[Federal Register Volume 71, Number 216 (Wednesday, November 8, 2006)]
[Rules and Regulations]
[Pages 65417-65424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18788]
[[Page 65417]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-OAR-R05-2005-OH-0005; FRL-8228-2]
Approval and Promulgation of Implementation Plans; Ohio
Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action on a variety of revisions to
particulate matter regulations submitted by Ohio on July 18, 2000. EPA
is approving revisions to the form of opacity limits for utility and
steel mill storage piles and roadways. EPA is approving a modest
realignment of emission limits in the Cleveland area within the
constraints of a revised modeled attainment demonstration. EPA is
approving formalization of existing requirements for continuous
emission monitoring for certain types of facilities, criteria for the
state to issue equivalent visible emission limits, and revised limits
for stationary internal combustion engines. However, EPA is
disapproving authority for revising emission limits for Ford Motor's
Cleveland Casting Plant via Title V permit modifications. Also, EPA is
deferring action on equivalent visible emission limit rules to solicit
comment on certain ramifications of its proposed approval.
DATES: This final rule is effective on December 8, 2006.
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. 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 at (312) 886-6067 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental
Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J),
EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312)
886-6067, [email protected].
SUPPLEMENTARY INFORMATION: This document is organized as follows:
I. Does This Action Apply to Me?
II. Summary of State Submittal and Proposed Rulemakings
III. Response to Comments
IV. Final EPA Action
V. Statutory and Executive Order Reviews
I. Does This Action Apply to Me?
This action applies to you if you are interested in the emission
limitations applicable to airborne particulate matter in the State of
Ohio. This action especially applies to you if you are interested in
the emission limitations applicable to utility and iron and steel
manufacturing sources in Ohio and to Ford Motor Company's Cleveland
Casting Plant, to which most of the limit revisions addressed in this
notice apply.
II. Summary of State Submittal and Proposed Rulemakings
Ohio adopted major revisions to its particulate matter regulations
in 1991, addressing requirements of the Clean Air Act amendments of
1977 and 1990. Ohio has submitted and EPA has approved those
regulations (see 59 FR 27464, May 27, 1994, and 61 FR 29662, June 12,
1996). However, several companies appealed those regulations to the
State's Environmental Review Board. As a result of lengthy discussions
aimed at resolving these appeals, Ohio adopted an assortment of
revisions to its particulate matter regulations on December 17, 1997.
Ohio submitted the revised regulations to EPA on July 18, 2000.
EPA proposed action in two parts, published respectively on
December 2, 2002, at 67 FR 71515, and on August 9, 2005, at 70 FR
46127. The first notice addressed most of the State's submittal. That
notice proposed to approve: (1) A redesign of the limits on visible
emissions from roadways and storage pile operations at utility storage
piles; (2) a similar redesign of the visible emission limits for
roadways and storage piles at iron and steel facilities; (3) criteria
for determining the appropriate visible emissions limit for cases where
a source meets its mass emission limit but cannot comply with the
standard visible emissions limit, with provision that the State may
establish alternate visible emission limits according to these criteria
without need for review by EPA; (4) requirements for continuous
emission monitoring systems for a range of sources, and (5)
miscellaneous other revisions. This notice proposed to disapprove
provisions by which Ford could modify its emission limits via
amendments to its Title V permit prior to EPA approval of a State
Implementation Plan (SIP) revision.
The second notice of proposed rulemaking proposed to approve
modification of the limits for several facilities in Cuyahoga County
(the Cleveland area), including Ford, LTV, and General Chemical.
Further description of the State submittal and EPA's evaluation of the
submittal and its proposed action are provided in the respective
notices.
The rules addressed in this rulemaking are rules that were
effective in Ohio on January 31, 1998. Ohio subsequently adopted and
submitted further revisions to their particulate matter regulations,
effective April 14, 2003, which modify the opacity limitations for
large coal-fired boilers and which make miscellaneous minor revisions.
Those further revisions are being addressed in separate rulemaking,
including proposed rulemaking published on June 27, 2005, and are not
addressed here.
III. Response to Comments
EPA received one set of comments, from Ford Motor Company dated
January 31, 2003. These comments objected to EPA's proposed action,
published on December 2, 2002, proposing to disapprove a provision for
Ford Motor Company to obtain revised emission limits for its Cleveland
Casting Plant by means of Title V permit revisions or by new source
permit. EPA received no other comments on either notice of proposed
rulemaking. The following paragraphs describe Ford Motor Company's
comments and provide EPA's response to those comments. For convenience,
the remainder of this notice will refer to the commenter as Ford and
will refer to the pertinent facility as the Cleveland Casting Plant.
Comment: Ford described its Cleveland Casting Plant at length.
