provides that ``control requirements * * * for major stationary sources
of PM-10 shall also apply to major stationary sources of PM-10
precursors, except where the Administrator determines that such sources
do not contribute significantly to PM-10 levels which exceed the
standard in the area.''
The notice of proposed rulemaking provided a lengthy review of the
attainment demonstrations for Cuyahoga County and the Steubenville
areas. This discussion included a detailed description of the limits
and means of estimating corresponding allowable emissions from stack
sources, process fugitive sources, and open dust sources, as well as
the modeling procedures used to evaluate the air quality impacts of
these emissions. Although the State used appropriate estimates of
emissions allowed under applicable limitations for most sources, the
emissions estimates for a few sources in the Steubenville area were
found to significantly underestimate the emissions permitted by the
applicable regulations. The notice discussed emissions from Wheeling-
Pittsburgh Steel's basic oxygen furnace (BOF) in particular detail, as
well as discussing coke oven emissions and condensible particulate
matter. Most aspects of the dispersion modeling analysis were found
acceptable. However, the notice referenced various deficiencies in both
the emissions inventory and modeling analysis identified in the
technical support documents for this rulemaking, including improper
selection of an allowable emissions rate for certain boilers, use of
urban dispersion coefficients in modeling area sources, and inadequate
consideration of complex terrain. Based on a further modeling analysis,
USEPA proposed to find that the Cuyahoga County plan assures
attainment, provided the State makes its quench water limit fully
enforceable, but that the Steubenville area plan does not assure
attainment.
The next element of the notice of proposed rulemaking concerned the
requirement for RACM. In accordance with the ``General Preamble,''
published April 16, 1992, at 57 FR 13498, USEPA believes this
requirement can be satisfied without full implementation of all
potentially reasonably available control measures, provided attainment
is assured by the RACM deadline of December 10, 1993, and provided
attainment could not be expedited by more rapid implementation of
measures. (See 57 FR 13543.) For most of Cuyahoga County, these
provisos were found met, and the RACM requirement accordingly
satisfied. However, for Ford Motor Company's Cleveland Casting Plant,
certain measures necessary for attainment were not required to be
implemented until the end of 1994, nor did the State demonstrate that
measures required by December 1993 represent the full set of reasonably
available control measures. On the other hand, USEPA concluded that the
Steubenville area plan did require the full set of reasonably available
control measures by December 1993.
The final element of the discussion of Section 189 requirements
concerned provisions in Section 189(e) relating to particulate matter
precursors. The conclusion of this discussion was that such precursors
do not contribute significantly to particulate matter concentrations
which exceed the standard in either area.
A fifth section of the notice of proposed rulemaking evaluated
whether Ohio's submittals satisfied other Clean Air Act requirements.
The principal relevant requirements beyond those of Section 189 are
found in section 172(c). The following table summarizes the
requirements in each paragraph under section 172(c) and the conclusion
in the notice of proposed rulemaking as to whether each requirement is
satisfied in each of the two nonattainment areas:
----------------------------------------------------------------------------------------------------------------
Section Requirement Conclusion of review
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172(c)(1) RACM.............................. Satisfied in Jefferson but not in Cuyahoga.
172(c)(2) RFP............................... Satisfied in Cuyahoga\2\ but not in Jefferson.
172(c)(3) Suitable inventory................ Satisfied in Cuyahoga\2\ but not in Jefferson.
172(c)(4) Growth margin..................... Satisfied in both areas.
172(c)(5) Suitable permit program........... Not addressed in this rulemaking.
172(c)(6) Enforceability.................... See text.
172(c)(7) Proper adoption................... Satisfied in both areas.
172(c)(8) Equivalent procedures............. Not applicable to either area.
172(c)(9) Contingency plans................. Not addressed in this rulemaking.
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\2\The proposed approval with respect to these paragraphs was contingent on suitable revision of the test method
for the coke quenching limit.
Section 172(c)(6), which requires that limitations sufficient to
provide for attainment be enforceable by the State and USEPA, was found
to be satisfied with respect to all but two paragraphs (relating to
quench water quality) for Cuyahoga County2 and was found not to be
satisfied for the Steubenville area.
