[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Rules and Regulations]
[Pages 8496-8500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3831]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2004-OH-0004; FRL-9107-4]


Approval and Promulgation of Implementation Plans; Ohio New 
Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the prevention of significant 
deterioration (PSD) and nonattainment new source review (NSR) 
construction permit programs to the Ohio State Implementation Plan 
(SIP) based on the State's November 15, 2005, letter. The Ohio 
Environmental Protection Agency (OEPA) is seeking approval of its rules 
to implement the NSR Reform provisions that were not vacated by the 
United States Court of Appeals for the District of Columbia (DC 
Circuit) in New York v. EPA. EPA proposed approval of these rules on 
May 11, 2005 and received adverse comments. In this action, EPA 
responds to these comments and announces EPA's final rulemaking action. 
This action affects major stationary sources in Ohio that are subject 
to or potentially subject to the PSD and NSR construction permit 
programs.

DATES: This final rule is effective on March 29, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2004-OH-0004. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://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 Genevieve 
Damico, Environmental Engineer, at (312) 353-4761 before visiting the 
Region 5 office.

FOR FURTHER INFORMATION CONTACT: Genevieve Damico, Environmental 
Engineer, Air Permit Section, Air Programs Branch (AR-18J), EPA Region 
5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4761, 
<a href="/cdn-cgi/l/email-protection#5b3f3a36323834753c3e353e2d323e2d3e1b3e2b3a753c342d"><span class="__cf_email__" data-cfemail="dfbbbeb2b6bcb0f1b8bab1baa9b6baa9ba9fbaafbef1b8b0a9">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What Is Being Addressed by This Document?
II. What Sections of Ohio's Rules Are We Approving in Today's 
Action?
III. How Has This Rulemaking Been Affected by the June 24, 2005 DC 
Circuit Court of Appeals?
IV. What Are EPA's Responses to Adverse Comments?
V. What Action Is EPA Taking Today?
VI. Statutory and Executive Order Review

I. What Is Being Addressed by This Document?

    We are partially approving revisions to the PSD and nonattainment 
NSR construction permit programs of the State of Ohio. EPA fully 
approved Ohio's nonattainment NSR program on January 10, 2003 (68 FR 
1366). EPA fully approved Ohio's PSD program on January 22, 2003 (68 FR 
2909).
    On December 31, 2002, EPA published revisions to the Federal PSD 
and NSR regulations in 40 CFR Parts 51 and 52 (67 FR 80186). These 
revisions are commonly referred to as ``NSR Reform'' regulations and 
became effective on March 3, 2003. These regulatory revisions include 
provisions for baseline emissions determinations, actual-to-future 
actual methodology, plantwide applicability limits (PALs), clean units, 
and pollution control projects (PCPs). As stated in the December 31, 
2002, EPA rulemaking, State and local permitting agencies must adopt 
and submit revisions to their part 51 permitting programs implementing 
the minimum program elements of that rulemaking no later than January 
2, 2006 (67 FR 80240). OEPA submitted these regulatory revisions for 
parallel processing on September 14, 2004, which was prior to final 
adoption of the State rules. Ohio adopted the final rules on October 
28, 2004. EPA proposed conditional approval of these rules on May 11, 
2005 (70 FR 24734). On June 24, 2005, the United States Court of 
Appeals for the District of Columbia Circuit issued its ruling on 
challenges to the December 2002 NSR reform revisions. New York v. EPA, 
413 F.3d 3 (DC Cir. 2005). Although the court did uphold most of EPA's 
rules, it vacated both the clean unit and the PCP provisions. As a 
result of this court ruling, OEPA submitted a letter to EPA on November 
15, 2005, amending its request for approval of Ohio's rule. 
Specifically, Ohio withdrew its request for approval of the clean units 
and PCP portions of the Ohio rules.

