[Federal Register Volume 59, Number 162 (Tuesday, August 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20637]
[[Page Unknown]]
[Federal Register: August 23, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH16-2-6322; FRL-5053-4]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: On October 18, 1991, USEPA received proposed revisions to the
emission limitations, compliance methodologies, and compliance time
schedules in Ohio's Clean Air Act (Act) State Implementation Plan (SIP)
for sulfur dioxide (SO2) as it applies to sources in Hamilton
County. These SIP revisions were submitted by the State of Ohio as a
means of demonstrating attainment of the National Ambient Air Quality
Standards (NAAQS) for SO2. Subsequent revisions to the Hamilton
County emission limits were received on March 19, 1993. The USEPA
proposed to conditionally approve these SIP revisions on January 27,
1994. As discussed below, three comments were received on the proposed
rulemaking. The USEPA is now granting conditional approval of the SIP
revisions for SO2 in Hamilton County, Ohio.
EFFECTIVE DATE: This final rule becomes effective on September 22,
1994.
ADDRESSES: Copies of the SIP revision, public comments on the
rulemaking, and other materials relating to this final rule are
available for inspection at the following address: (It is recommended
that you telephone Randy Robinson, (312) 353-6713, before visiting the
Region 5 Office.) United States Environmental Protection Agency, Region
5, Air and Radiation Division, 77 West Jackson Boulevard (AE-17J),
Chicago, Illinois 60604.
A copy of this revision to the Ohio SIP is available for inspection
at the following address: Air Docket 6102, Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Randy Robinson, Air Enforcement
Branch, Regulation Development Section (AE-17J), United States
Environmental Protection Agency, Region 5, Chicago, Illinois 60604,
(312) 353-6713.
SUPPLEMENTARY INFORMATION:
I. Background
On October 18, 1991, USEPA received a submittal from the State of
Ohio to revise the SO2 State Implementation Plan (SIP) for sources
in Hamilton County. The submittal package included revisions to Ohio
Administrative Code (OAC) 3745-18-03 Attainment dates and Compliance
Time Schedules, (OAC) 3745-18-04 Measurements Methods and Procedures,
and OAC 3745-18-37 Hamilton County Emission Limits, as well as
technical information demonstrating that the revisions were sufficient
to assure attainment of the National Ambient Air Quality Standards
(NAAQS) for SO2 in Hamilton County. Subsequent revisions to the
Hamilton County emission limits, were submitted by Ohio to USEPA on
March 17, 1993. The revisions were submitted in response to a December
22, 1988, letter in which USEPA notified the Governor of Ohio that the
SIP for SO2 was substantially inadequate to attain and maintain
the SO2 NAAQS in Hamilton County. The notification was based on
predicted violations of the SO2 National Ambient Air Quality
Standards (NAAQS) due to SO2 emissions from sources located in
Hamilton County, Ohio.
II. Summary of Proposed Rulemaking
On January 27, 1994, a document was published in the Federal
Register (59 FR 3809) which proposed conditionally approving the SIP
revisions submitted by Ohio for Hamilton County. The proposed notice
discussed the State submittal, including background information, the
attainment demonstration, compliance methodologies, and the proposed
rulemaking action.
A. Attainment Demonstration
The principal requirement for the Ohio SO2 SIP under section
110 of the Act is that the plan provide sufficient enforceable measures
to assure attainment of the NAAQS for SO2. The State of Ohio
provided enforceable limits in the form of State regulations,
supplemented by an administrative order for one source, along with an
air dispersion modeling analysis which demonstrated that these limits
assure attainment in the Hamilton County area. The demonstration also
relied on a non-Federally enforceable operation limit for an Indiana
source. This issue is being resolved by the State of Indiana and is
discussed later in this document.