Later in its comment letter, Ford described the plant and its pollution
control systems as complex and subject to frequent changes as
production demands change. These descriptions support comments that
Ford must have an expeditious process to obtain reconfigured emission
limits to accommodate periodic plant reconfigurations.
Response: EPA understands the complexity of the Cleveland Casting
Plant. A more detailed discussion of Ford's comments and EPA views on
the need for expeditious changes in limits is provided below.
Comment: Ford delineates a history of State and federal rulemaking
on Ohio particulate matter issues relevant to the Cleveland Casting
Plant.
[[Page 65418]]
Response: In most respects the history is an accurate chronology of
the identified rulemakings. One factual inaccuracy in the chronology is
the statement that Ohio adopted the rules adopted in December 1996 and
submitted them to EPA ``shortly thereafter''; in fact, the rules were
adopted in December 1997 and were not submitted until July 2000.
A few additional elements of the chronology in the comment also
warrant note. EPA proposed rulemaking on a portion of Ohio's July 2000
submittal on December 2, 2002. As stated in that notice of proposed
rulemaking, at 67 FR 71516, ``[b]ased on discussions with USEPA, Ohio
is conducting a further assessment of whether the revised limits in
Cuyahoga County suffice to assure attainment of the annual particulate
matter standard. USEPA is deferring action on these revisions pending
receipt of this further assessment.'' Ohio provided further materials
on February 12, 2003, January 7, 2004, February 1, 2005, and April 21,
2005. EPA then proposed to approve the Cuyahoga County limits on August
9, 2005.
This expanded chronology illustrates several points. First,
attainment demonstrations can raise significant issues, such that in
this case Ohio was providing supplemental material over a period of
more than two years. Second, this chronology is directly relevant to
the Cleveland Casting Plant, since some of the supplemental material
directly pertains to this facility. Third, had EPA taken earlier
action, that action presumably would have been to disapprove the limits
due to inadequate support, including the limits being sought by Ford.
Comment: Section III.A of Ford's comments states, ``The flexibility
in OAC 3745-17-12(I)(50) and (51) is critical to the ongoing viability
of the Casting Plant.'' Ford highlights the complexity of its Cleveland
Casting Plant. Ford provides a conceptual example involving two
processes (labeled Process A and Process B) and two emission control
systems (labeled Collector C and Collector D), noting in the example
that emissions from Process A may go mostly to Collector C but may also
in part to Collector D, and similarly the emissions from Process B may
go partly to both collectors. Ford states as part of this example that
the emission limits in the SIP reflect the existing configuration of
the distribution of emissions from various processes to the various
control devices. Ford states that even if, for example, Process B shut
down, such that it would be more efficient to shut Collector D down and
route all Process A emissions to Collector C, the SIP would prohibit
that, and Ford would be required to continue operating Collector D
until a SIP revision was completed.
Ford makes a few additional comments in this section of its comment
letter. Ford mentions its participation in EPA's Energy Star program
for energy efficiency and its commitment to pollution prevention as an
implementer of the ISO 14001 program. Ford highlights its view that the
revisions made under this process have no detrimental environmental
effect, because the revised limits must provide for attainment just as
the existing SIP does. Ford further notes that the process in Rule
3745-17-12(I)(50) and (51) do in fact provide for the opportunity for
EPA, Ohio EPA, and the public to review and comment on potential
revisions, and the process is simply more streamlined than
``traditional SIP revisions.''
Response: EPA does not dispute Ford's statements that the Cleveland
Casting Plant is a complex facility with numerous emitting processes
connected in a complex array to numerous control systems. EPA also does
not dispute Ford's statements that shifts in production demands require
periodic reconfigurations in plant processes. However, EPA disagrees
with Ford's view that the SIP requires and can only be written in a
manner that requires a specific plant configuration, and EPA disagrees
with Ford's conclusion that these circumstances warrant a process that
circumvents standard SIP review.
The limits for the Cleveland Casting Plant in the Ohio SIP have
various formats; some limits regulate pounds per hour for a specific
emission unit, some limits regulate pounds per hour for a group of
emission units, a few limits regulate mass per cubic foot of exhaust
gas for one or multiple emission units, and certain limits regulate the
hours per day that selected units may operate. In a handful of cases,
the rules specify the control system that shall be used for the
identified emission unit(s). As is discussed below, EPA approved these
limits but did not and does not mandate the use of any particular
format so long as the limit is enforceable and helps provide for
attainment.
