Approval And Promulgation of Implementation Plans; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH29-1-6066; FRL-4854-9]

Approval And Promulgation of Implementation Plans; Ohio

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: On November 14, 1991, Ohio submitted major revisions to its

particulate matter regulations to make its State Implementation Plan

(SIP) consistent with its Statewide regulations and to satisfy Clean

Air Act requirements for the Cleveland and Steubenville nonattainment

areas. Ohio submitted supplemental material on December 4, 1991, and

January 8, 1992. USEPA published a notice of proposed rulemaking on

August 3, 1993, at 58 FR 41218. Six letters were submitted commenting

on this proposal. Although several commenters requested delay of this

final rulemaking, such delay is impermissible under section 110(k) of

the Act. USEPA has reviewed the submitted comments, and is taking final

action granting limited approval/limited disapproval as proposed, i.e.

approving all regulations except for two paragraphs, but determining

that the plan does not fully satisfy requirements under Part D of Title

I of the Act for the Cleveland and Steubenville areas. If the relevant

deficiencies are not remedied within 18 months, the first of the two

sanctions pursuant to section 179(b) of the Clean Air Act will take

effect.

DATE: This action is effective June 27, 1994.

ADDRESSES: Copies of the State's submittals, the public comment

letters, and USEPA's technical support document of February 24, 1994

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

recommended that you telephone John Summerhays at (312) 886-6067,

before visiting the Region 5 Office.)

U.S. Environmental Protection Agency, Region 5, Air and Radiation

Division (AE-17J), 77 West Jackson Boulevard, Chicago, Illinois 60604.

A copy of this revision to the Ohio SIP is available for inspection

at: U.S. Environmental Protection Agency, Attn: Jerry Kurtzweg (6102),

401 M Street SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Regulation

Development Section, Air Enforcement Branch (AE-17J), U.S.

Environmental Protection Agency, Region 5, Chicago, Illinois 60604,

(312) 886-6067.

SUPPLEMENTARY INFORMATION:

I. Background

Ohio submitted major revisions to its particulate matter

regulations on November 14, 1991, with supplemental submittals on

December 4, 1991, and January 8, 1992. USEPA published notice of

proposed rulemaking on August 3, 1993, at 58 FR 41218, proposing

limited approval of these submittals. The notice of proposed rulemaking

includes a history of requirements and State submittals, a description

of Ohio's submittal, a review of each submitted regulation, and reviews

of whether requirements in section 189 (including requirements for

attainment demonstrations and reasonably available control measures

(RACM)) and elsewhere in the Clean Air Act are satisfied, concluding

with a delineation of the proposed action. For convenience, this

section will provide highlights of relevant history and the next

section will repeat the description of the State submittal that was

provided in the notice of proposed rulemaking. A third section will

summarize the remainder of the notice of proposed rulemaking, including

the proposed action. A fourth section of today's notice will summarize

and review the public comments on the notice of proposed rulemaking.

The final section of discussion in this notice will describe the final

action on the State's submittal.

Ohio submitted its original SIP for particulate matter on January

31, 1972, and submitted substantial revisions on August 4, 1972. USEPA

approved the plan and the revisions, most notably including several

regulations in Chapter AP-3 (Particulate Matter Standards), on April

15, 1974, at 39 FR 13539. Revisions to AP-3-04, submitted on January

25, 1974, were approved on September 23, 1976, at 41 FR 41692. On

August 10, 1976, Ohio submitted EP-12 (Open Burning), which USEPA

approved on February 3, 1978, at 43 FR 4611.

Although the State provided various submittals between June 1980

and March 1985, and USEPA proposed rulemaking to approve these

revisions on January 2, 1987 (52 FR 91), these submittals were

subsequently withdrawn and no Statewide revisions were approved into

the SIP. Thus, with the exception of a small number of source-specific

limitations, the previously approved Ohio SIP for particulate matter

reflects the rules approved in 1974 and 1976, i.e. the 1972 version of

the rules now codified in Ohio Administrative Code (OAC) Chapter 3745-

17 (Particulate Matter Standards) and the 1976 version of the rules now

codified in OAC Chapter 3745-19 (Open Burning Standards).

On July 1, 1987, USEPA revised the National Ambient Air Quality

Standards (NAAQS) for particulate matter, refocussing the standard on

smaller particles. Pursuant to the Clean Air Act Amendments of 1990,\1\

Cuyahoga County and the Steubenville area (including portions of

Jefferson County, Ohio, and Brooke County, West Virginia) were

designated nonattainment for this revised standard, and the State was

required to submit plan revisions to assure attainment, require RACM,

and satisfy other requirements for these two areas.

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\1\The 1990 Amendments to the Clean Air Act made significant

changes to the Air quality planning requirements for areas that do

not meet (or that significantly contribute to ambient air quality in

a nearby area that does not meet) the particulate matter national

ambient air quality standards (see Pub. L. No. 101-549, 104 Stat.

2399). References herein are to the Clean Air Act, as amended, 42

U.S.C. sections 7401 et seq.

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II. Description of Ohio's Submittal

The State's submittal of November 14, 1991, as supplemented

December 4, 1991, and January 8, 1992, consisted of two principal

elements: (1) Statewide regulations, and (2) additional regulations,

emissions, and modeling information for Cuyahoga County and the

Steubenville area. The Statewide regulations, submitted pursuant to

Section 110, reflect substantial revisions to the 1974 regulations

presently in the SIP, and constitute the regulations that are presently

maintaining the air quality standards in much of the State. The

materials relating to the Cuyahoga County and Steubenville

nonattainment areas were submitted pursuant to Part D of Title I of the

Act, and include the more stringent regulations that Ohio identified as

needed to attain the standards in these areas.