The final element in the notice of proposed rulemaking was a
delineation of the proposed rulemaking action. The action proposed was
limited approval. Specifically, USEPA proposed to approve all of the
regulations except for the two paragraphs noted above relating to
quench water quality, i.e. paragraph (B)(10)(c) of Rule 3745-17-03 and
paragraph (P)(6)(a) of Rule 3745-17-12. At the same time, USEPA
proposed to approve these paragraphs if the test method is revised to
provide either a single day limit or weekly averaging of 5 days'
samples.
USEPA also proposed to find that the State's submittals satisfy
several Part D requirements. Most notably, USEPA proposed to find that
the Cuyahoga County plan satisfied the requirement to assure
attainment, provided that the limitation on coke quench water quality
is made properly enforceable, and proposed to find that the
Steubenville area plan satisfied the requirement for timely RACM.
However, USEPA proposed to find that certain requirements of Part D
were not satisfied for these two areas. Most notably, USEPA proposed to
find that the Cuyahoga County plan did not satisfy the requirement for
timely RACM, and proposed to find that the Steubenville area plan did
not satisfy the requirement for assuring attainment. The notice of
proposed rulemaking indicated that the RACM requirement would be
satisfied in Cuyahoga County if attainment were assured by December
1993, which would be the case if the measures currently required at
Ford by December 1994 were to be required by December 1993 and the
quench test method were revised. Finally, USEPA proposed to determine
that sources of particulate matter precursors do not presently
contribute significantly to violations of the particulate matter
standard in Ohio.
IV. Summary and Review of Comments
Six letters were submitted commenting on this proposal, including
letters from the Ohio Environmental Protection Agency (OEPA), Wheeling-
Pittsburgh Steel Company, Centerior Energy Corporation, the law firm
Fuller & Henry (representing a group of Ohio utilities), the law firm
Porter, Wright, Morris & Arthur (representing Ford Motor Corporation),
and the law firm Squires, Sanders & Dempsey (representing several steel
companies). The following is a summary of each comment and USEPA's
review of the comment:
Comment: Several commenters requested that USEPA defer rulemaking
on Ohio's submittal. These commenters noted that the rules are under
appeal to the State's Environmental Board of Review and that several
revisions to these rules are anticipated within the next few months.
These commenters requested that USEPA wait for these anticipated rule
revisions before proceeding with rulemaking.
One commenter provided a more detailed rationale for USEPA to defer
rulemaking. First, given the commenter's presumption that the Ohio
rules will be changed in the near future, USEPA approval of the current
rules would soon result in a situation in which companies confront
State rules that differ from USEPA-approved rules. Second, the
commenter states that USEPA cannot enforce a State rule which a State
court has declared void ab initio. The commenter urges that USEPA defer
rulemaking to avoid this confusion as to enforceable requirements.
Response: Section 110(k)(2) requires action on SIP submittals
within 12 months of the date USEPA finds the submittal complete. Since
USEPA found this submittal complete on January 28, 1992, USEPA is long
overdue for completing action on the State's submittal, and no further
delay is justified.
USEPA cannot defer rulemaking on rules submitted by the State
simply because the State may subsequently revise those rules.
Differences between State enforceable rules and federally enforceable
rules also arise whenever USEPA disapproves a State rule. In neither
case does the potential for such differences constitute basis for USEPA
action (or inaction), and in both cases the set of rules approved by
USEPA are fully federally enforceable. Regardless of the merits of the
commenter's statements for cases in which a State court has declared
rules void, in this case no State court has declared judgment on these
rules and no evidence was provided that the rules do not remain in
effect at the State level. USEPA is acting on the rules as Ohio has
submitted them for approval.
If the State does adopt and submit the anticipated rule revisions,
USEPA intends to rulemake promptly on such submittal. Some of the
anticipated revisions are discussed below in the context of other
comments. To the extent that these revisions simply revisit issues
already discussed in the notice of proposed rulemaking and do not raise
new issues, USEPA can publish notice of final action on such revisions
without another notice of proposed rulemaking.
Comment: Several commenters found the visible emissions limitation
on storage piles to be unreasonably strict. This limitation, in Rule
3745-17-07(B)(6), permits no visible emissions from storage piles
except for 13 minutes per hour. These commenters noted the likelihood
that continuous equipment operation would lead to continuous visible
emissions, and so the limit ``is impossible to achieve.'' One commenter
presented a survey of visible emissions readings at storage piles in
which 21 of the 22 hours of readings exceeded the limit. This commenter
also noted that every part of the Ohio EPA data set used to support its
rule development that was taken of vehicular traffic at a coal pile
showed greater than 13 minutes per hour of visible emissions. This
commenter was further concerned that Ohio apparently intended to apply
the above limitation to load-in operations, which the commenter
believes should be given a separate opacity limit. Another commenter
also stated that it had taken readings which ``indicated that, with
RACM in place (emphasis in original), the operations on [an observed
storage pile] could not comply'' with the limit.
