7412 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules 

requirements contained in section 128 

of the CAA, and for the states to submit 

such provisions for incorporation into 

the SIP. 

Under section 128 of the CAA, each 

SIP must contain provisions that 

address two requirements: (i) That any 

board or body which approves permits 

or enforcement orders under this 

chapter shall have at least a majority of 

members who represent the public 

interest and do not derive any 

significant portion of their income from 

persons subject to permits and 

enforcement orders under this chapter, 

and (ii) that any potential conflicts of 

interest by members of such board or 

body or the head of an executive agency 

with similar powers be adequately 

disclosed. IDEM’s and Ohio EPA’s 

satisfaction of these requirements 

follow, below. 

On August 19, 2013, EPA proposed 

approval of IDEM’s provisions intended 

to address the applicable requirements 

of section 128 (see 78 FR 50360). No 

comments were received regarding our 

proposed approval of Indiana’s state 

board provisions, and EPA’s final 

approval of these provisions was 

published on December 24, 2013 (see 78 

FR 77599). IDEM had previously 

requested in a May 22, 2013, SIP 

submission that EPA’s approval of its 

state board provisions satisfy any 

applicable infrastructure SIP 

requirements for the 2006 PM2.5

NAAQS. EPA therefore proposes that 

Indiana has met the section 

110(a)(2)(E)(ii) requirements for the 

2006 PM2.5 NAAQS. 

On June 7, 2013, Ohio submitted a SIP 

revision clarifying that the state does 

not have a board that has the authority 

to approve enforcement orders or 

permitting actions as outlined in section 

128(a)(1) of the CAA; instead, this 

authority rests with the Director of Ohio 

EPA. Therefore, section 128(a)(1) of the 

CAA is not applicable in Ohio. 

Under section 128(a)(2), the head of 

the executive agency with the power to 

approve enforcement orders or permits 

must adequately disclose any potential 

conflicts of interest. In its June 7, 2013, 

submission, Ohio EPA noted that EPA 

has previously approved provisions into 

Ohio’s SIP addressing these 

requirements (see 46 FR 57490). 

Specifically, ORC 102: Public Officers— 

Ethics contains provisions that require 

the Director of Ohio EPA (and his/her 

delegate) to file an annual statement 

with the ethics committee including 

potential conflicts of interest; 

furthermore, this annual filing is subject 

to public inspection. Ohio EPA 

requested in its June 7, 2013, 

submission that these SIP-approved 

provisions satisfy any applicable 

infrastructure SIP requirements for the 

2006 PM2.5 NAAQS. EPA therefore 

proposes that Ohio has met the 

applicable requirements for section 

110(a)(2)(E)(ii) for the 2006 PM2.5

NAAQS. 

III. What action is EPA taking? 

For the reasons discussed above, EPA 

is proposing to approve submissions 

from IDEM and Ohio intended to 

address the state board requirements 

under section 110(a)(2)(E)(ii) for the 

2006 PM2.5 NAAQS. To reiterate, this 

action does not extend to any other 

NAAQS, nor does it extend to any other 

element under section 110(a)(1) and (2) 

for the 2006 PM2.5 NAAQS. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve State choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves State law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by State law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Particulate Matter, Reporting 

and recordkeeping requirements. 

Dated: January 22, 2014. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2014–02701 Filed 2–6–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2009–0807; FRL–9905–69– 

Region 5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Ohio; 

Test Methods; Error Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to determine 

that an October 26, 2010, action was in 

error and to make a correction pursuant 

to section 110(k)(6) of the Clean Air Act 

(CAA). The correction will bring the 

codification section of the October 26, 

2010, action into accord with the actual 

substance of the rulemaking action. The 

October 26, 2010, final rule approved 

various revisions to Ohio regulations 

that consolidated air quality standards 

in a new chapter of rules and adjusted 

the rule cross references accordingly in 

various related Ohio rules, including a 

specific revision to the cross reference 

in the Ohio Administrative Code (OAC) 

pertaining to methods for measurements 

for comparison with the particulate 

matter air quality standards. The 

correction will remove the appearance 

that EPA approved extraneous portions 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules 7413 

1EPA notes that it is not necessary in this 

rulemaking to determine the precise contours of 

EPA’s authority under section 110(k)(6), because 

the typographical error at issue in this action is 

clearly within that authority. 

