[Federal Register Volume 79, Number 26 (Friday, February 7, 2014)]
[Proposed Rules]
[Pages 7412-7417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01319]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2009-0807; FRL-9905-69-Region 5]
Approval and Promulgation of Air Quality Implementation Plans;
Ohio; Test Methods; Error Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
determine that an October 26, 2010, action was in error and to make a
correction pursuant to section 110(k)(6) of the Clean Air Act (CAA).
The correction will bring the codification section of the October 26,
2010, action into accord with the actual substance of the rulemaking
action. The October 26, 2010, final rule approved various revisions to
Ohio regulations that consolidated air quality standards in a new
chapter of rules and adjusted the rule cross references accordingly in
various related Ohio rules, including a specific revision to the cross
reference in the Ohio Administrative Code (OAC) pertaining to methods
for measurements for comparison with the particulate matter air quality
standards. The correction will remove the appearance that EPA approved
extraneous portions
[[Page 7413]]
of this rule in the OAC. EPA is not re-opening the comment period on
the October 26, 2010, action.
DATES: Comments must be received on or before March 10, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0807, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (312) 692-2551.
4. Mail: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0807. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
instructions on submitting comments, go to Section I of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone John Summerhays, Environmental
Scientist, at (312) 886-6067, before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental
Scientist, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067,
[email protected].
SUPPLEMENTARY INFORMATION: This SUPPLEMENTARY INFORMATION section is
arranged as follows:
I. What should I consider as I prepare my comments for EPA?
II. Background
III. What was the error?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews
I. What should I consider as I prepare my comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. Background
This proposed action is to correct an error in an earlier EPA
rulemaking, using the authority of section 110(k)(6) of the CAA.
Section 110(k)(6) provides EPA with explicit authority to correct
errors in prior rulemaking actions:
Whenever the Administrator determines that the Administrator's
action approving, disapproving, or promulgating any plan or plan
revision (or part thereof), area designation, redesignation,
classification, or reclassification was in error, the Administrator
may in the same manner as the approval, disapproval, or promulgation
revise such action as appropriate without requiring any further
submission from the State. Such determination and the basis thereof
shall be provided to the State and the public.
EPA notes that this statutory provision provides EPA with authority to
correct an error ``whenever'' EPA later determines that an error
occurred. In addition, this provision does not define the term
``error,'' and thus does not restrict EPA's authority merely to the
correction of typographical mistakes or other such limited
circumstances.\1\ EPA has used this explicit statutory authority on
multiple occasions to correct various types of errors.\2\
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\1\ EPA notes that it is not necessary in this rulemaking to
determine the precise contours of EPA's authority under section
110(k)(6), because the typographical error at issue in this action
is clearly within that authority.
\2\ See, e.g., ``Determinations Concerning Need for Error
Correction, Partial Approval and Partial Disapproval, and Federal
Implementation Plan Regarding Texas's Prevention of Significant
Deterioration Program, 76 FR 25178 (May 3, 2011) (the error was full
approval of a SIP submission with a legal deficiency); ``Approval
and Promulgation of Implementation Plans; Kentucky: Approval of
Regions to the State Implementation Plan,'' 75 FR 2440 (Jan. 15,
2010) (the error was inclusion of provisions into the SIP);
``Designation of Areas for Air Quality Planning Purposes; Correction
of Designations of Nonclassified Ozone Nonattainment Areas; States
of Maine and New Hampshire,'' 62 FR 14641 (March 27, 1997)
(designations in error because insufficient information submitted).
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The error at issue here occurred in an October 26, 2010, EPA
rulemaking action pertaining to revisions to the SIP for the State of
Ohio. On that date, EPA
[[Page 7414]]
published both a proposal and a companion direct final rule, which
addressed a SIP submission from the Ohio EPA dated September 10,
2009.\3\ The state's September 10, 2009, SIP submission included a
number of revisions submitted for EPA approval into the Ohio SIP,
including amendments of some existing state rules, rescission and
replacement of language in other existing state rules, and promulgation
of a new state rule.\4\ The state asserted that the overarching purpose
for these various revisions was ``to consolidate the state's ambient
air quality standards'' and explicitly stated that the intent was ``to
consolidate Ohio's [state regulations] into a single rule to provide
greater accessibility for the regulated community and the citizens of
Ohio.'' \5\
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\3\ See ``Approval and Promulgation of Air Quality
Implementation Plans; Ohio; Ohio Ambient Air Quality Standards;
Proposed rule,'' 75 FR 65594 (October 26, 2010); ``Approval and
Promulgation of Air Quality Implementation Plans; Ohio; Ohio Ambient
Air Quality Standards, Direct final rule,'' 75 FR 65572 (October 26,
2010).
