[Federal Register Volume 70, Number 122 (Monday, June 27, 2005)]
[Proposed Rules]
[Pages 36901-36907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12659]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R05-OAR-2005-OH-0002; FRL-7928-2]
Approval and Disapproval of Ohio Implementation Plan for
Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing action on various particulate matter rule
revisions that Ohio submitted on June 4, 2003. EPA is proposing to
approve numerous minor provisions that clarify a variety of elements of
these rules. However, EPA is proposing to disapprove revisions that
provide for use of continuous opacity monitoring data but allow more
exceedances of the general opacity limit in cases where an eligible
large coal fired boiler opts to use these data for determining
compliance. EPA proposes to find that these revisions constitute a
relaxation of the opacity rules, and that, contrary to section 110(l)
of the Clean Air Act, these revisions may interfere with satisfaction
of relevant state planning requirements.
DATES: Comments shall be received by July 27, 2005.
ADDRESSES: Submit comments, identified by Regional Material in EDocket
(RME) ID No. R05-OAR-2005-OH-0002, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
on-line instructions for submitting comments.
Agency Web site: http://docket.epa.gov/rmepub/. RME, EPA's
electronic public docket and comments system, is EPA's preferred method
for receiving comments. Once in the system, select ``quick search,''
then key in the appropriate RME Docket identification number. Follow
the on-line instructions for submitting comments.
E-mail: [email protected].
Fax: (312) 886-5824.
Mail: You may send written comments to: John M. Mooney, Chief,
Criteria Pollutant Section, (AR-18J), U.S. Environmental Protection
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Hand delivery: Deliver your comments to: John M. Mooney, Chief,
Criteria Pollutant Section, (AR-18J), U.S. Environmental Protection
Agency, Region 5, 77 West Jackson Boulevard, 18th floor, Chicago,
Illinois 60604. Such deliveries are only accepted during the Regional
Office's normal hours of operation. The Regional Office's official
hours of business are Monday through Friday, 8:30 AM to 4:30 PM
excluding Federal holidays.
Instructions: Direct your comments to RME ID No. R05-OAR-2005-OH-
0002. EPA's policy is that all comments received will be included in
the public docket without change, 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 RME, regulations.gov,
or e-mail. The EPA RME website and the federal regulations.gov website
are ``anonymous access'' systems, 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 e-mail comment directly to EPA without
going through RME or regulations.gov, your e-mail 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
[[Page 36902]]
able to consider your comment. Electronic files should avoid the use of
special characters, any form of encryption, and be free of any defects
or viruses. For additional instructions on submitting comments, go to
Section V of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the electronic docket are listed in the
RME index at http://docket.epa.gov/rmepub/. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Publicly
available docket materials are available either electronically in RME
or in hard copy at Environmental Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
We recommend that you telephone John Summerhays at 312-886-6067 before
visiting the Region 5 office. This facility is open from 8:30 AM to
4:30 PM, Monday through Friday, excluding legal holidays.
U.S. Environmental Protection Agency, Region 5, Air and Radiation
Division (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois
60604.
FOR FURTHER INFORMATION CONTACT: John Summerhays, Criteria Pollutant
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, Region 5, Chicago, Illinois 60604, (312) 886-6067.
[email protected].
SUPPLEMENTARY INFORMATION: This supplemental information section is
organized as follows:
I. Background Information
A. Does this action apply to me?
B. What did Ohio submit?
II. Review of Ohio's Submittal
A. Review of revisions of opacity limits
B. Review of other revisions
III. Rulemaking Action
IV. Statutory and Executive Order Reviews
V. Procedures for Commenting
I. Background Information
A. Does This Action Apply to Me?
This action addresses opacity as measured continuously and other
particulate matter issues in Ohio. This action applies to you if you
have an interest in these issues.
B. What Did Ohio Submit?
On June 4, 2003, Ohio submitted to EPA several revised rules for
control of particulate matter emissions into the atmosphere. These rule
revisions arose from a State legislative requirement that the State
review its rules every five years and incorporate any updates and
clarifications that are judged to be warranted. Most of the revisions
Ohio submitted represent clarifications and relatively minor updates to
its rules. However, these rule revisions also include a significant
revision to Ohio's rules on opacity, providing for use of continuous
opacity monitoring data for judging compliance with a modified set of
opacity limitations. The following delineation of revisions identifies
the revisions included in each submitted rule, including a description
of the revisions to the opacity test method provisions in Rule 3745-17-
03. The next section of this notice describes EPA's review of Ohio's
submittal.