II. What Sections of Ohio's Rules Are We Approving in Today's Action?

Ohio Administrative Code (OAC) 3745-31-01 Definitions

Definitions Unchanged From Proposal
    In accordance with the May 11, 2005 proposal, EPA is approving the 
definitions for actual emissions, actuals PAL, baseline actual 
emissions, baseline concentration, best available control technology, 
continuous emission monitoring system, continuous emissions rate 
monitoring system, continuous parameter monitoring system, emission 
unit, lowest achievable emission rate, major source baseline date, 
major stationary source, minor source baseline, new source review 
project, nonattainment or nonattaiment area, nonattainment new source 
review permit, PAL allowable emissions, PAL effective date, PAL 
effective period, PAL major emissions unit, PAL major modification, PAL 
permit, PAL pollutant, PAL significant emissions unit, PAL small 
emissions unit, particulate matter, particulate matter emissions, 
plantwide applicability limit, PM10, PM10 emissions, total suspended 
particulate, pollution prevention, predictive emissions monitoring 
system, prevention of significant deterioration increment, prevention 
of significant deterioration permit, projected actual emission, 
regulated NSR pollutant, replacement unit, representative actual annual 
emissions, significant emissions increase, and stationary source in OAC 
3745-31-01(C), (D), (O), (Q), (S), (EE), (FF), (GG), (MM), (FFF), 
(JJJ), (KKK), (NNN), (UUU), (VVV), (WWW), (CCCC), (DDDD), (EEEE), 
(FFFF), (GGGG), (HHHH), (IIII), (JJJJ), (KKKK), (LLLL), (MMMM), (OOOO), 
(PPPP), (QQQQ), (UUUUU), (SSSS), (VVVV), (WWWW), (XXXX), (ZZZZ), 
(DDDDD), (EEEEE), (KKKKK), (LLLLL), and (PPPPP) respectively. EPA is 
also approving the definitions in OAC 3745-31-01, the non-40 CFR 51.166 
and 51.165 definitions in OAC 3745-31-01 (E), (J), (M), (X), (JJ), 
(QQ), (DDD), (EEE), (XXX), (HHHHH), and (XXXXX) and the minor revisions 
to the definitions for ``available information'', ``baseline area'', 
``baseline concentration'', ``best available

[[Page 8497]]

technology'', ``Clean Air Act'', ``Clean Coal Technology'', ``Clean 
Coal Technology Demonstration Project'', ``Construction'', 
``facility'', ``non-methane organic compound'', ``Non-road engine'', 
and ``Temporary clean coal demonstration project'', in accordance with 
the May 11, 2005 proposal.
    In a November 15, 2005 letter, OEPA withdrew its request for 
approval of the definitions for ``clean unit'' and ``PCP'' found in OAC 
3745-31-01(Y) and OAC 3745-31-01(RRRR) respectively. EPA does not 
approve these definitions into the SIP.
Definition of Major Modification
    In the November 15, 2005 letter, OEPA withdrew its request for 
approval into the SIP of the emission test for NSR projects that 
involve clean units and exclusion of a PCP from a physical change or 
change in the method of operation from the definition of major 
modification found in OAC 3745-31-01(III)(4)(c) and (5)(h) 
respectively. OEPA also withdrew the phrase ``3745-31-31 and'' from the 
comment in OAC 3745-31-01(III)(2) and the sentence ``For example, if a 
NSR project involves both an existing emissions unit and a clean unit, 
the projected increase is determined by summing the values determined 
using the method specified in paragraph (III)(4)(a) of this rule for 
the existing unit and using the method specified in paragraph 
(III)(4)(c) of this rule for the clean unit.'' from OAC 3745-31-
01(III)(4)(d). EPA is approving the definition of ``major 
modification'' in OAC 3745-31-01(III) with the exception of the 
portions withdrawn by OEPA in the November 15, 2005 letter.
Definition of Net Emissions Increase
    In the November 15, 2005 letter, OEPA withdrew its request for 
approval of the exemption of increases or decreases in clean units from 
the determination of a net emissions increase and the requirements for 
credibility of decreases in emissions from clean units and PCPs when 
determining a net emissions increase found in OAC 3745-31-01(SSS)(3)(d) 
and OAC 3745-31-01(SSS)(3)(f)(iv) respectively. EPA is approving into 
the SIP the definition of ``net emissions increase'' in OAC 3745-31-
01(SSS) with the exception of the portions withdrawn by OEPA in the 
November 15, 2005 letter.
Incorporation by Reference
    In the November 15, 2005 letter, OEPA withdrew its request for 
approval into the SIP the reference to 68 FR 61276, October 27, 2003 in 
OAC 3745-31-01(ZZZZZ)(2)(h). This is a reference to the vacated 
equipment replacement provisions (ERP). Ohio's rules do not contain any 
implementing language for the ERP. OEPA committed in its November 15, 
2005 letter to remove the reference to the ERP by June 2006. EPA is 
approving OAC 3745-31-01(ZZZZZ) with the exception of the reference to 
68 FR 61276, October 27, 2003 in OAC 3745-31-01(ZZZZZ)(2)(h).

