Clean Air Act Proposed Approval of Operating Permit Program; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[OH001; FRL-5189-8]

Clean Air Act Proposed Approval of Operating Permit Program; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes full approval of the operating permit program

submitted by the State of Ohio for the purpose of complying with

Federal requirements which mandate that States develop, and submit to

EPA, programs for issuing operating permits to all major stationary

sources and to certain other sources.

DATES: Comments on this proposed action must be received in writing by

May 15, 1995.

ADDRESSES: Comments should be addressed to Steven Pak at the Region 5

address. Copies of the State's submittal and other supporting

information used in developing the proposed full approval are available

for inspection during normal business hours at the following location:

EPA Region 5, Air and Radiation Division (AE-17J), 77 West Jackson

Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Steven Pak, EPA Region 5, Air and

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

Illinois 60604, (312) 886-1497.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

As required under title V of the Clean Air Act (``the Act'') as

amended by the 1990 Clean Air Act Amendments, EPA promulgated rules on

July 21, 1992 (57 FR 32250), which define the minimum elements of an

approvable State operating permit program and the corresponding

standards and procedures by which EPA will approve, oversee, and

withdraw approval of State operating permit programs. These rules are

codified at 40 Code of Federal Regulations (CFR) part 70. Title V and

part 70 require that States develop, and submit to EPA, programs for

issuing operating permits to all major stationary sources and to

certain other sources.

The Act requires that States develop and submit these programs to

EPA by November 15, 1993, and that EPA act to approve or disapprove

each program within one year after receiving the submittal. If the

State's submission is materially changed during the one-year review

period, 40 CFR 70.4(e)(2) allows EPA to extend the review period for no

more than one year following receipt of the additional materials.

Because Ohio provided EPA with additional materials that materially

changed the State's Title V program submittal on September 12, 1994,

November 21, 1994, December 9, 1994, and January 5, 1995, EPA has

extended the review period and will work expeditiously to promulgate a

final decision on the State's program.

EPA reviews State operating permit programs pursuant to section 502

of the Act and 40 CFR part 70, which together outline criteria for

approval or disapproval. When a program substantially, but not fully,

meets the requirements of 40 CFR part 70, EPA may grant the program

interim approval for a period of up to two years. If EPA has not fully

approved a program by November 15, 1995, or by the end of an interim

program, it must establish and implement a Federal operating permit

program for that State.

[[Page 18791]]

II. Proposed Action and Implications

A. Analysis of State Submission

EPA has concluded that the operating permit program submitted by

Ohio meets the requirements of title V and part 70 and is proposing to

grant full approval to the program. For more detailed information on

the analysis of the State's submission, please refer to the technical

support document (TSD) included in the docket at the address noted

above.

1. Support Materials

Donald Schregardus, Director of the Ohio Environmental Protection

Agency and the Governor of Ohio's designee, submitted Ohio's title V

operating permit program to EPA on July 22, 1994. The State

supplemented the submittal on September 12, 1994, November 21, 1994,

December 9, 1994, and January 5, 1995. The submittal contains all

required elements of 40 CFR 70.4, including a description of Ohio's

operating permit program, relevant permitting program documentation,

and the Attorney General's legal opinion that the laws of the State

provide adequate authority to carry out all aspects of the program.

2. Regulations and Program Implementation

EPA has determined that the Ohio operating permit program,

including State statutes (Ohio Revised Code (ORC) 3704.035, 3704.036,

3704.05, 3704.06, 3704.99, 3745.11, and 3745.112) and regulations (Ohio

Administrative Code (OAC) 3745-77 and 3745-78), meets the requirements

of 40 CFR 70.2 and 70.3 for applicability; 40 CFR 70.5 for criteria

which define insignificant activities1 and for complete

application forms; 40 CFR 70.4, 70.5, and 70.6 for permit content

(including operational flexibility); 40 CFR 70.7 and 70.8 for permit

processing requirements (including public participation and minor

permit modifications); and 40 CFR 70.11 for requirements for

enforcement authority. The TSD contains a detailed analysis of Ohio's

program and describes the manner in which the State's program meets all

the operating permit program requirements of 40 CFR Part 70.