Ford does not provide a rationale for its statement that the SIP
requires a specific mode of operation. In particular, Ford's
presentation of its example does not support the claim that the SIP
mandates continued operation of Collector D even after shutdown of the
Process A that is the principal source of emissions controlled by
Collector D. This is a critical shortcoming in Ford's comments, since
this statement is a fundamental basis for Ford's argument that an
expeditious process for altering SIP limits is needed to accommodate
changes in operations at the Cleveland Casting Plant.
Despite Ford's failure to justify its statement that the SIP
requires a specific mode of operation, EPA analyzed this statement
further. First, EPA examined this statement conceptually in the context
of Ford's illustrative example. In the example, Ford claims that the
SIP would require continued operation of Collector D even after the
shutdown of Process B, and that routing all of Process A emissions to
Collector C would violate the SIP. EPA examined the rules it proposed
to approve and found no cases in which the rules require operation of a
control device that is not receiving emissions. Also, while EPA
identified cases in which the rules direct Ford to route emissions from
a process to a particular collector, EPA finds no cases in which the
rules direct Ford to route emissions from a process to multiple control
devices, and EPA found no rules prohibiting Ford from routing zero
emissions to a particular collector. Thus, EPA finds no cases in which
the rules prohibit routing all emissions from a process to a single
collector but instead mandate that a portion of the emissions be routed
to a second collector that might otherwise be shut down.
In a few cases, the rules do require that all emissions from
identified processes be routed to a particular collector. These cases
are discussed below.
Continuing its examination of Ford's example, EPA assessed whether
continued operation of Collector D might be indirectly required in
order to achieve emission reduction requirements. Two scenarios warrant
consideration: (1) Collector C has the capacity to control successfully
all of Process A's emissions, and (2) Collector C does not have the
capacity to control successfully all of Process A's emissions.
(``Control successfully'' here means satisfying the emission limits
that apply to Collector C.) In the first scenario, routing all of
Process A's emissions to Collector C would create no violation of the
SIP. In the second scenario, Ford would be violating the SIP. Ford has
several options for remedying such a violation. Ford could improve
Collector C so that it can successfully control all of Process A's
emissions. Ford could reroute the requisite fraction of Process A's
emissions to some other collector with the capacity to control that
fraction of Process A's emissions. (Such rerouting is permissible under
the SIP in virtually all cases.) Over the longer run, Ford
[[Page 65419]]
could propose a control strategy based on highly effective control
devices that maximize the company's flexibility to increase operations
at individual processes and still remain within emission limits needed
to assure attainment. Similarly, unlike prior State rulemakings, Ford
could recommend rules that would eliminate those few cases in which
emissions from specified processes are directed to be controlled by
specified control equipment.
Ford has not addressed these options for increasing its flexibility
for operating the Cleveland Casting Plant in compliance with SIP
limits. Therefore, Ford has not demonstrated that the desired
flexibility in plant operations while complying with SIP limits can
only be achieved by being granted an expedited process for revising SIP
limits.
In observing that SIP revisions can be time consuming, Ford makes
reference to the length of time involved in the present rulemaking
completed by today's notice. EPA has several responses. First, as noted
previously, and contrary to Ford's chronology, Ohio did not submit the
rule package until July 2000. EPA assumes that Ohio used the time
between rule adoption and package submittal to prepare materials to
support the submittal and justify EPA approval. In fact, EPA's December
2002 rulemaking deferred action on the portion of the submittal
addressing Cleveland area limits for the express purpose of soliciting
further information regarding these limits. The limits at issue
included limits for the Cleveland Casting Plant, and the supporting
information that Ohio provided in January 2004 for the Cleveland
Casting Plant (along with information for other facilities that Ohio
provided in February 2005) provided critical justification for the
August 2005 proposed action and today's final action to approve the
revisions to emission limits at the Cleveland Casting Plant that are
included in Ohio's submittal.
EPA commends Ford for implementing the ISO 14001 program and
participating in EPA's Energy Star program. However, these actions by
Ford do not support allowing changes to applicable limits without
proper SIP review. Regarding the brief comments here on the review
process, a later section of this notice reviews these comments together
with the more elaborate comments on the subject that Ford made
elsewhere in its letter.
Comment: Ford provides several comments under the heading ``US
EPA's rationale for the proposed disapproval is unsupported by the text
of the preamble.'' Ford characterizes EPA's concern as being ``based
almost exclusively on two interrelated points: (1) A concern that
authorizing revisions to the applicable emission limitations by the
mechanism specified in OAC 3745-17-12(I)(50) and (51) would not satisfy
the criteria in section 110 of the Act, and (2) a belief that issuing a
Title V permit with an alternative emission limit would somehow revise
the SIP.'' Ford states, ``Both of these concerns are unfounded.''