The modeling techniques used in the attainment demonstration
supporting this revision were based on procedures in the ``Guideline on
Air Quality Models (Revised),'' July 1986, including ``Supplement A,''
July 1987. The attainment demonstration incorporated air dispersion
models which are appropriate for modeling sources of SO2. The
majority of the attainment demonstration was comprised of output from
the Industrial Source Complex--Short Term (ISCST) air dispersion model;
however, several areas of Hamilton County were modeled using the Rough
Terrain Diffusion Model (RTDM). The appropriateness of the RTDM model
for use in this application was determined through a ``Model Evaluation
and Comparison Study'', conducted by the Greater Cincinnati Chamber of
Commerce, in cooperation with the OEPA and USEPA, Region 5. Based on
the results of the study, USEPA approved the RTDM model for use in
modeling sulfur dioxide sources in Hamilton County in a June 9, 1992,
letter from David Kee, Director, Air and Radiation Division, to Robert
Hodanbosi, Chief, Division of Air Pollution Control. The modeling
demonstration accompanying the SIP revision submittal incorporated
dispersion modeling output from both the ISCST model and the RTDM
model. Background concentrations were added to the modeled
concentrations for each averaging period, to produce overall maximum
concentrations of 1296 g/m\3\, 364 g/m\3\, and 78
g/m\3\, for the 3-hour, 24-hour, and annual averages,
respectively. These values were compared against the 3-hour, 24-hour,
and annual NAAQS concentrations of 1300 g/m\3\, 365
g/m\3\, and 80 g/m\3\.
During the development of the attainment demonstration, a modeled
violation was predicted near the Joseph E. Seagram and Sons, Inc.
(Seagram's) facility in Dearborn County, Indiana. In response to this
modeled violation, a commitment was obtained from Seagram's,
communicated in a letter from Seagram's to both the OEPA and the
Indiana Department of Environmental Management (IDEM), dated September
1, 1992, agreeing to not operate its two boilers simultaneously on
sulfur-bearing fuels without written permission from both State
Agencies. Utilizing this commitment, the OEPA submitted supplementary
modeling which demonstrated that areas near Seagram's, in Indiana, did
not exceed the sulfur dioxide NAAQS. However, in order for the
Seagram's limit to be Federally enforceable, it must be incorporated
into the Indiana sulfur dioxide SIP. Therefore, the Hamilton County
SO2 SIP revision is being approved conditioned on Seagram's
commitment, described above, being proposed for adoption into the
Indiana SO2 SIP within one year from the date of publication of
this Hamilton County SO2 SIP revision final rulemaking. It is
fully anticipated that the Indiana limit will be formalized in the
allotted time and, as a result, the Ohio revised rules will remain a
part of the SIP.
B. Compliance
The general compliance determination method denoted in OAC 3745-18-
04(D)(7), which applies specifically to Hamilton County, utilizes stack
gas sampling using Methods 1 through 4 and 6, 6A, 6B, or 6C, as
specified in 40 CFR 60.46, for any fuel burning equipment. Additional
compliance monitoring is required under OAC 3745-18-04(D)(8), which, on
a source-specific basis, requires either daily or weekly coal sampling.
The USEPA has determined, based on guidance contained in the ``General
preamble for future proposed rulemakings,'' published in the Federal
Register on April 16, 1992 (57 FR 13498), that compliance methods 1
through 4, 6, 6A, 6B, and 6C, in conjunction with regular fuel
sampling, provide for continuous SO2 compliance monitoring.
Additionally, documentation criteria listed in OAC 3745-18-04(I)
requires sources subject to the Hamilton County emission limits to
document and retain information needed to demonstrate compliance with
applicable emission limits, emission tracking requirements, and/or
operating limits.
III. Public Comment/USEPA Response
In response to the request for written comments on the proposed
rulemaking, USEPA received two sets of comments. The first set of
comments were received from Counsel for the Greater Cincinnati Chamber
of Commerce SO2 Task Force, in a letter dated February 25, 1994.
The second set of comments were received from the Ohio Environmental
Protection Agency, in a letter dated February 24, 1994. The following
discussion summarizes the comments and USEPA's response.
Comment: The notice of proposed rulemaking stated that it was
possible that future resolution of the U.S. D.C. Court of Appeals
remand, involving USEPA stack height guidance, would result in the
State of Ohio being required to revise the emission limitations for
Unit 5 at the CG&E Miami Fort facility. Both OEPA and the Cincinnati
Chamber of Commerce SO2 Task Force commented that, due to the
construction of a new 590-foot Good Engineering Practice (GEP) formula
stack, which was shown to be necessary through a fluid modeling study,
emission limitations at the CG&E Miami Fort Facility are not subject to
revision pending resolution of the stack height remand court case. The
Cincinnati Chamber of Commerce SO2 Task Force requested that USEPA
clarify this issue in the final rulemaking.