A related concern regards the method used to evaluate visible
emissions from storage piles. One commenter objected that the question
of whether Method 22 readings should be taken at a fixed point or a
moving point depending on the movement of a bulldozer is not addressed
in any formal guidance and is based on ```guidance' consist[ing]
primarily of a memo written by John Summerhays'' of USEPA Region V. The
commenter notes further that the ``Summerhays memo'' is inconsistent,
insofar as it recommends that visible emissions for roadways be read at
a fixed point but for storage pile be read at a variable location
reflecting source relocation. Furthermore, the commenter believes that
most of the material that becomes airborne near a bulldozer promptly
redeposits and should not be counted as visible emissions. For these
reasons, the commenter believes that the method is impracticable and
unclear and should not be approved. In addition, several other
commenters indicated that Ohio's visible emissions limitation, as
evaluated by this method, cannot reasonably be achieved.
Response: The commenters have provided evidence suggesting that
Ohio's limit is difficult to meet. Nevertheless, USEPA believes that
this limitation is achievable. Ohio submittal included a study
involving opacity readings at numerous storage piles which was used to
develop these limits. Although the commenters have provided
supplemental data and reviewed the subset of data from Ohio's study
that was obtained at coal piles, the commenters have not provided a
rationale for concluding that coal piles are different from other types
of storage piles or that the limits which Ohio's study shows to be
reasonable for storage piles in general are not reasonable for coal
piles in particular. For example, the commenters have not shown either
that coal piles are more continuously worked or that coal pile
operations are more prone to cause emissions than other storage piles.
One commenter's own data set includes results implying that adequate
moisture leads to compliance, and it is possible to achieve compliance
by restricting operations. The commenters did not provide any detailed
information on the control measures in place at the time of the
readings, and thus have not demonstrated that a greater level of
control could not achieve the limit. The commenters have also not
addressed typical durations of truck or stacker loading or demonstrated
that such loading cannot be restricted in duration or conducted with
curtains or other controls to achieve compliance with the State's
limit. Notwithstanding the commenters concerns, in accordance with
Section 116, USEPA cannot disapprove an enforceable, achievable State
submittal because it is too stringent.
The commenters have correctly noted that USEPA interprets Method 22
to provide for evaluating whether visible emissions are occurring
anywhere at a storage pile. The alternative is to conduct this
evaluation only at a fixed point. This alternative would provide
meaningless results, since visible emissions would likely only be
identified for those moments when an emissions generating event (e.g.
bulldozing) happened to occur at the fixed location. Although the
commenter is correct that Method 22 is not explicit on this issue,
USEPA's interpretation is longstanding and is analogous to USEPA's
longstanding interpretation that Method 9 opacity readings are also to
be taken at the densest part of a plume at the time of each reading.
Clearly the interpretation of test methods affects the stringency of
the limitation, but this does not constitute grounds for disapproving
the State's submittal, nor does it constitute grounds for altering
USEPA's interpretation of the test method.
USEPA recognizes that the State is discussing potential rule
revisions with the companies that appealed its rules. However, no
specific revisions have been identified or proposed. If and when the
State adopts and submits an alternative limitation (e.g., an
appropriate opacity limitation), USEPA will conduct prompt rulemaking
on such a revision.
Comment: Several commenters objected to the limits on the number of
minutes of visible emissions from roadways and labeled these limits
unreasonable. One commenter notes that ``Method 22 would allow
observations to be made at the rear wheels while following vehicles
down the road. As the Utilities continuously have hauling trucks
entering and exiting the premises, this standard is very difficult, if
not impossible, to meet.''
Response: Part of Ohio's submittal is a summary of a study
demonstrating that the limits it adopted can be achieved. As with the
storage pile limit, discussed above, USEPA believes that this limit is
achievable. Also as with the storage pile limit, USEPA cannot
disapprove a State submittal simply because commenters consider the
limit too stringent. Again, if and when the State adopts and submits a
replacement limitation (e.g. an appropriate opacity limit), USEPA will
conduct prompt rulemaking on such replacement limitation.
