[Federal Register Volume 72, Number 199 (Tuesday, October 16, 2007)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20253]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is granting final approval of Ohio rules concerning
equivalent visible emission limits (EVELs), i.e., alternate opacity
limits that may be established for stack sources that meet mass
emission limits but cannot meet standard opacity limits. Ohio's rules
provide criteria for establishment of EVELs, and the rules provide that
EVELs established according to these criteria take effect without
formal review by EPA. Ohio submitted these rules on July 18, 2000, and
EPA published notices of proposed rulemaking on December 2, 2002, and
on January 23, 2007, that proposed to approve these rules. EPA received
one adverse comment letter. EPA will honor the commenter's
recommendation to fully codify the effects of this action, but EPA does
not agree that further notice and opportunity for comment is necessary.
As a result of this action, previous State modifications to EVELs will
become effective at the Federal level on November 15, 2007. Similarly,
any future action by the State to establish, modify, or rescind EVELs
in accordance with the criteria given in these Ohio rules, as approved,
will become effective at the federal level immediately upon the
effective date of the State action.
DATES: This final rule is effective on November 15, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2005-OH-0005. All documents in the docket are listed on
the www.regulations.gov web site. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through 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
FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental
Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-6067, email@example.com.
SUPPLEMENTARY INFORMATION: This supplementary information section is
arranged as follows:
I. What did EPA Propose?
II. What Is EPA's Response to Comments?
III. What Action Is EPA Taking Today?
IV. What Statutory and Executive Orders Apply?
I. What Did EPA Propose?
On July 18, 2000, Ohio submitted and requested approval of numerous
particulate matter rules. On December 2, 2002, at 67 FR 71515, EPA
proposed to approve many of these rules, including provisions in Ohio
Administrative Code (OAC) 3745-17-07(C) relating to EVELs. (On August
9, 2005, at 70 FR 46127, EPA proposed to approve most of the remainder
of the rules that Ohio had submitted.) These provisions on EVELs
established procedures and criteria by which sources meeting applicable
particulate mass emission limits but unable to meet applicable opacity
limits could justify a visible emission limit that is ``equivalent'' in
stringency to the mass emission limit. Ohio's rules provide further
that EVELs established according to the rules' procedures and criteria
immediately modify the federally enforceable opacity limits without
requirement for review as a revision to the State Implementation Plan
Most States' rules provide no detailed criteria for establishing
EVELs. In these situations, EPA requires that any EVEL that the State
wishes to adopt must be submitted to EPA for review, and the EVEL does
not alter the federally enforceable opacity limits unless and until EPA
approves the EVEL.
Ohio sought to apply a different process for establishing,
modifying, and rescinding EVELs. Ohio adopted detailed procedures and
criteria by which it would determine whether and at what level it would
establish EVELs. EPA proposed to find that those procedures and
criteria are appropriate and replicable, i.e., that an EPA review of
appropriate opacity limits for particular facilities would follow the
same procedures and criteria and would reach the same conclusion as
Ohio. Under these circumstances, EPA proposed to find federal review of
the actions that Ohio takes to establish, modify, or rescind EVELs to
be unnecessary. As a result, EPA proposed in effect to delegate
responsibility to Ohio for managing the subset of EVELs within the set
of federally enforceable opacity limits for sources in Ohio.
EPA approved most of the Ohio rules on November 8, 2006, at 71 FR
65417. However, EPA did not approve Ohio's rules regarding EVELs in
that rulemaking. Instead, on January 23, 2007, at 72 FR 2823, EPA re-
proposed action on the rules regarding EVELs. EPA published this re-
proposal for purposes of clarifying and soliciting comments on the
treatment of historic EVELs that were previously approved into the
State Implementation Plan (SIP).
Under the approach that EPA proposed to approve, Ohio may take
several actions on EVELs. Ohio may
rescind a previously established EVEL, thereby reestablishing
applicability of Ohio's general opacity limits. Ohio may modify a
previously established EVEL. Ohio may establish a new EVEL. In each
case, Ohio is to examine opacity values during qualifying stack tests
showing compliance with mass emission limits, and then Ohio is to
establish the indicated opacity limits that may or may not reflect an
EVEL, as appropriate.