2See, e.g., ‘‘Determinations Concerning Need for 

Error Correction, Partial Approval and Partial 

Disapproval, and Federal Implementation Plan 

Regarding Texas’s Prevention of Significant 

Deterioration Program, 76 FR 25178 (May 3, 2011) 

(the error was full approval of a SIP submission 

with a legal deficiency); ‘‘Approval and 

Promulgation of Implementation Plans; Kentucky: 

Approval of Regions to the State Implementation 

Plan,’’ 75 FR 2440 (Jan. 15, 2010) (the error was 

inclusion of provisions into the SIP); ‘‘Designation 

of Areas for Air Quality Planning Purposes; 

Correction of Designations of Nonclassified Ozone 

Nonattainment Areas; States of Maine and New 

Hampshire,’’ 62 FR 14641 (March 27, 1997) 

(designations in error because insufficient 

information submitted). 

of this rule in the OAC. EPA is not reopening the comment period on the 

October 26, 2010, action. 

DATES: Comments must be received on 

or before March 10, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2009–0807, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: aburano.douglas@epa.gov. 

3. Fax: (312) 692–2551. 

4. Mail: Douglas Aburano, Chief, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

U.S. Environmental Protection Agency, 

77 West Jackson Boulevard, Chicago, 

Illinois 60604. 

5. Hand Delivery: Douglas Aburano, 

Chief, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

Such deliveries are only accepted 

during the Regional Office normal hours 

of operation, and special arrangements 

should be made for deliveries of boxed 

information. The Regional Office official 

hours of business are Monday through 

Friday, 8:30 a.m. to 4:30 p.m., excluding 

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R05–OAR–2009– 

0807. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to Section I of 

the SUPPLEMENTARY INFORMATION section 

of this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone John 

Summerhays, Environmental Scientist, 

at (312) 886–6067, before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: John 

Summerhays, Environmental Scientist, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–6067, 

summerhays.john@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

SUPPLEMENTARY INFORMATION section is 

arranged as follows: 

I. What should I consider as I prepare my 

comments for EPA? 

II. Background 

III. What was the error? 

IV. What action is EPA taking? 

V. Statutory and Executive Order Reviews 

I. What should I consider as I prepare 

my comments for EPA? 

When submitting comments, 

remember to: 

1. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

2. Follow directions—EPA may ask 

you to respond to specific questions or 

organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

3. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

4. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

5. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

6. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

7. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

8. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

This proposed action is to correct an 

error in an earlier EPA rulemaking, 

using the authority of section 110(k)(6) 

of the CAA. Section 110(k)(6) provides 

EPA with explicit authority to correct 

errors in prior rulemaking actions: 

Whenever the Administrator determines 

that the Administrator’s action approving, 

disapproving, or promulgating any plan or 

plan revision (or part thereof), area 

designation, redesignation, classification, or 

reclassification was in error, the 

Administrator may in the same manner as the 

approval, disapproval, or promulgation 

revise such action as appropriate without 

requiring any further submission from the 

State. Such determination and the basis 

thereof shall be provided to the State and the 

public. 

EPA notes that this statutory provision 

provides EPA with authority to correct 

an error ‘‘whenever’’ EPA later 

determines that an error occurred. In 

addition, this provision does not define 

the term ‘‘error,’’ and thus does not 

restrict EPA’s authority merely to the 

correction of typographical mistakes or 

other such limited circumstances.1 EPA 

has used this explicit statutory authority 

on multiple occasions to correct various 

types of errors.2

The error at issue here occurred in an 

October 26, 2010, EPA rulemaking 

action pertaining to revisions to the SIP 

for the State of Ohio. On that date, EPA 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

7414 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules 

3See ‘‘Approval and Promulgation of Air Quality 

Implementation Plans; Ohio; Ohio Ambient Air 

Quality Standards; Proposed rule,’’ 75 FR 65594 

(October 26, 2010); ‘‘Approval and Promulgation of 

Air Quality Implementation Plans; Ohio; Ohio 

Ambient Air Quality Standards, Direct final rule,’’ 

75 FR 65572 (October 26, 2010). 

4See Letter from Chris Korleski, Director, Ohio 

EPA, to Bharat Mathur, Acting Regional 

Administrator, U.S. EPA Region V, dated September 

10, 2009. A copy of this letter and the attachment 

is located in the rulemaking docket for this 

proposal. 

