Approval and Promulgation of Implementation Plans; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH59-1-6376a; FRL-5078-1]

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: USEPA is approving the Ohio State Implementation Plan (SIP)

revision request for the purpose of implementing an emissions statement

program for stationary sources within the State's marginal and above

ozone nonattainment areas. Section 182(a)(3)(B) of title I of the Clean

Air Act, as amended in 1990 (CAA), requires States with areas

designated nonattainment for the ozone National Ambient Air Quality

Standard (NAAQS) to establish regulations for annual reporting of

actual emissions by sources that emit VOC or NOX in the

nonattainment area. These emissions reports are referred to as

``emissions statements.'' Sources in the following counties are subject

to the emissions statement program requirements: Ashtabula, Butler,

Clark, Clermont, Cuyahoga, Delaware, Franklin, Geauga, Greene,

Hamilton, Lake, Licking, Lorain, Lucas, Mahoning, Medina, Miami,

Montgomery, Portage, Stark, Summit, Trumbull, Warren, and Wood.

DATES: This final rule will be effective December 12, 1994 unless

notice is received by November 14, 1994 that someone wishes to submit

adverse or critical comments. If the effective date is delayed, timely

notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: William L.

MacDowell, Chief, Regulation Development Section, Air Enforcement

Branch (AE-17J), U.S. Environmental Protection Agency, Region 5, 77

West Jackson Boulevard, Chicago, Illinois, 60604.

Copies of the State submittal for this action are available for

public inspection during normal business hours at the following

location (it is recommended that you contact Gina Smith at (312) 886-

7018 before visiting the Region 5 office):

United States Environmental Protection Agency, Region 5, Air

Enforcement Branch, Air and Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois, 60604.

FOR FURTHER INFORMATION CONTACT: Gina Smith, Regulation Development

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

Agency, Region 5, Chicago, Illinois, 60604, (312) 886-7018.

SUPPLEMENTARY INFORMATION:

I. Background

The air quality planning and SIP requirements for ozone

nonattainment and transport areas are set out in subparts 1 and 2 of

title I of the (CAA). The USEPA has issued a ``General Preamble''

describing USEPA's review procedures for SIPs and SIP revisions

submitted under title I of the CAA, including those State submittals

for ozone nonattainment areas (see 57 FR 13498 (April 16, 1992) and 57

FR 18070 (April 28, 1992)). USEPA has also issued a draft guidance

document describing the requirements for the emissions statement

programs, entitled ``Guidance on the Implementation of an Emissions

Statement Program'' (July, 1992).1 It should be noted that this

guideline has not been finalized, but does provide the best available

guidance on the expected contents of the emissions statements and on

the States' use of emissions statements. Further revisions to this

draft guidance were not available prior to final rulemaking on the Ohio

SIP revisions request. Therefore, it is appropriate to use the July

1992 draft guidance in considering current emissions statement SIP

revision submittals.

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\1\Refer also to a memorandum from J. David Mobley, Chief,

Emission Inventory Branch, Technical Support Division, USEPA,

entitled ``First Emission Statements Due to EPA/Essential Emission

Statement Rule Elements,'' dated August 4, 1993.

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A. Summary of the Federal Requirements

Section 182(a)(3)(B) of title I of the CAA requires States with

areas designated nonattainment for the ozone NAAQS to establish

regulations for annual reporting of actual emissions by sources that

emit VOC or NOX in the nonattainment areas. These annual emissions

reports are called ``emissions statements.'' Section 182(a)(3)(B) also

requires the States to submit a revision to their SIP to incorporate

the emissions statement requirement into its SIP no later than 2 years

after enactment of the CAA.

A State, with USEPA approval, may waive the requirement for an

emissions statement for classes or categories of sources with less than

25 tons per year of NOX or VOC emissions in nonattainment areas if

the State includes the classes or categories in the base year and

periodic inventories and calculates emissions using emission factors

established by USEPA (such as those found in USEPA publication AP-42)

or other methods acceptable to USEPA. Whatever minimum reporting level

the State establishes in its emissions statement program, if a source

emits either VOC or NOX at or above the designated reporting

level, the other pollutant must be included in the emissions statement,

even if it is emitted at levels below the specified cutoffs.