Rule 3745-17-01, entitled ``Definitions,'' includes a more precise
definition of ``British thermal unit'' than the prior rule, and
includes updated version dates for the Code of Federal Regulations
(CFR) citations included in the rule.
Rule 3745-17-02, entitled ``Ambient air quality standards,''
incorporates the changes EPA made in 1997 and 1999 to Appendix K of 40
CFR part 50, describing procedures for analyzing concentrations of
particulate matter of a nominal aerodynamic diameter of 10 micrometers
or less (PM10). The focus of EPA's revisions on the dates cited in Rule
3745-17-02, i.e. July 18, 1997, and April 22, 1999, were on particulate
matter nominally 2.5 micrometers or less (PM2.5) and the procedures for
analyzing concentrations of PM2.5 as identified in Appendix N of 40 CFR
part 50. EPA's rulemaking of April 22, 1999, did not amend Appendix K.
However, EPA's rulemaking of July 18, 1997, did amend Appendix K, to
apply a format for this appendix similar to the format for other
appendices to 40 CFR part 50. Ohio did not revise its rules to
incorporate the PM2.5 air quality standards (which have been upheld by
decisions of the Supreme Court and the Circuit Court of Appeals for the
District of Columbia), or the new PM10 standards in 40 CFR part 50.7
and 40 CFR part 50 Appendix N (which were subsequently vacated by the
Circuit Court of Appeals for the District of Columbia).
Rule 3745-17-03, entitled ``Measurement methods and procedures,''
most significantly incorporates new provisions relating to continuous
opacity monitoring. The rule was also revised to update references to
the CFR and to remove an unused test of gaseous fuel heat content.
The version of Rule 3745-17-03(B)(1) currently in the SIP
designates Method 9 of Appendix A to 40 CFR part 60 as the sole
reference method for assessing whether the opacity of stack emissions
exceeds the limits specified in Rule 3745-17-07(A)(1). These limits are
20 percent opacity as a 6-minute average, except that one 6-minute
average per hour may be as high as 60 percent opacity. The rule also
identifies some exemptions that are limited in circumstance and limited
in duration.
Ohio's revised version of Rule 3745-17-03 states that ``as an
alternative to [Method 9], coal-fired boilers with heat input
capacities equal to or greater than 250 million Btu per hour that are
controlled with either baghouses or electrostatic precipitators may
determine the compliance with the visible particulate emission
limitations specified in paragraph (A)(1) of rule 3745-17-07 * * *
through the use of continuous opacity monitoring data.'' The rule
stipulates that the monitoring system must comply with the requirements
of 40 CFR 60.13, and must be certified in accordance with 40 CFR part
60, Appendix B, Performance Specification 1.
For eligible sources that assess compliance with opacity limits
using data from continuous opacity monitoring systems (COMS), Ohio's
revised Rule 3745-17-03(B)(1) allows additional time of excess opacity
(between 20 and 60 percent opacity) beyond the current provision for
one 6-minute period per hour of such opacity. Specifically, this rule
provides that the time of such additional excess opacity values may
represent up to 1.1 percent of the operating time per calendar quarter.
This rule also provides that the total time of excess opacity,
including any hour's initial 6-minute period above 20 percent opacity
plus any newly allowed additional time of excess opacity, may not
exceed 10 percent of the operating time in any calendar quarter.
EPA submitted adverse comments on these rule revisions to Ohio
during its rulemaking process. Ohio's submittal presents EPA's comments
and other comments and provides Ohio's responses. While Ohio made
selected changes in its final rule, EPA's comments and Ohio's responses
remain fully pertinent to Ohio's final revised rule. EPA's comments,
Ohio's responses, and EPA's proposed evaluation of Ohio's final rule,
are described in the following section describing EPA's review of
Ohio's submittal.
Rule 3745-17-04, entitled ``Compliance time schedules,''
incorporates several simplifications and clarifications. For numerous
compliance schedules involving final compliance over 10 years ago, Ohio
has removed various interim deadlines, e.g. for initiating construction
of control equipment, and retained only the final compliance deadline.