As a subheading under the above heading, Ford states ``Both OAC
3745-17-12(I)(50) and (51) meet the criteria of section 110 of the
Clean Air Act for inclusion in the SIP. If OAC 3745-17-12(I)(50) is
approved as part of the SIP, the establishment of alternative emission
limits pursuant to that rule does not modify the SIP.''
Ford summarizes the SIP requirements under Clean Air Act section
110(a)(2). Ford states, ``The language in OAC 3745-17-12(I)(50) and
(51) satisfies all of these requirements.'' Ford finds that EPA's
notice of proposed rulemaking does not disagree; Ford observes that
``Instead, the preamble focuses on permits to be issued under OAC 3745-
17-12(I)(50) * * * [and] expresses a concern that [such a permit] would
somehow impermissibly revise the SIP.''
Ford continues, ``Nothing in the regulations at issue allows Ohio
EPA or Ford to deviate from the Section 110 requirements concerning SIP
revisions * * *. [I]f OAC 3745-17-12(I)(50) is approved as part of the
SIP, the SIP would expressly permit the creation of alternative
emission limits. Establishing alternative emission limits * * *
pursuant to the requirements of OAC 3745-17-12(I)(50) would not be a
revision of the SIP.'' [emphasis in original]
Response: Possibly the most important requirement of section 110 is
the requirement that the SIP provide for attainment of the air quality
standards. This action approves a set of specific limits for the
Cleveland Casting Plant and other Cleveland area facilities that EPA is
satisfied will assure attainment of the applicable particulate matter
standards (specifically the standards for particles nominally 10
micrometers and smaller, known as PM10). The provisions of
OAC 3745-17-12(I)(50) that Ford supports state, ``Compliance with an
alternative emission limitation or control requirement in effect
pursuant to this paragraph shall not constitute a violation of
paragraph (I) of this rule * * *.'' That is, the rule supported by Ford
would allow the facility to violate limits that help assure that
Cleveland will attain the air quality standards. Although the rule
dictates that the alternative limits must have been demonstrated to
provide for attainment, the rule provides a process that shortchanges
EPA's statutory role in reviewing whether the alternate limits in fact
assure attainment. Indeed, this rule must be considered to authorize
establishment of alternative limits that EPA after proper review would
find inadequate to assure attainment. Consequently, approval of this
rule would result in a SIP that no longer assures attainment of the air
quality standards, in clear contravention of section 110 of the Clean
Air Act.
Ford argues at length that upon approval of OAC 3745-17-12(I)(50),
the establishment of alternative limits in accordance with that
paragraph would not revise the SIP. This argument is not germane,
because it disputes a mischaracterized, transformed version of EPA's
rationale. EPA's notice of proposed rulemaking focuses on the changes
to emission limitations that would be involved in use of the rule which
Ford supports. In substantive terms, OAC 3745-17-12(I)(50) would
authorize Ohio to permit Ford to violate some of the limits in the SIP,
so long as Ford is complying with alternate limits established by
permit. In Title V terms, the emission limits are quintessential
``applicable requirements'' that must be identified in the Title V
permit. EPA's notice of proposed rulemaking in a few places uses a
shorthand description of the problem, describing the Ohio rule as in
effect revising the SIP through use of Title V permits. Ford's
objection to this shorthand description of the problem overlooks the
substantive point that Ohio's rule would impermissibly use Title V
permits to alter SIP emission limits, or more precisely would use Title
V permits to render moot some of the emission limits in the SIP and to
establish alternative limits that effectively replace the SIP limits.
Under the Clean Air Act, this is not allowable.
Ford is addressing a hypothetical question, i.e., with a
hypothesized SIP that contains the provisions of OAC 3745-17-12(I)(50),
whether use of those provisions to establish new limitations and render
moot some of the existing SIP emission limitations would constitute a
revision to the SIP. Ford's question is tantamount to asking, ``If
provisions in the SIP authorized revision of core SIP elements (i.e.
emission limitations), would it constitute a SIP revision to implement
those provisions to revise those SIP elements?'' EPA need not resolve
this hypothetical question, because EPA may not approve provisions that
would authorize Ohio to make unenforceable
[[Page 65420]]
some of the limitations established to help assure attainment.
By extension, Ford's rationale could be interpreted to suggest that
rules approved into the SIP need not contain any specific emission
limitations, and that it should suffice for all of the specific
emission limitations to be established as part of a Title V permit, so
long as a requirement exists for such limits to be demonstrated to
provide for attainment. EPA clearly objects to such an approach. The
Clean Air Act requires SIPs to contain specific, enforceable emission
limits providing for attainment, and EPA may not approve a plan that
mandates but does not specify such limits. Furthermore, the Clean Air
Act clearly delineates the process by which such limits are to be
established and revised, a process that OAC 3745-17-12(I)(50) would
shortchange.