The CAA requires a facility to submit the first emissions statement

to the State within three years after the date of enactment of the CAA,

and annually thereafter. USEPA has requested the States to submit the

emissions data to USEPA through the Aerometric Information Retrieval

System (AIRS). The minimum emissions statement data must include:

certification of data accuracy, source identification information,

operating schedule, emissions information (to include annual and

typical ozone season day emissions), control equipment information, and

process rate data. The emissions reported in a source's statement

should include upset emissions, the effect of downtime on emissions,

and fugitive emissions. Finally, the State's rule should clearly place

the burden for reporting on the source. The Technical Support Document,

dated June 28, 1994, provides a more detailed description of the

requirements of the August 4, 1993, memorandum. USEPA developed

emissions statement data elements to be consistent with other State

reporting requirements. This consistency is essential to assist States

with quality assurance for emissions estimates and to facilitate

consolidation of all USEPA reporting requirements.

In addition to the submission of the emissions statement data to

AIRS, States should provide USEPA with a status report that outlines

the degree ofcompliance with the emissions statement program. Beginning

July 1, 1993, States should report quarterly to USEPA the total number

of sources affected by the emissions statement provisions, the number

of sources that have complied with the provisions and the number that

have not. The status report should also include the total annual and

typical ozone season day emissions from all reporting sources, both

corrected and non-corrected for rule effectiveness. States should

include in their status report a list of sources that: (1) Are

delinquent in submitting their emissions statement; (2) emit 500 tons

per year (tpy) or more of VOC; or (3) emit 2500 tpy or more of

NOX. The State should submit this status report quarterly until

all the regulated sources have complied for the reporting year.

Suggested submittal dates for the quarterly status reports are July 1,

October 1, January 1, and April 1.

B. Summary of State Submittal

The CAA required States subject to the requirements of section

182(a)(3)(B) to submit the emissions statement program to USEPA by

November 15, 1992. On January 15, 1993, the USEPA made a finding that

Ohio failed to submit the required SIP revision. The USEPA's finding

triggered the sanctions period of section 179 of the CAA. The Ohio

Environmental Protection Agency (OEPA) submitted a SIP revision request

to USEPA on March 22, 1994. In a letter dated May 16, 1994, the USEPA

informed OEPA that the SIP submittal was complete. The May 16, 1994,

letter stopped the sanctions period that was begun with the finding of

failure to submit.

The information provided by the State included: Adopted rules

(3745-24-01, -02, -03, and -04) effective on April 1, 1994; emissions

statement form and synopsis of rules; summary of comments and

responses; public notice of the hearing and comment period; Joint

Committee on Agency Rule Review (JCARR)agenda and approval; technical

support for the research and development (R&D) exemption; statutory

authority for the State's rules; and copies of actual comments

submitted. OEPA submitted four adopted rules. The first, Rule 3745-24-

01, is entitled Definitions. Unless otherwise provided in this rule the

definitions in rule 3745-24-01 apply.

The second rule, Rule 3745-24-02, which is entitled Applicability,

states that the requirements of this chapter apply to facilities

located in Ashtabula, Butler, Clark, Clermont, Cuyahoga, Delaware,

Franklin, Geauga, Greene, Hamilton, Lake, Licking, Lorain, Lucas,

Mahoning, Medina, Miami, Montgomery, Portage, Stark, Summit, Trumbull,

Warren, or Wood County. Facilities emitting 25 tons or more of NOX

or 25 tons or more of VOC during any calendar year are required to

submit an emissions statement. This requirement starts with calendar

year 1992. Sources in counties redesignated to attainment for ozone are

exempt from reporting. The rule also provides an exemption under

paragraph (G) of Rule 3745-24-04 for certain sources at the facility.

Rule 3745-24-03, which is entitled Deadlines for the Submission of

the Emissions Statements, requires that the 1992 emissions statements

be submitted by July 1, 1994. For 1993 and beyond, emissions statements

are due by November 15th of the following calendar year (e.g. November

15, 1994, for the 1993 emissions statement).

Ohio Rule 3745-24-04 is entitled Emissions Statement Requirements

and involves paragraphs (A) through (G). Paragraphs (A) and (B) require

effected owners to submit emissions statements in the OEPA format by

the required deadline. Paragraph (C) contains general information about

the facility, calendar year covered, and certification of accuracy of

the statement. The certification of accuracy must be submitted by an

appropriate facility official. Paragraph (D) lists required information

for non-R&D sources. Paragraph (E) lists required information for R&D

sources. Paragraph (F) allows emissions reporting on a group basis if

it cannot be determined on an individual basis. Paragraph (G) provides

exemptions for small sources and some R&D sources.

