[Federal Register Volume 79, Number 208 (Tuesday, October 28, 2014)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25482]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2014-0385; FRL-9917-92-Region 5]
Approval and Promulgation of Air Quality Implementation Plans;
Ohio; Ohio PM2.5 NSR
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
SUMMARY: The Environmental Protection Agency (EPA) is approving, under
the Clean Air Act (CAA), revisions to Ohio's state implementation plan
(SIP) as requested by the Ohio Environmental Protection Agency (OEPA)
to EPA on June 19, 2014. The revisions to Ohio's SIP implement certain
EPA regulations for particulate matter smaller than 2.5 micrometers
(PM2.5) by establishing definitions related to
PM2.5, defining PM2.5 increment levels, and
setting PM2.5 class 1 variances. The revisions also
incorporate changes made to definitions and regulations that recognize
nitrogen oxides (NOX) as an ozone precursor, revising and
adding definitions, adding Federal land manager notification
requirements, and incorporating minor organizational or typographical
DATES: This direct final rule will be effective December 29, 2014,
unless EPA receives adverse comments by November 28, 2014. If adverse
comments are received, EPA will publish a timely withdrawal of the
direct final rule in the Federal Register informing the public that the
rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2014-0385, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
2. E-Mail: [email protected].
3. Fax: (312) 385-5501.
4. Mail: Genevieve Damico, Chief, Air Permits Section, Air Programs
Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Genevieve Damico, Chief, Air Permits Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only
accepted during the Regional Office normal hours of operation, and
special arrangements should be made for deliveries of boxed
information. The Regional Office official hours of business are Monday
through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2014-0385. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone Charmagne Ackerman, Environmental
Engineer, at (312) 886-0448 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Charmagne Ackerman, Environmental
Engineer, Air Permits Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-0448, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
II. What action is EPA taking?
III. Statutory and Executive Order Reviews
On June 19, 2014, OEPA submitted revisions to chapters in the Ohio
Administrative Code (OAC) 3745-31. Revisions were made to the following
chapters: 3745-31-01 through 3745-31-04, OAC 3745-31-06 through 3745-
31-23, 3745-31-25, 3745-31-26, 3745-31-29 and 3745-31-32. The changes
made were to implement the PM2.5 National Ambient Air
Quality Standards (NAAQS), PM2.5 New Source Review (NSR)
program and regulations related to NOX as a precursor to
ozone; include definitions for ``PM2.5,'' ``PM2.5
direct emissions,'' ``PM2.5 emissions,'' ``PM2.5
precursor,'' ``emergency,'' ``emergency engine,'' ``permanent,''
``publicly owned treatment works,'' ``quantifiable,'' ``semi-public
disposal system,'' and ``surplus''; include Federal land manager
notification requirements; clarification of nonattainment provisions;
and minor clarification and organizational revisions. OEPA has
requested that we not take action on OAC 3745-31-01(SSS)(1)(b) for the
definition of ``modify''; OAC 3745-31-13(H)(1)(c) for the
PM2.5 exemption to pre-application ambient monitoring; and
3745-31-16(C) for PM2.5 significant impact levels.
II. What action is EPA taking?
EPA is partially approving the SIP revision submittal. These
revisions were made to comply with regulations enacted to address the
PM2.5 NAAQS and also to include NOX as a
precursor to ozone. These revisions implement the NSR and prevention of
significant deterioration (PSD) program, as required by EPA's
EPA is approving the following rules: OAC 3745-31-01(P); OAC 3745-
31-01(LLL); OAC 3745-31-01(MMM); OAC 3745-31-01(NNN); OAC 3745-31-
01(QQQ); OAC 3745-31-01(TTTT); OAC 3745-31-01(UUUU); OAC 3745-31-
01(VVVV); OAC 3745-31-01(WWWW); OAC 3745-31-01(NNNNN); OAC 3745-31-
01(VVVVV); OAC 3745-31-11(B); OAC 3745-31-13; and 3745-31-16. EPA is
not taking action at this time on the remaining submitted rules and
will do so in a subsequent rulemaking action.