OAC 3745-31-09: Air Permit To Install Completeness Determinations, 
Public Participation and Public Notice

    EPA is approving OAC 3745-31-09 as proposed on May 11, 2005.

OAC 3745-31-10 Air Stationary Source Obligations

    In the November 15, 2005 letter, OEPA withdrew its request for 
approval of the phrase ``3745-31-30 to'' from OAC 3745-31-10(B) and the 
phrase ``at a clean unit or'' from OAC 3745-31-10(C). EPA is approving 
OAC 3745-31-10 into the SIP with the exceptions of these two phrases.
    OAC 3745-31-10(C) specifies record keeping and reporting 
requirements for sources that elect to use the actual-to-projected-
actual emission test and where there is a reasonable possibility that a 
project may result in a significant net emissions increase. In 2005, in 
New York v. EPA, the DC Circuit Court remanded to EPA this provision of 
the Federal rule (40 CFR 52.21(r)(6)) because ``EPA has failed to 
explain how it can ensure NSR compliance without the relevant data'' in 
the circumstances where a facility concludes that a significant 
emissions increase is not a reasonably possible. 413 F.3d at 35-36. As 
stated in the November 15, 2005 letter, OEPA believes its rules 
addressed the court's decision remanding the record keeping and 
reporting requirements when there is not ``reasonable possibility'' of 
a significant emissions increase. Ohio incorporated a requirement that 
all facilities ``where the sum of the Federally enforceable potential 
to emit of the new or modified emissions units associated with the NSR 
project prior to the issuance of the NSR project's [minor NSR] permit-
to-install is greater than any one of the significant levels found in 
the significant definition of rule 3745-31-01 of the Administrative 
Code'' must record and submit the documents required under the original 
rule regardless of a reasonable possibility determination.
    EPA promulgated regulations to clarify the ``reasonable 
possibility'' record keeping and reporting standard of the 2002 NSR 
reform rules on December 21, 2007 (72 FR 72607). EPA's rules allow 
permitting authorities three years to incorporate these changes. Ohio 
has three years to change OAC 3745-31-10 to meet the requirements of 
the December 21, 2007 rulemaking.

OAC 3745-31-13 Attainment Provisions--Review of Major Stationary 
Sources and Major Modifications, Stationary Source Applicability and 
Exemptions

    EPA is approving OAC 3745-31-13 as proposed on May 11, 2005.

OAC 3745-31-15 Attainment Provisions--Control Technology Review

    EPA is approving OAC 3745-31-15 as proposed on May 11, 2005.

OAC 3745-31-21 Nonattainment Provisions

    EPA is approving OAC 3745-31-21 as proposed on May 11, 2005.

OAC 3745-31-22 Nonattainment Provisions--Conditions for Approval

    In the November 15, 2005 letter, OEPA withdrew its request for 
approval for the exclusion of clean unit or PCP emission reductions 
from use in determining emissions offsets found in OAC 3745-31-
22(A)(3)(e) and (A)(3)(f). EPA is approving OAC 3745-31-22 with the 
exception of OAC 3745-31-22(A)(3)(e) and (A)(3)(f).

OAC 3745-31-24 Nonattainment Provisions--Baseline for Determining 
Credit for Emission and Air Quality Offsets

    EPA is approving OAC 3745-31-24 as proposed on May 11, 2005.

OAC 3745-31-26 Nonattainment Provisions--Offset Ratio Requirements

    EPA is approving OAC 3745-31-26 as proposed on May 11, 2005.

OAC 3745-31-30 Clean Units

    In the November 15, 2005 letter, OEPA withdrew its request for 
approval for OAC 3745-31-30 in its entirety. By removing OAC 3745-31-30 
from the request for approval and its rules, the portions of OAC 3745-
31 which were the basis for proposing conditional approval in the May 
11, 2005 Federal Register are no longer under consideration by EPA. EPA 
is not approving OAC 3745-31-30 into the SIP.

OAC 3745-31-31 Pollution Control Project

    In the November 15, 2005 letter, OEPA withdrew its request for 
approval for OAC 3745-31-31 in its entirety. EPA is not approving OAC 
3745-31-31 into the SIP.

[[Page 8498]]

OAC 3745-31-32 Plantwide Applicability Limit (PAL)

    EPA is approving OAC 3745-31-32 as proposed on May 11, 2005.

