[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Rules and Regulations]
[Pages 20139-20142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11200]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH93-1-7290a; FRL-5467-3]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving the Particulate Matter contingency
measures State implementation plan (SIP) revisions submitted by the
State of Ohio on July 17, 1995. This submittal addresses the Federal
Clean Air Act requirement to submit contingency measures for
particulate matter with an aerodynamic diameter less than or equal to a
nominal 10 micrometers (PM) for the areas designated as nonattainment
for the PM National Ambient Air Quality Standards (NAAQS). In Ohio,
Cuyahoga County and portions of Jefferson County are designated as
nonattainment for PM. Contingency measures are emission reductions
which are to be implemented, with no further action, in the event that
an area fails to meet air quality standards. This submittal would
result in an emissions reduction of 34 pounds of PM per hour in
Cuyahoga County, and 2.9 pounds of PM per hour in Jefferson County if
implementation of the contingency measures becomes necessary.
DATES: This action is effective on July 5, 1996, unless EPA receives
adverse or critical comments by June 5, 1996. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Copies of the revision request are available for inspection
at the following address: U.S. Environmental Protection Agency, Region
5, Air and Radiation Division 77 West Jackson Boulevard, Chicago,
Illinois 60604. (It is recommended that you telephone David Pohlman at
(312) 886-3299 before visiting the Region 5 Office.)
Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
FOR FURTHER INFORMATION CONTACT: David Pohlman (312) 886-3299.
SUPPLEMENTARY INFORMATION:
I. Background
In Ohio, Cuyahoga County and portions of Jefferson County are
designated as nonattainment for PM and classified as moderate under
sections 107(d)(4)(B) and 188(a) of the Clean Air Act. See 56 FR 56694
(Nov. 6, 1991); 40 CFR 81.336. The air quality planning requirements
for moderate PM nonattainment areas are set out in subparts 1 and 4 of
part D, Title I of the Clean Air Act. The EPA has issued a ``General
Preamble'' describing EPA's preliminary views on how EPA intends to
review SIPs and SIP revisions submitted under Title I of the Clean Air
Act, including those State submittals containing moderate PM
nonattainment area SIP requirements (see generally 57 FR 13498 (April
16, 1992) and 57 FR 18070 (April 28, 1992)). Because EPA 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 Title I advanced in this action and the supporting
rationale.
Those States containing initial moderate PM nonattainment areas
were required to submit contingency measures by November 15, 1993 (see
57 FR 13543). This contingency plan supplements the attainment plan,
and must include measures that become effective, without further action
by the State or EPA, upon a determination by EPA that the area has
failed to achieve reasonable further progress (RFP) or to attain the PM
NAAQS by the applicable statutory deadline. See section 172(c)(9)of the
Clean Air Act and 57 FR 13510-13512 and 13543-13544.
II. Analysis of State Submittal
The Ohio Environmental Protection Agency (OEPA) submitted a
requested SIP revision to the EPA with a letter dated July 17, 1995.
The submittal
[[Page 20140]]
contained Findings and Orders for facilities which identified
reasonably available PM emissions reductions as contingency measures
pursuant to Ohio Administrative Code Rule 3745-17-14. Specifically,
Findings and Orders for the following facilities were included: Ford
Motor Company, Cleveland Casting Plant, T & B Foundry Company,
International Mill Service, Luria Brothers, United Ready Mix.
A. Procedural Requirements
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing. Section 110(l) of the Act 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. Also section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
The EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action (see Section 110(k)(1)
and 57 FR 13565). The EPA's completeness criteria for SIP submittals
are set out at 40 CFR part 51, appendix V. The EPA attempts to make
completeness determinations within 60 days of receiving a submission.
However, a submittal is deemed complete by operation of law if a
completeness determination is not made by EPA six months after receipt
of the submission.
The State of Ohio, after providing adequate notice, held a public
hearing on May 31, 1995, regarding the PM contingency measures.
Following the public hearing, the final Findings and Orders were signed
by the Director of the Ohio Environmental Protection Agency (OEPA) on
July 10, 1995.
The submittal was reviewed by EPA to determine completeness in
accordance with the completeness criteria set out at 40 CFR part 51,
appendix V. The submittal was found to be complete and a letter dated
July 20, 1995, was sent to the State indicating the completeness of the
submittals and the next steps to be taken in the review process.
B. Contingency Measures
The Clean Air Act requires States containing PM nonattainment areas
to adopt contingency measures that will take effect without further
action by the State or EPA upon a determination by EPA that an area
failed to make RFP or to timely attain the applicable NAAQS, as
described in section 172(c)(9). See generally 57 FR 13510-13512 and
13543-13544. Pursuant to section 172(b), the Administrator has
established a schedule providing that states containing initial
moderate PM nonattainment areas shall submit SIP revisions containing
contingency measures no later than November 15, 1993. (See 57 FR 13543,
n. 3.)