A. PM2.5-Related Actions
On April 25, 2007, EPA published the ``Clean Air Fine Particle
Implementation Rule'' (72 FR 20586) as a final rule in the Federal
Register. This 2007 action provides rules and guidance for the CAA
requirements for SIPs to implement the 1997 fine particle NAAQS. As
part of this rulemaking, EPA promulgated 40 CFR part 51, subpart Z
``Provisions for Implementation of PM2.5 National Ambient
Air Quality Standards''. 40 CFR part 51, subpart Z outlines the
requirements that a state SIP must meet to implement and comply with
the PM2.5 NAAQS. The final rule became effective on May 29,
On May 16, 2008, EPA published the ``Implementation of the New
Source Review (NSR) Program for Particulate Matter Less than 2.5
Micrometers (PM2.5)'' (73 FR 28321) as a final rule in the
Federal Register. These 2008 regulations establish the PM2.5
NSR program. The PM2.5 NSR program includes provisions
establishing the PM2.5 major source threshold, significant
emissions rate, and applicability of NSR to PM2.5
precursors. This final rule became effective on July 15, 2008.
OEPA has submitted the following definitions to be added to OAC
3745-31-01: ``PM2.5'' at 3745-31-01(TTTT);
``PM2.5 direct emissions'' at 3745-31-01(UUUU);
``PM2.5 emissions'' at 3745-31-01(VVVV); and
``PM2.5 precursor'' at 3745-31-01(WWWW). The definition of
``baseline area'' at 3745-31-01(P) was revised to explicitly identify
pollutant air quality impacts that would define a baseline area where a
minor source baseline date is already established. The definition of
``major source baseline date'' at 3745-31-01(MMM) adds October 20,
2010, as the major source baseline date for PM2.5. Ohio's
revision of ``minor source baseline date'' at 3745-31-01(QQQ)
establishes October 20, 2011, as the trigger date for PM2.5.
OEPA has revised the definitions of ``significant'' at 3745-31-
01(VVVVV)(1) to add significant emission rates for direct
PM2.5 and for sulfur dioxide SO2 and
NOX as PM2.5 precursors.
OEPA revised 3745-31-01(NNNNN)(2) to include SO2 and
NOX as precursors to PM2.5 in all attainment
OEPA has revised the definition of ``regulated NSR pollutant'' at
3745-31-01(NNNNN)(1)(d), and (NNNNN)(2)(a)(ii), to include condensable
PM2.5 and PM10 into the nonattainment NSR and PSD
programs. The 2008 NSR Rule did not require states to immediately
account for gases that could condense to form particulate matter, known
as condensables, in PM2.5 and PM10 emission
limits in NSR permits. Instead, EPA determined that states had to
account for PM2.5 and PM10 condensables for
applicability determinations and in establishing emissions limitations
for PM2.5 and PM10 in PSD and nonattainment NSR
permits beginning on or after January 1, 2011. These requirements are
codified at 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a).
EPA has determined that the revised rules comply with the revisions
to the Federal definitions and provisions pertaining to
PM2.5 found at 40 CFR 51.100, 51.165, and 51.166.
OEPA's revision to 3745-31-11(B) establishes increments for
PM2.5. On October 20, 2010, EPA issued the final rule on the
``Prevention of Significant Deterioration for Particulate Matter Less
than 2.5 Micrometers--Increments, Significant Impact Levels and
Significant Monitoring Concentration.'' This rule established several
provisions for making PSD permitting determinations for
PM2.5, including a system of ``increments'' which is the
mechanism used to estimate significant deterioration of ambient air
quality for a pollutant. OEPA's revisions are consistent with 40 CFR
51.166(c) and 40 CFR 52.21(c).
B. Ozone-Related Actions
On November 29, 2005, EPA published the ``Final Rule to Implement
the 8-Hour Ozone National Ambient Air Quality Standard--Phase 2'' (70
FR 71612). Among other requirements, this rule required regulation of
NOX as a precursor to ozone in NSR permitting. The final
rule became effective on January 30, 2006.