Ohio removed
[[Page 36903]]
arguably redundant language in places, and Ohio clarified that the
limits applicable to one facility would become the responsibility of
any subsequent owner of such facility should the facility be sold. The
rule changes did not change any final compliance deadlines.
Rule 3745-17-07, entitled ``Control of visible particulate
emissions from stationary sources,'' reflects changes only in 3745-17-
07(A)(3)(h). The version of this provision in the current SIP provides
an exemption from the general stack opacity limits for sources that are
not subject to the requirements of Rules 3745-17-08(B)(3) or (B)(4),
3745-17-10, and 3745-17-11. The revised rule provides this same
exemption for sources that are not subject to any mass emission
limitation in these rules. With one exception, the limitations in these
rules are mass emission limitations, so sources that are subject to
requirements of these three rules are also subject to mass emission
limitations, and the rule language change has no effect. The one
exception is in Rule 3745-17-08(B)(4), which provides that ship loading
operations at grain terminals may satisfy the requirement for
reasonably available control technology either (a) by installing
control equipment that achieves an outlet emission rate of 0.030 grains
of particulate matter per dry standard cubic foot or (b) by installing
and using ``control measures such as deadbox or bullet-type loading
spouts which are equivalent to or better than'' the controls under (a).
Thus, the revision to Rule 3745-17-07(A)(3)(h) would clarify that ship
loading operations at a grain terminal that implement alternate control
measures would not be subject to stack opacity limits.
Rule 3745-17-08, entitled ``Restriction of emission of fugitive
dust,'' has a small number of clarifications and minor corrections. The
revisions correct source identification numbers for one plant and the
spelling of the town name for another plant. The revisions clarify that
one of the criteria for judging whether a source has met the
requirement for reasonably available control measures is the definition
of ``reasonably available control measures'' given in Rule 3745-17-
01(B)(15). The revisions clarify that a source that has both stack and
fugitive emissions is subject to both stack and fugitive emission
limits as applicable. The revisions clarify that used oil that is
regulated under a specified separate Ohio rule may not be spread on
roadways to satisfy road dust control requirements. The revisions also
clarify a previously established rule effective date.
Rule 3745-17-11, entitled ``Restrictions on particulate emissions
from industrial processes,'' reflects one editorial change and one
clarification. The clarification is essentially the same as the
clarification of Rule 3745-17-08, that a source that has both stack and
fugitive emissions is subject to both stack and fugitive emission
limitations if applicable.
II. Review of Ohio's Submittal
A. Review of Revisions of Opacity Limits
The most significant revision that Ohio made provides for use of
continuous opacity monitoring data to assess compliance with modified
opacity limits. Currently the SIP only identifies Method 9 (delineated
in Appendix A to 40 CFR part 60) as a reference method for assessing
compliance with opacity limits. Ohio's revision establishes continuous
opacity monitoring as a reference method for assessing compliance with
opacity limits, but provides sources that use this method with expanded
exemptions from those limits.
EPA provided comments to the State objecting to these revisions
during the comment period of the State's rulemaking. The State's
submittal repeats EPA's comments and provides responses. The following
discussion summarizes EPA's comments and Ohio's responses and evaluates
Ohio's responses.
EPA's first concern is that the expansion of exemptions from Ohio's
opacity limits constitute a relaxation that may interfere with
applicable requirements and thus contravene Clean Air Act section
110(l). Ohio responded that it ``believe[s] it would be beneficial to
implement an additional exemption category, that does not affect the
total amount of exemptible time or maximum exemptible opacity values
under the existing regulations, in exchange for a clearly enforceable,
technically-supported, 24-hour per day compliance approach using a
continuous monitoring system for a specific source category--an
approach that does not have to pass any credible evidence
demonstration.''
Ohio is correct that its rule revisions do not increase the total
amount of allowable time of excess opacity (i.e. opacity between 20 and
60 percent), nor do the revisions alter the 60 percent opacity cap.
However, the revised rules allow excess opacity on occasions that
excess opacity is currently prohibited, without any compensating
prohibitions of emissions that are currently allowed. For example, a
source that routinely has 1 full hour of excess opacity and then 9
subsequent hours of no excess opacity would comply with the new revised
rule but would clearly violate the existing SIP rule. Therefore,
contrary to Ohio's implication, the revised rule clearly allows
emissions that are prohibited by the current SIP.