Comment: One commenter expressed concern about the 20 percent
opacity/3-minute average limit as applied to ash handling. The
commenter concedes that emissions are generally low when ash is
pneumatically conveyed, but recommended 6 minute averaging to permit
reasonable time to clean up spills. For loading of ash into dump
trucks, the commenter noted limits on the extent to which the ash could
be watered, summarized a series of opacity readings showing about half
of the 3-minute averages exceeding 20 percent, and recommended a 35
percent opacity limit.
Response: For pneumatic loading, the commenter has conceded that
the limit is generally achievable, and even with respect to spill
conditions has not demonstrated that reasonable measures will not yield
compliance with the 20 percent/3-minute average limit. For dump truck
loading, the commenter has not indicated what control measures were
undertaken during the ash loading events that did and did not comply
with the 20 percent limit or what differences might explain why
compliance occurs in some cases and not in others. Therefore, the
commenter's information does not demonstrate the limits to be
infeasible and, in fact, suggests that reasonable measures yield
compliance.
Comment: One commenter expressed concern that the limitations
imposed for open dust sources in Cuyahoga County should not be
considered to represent best available technology.
Response: ``Best available technology'' is a requirement for new
sources, which are not addressed in this rulemaking. Therefore, this
comment is not germane to this rulemaking.
Comment: One commenter disagrees with USEPA's proposed finding that
Ohio's rules do not require timely implementation of RACM at Ford Motor
Company's Cleveland Casting Plant. The comments focus on the cupolas,
stating that control options previously under consideration are beyond
what controls should be considered reasonably available. Nevertheless,
the commenter states that ``Ford has already submitted to Ohio EPA an
alternative control strategy that would provide for all reductions
necessary for attainment to occur by December 10, 1993.''
Response: Although the commenter believes that further control of
the cupolas are not reasonably available, the commenter has not
provided any detailed information to support its view. Also, the
commenter does not address other emission points identified as not
demonstrated to have RACM by December 10, 1993. No revised rules have
been submitted, and so USEPA must conclude that the submitted rules do
not satisfy the requirement in section 189(a)(1)(C) for RACM in
Cuyahoga County.
The notice of proposed rulemaking notes that one alternative for
satisfying section 189(a)(1)(C) would be to advance the post-1993
control requirements so as to assure attainment by December 1993. Ford
has apparently recommended State rule revisions which would satisfy the
RACM requirement in this manner. If Ohio adopts and submits rule
revisions which require that all measures necessary for attainment be
implemented by December 1993, and no substantive new issues are raised
by the submittal, USEPA would be able to publish final rulemaking
approving such a revision and concluding that the RACM requirement is
satisfied.
Comment: A commenter notes that Ford has challenged various
provisions of the State rules, including the open dust limits, the
reduced exemptions from the general stack opacity limit for startup and
shutdown, the procedure for establishing equivalent visible emission
limits, and the provision that contingency measures could be triggered
based on air quality data collected before all SIP control measures are
implemented.
Response: The commenter has not provided a basis for USEPA to
disapprove these provisions which were proposed for approval. If the
State adopts and submits revisions to these aspects of its plan, USEPA
will conduct prompt rulemaking on the submittal. It should be noted
that Ford's revised compliance schedule will provide that all measures
shown necessary for attainment will be implemented prior to the first
year of monitoring data (i.e. 1994) which under Section 188(d) is to be
used to judge attainment.
Comment: Wheeling-Pittsburgh Steel provides extensive discussion of
a modeling reanalysis it plans to conduct both to reassess emissions
from its facility and to reassess the impact of these emissions.
Response: These comments do not provide any modeling results or
other information to indicate that the current rules provide for
attainment. These comments also propose several modeling techniques
which differ from standard practice (e.g., the use of plume rise for
the basic oxygen furnace (BOF) based on the Buoyant Line Plume Model)
that have not been justified. In the absence of detailed documentation
of a modeling analysis properly demonstrating that attainment is
assured, USEPA must continue to conclude that the requirement in
Section 189(a)(1)(B) for assuring attainment has not been satisfied.