\4\ See Letter from Chris Korleski, Director, Ohio EPA, to
Bharat Mathur, Acting Regional Administrator, U.S. EPA Region V,
dated September 10, 2009. A copy of this letter and the attachment
is located in the rulemaking docket for this proposal.
\5\ Id. at page 1.
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Among the existing state regulations revised in the SIP submission
was OAC 3745-17-03. The state gave no indication that it was revising
OAC 3745-17-03 substantively or seeking EPA approval of any substantive
revisions to that state regulation; the only revision identified by the
state in the SIP submission was a revision to a cross reference in OAC
3745-17-03(A).
EPA's October 26, 2010, action reflected EPA's evaluation of the
state's SIP submission, and EPA's approval of the various individual
revisions requested by the state for the express purpose of
consolidating the state's regulations. Unfortunately, in approving the
state's SIP submission, EPA erred by publishing a notice which did not
properly reflect the precise rule revision submitted by the state in
OAC 3745-17-03. Specifically, the state's SIP submission requested that
EPA approve a revision to OAC 3745-17-03, which the state itself
reflected in ``redline and strikeout'' as merely one isolated change in
OAC 3745-17-03(A), i.e., the deletion of an existing cross reference to
rule ``3745-17-02'' and the insertion of a replacement cross reference
to rule ``3745-25-02.'' The state did not redline any other revisions
to OAC 3745-17-03 in the version of the regulation attached to the SIP
submission. The state neither identified nor requested any other
specific substantive revisions to the version of OAC 3745-17-03
currently approved by EPA as part of the SIP. Likewise, EPA did not
identify or discuss any other revisions to OAC 3745-17-03 in the
October 26, 2010, action.
However, EPA stated in the October 26, 2010, action that it ``is
approving the following Ohio Administrative Code rules: 3745-17-03
`Measurement methods and procedures' . . . .'' This statement was
incorrect because it did not clearly describe the precise revision
being approved by EPA and the erroneous omission of the citation to
subsection ``(A)'' left the misimpression that EPA was approving more
than the revised cross reference in OAC 3745-17-03(A). EPA also
codified this change with an incorporation by reference described in
the October 26, 2010, notice as ``(A) Ohio Administrative Code Rule
3745-17-03 `Measurement methods and procedures', effective April 18,
2009.'' EPA should have explicitly limited that codification to OAC
3745-17-03(A). As evidenced by the lack of any evaluation or discussion
of any substantive revisions to OAC 3745-17-03 whatsoever, and in light
of the then pending proposed disapproval of certain substantive
revisions to OAC 3745-17-03, it is evident that EPA did not intend, and
could not have intended, to approve any revisions to OAC 3745-17-03
beyond the revised cross reference in OAC 3745-17-03(A).
EPA subsequently discovered the error in the October 26, 2010,
rulemaking when EPA noticed the incorrect codification of OAC 3745-17-
03 in the Ohio SIP in early 2013.\6\ That incorrect codification
wrongly suggested that EPA had approved revisions to OAC 3745-17-03 in
toto, when it should have referred only to an approval of the revision
to the cross reference in OAC 3745-17-03(A) as requested by Ohio.
Accordingly, EPA published a final rule announcing the discovery of the
error, explaining the error, and correcting the error, on April 3,
2013.\7\ Within that April 3, 2013, action, EPA also explained its
basis for concluding that notice and comment rulemaking was not
necessary to correct the error in these specific circumstances and
invoked the good cause exception to the requirement for notice and
comment rulemaking under section 553 of the Administrative Procedure
Act, 5 U.S.C. section 553(b)(B).
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\6\ This error was reflected in 40 CFR 52.1870(c)(151)(i)(A)
which erroneously suggested that EPA had approved revisions to a
version of OAC 3745-17-03 effective April 18, 2009, in its entirety,
when this reference should have been limited to OAC 3745-17-03(A).
