E6-8467. Approval and Promulgation of Air Quality Implementation Plans; Ohio; Proposal To Approve Revision to Ohio State Implementation Plan To Rescind Oxides of Nitrogen Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve a revision to the Ohio State Implementation Plan (SIP) to rescind a rule which originally affected stationary combustion sources located within Priority I regions of the State and, new sources regardless of location. The rule revision we are proposing to approve also applies to nitric acid manufacture. EPA is proposing to approve this rule rescission because we agree with Ohio that the rescinded rule is no longer the limiting regulation for any oxides of nitrogen (NO_X) emission units in the State. The rule was originally approved over 30 years ago and has been superseded by a number of State regulations and Federal Regulations of equivalent or more stringent nature. The Ohio NO_X SIP Call rules and Federal emissions standards for utility and industrial units all have greater potential for reducing emissions of NO_X and improving human health than does the State's rescinded rule. Rescinding this rule removes any confusion in the affected community over which rule applies to NO_X sources in Ohio. EPA believes that an approval of this rule revision request would have no adverse effect on air quality.

DATES:

Comments must be received on or before July 3, 2006.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0354, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: John M. Mooney, Chief, Criteria Pollutant Section, (AR-18J), Air Program Branch, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
• Hand Delivery: John M. Mooney, Chief, Criteria Pollutant Section, (AR-18J), Air Program Branch, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-2006-0354. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone John Paskevicz, Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

John Paskevicz, Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], or via e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. What Should I Consider as I Prepare My Comments for EPA?

II. Who Is Affected by This Rule?

III. What Is the Impact on Air Quality Due to the Rescission of this Rule?

IV. Did the Public Have Opportunity To Review and Make Comment on the State's Action?

V. What Action Is EPA Taking Today?

VI. Statutory and Executive Order Reviews.

I. What Should I Consider as I Prepare My Comments for EPA?

A. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI). In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments. When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

4. Describe any assumptions and provide any technical information and/or data that you used.

5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

6. Provide specific examples to illustrate your concerns, and suggest alternatives.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

8. Make sure to submit your comments by the comment period deadline identified.

II. Who Is Affected by This Rule?

In taking the action to rescind Ohio Administrative Code (OAC) 3745-23-06, the State of Ohio has determined that no one is affected by this rule. We agree. The State reviewed its NO_X plan and found that this 30-year old rule no longer applies to any source in the State. The rule has been made redundant and out-of-date by a series of rulemakings over the past years. Most recently, the State's NO_X SIP Call rule which reduces NO_X emissions, a summertime ozone precursor, has a greater health benefit because the emission rates associated with the NO_X SIP Call are significantly more stringent than OAC 3745-23-06. Similarly, 40 CFR Part 60, subpart Da and subpart G emission rates are more stringent than the rule Ohio is rescinding.

III. What Is the Impact on Air Quality Due to the Rescission of This Rule?

The State noted that only one unit (a boiler at the General Motors Corporation Moraine Assembly Plant) was affected by this rule, the only unit in the State in which the Title V permit referenced this rule. This source was closed permanently in August 2003. The closure of that unit reduced the emissions of NO_X into the atmosphere resulting in a reduction of ozone precursor during the summertime and the reduction of acid rain precursor during the other seasons. No other source permits issued by Ohio rely on this rule to control emissions of NO_X.

IV. Did the Public Have Opportunity To Review and Make Comment on the State's Action?

Yes. On December 1, 2004, a public hearing was held in Columbus, Ohio. No comments were made at the hearing, and no comments were received from the public during the comment period. Comment was received from a staff member of Ohio EPA Division of Air Pollution Control. The commenter noted that for one type of unit the rule is more stringent than the Federal performance standard for the type of fuel burned. The State responded by writing that Ohio relies on the Federal New Source Performance Standards (NSPS) to set standards for appropriate units and the State emission standards are not intended to be more restrictive than NSPS. Ohio statute prohibits State rules more stringent than Federal rules. While this action appears to be a relaxation for an oil-fired unit, the backstop is the Federal NSPS. However, as comments were being considered by the State, the source (General Motors Corporation) shut down the Moraine Assembly Plant boiler. This unit was the only boiler affected by the rescinded rule. All other existing boilers of 250 million BTU per hour or larger in size are covered by the NO_X SIP Call and have emissions caps during the ozone season.

V. What Action Is EPA Taking Today?

We are proposing to approve the State's request to rescind the rule OAC 3745-23-06. A review of the Ohio Title V permit list shows that the only permit still in the system which references this rule is for a 250 million BTU boiler formerly owned by the General Motors Corporation (GM). The GM Moraine assembly plant permit applies to a gas fired boiler (with oil back-up) which ceased operation in 2003, about a year before this action (to rescind this rule) was approved by the Ohio EPA Director. Citizens who wish to comment on this action are encouraged to do so within the time-frame noted in the front of this notice.

VI. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Regulatory Flexibility Act

This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13132 Federalism

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

Executive Order 13175 Consultation and Coordination With Indian Tribal Governments

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 13045 Protection of Children From Environmental Health and Safety Risks

This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements

Dated: May 17, 2006.

Norman Niedergang,

Acting Regional Administrator, Region 5.