Response: In 1976, Miami Fort raised its Unit 5 stack from 70
meters to 87 meters. This was a within-GEP formula stack height
increase which occurred between December 31, 1970, and October 11,
1983, and was not supported by a fluid modeling study. Consequently,
this was an issue that fell into the scope of the D.C. stack height
remand case. However, USEPA agrees that the resolution of the stack
height remand case will not affect the within-GEP formula stack height
increase issue involving Unit 5, since a fluid modeling study has
subsequently been conducted to justify the construction of a new, 590-
foot GEP stack which now serves Units 5 and 6. The wind tunnel fluid
modeling study demonstrated that emissions from the older stacks at
CG&E's Miami Fort Station Units 5 and 6 created excessive
concentrations of SO2 due to building induced downwash, therefore
justifying the construction of the newer GEP stack.
Good Engineering Practice questions pertaining to Miami Fort
Station Unit 7 were resolved in a December 10, 1992, letter from USEPA
to OEPA, which concluded that the Unit 7 stack height was fully
creditable, based on the determination that the stack had been ``in
existence'' prior to December 31, 1970.
Comment: The OEPA and the Cincinnati Chamber of Commerce SO2
Task Force also both requested that the approved rule incorporate a
proposed variance for Procter and Gamble which would offer alternative
emission scenarios pertaining to start-up and shut-down of 4 boilers.
Response: The proposed variances have not been submitted to USEPA
as proposed SIP revisions. The USEPA is proceeding with final
rulemaking on the rule revisions which have been formally submitted by
the OEPA. The USEPA cannot approve a variance which has not been
adopted or submitted by the State. The Procter and Gamble proposed rule
revision, if and when submitted, will be dealt with through separate
rulemaking.
Comment: The Cincinnati Chamber of Commerce SO2 Task Force
commented that the proposed conditional approval of the Hamilton County
SIP revisions (conditional on the State of Indiana incorporating limits
into its SO2 SIP) is not necessary because of the commitment
letter submitted by the Indiana source, which would limit them
sufficiently to show attainment. Additionally, they commented that the
limits in the letter could easily be incorporated into a title V permit
for the source.
Response: It is necessary to condition the Hamilton County SO2
SIP revision approval upon action to be taken by the State of Indiana
because it is evident from the technical support that sources in Ohio,
although not the major contributors, are significant contributors to
modeled violations in Indiana. Subsequent modeling demonstrations,
using the self-imposed limits on the Indiana source, show attainment.
However, these limits can only support an attainment demonstration if
they are Federally enforceable. The USEPA notified the State of
Indiana, in a January 5, 1994 letter from Stephen Rothblatt, Chief,
Regulation Development Branch, Region 5 to Timothy J. Method, Assistant
Commissioner, Office of Air Management, IDEM, that the Seagram's limits
must be incorporated into the SO2 SIP by April 1, 1995, or a
notice of SIP deficiency will be issued. The IDEM responded in a letter
dated June 27, 1994, that the Seagram's limits will be incorporated
into Indiana's SO2 rule for Dearborn County and submitted to USEPA
as a SIP revision by April 1, 1995.
IV. Rulemaking Action
On January 27, 1994, USEPA proposed to conditionally approve
revisions to the emission limitations, compliance methodologies, and
compliance time schedules in Ohio's State Implementation Plan for
sulfur dioxide (SO2) for Hamilton County. The USEPA received two
sets of comments pertaining to the proposed rulemaking. All of the
comments were responded to in the above section of this document.
The USEPA concludes that the Ohio submittal will satisfy the
requirements of section 110(a)(2) of the Act, once Indiana fulfills its
commitment to incorporate the Seagrams limits into the Indiana SO2
SIP. Therefore, USEPA is taking final action to conditionally approve
the revisions to Ohio Administrative Code (OAC) rules 3745-18-03
Attainment Dates and Compliance Time Schedules, 3745-18-04 Measurement
Methods and Procedures, and 3745-18-37 Hamilton County Emission Limits,
as they apply to Hamilton County sources.