This was an error as EPA did not and could not have approved the
revision in toto in the October 26, 2010, action. EPA could only
have approved the specific revision to the cross reference requested
by the state and could not have approved other revisions not
discussed or identified by the state in the SIP submission. In
addition, EPA could not have approved any substantive revisions,
regardless of whether the state requested them in the SIP
submission, without adequate explanation of how such revisions would
have been consistent with the requirements of section 110(l) and
section 193. Moreover, this is especially the case as EPA has
previously proposed disapproval of certain substantive changes in
OAC 3745-17-03(B) for numerous reasons including noncompliance with
those statutory provisions.
\7\ See ``Approval and Promulgation of Air Quality
Implementation Plans; Ohio; Ohio Ambient Air Quality Standards;
Correction, Final rule; correcting amendment,'' 78 FR 19990 (April
3, 2013).
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In response to EPA's April 3, 2013 notice, one party filed a
petition for reconsideration requesting that EPA reconsider its
procedure in this matter and requesting that EPA instead proceed using
the SIP error correction procedure of section 110(k)(6) of the CAA. The
same party and other parties also filed petitions for review
challenging the April 3, 2013 action, likewise reflecting their views
that EPA should use the procedure of section 110(k)(6) to address the
error in the October 26, 2010, rulemaking.
Although EPA believes that the Administrative Procedures Act
authorizes action without notice and comment in circumstances such as
those presented in this particular situation, EPA has nevertheless
elected to correct the error in the October 26, 2010, action through a
notice and comment procedure using the explicit authority of section
110(k)(6) in this action.\8\ Based upon the apparent confusion caused
by EPA's error as reflected in the petitions, EPA believes that
proceeding pursuant to section 110(k)(6) at this time will provide
interested parties an opportunity to provide comment and will better
serve the intended purpose of eliminating any potential
misunderstandings.
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\8\ EPA elected to grant a petition for reconsideration that
specifically requested EPA to use section 110(k)(6) to correct the
error. See Letter from Robert Kaplan, Regional Counsel, Region 5 to
Cheri Budzynski dated August 27, 2013. A copy of this letter is
located in the rulemaking docket for this proposal.
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Except for this specific error identified in this proposed action
under section 110(k)(6), EPA is not revising its action in the October
26, 2010, action. EPA is not aware of any other errors associated with
that action.
III. What was the error?
A. What was the error in description and codification?
EPA's October 26, 2010, action was in error. In acting upon the
September 10,
[[Page 7415]]
2009, SIP submission from the State of Ohio, EPA's notice of direct
final rulemaking incorrectly indicated that the Agency was approving
revisions to ``OAC 3745-17-03'' when the notice should have explicitly
indicated that EPA was only approving the revised cross reference in
OAC 3745-17-03(A). For the reasons discussed below, EPA did not approve
more than the revision of the cross reference in OAC 3745-17-03(A) in
the October 26, 2010, action, but EPA's notice inadvertently did not
make that point clearly.
EPA's lack of precision in the preamble and in the codification in
the October 26, 2010, action led to an incorrect codification in 40 CFR
52.1870, which erroneously could have suggested that EPA had approved
substantive revisions to OAC 3745-17-03 in the Ohio SIP beyond the mere
requested revision to the cross reference in OAC 3745-17-03(A).\9\ EPA
needs to correct this codification error in order to assure that all
parties, including regulators, regulated entities, and citizens are not
confused by the error in the October 26, 2010, action.
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\9\ EPA notes that 40 CFR 52.1870(151)(i)(A) currently refers to
an incorporation by reference of ``Ohio Administrative Code Rule
3745-17-03(A) `Measurement methods and procedures.', effective April
18,2009.'' This incorporation by reference is thus now correct in
the Code of Federal Regulations.
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EPA believes that this is precisely the type of scenario in which
Congress has given EPA explicit authority to revise prior erroneous
actions pursuant to section 110(k)(6). Accordingly, EPA is proposing to
determine that its October 26, 2010, action was in error to the extent
that it appeared to approve revisions to OAC 3745-17-03, beyond the
mere approval of the revised cross reference in OAC 3745-17-03(A).
Even if EPA's mere failure to include the specific reference to
subsection ``(A)'' of OAC 3745-17-03 in the October 26, 2010, action
could have accidentally and unintentionally resulted in an approval of
all of the other substantive changes in the version of OAC 3745-17-03
that the state failed to discuss or identify in the September 10, 2009,
SIP submission, and that EPA failed to discuss or identify in its
October 26, 2010, action, that would also have been in error as EPA
cannot approve such substantive SIP revisions without proposing to do
so, explaining the proposal, taking comment on the proposal, responding
to comment on the proposal, and explaining the final approval. EPA
could not have approved other substantive revisions claimed by some
parties sub silentio.