The emissions statement exemption provision, at Ohio Rule 3745-24-

04(G), exempts emissions units that emit less than 10 pounds per day

VOC or NOX from being included in an emissions estimate for a

facility. This exemption effects the applicability of the emissions

statement requirement and the reported emissions for affected

facilities. The exemption uses exemption 3704.011(A) from the State's

title V Operating Permits program, but not 3704.011(A)(1) to (A)(5).

Title V exemption 3704.011(A) exempts emissions units less than 10

pounds per day. Title V exemption 3704.011(A)(1) provides that section

3704.011(A) does not apply if the CAA or regulations issued pursuant to

it limit an emission unit to less than 10 pounds per day. Title V

exemption 3704.011(A)(2) provides that section 3704.011(A) does not

apply if OEPA regulations needed for attainment limit the unit to less

than 10 pounds per day. Title V exemption 3704.011(A)(3) provides that

section 3704.011(A) does not apply if radionuclides are emitted. Title

V exemption 3704.011(A)(4) provides that section 3704.011(A) does not

apply if a unit in combination with other units would result in

potential emissions greater than 25 tpy. Title V exemption

3704.011(A)(5) provides that section 3704.011(A) does not apply if a

unit emits more than one ton per year of hazardous pollutants.

Ohio Rule 3745-24-04(G) also provides that Rule 3745-24-04(E)

exempts from being included in an emissions statement any laboratory or

bench scale R&D sources; and does not apply to R&D sources at a

facility where the combined potential to emit is less than five tons

VOC and five tons NOX and where the owner or operator maintains

records to demonstrate this. Since Rule 3745-24-04(G) only adopts the

exemption outlined in 3704.011(A) of the title V program, the emissions

from sources that total less than or equal to 10 pounds per day are not

required to be reported in an emissions statement.

C. Analysis of State Submittal

The August 4, 1993, Mobley memorandum requires that sources submit

their first statements for 1992 by July 1, 1993 and that subsequent

statements be issued by April 15 of each year. However, the CAA allows

statements to be submitted by November of each year. Ohio did not

promulgate administrative rules for the emissions statement program

until March 17, 1994. The rules became effective on April 1, 1994.

Sources subject to the program are required to submit their initial

emissions statement, summarizing 1992 emissions, by July 1, 1994. The

1993 emissions statement should be submitted by November 1994, and each

subsequent statement should be submitted by November of each year. The

States emissions statement reporting frequency satisfies USEPA's

requirements.

USEPA requires the following operating information to be included

in the State's rules: percent annual throughput by season; days per

week on the normal operating schedule; hours per day during the

operating schedule; and hours per year during the normal operating

schedule. Ohio's rule requires sources to provide the weeks per year it

operates as opposed to the hours per year. In addition, Ohio requires

sources to report the hours per day, days per week, and weeks per year

of operation. This is acceptable since USEPA can determine the hours

per year a source operates from this information.

Ohio's rules do not require sources to report peak ozone season,

annual throughput, and percent annual throughput by season. USEPA can

determine the peak ozone season process rate from the information

required by Ohio's rule.

As discussed in the Technical Support Document, Ohio's rules

satisfy USEPA's guidance to require appropriate information on source

location, operating rules, and process rates. Emissions statements

submitted by sources must be certified by an appropriate official as

accurate.

Ohio's rules do not require that the Airs Facility Subsystem (AFS)

control equipment codes and the AFS estimated emissions method codes be

provided. The rules do, however, require that a description of the

existing control equipment, its efficiency, and the emissions

estimation method be provided. The AFS codes can be determined from

this information. Therefore, Federal requirements for control equipment

information are satisfied.

Ohio Rules 3745-24-04(G) exempt sources that emit less than 10

pounds per day of VOC or NOX. Initially, USEPA objected to this

provision since it is not specifically provided for under the CAA.

