02-19692. Completeness Status of Oxides of Nitrogen Regulations; Submission of a Complete Plan by the State of Ohio

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; completeness determination.

SUMMARY:

EPA is notifying the public that it has made a finding that Ohio's July 11, 2002 submission regarding State Implementation Plan (SIP) revisions for the reduction of oxides of nitrogen (NO_X) is a complete submission under the Clean Air Act. Ohio's SIP revision was submitted to satisfy EPA's October 27, 1998 regulation entitled, “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone,” otherwise known as the “NO_X SIP Call”. The NO_X SIP Call originally required 22 states and the District of Columbia to submit enforceable SIP measures to control NO_X emissions. The intended effect of a NO_X SIP revision is to reduce emissions of NO_X in order to help attain the national ambient air quality standard for ozone.

On December 26, 2000, EPA determined that Ohio, along with several other states, had failed to submit a SIP in response to the NO_X SIP Call, thus starting an 18-month clock for the mandatory imposition of sanctions and the obligation for EPA to promulgate a Federal Implementation Plan (FIP) within 24 months. On July 11, 2002, Ohio submitted a NO_X SIP and EPA has determined that Ohio's SIP submission is complete. Therefore, through this rule, EPA is notifying the public that the sanctions clock as it pertains to Ohio is terminated.

This determination is limited to the completeness of Ohio's submission and is not an approval of Ohio's plan. A determination as to the adequacy of Ohio's plan will be made at a later date and only after a thorough review of Ohio's submission by EPA personnel and the completion of rule and comment rulemaking.

EFFECTIVE DATE:

August 5, 2002.

FOR FURTHER INFORMATION CONTACT:

John Paskevicz, Engineer, Regulation Development Section, Air Programs Branch, Air and Radiation Division (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604, Telephone: [phone]. Copies of documents relative to this action are available at the above listed contact for inspection during normal business hours. The interested persons wanting to examine these documents should make an appointment at least 24 hours before the visiting day.

SUPPLEMENTARY INFORMATION:

The contents of this rule are listed in the following outline:

I. Background

A. What Criteria are Used to Judge the Submission Complete?

B. What is the Next Step?

II. What Action is EPA Taking Today?

III. Administrative Requirements

I. Background

Throughout this document, whenever “we,” “us” or “our” is used, we mean EPA.

This rule is simply an announcement that the NO_X SIP revision submitted by Ohio to EPA on July 11, 2002 has been found to be complete. NO_X control plans are required from certain states, including Ohio, as a result of EPA's NO_X SIP Call that found that certain upwind states were significantly contributing to ozone transport and preventing east coast states from attaining the ambient ozone air quality standard (63 FR 57356, October 27, 1998). Sources within states affected by this finding are large emitters of NO_X which, using available technology, can control NO_X emissions. These large emitters include coal fired electric generating units (EGUs) and industrial boilers (non-EGUs).

EPA's SIP Call established emission budgets, for all of the listed states (including the District of Columbia). Listed states are required to demonstrate in their NO_X plans that they can meet the EPA specified NO_X emissions budget. A major feature of the plans are allowance trading programs which states, including Ohio, have included to provide flexibility for sources to meet the strict emission reduction requirements of a state plan.

After a series of court challenges, the deadline by which most of the 22 states and the District of Columbia were required to submit NO_X SIP revisions was extended to October 30, 2000. See 65 FR 81366, December 26, 2000 (discussion of legal history surrounding EPA's NO_X SIP Call). Several states, including the State of Ohio, failed to submit NO_X plans by the October 2000 deadline. As a result, EPA published a finding of this failure in the Federal Register on December 26, 2000 (65 FR 81366). This finding triggered, among other things, a mandatory application of sanctions in the ozone non-attainment areas of states that did not submit a plan. The sanctions were scheduled to take effect within 18 months of January 25, 2001, the effective date of EPA's December 2000 finding. The triggered sanctions included, among other things, the imposition of 2:1 offsets on new source construction in ozone non-attainment areas.

On July 11, 2002, Ohio submitted a NO_X plan to EPA. EPA has reviewed the plan and has determined that it contains all of the required elements for a complete submission. Therefore, EPA is taking action to stop the previously scheduled sanctions from taking effect in Ohio.

A. What Criteria Are Used To Judge the Submission Complete?

The criteria by which we determined the submission to be complete are outlined in 40 CFR part 51, appendix V, Criteria for Determining the Completeness of Plan Submissions. These criteria include: (1) A formal letter of submittal from the governor or his designee requesting approval; (2) approved rules or regulations noting the dates of adoption or effective date of the plan; (3) evidence that the state has legal authority to adopt and implement the plan; (4) a copy of the regulation or rule; signed, stamped, and dated by the appropriate state official; (5) evidence that the procedural requirements of the state were followed; (6) evidence of public notice; (7) evidence of public hearings; (8) compilation of public comments; (9) inventory of affected sources; and (10) a budget demonstration. EPA has determined that the State of Ohio's July 11, 2002 submission, contains all of these elements.

B. What Is the Next Step?

EPA is taking the next step to perform a detailed technical review of Ohio's rules and budget demonstration to determine if Ohio's plan is approvable. EPA intends to publish the results of this review at a later date. Ohio has indicated, in its effort to develop a State plan, that it wishes to have an approved SIP for the control of NO_X emissions from affected sources and intends to work diligently to that end. EPA, therefore, will continue to work with Ohio towards the goal of approving Ohio's plan.

II. What Action Is EPA Taking Today?

Today, EPA is announcing to the public that Ohio has submitted a complete NO_X State implementation plan in response to EPA's NO_X SIP Call, originally published on October 27, 1998 (63 FR 57356). We are also announcing that all of the potential sanctions, some of which were scheduled to take effect on July 25, 2002, in Ohio non-attainment areas, will not take effect because we are affirmatively determining that Ohio has corrected the original deficiency (failure to file a plan) that formed the basis of EPA's December 2000 finding (65 FR 81366). EPA will take action regarding the approval or disapproval of Ohio's submission at a later date.

III. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, 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). This action merely finds that a State submission meets Federal requirements and imposes no additional requirements. Accordingly, the Administrator certifies that this 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.). This rule finds that a State submission is complete and as such does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This 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). 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 finds that a state submission is complete, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This 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.

The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This 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.).

This document is final agency action but is not subject to notice-and-comment requirements of the Administrative Procedures Act (APA), 5 U.S.C. 553(b). The EPA invokes, consistent with past practice (for example, 61 FR 36294), the good cause exception pursuant to the APA, 5 U.S.C. 553(b)(3)(B). The USEPA believes that because of the limited time provided to make findings of failure to submit and findings of incompleteness regarding SIP submissions or elements of SIP submission requirements, Congress did not intend such findings to be subject to notice-and-comment rulemaking. Notice and comment are unnecessary because no significant EPA judgment is involved in making a nonsubstantive findings of a SIP submission or elements of SIP submissions required by the CAA. Furthermore, providing notice and comment would be impracticable because of the limited time provided under the statute for making such determinations. The APA also provides that notice and comment may not be necessary where a rule relieves a restriction. Finally, notice and comment rulemaking would be contrary to the public interest because it would divert agency resources from the critical substantive review of complete SIPs. See 58 FR 51270, 51272, n.17 (October 1, 1993); 59 FR 39832, 39853 (August 4, 1994).

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 the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the 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 action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under the 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 27, 2002. 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).)

Authority: 42 U.S.C. 7401-7671q.

Dated: July 23, 2002.

Thomas V. Skinner,

Regional Administrator, Region 5.