[Federal Register Volume 64, Number 109 (Tuesday, June 8, 1999)]
[Rules and Regulations]
[Pages 30394-30396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14052]
[[Page 30394]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH118-1a; FRL-6353-2]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: We, the United States Environmental Protection Agency (EPA),
are approving the Ohio Environmental Protection Agency's (OEPA)
September 16, 1998 and December 29, 1998, requests for revisions to the
Ohio State Implementation Plan (SIP). These requests include an
exemption for de minimis sources from the requirement to obtain a
permit to operate (OAC 3745-15-05) and revises the permit to operate
rule (OAC 3745-35-02). Revisions to OAC 3745-35-02 establish exemptions
from the rule, revise the application filing deadline, and allow
applicants the ability to demonstrate that their sources are in
compliance through a compliance schedule when they are not in
compliance at the time of permit issuance. These revisions will not
inhibit OEPA from ensuring compliance with the national ambient air
quality standards.
DATES: This rule is effective on August 9, 1999, unless EPA receives
adverse written comments by July 8, 1999. If we receive adverse
comment, EPA will publish a timely withdrawal of the rule in the
Federal Register and inform the public that the rule will not take
effect.
ADDRESSES: Written comments may be mailed to J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), Region 5
at the address listed below.
Copies of the documents relevant to this action are available for
inspection during normal business hours at the following location:
Permits and Grants Section, Air Programs Branch, (AR-18J), U.S.
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
Please contact Steve Gorg or Genevieve Damico, Environmental
Engineers, at 312-353-8641 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Steve Gorg or Genevieve Damico,
Environmental Engineers, Permits and Grants Section, Air Programs
Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, 312-353-8641.
SUPPLEMENTARY INFORMATION:
This Supplementary Information section is organized as follows:
A. What action are we taking today?
B. Who is affected by this rulemaking action?
C. What are the revisions to OAC rule 3745-35-02?
D. What recordkeeping and reporting requirements are required of my
facility to be exempted from the requirement to obtain a permit to
operate?
E. Why can we approve this request?
F. What is the background of this rulemaking?
A. What Action Are We Taking Today?
We are approving OEPA's September 16, 1998 and December 29, 1998,
requests for revisions to the Ohio SIP. These requests include an
exemption for de minimis sources from the requirement to obtain a
permit to operate (OAC 3745-15-05) and revision to the permit to
operate requirement (OAC 3745-35-02).
B. Who Is Affected by This Rulemaking Action?
OAC 3745-35-02 applies to all new and existing sources, including
those sources which are subject to EPA's New Source Performance
Standards (NSPS) and National Emission Standards for Hazardous Air
Pollutants (NESHAPS). Generally, this rule requires an owner of an air
contaminant source (referred to in this notice as ``you''), to apply
for and obtain a permit to operate from the OEPA.
Under OAC 3745-15-05, you are not required to get a permit to
operate if your facility has potential emissions less than ten pounds
per day, except when the Clean Air Act requirements limit or restrict
your facility's emissions. This exemption does not apply if your
facility:
(1) Is subject to a requirement of the SIP;
(2) Emits radionuclides;
(3) Has potential emissions of any air pollutant in excess of
twenty-five tons per year, alone or in combination with a similar
source at the same facility; or,
(4) Emits more than one ton per year of any one or a combination of
hazardous air pollutants.
C. What Are The Revisions To OAC Rule 3745-35-02?
The revisions to OAC rule 3745-35-02 establish:
(1) Exemptions from the rule if you are:
(a) a source that is exempted under OAC 3745-31-03 (A)(1) or
(A)(2);
(b) required to obtain a Title V permit as defined in Chapter 3745-
77 of the OAC; or,
(c) a source that is exempt from getting a permit to operate under
OAC 3745-15-05;
(2) An application filing date no later than thirty days after
commencement of operation; and,
(3) The requirement to demonstrate that your facility will be in
compliance with all applicable air pollution control laws through a
compliance schedule that is at least as stringent as those laws, if you
are not complying at the time of permit issuance.
D. What Recordkeeping and Reporting Requirements Are Required of My
Facility To Be Exempted From The Requirement To Obtain a Permit To
Operate?
