Approval and Promulgation of Implementation Plans; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH106-1a; FRL-5808-5]

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: U.S. Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: On November 12, 1996, USEPA received a State Implementation

Plan (SIP) revision request from the Ohio Environmental Protection

Agency (Ohio EPA). This revision request was in the form of an

amendment to the Ohio Administrative Code (OAC) which added an

additional exemption from organic compound emission controls for

qualifying new sources. In this action, USEPA is approving the State's

SIP revision request through a ``direct final'' rulemaking; the

rationale for this approval is set forth below. Elsewhere in this

Federal Register, USEPA is proposing approval and soliciting comment on

this direct final action; if adverse comments are received, USEPA will

withdraw the direct final rulemaking and address the comments received

in a new final rule; otherwise, no further rulemaking will occur on

this SIP revision request.

DATES: This action will be effective June 16, 1997 unless substantive

adverse comments not previously addressed by the State or USEPA are

received by May 16, 1997. If the effective date of this action is

delayed due to adverse comments, timely notice will be published in the

Federal Register.

ADDRESSES: 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.

Copies of the Ohio submittal are available for public review during

normal business hours, between 8:00 a.m. and 4:30 p.m., at the above

address.

FOR FURTHER INFORMATION CONTACT: Randolph O. Cano, Regulation

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

Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois, 60604.

Telephone: (312) 886-6036.

SUPPLEMENTARY INFORMATION:

I. Background

Rule 3745-21-07 of the Ohio Administrative Code (OAC) specifies

organic compound control requirements for existing stationary sources

located in twenty-eight Ohio Counties: Butler, Clark, Clermont,

Cuyahoga, Darke, Delaware, Fairfield, Franklin, Geauga, Greene,

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

Montgomery, Perry, Pickaway, Portage, Preble, Starke, Summit, Union,

Warren and Wood which are referred to as ``Priority I'' counties in

Rule 3745-21-06. It should be noted that Rule 3745-21-06 which lists

the counties subject to the requirements of Rule 3745-21-07 is not

being considered as part of this direct final rule. Rule 3745-21-07

also specifies organic compound control requirements for all new

stationary sources regardless of location.

On November 12, 1996, USEPA received a SIP revision request from

Ohio EPA in the form of an October 7, 1996 amendment to Rule 3745-21-

07--Section(G)(9)(g)--which added an additional exemption from organic

compound emission controls for qualifying new sources which met three

requirements.

1. The Director of the Ohio EPA determined that ``Best Available

Technology'' (BAT) for the emissions unit, as required by Ohio's permit

to install rules, is either less stringent than or inconsistent with

the requirements of OAC Rule 3745-21-07(G). The term ``BAT'' is defined

at Section 3704.01 of the Ohio Regulatory Code (ORC). Since a BAT

determination could be less stringent than the USEPA definition of

reasonably available control technology (RACT) requirements due to

Ohio's definition of BAT, in cases where an emissions limitation is

applicable, the BAT determination must reflect the lowest emission

limit that the emissions unit is capable of meeting by the application

of control technology that is reasonably available considering

technological and economic feasibility. In addition, the BAT

determination for an emissions unit located within an ozone

nonattainment area must comply with Section 193 (General Savings

Clause) of the Clean Air Act (Act).

2. The USEPA has provided written approval of the issuance of a

permit to install for the emissions unit.

3. The issued permit to install contains terms and conditions

specifying the BAT requirements for the emissions unit, and the permit

is issued by Ohio EPA in a manner that makes the terms and conditions

of the permit federally enforceable.

In addition to adopting Section (G)(9)(g), the October 7, 1996,

final rule made a limited number of changes to portions of OAC Rule

3745-21-07 previously adopted and approved by USEPA. USEPA has reviewed

these changes and found them to be nonsubstantive.

II. Rulemaking Action

The USEPA approves the incorporation of Section (G)(9)(g) of OAC

Rule 3745-21-07 into the Ohio SIP. Because nonsubstantive revisions

were also made to Rule 3745-21-07, the USEPA is incorporating all of

Rule 3745-21-07 so that the text of the current State rule is identical

to the text of the federally approved rule. The USEPA is publishing

this action without prior proposal because USEPA views this as a

noncontroversial revision and anticipates no adverse comments. However,

in a separate document in this Federal Register publication, the USEPA

is proposing to approve the SIP revision should adverse or critical

comments be filed. This action will be effective on June 16, 1997

unless, by May 16, 1997, adverse or critical comments are received.

If the USEPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent rulemaking that

will withdraw the final action. All public comments received will be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The USEPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective on June 16, 1997.

Nothing in this action should be construed as permitting, 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.

III. Administrative Requirements

A. Executive Order 12866

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 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility

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

USEPA

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must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. sections 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, the Administrator

certifies 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 flexibility analysis would

constitute Federal inquiry into the economic reasonableness of the

State action. The Act forbids USEPA to base its actions concerning SIPs

on such grounds. Union Electric Co. v. EPA., 427 U.S. 246, 256-66

(1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, USEPA must undertake various actions

in association with any proposed or final rule that includes a Federal

mandate that may result in estimated costs to state, local, or tribal

governments in the aggregate; or to the private sector, of $100 million

or more. This Federal action approves pre-existing requirements under

State or local law. No new Federal requirements are imposed.

Accordingly, no additional costs to state, local, or tribal

governments, or the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, USEPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a major rule as defined by section

804(2).

E. Petitions for Judicial Review

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

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

the appropriate circuit by June 16, 1997. 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, Hydrocarbons.

Dated: April 1, 1997.

Michelle D. Jordan,

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)(114) to read

as follows:

Sec. 52.1870 Identification of plan.

* * * * *

(c) * * *

(114) On November 12, 1996, the Ohio Environmental Protection

Agency submitted a request to incorporate section(G)(9)(g) of Rule

3745-21-07 of the Ohio Administrative Code into the Ohio State

Implementation Plan (SIP). Section (G)(9)(g) provides an additional

exemption from organic compound emission controls for qualifying new

sources. Because, in the process of adopting section(G)(9)(g), minor

editorial changes were made to other parts of Rule 3745-21-07, the

United States Environmental Protection Agency is incorporating all of

Rule 3745-21-07 into the Ohio SIP. This will avoid confusion by making

the SIP approved rule identical to the current State rule.

(i) Incorporation by reference.

(A) Rule 3745-21-07 of the Ohio Administrative Code, adopted

October 7, 1996, effective October 31, 1996, as certified by Donald R.

Schregardus, Director of the Ohio Environmental Protection Agency.

[FR Doc. 97-9752 Filed 4-15-97; 8:45 am]

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