B. What precipitated this error?
The error at issue resulted from a combination of causes, related
to unintended ambiguities in both the state's SIP submission and EPA's
October 26, 2010, action upon that SIP submission. The ambiguities in
the September 10, 2009, SIP submission include: (i) The state's cover
letter referred to the amendment of ``OAC 3745-17-03'' without
highlighting that the actual requested amendment at issue was only in
OAC 3745-17-03(A); (ii) the state's cover letter requested that EPA
``accept the new and amended rules as replacements for the rules
currently in our SIP'' but without enumerating the specific revised
subsections for such replacements; and (iii) although the state did
include a redline/strikeout version to reflect the specific amendment
in question, the state provided a redline/strikeout version against a
version of OAC 3745-17-03 that was not the current version of OAC 3745-
17-03 approved by EPA in the SIP.\10\ The confusion injected by the
state's use of a baseline version of OAC 3745-17-03 significantly
different from the version that had been approved by EPA as part of the
Ohio SIP, and failing to identify these differences, evidently led some
parties to believe that EPA had approved substantive revisions to OAC
3745-17-03 beyond those actually approved by EPA, including certain
provisions that EPA had expressly previously proposed to disapprove.
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\10\ A copy of the September 10, 2009, SIP submission is located
in the docket for this proposal.
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Notwithstanding any ambiguity in the state's SIP submission,
however, EPA should have noted the ambiguities and should have been
clearer in describing its own actions in the October 26, 2010, action.
In acting upon the specific revision to OAC 3745-17-03 at issue in the
September 10, 2009, SIP submission, EPA should have: (i) Explicitly
articulated that it was evaluating and approving only the revision to
the replaced cross reference in OAC 3745-17-03(A) identified in the SIP
submission by the state; (ii) correctly referred to and cited 3745-17-
03(A) specifically in the notice and the codification, rather than OAC
3745-17-03 in general; (iii) should have noticed and addressed the fact
that the version of OAC 3745-17-03 that the state used as the baseline
from which it identified revisions was not the current approved version
in the Ohio SIP; and (iv) should have noted the pending proposed
disapproval of certain substantive revisions to OAC 3745-17-03 from
another prior SIP submission. The confusion injected in part by EPA's
failure to notice and address the significant unnoted substantive
differences between the SIP version and the submitted version of OAC
3745-17-03 led some parties to take the position that EPA had approved
substantive revisions to OAC 3745-17-03 beyond those actually approved
by EPA.
C. Why was it evident that this was an error?
EPA believes that it should have been apparent that the October 26,
2010, action contained an error. First, although the state's September
10, 2009, SIP submission appeared to request that EPA approve ``OAC
3745-17-03'' in its entirety instead of being clear that only the cross
reference in OAC 3745-17-03(A) was at issue, the attached redline/
strikeout version of the rule included in the SIP submission
highlighted only the replaced cross reference OAC 3745-17-03(A). The
state identified no other revisions to OAC 3745-17-03, either in its
description of the revision or in the redline/strikeout version of the
regulation. Moreover, the ``Rule Summary and Fiscal Analysis''
submitted as part of the state's September 10, 2009, submission
explicitly stated that the purpose of the state's own regulatory
revision to OAC 3745-17-03 was ``to update a citation to OAC rule 3745-
17-02 in paragraph (A).'' \11\ The single minor redlined change
highlighted in the SIP submission, in the context of the state's
explicitly stated intent merely to consolidate OAC 3745-17-03 along
with other rules, should have been a clear indication that the state
did not consciously intend to make more substantive revisions to OAC
3745-17-03, nor that EPA consciously intended to approve any such
substantive revisions, in the October 26, 2010, action.
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\11\ See ``Rule Summary and Fiscal Analysis (Part A),'' dated
April 8, 2009, 8:07 a.m., submitted by the state in Article III,
Attachment B, RSFAs, as an attachment to the September 10, 2009, SIP
submission. A copy of the entire SIP submission is in the docket for
this proposal.
