ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF THE TREASURY

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH-11-2-6106; OH-12-2-6107; FRL-4881-3]

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The United States Environmental Protection Agency (USEPA) is

giving partial approval, partial disapproval, and partial limited

approval/limited disapproval to specified portions of the requested

revisions to the Ohio's ozone State Implementation Plan (SIP). The

requested revisions consist of amendments to the Ohio Volatile Organic

Compound (VOC) Rules. The revisions were submitted by the State of Ohio

on June 9, 1988, and August 24, 1990, to satisfy part D requirements of

the Clean Air Act as amended in 1990 (CAA). The USEPA has evaluated

each revised rule and finds that a number of the regulations are fully

approvable, and a number are not approvable, and is partially approving

and partially disapproving these portions accordingly. The remainder of

the regulations, while deficient in some respects, would nevertheless

strengthen the existing SIP if federally approved. Therefore, the USEPA

is giving limited approval to these remaining regulations in order to

strengthen the SIP. Concurrently, the USEPA is giving limited

disapproval to these rules because they still contain deficiencies that

were required to be corrected by section 182(a)(2)(A) and, as a result,

do not fully meet the part D requirements of the CAA.

EFFECTIVE DATE: This final rule becomes effective June 8, 1994.

ADDRESSES: Copies of the SIP revision request, public comments on the

rulemaking, and other materials relating to this rulemaking are

available for inspection at the following address: (It is recommended

that you telephone Bonnie Bush at (312) 353-6684, before visiting the

Region V Office.)

U.S. Environmental Protection Agency, Region V, Air and Radiation

Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.

A copy of this revision request to the Ohio ozone SIP is also

available for inspection at the following address:

Office of Air and Radiation (OAR), Docket and Information Center,

(Air Docket 6102), room M1500, United States Environmental Protection

Agency, 401 M Street, SW., Washington, DC 20460, (202) 260-7548.

FOR FURTHER INFORMATION CONTACT: Bonnie Bush, Air Enforcement Branch,

Regulation Development Section (AE-17J), U.S. Environmental Protection

Agency, Region V, Chicago, Illinois 60604, (312) 353-6684.

SUPPLEMENTARY INFORMATION:

I. Summary of State Submittal

On June 9, 1988, the Ohio Environmental Protection Agency (OEPA)

submitted volatile organic compound (VOC) regulations governing 11

sources not covered by United States Environmental Protection Agency

(USEPA) Control Technique Guidelines (CTG) and the associated technical

support for these regulations. On August 24, 1990, the OEPA submitted

further revisions to the ozone portion of the Ohio State Implementation

Plan (SIP), specifically, revisions to Ohio Administrative Code (OAC)

Chapter 3745-21, ``Carbon Monoxide, Photochemically Reactive Materials,

Hydrocarbons, and Related Materials Standards,'' including amendments

to the following rules: OAC 3745-21-01, Definitions; OAC 3745-21-04,

Attainment Dates and Compliance Time Schedules; OAC 3745-21-09, Control

of Emissions of Volatile Organic Compounds from Stationary Sources; OAC

3745-21-10, Compliance Test Methods and Procedures; and OAC 3745-21-11,

Reasonably Available Control Technology Studies for Ozone. On July 23,

1991, the OEPA sent a letter to Region V withdrawing OAC 3745-21-11

from the August 1990 SIP revision request. The USEPA evaluated the

remaining revision requests from both the June 1988 and August 1990

submittals as the OEPA's effort to address the reasonably available

control technology (RACT) ``Fixup'' requirements under section

182(a)(2)(A) of the Clean Air Act as amended in 1990 (CAA).

On September 23, 1993, the USEPA published a notice of proposed

rulemaking in the Federal Register (58 FR 49458), proposing partial

approval, partial disapproval, and partial limited approval/limited

disapproval of the submittals. Public comments on this proposal were

accepted through October 25, 1993. Three comments were received, from:

(1) Navistar International Transportation Corporation, commenting on

the USEPA's proposed action on OAC 3745-21-09(U); (2) Porter, Wright,

Morris & Arthur, attorneys for Armco Steel Company, commenting on the

USEPA's proposed action on OAC 3745-21-09(OO); and (3) International

Paper, commenting on the USEPA's proposed action on OAC 3745-21-09(II).

II. Public Comment/USEPA Response

The following evaluation summarizes each comment received, along

with a summary of the USEPA's proposed action on the portion of the

requested revisions that received the comment, and the USEPA's response

to the comment. A more detailed discussion of the State submittal and

the rationale for the USEPA's proposed actions based on the CAA and

cited references, appears in USEPA technical support documents (TSD's)

dated October 19, 1988, and March 3, 1993.

