[Federal Register Volume 72, Number 199 (Tuesday, October 16, 2007)]
[Rules and Regulations]
[Pages 58523-58528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20253]



40 CFR Part 52

[EPA-RO5-OAR-2005-OH-0005; FRL-8464-6]

Approval and Promulgation of Implementation Plans; Ohio 
Particulate Matter

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, summerhays.john@epa.gov.

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

[[Page 58524]]

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 
of the

[[Page 58525]]

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 
these facilities.
    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

[[Page 58526]]

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 
opacity limits.
    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,

[[Page 58527]]

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 
Federal Standard.

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 
et seq.).

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.

Subpart KK--Ohio

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.

* * * * *

[[Page 58528]]

    (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) 
and (I)(51).
    (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]