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###### Environmental Protection Agency

          - 40 CFR Part 52 
          - [EPA-R05-OAR-2005-OH-0005; FRL-8272-9] 

# AGENCY:

Environmental Protection Agency (EPA). 

# ACTION:

Proposed rule. 

# SUMMARY:

EPA is re-proposing approval of Ohio rules concerning equivalent visible emission limits (EVELs). Ohio's rules provide criteria for establishment of EVELs, and the rules provide that EVELs established according to these criteria take effect without formal review by EPA. EPA proposed to approve these rules on December 2, 2002, at 67 FR 71515. However, that proposal did not clearly solicit comment on the timing by which actions on EVELs by the State take effect. EPA is proposing that previous State modifications to EVELs would become effective at the federal level immediately upon the effective date of any final EPA action approving these Ohio rules. Similarly, any future action by the State to establish, modify, or rescind EVELs in accordance with the criteria given in these Ohio rules would become effective at the federal level immediately upon the effective date of the State action. 

      ( print page 2824)    

# DATES:

Written comments on this proposed rule must arrive on or before February 22, 2007. 

# ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2005-OH-0005, by one of the following methods: 
      -  www.regulations.gov:                          Follow the on-line instructions for submitting comments.                     
      - E-mail: mooney.john@epa.gov.
      -  Fax:                          (312) 886-5824.                     
      -  Mail:                          John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.                     
      -  Hand Delivery:                          John M. Mooney, Chief, Criteria Pollutant 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-2005-OH-0005. 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 e-mail. 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 e-mail comment directly to EPA without going through                         *www.regulations.gov*                         your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be 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 legal 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, Criteria Pollutant 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 action is EPA taking today? 

II. What Should I Consider as I Prepare My Comments for EPA? 

III. Statutory and Executive Order Reviews

## I. What action is EPA taking today? 

EPA is re-proposing to approve Ohio rules providing for State issuance of equivalent visible emission limits (EVELs), rules which were a part of a set of particulate matter regulations that Ohio submitted on July 18, 2000. EPA originally proposed to approve these rules on December 2, 2002, at 67 FR 71515. However, that proposal did not clearly explain EPA's views regarding the consequences of approval on historic EVELs that were previously approved into the State Implementation Plan (SIP). EPA today is explaining its views and soliciting comment on this issue. 

The rules that EPA proposes to approve provide that EVELs issued by the State in accordance with the specified criteria take effect without formal review by EPA. Consequently, when the State issues an EVEL for a unit at a source, this EVEL will supersede any EVEL that may previously have been issued for that unit, regardless of whether or not the prior EVEL was part of the SIP. Similar consequences apply when the State terminates an EVEL for a unit at a source, presumably by issuing a permit or other enforceable document that re-establishes the standard opacity limits of OAC 3745-17-07 (A)(1) as the applicable opacity limits; that action will terminate the EVEL for that unit, again regardless of whether the prior EVEL was part of the SIP. EPA's understanding is that the State will periodically review whether previously issued EVELs are still warranted, as part of its management of the EVELs that apply in the State. 

EPA is proposing that, as of the effective date of EPA finalizing this proposal, no EVEL shall apply unless Ohio has issued a currently effective EVEL in accordance with its Rule 3745-17-07(C), and the federally enforceable level of any such EVEL shall reflect the currently effective EVEL that the State has thus issued. Therefore, EPA is proposing to delete provisions of the Ohio SIP that contain EVELs, in particular paragraphs (c)(62) and (c)(65) of 40 CFR 52.1870. 

EPA recognizes that the Ohio SIP contains other EVELs, implicitly included in SIP-approved permits or administrative orders that also contain other limits. For administrative convenience, EPA proposes not to modify the text of the SIP codification given in 40 CFR 52.1870 to discontinue these EVELs explicitly. Nevertheless, EPA proposes that when this proposed rulemaking becomes final and effective, these EVELs will automatically be discontinued and replaced by the opacity limits that Ohio has adopted more recently in accordance with the criteria given in Rule 3745-17-07(C). (The more recent permits or administrative orders may or may not have limits matching the prior SIP limits.) Similarly, EPA proposes that any future State action to establish, modify, or rescind opacity limits in accordance with the criteria in Rule 3745-17-07(C) shall immediately alter the federal opacity limit accordingly. 

## II. 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—The EPA may ask you to respond to specific questions or organize comments by referencing a                           ( print page 2825)                        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. 

## III. Statutory and Executive Order Reviews 

### Executive Order 12866; Regulatory Planning and Review 

Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. 

### Paperwork Reduction Act 

                    This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501*et seq.*).                 

### Regulatory Flexibility Act 

This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 

### Unfunded Mandates Reform Act 

Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). 

### Executive Order 13132 Federalism 

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 

### Executive Order 13175 Consultation and Coordination With Indian Tribal Governments 

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 

### Executive Order 13045 Protection of Children From Environmental Health and Safety Risks 

This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. 

### Executive Order 13211 Actions That Significantly Affect Energy Supply, Distribution, or Use 

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory 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). 

### National Technology Transfer Advancement Act 

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA do not apply. 

# List of Subjects in 40 CFR Part 52

      - Environmental protection
      - Air pollution control
      - Intergovernmental relations
      - Particulate matter

Dated: January 11, 2007. 

Mary A. Gade, 

Regional Administrator

 [FR Doc. E7-923 Filed 1-22-07; 8:45 am] 

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