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Second, the version of OAC 3745-17-03 submitted by the state as
part of the SIP submission did not reflect or identify revisions
relative to the version of that rule that had actually been approved by
EPA into the SIP. The version of OAC 3745-17-03 that had been approved
by EPA into the Ohio SIP was the version effective in the state as of
January 31, 1998, approved by EPA
[[Page 7416]]
on October 16, 2007.\12\ EPA has not approved a substantive revision to
OAC 3745-17-03 (or any other revision beyond the referencing revision
in paragraph A) since that time. The later version of OAC 3745-17-03
mistakenly used in the state's September 10, 2009, SIP submission as a
baseline for identifying revisions has substantial differences from the
version previously approved by EPA into the SIP. EPA's October 26,
2010, action did not include any discussion whatsoever of these
differences between the version of OAC 3745-17-03 that had been
approved by EPA in the Ohio SIP and the later version that the state
used as a baseline in its September 10, 2009, SIP submission. Those
differences are significant and substantive, e.g., the provisions that
address compliance methods for opacity standards applicable to certain
stationary sources, for which the unapproved revisions would allow
significantly more opacity during certain periods. Such significant and
substantive revisions to the existing approved version of OAC 3745-17-
03, even if valid, would have required an analysis under section 110(l)
and section 193, as appropriate, to support approval. The state's
September 10, 2009, SIP submission contained no such analysis. EPA
would have needed to provide an explanation of this analysis in the
October 26, 2010, action or in the administrative record supporting
that action. EPA provided no such analysis because it did not intend to
approve those substantive changes to OAC 3745-17-03, merely the
revision to the cross reference in OAC 3745-17-03(A). The absence of
any such analysis should have been a clear indication that EPA was not
approving any revisions to OAC 3745-17-03 beyond the cross reference.
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\12\ See ``Approval and Promulgation of Implementation Plans;
Ohio Particulate Matter,'' 72 FR 58523 (Oct. 16, 2007). This 2007
action pertained to a SIP revision that the state submitted on July
18, 2000. This specific SIP submission preceded the revisions that
the state submitted to EPA on June 4, 2003, that EPA has proposed to
disapprove. The only revision to OAC 3745-17-03 that EPA has
approved since 2007 is the revision to amend the cross reference in
OAC 3745-17-03(A).
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Third, there is a pending rulemaking in which EPA proposed to
disapprove certain substantive revisions to OAC 3745-17-03 contained in
a June 4, 2003, SIP submission, during which EPA received comments both
supporting and opposing the proposed disapproval.\13\ The fact that EPA
neither referred to that prior proposed disapproval action, nor
responded to any of the comments that pertain to that prior proposed
action in the October 26, 2010, notice, is further evidence that EPA
did not and could not have approved any substantive revisions to OAC
3745-17-03 and could only have intended to approve the revisions to the
cross reference in OAC 3745-17-03(A). Basic principles of
administrative law, under both the CAA and the Administrative
Procedures Act, require an agency to respond to significant adverse
comments on a proposed action as part of notice and comment rulemaking,
and it would have been improper for EPA to ignore the comments on the
prior proposed disapproval of substantive revisions to OAC 3745-17-03.
This absence of responses to comments on such significant substantive
changes should have been a clear indication that EPA was in fact not
intending to approve those revisions, and could only be approving the
limited revision to the cross reference in OAC 3745-17-03(A), in the
October 26, 2013, action.\14\
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\13\ See ``Approval and Disapproval of Ohio Implementation Plan
for Particulate Matter; Proposed Rule,'' 70 FR 36901 (June 27,
2005). The June 4, 2003, SIP submission was not at issue in EPA's
October 26, 2010, action, and is not at issue here.
\14\ EPA notes that commenters on the Agency's June 27, 2005,
proposed disapproval of certain substantive revisions to OAC 3745-
17-03 included the Ohio Chamber of Commerce, the Ohio EPA, and
representatives of various industry groups. Accordingly, EPA
presumes that some parties are familiar with that proposed
disapproval and would have noted that none of the comments
concerning the prior disapproval were addressed in the October 26,
2010, action, including their own. The substance of those comments
is not germane to this action, but EPA includes those comment
letters in the docket for this action solely for the purpose of
illustrating that some parties would have been aware of the
significance of the substantive revisions in OAC 3745-17-03 that EPA
did not intend to approve on October 26, 2010.
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Given the foregoing facts, EPA believes that its October 26, 2010,
action with respect to OAC 3745-17-03 was clearly in error. EPA could
not have approved any revision, except with respect to the revision to
the cross reference in OAC 3745-17-03(A) specifically requested by the
state in the SIP submission. Moreover, given the context, EPA believes
that the error should have been evident at the time of the action. The
foregoing facts form the basis for EPA's proposed determination that
the October 26, 2010, action was in error.