5 Id. at page 1. 

6This error was reflected in 40 CFR 

52.1870(c)(151)(i)(A) which erroneously suggested 

that EPA had approved revisions to a version of 

OAC 3745–17–03 effective April 18, 2009, in its 

entirety, when this reference should have been 

limited to OAC 3745–17–03(A). This was an error 

as EPA did not and could not have approved the 

revision in toto in the October 26, 2010, action. EPA 

could only have approved the specific revision to 

the cross reference requested by the state and could 

not have approved other revisions not discussed or 

identified by the state in the SIP submission. In 

addition, EPA could not have approved any 

substantive revisions, regardless of whether the 

state requested them in the SIP submission, without 

adequate explanation of how such revisions would 

have been consistent with the requirements of 

section 110(l) and section 193. Moreover, this is 

especially the case as EPA has previously proposed 

disapproval of certain substantive changes in OAC 

3745–17–03(B) for numerous reasons including 

noncompliance with those statutory provisions. 

7See ‘‘Approval and Promulgation of Air Quality 

Implementation Plans; Ohio; Ohio Ambient Air 

Quality Standards; Correction, Final rule; correcting 

amendment,’’ 78 FR 19990 (April 3, 2013). 

8EPA elected to grant a petition for 

reconsideration that specifically requested EPA to 

use section 110(k)(6) to correct the error. See Letter 

from Robert Kaplan, Regional Counsel, Region 5 to 

Cheri Budzynski dated August 27, 2013. A copy of 

this letter is located in the rulemaking docket for 

this proposal. 

published both a proposal and a 

companion direct final rule, which 

addressed a SIP submission from the 

Ohio EPA dated September 10, 2009.3

The state’s September 10, 2009, SIP 

submission included a number of 

revisions submitted for EPA approval 

into the Ohio SIP, including 

amendments of some existing state 

rules, rescission and replacement of 

language in other existing state rules, 

and promulgation of a new state rule.4

The state asserted that the overarching 

purpose for these various revisions was 

‘‘to consolidate the state’s ambient air 

quality standards’’ and explicitly stated 

that the intent was ‘‘to consolidate 

Ohio’s [state regulations] into a single 

rule to provide greater accessibility for 

the regulated community and the 

citizens of Ohio.’’ 5

Among the existing state regulations 

revised in the SIP submission was OAC 

3745–17–03. The state gave no 

indication that it was revising OAC 

3745–17–03 substantively or seeking 

EPA approval of any substantive 

revisions to that state regulation; the 

only revision identified by the state in 

the SIP submission was a revision to a 

cross reference in OAC 3745–17–03(A). 

EPA’s October 26, 2010, action 

reflected EPA’s evaluation of the state’s 

SIP submission, and EPA’s approval of 

the various individual revisions 

requested by the state for the express 

purpose of consolidating the state’s 

regulations. Unfortunately, in approving 

the state’s SIP submission, EPA erred by 

publishing a notice which did not 

properly reflect the precise rule revision 

submitted by the state in OAC 3745–17– 

03. Specifically, the state’s SIP 

submission requested that EPA approve 

a revision to OAC 3745–17–03, which 

the state itself reflected in ‘‘redline and 

strikeout’’ as merely one isolated change 

in OAC 3745–17–03(A), i.e., the 

deletion of an existing cross reference to 

rule ‘‘3745–17–02’’ and the insertion of 

a replacement cross reference to rule 

‘‘3745–25–02.’’ The state did not redline 

any other revisions to OAC 3745–17–03 

in the version of the regulation attached 

to the SIP submission. The state neither 

identified nor requested any other 

specific substantive revisions to the 

version of OAC 3745–17–03 currently 

approved by EPA as part of the SIP. 

Likewise, EPA did not identify or 

discuss any other revisions to OAC 

3745–17–03 in the October 26, 2010, 

action. 

However, EPA stated in the October 

26, 2010, action that it ‘‘is approving the 

following Ohio Administrative Code 

rules: 3745–17–03 ‘Measurement 

methods and procedures’ . . . .’’ This 

statement was incorrect because it did 

not clearly describe the precise revision 

being approved by EPA and the 

erroneous omission of the citation to 

subsection ‘‘(A)’’ left the misimpression 

that EPA was approving more than the 

revised cross reference in OAC 3745– 

17–03(A). EPA also codified this change 

with an incorporation by reference 

described in the October 26, 2010, 

notice as ‘‘(A) Ohio Administrative 

Code Rule 3745–17–03 ‘Measurement 

methods and procedures’, effective 

April 18, 2009.’’ EPA should have 

explicitly limited that codification to 

OAC 3745–17–03(A). As evidenced by 

the lack of any evaluation or discussion 

of any substantive revisions to OAC 

3745–17–03 whatsoever, and in light of 

the then pending proposed disapproval 

of certain substantive revisions to OAC 

3745–17–03, it is evident that EPA did 

not intend, and could not have 

intended, to approve any revisions to 

OAC 3745–17–03 beyond the revised 

cross reference in OAC 3745–17–03(A). 