The key question addressed in EPA's notice of re-proposed
rulemaking was the timing by which EVEL actions taken by Ohio come into
effect at the federal level. For future actions, EPA proposed that the
federally enforceable limit would reflect the opacity limits adopted by
the State (with or without an EVEL) at the same time that Ohio
establishes the limits. For past actions altering opacity limits, EPA
proposed that the State's actions would alter the federally enforceable
opacity limits upon the effective date of final federal rulemaking on
the EVEL rules. That is, EPA proposed that, starting on the effective
date of EPA's final rulemaking on OAC 3745-17-07(C), the federally
enforceable opacity limits shall exactly match the opacity limits in
place in Ohio at any given time, including only those EVELs that Ohio
has in place pursuant to OAC 3745-17-07(C).
EPA's notice of re-proposed rulemaking specifically addressed
situations in which EPA had previously approved EVELs into the SIP. EPA
proposed to rescind the previously issued EVELs (to the extent that
they are still effective at the Federal level), thereby providing
clarity that the applicable federally enforceable opacity limit for any
source is the currently effective limit that Ohio has established
pursuant to OAC 3745-17-07(C) and not the previously SIP-approved
limit. EPA proposed that the limits in these EVELs (to the extent they
remain in effect) would remain in effect if and only if the limits
remained in effect at the State level. EPA proposed that if Ohio has
established changed limits pursuant to OAC 3745-17-07(C), the limits
applicable to the affected sources would be changed (the EVEL either
rescinded or modified) as of the effective date of EPA's final
rulemaking on Ohio's rules. Similarly, any future State change in
opacity limits for these sources pursuant to OAC 3745-17-07(C) would
also yield an immediate corresponding change in the federally
enforceable opacity limit, again without regard to the previous
approval of an EVEL into the SIP.
II. What Is EPA's Response to Comments?
EPA received one comment letter regarding the proposed rule,
comments submitted by Katerina Milenkovski of Porter Wright Morris &
Arthur on behalf of FirstEnergy. EPA approved an EVEL for FirstEnergy's
Bay Shore facility near Toledo, codified at 40 CFR 52.1870(c)(58),
approved on November 2, 1983 at 48 FR 50530. FirstEnergy objects on
procedural grounds to EPA's proposal to rescind EVELs such as this, and
FirstEnergy objects to EPA's proposal to eliminate existing EVELs such
as the EVEL for its Bay Shore facility without explicitly codifying the
change for each affected facility. The following discussion describes
FirstEnergy's comments in more detail and provides EPA's evaluation of
and response to the comments.
Comment: FirstEnergy describes EPA's proposed action as having
``two parts-one prospective and one retroactive. FirstEnergy has no
objection to the prospective portion of the proposal which provides
that, once EPA's proposed approval of OAC 3745-17-07(C) is final, any
EVELs issued pursuant to it will be automatically federally enforceable
and will not require separate federal review. However, FirstEnergy
objects to EPA's proposal to eliminate all other EVELs-some identified
and some not-that have been historically approved by EPA in the Ohio
Response: In fact, OAC 3745-17-07(C) does not have separable
provisions for ``prospective'' versus ``retroactive'' revisions to
opacity limits. OAC 3745-17-07(C) provides procedures and criteria for
determining whether an EVEL is warranted and if so at what level. The
procedures and criteria in OAC 3745-17-07(C) provide for periodic
review of opacity limits without regard to whether an EVEL was issued
in the past or whether an EVEL was approved into the SIP. Once Ohio
makes its determination regarding the justification for and level of
any EVEL, and once Ohio establishes the warranted opacity limits (with
or without an EVEL), OAC 3745-17-07(C) provides that these opacity
limits become the federally enforceable opacity limits without EPA SIP
FirstEnergy does not specify a recommended EPA rulemaking action.