The regulations submitted by Ohio include all of the rules in OAC

Chapter 3745-17 except Rule 3745-17-05 (``Nondegradation policy'') and

all rules in OAC Chapter 3745-75. (Rule 3745-17-06 contains no language

and is reserved.) The specific submitted rules in Chapter 3745-17

(Particulate Matter Standards) and associated titles are as follows:

Rule 3745-17-01--Definitions

Rule 3745-17-02--Ambient air quality standards

Rule 3745-17-03--Measurement methods and procedures

Rule 3745-17-04--Compliance time schedules

Rule 3745-17-07--Control of visible particulate emissions from

stationary sources

Rule 3745-17-08--Restriction of emission of fugitive dust

Rule 3745-17-09--Restrictions on particulate emissions and odors

from incinerators

Rule 3745-17-10--Restrictions on particulate emissions from fuel

burning equipment

Rule 3745-17-11--Restrictions on particulate emissions from

industrial processes

Rule 3745-17-12--Additional restrictions on particulate emissions

from specific air contaminant sources in Cuyahoga County

Rule 3745-17-13--Additional restrictions on particulate emissions

from specific air contaminant sources in Jefferson County

Rule 3745-17-14--Contingency plan requirements for Cuyahoga and

Jefferson Counties

The specific submitted rules in Chapter 3745-75 (Infectious Waste

Incinerator Limitations) and associated titles are as follows:

Rule 3745-75-01--Applicability and definitions

Rule 3745-75-02--Emission limits

Rule 3745-75-03--Design parameters and operating restrictions

Rule 3745-75-04--Monitoring requirements

Rule 3745-75-05--Recordkeeping

Rule 3745-75-06--Certification and compliance time schedules

Rules 3745-17-01 through 3745-17-11 and Rules 3745-75-01 through

3745-75-06 apply Statewide. Rule 3745-17-12 applies only to selected

sources in Cuyahoga County. Rule 3745-17-13 applies only to selected

sources in Jefferson County. Rule 3745-17-14 applies only to identified

sources in Cuyahoga and Jefferson Counties.

A second group of elements of Ohio's submittal is the documentation

of the State's demonstration that the regulations provide for

attainment in Cuyahoga County and in the Steubenville area, including a

comprehensive emissions inventory and documentation of a dispersion

modeling analysis. A third group of elements in Ohio's submittal is

administrative and regulatory material, principally to demonstrate the

adequacy of the State's rule adoption process.

III. Summary of Review in Notice of Proposed Rulemaking

The notice of proposed rulemaking provided a regulation-by-

regulation review of the State's submittal. Since the public comments

did not question the review of most of these regulations, this review

is not repeated here. The test method for measuring solids in quench

water, given in Rule 3745-17-03(B)(10)(c), was found not approvable

because the provision for monthly averaging provides insufficient

limitation on 24 hour average emissions levels and allows noncompliance

with the limit for a majority of the time. The quench water limit in

Rule 3745-17-12(P)(6)(a) was found not approvable simply because it is

inseparable from the unapprovable test method in Rule 3745-17-

03(B)(10)(c). Otherwise, the conclusion of this review was that all

regulations are approvable.

The stack opacity provisions of Rule 3745-17-07(A) contain several

provisions allowing sources to claim exemptions from the applicable

opacity limitation due to factors such as malfunction, startups,

shutdowns, soot blowing, and ash pulling. Generally, under the CAA and

U.S. EPA policy, sources are required to meet, without interruption,

all applicable emission limitations and other control requirements. For

an exemption from such requirement of continuous compliance to be

justified, the source must prove that an exemption applies and that the

violation could not have been prevented.

In accordance with these principles, USEPA has conducted a further

evaluation of various aspects of the stack opacity provisions of Rule

3745-17-07(A). This rule provides that stacks must generally exhibit 20

percent opacity or less, except for one 6-minute period of up to 60

percent opacity. Exempted from these limitations are restricted

conditions of malfunctions, startups, shutdowns, soot blowing, and ash

pulling. The rule authorizing the exemptions is approvable so long as

it is interpreted and applied consistently with the requirements of the

CAA and U.S. EPA policy regarding such exemptions.

In the case of malfunctions, the exemption is not available unless

the malfunction was unavoidable and unless the source has notified the

State of the claimed malfunction, demonstrated that it performed proper

operation and maintenance, and met various other conditions. USEPA

policy requires such regulations to place the burden of proof on the

source to demonstrate that the conditions for applicability of the

malfunction exemption are met, including: that the claimed malfunction

was caused by circumstances entirely beyond the control of the source;

could not have been prevented through installation of proper control

equipment, or through proper operation and maintenance procedures; and

that any activity which is or should be planned, or can be foreseen and

avoided, is not properly excused as a malfunction. USEPA interprets

Ohio's regulation to place this burden of proof appropriately on the

source. In accordance with USEPA policy, USEPA interprets Ohio's

regulation to provide that the enforcement authority (Ohio EPA, USEPA,

or both) must then evaluate whether the exemption has in fact been

demonstrated to apply.

Similarly, in the case of startups and shutdowns, an exemption from

the general opacity limit is available only until flue gas temperature

reaches 250 deg.F or for a 3-hour period, depending on the control

equipment in place. In cases where a source claims high opacity values

are to be exempted, USEPA interprets Ohio's rule to place the burden on

the source to document, based on temperature or operation records as

appropriate, that the exemption applies. USEPA also interprets the

exemption for soot blowing and ash handling to apply only if the source

can provide documentary evidence to demonstrate to the satisfaction of

the enforcement agency (Ohio EPA, USEPA, or both) that the exemption

criteria are satisfied.

USEPA is approving the rule containing above types of exemptions

based specifically on these interpretations of Ohio's rules, and with

the understanding that the exemptions are to be strictly interpreted,

as well as applied in a method that is consistent with the prohibition

of relaxation of existing control requirements in section 193 of the

CAA, 42 U.S.C. 7515. For further guidance on interpretation of

exemptions see 42 FR 21472 (April 27, 1977).

Additionally, with regard to the above exemptions, U.S. EPA will

treat the submission of any incomplete or erroneous information by a

source as a violation of this regulation, and will not allow an

exemption supported by such information. U.S. EPA's action does not

constitute advance approval of any exemptions which may be claimed or

issued under Ohio's regulations. Thus, U.S. EPA may take independent

enforcement action to the extent allowed by sections 113 and any other

applicable provisions of the CAA, notwithstanding the issuance of an

exemption by the State.