A. Navistar International Transportation Corporation

Navistar commented on the USEPA's proposed action on OAC 3745-21-

09(U), Ohio's regulation for surface coating of miscellaneous metal

parts and products.

1. Proposed Action

The USEPA proposed disapproval of Rule -09(U) because of a number

of deficiencies involving inconsistency with RACT as defined by the

USEPA, lack of enforceability, and violation of the General Savings

Clause of the Clean Air Act. The inconsistencies with RACT include an

unjustified emission limit which is less stringent than RACT, an

unjustified emission limit which is a relaxation from the approved

ozone SIP, an inappropriate, unsupported applicability cutoff, and an

inappropriate use of a five percent equivalency demonstration. The

unsupported applicability cutoff requested in the revision is 10

gallons or less of coating applied per day. The USEPA has defined the

RACT cutoff as 15 lbs or less VOC emitted per day. The enforceability

deficiencies include use of vague language and language allowing

director's discretion without requiring USEPA approval.

2. Comments on Proposed Action and USEPA Response

a. Comment. Navistar supports the rule's applicability cutoff of 10

gallons or less of coating employed per day. The USEPA's RACT

applicability cutoff of 15 lbs VOC emitted or less per day is

economically unreasonable. Navistar's Springfield Assembly Plant in

Clark County is using coatings with more than 3.5 lbs VOC per gallon,

and if these lines were subject to the requirements of this rule, the

cost of control would range from $70,016 to $115,093 per ton of VOC

removed. Navistar would have to apply for variances, which is wasteful

of both time and resources.

b. USEPA Response. The cost of control quoted in the comment is

higher than control costs usually associated with RACT, but the comment

contains no documentation supporting these control cost figures. There

is also no documentation submitted with this comment that demonstrates

the unavailability of complying coatings or that this facility cannot

use complying coatings as a means of VOC control. Most importantly,

even if the commenter had submitted documentation of the quoted control

costs, this would apply to Navistar alone; statewide relaxation of this

applicability cutoff based on one facility would be unacceptable and

insupportable. If Navistar has documented support for the cost control

figures, the appropriate step for the company to take would be

application for a site-specific SIP revision. If Navistar does not wish

to apply for a SIP revision, the use of complying coatings is an

acceptable alternative method of compliance.

B. Porter, Wright, Morris & Arthur

Porter, Wright, Morris & Arthur commented on OAC Rule 3745-21-

09(OO), a non-CTG rule for the Armco Steel Company in Middletown, Ohio.

1. Proposed Action

The USEPA proposed concurrent limited approval (based on the SIP

strengthening effect of the rule) and limited disapproval of Rule -

09(OO) (based on lack of enforceability and inconsistency with RACT).

The SIP strengthening effect of the rule stems from the fact that this

rule provides some regulation for this source where no federally

enforceable regulation exists now. The enforceability deficiency stems

from a lack of recordkeeping requirements for the facility, and the

rule contains an unjustified VOC content limit for a coating operation

which is inconsistent with RACT recommendations. The rule also lacks

consideration of all non-CTG VOC sources at the plant, and rule

development for VOC emissions from volatile organic liquid (VOL)

storage tanks has been omitted.

2. Comments on Proposed Action and USEPA Response

a. Comment 1. Armco objects to limited approval of rules submitted

in 1988 and 1990. The emission limit of 0.3 lb VOC per gallon of

rolling oil excluding water in Rule -09(OO)(1) is an error. Armco

perfected an appeal of Ohio's adoption of this rule to the Ohio

Environmental Board of Review. Ohio subsequently adopted a new limit

for rolling oil, which is contained in the OEPA's June 7, 1993,

submittal to the USEPA. The USEPA should address only the new limit.

b. USEPA Response. The USEPA has had discussions with the OEPA

about the emission limit for rolling oil and understands that the 0.3

lb VOC per gallon limit was issued in error. The USEPA acknowledges

that this error has been addressed in Ohio's VOC rules submittal of

June 7, 1993; nonetheless, under section 110(k) of the CAA, the USEPA

is required to take action on the June 1988 and August 1990 submittals.