Nevertheless, FirstEnergy's comment implies a recommendation that EPA
approve OAC 3745-17-07(C) for one set of circumstances (facilities with
no SIP-approved EVEL) and disapprove the rule for another set of
circumstances (facilities with a SIP-approved EVEL). Since OAC 3745-17-
07(C) does not differentiate between EVELs that have been approved into
the SIP and EVELs that have not, EPA does not have the authority to
rulemake in this manner. (As discussed below, EPA also believes that
such a rulemaking would not be warranted.)
The central question EPA faced is when to change federally
enforceable opacity limits once Ohio finds that revisions to opacity
limits under OAC 3745-17-07(C) are warranted. Previously, in the
absence of specific procedures and criteria that can be expected to
yield appropriate and replicable limits, EPA had required that
federally enforceable limits not change without EPA review following
SIP review procedures. Now that Ohio has incorporated appropriate
procedures and criteria into OAC 3745-17-07(C), EPA believes that
opacity limit revisions that Ohio finds warranted should take effect at
the Federal level as well, without further EPA review. Specifically,
EPA believes that future Ohio actions on EVELs should take effect
simultaneously at the State and Federal levels, and that past Ohio
actions should take effect at the Federal level as soon as final EPA
action (being taken here) becomes effective (i.e., November 15, 2007).
Comment: FirstEnergy objects to EPA's proposal ``to delete EVELs
that are currently part of the SIP without identifying those EVELs or
the facilities in question, and without providing a rationale or
explanation for doing so.''
Response: FirstEnergy appears to misunderstand the nature of EPA's
proposed action and the rationale that EPA provided for this proposed
action. Ohio requested that EPA approve a rule that would change the
process by which EVELs are established, modified, and rescinded. The
new process would require that Ohio review opacity values and set
opacity limits according to specified criteria and would remove the
current requirement for EPA to conduct formal SIP review of the opacity
limits that Ohio sets. EPA's proposed rulemaking thus evaluated the
revised process and provided EPA's rationale for its belief that the
revised process assures that Ohio will set appropriate opacity limits
without the need for formal EPA review of Ohio's actions.
EPA's proposed rulemaking did not address the merits of particular
opacity limits at particular facilities. Indeed, Ohio has requested
that EPA approve a process in which formal EPA review of the merits of
particular opacity limits at particular facilities is no longer
necessary. The acceptability of Ohio's requested process is a function
adequacy of the criteria to establish a replicable set of limits, the
adequacy of the criteria to establish limits that are reliably
consistent with EPA policy on EVELs, and the adequacy of the process to
meet procedural requirements. The acceptability of Ohio's requested
process is not a function of what particular opacity limits are
appropriate at particular facilities.
As a point of clarification, elimination of EVELs from the SIP does
not necessarily mean that the relevant facilities are no longer subject
to EVELs. If Ohio has retained an EVEL or re-established an EVEL
identical to the EVEL in the SIP, then no changes in opacity limits
would apply to such facility. EPA is accepting Ohio's determinations as
to whether and at what level any EVEL is warranted for any particular
source, and EPA is eliminating EVELs in the SIP to avoid confusion and
to assure that the opacity limits set by the State (with or without an
EVEL) unambiguously represent the federally enforceable opacity limits.
For this rulemaking, as for many rulemakings, EPA need not identify
the affected facilities to explain the basis for its action. An
illustrative example here is the rulemaking on the other rules that
Ohio submitted along with OAC 3745-17-07(C). (See the final rule on
November 8, 2006, at 71 FR 65417, and the proposed rules on December 2,
2002, and August 9, 2005, at 67 FR 71515 and 70 FR 46127,
respectively.) For example, part of that rulemaking addressed storage
pile opacity limits at several Ohio utility plants. EPA addressed these
limits on the basis of general properties of storage piles, not on the
properties of specific facilities. Therefore, EPA did not identify the
facilities affected by this rulemaking, and EPA had no need to identify
Comment: FirstEnergy believes that EPA failed to provide proper
notice and opportunity for comment on this revision. FirstEnergy
comments that EPA was proposing ``a SIP revision, governed by Section
307(d) of the Clean Air Act, which requires that EPA's Federal Register
notice `shall be accompanied by a statement of its basis and purpose,'
which shall include a summary of--(A) the factual data on which the
proposed rule is based; (B) the methodology used in obtaining the data
an in analyzing the data; and (C) the major legal interpretations and
policy considerations underlying the proposed rule.''