Comment: A commenter identifies several reasons to believe that the
BOF at Wheeling-Pittsburgh Steel does not have a high fugitive emission
rate. First, no exceedances have been monitored since 1989. Second,
these emissions have been in compliance with the 20 percent/3-minute
average opacity limit. Third, evidence included in the State's SIP
submittal indicates that modeling more closely reproduces monitored
concentrations if a relatively modest emission rate is assumed. This
commenter expresses concern that this portion of the SIP submittal may
have been overlooked.
Response: Each of the commenter's reasons for expecting low BOF
fugitive emissions may be addressed individually. First, the commenter
is correct that no exceedances have been observed after 1989. However,
monitoring data provide only a limited indication of fugitive emissions
from the BOF, since monitoring data reflect the impact of multiple
sources and reflect actual emissions rather than allowable emissions.
More generally, in order to assure attainment, the State's plan must
establish limits such that attainment would occur even if all sources
were emitting at full allowable emissions. (See Guidelines on Air
Quality Models.) Thus, the absence of monitored exceedances does not
indicate that emissions at the BOF or at other nearby sources are
sufficiently limited to assure attainment.
Second, the commenter notes that the BOF is in compliance with the
applicable opacity limit. However, this comment does not address the
key question here, namely the quantity of emissions that the applicable
opacity limit permits from this source.
Third, the commenter notes that a modeling-monitoring comparison
suggests relatively low BOF emissions. This comparison is described
most fully in Appendix H to a document presenting the control program
suggested by Wheeling-Pittsburgh Steel Corporation, a document which is
included as section (d) of Appendix I of the State's submittal. USEPA's
technical support document for this final rulemaking provides a more
detailed review of this comparison. USEPA finds the comparison
unreliable, because the analysis found concentrations that did not
change in accordance with changes in emissions, because differences
among current allowable emissions and actual emissions at various times
were not accounted for, and because spatial prediction errors
(particularly in complex terrain) and other factors introduce
substantial uncertainties into this type of comparison. Consequently,
the comparison between modeled and monitored concentrations does not
justify the low emission rate recommended by the company.
Contrary to the commenter's concern, the proposed rulemaking does
reflect a review of the full document prepared by a Wheeling-Pittsburgh
Steel contractor and submitted by the State. The principal argument in
this document relates to the quantity of solids collected in the
pollution control equipment, and is addressed at column 1 of 58 FR
41223 of the notice of proposed rulemaking. It should be noted that no
specific basis for estimating 99.5 percent capture has been provided,
and this estimate yields an emission rate substantially lower than a
``BOF monitor'' emission factor also provided in AP-42. Appendix H also
provides visible emissions data showing opacity values slightly above
allowable levels, but concedes that these data do not support any
particular emission rate.
In summary, the notice of proposed rulemaking reflected
consideration of the evidence contained in the State's submittal,
concluded that allowable emissions at the BOF are substantially greater
than those assumed in the attainment demonstration, and concluded that
the State's analysis did not adequately demonstrate attainment. The
commenters have not provided adequate basis to alter this finding.
Comment: A commenter believes that the State's submittal adequately
addresses intermediate terrain. The commenter states that ``at the time
of our analysis (January through September 1991), no EPA approved model
existed for intermediate terrain processing. We used software developed
for PSD applications in complex terrain in West Virginia and
Pennsylvania and approved by EPA Region III.''
Response: USEPA guidance now and at the time of SIP development
(1991) requires the use of both a simple terrain model and a complex
terrain model at all intermediate terrain receptors. The higher
estimated concentration on an hour by hour basis is used to judge
attainment. (See Guidelines on Air Quality Models and a memorandum on
the subject dated June 8, 1989, to Alan Cimorelli from Joseph Tikvart,
chief of USEPA's Source Receptor Analysis Branch.) The commenter is
correct that no single model was available at the time of SIP
development (1991) to perform the full analysis. Nevertheless,
procedures were (and are) available to perform such an analysis (or, in
many cases, to perform briefer analyses demonstrably giving the same
results), some of which were recommended to Ohio and West Virginia in a
meeting with USEPA in March 1991. As for PSD applications, USEPA does
not approve PSD permits in West Virginia or Pennsylvania. Although it
is conceivable that USEPA may have failed to identify inappropriate
treatment of intermediate terrain in selected PSD cases, the commenter
has not shown that a precedent has been knowingly set that would be
germane to this SIP analysis. Thus, no basis for exempting the State
from this requirement exists.
Comment: The State comments that condensible particulate matter
emissions are negligible in the Steubenville area, but agrees to
reexamine the issue and to address the issue in further documentation
to be provided to USEPA.