Comment: Ford states, ``US EPA has recognized the need for `SIP
Flexibility.' '' Ford attached a letter from EPA to Ohio that addresses
negotiations regarding SIP flexibility that ultimately led to Ohio's
adoption of OAC 3745-17-12(I)(50). Ford quotes from this letter to
demonstrate that EPA acknowledges the need for flexibility for Ford to
obtain alternative limits ``following relatively expeditious U.S. EPA
review.'' Ford states, ``While U.S. EPA indicated that the Ford-Ohio
EPA approach to providing flexibility deviated slightly from U.S. EPA's
`traditional policy' on `director's discretion,' U.S. EPA never
indicated that the approach did not meet the criteria of Section 110.''
Ford notes that EPA anticipated issuing a SIP Flexibility Policy
offering such expeditious limit revisions, observes that the policy was
apparently never issued, but nevertheless urges EPA to approve OAC
3745-17-12(I)(50) for purposes of providing such flexibility.
Response: As Ford suspects, EPA has not issued the revised policy
on SIP flexibility that the quoted letter anticipated. Thus, EPA
reviewed OAC 3745-17-12(I)(50) in light of existing policy, including
``traditional policy'' on ``director's discretion.'' The term
``director's discretion'' denotes state rule provisions which authorize
state agencies to establish or revise source requirements in the SIP
without needing approval from EPA. This term is generally applied in
cases where the source requirements are significant, and EPA policy
states that such provisions shortchange necessary EPA review and cannot
be approved.
Ford mischaracterizes EPA's statements regarding director's
discretion. Far from indicating that the deviations from director's
discretion policy are ``slight,'' EPA's letter stated: ``Ford's
proposal deviates from USEPA's traditional policy on `director's
discretion' in several important respects.'' EPA then identified three
specific deficiencies, in brief that the proposal allows revisions
without affirmative EPA concurrence, allows only a short review period,
and does not address various identified issues regarding enforcement of
revised limits. Since OAC 3745-17-12(I)(50) fundamentally retains the
same pertinent features as the proposal (with only a modest lengthening
of the still brief EPA review period), OAC 3745-17-12(I)(50) contains
these same deficiencies. Ford does not comment on these identified
deficiencies, and EPA continues to believe that these deficiencies
warrant disapproval of OAC 3745-17-12(I)(50).
The history of the limits in OAC 3745-17-12(I) provides perspective
on the degree of operational flexibility inherent in these limits. OAC
3745-17-12(I), as adopted in May 1991, included three options
recommended by Ford. One of these options was labeled ``the cupola dust
collection upgrade plan'' and involved improvements in pollution
control equipment which would accommodate expanded production by the
Cleveland Casting Plant. The other two options involved less production
and less aggressive efforts at emissions control. The option ultimately
recommended by Ford, and adopted by Ohio in November 1991, reflects one
of these latter options. All three options involve numerous limits on
the number of hours of operation of major processes at the Cleveland
Casting Plant, presumably designed to match the alternate projections
of plant operations. Since EPA's guidance for PM10
attainment demonstrations mandates assuring attainment even with full
allowable emissions, limits on operating hours serve as an alternative
to tighter limits on emissions as a means of requiring attainment level
daily emission rates. Thus, the attainment plan that Ford recommended
may be viewed as reflecting Ford's preferences as to the mix of limits
on emission control levels and limits on operations.
EPA's letter identifies various means by which Ford could obtain
the desired flexibility without bypassing EPA's statutory SIP review
process. The letter states:
For example, Ford should investigate strategies that apply a
more uniform set of limitations that would address a broader range
of operational configurations. Similarly, Ford should investigate
strategies that mix further controls with less restrictive sets of
operation limitations. Such approaches should be fully investigated
as means of allowing Ford the flexibility to make modest operational
changes while still providing adequate review of changes that could
significantly affect air quality.
Ford does not comment on these approaches. EPA remains convinced that
Ford has multiple options for obtaining the flexibility it desires
without bypassing EPA's statutory process for reviewing revisions to
limits established to assure attainment.
Comment: Ford makes a series of comments under the heading ``US
EPA's White Paper Number 2 Supports the Creation of Alternative
Emission Limits.'' Ford observes that this white paper provides for
inclusion of alternative emission limits in Title V operating permits.
Ford quotes from the white paper:
States may revise their SIP's to provide for establishing
equally stringent alternatives to specific requirements set forth in
the SIP without the need for additional source-specific SIP
revisions. To allow alternatives to the otherwise-applicable SIP
requirements (i.e., emissions limitations, test methods, monitoring,
and recordkeeping) the State would include language in SIP's to
provide substantive criteria governing the State's exercise of the
alternative requirement authority.
