Approval and Promulgation of Implementation Plans; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH83-1-6991a; FRL-5299-6]

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: USEPA is approving revisions to Ohio's program for issuing

federally enforceable State operating permits. These revisions clarify

that USEPA may deem individual permits to be deficient and not

federally enforceable, even if the deficiencies are discovered only

after the permit is issued. Then, if the company wishes to retain the

benefits of the operating permit (typically, reduced requirements for

sources with ``minor source'' allowable emissions levels), USEPA could

require correction of the permit deficiencies to ensure that the permit

limitations are truly federally enforceable.

DATES: This action is effective December 29, 1995 unless adverse or

critical comments are received by November 29, 1995. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer,

Chief, Regulation Development Section, Regulation Development Branch

(AR-18J), United States Environmental Protection Agency, 77 West

Jackson Boulevard, Chicago, Illinois 60604.

Copies of the SIP revision and USEPA's analysis are available for

public inspection during normal business hours at the following

addresses: United States Environmental Protection Agency, Region 5, Air

and Radiation Division, 77 West Jackson Boulevard (AE-17J), Chicago,

Illinois 60604; and 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.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Regulation

Development Section, Regulation Development Branch (AE-17J), United

States Environmental Protection Agency, Region 5, Chicago, Illinois

60604, (312) 886-6067.

SUPPLEMENTARY INFORMATION:

I. Review of State Submittal

On April 20, 1994, Ohio submitted rules to provide the option for

the State to issue federally enforceable State operating permits

(FESOPs). Unfortunately, the version of the rules that Ohio adopted and

submitted inadvertently excluded some revisions requested by the United

States Environmental Protection Agency (USEPA). On June 16, 1994, Ohio

committed to make these intended revisions. On the basis of this

commitment, USEPA conditionally approved Ohio's submittal on October

25, 1994, at 59 FR 53586.

On March 7, 1995, in accordance with its commitment, Ohio submitted

revisions to its operating permit rules. USEPA found this submittal

complete on March 27, 1995.

The principal revision in this submittal was to language in Rule

3745-35-07(B)(2). The language of the rule that Ohio submitted on April

20, 1994, stated:

During the public comment period, the administrator may object

that the terms and conditions of the permit to operate are not

federally enforceable and the director shall not issue the permit to

operate until such objection has been resolved.

USEPA expressed concern that this language could be construed to mean

that USEPA had no authority to deem permits not federally enforceable

once the permits had been issued. The March 7, 1995, submittal, in

accordance with the State's commitment as submitted June 16, 1994,

includes revised language that states:

During the public comment period, IF the administrator OBJECTS

that the terms and conditions of the permit to operate are not

federally enforceable the director shall not issue the permit to

operate until such objection has been resolved.

This revised language removes the implication that USEPA's authority to

deem State operating permits not federally enforceable is limited to

the State's public comment period. The fact that Ohio made this change,

the revised language itself, and the discussion of the language by Ohio

all indicate that USEPA is granted the authority to deem State

operating permits to be not federally enforceable after permit issuance

as well as before issuance. This change provides for satisfaction of

the second criterion for FESOP program approval specified in USEPA's

guidance published in the Federal Register of June 28, 1989 (at 54 FR

27274), that USEPA be authorized to deem relevant permits not federally

enforceable. As a result, Ohio's rules now fully satisfy all criteria

for FESOP program approval. (Ohio also revised the language concerning

advance notification by sources of implementation of emissions trades,

replacing the phrase ``advance notification * * * as specified in 40

CFR 70.4(6)(12)'' with the phrase ``seven day advance notification'';

this clarification does not significantly affect program

approvability.)

During the comment period on the October 25, 1994, direct final

rulemaking, USEPA received two comment letters. The comments in these

letters were not adverse or critical and did not require withdrawal of

the direct final rulemaking. Nevertheless, it is appropriate to address

these comments in the context of this rulemaking on Ohio's March 7,

1995, submittal.

The first comment was sent by the Natural Resources Defense Council

(NRDC). NRDC did not object to USEPA approval of Ohio's rule. However,

NRDC requested that the codification of USEPA's approval specify that

FESOPs shall be enforceable not just by USEPA but also ``by any person

under section 304 of the Clean Air Act.'' Section 304 indeed provides

authority to any person to bring suits to enforce limits such as those

contained in FESOPs. Thus, it is appropriate to amend the codification

in 40 CFR 52.1888 as requested by NRDC.

The second comment was sent by Ohio EPA, by letter dated November

18, 1994. As discussed above, Ohio changed rule language that could be

interpreted as limiting USEPA's authority to deem a State operating

permit as not federally enforceable after permit issuance. Ohio takes

the position that USEPA inherently has the authority to deem these

permits not federally enforceable, and that ``Ohio does not believe it

is in a position to make a specific authorization regarding the scope

of USEPA's authority in this area.'' Therefore, Ohio argues that its

rule revisions were not intended to provide ``veto'' authority to USEPA

after permit issuance but instead were intended simply to remove an

obstacle to USEPA exercising its preexisting authority.