The fourth section of the notice of proposed rulemaking provided a

review of whether the submittal satisfied the requirements of section

189. These requirements apply to plans for particulate matter

nonattainment areas, which in Ohio include Cuyahoga County and a

portion of Jefferson County in and near Steubenville. Section

189(a)(1)(A) requires a suitable new source review program, and is

being addressed in a separate rulemaking. Section 189(a)(1)(B) requires

a demonstration that the plan will provide for attainment no later than

December 31, 1994, or, alternatively, a demonstration that attainment

by this date is impracticable. Section 189(a)(1)(C) requires the

implementation of RACM by December 10, 1993. Finally, Section 189(e)

provides that ``control requirements * * * for major stationary sources

of PM-10 shall also apply to major stationary sources of PM-10

precursors, except where the Administrator determines that such sources

do not contribute significantly to PM-10 levels which exceed the

standard in the area.''

The notice of proposed rulemaking provided a lengthy review of the

attainment demonstrations for Cuyahoga County and the Steubenville

areas. This discussion included a detailed description of the limits

and means of estimating corresponding allowable emissions from stack

sources, process fugitive sources, and open dust sources, as well as

the modeling procedures used to evaluate the air quality impacts of

these emissions. Although the State used appropriate estimates of

emissions allowed under applicable limitations for most sources, the

emissions estimates for a few sources in the Steubenville area were

found to significantly underestimate the emissions permitted by the

applicable regulations. The notice discussed emissions from Wheeling-

Pittsburgh Steel's basic oxygen furnace (BOF) in particular detail, as

well as discussing coke oven emissions and condensible particulate

matter. Most aspects of the dispersion modeling analysis were found

acceptable. However, the notice referenced various deficiencies in both

the emissions inventory and modeling analysis identified in the

technical support documents for this rulemaking, including improper

selection of an allowable emissions rate for certain boilers, use of

urban dispersion coefficients in modeling area sources, and inadequate

consideration of complex terrain. Based on a further modeling analysis,

USEPA proposed to find that the Cuyahoga County plan assures

attainment, provided the State makes its quench water limit fully

enforceable, but that the Steubenville area plan does not assure

attainment.

The next element of the notice of proposed rulemaking concerned the

requirement for RACM. In accordance with the ``General Preamble,''

published April 16, 1992, at 57 FR 13498, USEPA believes this

requirement can be satisfied without full implementation of all

potentially reasonably available control measures, provided attainment

is assured by the RACM deadline of December 10, 1993, and provided

attainment could not be expedited by more rapid implementation of

measures. (See 57 FR 13543.) For most of Cuyahoga County, these

provisos were found met, and the RACM requirement accordingly

satisfied. However, for Ford Motor Company's Cleveland Casting Plant,

certain measures necessary for attainment were not required to be

implemented until the end of 1994, nor did the State demonstrate that

measures required by December 1993 represent the full set of reasonably

available control measures. On the other hand, USEPA concluded that the

Steubenville area plan did require the full set of reasonably available

control measures by December 1993.

The final element of the discussion of Section 189 requirements

concerned provisions in Section 189(e) relating to particulate matter

precursors. The conclusion of this discussion was that such precursors

do not contribute significantly to particulate matter concentrations

which exceed the standard in either area.

A fifth section of the notice of proposed rulemaking evaluated

whether Ohio's submittals satisfied other Clean Air Act requirements.

The principal relevant requirements beyond those of Section 189 are

found in section 172(c). The following table summarizes the

requirements in each paragraph under section 172(c) and the conclusion

in the notice of proposed rulemaking as to whether each requirement is

satisfied in each of the two nonattainment areas:

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Section Requirement Conclusion of review

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172(c)(1) RACM.............................. Satisfied in Jefferson but not in Cuyahoga.

172(c)(2) RFP............................... Satisfied in Cuyahoga\2\ but not in Jefferson.

172(c)(3) Suitable inventory................ Satisfied in Cuyahoga\2\ but not in Jefferson.

172(c)(4) Growth margin..................... Satisfied in both areas.

172(c)(5) Suitable permit program........... Not addressed in this rulemaking.

172(c)(6) Enforceability.................... See text.

172(c)(7) Proper adoption................... Satisfied in both areas.

172(c)(8) Equivalent procedures............. Not applicable to either area.

172(c)(9) Contingency plans................. Not addressed in this rulemaking.

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\2\The proposed approval with respect to these paragraphs was contingent on suitable revision of the test method

for the coke quenching limit.

Section 172(c)(6), which requires that limitations sufficient to

provide for attainment be enforceable by the State and USEPA, was found

to be satisfied with respect to all but two paragraphs (relating to

quench water quality) for Cuyahoga County2 and was found not to be

satisfied for the Steubenville area.

The final element in the notice of proposed rulemaking was a

delineation of the proposed rulemaking action. The action proposed was

limited approval. Specifically, USEPA proposed to approve all of the

regulations except for the two paragraphs noted above relating to

quench water quality, i.e. paragraph (B)(10)(c) of Rule 3745-17-03 and

paragraph (P)(6)(a) of Rule 3745-17-12. At the same time, USEPA

proposed to approve these paragraphs if the test method is revised to

provide either a single day limit or weekly averaging of 5 days'

samples.

USEPA also proposed to find that the State's submittals satisfy

several Part D requirements. Most notably, USEPA proposed to find that

the Cuyahoga County plan satisfied the requirement to assure

attainment, provided that the limitation on coke quench water quality

is made properly enforceable, and proposed to find that the

Steubenville area plan satisfied the requirement for timely RACM.

However, USEPA proposed to find that certain requirements of Part D

were not satisfied for these two areas. Most notably, USEPA proposed to

find that the Cuyahoga County plan did not satisfy the requirement for

timely RACM, and proposed to find that the Steubenville area plan did

not satisfy the requirement for assuring attainment. The notice of

proposed rulemaking indicated that the RACM requirement would be

satisfied in Cuyahoga County if attainment were assured by December

1993, which would be the case if the measures currently required at

Ford by December 1994 were to be required by December 1993 and the

quench test method were revised. Finally, USEPA proposed to determine

that sources of particulate matter precursors do not presently

contribute significantly to violations of the particulate matter

standard in Ohio.