Ford further quotes language from the white paper that describes a
sample set of SIP language that would provide the process for
implementing such a provision. Ford observes that the process in OAC
3745-17-12(I)(50) parallels this approach suggested in EPA's white
paper.
Ford notes that EPA's Title V permit rules, specifically at 40 CFR
70.6(a)(1)(iii), ``provide a mechanism for states to establish
alternative emission limits.'' Ford quotes language in Ohio's Title V
rules (at OAC 3745-77-0(A)(1)(c)) that it believes ``tracks 40 CFR
70.6(a)'' and authorizes Ohio to establish alternative emission limits
``[i]f the applicable implementation plan so provides''. Given that EPA
approved these Ohio Title V rules, and given that EPA ``advocated
alternative emission limits in White Paper 2,'' Ford finds EPA's
proposed disapproval of OAC 3745-17-12(I)(50) and (51) to be
``arbitrary and unreasonable.''
Response: White Paper Number 2 indeed provides the options for
states to use Title V permits to ``establish equally stringent
alternatives to specific requirements set forth in the SIP'' (emphasis
added). However, Ford is seeking for Ohio to have broader authority to
make more revisions than is contemplated in the white paper. If Ford
were merely seeking the option to establish replacement limits that for
each emission point were equally
[[Page 65421]]
stringent to the existing SIP limit, then there would be no need for
OAC 3745-17-12(I)(50) to require modeling to demonstrate that the
alternatives provide for attainment. Instead, Ford is clearly seeking
for Ohio to have the authority to use Title V permits to set less
stringent limits for some emission points and more stringent limits on
other sources. Indeed, OAC 3745-17-12(I)(50) expressly provides that
Ford need not meet the existing SIP limits so long as it is meeting the
alternative limits in a permit, a provision that clearly anticipates
some replacement limits being less stringent than the corresponding
specific requirements of the current SIP. Thus, the language of White
Paper Number 2 as quoted by Ford does not provide for the types of
revisions to limits that Ford is contemplating.
Ford may believe that White Paper Number 2 may be construed to
encourage use of Title V permits to establish sets of limits that
collectively are equivalent to a set of limits in the SIP. Ford would
presumably argue that any combination of limits for the Cleveland
Casting Plant that suitable modeling shows to provide for attainment
may be considered equivalent to the attainment plan limits in the SIP.
However, the language of the white paper as quoted by Ford makes clear
that revisions that may arguably be collectively equivalent but do not
provide equivalence for each individual limit are outside the scope of
this white paper.
Conceptually, the Clean Air Act provides complementary but distinct
roles and processes for establishing limits under Title I and compiling
limits under Title V. Title I establishes a variety of requirements,
including the requirement for emission limits and other limitations
sufficient to provide for attainment. Title I further provides a
process by which states must submit such limitations to EPA, EPA is to
evaluate the completeness of submittals, and then EPA is granted 12
months to review and rulemaking on complete submittals. Title V, by
contrast, provides for permits that tabulate the existing SIP
requirements that apply to an existing source, following a more
expedited process based on the statutory presumption that these permits
will not be altering the limitations or other provisions by which the
state has met Title I requirements. EPA believes that Title V permits
provide a suitable mechanism for certain limited housekeeping
operations such as clarification of existing limits or recordkeeping
requirements for a specific site, and establishing periodic compliance
monitoring. OAC 3745-17-12(I)(50) is fundamentally contrary to the
Clean Air Act in seeking to authorize potentially sweeping revisions in
the limitations Ford is subject to for Title I purposes based on a
process designed for the far more narrow purposes of Title V.
Ford's comments focus on the timetable for review of SIP revisions
versus for review of Title V and new source permits, and so this was a
focus of EPA's review of Ford's comments. However, another important
distinction between these two review processes is the consequences of
EPA inaction. In permit review, if EPA chooses not to review a permit,
the state may issue the permit. However, under Section 110(k), if EPA
takes no action on a SIP revision request, the SIP is not revised. This
contrast reflects a statutory distinction between the level of review
needed to compile applicable requirements (or, for new sources, to set
specific limitations in accordance with established rule requirements)
and the level of review needed to establish or revise those
requirements. Thus, the fact that OAC 3745-17-12(I)(50) would provide
for revisions to take effect unless EPA acts to object is a serious
deficiency of this rule.
Comment: Ford states that it undertakes frequent alterations of the
Cleveland Casting Plant that, if OAC 3745-17-12(I)(50) is disapproved,
would require SIP revisions. To illustrate this point, Ford provided as
an attachment to its comments an annotated copy of OAC 3745-17-12(I)
that delineates relevant revisions to the facility.