EPA subsequently discovered the 

error in the October 26, 2010, 

rulemaking when EPA noticed the 

incorrect codification of OAC 3745–17– 

03 in the Ohio SIP in early 2013.6 That 

incorrect codification wrongly suggested 

that EPA had approved revisions to 

OAC 3745–17–03 in toto, when it 

should have referred only to an 

approval of the revision to the cross 

reference in OAC 3745–17–03(A) as 

requested by Ohio. Accordingly, EPA 

published a final rule announcing the 

discovery of the error, explaining the 

error, and correcting the error, on April 

3, 2013.7 Within that April 3, 2013, 

action, EPA also explained its basis for 

concluding that notice and comment 

rulemaking was not necessary to correct 

the error in these specific circumstances 

and invoked the good cause exception 

to the requirement for notice and 

comment rulemaking under section 553 

of the Administrative Procedure Act, 5 

U.S.C. section 553(b)(B). 

In response to EPA’s April 3, 2013 

notice, one party filed a petition for 

reconsideration requesting that EPA 

reconsider its procedure in this matter 

and requesting that EPA instead proceed 

using the SIP error correction procedure 

of section 110(k)(6) of the CAA. The 

same party and other parties also filed 

petitions for review challenging the 

April 3, 2013 action, likewise reflecting 

their views that EPA should use the 

procedure of section 110(k)(6) to 

address the error in the October 26, 

2010, rulemaking. 

Although EPA believes that the 

Administrative Procedures Act 

authorizes action without notice and 

comment in circumstances such as 

those presented in this particular 

situation, EPA has nevertheless elected 

to correct the error in the October 26, 

2010, action through a notice and 

comment procedure using the explicit 

authority of section 110(k)(6) in this 

action.8 Based upon the apparent 

confusion caused by EPA’s error as 

reflected in the petitions, EPA believes 

that proceeding pursuant to section 

110(k)(6) at this time will provide 

interested parties an opportunity to 

provide comment and will better serve 

the intended purpose of eliminating any 

potential misunderstandings. 

Except for this specific error 

identified in this proposed action under 

section 110(k)(6), EPA is not revising its 

action in the October 26, 2010, action. 

EPA is not aware of any other errors 

associated with that action. 

III. What was the error? 

A. What was the error in description 

and codification? 

EPA’s October 26, 2010, action was in 

error. In acting upon the September 10, 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules 7415 

9EPA notes that 40 CFR 52.1870(151)(i)(A) 

currently refers to an incorporation by reference of 

‘‘Ohio Administrative Code Rule 3745–17–03(A) 

‘Measurement methods and procedures.’, effective 

April 18,2009.’’ This incorporation by reference is 

thus now correct in the Code of Federal 

Regulations. 

10A copy of the September 10, 2009, SIP 

submission is located in the docket for this 

proposal. 

11See ‘‘Rule Summary and Fiscal Analysis (Part 

A),’’ dated April 8, 2009, 8:07 a.m., submitted by 

the state in Article III, Attachment B, RSFAs, as an 

attachment to the September 10, 2009, SIP 

submission. A copy of the entire SIP submission is 

in the docket for this proposal. 

2009, SIP submission from the State of 

Ohio, EPA’s notice of direct final 

rulemaking incorrectly indicated that 

the Agency was approving revisions to 

‘‘OAC 3745–17–03’’ when the notice 

should have explicitly indicated that 

EPA was only approving the revised 

cross reference in OAC 3745–17–03(A). 

For the reasons discussed below, EPA 

did not approve more than the revision 

of the cross reference in OAC 3745–17– 

03(A) in the October 26, 2010, action, 

but EPA’s notice inadvertently did not 

make that point clearly. 

EPA’s lack of precision in the 

preamble and in the codification in the 

October 26, 2010, action led to an 

incorrect codification in 40 CFR 

52.1870, which erroneously could have 

suggested that EPA had approved 

substantive revisions to OAC 3745–17– 

03 in the Ohio SIP beyond the mere 

requested revision to the cross reference 

in OAC 3745–17–03(A).9 EPA needs to 

correct this codification error in order to 

assure that all parties, including 

regulators, regulated entities, and 

citizens are not confused by the error in 

the October 26, 2010, action. 