The General Preamble further explains that contingency measures for
PM should consist of other available control measures, beyond those
necessary to meet the core moderate area control requirements to
implement reasonably available control measures and to assure
attainment (see Clean Air Act sections 172(c)(1), and 189(a)(1) (A) and
(C). Based on the statutory structure, EPA believes that contingency
measures must, at a minimum, provide for continued progress toward the
attainment goal during an interim period between any prospective
determination that the SIP has failed to achieve RFP or provide for
timely attainment of the NAAQS and the additional formal air quality
planning following the determination (57 FR 13511). PM contingency
measures are also addressed in a memo from the Acting Chief of the
Sulfur Dioxide/Particulate Matter Programs Branch, Air Quality
Management Division to the Air Branch Chiefs of EPA Regions 1-10 dated
August 20, 1991. This memo suggests that PM contingency emissions
reductions for moderate nonattainment areas should represent one year's
RFP. For example, reductions equal to 25 percent of the total reduction
in actual emissions in the SIP control strategy would be appropriate
for a moderate nonattainment area since the control strategy must
generally be implemented within a 3 to 4-year period between SIP
development and the attainment date.
Section 172(c)(9) of the Act specifies that contingency measures
shall ``take effect * * * without further action by the State, or the
[EPA] Administrator.'' EPA has interpreted this requirement (in the
General Preamble at 57 FR 13512) to mean that no further rulemaking
activities by the State or EPA would be needed to implement the
contingency measures. In general, EPA expects all actions needed to
effect full implementation of the measures to occur within 60 days
after EPA notifies the State of its failure to attain the standard or
make RFP.
The EPA recognizes that certain actions, such as notification of
sources, modification of permits, etc., may be needed before some
measures could be implemented. However, States must show that their
contingency measures can be implemented with minimal further
administrative action on their part and with no additional rulemaking
action such as public hearing or legislative review.
Ohio Administrative Code (OAC) Rule 3745-17-14 (approved by the EPA
on May 27, 1994, 59 FR 27464) requires principal facilities in the PM
nonattainment areas to submit control strategies and compliance
schedules to the OEPA which would reduce particulate emissions by 15
and 25 percent. OAC Rule 3745-17-14 also requires that the control
strategies and compliance schedules be approved by the Director of the
OEPA (as Findings and Orders) and submitted to the EPA as a revision to
the Ohio PM SIP. The rule further specifies that the requirements of
the Findings and Orders are to be implemented by each facility upon
receipt of a formal determination and notification by the OEPA or the
EPA that the area is not in compliance with the NAAQS. Whether the 15
percent or the 25 percent control strategy would be implemented will
depend on the severity of any actual violations.
The OEPA received contingency plans from the affected facilities
and worked with them to finalize those plans. The OEPA found various
situations with respect to the availability of additional particulate
emission reductions to meet the levels required in OAC Rule 3745-17-14.
Some of the affected facilities do not have any significant reductions
of PM emissions available, while others have some available reductions,
but not enough to meet the required levels in OAC Rule 3745-17-14.
Others have sufficient reductions available to fully meet the
requirements. As a result, some affected facilities are not being
required to commit to any contingency measure reductions.
The facilities which fully satisfy Rule 3745-17-14, are the Ford
Motor Company's Cleveland Casting Plant, and the T & B Foundry Company.
Ohio has issued Final Findings and Orders which incorporate the
contingency plans for these sources.
The facilities which have some reductions available, but not enough
to fully meet the required levels in OAC Rule 3745-17-14 are
International Mill Service, Luria Brothers, and United Ready Mix
(formerly Harval). Ohio has issued Final Findings and Orders which
incorporate the contingency measures. Ohio also submitted fact sheets
for these sources which explain why further reductions are not
available.
[[Page 20141]]
The facilities which have no significant particulate emission
reductions that are reasonably available are Granger Materials, Boyas
Excavating, Cuyahoga Foundry Company, Drummond Dolomite (formerly
Cleveland Builders Supply), Independence Excavating, Kenmore Asphalt
Products (formerly Lake Erie Asphalt Products), Ohio Aluminum
Industries, Schloss Paving Company, Standard Lafarge Company (formerly
Standard Slag Company), Stein, Wheeling-Pittsburgh Steel Corporation (2
facilities: Mingo Junction and Steubenville).