III. How Has This Rulemaking Been Affected by the June 24, 2005 DC 
Circuit Court of Appeals?

    On June 24, 2005, the United States Court of Appeals for the 
District of Columbia Circuit issued its ruling on challenges to the 
December 2002 NSR reform revisions. New York v. EPA, 413 F.3d 3 (DC 
Cir. 2005). Although the Court did uphold most of EPA's rules, it 
vacated both the clean unit and the PCP provisions. As a result of this 
court ruling, OEPA submitted a letter to EPA on November 15, 2005, 
amending its request for approval of Ohio's rule. Specifically, Ohio 
withdrew its request for approval of the clean unit and PCP portions of 
the Ohio rules. By removing the clean unit provisions from the request 
for approval and its rules, the portions of OAC 3745-31 which were the 
basis for proposing conditional approval in the May 11, 2005 Federal 
Register are no longer under consideration by EPA. Therefore, the basis 
for proposing conditional approval instead of approval is no longer 
present. EPA is instead partially approving Ohio's rules in this action 
with no conditions.

IV. What Are EPA's Responses to Adverse Comments?

    EPA received comments in support of Ohio's rules, as well as 
adverse comments. Several commenters provided comments on the May 11, 
2005 proposal prior to the June 24, 2005 court ruling. Therefore, the 
comments do not reflect the DC Circuit Court decision. This final 
action takes into consideration the court's ruling on the Federal NSR 
reform regulations. Therefore, Ohio's approved SIP is consistent with 
the Federal NSR reform regulations. This action discusses three 
significant adverse comments. However, EPA responds to all adverse 
comments in three documents that can be found in the docket for this 
action. These documents are: Response to Comments of the National 
Resources Defense Council to EPA's Proposed Rule to Conditionally 
Approve Ohio's Changes to Its New Source Review Rules, Response to the 
State of Vermont's Comments, and Response to Comments of the Ohio 
Environmental Council to EPA's Proposed Rule to Conditionally Approve 
Ohio's Changes to its New Source Review Rules.

A. Provisions in Ohio's Submission Cause the State's Revised Plan To 
Interfere With Applicable Requirements Concerning Attainment and 
Reasonable Further Progress

    Commenters express concern that the EPA has never made, or even 
proposed to make, a finding that revising Ohio's permit provisions so 
that they track the non-vacated provisions of the 2002 rules ``would 
not interfere with attainment or other applicable requirements.'' 
Commenters state that neither Ohio nor EPA has analyzed the particular 
impact of each part of the rule, much less the particular impact that 
each part's adoption by Ohio would have on that State's compliance with 
the requirements that it provide for attainment, prohibit emissions 
that interfere with attainment or maintenance of the National Ambient 
Air Quality Standards (NAAQS), and require reasonable further progress 
toward expeditious attainment. Therefore, commenters believe that 
finalizing the EPA rulemaking proposal at issue here would violate 
section 110(1) of the Clean Air Act (CAA).
    EPA responds that Section 110(l) of the CAA states that ``[t]he 
Administrator shall not approve a revision of a plan if the revision 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress * * * or any other applicable 
requirement of this chapter.'' 42 U.S.C. 7410(l).
    In ``Approval and Promulgation of Implementation Plans; NSR; State 
of Nevada, Clark County Department of Air Quality and Environmental 
Management'', 69 FR 54006 (Sept. 7, 2004), EPA stated that section 
110(l) does not preclude SIP relaxations. EPA stated that Section 
110(l) only requires that the ``relaxations not interfere with 
specified requirements of the CAA including requirements for attainment 
and reasonable further progress'', and that therefore, a State can 
relax its SIP provisions if it is able to show that it can ``attain or 
maintain the NAAQS and meet any applicable reasonable further progress 
goals or other specific requirements.'' 69 FR 54011-12.
    The Ohio Proposed NSR Reform Rules track the Federal NSR Reform 
Rules, and EPA previously determined that the implementation of the 
Federal NSR Reform Rules will be environmentally beneficial. (See 68 FR 
44620 and 63021). EPA's Supplemental Analysis for the Federal NSR 
Reform Rules estimated that there are likely to be reductions in 
emissions of volatile organic compounds (VOC) due to the use of PALs. 
Using the same methodology used in the Supplemental Analysis to assess 
the emissions benefits of the Ohio's NSR Reform Rules in Ohio as EPA 
used to assess the benefits nationally, we conclude that the PAL option 
would result in a net reduction of VOC emissions.
    It is more difficult to assess the environmental impacts of the 
actual-to-projected-actual test and the ``2 in 10'' baseline 
provisions. The Supplemental Analysis determined that there is a slight 
national environmental benefit brought about by these NSR reform 
provisions. However, in Ohio, sources undergoing construction which are 
not subject to the best available control technology or lowest 
achievable emission reduction NSR requirements will need to comply with 
Ohio's best available technology provisions under OAC 3745-31-05(A)(3).
    Overall, we expect changes in air quality as a result of 
implementing PALs, the actual-to-projected-actual test, and the ``2 in 
10'' baseline provisions in Ohio to be somewhere between neutral and 
providing modest contribution to reasonable further progress. 
Accordingly, EPA determines that these changes will not interfere with 
any applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement of the CAA.