Section 110(l) states that EPA ``shall not approve a revision of a
plan if the revision would interfere with any applicable requirement
concerning attainment * * * or any other applicable requirement of this
Act.'' Ohio provided no analyses or demonstration that the emissions
that are allowed by its revised rule but are prohibited by the current
SIP would not interfere with attainment or other applicable
requirements. Therefore, EPA must disapprove this revised rule.
Currently, COMS data may be used as credible evidence of
violations, and EPA would welcome rule revisions that provide more
clearly that valid COMS data are enforceable evidence of a source's
compliance status. However, EPA cannot approve such a revision that
also includes a less stringent set of opacity limits without a
demonstration pursuant to section 110(l) that the revisions would not
interfere with applicable requirements of the Clean Air Act.
EPA's second, related concern is that the language of the rule
essentially authorizes the source to choose its approach for addressing
opacity, either to use Method 9 with existing limits or to use COMS
data with less stringent opacity limits. The rule states that ``As an
alternative to [Method 9], coal-fired boilers [meeting certain
criteria] may determine compliance * * * through the use of continuous
opacity monitoring data.'' This language suggests that such sources may
also choose instead to determine compliance through the use of Method
9. This suggests that a source that has COMS data indicating
impermissibly frequent excess opacity could attempt to avoid
noncompliance status simply by choosing to rely on well-timed Method 9
readings instead. At the same time, Ohio's rule has the effect of
reducing the utility of Method 9 readings, because violations according
to Method 9 can be rendered moot by COMS data indicating compliance.
In comments during the Ohio rulemaking, EPA requested that the
State clearly provide in the rule that enforcement action may be taken
for noncompliance based either on Method 9 data or on COMS data. Ohio
stated in its response that COMS data that are appropriate to use for
enforcement are by definition equivalent to data that
[[Page 36904]]
would be obtained by Method 9. However, conformance of COMS data with
human observations in accordance with criteria in 40 CFR part 60 does
not signify that opacity values from the two methods will be equivalent
under all circumstances, or that compliance with a calendar quarter-
based limit based on COMS data should prevent enforcement action based
on violation of a short-term limit based on Method 9.
Ohio elaborated on its response to EPA by making several additional
points for EPA's consideration, enumerated as points A through G. In
points A through C, Ohio clarified the accounting of excess opacity
values and explained its basis for concluding that the revised rule
allows no more total time of excess opacity than the current SIP rule.
In point D, Ohio explained that its exemption level was derived by
analyzing an extensive set of COMS data, and suggested that the
allowance of excess opacity for 1.1 percent of operating time reflects
a level that sources meet for 95 percent of the data sets. In point E,
Ohio commented that EPA did not provide input for selection of an
exemption level and did not provide data to support a view that large
coal-fired boilers can continuously meet Ohio's opacity limitations. In
point F, Ohio made several responses to an EPA comment about Method 9
potentially detecting opacity from sulfate that is not observed by a
COMS. Ohio noted that compliance with its mass emission limits is
typically determined with a method that does not include most sulfate
emissions; Ohio argued on this basis that it is inappropriate to use
Method 9 to evaluate a detached sulfate plume. Ohio stated that EPA
inherently finds COMS data as equivalent to Method 9 data by using COMS
data for enforcement purposes, an equivalence that Ohio apparently
views as invalidating the need for COMS-based limits and Method 9-based
limits to be independently enforceable. Finally, in point G, Ohio noted
``concerns raised in [two federal court opinions identified in a
subsequent e-mail as National Parks Conservation Association, Inc. v.
Tennessee Valley Authority, Case No. 3:00-cv-547, issued by the Eastern
District of Tennessee on November 26, 2001; and Appalachian Power Co.
v. EPA, 208 F. 3d 1015, issued by the Circuit Court for the District of
Columbia on April 14, 2000] regarding the method of measuring
compliance as related to the stringency of the limitations.''