In addition, two facilities, Boyas Excavating, and Satralloy, have
shut down. LTV Steel Company (East Side and West Side) will have rule
revisions that require no actual emission reductions. EPA guidance
calls for contingency measures only in proportion to the actual
reductions obtained by the nonattainment area. Because LTV has zero
emissions reductions associated with the initial PM attainment plan, it
was not required to commit to any contingency measure reductions.
While Ohio's Rule 3745-17-14 requires contingency emission
reductions of the magnitude called for by the EPA (25% of the actual
reductions in the SIP control plan), it was found that some sources
were not able to reasonably obtain such reductions. Ohio carefully
analyzed the facilities' contingency plans to ensure that all
reasonably available measures are included. The EPA agrees that Ohio
has obtained a sufficient level of reductions to provide for a
reasonable level of continued progress toward the attainment goal
during an interim period between any prospective determination that the
SIP has failed to achieve RFP or provide for timely attainment of the
NAAQS and the additional formal air quality planning following the
determination. Ohio's PM contingency plan is, therefore, approvable by
the EPA.
C. Enforceability
All measures and other elements in the SIP must be enforceable by
the State and EPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR
13556). The EPA criteria addressing the enforceability of SIPs and SIP
revisions were stated in a September 23, 1987 memorandum (with
attachments) from J. Craig Potter, Assistant Administrator for Air and
Radiation, et al. (see 57 FR 13541). State implementation plan
provisions also must contain a program to provide for enforcement of
control measures and other elements in the SIP (see section
110(a)(2)(C)).
The Final Findings and Orders issued by OEPA are clearly written,
and are legally enforceable by OEPA. The Final Findings and Orders will
be enforceable by the EPA upon their approval as a SIP revision. The
EPA believes that the State's existing air enforcement program will be
adequate to enforce PM contingency plans.
III. Final Action
The EPA approves Ohio's PM contingency measure rules, submitted by
OEPA on July 17, 1995. This submittal addressed PM contingency measure
plans that were due on November 15, 1993. The State's PM contingency
measures are included in Final Findings and Orders issued by the OEPA.
Previously approved OAC Rule 3745-17-14 requires that facilities
implement the contingency measures upon receipt of a formal
determination and notification by the OEPA or the EPA that the area is
not in compliance with the NAAQS.
The EPA is publishing this action without prior proposal because
EPA views this action as a noncontroversial revision and anticipates no
adverse comments. However, EPA is publishing a separate document in
this Federal Register publication, which constitutes a ``proposed
approval'' of the requested SIP revision and clarifies that the
rulemaking will not be deemed final if timely adverse or critical
comments are filed. The ``direct final'' approval shall be effective on
July 5, 1996, unless EPA receives adverse or critical comments by June
5, 1996. If EPA receives comments adverse to or critical of the
approval discussed above, EPA will withdraw this approval before its
effective date by publishing a subsequent Federal Register document
which withdraws this final action. All public comments received will
then be addressed in subsequent rulemaking. Please be aware that EPA
will institute another comment period on this action only if warranted
by significant revisions to the rulemaking based on any comments
received in response to today's action. Any parties interested in
commenting on this action should do so at this time. If no such
comments are received, EPA hereby advises the public that this action
will be effective on July 5, 1996.
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 9, 1995, memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. EPA 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.
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') (signed into law on March 22, 1995) requires that the
EPA 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 EPA 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 EPA must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The EPA must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the EPA explains why this
alternative is not selected or the selection of this alternative is
inconsistent with law.
Because this final rule 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, the EPA 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 EPA is not required to develop a plan with regard to
small governments. This rule only approves the incorporation of
existing state rules into the SIP. It imposes no additional
requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
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, EPA may certify that the rule will not have a
significant impact on a substantial number of small
[[Page 20142]]
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 Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of the
State action. The Clean Air Act forbids EPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. EPA., 427 U.S.
246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
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 5, 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, Particulate matter.
Dated: April 19, 1996.
Valdas V. Adamkus,
Regional Administrator.
For the reasons stated in the preamble, part 52, chapter I, title
40 of the Code of Federal Regulations 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)(109) to read
as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(109) On July 17, 1995, Ohio submitted a Particulate Matter (PM)
contingency measures State Implementation Plan (SIP) revision request.
The submittal includes Final Findings and Orders for 5 companies. The
Findings and Orders provide PM emission reductions which will take
effect if an area fails to attain the National Ambient Air Quality
Standards for PM.
(i) Incorporation by reference.
Director's Final Findings and Orders for Ford Motor Company
(Cleveland Casting Plant), T&B Foundry Company, International Mill
Service, Luria Brothers, and United Ready Mix, issued by the Ohio
Environmental Protection Agency on July 10, 1995.
[FR Doc. 96-11200 Filed 5-3-96; 8:45 am]
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