[Federal Register Volume 59, Number 88 (Monday, May 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11072]
[[Page Unknown]]
[Federal Register: May 9, 1994]
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DEPARTMENT OF THE TREASURY
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH-11-2-6106; OH-12-2-6107; FRL-4881-3]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The United States Environmental Protection Agency (USEPA) is
giving partial approval, partial disapproval, and partial limited
approval/limited disapproval to specified portions of the requested
revisions to the Ohio's ozone State Implementation Plan (SIP). The
requested revisions consist of amendments to the Ohio Volatile Organic
Compound (VOC) Rules. The revisions were submitted by the State of Ohio
on June 9, 1988, and August 24, 1990, to satisfy part D requirements of
the Clean Air Act as amended in 1990 (CAA). The USEPA has evaluated
each revised rule and finds that a number of the regulations are fully
approvable, and a number are not approvable, and is partially approving
and partially disapproving these portions accordingly. The remainder of
the regulations, while deficient in some respects, would nevertheless
strengthen the existing SIP if federally approved. Therefore, the USEPA
is giving limited approval to these remaining regulations in order to
strengthen the SIP. Concurrently, the USEPA is giving limited
disapproval to these rules because they still contain deficiencies that
were required to be corrected by section 182(a)(2)(A) and, as a result,
do not fully meet the part D requirements of the CAA.
EFFECTIVE DATE: This final rule becomes effective June 8, 1994.
ADDRESSES: Copies of the SIP revision request, public comments on the
rulemaking, and other materials relating to this rulemaking are
available for inspection at the following address: (It is recommended
that you telephone Bonnie Bush at (312) 353-6684, before visiting the
Region V Office.)
U.S. Environmental Protection Agency, Region V, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
A copy of this revision request to the Ohio ozone SIP is also
available for inspection at the following address:
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, (202) 260-7548.
FOR FURTHER INFORMATION CONTACT: Bonnie Bush, Air Enforcement Branch,
Regulation Development Section (AE-17J), U.S. Environmental Protection
Agency, Region V, Chicago, Illinois 60604, (312) 353-6684.
SUPPLEMENTARY INFORMATION:
I. Summary of State Submittal
On June 9, 1988, the Ohio Environmental Protection Agency (OEPA)
submitted volatile organic compound (VOC) regulations governing 11
sources not covered by United States Environmental Protection Agency
(USEPA) Control Technique Guidelines (CTG) and the associated technical
support for these regulations. On August 24, 1990, the OEPA submitted
further revisions to the ozone portion of the Ohio State Implementation
Plan (SIP), specifically, revisions to Ohio Administrative Code (OAC)
Chapter 3745-21, ``Carbon Monoxide, Photochemically Reactive Materials,
Hydrocarbons, and Related Materials Standards,'' including amendments
to the following rules: OAC 3745-21-01, Definitions; OAC 3745-21-04,
Attainment Dates and Compliance Time Schedules; OAC 3745-21-09, Control
of Emissions of Volatile Organic Compounds from Stationary Sources; OAC
3745-21-10, Compliance Test Methods and Procedures; and OAC 3745-21-11,
Reasonably Available Control Technology Studies for Ozone. On July 23,
1991, the OEPA sent a letter to Region V withdrawing OAC 3745-21-11
from the August 1990 SIP revision request. The USEPA evaluated the
remaining revision requests from both the June 1988 and August 1990
submittals as the OEPA's effort to address the reasonably available
control technology (RACT) ``Fixup'' requirements under section
182(a)(2)(A) of the Clean Air Act as amended in 1990 (CAA).
On September 23, 1993, the USEPA published a notice of proposed
rulemaking in the Federal Register (58 FR 49458), proposing partial
approval, partial disapproval, and partial limited approval/limited
disapproval of the submittals. Public comments on this proposal were
accepted through October 25, 1993. Three comments were received, from:
(1) Navistar International Transportation Corporation, commenting on
the USEPA's proposed action on OAC 3745-21-09(U); (2) Porter, Wright,
Morris & Arthur, attorneys for Armco Steel Company, commenting on the
USEPA's proposed action on OAC 3745-21-09(OO); and (3) International
Paper, commenting on the USEPA's proposed action on OAC 3745-21-09(II).
II. Public Comment/USEPA Response
The following evaluation summarizes each comment received, along
with a summary of the USEPA's proposed action on the portion of the
requested revisions that received the comment, and the USEPA's response
to the comment. A more detailed discussion of the State submittal and
the rationale for the USEPA's proposed actions based on the CAA and
cited references, appears in USEPA technical support documents (TSD's)
dated October 19, 1988, and March 3, 1993.