\1\Ohio includes research and development (R&D) units, as

defined at Ohio Revised Code (ORC) 3704.01(P), as an insignificant

activity. However, this definition of all R&D units as insignificant

activities is limited in effect because an R&D unit is not exempt

from the State's permit application requirements if the unit's

emissions exceed one ton per year of total hazardous air pollutants

or has a potential to emit more than five tons per year or twenty

percent of an applicable major source threshold under the Act for

any regulated air pollutant other than a HAP (OAC 3745-77-02(G)). In

addition, Ohio's general provisions governing insignificant

activities and emissions levels apply to R&D units. Ohio regulations

provide that insignificant activities and emissions levels that are

exempted because of size or production rate must be listed in the

permit application and do not affect the determination of whether a

stationary source is a major source (OAC 3745-77-02(G)). In

addition, an applicant may not omit information, including the

emissions levels for insignificant activities, that is necessary to

determine the applicability of any applicable requirement, to impose

any applicable requirement, or to evaluate any fee amount (OAC 3745-

77-03(A)).

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3. Permit Fee Demonstration

EPA has determined that the Ohio operating permit program meets the

fee requirements of 40 CFR 70.9. Ohio is adopting the presumptive

minimum approach to fees outlined in 40 CFR 70.9(b)(2).

4. Provisions Implementing the Requirements of Other Titles of the Act

a. Authority for Section 112 Implementation. In its program

submittal, Ohio demonstrates adequate legal authority to implement and

enforce all section 112 requirements through the Title V permit. This

legal authority is contained in Ohio's enabling legislation and in

regulatory provisions defining ``applicable requirements'' and stating

that permits must incorporate all applicable requirements. EPA has

determined that this legal authority is sufficient to allow the State

to issue permits that assure compliance with all section 112

requirements.

EPA is interpreting the above legal authority to mean that Ohio is

able to carry out all section 112 activities with respect to part 70

sources. For further rationale on this interpretation, please refer to

the TSD.

b. Implementation of 112(g). EPA issued an interpretive notice on

February 14, 1995 (60 FR 8333), which outlines EPA's revised

interpretation of 112(g) applicability. The notice postpones the

effective date of 112(g) until after EPA has promulgated a rule

addressing that provision. The notice sets forth in detail the

rationale for the revised interpretation.

The section 112(g) interpretive notice explains that EPA is still

considering whether the effective date of section 112(g) should be

delayed beyond the date of promulgation of the Federal rule so as to

allow States time to adopt rules implementing the Federal rule and that

EPA will provide for any such additional delay in the final section

112(g) rulemaking. Unless and until EPA provides for such an additional

postponement of section 112(g), Ohio must have a federally enforceable

mechanism for implementing section 112(g) during the period between

promulgation of the Federal section 112(g) rule and adoption of

implementing Federal regulations.

EPA is aware that Ohio lacks a program designed specifically to

implement section 112(g). However, Ohio does have a preconstruction

review program (OAC 3745-31) that can serve as an adequate

implementation vehicle during the transition period because it would

allow Ohio to select control measures that would meet MACT, as defined

in section 112, and incorporate these measures into a federally

enforceable preconstruction permit.

EPA is approving Ohio's preconstruction permitting program (OAC

3745-31) under the authority of Title V and Part 70 solely for the

purpose of implementing section 112(g) to the extent necessary during

the transition period between 112(g) promulgation and adoption of a

State rule implementing EPA's section 112(g) regulations. Although

section 112(l) generally provides authority for approval of State air

programs to implement section 112(g), Title V and section 112(g)

provide for this limited approval because of the direct linkage between

the implementation of section 112(g) and Title V. The scope of this

approval is narrowly limited to section 112(g) and does not confer or

imply approval for purposes of any other provision under the Act (e.g.,

section 110). This approval will be without effect if EPA decides in

the final section 112(g) rule that sources are not subject to the

requirements of the rule until State regulations are adopted. The

duration of this approval is limited to 18 months following

promulgation by EPA of the 112(g) rule to provide adequate time for the

State to adopt regulations consistent with the Federal requirements.

c. Program for delegation of Section 112 Standards as Promulgated.