Response: An examination of the alterations identified by Ford
shows that a majority of the identified changes are shutdowns of
specific emission units. Clearly, emission units that are shut down and
have zero emissions are complying with the applicable emission limits.
Thus, Ford has no need of a SIP revision to accommodate these plant
alterations.
The next most common type of alteration identified by Ford in this
comment is a change in the description of an emission unit. For
example, the emission unit identified in the rule as P909 is apparently
now identified as P413, with no change and no apparent request for a
change in the emission limit. For other examples as well, Ford provides
no evidence that changes in the unit description signify any increase
in emissions or any kind of violation of any emissions limit or other
limitation.
Some of the noted alterations are modifications of sources, which
presumably were subject to the new source review process. New source
review provides its own process for assuring that plant modifications
do not cause violations of air quality standards, a process that
maintains or if necessary lowers the limit on other sources to provide
continued attainment. Ford does not need a separate process to address
such source modifications. Furthermore, Ford's descriptions suggest
that even in these cases there was no increase in emissions or emission
limits at any emission point.
Ford identifies a handful of additional plant alterations in the
comment. Some alterations involve control of previously uncontrolled
emissions, which as expected apparently does not result in Ford
exceeding any emission limits or otherwise emitting more at any
emission point. Other alterations involve rerouting of emissions, again
with no apparent increase in allowable emissions at any emission point
or violation of any limitations.
In summary, none of the plant changes identified by Ford appears to
result in any emission increase at any location or to make compliance
with any limit any more difficult. Also, Ford has not identified any
other plant alterations that they have foregone due to concerns about
complying with existing limits. Thus, Ford's information on plant
alterations indicated no need for revisions of the SIP limits that are
being approved today. Therefore, it appears the information on plant
alterations does not support Ford's claim that frequent modifications
of the Cleveland Casting Plant require an expedited process for
revising applicable emission limits.
Comment: Ford makes a series of comments under a heading ``US EPA's
proposed disapproval would create significant practical difficulties
for all involved.'' First, Ford states, ``Since Ohio EPA adopted OAC
3745-17-12(I)(50) and (51) in 1996, Ford has availed itself of the
flexibility provisions in that rule many times.'' Ford asserts that
``[d]isapproving this rule results in the need to revise the SIP to
address these changes [in operations at the Cleveland Casting Plant].''
Ford comments that it ``prepared its Title V permit application based
on the revised emissions limits that have resulted * * *.'' Finally,
Ford expresses the view that ``site-specific SIP requirements, such as
the ones applicable to Ford, should not require more scrutiny than is
given to a typical new source construction permit or a facility-wide
Title V operating permit.'' Ford recommends instead that EPA accept use
of these permitting approaches that would apply the ``same
[[Page 65422]]
level scrutiny'' to revisions of limits for the Cleveland Casting
Plant.
Response: As discussed above, although Ford provided an extensive
delineation of plant alterations that do not require limit revisions,
Ford has not identified any specific SIP limits that the Cleveland
Casting Plant, operated as Ford would like to operate it, would violate
in the absence of a SIP revision. Thus, even if EPA were to accept
Ford's view that an intended operational mode that violates SIP limits
translates into a need for a SIP revision, it appears that operation in
such a mode has not occurred in the last several years.
Ford presumably understands that in the absence of a SIP revision,
EPA judges compliance with the existing SIP. By claiming to have
availed itself of ``flexibility'' in the State rule, Ford would appear
to be claiming that it is violating the SIP. However, given the nature
of the plant alterations described by Ford, it is not clear that such
violations have occurred.
Ford makes an interesting recommendation, for EPA to address site-
specific SIP revisions according to the same process as new source
permits or Title V permits. However, this recommendation overlooks the
distinctions in the nature of the issues that arise in these varying
contexts. Title V permits are intended primarily simply to compile
existing applicable requirements, so that these permits are expected
not to raise fundamental issues about how the state is assuring
attainment. While new source permits occasionally raise issues about
assurance of attainment, these permits generally focus on other
requirements, notably including control technology requirements and
offset requirements (in nonattainment areas), that minimize the
potential for attainment planning issues to arise. It is for this
reason that the Clean Air Act and EPA's implementing regulations
identify distinct review processes for existing source and new source
permits versus for attainment plans, allowing permit review under an
expedited timetable and allowing issuance in the absence of EPA
objection but authorizing much longer review of attainment plans and
providing that such revisions occur only with affirmative EPA action.