The USEPA agrees that it is inappropriate to approve into the SIP a

limit which is unreasonable and in error. The USEPA also believes that

the SIP strengthening effect of the remainder of this rule is

relatively insignificant. Therefore, the USEPA is disapproving Rule -

09(OO), rather than granting limited approval/limited disapproval. The

VOC rules package submitted on June 7, 1993, including a revised rule

for Armco Steel, is under review, and will be addressed in a subsequent

separate rulemaking action.

c. Comment 2. The recordkeeping inadequacies cited in the proposed

action have been corrected with Ohio's June 7, 1993, submittal.

d. USEPA Response. This rulemaking action addresses only the June

1988 and August 1990 submittals, which lack the necessary recordkeeping

and reporting requirements for Armco Steel. Under section 110(k) of the

CAA, the USEPA is required to take action on the June 1988 and August

1990 submittals. The VOC rule package submitted on June 7, 1993,

including a revised rule for Armco Steel, is under review, and will be

addressed in a subsequent separate rulemaking action.

e. Comment 3. Armco believes that the emission limit for anti-

galling material of 6.4 lb VOC per gallon, cited as deficient in the

March 3, 1993, USEPA TSD supporting the proposed action, constitutes

RACT as of the time of Ohio's most recent rulemaking action. Armco is

converting to a much lower VOC material, and this could form the basis

for a lower VOC limit, which should resolve any continuing concern with

this particular rule.

f. USEPA Response. As discussed in the notice of proposed

rulemaking, the State did not submit any demonstration that a lower VOC

content material was not available. The comment also lacks a

demonstration that a lower VOC content material was unavailable at the

time the rule was developed. However, the comment states that such a

material is available now; therefore, the 6.4 lbs VOC per gallon

emission limit clearly does not constitute RACT for this source. As

discussed above in the responses to Comments 1 and 2, this rulemaking

action addresses the June 1988 and August 1990 submittals only. The

most recent rule revision is under review, and will be addressed in a

subsequent separate rulemaking.

g. Comment 4. The USEPA's position that VOL storage tank emissions

must be addressed is inconsistent with a January 16, 1992, letter from

the USEPA to the OEPA which states that rule development is

unnecessary.

h. USEPA Response. The January 16, 1992, letter states. ``*** Ohio

is not required to develop a rule for this category at this time.'' Any

major source not covered by a CTG is subject to non-CTG RACT, as

required by sections 172(c), 182(a)(2)(A), and 182(b)(2) of the CAA.

The USEPA's March 1993 TSD and the notice of proposed rulemaking

indicate that the State is required to develop a rule for VOL storage.

However, lack of such rule development was not cited as the sole

deficiency for Rule 3745-21-09(OO) and was not the basis for

disapproval. The appropriate action on Rule -09(OO) remains disapproval

based on lack of recordkeeping requirements and a VOC content limit

which is inconsistent with RACT (see USEPA Responses to Comments 1, 2,

and 3).

C. International Paper

International Paper commented on OAC Rule 3745-21-09(II), a non-CTG

rule for the International Paper Company facility in Springdale, Ohio.

1. Proposed Action

The USEPA proposed concurrent limited approval/limited disapproval

of this rule. The SIP strengthening effect of the rule stems from the

fact that this rule provides some regulation for this source where no

federally enforceable regulation exists now. The proposal of limited

disapproval is based on deficiencies which include lack of

enforceability due to the absence of recordkeeping requirements for the

facility and a VOC content limit for fountain solution which is

inconsistent with RACT. The State submittal contains no demonstration

that a lower VOC content material is unavailable.

2. Comments on Proposed Action and USEPA Response

a. Comment. International Paper supports the OEPA's position as set

forth in the June 7, 1993, submittal. The June 1988 and August 1990

version of International Paper's rule ``specified limitations which

were erroneously developed and derived, and which have been corrected

in subsequent rulemakings.'' The USEPA should act only on the June 7,

1993, package.

b. USEPA Response. International Paper did not specify which

limitations they believe are in error, nor did they include in the

comments any information substantiating the error. International Paper

had opportunity to comment on this rule prior to its adoption by the

State during Ohio's public comment period. However, the record of

comments submitted into the Public Hearing Record included in Ohio's

June 1988 submittal contains no comments from International Paper.

Under section 110(k) of the CAA, the USEPA is required to take action

on the June 1988 and August 1990 submittals. The VOC rule package

submitted on June 7, 1993, including a revised rule for International

Paper, is under review, and will be addressed in a subsequent separate

rulemaking action.

III. Rulemaking Action

The comments were found to warrant one change from proposed to

final action on this SIP revision request. The USEPA has reconsidered

its position on OAC Rule 3745-21-09(OO): rather than giving concurrent

limited approval/limited disapproval, the USEPA is disapproving Rule -

09(OO).

In summary, the USEPA is disapproving the following rules: OAC

3745-21-01 (D)(6), (D)(8); OAC 3745-21-09 (I), (L), (N), (O), (Q), (R),

(U), (W), (Z), (DD), (EE), (OO); OAC 3745-21-10 (A), (C), (E), (O). The

USEPA is giving concurrent limited approval/limited disapproval to the

following rules: OAC 3745-21-01 (D)(45); OAC 3745-21-09 (A), (B), (C)

through (H), (J), (K), (S), (T), (X), (Y), (FF) through (NN), (PP); OAC

3745-21-10 (B). The USEPA is approving the following rules: OAC 3745-

21-01 (A), (B), (C), remainder of (D), (E) through (S); OAC 3745-21-04

(A), (B), (C); OAC 3745-21-09 (M), (P), (V), (BB), (CC); OAC 3745-21-10

(D), (F), (G), (I) through (N), (P).