IV. Summary and Review of Comments

Six letters were submitted commenting on this proposal, including

letters from the Ohio Environmental Protection Agency (OEPA), Wheeling-

Pittsburgh Steel Company, Centerior Energy Corporation, the law firm

Fuller & Henry (representing a group of Ohio utilities), the law firm

Porter, Wright, Morris & Arthur (representing Ford Motor Corporation),

and the law firm Squires, Sanders & Dempsey (representing several steel

companies). The following is a summary of each comment and USEPA's

review of the comment:

Comment: Several commenters requested that USEPA defer rulemaking

on Ohio's submittal. These commenters noted that the rules are under

appeal to the State's Environmental Board of Review and that several

revisions to these rules are anticipated within the next few months.

These commenters requested that USEPA wait for these anticipated rule

revisions before proceeding with rulemaking.

One commenter provided a more detailed rationale for USEPA to defer

rulemaking. First, given the commenter's presumption that the Ohio

rules will be changed in the near future, USEPA approval of the current

rules would soon result in a situation in which companies confront

State rules that differ from USEPA-approved rules. Second, the

commenter states that USEPA cannot enforce a State rule which a State

court has declared void ab initio. The commenter urges that USEPA defer

rulemaking to avoid this confusion as to enforceable requirements.

Response: Section 110(k)(2) requires action on SIP submittals

within 12 months of the date USEPA finds the submittal complete. Since

USEPA found this submittal complete on January 28, 1992, USEPA is long

overdue for completing action on the State's submittal, and no further

delay is justified.

USEPA cannot defer rulemaking on rules submitted by the State

simply because the State may subsequently revise those rules.

Differences between State enforceable rules and federally enforceable

rules also arise whenever USEPA disapproves a State rule. In neither

case does the potential for such differences constitute basis for USEPA

action (or inaction), and in both cases the set of rules approved by

USEPA are fully federally enforceable. Regardless of the merits of the

commenter's statements for cases in which a State court has declared

rules void, in this case no State court has declared judgment on these

rules and no evidence was provided that the rules do not remain in

effect at the State level. USEPA is acting on the rules as Ohio has

submitted them for approval.

If the State does adopt and submit the anticipated rule revisions,

USEPA intends to rulemake promptly on such submittal. Some of the

anticipated revisions are discussed below in the context of other

comments. To the extent that these revisions simply revisit issues

already discussed in the notice of proposed rulemaking and do not raise

new issues, USEPA can publish notice of final action on such revisions

without another notice of proposed rulemaking.

Comment: Several commenters found the visible emissions limitation

on storage piles to be unreasonably strict. This limitation, in Rule

3745-17-07(B)(6), permits no visible emissions from storage piles

except for 13 minutes per hour. These commenters noted the likelihood

that continuous equipment operation would lead to continuous visible

emissions, and so the limit ``is impossible to achieve.'' One commenter

presented a survey of visible emissions readings at storage piles in

which 21 of the 22 hours of readings exceeded the limit. This commenter

also noted that every part of the Ohio EPA data set used to support its

rule development that was taken of vehicular traffic at a coal pile

showed greater than 13 minutes per hour of visible emissions. This

commenter was further concerned that Ohio apparently intended to apply

the above limitation to load-in operations, which the commenter

believes should be given a separate opacity limit. Another commenter

also stated that it had taken readings which ``indicated that, with

RACM in place (emphasis in original), the operations on [an observed

storage pile] could not comply'' with the limit.

A related concern regards the method used to evaluate visible

emissions from storage piles. One commenter objected that the question

of whether Method 22 readings should be taken at a fixed point or a

moving point depending on the movement of a bulldozer is not addressed

in any formal guidance and is based on ```guidance' consist[ing]

primarily of a memo written by John Summerhays'' of USEPA Region V. The

commenter notes further that the ``Summerhays memo'' is inconsistent,

insofar as it recommends that visible emissions for roadways be read at

a fixed point but for storage pile be read at a variable location

reflecting source relocation. Furthermore, the commenter believes that

most of the material that becomes airborne near a bulldozer promptly

redeposits and should not be counted as visible emissions. For these

reasons, the commenter believes that the method is impracticable and

unclear and should not be approved. In addition, several other

commenters indicated that Ohio's visible emissions limitation, as

evaluated by this method, cannot reasonably be achieved.

Response: The commenters have provided evidence suggesting that

Ohio's limit is difficult to meet. Nevertheless, USEPA believes that

this limitation is achievable. Ohio submittal included a study

involving opacity readings at numerous storage piles which was used to

develop these limits. Although the commenters have provided

supplemental data and reviewed the subset of data from Ohio's study

that was obtained at coal piles, the commenters have not provided a

rationale for concluding that coal piles are different from other types

of storage piles or that the limits which Ohio's study shows to be

reasonable for storage piles in general are not reasonable for coal

piles in particular. For example, the commenters have not shown either

that coal piles are more continuously worked or that coal pile

operations are more prone to cause emissions than other storage piles.

One commenter's own data set includes results implying that adequate

moisture leads to compliance, and it is possible to achieve compliance

by restricting operations. The commenters did not provide any detailed

information on the control measures in place at the time of the

readings, and thus have not demonstrated that a greater level of

control could not achieve the limit. The commenters have also not

addressed typical durations of truck or stacker loading or demonstrated

that such loading cannot be restricted in duration or conducted with

curtains or other controls to achieve compliance with the State's

limit. Notwithstanding the commenters concerns, in accordance with

Section 116, USEPA cannot disapprove an enforceable, achievable State

submittal because it is too stringent.

