Approval and Promulgation of Implementation Plans; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH93-1-7290a; FRL-5467-3]

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: The EPA is approving the Particulate Matter contingency

measures State implementation plan (SIP) revisions submitted by the

State of Ohio on July 17, 1995. This submittal addresses the Federal

Clean Air Act requirement to submit contingency measures for

particulate matter with an aerodynamic diameter less than or equal to a

nominal 10 micrometers (PM) for the areas designated as nonattainment

for the PM National Ambient Air Quality Standards (NAAQS). In Ohio,

Cuyahoga County and portions of Jefferson County are designated as

nonattainment for PM. Contingency measures are emission reductions

which are to be implemented, with no further action, in the event that

an area fails to meet air quality standards. This submittal would

result in an emissions reduction of 34 pounds of PM per hour in

Cuyahoga County, and 2.9 pounds of PM per hour in Jefferson County if

implementation of the contingency measures becomes necessary.

DATES: This action is effective on July 5, 1996, unless EPA receives

adverse or critical comments by June 5, 1996. If the effective date is

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

ADDRESSES: Copies of the revision request are available for inspection

at the following address: U.S. Environmental Protection Agency, Region

5, Air and Radiation Division 77 West Jackson Boulevard, Chicago,

Illinois 60604. (It is recommended that you telephone David Pohlman at

(312) 886-3299 before visiting the Region 5 Office.)

Written comments should be sent to: J. Elmer Bortzer, Chief,

Regulation Development Section, Air Programs Branch (AR-18J), U.S.

Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,

Illinois 60604.

FOR FURTHER INFORMATION CONTACT: David Pohlman (312) 886-3299.

SUPPLEMENTARY INFORMATION:

I. Background

In Ohio, Cuyahoga County and portions of Jefferson County are

designated as nonattainment for PM and classified as moderate under

sections 107(d)(4)(B) and 188(a) of the Clean Air Act. See 56 FR 56694

(Nov. 6, 1991); 40 CFR 81.336. The air quality planning requirements

for moderate PM nonattainment areas are set out in subparts 1 and 4 of

part D, Title I of the Clean Air Act. The EPA has issued a ``General

Preamble'' describing EPA's preliminary views on how EPA intends to

review SIPs and SIP revisions submitted under Title I of the Clean Air

Act, including those State submittals containing moderate PM

nonattainment area SIP requirements (see generally 57 FR 13498 (April

16, 1992) and 57 FR 18070 (April 28, 1992)). Because EPA is describing

its interpretations here only in broad terms, the reader should refer

to the General Preamble for a more detailed discussion of the

interpretations of Title I advanced in this action and the supporting

rationale.

Those States containing initial moderate PM nonattainment areas

were required to submit contingency measures by November 15, 1993 (see

57 FR 13543). This contingency plan supplements the attainment plan,

and must include measures that become effective, without further action

by the State or EPA, upon a determination by EPA that the area has

failed to achieve reasonable further progress (RFP) or to attain the PM

NAAQS by the applicable statutory deadline. See section 172(c)(9)of the

Clean Air Act and 57 FR 13510-13512 and 13543-13544.

II. Analysis of State Submittal

The Ohio Environmental Protection Agency (OEPA) submitted a

requested SIP revision to the EPA with a letter dated July 17, 1995.

The submittal

[[Page 20140]]

contained Findings and Orders for facilities which identified

reasonably available PM emissions reductions as contingency measures

pursuant to Ohio Administrative Code Rule 3745-17-14. Specifically,

Findings and Orders for the following facilities were included: Ford

Motor Company, Cleveland Casting Plant, T & B Foundry Company,

International Mill Service, Luria Brothers, United Ready Mix.

A. Procedural Requirements

The Act requires States to observe certain procedural requirements

in developing implementation plans and plan revisions for submission to

EPA. Section 110(a)(2) of the Act provides that each implementation

plan submitted by a State must be adopted after reasonable notice and

public hearing. Section 110(l) of the Act similarly provides that each

revision to an implementation plan submitted by a State under the Act

must be adopted by such State after reasonable notice and public

hearing. Also section 172(c)(7) of the Act requires that plan

provisions for nonattainment areas meet the applicable provisions of

section 110(a)(2).