If your facility meets the exemption criteria in OAC 3745-15-05,
then you must:
(1) Keep records that prove actual emissions of any air contaminant
from your facility did not exceed the de minimis level,
(2) Maintain records for two years; and
(3) Submit an exceedence report and an application for a permit to
install if your facility exceeds the de minimis level.
E. Why Can We Approve This Request?
These revisions are approvable because:
(1) The revisions to OAC 3745-35-02 affect the Ohio state operating
permit program and do not affect the requirements established by Title
V of the Clean Air Act. If you are required to obtain a Title V permit,
you must apply for such a permit under OAC 3745-77.
(2) OAC 3745-15-05 establishes exemptions for small sources of air
pollution that have little or no adverse impact on air quality. This
rule does not apply if your facility is subject to a requirement of the
SIP.
F. What Is the Background of This Rulemaking?
OAC 3745-35-02 and 3745-15-05 became effective as a matter of Ohio
State law on April 20, 1994. OEPA's original OAC 3745-35-02 was
approved on June 10, 1982 (47 FR 25144).
EPA Action
In this rulemaking action, EPA approves OEPA's September 21, 1998
and January 8, 1999 request for revisions to OAC rule 3745-35-02 and
OAC rule 3475-15-05, respectively. The EPA is publishing this action
without prior proposal because EPA views this as a noncontroversial
revision and anticipates no adverse comments. However, should adverse
written
[[Page 30395]]
comments be filed, in a separate document in this Federal Register
publication, the EPA is proposing to approve the SIP revision. This
action will be effective August 9, 1999 without further notice unless
EPA receives relevant adverse written comment by July 8, 1999. Should
the Agency receive such comments, we will publish a withdrawal document
informing the public that this action will not take effect. Any parties
interested in commenting on this action should do so at this time. If
no such comments are received, the public is advised that this action
will be effective on August 9, 1999.
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on state, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This rule is not subject to E.O. 13045 because it does not involve
decisions intended to mitigate environmental health or safety risks
that may have a disproportionate effect on children.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.'' This rule does not significantly
or uniquely affect the communities of Indian tribal governments.
Accordingly, the requirements of section 3(b) of E.O. 13084 do not
apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because 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
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246,
255-66 (1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. Audit Privilege and Immunity Law
Nothing in this action should be construed as making any
determination or expressing any position regarding Ohio's audit
privilege and immunity law (sections 3745.70-3745.73 of the Ohio
Revised Code ). EPA will be reviewing the effect of the Ohio audit
privilege and immunity law on various Ohio environmental programs,
including those under the Clean Air Act, and taking appropriate
action(s), if any, after thorough analysis and opportunity for Ohio to
state and explain its views and positions on the issues raised by the
law. The action
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taken herein does not express or imply any viewpoint on the question of
whether there are legal deficiencies in this or any Ohio Clean Air Act
program resulting from the effect of the audit privilege and immunity
law. As a consequence of the review process, the regulations subject to
the action taken herein may be disapproved, federal approval for the
Clean Air Act program under which they are implemented may be
withdrawn, or other appropriate action may be taken, as necessary.
H. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a ``major'' rule as defined by 5 U.S.C.
804(2).
I. Petitions for Judicial Review
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 August 9, 1999. 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, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: May 20, 1999.
Francis X. Lyons,
Regional Administrator, Region 5.
For the reasons stated in the preamble, part 52, chapter I, and
part 81 subpart c of 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 et seq.
2. Section 52.1870 is amended by adding (c)(119) and (c)(120) to
read as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(119) On September 21, 1998, Ohio submitted revisions to its Permit
to Operate rules as a revision to the State implementation plan.
(i) Incorporation by reference
(A) Ohio Administrative Code 3745-35-02, adopted April 4, 1994,
effective April 20, 1994.
(120) On January 3, 1999, Ohio submitted, as a State implementation
plan revision, de minimus exemption provisions for its permitting
rules.
(i) Incorporation by reference
(A) Ohio Administrative Code 3745-15-05, adopted April 4, 1994,
effective April 20, 1994.
[FR Doc. 99-14052 Filed 6-7-99; 8:45 am]
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