Daily Rules, Proposed Rules, and Notices of the Federal Government
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 Kaushal Gupta at (312) 886-6803 or Jorge Acevedo at (312) 886-2263 before visiting the Region 5 office.
This supplementary information section is organized as follows:
This document is our approval of the SIP revision request that OEPA has submitted for its NSR program. In part, this document follows up on our April 22, 1996 proposed rulemaking action (61 FR 17669), in which we proposed to conditionally approve the SIP for general NSR rules and NSR rules for nonattainment areas. In this document, we address a series of SIP revisions made by OEPA since our April 22, 1996 proposal and explain why those revisions are approvable. We also approve additions to the SIP for general NSR language and for public notice procedures.
Because the fully approved NSR program is similar to the program that OEPA already operates under delegated
OEPA submitted its first NSR SIP revision request on January 31, 1972, and submitted replacement regulations on June 6, 1973. The regulations submitted by the State provided requirements, such as best available technology, that were meant to be uniformly applied throughout the State.
The Clean Air Act Amendments (CAAA) of 1977, however, required States to go further than uniformly applied regulations. The CAAA of 1977 provided for the designation of areas within a State as “attainment” or “nonattainment.” An “attainment” area meets the National Ambient Air Quality Standards (NAAQS) for one of six criteria pollutants: Total suspended particulates, sulfur dioxide, ozone, carbon monoxide, nitrogen dioxide and lead. A “nonattainment” area does not meet the NAAQS for one or more pollutants. The CAAA of 1977 required States to adopt more stringent regulations, such as offsets and lowest achievable emission rate (LAER), for new pollution sources in nonattainment areas.
OEPA submitted a request to incorporate revised regulations in the SIP on October 4, 1982, and January 24, 1993, in order to comply with the CAAA of 1977. These revised regulations sought to add the offset requirements to the SIP by incorporating Appendix S to Title 40, Part 51 of the Code of Federal Regulations. We granted only limited approval of the revised regulations on September 8, 1993 (58 FR 47214), stating that the regulations did not satisfy the nonattainment area planning requirements of Title I, Part D of the Clean Air Act (CAA).
The CAAA of 1990 imposed yet further NSR requirements for nonattainment areas. Pursuant to these latter amendments, OEPA submitted a request to revise the entire SIP package on August 20, 1993. We proposed to disapprove the SIP revision request because it was not sufficient to satisfy the Part D requirements of the CAA on March 4, 1994 (59 FR 10349). The final disapproval of the State request was published on September 21, 1994 (59 FR 48392).
OEPA submitted another SIP revision request on March 1, 1996. On April 22, 1996 (61 FR 17669), we proposed to conditionally approve the general and nonattainment provisions in the SIP. We stated that the proposed provisions were deficient for not providing a definition for “pollution control project.” We stated that this deficiency had to be corrected in order for the nonattainment provisions to be fully approved. OEPA subsequently submitted revisions to its request dated March 1, 1996, April 16, 1997, September 5, 1997, December 4, 1997, and April 21, 1998. We have not taken formal action on our proposed conditional approval of the nonattainment NSR program, nor have we previously acted on the subsequent SIP revision requests. The subsequent SIP revision requests allow us to fully approve the program for reasons described below.
The CAA requires that the public be given sufficient time to comment on a permit before the permit is issued. On August 19, 1999, OEPA submitted a request for approval of the incorporation of OAC 3745-47-01, 3745-47-02, 3745-47-03, 3745-47-05, 3745-47-07, and 3745-47-08(D) into the SIP.
Part D of Title I of the CAA requires OEPA to submit a SIP revision for NSR rules for nonattainment areas. OEPA submitted this SIP in the form of OAC 3745-31-21 to 3745-31-27. These rules were the subject of our April 22, 1996 proposed conditional approval. OEPA also submitted general NSR provisions applying to both attainment and nonattainment areas in the form of OAC 3745-31-01 to 3745-31-10.
Part C of Title I of the CAA requires public notice procedures for attainment areas. 40 CFR 51.165 and 51.166 contain the requirements for an NSR permitting program and for the public noticing of permits. OEPA satisfied these requirements by submitting OAC 3745-47-01, 3745-47-02, 3745-47-03, 3745-47-05, 3745-47-07 and 3745-47-08(D).
Yes, because OEPA has submitted rules that correct the deficiency that had prevented us from fully approving the rules. The January 21, 1997 submittal introduced a definition for “pollution control project” at OAC 3745-31-01(TT). OEPA's definition comports with the Federal definition at 40 CFR 51.165 (a)(1)(xxv).
The OEPA submittals subsequent to the March 1, 1996 revision request made some other definitional changes that we find approvable. The submittals amended or added the definitions for the following terms in OAC 3745-31-01 to make the Rule more consistent with 40 CFR 51: “Actual emissions,” “electric utility steam generating unit,” “major modification,” “reactivation of a very clean coal-fired electric utility steam generating unit,” “repowering,” and “representative actual emissions.” Because these amendments and additions make the Rule more consistent with Federal regulations, we find them approvable.