The commenters have correctly noted that USEPA interprets Method 22

to provide for evaluating whether visible emissions are occurring

anywhere at a storage pile. The alternative is to conduct this

evaluation only at a fixed point. This alternative would provide

meaningless results, since visible emissions would likely only be

identified for those moments when an emissions generating event (e.g.

bulldozing) happened to occur at the fixed location. Although the

commenter is correct that Method 22 is not explicit on this issue,

USEPA's interpretation is longstanding and is analogous to USEPA's

longstanding interpretation that Method 9 opacity readings are also to

be taken at the densest part of a plume at the time of each reading.

Clearly the interpretation of test methods affects the stringency of

the limitation, but this does not constitute grounds for disapproving

the State's submittal, nor does it constitute grounds for altering

USEPA's interpretation of the test method.

USEPA recognizes that the State is discussing potential rule

revisions with the companies that appealed its rules. However, no

specific revisions have been identified or proposed. If and when the

State adopts and submits an alternative limitation (e.g., an

appropriate opacity limitation), USEPA will conduct prompt rulemaking

on such a revision.

Comment: Several commenters objected to the limits on the number of

minutes of visible emissions from roadways and labeled these limits

unreasonable. One commenter notes that ``Method 22 would allow

observations to be made at the rear wheels while following vehicles

down the road. As the Utilities continuously have hauling trucks

entering and exiting the premises, this standard is very difficult, if

not impossible, to meet.''

Response: Part of Ohio's submittal is a summary of a study

demonstrating that the limits it adopted can be achieved. As with the

storage pile limit, discussed above, USEPA believes that this limit is

achievable. Also as with the storage pile limit, USEPA cannot

disapprove a State submittal simply because commenters consider the

limit too stringent. Again, if and when the State adopts and submits a

replacement limitation (e.g. an appropriate opacity limit), USEPA will

conduct prompt rulemaking on such replacement limitation.

Comment: One commenter expressed concern about the 20 percent

opacity/3-minute average limit as applied to ash handling. The

commenter concedes that emissions are generally low when ash is

pneumatically conveyed, but recommended 6 minute averaging to permit

reasonable time to clean up spills. For loading of ash into dump

trucks, the commenter noted limits on the extent to which the ash could

be watered, summarized a series of opacity readings showing about half

of the 3-minute averages exceeding 20 percent, and recommended a 35

percent opacity limit.

Response: For pneumatic loading, the commenter has conceded that

the limit is generally achievable, and even with respect to spill

conditions has not demonstrated that reasonable measures will not yield

compliance with the 20 percent/3-minute average limit. For dump truck

loading, the commenter has not indicated what control measures were

undertaken during the ash loading events that did and did not comply

with the 20 percent limit or what differences might explain why

compliance occurs in some cases and not in others. Therefore, the

commenter's information does not demonstrate the limits to be

infeasible and, in fact, suggests that reasonable measures yield

compliance.

Comment: One commenter expressed concern that the limitations

imposed for open dust sources in Cuyahoga County should not be

considered to represent best available technology.

Response: ``Best available technology'' is a requirement for new

sources, which are not addressed in this rulemaking. Therefore, this

comment is not germane to this rulemaking.

Comment: One commenter disagrees with USEPA's proposed finding that

Ohio's rules do not require timely implementation of RACM at Ford Motor

Company's Cleveland Casting Plant. The comments focus on the cupolas,

stating that control options previously under consideration are beyond

what controls should be considered reasonably available. Nevertheless,

the commenter states that ``Ford has already submitted to Ohio EPA an

alternative control strategy that would provide for all reductions

necessary for attainment to occur by December 10, 1993.''

Response: Although the commenter believes that further control of

the cupolas are not reasonably available, the commenter has not

provided any detailed information to support its view. Also, the

commenter does not address other emission points identified as not

demonstrated to have RACM by December 10, 1993. No revised rules have

been submitted, and so USEPA must conclude that the submitted rules do

not satisfy the requirement in section 189(a)(1)(C) for RACM in

Cuyahoga County.

The notice of proposed rulemaking notes that one alternative for

satisfying section 189(a)(1)(C) would be to advance the post-1993

control requirements so as to assure attainment by December 1993. Ford

has apparently recommended State rule revisions which would satisfy the

RACM requirement in this manner. If Ohio adopts and submits rule

revisions which require that all measures necessary for attainment be

implemented by December 1993, and no substantive new issues are raised

by the submittal, USEPA would be able to publish final rulemaking

approving such a revision and concluding that the RACM requirement is

satisfied.

Comment: A commenter notes that Ford has challenged various

provisions of the State rules, including the open dust limits, the

reduced exemptions from the general stack opacity limit for startup and

shutdown, the procedure for establishing equivalent visible emission

limits, and the provision that contingency measures could be triggered

based on air quality data collected before all SIP control measures are

implemented.

Response: The commenter has not provided a basis for USEPA to

disapprove these provisions which were proposed for approval. If the

State adopts and submits revisions to these aspects of its plan, USEPA

will conduct prompt rulemaking on the submittal. It should be noted

that Ford's revised compliance schedule will provide that all measures

shown necessary for attainment will be implemented prior to the first

year of monitoring data (i.e. 1994) which under Section 188(d) is to be

used to judge attainment.

Comment: Wheeling-Pittsburgh Steel provides extensive discussion of

a modeling reanalysis it plans to conduct both to reassess emissions

from its facility and to reassess the impact of these emissions.

Response: These comments do not provide any modeling results or

other information to indicate that the current rules provide for

attainment. These comments also propose several modeling techniques

which differ from standard practice (e.g., the use of plume rise for

the basic oxygen furnace (BOF) based on the Buoyant Line Plume Model)

that have not been justified. In the absence of detailed documentation

of a modeling analysis properly demonstrating that attainment is

assured, USEPA must continue to conclude that the requirement in

Section 189(a)(1)(B) for assuring attainment has not been satisfied.

Comment: A commenter identifies several reasons to believe that the

BOF at Wheeling-Pittsburgh Steel does not have a high fugitive emission

rate. First, no exceedances have been monitored since 1989. Second,

these emissions have been in compliance with the 20 percent/3-minute

average opacity limit. Third, evidence included in the State's SIP

submittal indicates that modeling more closely reproduces monitored

concentrations if a relatively modest emission rate is assumed. This

commenter expresses concern that this portion of the SIP submittal may

have been overlooked.