B. Provisions in Ohio's Submission Cause the State's Revised Plan To 
Interfere With Applicable Requirements Concerning Backsliding in 
Nonattainment Areas.

    Commenters expressed concern that EPA's approval will allow sources 
in Ohio's nonattainment areas to ``backslide'' on more stringent 
pollution control requirements contrary to section 193 of the CAA. 
Section 193 of the CAA provides in part that: ``No control requirement 
in effect * * * before November 15, 1990, in any area which is a non-
attainment area for any air pollutant may be modified after November 
15, 1990, in any manner unless the modification insures equivalent or 
greater emission reductions of such air pollutant.'' 42 U.S.C. 7515. 
According to commenters, Ohio has made no demonstration, and EPA has 
proposed no finding, that the modifications to Ohio's NSR rules ensure 
``equivalent or greater emissions reductions.'' Moreover, commenters 
state, Ohio cannot make a demonstration of equivalency, and EPA cannot 
make such a finding. Because, far from ensuring ``equivalent or greater 
emission reductions'' than Ohio's preexisting permit provisions, the 
modifications ensure that emissions will

[[Page 8499]]

not be reduced as much as under the preexisting rules. In fact, 
commenters believe, the modifications allow emissions to increase in 
Ohio's nonattainment areas.
    EPA responds that assuming that section 193 applies to NSR, section 
193 does not require additional emission reductions before this SIP 
revision is approved. As of November 15, 1990, the approved SIP did not 
contain a major source NSR program consistent with the requirements of 
the CAA, which requires offsets for construction of major sources or 
major modifications in nonattainment areas. The SIP in effect on 
November 15, 1990 did include a preconstruction permitting program, but 
that program did not require offsets for any sources. Under Ohio's new 
rules, major sources are subject to permitting requirements that are 
consistent with current CAA requirements (while minor sources remain 
subject to the 1990 permitting program). This SIP revision affects only 
the major source permitting program.
    Thus, assuming that section 193 applies in some fashion to the 
permitting program in the SIP as of November 15, 1990 as it applied to 
major sources, that program did not achieve any ``emission reductions'' 
from major sources because it did not require offsets for any sources. 
It follows that if there were no emission reductions generated by the 
1990 permitting program, then the section 193 requirement to provide 
``equivalent or greater emission reductions'' of any air pollutant as 
part of this SIP revision would be satisfied with no additional 
reductions. Furthermore, for the reasons discussed above with respect 
to Section 110(l), EPA has found that the net effect of these changes 
will be neutral or environmentally beneficial.

C. Ohio's Incorporation of EPA's 2003 New Source Review Rule by 
Reference

    Commenters express concern that EPA's May 11, 2005, action appears 
to propose to approve Ohio provisions that incorporate by reference an 
EPA rule that has been stayed by order of the DC Circuit, as well as a 
second EPA rule--a related Federal implementation plan rule--that the 
agency has acknowledged to be stayed by virtue of the same DC Circuit 
order. If EPA approves those provisions, the action will be a violation 
of the DC Circuit's order. Additionally, the action will exceed EPA's 
authority under section 110(k)(3) of the CAA while violating sections 
110(l) and 193.
    EPA responds that in a November 15, 2005 letter, OEPA withdrew its 
request for approval of the phrase ``68 FR 61276, Oct. 27, 2003:'' in 
OAC 3745-31-01 (ZZZZZ)(2)(h). EPA is not approving this section into 
the SIP. Furthermore, in the November 15, 2005 letter, OEPA commits to 
strike this phrase during its next five-year review which is expected 
to be completed by June 2006.