Under section 110(k)(4) of the Act, pertaining to conditional
approval, the SIP elements regarding the Seagram's limits must be
adopted by the State of Indiana and submitted to USEPA as a SIP
revision, by a date not later than one year after the date of approval
of this Hamilton County, Ohio SIP revision. In this case, if the State
of Indiana fails to adopt or submit the necessary rules within the
required time frame (September 23, 1995) or if USEPA disapproves the
limits as a SIP revision, this approval would become a disapproval upon
USEPA notification of Ohio by letter. The USEPA subsequently would
publish a document announcing such action in the Federal Register. If
the State of Indiana adopts and submits the rule within the above
timeframe, the conditionally approved rules would remain a part of the
Ohio SIP pending final action on the Indiana submittal.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The USEPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
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.
Conditional 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. EPA., 427 U.S. 246, 256-66 (S.Ct.
1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k) of the Act, based on the State's failure to meet the
commitment, it will not affect any existing state requirements
applicable to small entities. Federal disapproval of the State
submittal does not affect its state-enforceability. Moreover, USEPA's
disapproval of the submittal would not impose a new Federal
requirement. Therefore, USEPA certifies that this disapproval action
does not have a significant impact on a substantial number of small
entities because it does not remove existing State requirements nor
does it substitute a new Federal requirement.
This action makes final the action proposed at 59 FR 3809. The
USEPA received no significant adverse public comment on the proposed
action. The comments received did not object to the overall
approvability of the proposed revisions. One comment requested that
USEPA not condition the approval on actions to be taken by another
State. However, there is agreement that the limits on the Indiana
source are necessary and required for the Hamilton County attainment
demonstration. The remainder of the comments requested clarifications
and additional rulemaking. As a result of receiving no comments
substantively adverse to the approvability of the Hamilton County SIP,
the Regional Administrator has reclassified this action from Table 2 to
a Table 3 under the processing procedures published in the Federal
Register on January 19, 1989 (54 FR 2214-2225), as revised by an
October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant
Administrator for Air and Radiation. On January 6, 1989, the Office of
Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions
(54 FR 2222) from the requirements of section 3 of Executive Order
12291 for a period of 2 years. The USEPA has submitted a request for a
permanent waiver for Table 2 and 3 SIP revisions. The OMB has agreed to
continue the waiver until such time as it rules on USEPA's request.
This request continues in effect under Executive Order 12866 which
superseded Executive Order 12291 on September 30, 1993.
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 24, 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, Incorporation by reference, Reporting and
record keeping requirements, Sulfur oxides.
Note--Incorporation by reference of the State Implementation
Plan for the State of Ohio was approved by the Director of the
Federal Register on July 1, 1982.
Dated: July 26, 1994.
Michelle D. Jordan,
Acting Regional Administrator.
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 52.1919 is added to read as follows.
Sec. 52.1919 Identification of plan-conditional approval.
(a)(1) On October 16, 1991, and March 17, 1993, the Ohio
Environmental Protection Agency (OEPA) submitted revisions to the State
Implementation Plan (SIP) for sulfur dioxide for sources in Hamilton
County, Ohio. The revisions are approved provided that the State of
Indiana Department of Environmental Management (IDEM) submits to USEPA,
by September 23, 1995, a proposed SIP revision incorporating the limits
identified in the September 1, 1992, letter from Joseph E. Seagram and
Sons, Inc. to IDEM and the Ohio Environmental Protection Agency.
(i) Incorporation by reference.
(A) Ohio Administrative Code (OAC) Rule 3745-18-03 Attainment dates
and compliance time schedules, Sections (A)(2)(c); (B)(7)(a);
(B)(7)(b); (C)(8)(a); (C)(8)(b); (C)(9)(a); (C)(9)(b); (D)(1); (D)(2);
dated October 11, 1991, and effective on October 31, 1991.
(B) Ohio Administrative Code (OAC) Rule 3745-18-04 Measurement
methods and procedures, Sections (D)(7); (D)(8)(a) to D(8)(e); (E)(5);
(E)(6)(a); (E)(6)(b); (F); (G)(1) to (G)(4); (I); dated October 11,
1991, and effective on October 31, 1991.
(C) Ohio Administrative Code (OAC) Rule 3745-18-37, Hamilton County
sulfur dioxide emission limits, dated February 22, 1993, and effective
on March 10, 1993.
(D) Director's Findings and Order for Cincinnati Gas And Electric
Company, Miami Fort Station, dated February 22, 1993.
(b) [reserved].
[FR Doc. 94-20637 Filed 8-22-94; 8:45 am]
BILLING CODE 6560-50-P