The EPA also must determine whether a submittal is complete and

therefore warrants further EPA review and action (see Section 110(k)(1)

and 57 FR 13565). The EPA's completeness criteria for SIP submittals

are set out at 40 CFR part 51, appendix V. The EPA attempts to make

completeness determinations within 60 days of receiving a submission.

However, a submittal is deemed complete by operation of law if a

completeness determination is not made by EPA six months after receipt

of the submission.

The State of Ohio, after providing adequate notice, held a public

hearing on May 31, 1995, regarding the PM contingency measures.

Following the public hearing, the final Findings and Orders were signed

by the Director of the Ohio Environmental Protection Agency (OEPA) on

July 10, 1995.

The submittal was reviewed by EPA to determine completeness in

accordance with the completeness criteria set out at 40 CFR part 51,

appendix V. The submittal was found to be complete and a letter dated

July 20, 1995, was sent to the State indicating the completeness of the

submittals and the next steps to be taken in the review process.

B. Contingency Measures

The Clean Air Act requires States containing PM nonattainment areas

to adopt contingency measures that will take effect without further

action by the State or EPA upon a determination by EPA that an area

failed to make RFP or to timely attain the applicable NAAQS, as

described in section 172(c)(9). See generally 57 FR 13510-13512 and

13543-13544. Pursuant to section 172(b), the Administrator has

established a schedule providing that states containing initial

moderate PM nonattainment areas shall submit SIP revisions containing

contingency measures no later than November 15, 1993. (See 57 FR 13543,

n. 3.)

The General Preamble further explains that contingency measures for

PM should consist of other available control measures, beyond those

necessary to meet the core moderate area control requirements to

implement reasonably available control measures and to assure

attainment (see Clean Air Act sections 172(c)(1), and 189(a)(1) (A) and

(C). Based on the statutory structure, EPA believes that contingency

measures must, at a minimum, provide for continued progress toward the

attainment goal during an interim period between any prospective

determination that the SIP has failed to achieve RFP or provide for

timely attainment of the NAAQS and the additional formal air quality

planning following the determination (57 FR 13511). PM contingency

measures are also addressed in a memo from the Acting Chief of the

Sulfur Dioxide/Particulate Matter Programs Branch, Air Quality

Management Division to the Air Branch Chiefs of EPA Regions 1-10 dated

August 20, 1991. This memo suggests that PM contingency emissions

reductions for moderate nonattainment areas should represent one year's

RFP. For example, reductions equal to 25 percent of the total reduction

in actual emissions in the SIP control strategy would be appropriate

for a moderate nonattainment area since the control strategy must

generally be implemented within a 3 to 4-year period between SIP

development and the attainment date.

Section 172(c)(9) of the Act specifies that contingency measures

shall ``take effect * * * without further action by the State, or the

[EPA] Administrator.'' EPA has interpreted this requirement (in the

General Preamble at 57 FR 13512) to mean that no further rulemaking

activities by the State or EPA would be needed to implement the

contingency measures. In general, EPA expects all actions needed to

effect full implementation of the measures to occur within 60 days

after EPA notifies the State of its failure to attain the standard or

make RFP.

The EPA recognizes that certain actions, such as notification of

sources, modification of permits, etc., may be needed before some

measures could be implemented. However, States must show that their

contingency measures can be implemented with minimal further

administrative action on their part and with no additional rulemaking

action such as public hearing or legislative review.

Ohio Administrative Code (OAC) Rule 3745-17-14 (approved by the EPA

on May 27, 1994, 59 FR 27464) requires principal facilities in the PM

nonattainment areas to submit control strategies and compliance

schedules to the OEPA which would reduce particulate emissions by 15

and 25 percent. OAC Rule 3745-17-14 also requires that the control

strategies and compliance schedules be approved by the Director of the

OEPA (as Findings and Orders) and submitted to the EPA as a revision to

the Ohio PM SIP. The rule further specifies that the requirements of

the Findings and Orders are to be implemented by each facility upon

receipt of a formal determination and notification by the OEPA or the

EPA that the area is not in compliance with the NAAQS. Whether the 15

percent or the 25 percent control strategy would be implemented will

depend on the severity of any actual violations.