EPA believes that this is precisely the 

type of scenario in which Congress has 

given EPA explicit authority to revise 

prior erroneous actions pursuant to 

section 110(k)(6). Accordingly, EPA is 

proposing to determine that its October 

26, 2010, action was in error to the 

extent that it appeared to approve 

revisions to OAC 3745–17–03, beyond 

the mere approval of the revised cross 

reference in OAC 3745–17–03(A). 

Even if EPA’s mere failure to include 

the specific reference to subsection 

‘‘(A)’’ of OAC 3745–17–03 in the 

October 26, 2010, action could have 

accidentally and unintentionally 

resulted in an approval of all of the 

other substantive changes in the version 

of OAC 3745–17–03 that the state failed 

to discuss or identify in the September 

10, 2009, SIP submission, and that EPA 

failed to discuss or identify in its 

October 26, 2010, action, that would 

also have been in error as EPA cannot 

approve such substantive SIP revisions 

without proposing to do so, explaining 

the proposal, taking comment on the 

proposal, responding to comment on the 

proposal, and explaining the final 

approval. EPA could not have approved 

other substantive revisions claimed by 

some parties sub silentio. 

B. What precipitated this error? 

The error at issue resulted from a 

combination of causes, related to 

unintended ambiguities in both the 

state’s SIP submission and EPA’s 

October 26, 2010, action upon that SIP 

submission. The ambiguities in the 

September 10, 2009, SIP submission 

include: (i) The state’s cover letter 

referred to the amendment of ‘‘OAC 

3745–17–03’’ without highlighting that 

the actual requested amendment at issue 

was only in OAC 3745–17–03(A); (ii) 

the state’s cover letter requested that 

EPA ‘‘accept the new and amended 

rules as replacements for the rules 

currently in our SIP’’ but without 

enumerating the specific revised 

subsections for such replacements; and 

(iii) although the state did include a 

redline/strikeout version to reflect the 

specific amendment in question, the 

state provided a redline/strikeout 

version against a version of OAC 3745– 

17–03 that was not the current version 

of OAC 3745–17–03 approved by EPA 

in the SIP.10 The confusion injected by 

the state’s use of a baseline version of 

OAC 3745–17–03 significantly different 

from the version that had been approved 

by EPA as part of the Ohio SIP, and 

failing to identify these differences, 

evidently led some parties to believe 

that EPA had approved substantive 

revisions to OAC 3745–17–03 beyond 

those actually approved by EPA, 

including certain provisions that EPA 

had expressly previously proposed to 

disapprove. 

Notwithstanding any ambiguity in the 

state’s SIP submission, however, EPA 

should have noted the ambiguities and 

should have been clearer in describing 

its own actions in the October 26, 2010, 

action. In acting upon the specific 

revision to OAC 3745–17–03 at issue in 

the September 10, 2009, SIP submission, 

EPA should have: (i) Explicitly 

articulated that it was evaluating and 

approving only the revision to the 

replaced cross reference in OAC 3745– 

17–03(A) identified in the SIP 

submission by the state; (ii) correctly 

referred to and cited 3745–17–03(A) 

specifically in the notice and the 

codification, rather than OAC 3745–17– 

03 in general; (iii) should have noticed 

and addressed the fact that the version 

of OAC 3745–17–03 that the state used 

as the baseline from which it identified 

revisions was not the current approved 

version in the Ohio SIP; and (iv) should 

have noted the pending proposed 

disapproval of certain substantive 

revisions to OAC 3745–17–03 from 

another prior SIP submission. The 

confusion injected in part by EPA’s 

failure to notice and address the 

significant unnoted substantive 

differences between the SIP version and 

the submitted version of OAC 3745–17– 

03 led some parties to take the position 

that EPA had approved substantive 

revisions to OAC 3745–17–03 beyond 

those actually approved by EPA. 

C. Why was it evident that this was an 

error? 