This issue is somewhat moot, insofar as Ohio is not questioning

USEPA's ``veto'' authority after permit issuance but is merely

questioning the origins of that authority. In any case, USEPA believes

that State operating permits are not inherently federally enforceable,

and that these permits can only be federally enforceable if the State

grants

[[Page 55201]]

USEPA that authority. Indeed, one of the criteria for USEPA approval of

FESOP programs in the guidance cited above is that the State provide

that USEPA has such authority. From this perspective, Ohio has

satisfied these criteria by providing USEPA the authority to ``veto''

permits before and after issuance.

It is also clear that Ohio prefers for USEPA to use its pre-

issuance ``veto'' authority rather than its post-issuance ``veto''

authority. USEPA will attempt to honor their preference to the extent

practicable. While it may become necessary in limited cases to address

problems that were only discovered after permit issuance, USEPA will

endeavor to identify permits that are not federally enforceable prior

to their issuance.

II. Rulemaking Action

Ohio's submittal satisfies its commitment to revise its rules to

clarify that USEPA may deem State operating permits not federally

enforceable. Therefore, USEPA is converting the prior conditional

approval to a full approval. In the sense that a conditional approval

is a ``temporary'' approval, today's action makes permanent Ohio's

authorization to issue federally enforceable State operating permits.

The USEPA is publishing this action without prior proposal because

USEPA views this action as a noncontroversial revision and anticipates

no adverse comments. However, USEPA is publishing a separate document

in today's Federal Register, which constitutes a ``proposed approval''

of the requested SIP revision and clarifies that the rulemaking will

not be deemed final if we receive timely adverse or critical comments.

The ``direct final'' approval shall be effective on December 29, 1995,

unless USEPA receives adverse or critical comments by November 29,

1995, in which case USEPA will publish a Federal Register document

which withdraws this final action. All public comments received will

then be addressed in a subsequent rulemaking document.

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 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 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995

memorandum from Mary Nichols, Assistant Administrator for Air and

Radiation. The Office of Management and Budget exempted this regulatory

action from Executive Order 12866 review.

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 (S.Ct. 1976); 42

U.S.C. 7410(a)(2).

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995, signed into law on March 22, 1995, USEPA must undertake

various actions in association with proposed or final rules that

include a Federal mandate that may result in estimated costs of $100

million or more to the private sector, or to State, local, or tribal

governments in the aggregate.

Through submission of the State implementation plan or plan

revisions approved in this action, the State has elected to adopt the

program provided for under sections 110 and 112 of the Clean Air Act.

The rules and commitments being approved in this action allow sources

to request additional limitations (typically for the purpose of

avoiding major source permitting requirements), but otherwise do not

impose any requirements on State, local and tribal governments or

private sector concerns. Thus, USEPA's action will impose no new

requirements; and sources requesting limitations may in any case

already request these limitations under State law. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action. The USEPA has also determined

that this action does not include a mandate that may result in

estimated costs or $100 million or more to State, local, or tribal

governments in the aggregate or to the private sector.

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 December 29, 1995. 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, Carbon monoxide, Hydrocarbons, Incorporation

by reference, Intergovernmental relations, Lead, Nitrogen dioxide,

Ozone, Particulate matter, Reporting and recordkeeping requirements,

Sulfur oxides, 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: September 5, 1995.

Michelle D. Jordan,

Acting Regional Administrator.

Title 40 of the Code of Federal Regulations, chapter I, part 52, 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)(98) to read

as follows:

Sec. 52.1870 Identification of plan.

* * * * *

(c) * * *

(98) On April 20, 1994, and March 7, 1995, Ohio submitted Rule

3745-35-07, entitled ``Federally Enforceable Limitations on Potential

to Emit,'' and requested authority to issue such limitations as

conditions in State operating permits.

[[Page 55202]]

(i) Incorporation by reference. Rule 3745-35-07, adopted November

3, 1994, effective November 18, 1994.

* * * * *

3. Section 52.1888 is revised to read as follows:

Sec. 52.1888 Operating permits.

Emission limitations and related provisions which are established

in Ohio operating permits as federally enforceable conditions in

accordance with Rule 3745-35-07 shall be enforceable by USEPA and by

any person under section 304 of the Clean Air Act. USEPA reserves the

right to deem permit conditions not federally enforceable. Such a

determination will be made according to appropriate procedures, and

will be based upon the permit, permit approval procedures or permit

requirements which do not conform with the operating permit program

requirements or the requirements of USEPA's underlying regulations.

Sec. 52.1919 [Amended]

4. Section 52.1919 is amended by removing paragraph (a)(2).

[FR Doc. 95-26589 Filed 10-27-95; 8:45 am]

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