Response: Even though EPA believes that section 307(d) of the Clean
Air Act is not applicable to this SIP action, EPA for this action has
provided the statement of basis and purpose described in section
307(d)(3). As discussed above, Ohio requested that EPA approve a
revised process for setting opacity limits. The merits of Ohio's
request process are independent of the merits of particular opacity
limits at particular facilities, and EPA reviewed Ohio's request
accordingly. Therefore, the basis and purpose that EPA specified for
its proposed action by necessity did not address particular conditions
at particular facilities, and EPA had no need to identify the affected
facilities in order to approve the process.
EPA believes that it has provided the basis and purpose of its
proposed action with sufficient particularity for interested parties to
comment meaningfully. The notice of proposed rulemaking that EPA
published on December 2, 2002 provides much of the rationale for
concluding that OAC 3745-17-07(C) provides appropriate procedures and
criteria for Ohio to take action on EVELs without further EPA review.
The notice of proposed rulemaking published on January 23, 2007
supplements the earlier notice by clarifying the timing by which EVELs
adopted by Ohio would take effect at a federal level.
FirstEnergy misinterprets the type of information that EPA must
provide in its proposed rulemaking. In this rulemaking, the ``data''
underlying EPA's proposed rulemaking are procedural and programmatic
data such as the criteria that Ohio would use and the related
provisions of Ohio's rule and the criteria that are stated in EPA
policies. The ``methodology'' used in obtaining and analyzing these
procedural and programmatic data involved a comparison of the Ohio
criteria against the criteria stated in EPA policies and a review of
whether EPA had sufficient assurances that Ohio's process would yield
appropriate opacity limits to be justified in finding formal SIP review
of such opacity limits to be unnecessary. The policy considerations
involve various features of EPA's policy on EVELs and the desirability
of periodic review of EVELs, and the legal interpretations involve
statutory provisions regarding the processing of revisions to SIPs. EPA
believes that its proposed rulemaking provided all the necessary
information of these types to offer the public an adequate opportunity
for meaningful comment on EPA's proposed action.
Nevertheless, EPA views FirstEnergy's comments as requesting that
EPA identify the affected facilities and the effect of this action that
EPA anticipates for each facility. EPA has reviewed the SIP and
consulted with Ohio, and EPA is providing the requested information
FirstEnergy is correct that EPA took action in 1983 that approved
an EVEL for the Toledo Bay Shore facility, although this EVEL may have
expired under the terms of the approved permit. The codification of
this action did not explicitly note that the approved provisions
included an EVEL. EPA believes that this facility is the only facility
in Ohio for which EPA approved an EVEL without explicitly noting the
EVEL in the Code of Federal Regulations. The current Title V permit for
this facility includes no EVEL, indicating that Ohio has concluded in
accordance with OAC 3745-17-07(C) that an EVEL is no longer warranted
for this facility. The facility is instead subject at the state level
to general opacity limits (20 percent opacity with exemptions), and
today's action will ensure that federally enforceable opacity limits
match the state limits. That is, regardless of whether the 29 percent
opacity limits that EPA approved in 1983 (implicitly codified at 40 CFR
52.1870(c)(58)) have expired, today's action clarifies that the general
opacity limits now apply, effective on November 15, 2007.
Other facilities for which EPA approved EVELs are those facilities
explicitly identified in either paragraph (c)(62) or paragraph (c)(65)
of 40 CFR 52.1870. According to Ohio, four of these facilities--Corning
Glass, Chardon Rubber, Springview Center, and Packaging Corporation of
America (subsequently called Caraustar Industries)--have shut down, so
today's action to have federal opacity limits match state limits will
have no effect on them. For one facility--a Denman Tire Corporation
facility--Ohio has concluded that the EVEL approved into the SIP
remains warranted. For this facility, strictly speaking, EPA is
implementing Ohio's approved EVEL process by rescinding the old permit
approved into the SIP (which may have expired under its terms) but
effectively re-establishing the identical limit as part of a newer
permit issued by Ohio. Today's action therefore has the effect of
clarifying that the EVEL limits approved into the SIP for the Denman
Tire facility are currently in effect.