EPA appreciates the clarifications in points A through C, which
have assisted EPA in the above review of Ohio's rules. Regarding point
D, the critical point, not addressed by Ohio, is how the selected
compliance level affects the stringency relative to the limitation in
the current SIP. Regarding the first part of point E, EPA provided
input which focused not on Ohio's analyses of noncompliance frequencies
but rather on the statutory requirements of section 110(l) of the Clean
Air Act. Regarding the second part of point E, Ohio already has data
within its own COMS data base that documents numerous occasions for
numerous facilities in which the facilities report operating entire
quarters in full compliance with the previous rule, in some cases
having no 6-minute opacity values above 20 percent whatsoever.
Regarding point F, there is no question that sulfate is found in
particulate form; indeed, sulfate is a major constituent of the
PM2.5 concentrations in Ohio that violate the
PM2.5 standard. Method 9 provides detailed procedures that
measure the opacity of sulfate and other particles irrespective of
whether the plume is detached or attached. The changes that have been
made to mass emission test methods to address concerns about their
measurement of sulfate particles do not warrant changes in the
measurement of the opacity of these particles. Use of COMS data as
credible evidence of noncompliance in selected cases does not signify
that the particular COMS-based opacity limits in Ohio's revised rule
are equivalent to the Method 9-based rule in the Ohio SIP or that a
rule that provides the source the choice of which set of limits to
comply with is equivalent to a rule that requires compliance with both
sets of limits.
With regard to point G, EPA finds that the above-cited court cases
were decided on grounds that were not relevant to a decision in a SIP
context. Furthermore, the discussion contained in these court opinions
does not address several issues pertinent to section 110(l). For
example, the opinions do not address how to conduct a quantitative
comparison between opacity monitoring data collected continuously
versus Method 9 data obtained at indeterminate frequency. As another
example, the opinions do not address how to compare a rule that
specifies continuous opacity monitoring as a reference method (used on
a voluntary basis) versus the current SIP under which COMS data are
used on a credible evidence basis.
Several other commenters submitted comments to Ohio during its
rulemaking comments. A member of the law firm Shumaker, Loop &
Kendrick, LLP submitted a variety of comments on the derivation and use
of the data base that Ohio used to derive its COMS-based opacity limit
exemptions; however, as indicated above, the data base analyses used to
derive these exemptions do not address the question of whether the
exemption levels can be justified under section 110(l). Other comments
generally either did not result in any rule changes or are addressed
above. Therefore, EPA is not providing an exhaustive discussion of
other comments that were submitted to Ohio.
B. Review of Other Revisions
This review is organized by rule and proceeds in order of rule
number.
In Rule 3745-17-01, the formalizing of the definition of British
thermal unit should have no substantive effect. EPA finds this revision
approvable.
In Rule 3745-17-02, Ohio provided updated version dates for
Appendix K to 40 CFR part 50, specifying use of the version as of July
18, 1997, as amended on April 22, 1999. These revisions must be
examined in the context of two extant sets of particulate matter air
quality standards, one of which addresses particles that are nominally
10 micrometers and smaller (``PM10'') and the other of which
addresses particles that are nominally 2.5 micrometers and smaller
(``PM2.5''). Appendix K describes data handling procedures
for the PM10 standards promulgated in 1987. (Newer air
quality standards for PM10 were promulgated in 1997 but were
subsequently vacated by the District of Columbia Circuit Court of
Appeals.) On July 18, 1997, EPA reformatted Appendix K for consistency
with the appendices associated with the PM2.5 and
PM10 standards promulgated that day, but EPA made no
substantive changes to Appendix K that day. On April 22, 1999, EPA
amended Appendix L but not Appendix K. Thus, EPA interprets Ohio's rule
to apply the reformatted Appendix K published on July 18, 1997, and
concludes that this appendix continues to provide the appropriate
procedures for data handling for the 1987 PM10 standards.
Rule 3745-17-03 includes several paragraphs in which the version
date of the referenced part of the Code of Federal Regulations was
updated. These revisions are approvable. Rule 3745-17-03 was also
revised to identify a single test method for determining the heat
content of gaseous fuels rather than identifying a second method if the
first method ``does not apply.'' This revision simplifies the
identification of test methods and is approvable.