Response: Each of the commenter's reasons for expecting low BOF

fugitive emissions may be addressed individually. First, the commenter

is correct that no exceedances have been observed after 1989. However,

monitoring data provide only a limited indication of fugitive emissions

from the BOF, since monitoring data reflect the impact of multiple

sources and reflect actual emissions rather than allowable emissions.

More generally, in order to assure attainment, the State's plan must

establish limits such that attainment would occur even if all sources

were emitting at full allowable emissions. (See Guidelines on Air

Quality Models.) Thus, the absence of monitored exceedances does not

indicate that emissions at the BOF or at other nearby sources are

sufficiently limited to assure attainment.

Second, the commenter notes that the BOF is in compliance with the

applicable opacity limit. However, this comment does not address the

key question here, namely the quantity of emissions that the applicable

opacity limit permits from this source.

Third, the commenter notes that a modeling-monitoring comparison

suggests relatively low BOF emissions. This comparison is described

most fully in Appendix H to a document presenting the control program

suggested by Wheeling-Pittsburgh Steel Corporation, a document which is

included as section (d) of Appendix I of the State's submittal. USEPA's

technical support document for this final rulemaking provides a more

detailed review of this comparison. USEPA finds the comparison

unreliable, because the analysis found concentrations that did not

change in accordance with changes in emissions, because differences

among current allowable emissions and actual emissions at various times

were not accounted for, and because spatial prediction errors

(particularly in complex terrain) and other factors introduce

substantial uncertainties into this type of comparison. Consequently,

the comparison between modeled and monitored concentrations does not

justify the low emission rate recommended by the company.

Contrary to the commenter's concern, the proposed rulemaking does

reflect a review of the full document prepared by a Wheeling-Pittsburgh

Steel contractor and submitted by the State. The principal argument in

this document relates to the quantity of solids collected in the

pollution control equipment, and is addressed at column 1 of 58 FR

41223 of the notice of proposed rulemaking. It should be noted that no

specific basis for estimating 99.5 percent capture has been provided,

and this estimate yields an emission rate substantially lower than a

``BOF monitor'' emission factor also provided in AP-42. Appendix H also

provides visible emissions data showing opacity values slightly above

allowable levels, but concedes that these data do not support any

particular emission rate.

In summary, the notice of proposed rulemaking reflected

consideration of the evidence contained in the State's submittal,

concluded that allowable emissions at the BOF are substantially greater

than those assumed in the attainment demonstration, and concluded that

the State's analysis did not adequately demonstrate attainment. The

commenters have not provided adequate basis to alter this finding.

Comment: A commenter believes that the State's submittal adequately

addresses intermediate terrain. The commenter states that ``at the time

of our analysis (January through September 1991), no EPA approved model

existed for intermediate terrain processing. We used software developed

for PSD applications in complex terrain in West Virginia and

Pennsylvania and approved by EPA Region III.''

Response: USEPA guidance now and at the time of SIP development

(1991) requires the use of both a simple terrain model and a complex

terrain model at all intermediate terrain receptors. The higher

estimated concentration on an hour by hour basis is used to judge

attainment. (See Guidelines on Air Quality Models and a memorandum on

the subject dated June 8, 1989, to Alan Cimorelli from Joseph Tikvart,

chief of USEPA's Source Receptor Analysis Branch.) The commenter is

correct that no single model was available at the time of SIP

development (1991) to perform the full analysis. Nevertheless,

procedures were (and are) available to perform such an analysis (or, in

many cases, to perform briefer analyses demonstrably giving the same

results), some of which were recommended to Ohio and West Virginia in a

meeting with USEPA in March 1991. As for PSD applications, USEPA does

not approve PSD permits in West Virginia or Pennsylvania. Although it

is conceivable that USEPA may have failed to identify inappropriate

treatment of intermediate terrain in selected PSD cases, the commenter

has not shown that a precedent has been knowingly set that would be

germane to this SIP analysis. Thus, no basis for exempting the State

from this requirement exists.

Comment: The State comments that condensible particulate matter

emissions are negligible in the Steubenville area, but agrees to

reexamine the issue and to address the issue in further documentation

to be provided to USEPA.

Response: The technical support document for the notice of proposed

rulemaking identified absence of condensible particulate matter in the

Steubenville emissions inventory as one of the deficiencies in the

area's attainment demonstration. These emissions may or may not be

minor, and this deficiency cannot be considered addressed without

evaluation of available information for the emission points contained

in the inventory.

Comment: The State confirms USEPA's understanding that limits in

Rule 3745-17-08(B) apply to all coke pushing operations and all vented

material handling operations in the State.

Response: The notice of proposed rulemaking expressed concern as to

the enforceability of Rule 3745-17-08(B) for coke pushing and ventable

materials handling operations. This rule requires implementation of at

least one of nine reasonably available control measures, and sets a

limit of 0.030 grains per dry standard cubic foot (or no visible

emissions) if venting is required. USEPA proposed to interpret this

rule as applying this limit to coke pushing and ventable material

handling operations. The State's comment confirms that this

interpretation is appropriate and consistent with the State's

interpretation.

Comment: One commenter noted that USEPA's notice of proposed

rulemaking incorrectly characterized the limit for the one allowed

excursion of the general stack opacity limit as being 27 percent.

Response: The commenter is correct. The Ohio general stack opacity

rule being approved today allows the one permissible 6-minute average

excursion of the usual 20 percent opacity limit to have up to 60

percent opacity.

Comment: One commenter submitted a lengthy statement of appeal of

the State rules, thereby submitting a variety of comments. These

comments are described further in USEPA's technical support document

for this rulemaking. The comments include expressions of concern about

BOF opacity limits, procedures used to adopt these State rules,

accuracy of emissions parameters for LTV, and the need for controls

given that monitoring shows attainment.