A. Navistar International Transportation Corporation
Navistar commented on the USEPA's proposed action on OAC 3745-21-
09(U), Ohio's regulation for surface coating of miscellaneous metal
parts and products.
1. Proposed Action
The USEPA proposed disapproval of Rule -09(U) because of a number
of deficiencies involving inconsistency with RACT as defined by the
USEPA, lack of enforceability, and violation of the General Savings
Clause of the Clean Air Act. The inconsistencies with RACT include an
unjustified emission limit which is less stringent than RACT, an
unjustified emission limit which is a relaxation from the approved
ozone SIP, an inappropriate, unsupported applicability cutoff, and an
inappropriate use of a five percent equivalency demonstration. The
unsupported applicability cutoff requested in the revision is 10
gallons or less of coating applied per day. The USEPA has defined the
RACT cutoff as 15 lbs or less VOC emitted per day. The enforceability
deficiencies include use of vague language and language allowing
director's discretion without requiring USEPA approval.
2. Comments on Proposed Action and USEPA Response
a. Comment. Navistar supports the rule's applicability cutoff of 10
gallons or less of coating employed per day. The USEPA's RACT
applicability cutoff of 15 lbs VOC emitted or less per day is
economically unreasonable. Navistar's Springfield Assembly Plant in
Clark County is using coatings with more than 3.5 lbs VOC per gallon,
and if these lines were subject to the requirements of this rule, the
cost of control would range from $70,016 to $115,093 per ton of VOC
removed. Navistar would have to apply for variances, which is wasteful
of both time and resources.
b. USEPA Response. The cost of control quoted in the comment is
higher than control costs usually associated with RACT, but the comment
contains no documentation supporting these control cost figures. There
is also no documentation submitted with this comment that demonstrates
the unavailability of complying coatings or that this facility cannot
use complying coatings as a means of VOC control. Most importantly,
even if the commenter had submitted documentation of the quoted control
costs, this would apply to Navistar alone; statewide relaxation of this
applicability cutoff based on one facility would be unacceptable and
insupportable. If Navistar has documented support for the cost control
figures, the appropriate step for the company to take would be
application for a site-specific SIP revision. If Navistar does not wish
to apply for a SIP revision, the use of complying coatings is an
acceptable alternative method of compliance.
B. Porter, Wright, Morris & Arthur
Porter, Wright, Morris & Arthur commented on OAC Rule 3745-21-
09(OO), a non-CTG rule for the Armco Steel Company in Middletown, Ohio.
1. Proposed Action
The USEPA proposed concurrent limited approval (based on the SIP
strengthening effect of the rule) and limited disapproval of Rule -
09(OO) (based on lack of enforceability and inconsistency with RACT).
The SIP strengthening effect of the rule stems from the fact that this
rule provides some regulation for this source where no federally
enforceable regulation exists now. The enforceability deficiency stems
from a lack of recordkeeping requirements for the facility, and the
rule contains an unjustified VOC content limit for a coating operation
which is inconsistent with RACT recommendations. The rule also lacks
consideration of all non-CTG VOC sources at the plant, and rule
development for VOC emissions from volatile organic liquid (VOL)
storage tanks has been omitted.
2. Comments on Proposed Action and USEPA Response
a. Comment 1. Armco objects to limited approval of rules submitted
in 1988 and 1990. The emission limit of 0.3 lb VOC per gallon of
rolling oil excluding water in Rule -09(OO)(1) is an error. Armco
perfected an appeal of Ohio's adoption of this rule to the Ohio
Environmental Board of Review. Ohio subsequently adopted a new limit
for rolling oil, which is contained in the OEPA's June 7, 1993,
submittal to the USEPA. The USEPA should address only the new limit.
b. USEPA Response. The USEPA has had discussions with the OEPA
about the emission limit for rolling oil and understands that the 0.3
lb VOC per gallon limit was issued in error. The USEPA acknowledges
that this error has been addressed in Ohio's VOC rules submittal of
June 7, 1993; nonetheless, under section 110(k) of the CAA, the USEPA
is required to take action on the June 1988 and August 1990 submittals.