Ohio also provided information regarding other EVELs that would
become the federally enforceable opacity limits by virtue of today's
action. Ohio identified four facilities for which Ohio issued EVELs
that are no longer in effect. (Ohio rescinded the EVELs for three
facilities and the fourth facility shut down.) Ohio concluded
that no facilities other than Denman Tire Corporation's facility
presently have an EVEL issued by the State. Thus, EPA believes that
FirstEnergy's Bay Shore facility is the only active facility for which
a SIP-approved EVEL is clarified to be not in effect as a result of
today's action, and Denman Tire Corporation will have the only
federally enforceable EVEL (matching the level of the EVEL approved in
1985) at the effective date of this rulemaking.
Under the process submitted by Ohio, the merits of alternative
opacity limits are evaluated by the State as it contemplates issuance
of a permit or administrative order that would specify applicable
opacity limits. In the case of FirstEnergy's Bay Shore plant, Ohio
issued a preliminary proposed permit on February 19, 2004, that
proposed to subject this facility to general opacity limits (i.e.,
limits that reflect no EVEL). FirstEnergy had the opportunity to
comment at that time on whether an EVEL was warranted at this facility.
Ohio considered comments it received and issued a final permit, again
applying general opacity limits, on November 19, 2004. This case
illustrates the fact that the process requested by Ohio provides
suitable opportunity for comment on the merits of particular opacity
limits at particular facilities during the State process for issuing
FirstEnergy evidently had adequate notice of EPA's proposed action,
insofar as a law firm submitted comments on its behalf. FirstEnergy's
Bay Shore facility is the only operating facility with an SIP-approved
EVEL that clearly has no EVEL following today's action. This provides
further evidence that EPA provided adequate notice and opportunity for
comment on the proposed rulemaking.
Comment: FirstEnergy believes that ``elimination of [EVELs
established through SIP approval] should be subject to the same process
and the same scrutiny as their initial adoption.'' FirstEnergy notes
that the past rulemaking that approved these EVELs provided a review of
the basis and justification for approving these specific EVELs.
FirstEnergy states that ``EPA must, at a minimum, provide an
explanation of the change in facts and/or change in law'' that warrants
changing the SIP by eliminating these EVELs. (FirstEnergy believes that
EPA has found the SIP ``substantially inadequate''; this comment is
addressed separately below.)
Response: Under OAC 3745-17-07(C), Ohio is to conduct a periodic
review of opacity limits of Ohio sources. The review may suggest that
either an increase or a decrease in opacity limits is warranted; in
either case, due to the adequacy of the process being approved, EPA
believes that the opacity limits that are shown to be warranted
according to the procedures and criteria of OAC 3745-17-07(C) need not
be reviewed by EPA as SIP revisions.
The periodic review of opacity limits is an important feature of
Ohio's rule. Facilities can achieve varying opacity levels as control
technology improves and as plant conditions change with time. EVELs
often remain in the SIP longer than they are warranted, and Ohio's rule
offers a procedure that facilitates periodic review to assure that
opacity limits remain appropriate for current conditions. Indeed, this
periodic review was an important advantage of OAC 3745-17-07(C)
factoring into EPA's decision to approve this rule.
FirstEnergy seems to wish that an EVEL that EPA found warranted
under conditions that applied over 20 years ago would be more difficult
to rescind than an EVEL that Ohio might currently establish. In
particular, FirstEnergy wishes for EPA to disallow rescission of EVELs
that have been approved into the SIP unless the rescission undergoes
full SIP review.
EPA does not agree with FirstEnergy's recommendation. EPA believes
that Ohio's rule is appropriately designed with appropriate procedures
regardless of whether or not an affected facility has a previously SIP-
approved EVEL. Ohio's rule provides for a review based on current
conditions at each facility, with Ohio establishing opacity limits that
are currently appropriate without regard to whether different opacity
limits may have been appropriate in the past. In cases like
FirstEnergy's Bay Shore facility, where Ohio has determined that no
EVEL is currently warranted, EPA believes that this change in opacity
limits should reflect the same process (involving immediate
effectiveness) as applies to any other Ohio EVEL review.