Response: USEPA's technical support document provides a review of

each of the submitted comments. In summary, USEPA has substantial

evidence that the BOF opacity limit is reasonably achievable, USEPA

remains satisfied with the procedures used to adopt these rules, USEPA

has no reason to doubt any specific emission parameter (other than the

allowable emission rate for coke quenching), and monitoring does not

address whether emissions at full allowable rates would cause

violations.

Comment: Ohio EPA indicated plans to modify its rules in several

ways to address USEPA's concerns. Ohio EPA intends to revise its quench

water test method to provide for weekly averaging of 5 days' samples.

Ohio EPA intends to submit a revised attainment demonstration for the

Steubenville area. Ohio EPA intends to modify its rules to require that

the entire control plan for Ford's Cleveland Casting Plant be

implemented by December 10, 1993, thereby providing timely satisfaction

of the RACM requirement in Section 189(a)(1)(C).

Response: It appears likely that the anticipated rule revisions

concerning quench water testing and concerning Ford's compliance

schedule will satisfactorily address the relevant USEPA concerns.

However, USEPA cannot base its review on anticipated rule revisions and

analyses which have not yet been submitted. The comments do not justify

revised judgment of the November 1991 submittal. However, with respect

to the Cuyahoga County plan, if Ohio adopts and submits rule revisions

as indicated in its comments, USEPA expects to be able to publish a

notice of final approval of this plan, without further proposal.

With respect to Jefferson County, separate rulemaking is being

conducted with respect to the plan for the other part of the

Steubenville area, in Brooke County, West Virginia. A notice of

proposed rulemaking was published on January 7, 1994, at 59 FR 988. As

a comment on the January rulemaking on West Virginia's SIP, Wheeling-

Pittsburgh Steel submitted a revised modeling analysis. This material

does not warrant revising the proposed evaluation of Ohio's submittal

for several reasons. First, this material was submitted as a comment on

a separate rulemaking, was not submitted with respect to this

rulemaking or within the comment period for this rulemaking, and thus

is not directly relevant to this rulemaking. Second, as discussed in

more detail in a supplemental USEPA technical support document, a

review of this material indicates that unjustified nonreference

modeling and other inappropriate modeling techniques were used. Third,

these materials do not dispute USEPA's judgment of Ohio's submittal,

but instead seek to show that an alternate analysis would demonstrate

the adequacy of the State's plan to assure attainment. Section

189(a)(1)(B) requires that the State submit a demonstration that its

plan assures attainment (or that attainment is infeasible). For these

reasons, Wheeling-Pittsburgh Steel's comments do not alter USEPA's view

that the State has not demonstrated that its plan for the Steubenville

area assures attainment.

V. Today's Action

Based on the review underlying the proposed action and a review of

comments on that proposal, USEPA is today granting limited approval/

limited disapproval of Ohio's particulate matter submittal.

Specifically, USEPA is today making final the action proposed on August

3, 1993 (58 FR 41218). Thus, USEPA is approving all regulations in

Chapter 3745-17 and Chapter 3745-75 except for Rule 3745-17-05 (which

was not submitted) and except for Rule 3745-17-12(P)(6)(a) and Rule

3745-17-03(B)(10)(c) (pertaining to quench water quality). USEPA is

disapproving Rule 3745-17-12(P)(6)(a) and Rule 3745-17-03(B)(10)(c).

On the other hand, USEPA is today issuing final limited disapproval

of Ohio's plans for Cuyahoga and Jefferson Counties for failure to

satisfy certain requirements of Part D. The bases for the disapproval

of the Cuyahoga County plan are the failure to satisfy the requirement

for RACM given in sections 189(a)(1)(C) and 172(c)(1) and the failure

to assure attainment as required in section 189(a)(1)(B) and to satisfy

the related requirements in sections 172(c)(2), 172(c)(3), and

172(c)(6). Although the notice of proposed rulemaking did not

explicitly propose to find failure to assure attainment, the proposal

made clear that assurance of attainment was contingent on remedying

deficiencies in the State's quench water test method. Since this method

was not revised, USEPA now finds that the State has not demonstrated

that the plan assures attainment. The basis for the disapproval of the

Jefferson County plan is the failure to satisfy the requirement to

assure attainment given in sections 189(a)(1)(B) and the related

requirements in sections 172(c)(2), 172(c)(3), and 172(c)(6), due to

the use of inappropriate emissions estimates for Wheeling-Pittsburgh

Steel's basic oxygen furnace, coke ovens, and other emission sources,

and various modeling issues.

The notice of proposed rulemaking discusses alternatives by which

the Cuyahoga County plan could satisfy the requirement for RACM. The

State has committed in essence to implementing one of these

alternatives, namely to advance Ford's compliance deadlines, such that

all measures reflected in the submitted attainment demonstration are

required by December 1993. The notice of proposed rulemaking also

specifies remedies for the deficiency in the coke quenching test

method. Thus, if the State submits rules that have been revised

accordingly, USEPA can proceed directly to final approval of these

revisions without further proposal, provided these revisions do not

raise new issues. Such revisions would address all identified bases for

disapproving the Cuyahoga County plan, and so such USEPA rulemaking

could reverse today's limited disapproval of the Cuyahoga County plan

and find all particulate matter SIP requirements addressed in today's

rulemaking for this area satisfied.3 Note that revisions to the

Steubenville area plan would likely raise new issues and thus would

likely require further proposed rulemaking.

---------------------------------------------------------------------------

\3\Other requirements, notably including the new source review

program required in section 189(a)(1)(A) and 173 and the contingency

plan required in section 172(c)(9), are not addressed in today's

rulemaking.

---------------------------------------------------------------------------

Finally, USEPA is today making a final determination on particulate

matter precursors consistent with its proposed determination.

Specifically, USEPA is today determining that precursors do not

contribute significantly to violations of the particulate matter

standards in Ohio. As a result, the otherwise applicable provision of

Section 189(e) that particulate matter precursor sources must meet the

same control requirements as primary sources of particulate matter does

not apply.