EPA believes that it should have been 

apparent that the October 26, 2010, 

action contained an error. First, 

although the state’s September 10, 2009, 

SIP submission appeared to request that 

EPA approve ‘‘OAC 3745–17–03’’ in its 

entirety instead of being clear that only 

the cross reference in OAC 3745–17– 

03(A) was at issue, the attached redline/ 

strikeout version of the rule included in 

the SIP submission highlighted only the 

replaced cross reference OAC 3745–17– 

03(A). The state identified no other 

revisions to OAC 3745–17–03, either in 

its description of the revision or in the 

redline/strikeout version of the 

regulation. Moreover, the ‘‘Rule 

Summary and Fiscal Analysis’’ 

submitted as part of the state’s 

September 10, 2009, submission 

explicitly stated that the purpose of the 

state’s own regulatory revision to OAC 

3745–17–03 was ‘‘to update a citation to 

OAC rule 3745–17–02 in paragraph 

(A).’’ 11 The single minor redlined 

change highlighted in the SIP 

submission, in the context of the state’s 

explicitly stated intent merely to 

consolidate OAC 3745–17–03 along 

with other rules, should have been a 

clear indication that the state did not 

consciously intend to make more 

substantive revisions to OAC 3745–17– 

03, nor that EPA consciously intended 

to approve any such substantive 

revisions, in the October 26, 2010, 

action. 

Second, the version of OAC 3745–17– 

03 submitted by the state as part of the 

SIP submission did not reflect or 

identify revisions relative to the version 

of that rule that had actually been 

approved by EPA into the SIP. The 

version of OAC 3745–17–03 that had 

been approved by EPA into the Ohio SIP 

was the version effective in the state as 

of January 31, 1998, approved by EPA 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

7416 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules 

12See ‘‘Approval and Promulgation of 

Implementation Plans; Ohio Particulate Matter,’’ 72 

FR 58523 (Oct. 16, 2007). This 2007 action 

pertained to a SIP revision that the state submitted 

on July 18, 2000. This specific SIP submission 

preceded the revisions that the state submitted to 

EPA on June 4, 2003, that EPA has proposed to 

disapprove. The only revision to OAC 3745–17–03 

that EPA has approved since 2007 is the revision 

to amend the cross reference in OAC 3745–17– 

03(A). 

13See ‘‘Approval and Disapproval of Ohio 

Implementation Plan for Particulate Matter; 

Proposed Rule,’’ 70 FR 36901 (June 27, 2005). The 

June 4, 2003, SIP submission was not at issue in 

EPA’s October 26, 2010, action, and is not at issue 

here. 

14EPA notes that commenters on the Agency’s 

June 27, 2005, proposed disapproval of certain 

substantive revisions to OAC 3745–17–03 included 

the Ohio Chamber of Commerce, the Ohio EPA, and 

representatives of various industry groups. 

Accordingly, EPA presumes that some parties are 

familiar with that proposed disapproval and would 

have noted that none of the comments concerning 

the prior disapproval were addressed in the October 

26, 2010, action, including their own. The 

substance of those comments is not germane to this 

action, but EPA includes those comment letters in 

the docket for this action solely for the purpose of 

illustrating that some parties would have been 

aware of the significance of the substantive 

revisions in OAC 3745–17–03 that EPA did not 

intend to approve on October 26, 2010. 

on October 16, 2007.12 EPA has not 

approved a substantive revision to OAC 

3745–17–03 (or any other revision 

beyond the referencing revision in 

paragraph A) since that time. The later 

version of OAC 3745–17–03 mistakenly 

used in the state’s September 10, 2009, 

SIP submission as a baseline for 

identifying revisions has substantial 

differences from the version previously 

approved by EPA into the SIP. EPA’s 

October 26, 2010, action did not include 

any discussion whatsoever of these 

differences between the version of OAC 

3745–17–03 that had been approved by 

EPA in the Ohio SIP and the later 

version that the state used as a baseline 

in its September 10, 2009, SIP 

submission. Those differences are 

significant and substantive, e.g., the 

provisions that address compliance 

methods for opacity standards 

applicable to certain stationary sources, 

for which the unapproved revisions 

would allow significantly more opacity 

during certain periods. Such significant 

and substantive revisions to the existing 

approved version of OAC 3745–17–03, 

even if valid, would have required an 

analysis under section 110(l) and 

section 193, as appropriate, to support 

approval. The state’s September 10, 

2009, SIP submission contained no such 

analysis. EPA would have needed to 

provide an explanation of this analysis 

in the October 26, 2010, action or in the 

administrative record supporting that 

action. EPA provided no such analysis 

because it did not intend to approve 

those substantive changes to OAC 3745– 

17–03, merely the revision to the cross 

reference in OAC 3745–17–03(A). The 

absence of any such analysis should 

have been a clear indication that EPA 

was not approving any revisions to OAC 

3745–17–03 beyond the cross reference. 