IV. What action is EPA taking?
Pursuant to section 110(k)(6), EPA is proposing to determine that
its October 26, 2010, rulemaking was in error to the extent that it
appeared to approve revisions to OAC 3745-17-03 beyond the revision to
the cross reference in OAC 3745-17-03(A). Through today's action, EPA
is proposing to clarify that in the October 26, 2010, action, EPA did
not approve any revisions to OAC 3745-17-03 except for the specific
revision to the cross reference in OAC 3745-17-03(A) requested by the
state. But for that change, the currently applicable version of OAC
3745-17-03 in the Ohio SIP is the version effective in the state on
January 31, 1998, approved by EPA on October 16, 2007. The currently
applicable version of OAC 3745-17-03 in the Ohio SIP does not contain
any revisions addressed in EPA's proposed approval and disapproval on
June 27, 2005.
On April 3, 2013, EPA used its authority under section 553 of the
Administrative Procedures Act to amend the erroneous codification in
its October 26, 2010, rulemaking without notice and comment rulemaking
to reflect more clearly that EPA had only approved the one isolated
revision requested by the state in OAC 3745-17-03, i.e, the revision of
the cross reference in OAC 3745-17-03(A). That corrected codification
is already reflected in the CFR, i.e., the status quo is that the
codification is correct. In response to a petition for reconsideration,
EPA is proposing today to correct the misleading codification as an
error pursuant to section 110(k)(6) rather than rely on the corrected
codification identified in the April 3, 2013, final action.
EPA is soliciting comment on this proposed action under section
110(k)(6). By this means, EPA is taking proposed action to correct the
erroneous codification of its October 26, 2010, rulemaking by
clarifying that the only portion of Ohio's submittal on September 10,
2009, of OAC 3745-17-03 that should be codified as approved by EPA is
OAC 3745-17-03(A). To reiterate, the only revision that EPA approved to
OAC 3745-17-03 in the October 26, 2010, action is the revised cross
reference in OAC 3745-17-03(A).
EPA believes that the facts set forth in this proposal demonstrate
clearly that the October 26, 2010, action was in error to the extent
that it appeared to approve revisions to OAC 3745-17-03 beyond the
revision to the cross reference in OAC 3745-17-03(A). If EPA takes
final action as proposed in this notice, EPA will also reaffirm the
codification of OAC 3745-17-03(A) in 40 CFR 52.1870 (c)(151)(i)(A). EPA
is not reconsidering its October 26, 2010, action with respect to any
other issues. EPA is also not in this rulemaking addressing the
substance of provisions of OAC 3745-17-03 other than paragraph (A),
which are outside the scope of the revision requested in the state's
September 10, 2009, SIP submission and EPA's October 26, 2010,
rulemaking. In
[[Page 7417]]
particular, any substantive revisions to OAC 3745-17-03, including any
revisions to OAC 3745-17-03(B)(1), are not at issue in this rulemaking.
Only comments regarding EPA's correction of the error in the October
26, 2010, action are germane to this rulemaking under section
110(k)(6).
EPA notes that it is neither staying nor revoking the correction
action in the April 3, 2013, notice, because that could be misleading
to regulated entities, regulators, and members of the public alike.
Because the error in the October 26, 2010, action was in essence a
typographical error, and because there was no actual approval of any
revisions to OAC 3745-17-03 other than the revised cross reference in
OAC 3745-17-03(A), the previously approved version of the remainder of
OAC 3745-17-03 remains in effect in the Ohio SIP. Based upon the still
pending proposed disapproval of certain substantive revisions to OAC
3745-17-03, EPA believes that parties such as regulated entities
affected by those substantive revisions would be well aware of this
fact, but not all other parties should be expected or presumed to have
this degree of understanding or responsibility to be informed. While
EPA is pursuing correcting action under authority of CAA section
110(k)(6), to supersede the correcting action under the Administrative
Procedures Act, that EPA published on April 3, 2013, EPA anticipates
that the codification as corrected pursuant to section 110(k)(6) will
replicate the codification as corrected on April 3, 2013. Accordingly,
EPA is not staying or revoking the correction in the April 3, 2013,
action, in the interim during this rulemaking under section 110(k)(6).
The April 3, 2013, action will become moot once EPA takes final action
on today's proposal.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. This action merely
corrects an error in EPA's prior action and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: January 13, 2014.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2014-01319 Filed 2-6-14; 8:45 am]
BILLING CODE 6560-50-P