The requirements for program approval, specified in 40 CFR 70.4(b),

encompass section 112(l)(5) requirements for approval of a State

program for delegation of section 112 standards, as promulgated by EPA,

as they apply to part 70 sources. Section 112(l)(5) requires that the

State's program contain adequate authorities, adequate resources for

implementation, and an expeditious compliance schedule, which are also

requirements under 40 CFR part 70. Therefore, EPA is also proposing to

grant approval, under section 112(l)(5) and 40 CFR 63.91, of Ohio's

program for receiving delegation of section 112 standards that are

unchanged from the Federal standards as promulgated.

[[Page 18792]]

Because Ohio has historically accepted delegation of section 112

standards through automatic delegation, EPA proposes to approve the

delegation of section 112 standards and requirements through automatic

delegation. The details of this delegation mechanism will be set forth

in a Memorandum of Agreement between Ohio and EPA. This approval

applies to both existing and future standards but is limited to sources

covered by the part 70 operating permit program.

d. Limiting HAP Emissions Through a FESOP Program. On October 25,

1994, EPA conditionally approved OAC 3745-35-07 for establishing a

mechanism for creating federally enforceable limits on a sources

potential to emit (59 FR 53586). This rulemaking, which became

effective on December 27, 1994, authorizes the State to issue federally

enforceable State operating permits addressing both criteria pollutants

and HAPs.

e. Title IV. Ohio's program contains adequate authority to issue

permits which reflect the requirements of Title IV and its implementing

regulations. Further, Ohio provided a commitment on January 5, 1995, to

incorporate by reference the Federal Acid Rain Program regulations (40

CFR part 72) by October 1, 1995.

B. Potential Interim Approval Issue

Ohio's definition of ``title I modification'' does not include

changes reviewed under a minor source preconstruction review program.

On August 29, 1994, EPA solicited public comment on whether the phrase

``modification under any provision of title I of the Act'' in 40 CFR

70.7(e)(2)(i)(A)(5) should be interpreted to mean literally any change

at a source that would trigger permitting authority review under

regulations approved or promulgated under Title I of the Act (59 FR

44573). EPA is currently reviewing the public comments on this issue

and is in the process of determining the proper definition of that

phrase. EPA does not believe that it is appropriate to determine

whether this is a program deficiency for Ohio until EPA completes its

rulemaking on this issue. For a more complete discussion of this issue

see the November 9, 1994, approval of the operating permit program for

the State of Washington (59 FR 55813).

C. Proposed Action

EPA is proposing to grant full approval of the operating permit

program submitted by Ohio on July 22, 1994, and amended on September

12, 1994, November 21, 1994, December 9, 1994, and January 5, 1995.

Among other things, Ohio has demonstrated that the program meets the

minimum elements of an approvable State operating permit program as

specified in 40 CFR part 70.

The scope of the Ohio program that EPA proposes to approve in this

notice would apply to all part 70 sources (as defined in the approved

program) within the State of Ohio.

As outlined in II.A.4.c., EPA is also proposing to grant approval

under section 112(l)(5) and 40 CFR 63.91 of the State's program for

receiving delegation of section 112 standards that are unchanged from

Federal standards as promulgated. This program for delegations only

applies to sources covered by the part 70 program.

III. Administrative Requirements

A. Request for Public Comments

EPA is requesting comments on all aspects of this proposed full

approval. Copies of the State's submittal and other information relied

upon for the proposed full approval are contained in a docket

maintained at the EPA Regional Office. The docket is an organized and

complete file of all the information submitted to, or otherwise

considered by, EPA in the development of this proposed full approval.

The principal purposes of the docket are:

(1) To allow interested parties a means to identify and locate

documents so that they can effectively participate in the approval

process; and

(2) To serve as the record in case of judicial review. EPA will

consider any comments received by May 15, 1995.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

EPA's actions under section 502 of the Act do not create any new

requirements, but simply address operating permit programs submitted to

satisfy the requirements of 40 CFR part 70. Because this action does

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

on a substantial number of small entities.

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

Reporting and recordkeeping requirements.

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

Dated: March 29, 1995.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 95-9059 Filed 4-12-95; 8:45 am]

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