Comment: Ford concludes that establishment of a streamlined
mechanism for establishing alternate emission limits ``is what White
Paper 2 anticipated.'' Further, ``[i]t is what the Title V rules
provide for. It is logical and reasonable, and is supported by both
science and law.'' Ford continues: ``Conservative modeling analyses and
available ambient air quality monitoring data confirm that the PM-10
emission limits applicable to Ford's operations will ensure ongoing
attainment.'' Under these circumstances, Ford urges that EPA approve
OAC 3745-17-12(I) in its entirety.
Response: EPA concludes that actions that alter the emission limits
must be subject to the full SIP review provided for in Clean Air Act
section 110(k). The existence of a requirement for a modeled attainment
demonstration does not lessen the need for EPA to review each
attainment demonstration on a case by case basis. EPA may not
shortchange this review by allowing alteration of the applicable limits
by a Title V or a new source permitting process.
IV. Final EPA Action
EPA is approving most elements of Ohio's particulate matter SIP
revisions submitted July 18, 2000. EPA is approving revisions in Rule
3745-17-01 and 3745-17-11 that revise limits for stationary internal
combustion engines. EPA is approving revisions to Rule 3745-17-03,
which include revisions to test methods associated with various rules
identified in the paragraphs that follow. This rule, in particular Rule
3745-17-03(C), also requires that sources subject to Appendix P of 40
CFR 51 install, satisfactorily operate, and report results from
continuous emission monitoring systems. In conjunction with this
action, EPA is removing from the SIP the now-expired permits that Ohio
previously submitted to satisfy Appendix P.
EPA is approving revisions to Rule 3745-17-04, requiring immediate
compliance with the newly adopted limitations in other rules being
approved. EPA is approving revisions to Rule 3745-17-07 which, in
combination with test method revisions in Rule 3745-17-03, provide a
reformulated but equivalent set of limitations on fugitive dust from
iron and steel and from utility facilities. EPA is also approving
revisions in Rule 3745-17-07(B)(9) and (B)(10), related provisions in
Rule 3745-17-08 (providing revised limits on fugitive dust at the Ford
facility), and Rule 3745-17-11(B)(6) that specify emission limits for
the Cleveland Casting Plant and for the ISG facility. EPA is approving
most of the revisions in Rule 3745-17-12, including all of the Cuyahoga
County emission limits contained in this rule. EPA is approving
revisions to Rule 3745-17-13, which replace fugitive emission
limitations for the Wheeling-Pittsburgh Steel Company facility with
requirements that the facility follow specified practices to limit
fugitive emissions. EPA is approving revisions to Rule 3745-17-14 that
bring this rule into conformance with the approved contingency plan.
(The approved rule also excludes a guidance statement that was not
previously part of the SIP.)
EPA is disapproving Rule 3745-17-12(I)(50) and 3745-17-12(I)(51),
which would allow Ohio to incorporate a revised set of emission limits
for Ford Motor Company's Cleveland Casting Plant into either a Title V
permit or a new source permit. EPA has concluded that this type of
revision to applicable limitations must be subject to the review
process under section 110 of the Clean Air Act for revisions to state
implementation plans. Final disapproval of these paragraphs does not
start any sanctions clock. This submittal was not needed to meet any
provision of the Clean Air Act. Disapproval of these paragraphs simply
prevents the addition of these paragraphs to Ohio's state
implementation plan and does not constitute a plan deficiency that
under section 179 of the Clean Air Act would need to be remedied to
avoid sanctions.
EPA is deferring action on revisions in Rule 3745-17-07 relating to
equivalent visible emissions limits. These revisions provide detailed
criteria for issuance of such limits, and provide that limits that Ohio
issues in accordance with these criteria need not be subject to formal
EPA review to alter the federally enforceable limits. EPA intends to
publish a separate proposed rulemaking notice soliciting comment on the
ramifications of these revisions for previously approved equivalent
visible emission limits.
V. 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 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 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).
[[Page 65423]]
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
Governments
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
Act.
Executive Order 13045: Protection of Children From Environmental Health
Risks 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 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 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.
804(2).
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 January 8, 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, Reporting
and recordkeeping requirements.
Dated: September 19, 2006.
Gary Gulezian,
Acting Regional Administrator, Region 5.
0
For the reasons stated in the preamble, part 52, chapter I, title 40 of
the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart KK--Ohio
0
2. Section 52.1870 is amended by adding paragraph (c)(134) and removing
and reserving paragraph (c)(88) to read as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(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. EPA is also deferring
action on revisions relating to equivalent visible emission limits.
(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 (except for revisions to paragraphs C and D),
Rule OAC 3745-17-08, entitled
[[Page 65424]]
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 counties.
(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).
(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
estimates.
(D) E-mail from Bill Spires, Ohio EPA to EPA, dated April 21, 2005,
providing further modeling analyses.
[FR Doc. E6-18788 Filed 11-7-06; 8:45 am]
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