Rule 3745-17-04 includes various simplifications and
clarifications. Rule 3745-17-04(A)(6) is clarified to state that the
requirements in that paragraph apply to the Columbus and Southern
[[Page 36905]]
Ohio Electric Company but also to any subsequent owner or operator of
the Conesville Station. Rule 3745-17-04(B) is revised to eliminate
numerous interim compliance deadlines that generally date back to 1993
and earlier and to simplify some of the language. These revisions are
approvable. Rule 3745-17-04 also clarifies in some cases that ``the
effective date of this rule'' is January 31, 1998. While EPA has no
objection to this revision, the pertinent requirements for which these
compliance dates apply are still under EPA review. Because EPA has not
approved the pertinent requirements, EPA may not act on the paragraphs
in Rule 3745-17-04 (specifically paragraphs (B)(5)(c), (B)(6)(f),
(B)(7)(e), and (B)(8)) that set compliance deadlines for requirements
that EPA has not approved. EPA will act on these paragraphs in
conjunction with its action on the corresponding requirements.
Rule 3745-17-07 includes one revision, in 3745-17-07(A)(h), that
revises this exemption from applying to any source ``which is not
subject to the requirements of [Rule 3745-17-08(B)(3) or (B)(4) or
other specified rules]'' to apply to any source ``which is not subject
to any mass emission limitation in'' those rules. That is, the
exemption is being broadened beyond sources with no applicable
requirement in those paragraphs to also exempt sources for which those
paragraphs impose requirements other than mass emission limitations.
Rule 3745-17-08(B)(3) requires use of emission capture equipment and
achievement of outlet gases that either contain no more than 0.030
grains of particulate emissions per standard cubic foot or have no
visible emissions. It is clearly not a relaxation to provide that a
source that has no visible emissions is exempt from a 20 percent
opacity limit. (A source that is subject to the 0.030 grains limit is
subject to a mass emissions limitation and thus is not affected by the
change in the language of Rule 3745-17-07(A)(h).) Rule 3745-17-08(B)(4)
requires ship loading operations at grain terminals either to achieve
controlled emission rates to achieve a limit of 0.030 grains of
particulate emissions per standard cubic foot or to install and use
``control measures such as deadbox or bullet-type loading spouts which
are equivalent to or better than [measures that would achieve 0.030
grains per standard cubic foot].'' These alternative control measures
would not necessarily have an outlet to which the normal stack opacity
limit would reasonably apply, and yet the installed equipment would be
achieving equivalent emission reductions. Therefore, EPA believes that
this exemption is reasonable and does not decrease the stringency of
the requirements for such sources.
Rule 3745-17-08 reflects a variety of clarifications. Paragraph
3745-17-08(A)(3)(b) reflects updated Ohio EPA source numbers for three
units at Armco Steel Middletown Works. Paragraph 3745-17-08(A)(4) is a
new paragraph, also added to Rule 3745-17-11, that clarifies that a
source can be subject to both stack emission limits and fugitive
emission control requirements if the source has both stack and fugitive
emissions. Paragraph 3745-17-08(B)(2) is amended by clarifying that
used oil is not an acceptable dust suppression material. Paragraph
3745-17-08(C) is amended by adding subparagraph (3), providing that an
additional criterion for judging whether a source has applied
reasonably available control measures for fugitive dust is whether the
measures comply with the definition of reasonably available control
measures given in Rule 3745-17-01(B)(15). These revisions all clarify
the State rules and do not relax the requirements in any way.
Rule 3745-17-11, as noted above, includes a new paragraph that
clarifies that a source can be subject to both stack emission limits
and fugitive emission control requirements if the source has both stack
and fugitive emissions. The rule also contains one editorial
improvement. These revisions are approvable.
III. Rulemaking Action
For reasons described in the previous section, EPA proposes to
disapprove the revision to Ohio Rule 3745-17-03(B)(1), which would
provide for optional use of COMS data for enforcing a revised set of
opacity limitations. EPA is not acting on revisions to Ohio Rule 3745-
17-04 (B)(5)(c), (B)(6)(f), (B)(7)(e), and (B)(8), because these
represent compliance dates for requirements that EPA has not approved.
EPA is proposing to approve all other revisions in Ohio's request of
June 4, 2003.
IV. Statutory and Executive Order Reviews
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 That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy 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 proposed action merely proposes to approve state law as
meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law. Accordingly, the Administrator
certifies that this proposed 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 proposes to approve 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
Governments
This proposed 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 proposes to approve 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 Act.