The OEPA received contingency plans from the affected facilities

and worked with them to finalize those plans. The OEPA found various

situations with respect to the availability of additional particulate

emission reductions to meet the levels required in OAC Rule 3745-17-14.

Some of the affected facilities do not have any significant reductions

of PM emissions available, while others have some available reductions,

but not enough to meet the required levels in OAC Rule 3745-17-14.

Others have sufficient reductions available to fully meet the

requirements. As a result, some affected facilities are not being

required to commit to any contingency measure reductions.

The facilities which fully satisfy Rule 3745-17-14, are the Ford

Motor Company's Cleveland Casting Plant, and the T & B Foundry Company.

Ohio has issued Final Findings and Orders which incorporate the

contingency plans for these sources.

The facilities which have some reductions available, but not enough

to fully meet the required levels in OAC Rule 3745-17-14 are

International Mill Service, Luria Brothers, and United Ready Mix

(formerly Harval). Ohio has issued Final Findings and Orders which

incorporate the contingency measures. Ohio also submitted fact sheets

for these sources which explain why further reductions are not

available.

[[Page 20141]]

The facilities which have no significant particulate emission

reductions that are reasonably available are Granger Materials, Boyas

Excavating, Cuyahoga Foundry Company, Drummond Dolomite (formerly

Cleveland Builders Supply), Independence Excavating, Kenmore Asphalt

Products (formerly Lake Erie Asphalt Products), Ohio Aluminum

Industries, Schloss Paving Company, Standard Lafarge Company (formerly

Standard Slag Company), Stein, Wheeling-Pittsburgh Steel Corporation (2

facilities: Mingo Junction and Steubenville).

In addition, two facilities, Boyas Excavating, and Satralloy, have

shut down. LTV Steel Company (East Side and West Side) will have rule

revisions that require no actual emission reductions. EPA guidance

calls for contingency measures only in proportion to the actual

reductions obtained by the nonattainment area. Because LTV has zero

emissions reductions associated with the initial PM attainment plan, it

was not required to commit to any contingency measure reductions.

While Ohio's Rule 3745-17-14 requires contingency emission

reductions of the magnitude called for by the EPA (25% of the actual

reductions in the SIP control plan), it was found that some sources

were not able to reasonably obtain such reductions. Ohio carefully

analyzed the facilities' contingency plans to ensure that all

reasonably available measures are included. The EPA agrees that Ohio

has obtained a sufficient level of reductions to provide for a

reasonable level of continued progress toward the attainment goal

during an interim period between any prospective determination that the

SIP has failed to achieve RFP or provide for timely attainment of the

NAAQS and the additional formal air quality planning following the

determination. Ohio's PM contingency plan is, therefore, approvable by

the EPA.

C. Enforceability

All measures and other elements in the SIP must be enforceable by

the State and EPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR

13556). The EPA criteria addressing the enforceability of SIPs and SIP

revisions were stated in a September 23, 1987 memorandum (with

attachments) from J. Craig Potter, Assistant Administrator for Air and

Radiation, et al. (see 57 FR 13541). State implementation plan

provisions also must contain a program to provide for enforcement of

control measures and other elements in the SIP (see section

110(a)(2)(C)).

The Final Findings and Orders issued by OEPA are clearly written,

and are legally enforceable by OEPA. The Final Findings and Orders will

be enforceable by the EPA upon their approval as a SIP revision. The

EPA believes that the State's existing air enforcement program will be

adequate to enforce PM contingency plans.

III. Final Action

The EPA approves Ohio's PM contingency measure rules, submitted by

OEPA on July 17, 1995. This submittal addressed PM contingency measure

plans that were due on November 15, 1993. The State's PM contingency

measures are included in Final Findings and Orders issued by the OEPA.