OEPA has revised the definitions for ``major modification'' at
3745-31-01(LLL)(2), ``major stationary source'' at 3745-31-01(NNN)(3),
``regulated NSR pollutant'' at 3745-31-01(NNNNN) and ``significant'' at
3745-31-01(VVVVV) to include NOX as a precursor to ozone.
The revisions are consistent with 40 CFR 51.166.
OEPA did not include ``or NOX'' to the exemptions to
pre-application ambient monitoring in the attainment provisions found
in paragraph (H)(1)(f) of OAC 3745-31-13. It is not consistent with 40
CFR 51.166 (i)(5)(i)(f) footnote 1. However, OEPA submitted a letter to
EPA on June 30, 2014, clarifying that the omission of ``or
NOX'' was not intended and that OEPA has identified
NOX as a precursor to ozone in all other required rule
provisions. OEPA also explains that because a major stationary source
is required to do source impact analysis, and NOX has been
identified as a precursor to ozone in its revised rules, including the
definitions of major stationary source, major modification, and
significant noted above, Paragraph (B) of OAC 3745-31-16 requires the
same impact analysis as specified in the CFR for ozone and also
requires pre-application ambient monitoring of VOC and NOX.
EPA agrees with the analysis in OEPA's letter and does not believe that
an applicability or source impact analysis gap would occur as a result
of the state's omission of ``or NOX'' at OAC 3745-31-
13(H)(1)(f). Therefore, the provisions that are being approved by EPA
in this rulemaking represent a strengthening of the currently-approved
Ohio SIP, specifically with respect to the explicit identification of
NOX as a precursor to ozone.
C. Nonattainment NSR-Related Actions
OEPA revised 3745-31-01(NNNNN) to include SO2 and
NOX as precursors to PM2.5 in all attainment and
nonattainment areas. On January 4, 2013, the U.S. Court of Appeals for
the District of Columbia Circuit, in Natural Resources Defense Council
v. EPA \1\ issued a decision that remanded the EPA's 2007 and 2008
rules implementing the 1997 PM2.5 NAAQS. Relevant here, the
2008 NSR Rule promulgated NSR requirements for implementation of
PM2.5 in both nonattainment areas and attainment/
unclassifiable areas. The Court found that EPA erred in implementing
the PM2.5 NAAQS in these rules solely pursuant to the
general implementation provisions of subpart 1 of part D of title I of
the CAA, rather than pursuant to the additional implementation
provisions specific to particulate matter nonattainment areas in
subpart 4. The Court ordered the EPA to ``repromulgate these rules
pursuant to Subpart 4 consistent with this opinion.'' Id. at 437.
\1\ 706 F.3d 428 (D.C. Cir. 2013).
On April 25, 2014, the Administrator signed a final rulemaking that
begins to address the remand (see http://www.epa.gov/airquality/particlepollution/actions.html). Upon its effective date, the final
rule classified all existing PM2.5 nonattainment areas as
``Moderate'' nonattainment areas and set a deadline of December 31,
2014, for states to submit any SIP submissions, including nonattainment
NSR SIPs, that may be necessary to satisfy the requirements of subpart
4, part D, title I of the CAA with respect to PM2.5
In a separate rulemaking process that will follow the April 2014
rule, EPA is evaluating the requirements of subpart 4 as they pertain
to nonattainment NSR for PM2.5 emissions. In particular,
subpart 4 includes section 189(e) of the CAA, which requires the
control of major stationary sources of PM10 precursors
``except where the Administrator determines that such sources do not
contribute significantly to PM10 levels which exceed the
standard in the area.'' Under the court's decision in NRDC, section
189(e) of the CAA also applies to PM2.5.
OEPA's revisions to the definition of ``regulated NSR pollutant''
identify SO2 and NOX as regulated
PM2.5 precursors. While VOCs and ammonia are not regulated
PM2.5 precursors in PM2.5 nonattainment areas in
the state, the revisions to the definition of ``significant'' add
emission rates considered significant for direct PM2.5 and
for SO2 and NOX as PM2.5 precursors.