USEPA has recently reviewed the Columbus ozone emissions inventory

provided by Ohio and concluded that the inventory demonstrates that the

exemption would not exclude a significant portion of the area's

emissions. The point source VOC and NOX emissions total 4030 tpy

and 4543 tpy, respectively. Exempted emissions amount to only 4.6 tpy

(0.11%) and 0 tpy for VOC and NOX, respectively. Exempted

emissions for the other nonattainment areas are expected to be of a

similar magnitude. Since exempted emissions do not represent a

significant amount of the State's nonattainment area emissions, the

USEPA believes that the provisions of 3745-24-04(G) are approvable.

II. Final Action

USEPA is approving Ohio's emissions statement program SIP submittal

through the Agency's direct final rulemaking provisions. This rule will

be effective December 12, 1994 unless notice is received that someone

wishes to submit adverse or critical comments. If the effective date is

delayed, timely notice will be published in the Federal Register. The

Ohio Emissions Statement Program (Ohio Administrative Rules 3745-21-01,

3745-21-02, 3745-21-03, and 3745-21-04) are being incorporated by

reference into the Ohio SIP for ozone. The rules are available for

inspection at: Air Docket 6102, Environmental Protection Agency, 401 M

Street, SW., Washington, DC 20460.

III. Procedural Background

This action is being taken without prior proposal because the

changes are believed to be noncontroversial and USEPA anticipates no

significant comments on them. The public is advised that this action

will be effective December 12, 1994, unless notice is received by

November 14, 1994, that someone wishes to submit adverse or critical

comments. If the effective date is delayed, timely notice will be

published in the Federal Register.

Nothing in this action should be construed as permitting, allowing,

or establishing a precedent for any future request for revision to any

SIP. USEPA shall consider each request for revision to the SIP in

lightof specific technical, economic, and environmental factors, and in

relation to relevant statutory and regulatory requirements.

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225). A revision to the SIP processing

review tables was approved by the Acting Administrator for the Office

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

to Regional Administrators). A future document will inform the general

public of these tables. Under the revised tables, this action remains

classified as Table 3.

On January 6, 1989, the Office of Management and Budget (OMB)

waived Table 2 and 3 SIP revisions (54 FR 2222) from the requirements

of section 3 of Executive Order 12291 for a period of 2 years. The

USEPA has submitted arequest for permanent waiver for Table 2 and 3 SIP

revisions. The OMB has agreed to continue the temporary waiver until

such time as it rules on USEPA's request. This request remains in

effect under Executive Order 12866 which superseded Executive Order

12291 on September 30, 1993. The OMB has exempted this regulatory

action from Executive Order 12866 review.

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

should 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 includesmall businesses, small not-for-profit enterprises, and

government entities with jurisdiction over populations of less than

50,000.

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by December 12, 1994. Filing a petition for

reconsideration by the Administrator of this 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 must be

filed, and shall not postpone the effectiveness of such a rule. This

action may not be challenged later in proceedings to enforce its

requirements. Section 307(b)(2).

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

do not create any new requirements, but simply approve requirements the

State is already imposing. Therefore, because the Federal SIP approval

does not impose any new requirements, it does not have a significant

impact on any smallentities 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 the State action. The CAA forbids USEPA

to base it actions concerning SIPS on such grounds. Union Electric Co.

v. USEPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Nitrogen oxides, Reporting and recordkeeping requirements,

Volatile organic compounds.

Dated: September 13, 1994.

David Kee,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

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

Subpart KK--Ohio

2. Section 52.1870 is amended by adding paragraph (c)(100) to read

as follows:

Sec. 52.1870 Identification of plan.

* * * * *

(c) * * *

(100) On March 22, 1994, the Ohio Environmental Protection Agency

submitted a revision request to Ohio's ozone SIP for approval of the

State's emissions statement program. The emissions statement program

requirements apply to sources in the following counties: Ashtabula,

Butler, Clark, Clermont, Cuyahoga, Delaware, Franklin, Geauga, Greene,

Hamilton, Lake, Licking, Lorain, Lucas, Mahoning, Medina, Miami,

Montgomery, Portage, Stark, Summit, Trumbull, Warren, and Wood.

(i) Incorporation by reference.

(A) Ohio Administrative Code rules 3745-24-01, 3745-24-02, 3745-24-

03, and 3745-24-04, effective April 1, 1994.

[FR Doc. 94-25270 Filed 10-12-94; 8:45 am]

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