The USEPA agrees that it is inappropriate to approve into the SIP a
limit which is unreasonable and in error. The USEPA also believes that
the SIP strengthening effect of the remainder of this rule is
relatively insignificant. Therefore, the USEPA is disapproving Rule -
09(OO), rather than granting limited approval/limited disapproval. The
VOC rules package submitted on June 7, 1993, including a revised rule
for Armco Steel, is under review, and will be addressed in a subsequent
separate rulemaking action.
c. Comment 2. The recordkeeping inadequacies cited in the proposed
action have been corrected with Ohio's June 7, 1993, submittal.
d. USEPA Response. This rulemaking action addresses only the June
1988 and August 1990 submittals, which lack the necessary recordkeeping
and reporting requirements for Armco Steel. Under section 110(k) of the
CAA, the USEPA is required to take action on the June 1988 and August
1990 submittals. The VOC rule package submitted on June 7, 1993,
including a revised rule for Armco Steel, is under review, and will be
addressed in a subsequent separate rulemaking action.
e. Comment 3. Armco believes that the emission limit for anti-
galling material of 6.4 lb VOC per gallon, cited as deficient in the
March 3, 1993, USEPA TSD supporting the proposed action, constitutes
RACT as of the time of Ohio's most recent rulemaking action. Armco is
converting to a much lower VOC material, and this could form the basis
for a lower VOC limit, which should resolve any continuing concern with
this particular rule.
f. USEPA Response. As discussed in the notice of proposed
rulemaking, the State did not submit any demonstration that a lower VOC
content material was not available. The comment also lacks a
demonstration that a lower VOC content material was unavailable at the
time the rule was developed. However, the comment states that such a
material is available now; therefore, the 6.4 lbs VOC per gallon
emission limit clearly does not constitute RACT for this source. As
discussed above in the responses to Comments 1 and 2, this rulemaking
action addresses the June 1988 and August 1990 submittals only. The
most recent rule revision is under review, and will be addressed in a
subsequent separate rulemaking.
g. Comment 4. The USEPA's position that VOL storage tank emissions
must be addressed is inconsistent with a January 16, 1992, letter from
the USEPA to the OEPA which states that rule development is
unnecessary.
h. USEPA Response. The January 16, 1992, letter states. ``*** Ohio
is not required to develop a rule for this category at this time.'' Any
major source not covered by a CTG is subject to non-CTG RACT, as
required by sections 172(c), 182(a)(2)(A), and 182(b)(2) of the CAA.
The USEPA's March 1993 TSD and the notice of proposed rulemaking
indicate that the State is required to develop a rule for VOL storage.
However, lack of such rule development was not cited as the sole
deficiency for Rule 3745-21-09(OO) and was not the basis for
disapproval. The appropriate action on Rule -09(OO) remains disapproval
based on lack of recordkeeping requirements and a VOC content limit
which is inconsistent with RACT (see USEPA Responses to Comments 1, 2,
and 3).
C. International Paper
International Paper commented on OAC Rule 3745-21-09(II), a non-CTG
rule for the International Paper Company facility in Springdale, Ohio.
1. Proposed Action
The USEPA proposed concurrent limited approval/limited disapproval
of this rule. The SIP strengthening effect of the rule stems from the
fact that this rule provides some regulation for this source where no
federally enforceable regulation exists now. The proposal of limited
disapproval is based on deficiencies which include lack of
enforceability due to the absence of recordkeeping requirements for the
facility and a VOC content limit for fountain solution which is
inconsistent with RACT. The State submittal contains no demonstration
that a lower VOC content material is unavailable.
2. Comments on Proposed Action and USEPA Response
a. Comment. International Paper supports the OEPA's position as set
forth in the June 7, 1993, submittal. The June 1988 and August 1990
version of International Paper's rule ``specified limitations which
were erroneously developed and derived, and which have been corrected
in subsequent rulemakings.'' The USEPA should act only on the June 7,
1993, package.
b. USEPA Response. International Paper did not specify which
limitations they believe are in error, nor did they include in the
comments any information substantiating the error. International Paper
had opportunity to comment on this rule prior to its adoption by the
State during Ohio's public comment period. However, the record of
comments submitted into the Public Hearing Record included in Ohio's
June 1988 submittal contains no comments from International Paper.
Under section 110(k) of the CAA, the USEPA is required to take action
on the June 1988 and August 1990 submittals. The VOC rule package
submitted on June 7, 1993, including a revised rule for International
Paper, is under review, and will be addressed in a subsequent separate
rulemaking action.
III. Rulemaking Action
The comments were found to warrant one change from proposed to
final action on this SIP revision request. The USEPA has reconsidered
its position on OAC Rule 3745-21-09(OO): rather than giving concurrent
limited approval/limited disapproval, the USEPA is disapproving Rule -
09(OO).