Under section 179(a)(2), if the Administrator disapproves a

required submission under section 110(k) for an area designated

nonattainment, based on the submission's failure to meet one or more of

the elements required by the Act, one of the sanctions set forth in

section 179(b) will apply, as selected by the Administrator, unless the

deficiency has been corrected within 18 months of such disapproval.

Section 179(b) provides for two types of sanctions: highway funding and

offsets. The 18 month period referred to in section 179(a) will begin

to run for those provisions that the USEPA is disapproving (in full or

in a limited manner) as of the date the USEPA publishes this final

action. Moreover, this disapproval triggers the Federal Implementation

Plan (FIP) requirement under section 110(c). The sanctions and FIP

clocks are not started for Wood and Medina Counties by this final

action because the State was not required to submit RACT fix-up rules

for these areas.

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 Executive Order 12866, 58 FR 51735 (October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore, subject to Office of Management and Budget (OMB) review

and the requirements of the Executive Order. The Order defines

``significant regulatory action'' as one that is likely to result in a

rule that may: (1) Have an annual effect on the economy of $100 million

or more or adversely affect in a material way the economy, a sector of

the economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities; (2) create a serious inconsistency or otherwise interfere

with an action taken or planned by another agency; (3) materially alter

the budgetary impact of entitlements, grants, user fees, or loan

programs or the rights and obligations of recipients thereof; or (4)

raise novel legal or policy issues arising out of legal mandates, the

President's priorities, or the principles set forth in the Executive

Order. OMB has exempted this regulatory action from Executive Order

12866 review.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the

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, the 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.

SIP approvals under section 110 and subchapter I, part D of the CAA

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 CAA,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

CAA forbids the 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).

The USEPA's disapproval of the State request under section 110 and

subchapter I, part D of the CAA does not affect any existing

requirements applicable to small entities. Any pre-existing Federal

requirements remain in place after this disapproval. Federal

disapproval of the State submittal does not affect its State-

enforceability. Moreover, the USEPA's disapproval of the submittal does

not impose any new Federal requirements. Therefore, the 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 requirements nor does it impose any new Federal requirements.

The Agency has reviewed this request for revision of the federally-

approved State Implementation Plan for conformance with the provisions

of the 1990 Amendments enacted on November 15, 1990. The Agency has

determined that the approved portions of this action conform with those

requirements irrespective of the fact that the submittal preceded the

date of enactment. The Agency has determined that other portions of

this action do not conform with the statute as amended and must be

disapproved. The Agency has examined the issue of whether this action

should be reviewed only under the provisions of the law as it existed

on the date of submittal to the Agency (i.e., prior to November 15,

1990) and has determined that the Agency must apply the new law to this

revision.

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 July 8, 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

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Ozone, Reporting and record keeping

requirements, Volatile organic compounds.

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: April 22, 1994.

Valdas V. Adamkus,

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 52.1870 is amended by adding paragraph (c)(96) to read

as follows:

Sec. 52.1870 Identification of plan.

* * * * *

(c) * * *

(96) On June 9, 1988, and August 24, 1990, the Ohio Environmental

Protection Agency (OEPA) submitted revisions to the State

Implementation Plan for ozone. The revisions consist of new non-Control

Technique Guideline volatile organic compound (VOC) rules and

corrections to existing VOC rules.

(i) Incorporation by reference.

(A) OEPA Ohio Administrative Code (OAC) Rule 3745-21-01,

Definitions, Paragraphs (A), (B), (C), (D)(1) through (5), (D)(7),

(D)(9) through (62), (E) through (S); effective August 22, 1990.

(B) OEPA OAC Rule 3745-21-04, Attainment Dates and Compliance Time

Schedules, Paragraphs (A), (B), (C); effective August 22, 1990.

(C) OEPA OAC Rule 3745-21-09, Control of Emissions of Volatile

Organic Compounds from Stationary Sources, Paragraphs (A), (B), (C)

through (H), (J), (K), (M), (P), (S), (T), (V), (X), (Y), (BB), (CC),

(FF) through (NN), (PP), effective August 22, 1990.

(D) OEPA OAC Rule 3745-21-10, Compliance Test Methods and

Procedures, Paragraphs (B), (D), (F), (G), (I) through (N), (P);

effective August 22, 1990.

[FR Doc. 94-11072 Filed 5-6-94; 8:45 am]

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