Third, there is a pending rulemaking 

in which EPA proposed to disapprove 

certain substantive revisions to OAC 

3745–17–03 contained in a June 4, 2003, 

SIP submission, during which EPA 

received comments both supporting and 

opposing the proposed disapproval.13

The fact that EPA neither referred to 

that prior proposed disapproval action, 

nor responded to any of the comments 

that pertain to that prior proposed 

action in the October 26, 2010, notice, 

is further evidence that EPA did not and 

could not have approved any 

substantive revisions to OAC 3745–17– 

03 and could only have intended to 

approve the revisions to the cross 

reference in OAC 3745–17–03(A). Basic 

principles of administrative law, under 

both the CAA and the Administrative 

Procedures Act, require an agency to 

respond to significant adverse 

comments on a proposed action as part 

of notice and comment rulemaking, and 

it would have been improper for EPA to 

ignore the comments on the prior 

proposed disapproval of substantive 

revisions to OAC 3745–17–03. This 

absence of responses to comments on 

such significant substantive changes 

should have been a clear indication that 

EPA was in fact not intending to 

approve those revisions, and could only 

be approving the limited revision to the 

cross reference in OAC 3745–17–03(A), 

in the October 26, 2013, action.14

Given the foregoing facts, EPA 

believes that its October 26, 2010, action 

with respect to OAC 3745–17–03 was 

clearly in error. EPA could not have 

approved any revision, except with 

respect to the revision to the cross 

reference in OAC 3745–17–03(A) 

specifically requested by the state in the 

SIP submission. Moreover, given the 

context, EPA believes that the error 

should have been evident at the time of 

the action. The foregoing facts form the 

basis for EPA’s proposed determination 

that the October 26, 2010, action was in 

error. 

IV. What action is EPA taking? 

Pursuant to section 110(k)(6), EPA is 

proposing to determine that its October 

26, 2010, rulemaking was in error to the 

extent that it appeared to approve 

revisions to OAC 3745–17–03 beyond 

the revision to the cross reference in 

OAC 3745–17–03(A). Through today’s 

action, EPA is proposing to clarify that 

in the October 26, 2010, action, EPA did 

not approve any revisions to OAC 3745– 

17–03 except for the specific revision to 

the cross reference in OAC 3745–17– 

03(A) requested by the state. But for that 

change, the currently applicable version 

of OAC 3745–17–03 in the Ohio SIP is 

the version effective in the state on 

January 31, 1998, approved by EPA on 

October 16, 2007. The currently 

applicable version of OAC 3745–17–03 

in the Ohio SIP does not contain any 

revisions addressed in EPA’s proposed 

approval and disapproval on June 27, 

2005. 

On April 3, 2013, EPA used its 

authority under section 553 of the 

Administrative Procedures Act to 

amend the erroneous codification in its 

October 26, 2010, rulemaking without 

notice and comment rulemaking to 

reflect more clearly that EPA had only 

approved the one isolated revision 

requested by the state in OAC 3745–17– 

03, i.e, the revision of the cross 

reference in OAC 3745–17–03(A). That 

corrected codification is already 

reflected in the CFR, i.e., the status quo 

is that the codification is correct. In 

response to a petition for 

reconsideration, EPA is proposing today 

to correct the misleading codification as 

an error pursuant to section 110(k)(6) 

rather than rely on the corrected 

codification identified in the April 3, 

2013, final action. 

EPA is soliciting comment on this 

proposed action under section 110(k)(6). 

By this means, EPA is taking proposed 

action to correct the erroneous 

codification of its October 26, 2010, 

rulemaking by clarifying that the only 

portion of Ohio’s submittal on 

September 10, 2009, of OAC 3745–17– 

03 that should be codified as approved 

by EPA is OAC 3745–17–03(A). To 

reiterate, the only revision that EPA 

approved to OAC 3745–17–03 in the 

October 26, 2010, action is the revised 

cross reference in OAC 3745–17–03(A). 