V. What Action Is EPA Taking Today?

    EPA is partially approving revisions to Ohio's permit to install 
provisions, which were submitted by Ohio to EPA on September 14, 2004. 
These revisions meet the minimum program requirements of the December 
31, 2002 EPA NSR Reform rulemaking. As requested by OEPA's November 15, 
2005 letter, EPA is not taking action on the provisions of Ohio's rule 
relating to clean units, PCP, and ERP. Furthermore, OEPA has removed 
the respective clean unit, PCP and ERP provisions from its rules.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act 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 Clean Air Act. 
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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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 Clean Air Act; and
    <bullet> 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
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 April 26, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate

[[Page 8500]]

matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: January 21, 2010.
Walter W. Kovalick Jr.,
Acting Regional Administrator, Region 5.

0
40 CFR part 52 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 K--Ohio

0
2. Section 52.1870 is amended by adding paragraph (c)(145) to read as 
follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *
    (145) On September 14, 2004, Ohio submitted modifications to its 
Prevention of Significant Deterioration and nonattainment New Source 
Review rules as a revision to the State implementation plan.
    (i) Incorporation by reference.
    (A) Ohio Administrative Code Rule 3745-31-01, Definitions: (C), 
(D), (E), (J), (M), (N), (O), (P), (Q), (S), (T), (U), (V), (W), (X), 
(DD), (EE), (FF), (GG), (JJ), (MM), (NN), (QQ), (DDD), (EEE), (FFF), 
(JJJ), (KKK), (NNN), (UUU), (VVV), (WWW), (XXX), (YYY), (ZZZ), (CCCC), 
(DDDD), (EEEE), (FFFF), (GGGG), (HHHH), (IIII), (JJJJ), (KKKK), (LLLL), 
(MMMM), (OOOO), (PPPP), (QQQQ), (SSSS), (VVVV), (WWWW), (XXXX), (ZZZZ), 
(DDDDD), (EEEEE), (HHHHH), (KKKKK), (LLLLL), (PPPPP), (QQQQQ), (UUUUU), 
and (XXXXX), adopted on October 18, 2004, effective October 28, 2004.
    (B) Ohio Administrative Code Rules 3745-31-01, Definitions: (III) 
and (SSS), 3745-31-10 ``Air Stationary Source Obligations.'', and 3745-
31-22 ``Nonattainment Provisions--Conditions for Approval'', adopted on 
October 18, 2004, effective October 28, 2004 and revised by the 
November 15, 2005 letter from Joseph P. Koncelik to Thomas Skinner. 
This letter, included as Additional material in paragraph (145)(ii)(B) 
below, removes references to the Pollution Control Project (PCP) and 
Clean Unit provisions vacated by a June 24, 2005 DC Circuit Court of 
Appeals decision.
    (C) Ohio Administrative Code Rules 3745-31-09 ``Air permit to 
install completeness determinations, public participation and public 
notice.'', 3745-31-13 ``Attainment provisions--review of major 
stationary sources and major modifications, stationary source 
applicability and exemptions.'', 3745-31-15 ``Attainment provisions--
Control Technology Review.'', 3745-31-21 ``Nonattainment provisions--
review of major stationary sources and major modifications--stationary 
source applicability and exemptions.'', 3745-31-24 ``Non-attainment 
Provisions--Baseline for Determining Credit for Emission and Air 
Quality Offsets.'', 3745-31-26 ``Nonattainment Provisions--Offset Ratio 
Requirements.'', and 3745-31-32 ``Plantwide applicability limit 
(PAL).'', adopted on October 18, 2004, effective October 28, 2004.
    (D) October 18, 2004, ``Director's Final Findings and Orders'', 
signed by Christopher Jones, Director, Ohio Environmental Protection 
Agency, adopting rules 3745-31-01, 3745-31-09, 3745-31-10, 3745-31-13, 
3745-31-15, 3745-31-21, 3745-31-22, 3745-31-24, 3745-31-26, 3745-31-30, 
3745-31-31, and 3745-31-32.
    (ii) Additional material.
    (A) Ohio Administrative Code Rule 3745-31-01, Definitions: (ZZZZZ) 
adopted on October 18, 2004, effective October 28, 2004.
    (B) Letter dated November 15, 2005, from Ohio EPA Director Joseph 
P. Koncelik to Regional Administrator Thomas Skinner, titled Request 
for Approval of Ohio Administrative Code (``OAC'') Chapter 3745-31 NSR 
Reform Rule Changes into the State Implementation Plan (``SIP'').
* * * * *
[FR Doc. 2010-3831 Filed 2-24-10; 8:45 am]
BILLING CODE 6560-50-P


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