Response: The technical support document for the notice of proposed
rulemaking identified absence of condensible particulate matter in the
Steubenville emissions inventory as one of the deficiencies in the
area's attainment demonstration. These emissions may or may not be
minor, and this deficiency cannot be considered addressed without
evaluation of available information for the emission points contained
in the inventory.
Comment: The State confirms USEPA's understanding that limits in
Rule 3745-17-08(B) apply to all coke pushing operations and all vented
material handling operations in the State.
Response: The notice of proposed rulemaking expressed concern as to
the enforceability of Rule 3745-17-08(B) for coke pushing and ventable
materials handling operations. This rule requires implementation of at
least one of nine reasonably available control measures, and sets a
limit of 0.030 grains per dry standard cubic foot (or no visible
emissions) if venting is required. USEPA proposed to interpret this
rule as applying this limit to coke pushing and ventable material
handling operations. The State's comment confirms that this
interpretation is appropriate and consistent with the State's
interpretation.
Comment: One commenter noted that USEPA's notice of proposed
rulemaking incorrectly characterized the limit for the one allowed
excursion of the general stack opacity limit as being 27 percent.
Response: The commenter is correct. The Ohio general stack opacity
rule being approved today allows the one permissible 6-minute average
excursion of the usual 20 percent opacity limit to have up to 60
percent opacity.
Comment: One commenter submitted a lengthy statement of appeal of
the State rules, thereby submitting a variety of comments. These
comments are described further in USEPA's technical support document
for this rulemaking. The comments include expressions of concern about
BOF opacity limits, procedures used to adopt these State rules,
accuracy of emissions parameters for LTV, and the need for controls
given that monitoring shows attainment.
Response: USEPA's technical support document provides a review of
each of the submitted comments. In summary, USEPA has substantial
evidence that the BOF opacity limit is reasonably achievable, USEPA
remains satisfied with the procedures used to adopt these rules, USEPA
has no reason to doubt any specific emission parameter (other than the
allowable emission rate for coke quenching), and monitoring does not
address whether emissions at full allowable rates would cause
violations.
Comment: Ohio EPA indicated plans to modify its rules in several
ways to address USEPA's concerns. Ohio EPA intends to revise its quench
water test method to provide for weekly averaging of 5 days' samples.
Ohio EPA intends to submit a revised attainment demonstration for the
Steubenville area. Ohio EPA intends to modify its rules to require that
the entire control plan for Ford's Cleveland Casting Plant be
implemented by December 10, 1993, thereby providing timely satisfaction
of the RACM requirement in Section 189(a)(1)(C).
Response: It appears likely that the anticipated rule revisions
concerning quench water testing and concerning Ford's compliance
schedule will satisfactorily address the relevant USEPA concerns.
However, USEPA cannot base its review on anticipated rule revisions and
analyses which have not yet been submitted. The comments do not justify
revised judgment of the November 1991 submittal. However, with respect
to the Cuyahoga County plan, if Ohio adopts and submits rule revisions
as indicated in its comments, USEPA expects to be able to publish a
notice of final approval of this plan, without further proposal.
With respect to Jefferson County, separate rulemaking is being
conducted with respect to the plan for the other part of the
Steubenville area, in Brooke County, West Virginia. A notice of
proposed rulemaking was published on January 7, 1994, at 59 FR 988. As
a comment on the January rulemaking on West Virginia's SIP, Wheeling-
Pittsburgh Steel submitted a revised modeling analysis. This material
does not warrant revising the proposed evaluation of Ohio's submittal
for several reasons. First, this material was submitted as a comment on
a separate rulemaking, was not submitted with respect to this
rulemaking or within the comment period for this rulemaking, and thus
is not directly relevant to this rulemaking. Second, as discussed in
more detail in a supplemental USEPA technical support document, a
review of this material indicates that unjustified nonreference
modeling and other inappropriate modeling techniques were used. Third,
these materials do not dispute USEPA's judgment of Ohio's submittal,
but instead seek to show that an alternate analysis would demonstrate
the adequacy of the State's plan to assure attainment. Section
189(a)(1)(B) requires that the State submit a demonstration that its
plan assures attainment (or that attainment is infeasible). For these
reasons, Wheeling-Pittsburgh Steel's comments do not alter USEPA's view
that the State has not demonstrated that its plan for the Steubenville
area assures attainment.