Comment: FirstEnergy believes that ``EPA must * * * provide an
explanation of [the basis for finding] the current SIP `substantially
inadequate,' pursuant to Section 110(a)(2)(H)(ii) of the Clean Air Act.
EPA must also follow the statutorily prescribed procedures for
correcting substantially inadequate SIPs.''
Response: This rulemaking reflects no finding of the current SIP to
be ``substantially inadequate.'' Ohio has requested that EPA approve a
rule that would change the process for taking actions on EVELs in Ohio
and that would alter the federally enforceable opacity limits according
to determinations on EVELs that Ohio has made and will make. EPA is
approving this rule.
Comment: FirstEnergy further objects to EPA's proposal to
discontinue EVELs without explicitly modifying the text in the Code of
Federal Regulations that identifies the EVELs as part of the SIP. A
footnote to this comment identifies FirstEnergy's Bay Shore facility as
having an EVEL that ``would be eliminated upon finalization of the
proposed action but would still be reflected in the Ohio SIP.'' In
FirstEnergy's view, with this approach, the Code of Federal Regulations
``would no longer accurately reflect the contents of the Ohio SIP and
the SIP would be more confusing than ever.'' FirstEnergy concludes that
if ``EPA is to eliminate EVELs as part of this rulemaking, EPA needs to
identify those EVELs in its proposed rulemaking with specificity and,
if the proposal is finalized, EPA needs to modify the text of the CFR
Response: Upon review, EPA agrees to honor the commenter's
recommendation that EPA modify the CFR for all EVELs that are currently
in the SIP. To help implement the process being approved today, a
process that provides that a source shall be subject to a federally
enforceable EVEL if and only if Ohio has established a currently
effective EVEL pursuant to OAC 3745-17-07(C), EPA is modifying the text
of the CFR to remove EVELs that are explicitly or implicitly identified
as part of the SIP. As proposed, EPA will rescind from the SIP
paragraphs (c)(62) and (c)(65) of 40 CFR 52.1870, which currently name
the only EVELs explicitly identified in the SIP. EPA will also amend
the language of 40 CFR 52.1870(c)(58) to clarify that the EVELs that
were included in the permit that EPA approved for FirstEnergy's Bay
Shore facility are no longer part of the SIP. EPA believes that the SIP
includes no other EVELs, so no other amendments to existing SIP
language are necessary. At the effective date of this rulemaking, the
Denman Tire Corporation facility will be subject to an EVEL by virtue
of an EVEL being specified in the facility's Title V permit, and no
other facilities will be subject to an EVEL.
III. What Action Is EPA Taking Today?
EPA is approving OAC 3745-17-07(C) as submitted by Ohio on July 18,
2000. Under the procedures of this rule, a facility shall be subject to
a federally enforceable EVEL if and only if the facility is subject to
an EVEL that Ohio has established pursuant to OAC 3745-17-07(C). To
implement this procedure, and to avoid potential for confusion
regarding previously approved EVELs,
EPA is removing the previously approved EVELs from the SIP. Hereafter,
EPA intends that federally enforceable EVELs will not be codified in
the Code of Federal Regulations as part of the SIP but will instead be
reflected only in the permit or other document that Ohio uses to
establish the EVEL. Therefore, EPA is rescinding paragraphs (c)(62) and
(c)(65) of 40 CFR 52.1870 and is adding language to 40 CFR
52.1870(c)(58) clarifying that the EVEL for FirstEnergy's Bay Shore
facility is no longer part of the SIP. These revisions will help
clarify that the federally enforceable opacity limits for a facility
shall reflect only those EVELs that have been established by Ohio and
are currently in effect in accordance with OAC 3745-17-07(C).
IV. What Statutory and Executive Orders Apply?
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.
Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant regulatory action,'' this
action is also not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001).