EPA believes that the facts set forth in 

this proposal demonstrate clearly that 

the October 26, 2010, action was in error 

to the extent that it appeared to approve 

revisions to OAC 3745–17–03 beyond 

the revision to the cross reference in 

OAC 3745–17–03(A). If EPA takes final 

action as proposed in this notice, EPA 

will also reaffirm the codification of 

OAC 3745–17–03(A) in 40 CFR 52.1870 

(c)(151)(i)(A). EPA is not reconsidering 

its October 26, 2010, action with respect 

to any other issues. EPA is also not in 

this rulemaking addressing the 

substance of provisions of OAC 3745– 

17–03 other than paragraph (A), which 

are outside the scope of the revision 

requested in the state’s September 10, 

2009, SIP submission and EPA’s 

October 26, 2010, rulemaking. In 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Proposed Rules 7417 

particular, any substantive revisions to 

OAC 3745–17–03, including any 

revisions to OAC 3745–17–03(B)(1), are 

not at issue in this rulemaking. Only 

comments regarding EPA’s correction of 

the error in the October 26, 2010, action 

are germane to this rulemaking under 

section 110(k)(6). 

EPA notes that it is neither staying 

nor revoking the correction action in the 

April 3, 2013, notice, because that could 

be misleading to regulated entities, 

regulators, and members of the public 

alike. Because the error in the October 

26, 2010, action was in essence a 

typographical error, and because there 

was no actual approval of any revisions 

to OAC 3745–17–03 other than the 

revised cross reference in OAC 3745– 

17–03(A), the previously approved 

version of the remainder of OAC 3745– 

17–03 remains in effect in the Ohio SIP. 

Based upon the still pending proposed 

disapproval of certain substantive 

revisions to OAC 3745–17–03, EPA 

believes that parties such as regulated 

entities affected by those substantive 

revisions would be well aware of this 

fact, but not all other parties should be 

expected or presumed to have this 

degree of understanding or 

responsibility to be informed. While 

EPA is pursuing correcting action under 

authority of CAA section 110(k)(6), to 

supersede the correcting action under 

the Administrative Procedures Act, that 

EPA published on April 3, 2013, EPA 

anticipates that the codification as 

corrected pursuant to section 110(k)(6) 

will replicate the codification as 

corrected on April 3, 2013. Accordingly, 

EPA is not staying or revoking the 

correction in the April 3, 2013, action, 

in the interim during this rulemaking 

under section 110(k)(6). The April 3, 

2013, action will become moot once 

EPA takes final action on today’s 

proposal. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. This action merely corrects an 

error in EPA’s prior action and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

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: January 13, 2014. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2014–01319 Filed 2–6–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR PART 82 

[FRL–9906–16–OAR] 

Request for Public Engagement in the 

Interagency Special Report on the 

Impacts of Climate Change on Human 

Health in the United States 

AGENCY: U.S. Environmental Protection 

Agency (EPA) on behalf of the United 

States Global Change Research Program 

(USGCRP). 

ACTION: Request for Public Submissions 

of Comments on a Draft Report 

Prospectus, Information, and 

Contributing Author Nominations, and 

Notice of a Public Forum. 

SUMMARY: As part of the President’s 

Climate Action Plan and ongoing efforts 

within the US Global Change Research 

Program (USGCRP), the Interagency 

Crosscutting Group on Climate Change 

and Human Health (CCHHG) and a 

subset of the Interagency National 

Climate Assessment Working Group 

(INCA) have initiated an interagency 

Special Report on the impacts of 

observed and projected climate change 

on human health in the United States. 

This data-driven technical synthesis and 

assessment will be an interagency 

product of the USGCRP organized by 

the CCHHG. This request for public 

engagement presents opportunities to 

submit comments on the Draft Report 

Prospectus, scientific information to 

inform the assessment, and nominations 

for contributing authors, and announces 

a Public Forum to Inform the 

Interagency Special Report on the 

Impacts of Climate Change on Human 

Health in the United States. 

DATES: Comments: Comments on the 

draft prospectus, information to inform 

the Special Report, and contributing 

author nominations may be submitted 

during a 30-day period beginning March 

1, 2014. All submissions should be 

received by USGCRP on or before 11:59 

p.m. Eastern Time. March 31, 2014. The 

Public Forum will be held March 13, 

2013 from 10 a.m.–5 p.m. Eastern Time. 

Public Forum: The Public Forum, 

organized by the CCHHG, will be held 

on March 13, 2014. 

ADDRESSES: The March 13, 2014 Public 

Forum will be held at the EPA William 

Jefferson Clinton East building, Room 

1153, 1301 Constitution Avenue NW., 

Washington, DC 20460. To register, 

please follow the detailed instructions 

as provided below. 

Information in response to the 

Request for Comments on the Draft 

mstockstill on DSK4VPTVN1PROD with PROPOSALS