V. Today's Action
Based on the review underlying the proposed action and a review of
comments on that proposal, USEPA is today granting limited approval/
limited disapproval of Ohio's particulate matter submittal.
Specifically, USEPA is today making final the action proposed on August
3, 1993 (58 FR 41218). Thus, USEPA is approving all regulations in
Chapter 3745-17 and Chapter 3745-75 except for Rule 3745-17-05 (which
was not submitted) and except for Rule 3745-17-12(P)(6)(a) and Rule
3745-17-03(B)(10)(c) (pertaining to quench water quality). USEPA is
disapproving Rule 3745-17-12(P)(6)(a) and Rule 3745-17-03(B)(10)(c).
On the other hand, USEPA is today issuing final limited disapproval
of Ohio's plans for Cuyahoga and Jefferson Counties for failure to
satisfy certain requirements of Part D. The bases for the disapproval
of the Cuyahoga County plan are the failure to satisfy the requirement
for RACM given in sections 189(a)(1)(C) and 172(c)(1) and the failure
to assure attainment as required in section 189(a)(1)(B) and to satisfy
the related requirements in sections 172(c)(2), 172(c)(3), and
172(c)(6). Although the notice of proposed rulemaking did not
explicitly propose to find failure to assure attainment, the proposal
made clear that assurance of attainment was contingent on remedying
deficiencies in the State's quench water test method. Since this method
was not revised, USEPA now finds that the State has not demonstrated
that the plan assures attainment. The basis for the disapproval of the
Jefferson County plan is the failure to satisfy the requirement to
assure attainment given in sections 189(a)(1)(B) and the related
requirements in sections 172(c)(2), 172(c)(3), and 172(c)(6), due to
the use of inappropriate emissions estimates for Wheeling-Pittsburgh
Steel's basic oxygen furnace, coke ovens, and other emission sources,
and various modeling issues.
The notice of proposed rulemaking discusses alternatives by which
the Cuyahoga County plan could satisfy the requirement for RACM. The
State has committed in essence to implementing one of these
alternatives, namely to advance Ford's compliance deadlines, such that
all measures reflected in the submitted attainment demonstration are
required by December 1993. The notice of proposed rulemaking also
specifies remedies for the deficiency in the coke quenching test
method. Thus, if the State submits rules that have been revised
accordingly, USEPA can proceed directly to final approval of these
revisions without further proposal, provided these revisions do not
raise new issues. Such revisions would address all identified bases for
disapproving the Cuyahoga County plan, and so such USEPA rulemaking
could reverse today's limited disapproval of the Cuyahoga County plan
and find all particulate matter SIP requirements addressed in today's
rulemaking for this area satisfied.3 Note that revisions to the
Steubenville area plan would likely raise new issues and thus would
likely require further proposed rulemaking.
---------------------------------------------------------------------------
\3\Other requirements, notably including the new source review
program required in section 189(a)(1)(A) and 173 and the contingency
plan required in section 172(c)(9), are not addressed in today's
rulemaking.
---------------------------------------------------------------------------
Finally, USEPA is today making a final determination on particulate
matter precursors consistent with its proposed determination.
Specifically, USEPA is today determining that precursors do not
contribute significantly to violations of the particulate matter
standards in Ohio. As a result, the otherwise applicable provision of
Section 189(e) that particulate matter precursor sources must meet the
same control requirements as primary sources of particulate matter does
not apply.
This disapproval constitutes a disapproval under section 179(a)(2)
of the Act (see generally 57 FR 13566-67). As provided under section
179(a) of the Act, one of two sanctions in Section 179(b) is to take
effect 18 months from the publication of this final rule unless the
relevant deficiencies are corrected in the meantime. The second
sanction in Section 179(b) is to take effect 24 months from the
publication of this final rule, again unless the relevant deficiencies
are corrected in the meantime. These two sanctions are (1) A
requirement for two-to-one new source review offsets for sources in or
near the Cuyahoga and Jefferson County nonattainment areas and, (2) a
sanction against highway funding in these two areas. Separate
rulemaking is being conducted to determine which of these sanctions
would apply first and to address related questions concerning the
effectuation of such sanctions. (See the notice of proposed rulemaking
dated October 1, 1993 (58 FR 51270).) Any sanction USEPA imposes must
remain in place until USEPA determines that the deficiency has been
corrected. This disapproval also triggers the requirement for USEPA to
impose a federal implementation plan under section 110(c)(1) of the Act
if the deficiencies are not corrected within 2 years.