The submittals amended or added the definitions of the following terms to make them clearer or to consolidate the definitions at OAC 3745-31-01: “Clean coal technology demonstration project,” “major modification,” “modify” or “modification,” “net emissions increase,” and “temporary clean coal technology demonstration project.” Because these amendments and additions clarify and reorganize the rule without changing any of the definitions, we find them approvable.
The submittals amended the definition of “potential to emit” (PTE) at OAC 3745-31-01 in order to allow emission limits that are practically and legally enforceable by the State to be used to restrict the potential to emit of a source. OEPA has made this clarifying change based on the Federal definition of PTE being stricken by the Court ruling in
The SIP revision requests amended the definition of “modify or modification” at OAC 3745-31-01 as it applies to solid waste disposal facilities and infectious waste treatment facilities. The definition now requires a permit only for modifications that substantially increase the limits of solid waste placement horizontally or vertically, rather than for modifications that substantially change the depth of excavation, finished topography, or total capacity. We find this amendment approvable because it will reduce the number of permits issued for modifications that have no significant impact on air quality. Second, the definition of “modify or modification” now requires permits for a modification in waste handling, an increase in treatment capacity, or any other substantial change of an infectious waste treatment facility. Because this
Yes. OEPA's NSR attainment rules fulfill the requirements of the Clean Air Act with three exceptions: OEPA's rules do not include a 25 tons per year significance level for particulate matter; the 50 ton per year significance level for municipal solid waste landfill emissions as required by 40 CFR 51.166(b)(23)(I); and because total reduced sulfur and reduced sulfur compounds incorrectly exclude hydrogen sulfide. In a December 5, 2000, letter seeking comment on rule changes to OAC 3745-31, OEPA committed to correct the definition of significance in OAC 3745-31. Because OEPA's rules meet all of the requirements of 40 CFR 51.165 and 51.166 with these exceptions and OEPA has started the process to correct the deficiencies, it is appropriate to finalize the conditional approval. The conditional approval provides that if OEPA does not submit approvable changes within one year timeframe, we will disapprove OEPA's attainment rules.
Yes, because they fulfill the public participation requirements specified in Part C of Title I of the CAA, 40 CFR 51.165, and 40 CFR 51.166.
In a June 21, 1996 letter, the Ohio Electric Utility Institute submitted two formal comments in response to our proposed conditional approval of Ohio's NSR program. Below are the comments and our responses.
“First, the mere absence of certain federal definitions from the submitted New Source Review rules cannot be construed as evidence of Ohio EPA's intent to adopt a more stringent federal program. On the contrary, Ohio EPA has had a consistent policy of implementing its New Source Review program to afford the maximum flexibility provided by Federal law. Ohio EPA has implemented its policy of maximum flexibility, even though Ohio New Source Review rules did not include many specific Federal definitions. For instance, although Ohio EPA regulations never specifically provided for a “netting” rule in order to avoid PSD [Prevention of Significant Deterioration] or nonattainment review, Ohio EPA has consistently implemented its New Source Review permitting program to allow sources to “net” out of PSD or nonattainment review. Ohio accomplished this important policy decision by relying on other parts of Ohio statutory law and regulatory provisions which required Ohio EPA to issue permits in accordance with Federal law. This practice of incorporating Federal flexibility “by reference” into the Ohio air pollution control laws is one that is well established in Ohio and well understood by the Region. Accordingly, it is inappropriate for USEPA to infer that certain definitional omissions reflect an intent by Ohio EPA to be more stringent than Federal law. The Utilities suggest that in any final action on these rules, USEPA delete any textual material which implies or suggests that Ohio EPA did not intend to allow maximum WEPCO flexibility.”
In this rule, EPA approves OEPA's March 1, 1996 request, as amended by OEPA's April 16, 1997 request, for additions and revisions to OAC 3745-31-01 to 3745-31-10, and OAC 3745-31-21 to 3745-31-27. EPA also approves OEPA's August 10, 1999 request for additions to OAC 3745-47-01, 3745-47-02, 3745-47-03, 3745-47-05, 3745-47-07 and 3745-47-08(D).
EPA is publishing this action without prior proposal because EPA views this action as a noncontroversial revision and anticipates no adverse comments. However, in a separate document in this
Nothing in this action should be construed as permitting, allowing or establishing a precedent for any future request for revision to any State plan. Each request for revision to a State Plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. section 801
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 April 22, 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).)
Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur Oxide, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(126) On March 1, 1996, Ohio submitted revisions to its Permit to Install rules as a revision to the State implementation plan. The request was supplemented on April 16, 1997, September 5, 1997, December 4, 1997, April 21, 1998, and August 19, 1999.
(A) Ohio Administrative Code Rules 3745-31-01 through 3745-31-03, 3745-31-05, 3745-31-09, 3745-31-10, 3745-31-21 through 3745-31-27, effective April 12, 1996; 3745-31-04 and 3745-31-06, effective September 18, 1987; 3745-31-07 and 3745-31-08, effective August 15, 1982.
(B) Ohio Administrative Code Rules 3745-47-01, 3745-47-02, 3745-47-03, 3745-47-05, 3745-47-07 and 3745-47-08 (D), effective June 30, 1981.