[[Page 36906]]
Executive Order 13045 Protection of Children From Environmental Health
and Safety Risks
This proposed 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 is not economically
significant.
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 proposed 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.).
V. Procedures for Commenting
A. How Can I Get Copies of This Document and Other Related Information?
1. The Regional Office has established an official public
rulemaking file available for inspection at the Regional Office. EPA
has established an official public rulemaking file for this action
under ``Region 5 Air Docket R05-OAR-2005-OH-0002''. The official public
file consists of the documents specifically referenced in this action,
any public comments received, and other information related to this
action. Although a part of the official docket, the public rulemaking
file does not include Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. The official
public rulemaking file is the collection of materials that is available
for public viewing at the Air Programs Branch, Air and Radiation
Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois
60604. EPA requests that if at all possible, you contact the contact
listed in the FOR FURTHER INFORMATION CONTACT section to schedule your
inspection. The Regional Office's official hours of business are Monday
through Friday, 8:30 to 4:30 excluding Federal holidays.
2. Electronic Access. You may access this Federal Register document
electronically through the regulations.gov web site located at http://www.regulations.gov where you can find, review, and submit comments on
Federal rules that have been published in the Federal Register, the
Government's legal newspaper, and are open for comment.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing at the EPA Regional Office,
as EPA receives them and without change, unless the comment contains
copyrighted material, CBI, or other information whose disclosure is
restricted by statute. When EPA identifies a comment containing
copyrighted material, EPA will provide a reference to that material in
the version of the comment that is placed in the official public
rulemaking file. The entire printed comment, including the copyrighted
material, will be available at the Regional Office for public
inspection.
B. How and To Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate rulemaking identification number by including the text
``Public comment on proposed rulemaking Region 5 Air Docket R05-OAR-
2005-OH-0002'' in the subject line on the first page of your comment.
Please ensure that your comments are submitted within the specified
comment period. Comments received after the close of the comment period
will be marked ``late.'' EPA is not required to consider these late
comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket. 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.
i. E-mail. Comments may be sent by electronic mail (e-mail) to
[email protected]. Please include the text ``Public comment on
proposed rulemaking Region 5 Air Docket OHxxx'' in the subject line.
EPA's e-mail system is not an ``anonymous access'' system. If you send
an e-mail comment directly without going through Regulations.gov, EPA's
e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket.
ii. Regulations.gov. Your use of regulations.gov is an alternative
method of submitting electronic comments to EPA. Go directly to
regulations.gov at http://www.regulations.gov, then click on the button
``TO SEARCH FOR REGULATIONS CLICK HERE'', and select Environmental
Protection Agency as the Agency name to search on. The list of current
EPA actions available for comment will be listed. Please follow the
online instructions for submitting comments. The system is an
``anonymous access'' system, which means EPA will not know your
identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in Section 2, directly
below. These electronic submissions will be accepted in WordPerfect,
Word or ASCII file format. Avoid the use of special characters and any
form of encryption.
2. By Mail. Send your comments to: John Mooney, Chief, Criteria
Pollutant Section (AR-18J), U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please
include the text ``Public comment on proposed rulemaking Regional Air
Docket OHxxx'' in the subject line on the first page of your comment.
3. By Hand Delivery or Courier. Deliver your comments to: John
Mooney, Chief, Criteria Pollutant Section (AR-18J), U.S. Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, 18th floor,
Chicago, Illinois 60604. Such deliveries are only accepted during the
Regional Office's
[[Page 36907]]
normal hours of operation. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30 excluding Federal
holidays.
C. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI
electronically to EPA. You may claim information that you submit to EPA
as CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is CBI). Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the official public regional rulemaking file. If you submit the copy
that does not contain CBI on disk or CD ROM, mark the outside of the
disk or CD ROM clearly that it does not contain CBI. Information not
marked as CBI will be included in the public file and available for
public inspection without prior notice. If you have any questions about
CBI or the procedures for claiming CBI, please consult the person
identified in the FOR FURTHER INFORMATION CONTACT section.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovermental relations, Particulate Matter, Reporting
and recordkeeping requirements.
Dated: May 24, 2005.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 05-12659 Filed 6-24-05; 8:45 am]
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