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 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 Act,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
Act forbids USEPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976); 42 U.S.C.
7410(a)(2).
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately 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 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
temporary 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.
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 26, 1994. 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
Air Pollution control, Environmental protection, Incorporation by
Reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
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: May 13, 1994.
Valdas V. Adamkus,
Regional Administrator.
Title 40 of the Code of Federal Regulations, chapter I, part 52, is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1870 is amended by adding new paragraph (c)(97) to
read as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(97) On November 14, 1991, December 4, 1991, and January 8, 1992,
OEPA submitted revisions to its particulate matter plan, including
Statewide rule revisions, rule revisions for specific facilities in
Cuyahoga and Jefferson Counties, and supplemental materials to address
the requirements of Part D of Title I of the Clean Air Act for the
Cuyahoga and Jefferson County nonattainment areas. Rules 3745-17-
03(B)(10)(c) and 3745-17-12(P)(6)(a) (concerning quench water limits)
are not approved.
(i) Incorporation by reference.
(A) Rule 3745-17-01--Definitions, effective December 6, 1991.
(B) Rule 3745-17-02--Ambient air quality standards, effective June
14, 1991.
(C) Rule 3745-17-03--Measurement methods and procedures, effective
December 6, 1991, except for paragraph (B)(10)(c) which is disapproved.
(D) Rule 3745-17-04--Compliance time schedules, effective December
6, 1991.
(E) Rule 3745-17-07--Control of visible particulate emissions from
stationary sources, effective June 14, 1991.
(F) Rule 3745-17-08--Restriction of emission of fugitive dust,
effective June 14, 1991.
(G) Rule 3745-17-09--Restrictions on particulate emissions and
odors from incinerators, effective July 9, 1991.
(H) Rule 3745-17-10--Restrictions on particulate emissions from
fuel burning equipment, effective June 14, 1991.
(I) Rule 3745-17-11--Restrictions on particulate emissions from
industrial processes, effective June 14, 1991.
(J) Rule 3745-17-12--Additional restrictions on particulate
emissions from specific air contaminant sources in Cuyahoga County,
effective December 6, 1991, except for paragraph (P)(6)(a) which is
disapproved.
(K) Rule 3745-17-13--Additional restrictions on particulate
emissions from specific air contaminant sources in Jefferson County,
effective December 6, 1991.
(L) Rule 3745-17-14--Contingency plan requirements for Cuyahoga and
Jefferson Counties, effective December 6, 1991.
(M) Rule 3745-75-01--Applicability and definitions, effective July
9, 1991.
(N) Rule 3745-75-02--Emission limits, effective July 9, 1991.
(O) Rule 3745-75-03--Design parameters and operating restrictions,
effective July 9, 1991.
(P) Rule 3745-75-04--Monitoring requirements, effective July 9,
1991.
(Q) Rule 3745-75-05--Recordkeeping, effective July 9, 1991.
(R) Rule 3745-75-06--Certification and compliance time schedules,
effective July 9, 1991.
(ii) Additional information.
(A) Appendices A through P to a letter from Donald Schregardus to
Valdas Adamkus dated November 14, 1991, providing emissions inventories
and modeling demonstrations of attainment for the Cleveland and
Steubenville areas and providing other related information.
(B) A letter from Donald Schregardus to Valdas Adamkus dated
December 4, 1991, and attachments, supplementing the November 14, 1991,
submittal.
(C) A letter from Donald Schregardus to Valdas Adamkus dated
January 8, 1992, and attachments, supplementing the November 14, 1991,
submittal.
* * * * *
3. Section 52.1880 is amended by revising paragraph (d) to read as
follows:
Sec. 52.1880 Control strategy: particulate matter.
* * * * *
(d) Part D--Limited Disapproval--Notwithstanding the approval of
rules as specified in Sec. 52.1870(c)(97), USEPA disapproves the plan
for Cuyahoga County because the plan fails to require timely
implementation of reasonably available control measures and fails to
assure attainment, and USEPA disapproves the plan for Jefferson County
because the plan fails to assure attainment.
* * * * *
[FR Doc. 94-12919 Filed 5-26-94; 8:45 am]
BILLING CODE 6560-50-P