Previously approved OAC Rule 3745-17-14 requires that facilities

implement the contingency measures upon receipt of a formal

determination and notification by the OEPA or the EPA that the area is

not in compliance with the NAAQS.

The EPA is publishing this action without prior proposal because

EPA views this action as a noncontroversial revision and anticipates no

adverse comments. However, EPA is publishing a separate document in

this Federal Register publication, which constitutes a ``proposed

approval'' of the requested SIP revision and clarifies that the

rulemaking will not be deemed final if timely adverse or critical

comments are filed. The ``direct final'' approval shall be effective on

July 5, 1996, unless EPA receives adverse or critical comments by June

5, 1996. If EPA receives comments adverse to or critical of the

approval discussed above, EPA will withdraw this approval before its

effective date by publishing a subsequent Federal Register document

which withdraws this final action. All public comments received will

then be addressed in subsequent rulemaking. Please be aware that EPA

will institute another comment period on this action only if warranted

by significant revisions to the rulemaking based on any comments

received in response to today's action. Any parties interested in

commenting on this action should do so at this time. If no such

comments are received, EPA hereby advises the public that this action

will be effective on July 5, 1996.

This action has been classified as a Table 3 action for signature

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 9, 1995, memorandum from Mary D. Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from Executive Order 12866 review.

Nothing in this action should be construed as permitting, allowing

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

SIP. EPA 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.

Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded

Mandates Act'') (signed into law on March 22, 1995) requires that the

EPA prepare a budgetary impact statement before promulgating a rule

that includes a Federal mandate that may result in expenditure by

State, local, and tribal governments, in aggregate, or by the private

sector, of $100 million or more in any one year. Section 203 requires

the EPA to establish a plan for obtaining input from and informing,

educating, and advising any small governments that may be significantly

or uniquely affected by the rule.

Under section 205 of the Unfunded Mandates Act, the EPA must

identify and consider a reasonable number of regulatory alternatives

before promulgating a rule for which a budgetary impact statement must

be prepared. The EPA must select from those alternatives the least

costly, most cost-effective, or least burdensome alternative that

achieves the objectives of the rule, unless the EPA explains why this

alternative is not selected or the selection of this alternative is

inconsistent with law.

Because this final rule is estimated to result in the expenditure

by State, local, and tribal governments or the private sector of less

than $100 million in any one year, the EPA has not prepared a budgetary

impact statement or specifically addressed the selection of the least

costly, most cost-effective, or least burdensome alternative. Because

small governments will not be significantly or uniquely affected by

this rule, the EPA is not required to develop a plan with regard to

small governments. This rule only approves the incorporation of

existing state rules into the SIP. It imposes no additional

requirements.

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

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, EPA may certify that the rule will not have a

significant impact on a substantial number of small

[[Page 20142]]

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

Clean Air 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 the

State action. The Clean Air Act forbids EPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. EPA., 427 U.S.

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

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 5, 1996. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See Section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Particulate matter.

Dated: April 19, 1996.

Valdas V. Adamkus,

Regional Administrator.

For the reasons stated in the preamble, 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)(109) to read

as follows:

Sec. 52.1870 Identification of plan.

* * * * *

(c) * * *

(109) On July 17, 1995, Ohio submitted a Particulate Matter (PM)

contingency measures State Implementation Plan (SIP) revision request.

The submittal includes Final Findings and Orders for 5 companies. The

Findings and Orders provide PM emission reductions which will take

effect if an area fails to attain the National Ambient Air Quality

Standards for PM.

(i) Incorporation by reference.

Director's Final Findings and Orders for Ford Motor Company

(Cleveland Casting Plant), T&B Foundry Company, International Mill

Service, Luria Brothers, and United Ready Mix, issued by the Ohio

Environmental Protection Agency on July 10, 1995.

[FR Doc. 96-11200 Filed 5-3-96; 8:45 am]

BILLING CODE 6560-50-P