This disapproval constitutes a disapproval under section 179(a)(2)

of the Act (see generally 57 FR 13566-67). As provided under section

179(a) of the Act, one of two sanctions in Section 179(b) is to take

effect 18 months from the publication of this final rule unless the

relevant deficiencies are corrected in the meantime. The second

sanction in Section 179(b) is to take effect 24 months from the

publication of this final rule, again unless the relevant deficiencies

are corrected in the meantime. These two sanctions are (1) A

requirement for two-to-one new source review offsets for sources in or

near the Cuyahoga and Jefferson County nonattainment areas and, (2) a

sanction against highway funding in these two areas. Separate

rulemaking is being conducted to determine which of these sanctions

would apply first and to address related questions concerning the

effectuation of such sanctions. (See the notice of proposed rulemaking

dated October 1, 1993 (58 FR 51270).) Any sanction USEPA imposes must

remain in place until USEPA determines that the deficiency has been

corrected. This disapproval also triggers the requirement for USEPA to

impose a federal implementation plan under section 110(c)(1) of the Act

if the deficiencies are not corrected within 2 years.

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.

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. USEPA, 427 U.S. 246, 256-66 (1976); 42 U.S.C.

7410(a)(2).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

This action has been classified as a Table Two action by the

Regional Administrator under the procedures published in the Federal

Register on January 19, 1989 (54 FR 2214-2225), based on revised SIP

processing review tables approved by the Acting Assistant Administrator

for Air and Radiation on October 4, 1993 (Michael Shapiro's memorandum

to Regional Administrators). On January 6, 1989, the Office of

Management and Budget waived Tables Two and Three SIP revisions (54 FR

222) from the requirements of section 3 of Executive Order 12291 for a

period of 2 years. USEPA has submitted a request for a permanent waiver

for Table 2 and Table 3 SIP revisions. OMB has agreed to continue the

temporary waiver until such time as it rules on USEPA's request. This

request continued in effect under Executive Order 12866, which

superseded Executive Order 12291 on September 30, 1993.

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 26, 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, Environmental protection, Incorporation by

Reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements.

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: May 13, 1994.

Valdas V. Adamkus,

Regional Administrator.

Title 40 of the Code of Federal Regulations, chapter I, part 52, is

amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

2. Section 52.1870 is amended by adding new paragraph (c)(97) to

read as follows:

Sec. 52.1870 Identification of plan.

* * * * *

(c) * * *

(97) On November 14, 1991, December 4, 1991, and January 8, 1992,

OEPA submitted revisions to its particulate matter plan, including

Statewide rule revisions, rule revisions for specific facilities in

Cuyahoga and Jefferson Counties, and supplemental materials to address

the requirements of Part D of Title I of the Clean Air Act for the

Cuyahoga and Jefferson County nonattainment areas. Rules 3745-17-

03(B)(10)(c) and 3745-17-12(P)(6)(a) (concerning quench water limits)

are not approved.

(i) Incorporation by reference.

(A) Rule 3745-17-01--Definitions, effective December 6, 1991.

(B) Rule 3745-17-02--Ambient air quality standards, effective June

14, 1991.

(C) Rule 3745-17-03--Measurement methods and procedures, effective

December 6, 1991, except for paragraph (B)(10)(c) which is disapproved.

(D) Rule 3745-17-04--Compliance time schedules, effective December

6, 1991.

(E) Rule 3745-17-07--Control of visible particulate emissions from

stationary sources, effective June 14, 1991.

(F) Rule 3745-17-08--Restriction of emission of fugitive dust,

effective June 14, 1991.

(G) Rule 3745-17-09--Restrictions on particulate emissions and

odors from incinerators, effective July 9, 1991.

(H) Rule 3745-17-10--Restrictions on particulate emissions from

fuel burning equipment, effective June 14, 1991.

(I) Rule 3745-17-11--Restrictions on particulate emissions from

industrial processes, effective June 14, 1991.

(J) Rule 3745-17-12--Additional restrictions on particulate

emissions from specific air contaminant sources in Cuyahoga County,

effective December 6, 1991, except for paragraph (P)(6)(a) which is

disapproved.

(K) Rule 3745-17-13--Additional restrictions on particulate

emissions from specific air contaminant sources in Jefferson County,

effective December 6, 1991.

(L) Rule 3745-17-14--Contingency plan requirements for Cuyahoga and

Jefferson Counties, effective December 6, 1991.

(M) Rule 3745-75-01--Applicability and definitions, effective July

9, 1991.

(N) Rule 3745-75-02--Emission limits, effective July 9, 1991.

(O) Rule 3745-75-03--Design parameters and operating restrictions,

effective July 9, 1991.

(P) Rule 3745-75-04--Monitoring requirements, effective July 9,

1991.

(Q) Rule 3745-75-05--Recordkeeping, effective July 9, 1991.

(R) Rule 3745-75-06--Certification and compliance time schedules,

effective July 9, 1991.

(ii) Additional information.

(A) Appendices A through P to a letter from Donald Schregardus to

Valdas Adamkus dated November 14, 1991, providing emissions inventories

and modeling demonstrations of attainment for the Cleveland and

Steubenville areas and providing other related information.

(B) A letter from Donald Schregardus to Valdas Adamkus dated

December 4, 1991, and attachments, supplementing the November 14, 1991,

submittal.

(C) A letter from Donald Schregardus to Valdas Adamkus dated

January 8, 1992, and attachments, supplementing the November 14, 1991,

submittal.

* * * * *

3. Section 52.1880 is amended by revising paragraph (d) to read as

follows:

Sec. 52.1880 Control strategy: particulate matter.

* * * * *

(d) Part D--Limited Disapproval--Notwithstanding the approval of

rules as specified in Sec. 52.1870(c)(97), USEPA disapproves the plan

for Cuyahoga County because the plan fails to require timely

implementation of reasonably available control measures and fails to

assure attainment, and USEPA disapproves the plan for Jefferson County

because the plan fails to assure attainment.

* * * * *

[FR Doc. 94-12919 Filed 5-26-94; 8:45 am]

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