In summary, the USEPA is disapproving the following rules: OAC
3745-21-01 (D)(6), (D)(8); OAC 3745-21-09 (I), (L), (N), (O), (Q), (R),
(U), (W), (Z), (DD), (EE), (OO); OAC 3745-21-10 (A), (C), (E), (O). The
USEPA is giving concurrent limited approval/limited disapproval to the
following rules: OAC 3745-21-01 (D)(45); OAC 3745-21-09 (A), (B), (C)
through (H), (J), (K), (S), (T), (X), (Y), (FF) through (NN), (PP); OAC
3745-21-10 (B). The USEPA is approving the following rules: OAC 3745-
21-01 (A), (B), (C), remainder of (D), (E) through (S); OAC 3745-21-04
(A), (B), (C); OAC 3745-21-09 (M), (P), (V), (BB), (CC); OAC 3745-21-10
(D), (F), (G), (I) through (N), (P).
Under section 179(a)(2), if the Administrator disapproves a
required submission under section 110(k) for an area designated
nonattainment, based on the submission's failure to meet one or more of
the elements required by the Act, one of the sanctions set forth in
section 179(b) will apply, as selected by the Administrator, unless the
deficiency has been corrected within 18 months of such disapproval.
Section 179(b) provides for two types of sanctions: highway funding and
offsets. The 18 month period referred to in section 179(a) will begin
to run for those provisions that the USEPA is disapproving (in full or
in a limited manner) as of the date the USEPA publishes this final
action. Moreover, this disapproval triggers the Federal Implementation
Plan (FIP) requirement under section 110(c). The sanctions and FIP
clocks are not started for Wood and Medina Counties by this final
action because the State was not required to submit RACT fix-up rules
for these areas.
Nothing in this action should be construed as permitting, allowing,
or establishing a precedent for any future request for revision to any
SIP. The 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.
Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order. OMB has exempted this regulatory action from Executive Order
12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the
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, the 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 CAA
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 CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
CAA forbids the USEPA 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).
The USEPA's disapproval of the State request under section 110 and
subchapter I, part D of the CAA does not affect any existing
requirements applicable to small entities. Any pre-existing Federal
requirements remain in place after this disapproval. Federal
disapproval of the State submittal does not affect its State-
enforceability. Moreover, the USEPA's disapproval of the submittal does
not impose any new Federal requirements. Therefore, the USEPA certifies
that this disapproval action does not have a significant impact on a
substantial number of small entities because it does not remove
existing requirements nor does it impose any new Federal requirements.
The Agency has reviewed this request for revision of the federally-
approved State Implementation Plan for conformance with the provisions
of the 1990 Amendments enacted on November 15, 1990. The Agency has
determined that the approved portions of this action conform with those
requirements irrespective of the fact that the submittal preceded the
date of enactment. The Agency has determined that other portions of
this action do not conform with the statute as amended and must be
disapproved. The Agency has examined the issue of whether this action
should be reviewed only under the provisions of the law as it existed
on the date of submittal to the Agency (i.e., prior to November 15,
1990) and has determined that the Agency must apply the new law to this
revision.
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 8, 1994. 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,
Incorporation by reference, Ozone, Reporting and record keeping
requirements, 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: April 22, 1994.
Valdas V. Adamkus,
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)(96) to read
as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(96) On June 9, 1988, and August 24, 1990, the Ohio Environmental
Protection Agency (OEPA) submitted revisions to the State
Implementation Plan for ozone. The revisions consist of new non-Control
Technique Guideline volatile organic compound (VOC) rules and
corrections to existing VOC rules.
(i) Incorporation by reference.
(A) OEPA Ohio Administrative Code (OAC) Rule 3745-21-01,
Definitions, Paragraphs (A), (B), (C), (D)(1) through (5), (D)(7),
(D)(9) through (62), (E) through (S); effective August 22, 1990.
(B) OEPA OAC Rule 3745-21-04, Attainment Dates and Compliance Time
Schedules, Paragraphs (A), (B), (C); effective August 22, 1990.
(C) OEPA OAC Rule 3745-21-09, Control of Emissions of Volatile
Organic Compounds from Stationary Sources, Paragraphs (A), (B), (C)
through (H), (J), (K), (M), (P), (S), (T), (V), (X), (Y), (BB), (CC),
(FF) through (NN), (PP), effective August 22, 1990.
(D) OEPA OAC Rule 3745-21-10, Compliance Test Methods and
Procedures, Paragraphs (B), (D), (F), (G), (I) through (N), (P);
effective August 22, 1990.
[FR Doc. 94-11072 Filed 5-6-94; 8:45 am]
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