Regulatory Flexibility Act
This action merely approves state law as meeting federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
Unfunded Mandates Reform Act
Because this rule approves pre-existing requirements under state
law and does not impose any additional enforceable duty beyond that
required by state law, it 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).
Executive Order 13175: Consultation and Coordination With Indian Tribal
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely approves a state rule implementing a
federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it approves a state rule implementing a
National Technology Transfer Advancement Act
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit 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 United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
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 December 17, 2007. 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, Intergovernmental relations, Particulate matter.
Dated: August 24, 2007.
Richard C Karl,
Acting Regional Administrator, Region 5.
For the reasons stated in the preamble, part 52, chapter I, title 40 of
the Code of Federal Regulations is amended as follows:
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.1870 is amended as follows:
a. By removing and reserving paragraphs (c)(62) and (c)(65).
b. By revising paragraphs (c)(58) and (c)(134) to read as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(58) On July 14, 1982, the State submitted revisions to its State
Implementation Plan for TSP and SO2 for Toledo Edison Company's Bay
Shore Station in Lucas County, Ohio, except that the equivalent visible
emission limitations in this submittal are no longer in effect.
* * * * *
(134) On July 18, 2000, the Ohio Environmental Protection Agency
submitted revised rules for particulate matter. Ohio adopted these
revisions to address State-level appeals by various industry groups of
rules that the State adopted in 1995 that EPA approved in 1996. The
revisions provide reformulated limitations on fugitive emissions from
storage piles and plant roadways, selected revisions to emission limits
in the Cleveland area, provisions for Ohio to follow specified criteria
to issue replicable equivalent visible emission limits, the correction
of limits for stationary combustion engines, and requirements for
continuous emissions monitoring as mandated by 40 CFR part 51, Appendix
P. The State's submittal also included modeling to demonstrate that the
revised Cleveland area emission limits continue to provide for
attainment of the PM10 standards. EPA is disapproving two
paragraphs that would allow revision of limits applicable to Ford Motor
Company's Cleveland Casting Plant through permit revisions without the
full EPA review provided in the Clean Air Act.
(i) Incorporation by reference.
(A) The following rules in Ohio Administrative Code Chapter 3745-17
as effective January 31, 1998: Rule OAC 3745-17-01, entitled
Definitions, Rule OAC 3745-17-03, entitled Measurement methods and
procedures, Rule OAC 3745-17-04, entitled Compliance time schedules,
Rule OAC 3745-17-07, entitled Control of visible particulate emissions
from stationary sources, Rule OAC 3745-17-08, entitled Restriction of
emission of fugitive dust, Rule OAC 3745-17-11, entitled Restrictions
on particulate emissions from industrial processes, Rule OAC 3745-17-
13, entitled Additional restrictions on particulate emissions from
specific air contaminant sources in Jefferson county, and OAC 3745-17-
14, entitled Contingency plan requirements for Cuyahoga and Jefferson
(B) Rule OAC 3745-17-12, entitled Additional restrictions on
particulate emissions from specific air contaminant sources in Cuyahoga
county, as effective on January 31, 1998, except for paragraphs (I)(50)
(C) Engineering Guide 13, as revised by Ohio EPA, Division
of Air Pollution Control, on June 20, 1997.
(D) Engineering Guide 15, as revised by Ohio EPA, Division
of Air Pollution Control, on June 20, 1997.
(ii) Additional material.
(A) Letter from Robert Hodanbosi, Chief of Ohio EPA's Division of
Air Pollution Control, to EPA, dated February 12, 2003.
(B) Telefax from Tom Kalman, Ohio EPA, to EPA, dated January 7,
2004, providing supplemental documentation of emissions estimates for
Ford's Cleveland Casting Plant.
(C) Memorandum from Tom Kalman, Ohio EPA to EPA, dated February 1,
2005, providing further supplemental documentation of emission
(D) E-mail from Bill Spires, Ohio EPA to EPA, dated April 21, 2005,
providing further modeling analyses.
* * * * *
[FR Doc. E7-20253 Filed 10-15-07; 8:45 am]
BILLING CODE 6560-50-P