These revisions, although consistent with the 2008 NSR Rule as
developed consistent with subpart 1 of the CAA, may not contain the
elements necessary to satisfy the CAA requirements when evaluated under
the subpart 4 statutory requirements. In particular, Ohio's submission
does not include regulation of VOCs and ammonia as PM2.5
precursors, nor does it include a demonstration consistent with section
189(e) showing that major sources of those precursor pollutants would
not contribute significantly to PM2.5 levels exceeding the
standard in the area. For these reasons, EPA cannot conclude at this
time that this part of Ohio's nonattainment NSR submission satisfies
all of the requirements of subpart 4 as they pertain to
PM2.5 nonattainment NSR permitting.
Although the revisions to Ohio's nonattainment NSR rule may not
contain all of the necessary elements to satisfy the CAA requirements
when evaluated under the subpart 4 provisions, the revisions themselves
represent a strengthening of the currently-approved Ohio SIP which does
not address PM2.5 at all. As a result of the April 25, 2014,
final rule, OEPA will have until December 31, 2014, to make any
additional submission necessary to address the requirements of subpart
4, including addressing the PM2.5 precursors of VOC and
ammonia. For these reasons, EPA is approving the nonattainment NSR
revisions at 3745-31-01(NNNNN)(1)(c) and 3745-31-01(VVVVV)(1) without
listing the absence of either the regulation or evaluation of VOCs and
ammonia as PM2.5 precursors as a deficiency at this time.
D. Organizational and Typographical Changes
OEPA also made organizational changes to lettering or numbering of
paragraphs as well as corrections to typographical errors. EPA is
approving these revisions as they do not change the meaning of the
We are publishing this action without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the state plan if relevant adverse
written comments are filed. This rule will be effective December 29,
2014 without further notice unless we receive relevant adverse written
comments by November 28, 2014. If we receive such comments, we will
withdraw this action before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on the proposed action. EPA will not institute a second comment
period. Any parties interested in commenting on this action should do
so at this time. Please note that if EPA receives adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, EPA may adopt as final those
provisions of the rule that are not the subject of an adverse comment.
If we do not receive any
comments, this action will be effective December 29, 2014.
III. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
This rule is not approved to apply on any Indian reservation land
or in any other area where EPA or an Indian tribe has demonstrated that
a tribe has jurisdiction. In those areas of Indian country, the rule
does not have tribal implications as specified by Executive Order
13175, nor will it impose substantial direct costs on tribal
governments or preempt tribal law.
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 action 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 29, 2014. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: October 6, 2014.
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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 by adding paragraph (c)(161) to read as
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(161) On June 19, 2014, the Ohio Environmental Protection Agency
submitted several PM2.5 rules for approval into the Ohio
State Implementation Plan (SIP). The changes to the SIP include
establishing definitions related to particulate matter smaller than 2.5
micrometers (PM2.5), defining PM2.5 increment
levels, and setting PM2.5 class 1 variances. The revisions
also incorporate changes made to definitions and regulations that
recognize nitrogen oxides (NOX) as an ozone precursor, and
incorporating minor organizational or typographical changes.
(i) Incorporation by reference.
(A) Ohio Administrative Code Rule 3745-31-01, ``Definitions'',
paragraphs (P), (LLL), (MMM), (NNN), (QQQ), (TTTT), (UUUU), (VVVV),
(WWWW), (NNNNN), and (VVVVV), effective May 29, 2014.
(B) Ohio Administrative Code 3745-31-11, ``Attainment provisions--
ambient air increments, ceilings and classifications'', paragraph (B)
``Allowable increments'', effective May 29, 2014.
(C) Ohio Administrative Code 3745-31-13, ``Attainment provisions--
review of major stationary sources and major modifications, stationary
source applicability and exemptions'', effective May 29, 2014.
(D) Ohio Administrative Code 3745-31-16, ``Attainment provisions--
major stationary source impact analysis'', effective May 29, 2014.
(E) May 19, 2014, ``Director's Final Findings and Orders'', signed
by Craig W. Butler, Director, Ohio Environmental Protection Agency.
[FR Doc. 2014-25482 Filed 10-27-14; 8:45 am]
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