[Federal Register Volume 61, Number 95 (Wednesday, May 15, 1996)]
[Rules and Regulations]
[Pages 24457-24460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12119]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH16-3-7264a; FRL-5439-4]


Approval and Promulgation of Implementation Plans; Ohio

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: On August 23, 1994, the United States Environmental Protection 
Agency (USEPA) granted conditional approval of revisions to the 
emission limitations, compliance methodologies, and compliance time 
schedules in Ohio's State Implementation Plan (SIP) for sulfur dioxide 
(SO<INF>2) as it applies to Hamilton County. The outstanding condition 
has been addressed, and USEPA is now fully approving the Hamilton 
County, Ohio, SO<INF>2 SIP. Submitted by Ohio in response to modeling 
analyses which predicted violations of the SO<INF>2 National Ambient 
Air Quality Standards (NAAQS) due to Hamilton County sources, this SIP 
has been demonstrated to provide for attainment and maintenance of the 
SO<INF>2 NAAQS in Hamilton County.

DATES: This action will be effective on July 15, 1996 unless adverse or 
critical comments not previously addressed by the State or USEPA are 
received by June 14, 1996. If the effective date is delayed, timely 
notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer, 
Chief,

[[Page 24458]]

Regulation Development Section, Air Programs Branch (AR-18J), United 
States Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    Copies of the State's submittal and USEPA's analysis (Technical 
Support Document) are available for inspection at the following 
location: United States Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 
60604. (It is recommended that you telephone Mary Onischak at (312) 
353-5954 before visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT: Mary Onischak at (312) 353-5954.

SUPPLEMENTARY INFORMATION:

I. Background

    On October 16, 1991, Ohio submitted SO<INF>2 SIP revisions to USEPA 
for Hamilton County, Ohio. The State submitted a package on March 17, 
1993, which further amended these SIP revisions. The SIP revisions were 
intended to provide for attainment of the National Ambient Air Quality 
Standards (NAAQS) for SO<INF>2, in response to a December 22, 1988, 
letter in which USEPA notified the Governor of Ohio that the SO<INF>2 
SIP was substantially inadequate to maintain the SO<INF>2 NAAQS in 
Hamilton County. USEPA's notification was based on predicted violations 
of the SO<INF>2 standards due to SO<INF>2 sources located in Hamilton 
County, Ohio. Ohio's SIP package included revisions to Ohio 
Administrative Code (OAC) 3745-18-03 Attainment Dates and Compliance 
Time Schedules, OAC 3745-18-04 Measurement Methods and Procedures, and 
OAC 3745-18-37 Hamilton County Emission Limits, supplemented by an 
administrative order for Cincinnati Gas and Electric's Miami Fort 
facility. Ohio's submittal, including the background information, 
attainment demonstration, and compliance methodologies, is discussed in 
detail in the January 27, 1994, proposed conditional approval (59 FR 
3809). Comments on the proposed conditional approval were addressed in 
the August 23, 1994, final conditional approval (59 FR 43287).

II. Conditional Approval Issue

    The Hamilton County SO<INF>2 SIP was conditionally approved by 
USEPA because of an issue related to the air dispersion modeling 
analysis submitted by Ohio to demonstrate that the revised SO<INF>2 SIP 
limits would ensure attainment of the SO<INF>2 NAAQS in the Hamilton 
County area. The State's modeled attainment demonstration is discussed 
in detail in USEPA's 1994 proposed and final rulemaking actions. The 
techniques used in the attainment demonstration were set forth in a 
modeling protocol approved by USEPA. Because Hamilton County borders 
Indiana and Kentucky, the attainment demonstration considered the air 
quality impacts of SO<INF>2 sources in those States, as well as 
SO<INF>2 sources in Ohio. During the development of the attainment 
demonstration, a modeled violation was predicted near the Joseph E. 
Seagram and Sons, Inc., (Seagram) facility in adjacent Dearborn County, 
Indiana. The Seagram facility was determined to be the main contributor 
to the modeled violation, but facilities located in Hamilton County 
also contributed to the violation. Since the Ohio sources were 
partially implicated in the Indiana violation, USEPA could not accept 
Ohio's attainment demonstration until the predicted violation had been 
addressed.
    A solution to the attainment problem involved a restriction on the 
usage of sulfur-bearing fuels at the Seagram facility. Preliminary 
modeling showed that when Seagram's Boilers 5 and 6 were not 
simultaneously burning such sulfur-bearing fuels as coal or fuel oil, 
the SO<INF>2 standards would not be violated. Seagram had, in fact, 
been operating in this manner for several years. Seagram agreed, in a 
September 1, 1992 letter to Ohio and Indiana, that it would not operate 
the two boilers simultaneously on sulfur-bearing fuels without written 
approval from both State Agencies (the Ohio Environmental Protection 
Agency and the Indiana Department of Environmental Management). 
However, because Seagram's letter did not create a federally 
enforceable limitation, USEPA required that the State of Indiana adopt 
the Seagram restriction and submit it to USEPA as a revision to the 
Indiana SO<INF>2 SIP.
    On the basis of Seagram's September 1, 1992 commitment, Ohio 
submitted supplementary modeling data to USEPA which demonstrated that 
if the Seagram facility did not operate the two boilers simultaneously 
on coal or fuel oil, the predicted SO<INF>2 NAAQS violation in Dearborn 
County would be eliminated. USEPA has reviewed this modeling and 
determined that it is acceptable. Because USEPA had determined that the 
emission limits and control measures in the SO<INF>2 SIP revision for 
Hamilton County would be enforceable and would provide for attainment 
of the SO<INF>2 NAAQS, USEPA proposed to conditionally approve the 
Hamilton County SO<INF>2 SIP while the State of Indiana proceeded with 
the Seagram rulemaking.
    USEPA's proposal to conditionally approve the Hamilton County, Ohio 
SIP revisions was published on January 27, 1994 (59 FR 3809). USEPA 
finalized the conditional approval action on August 23, 1994 (59 FR 
43287). USEPA indicated in the final conditional approval that the 
Hamilton County, Ohio SIP revisions would be approved in full if 
Indiana submitted a federally approvable SIP revision for Seagram by 
September 23, 1995. It was anticipated that an approvable Indiana limit 
would be formalized in the allotted time and as a result, the Ohio 
revised rules would remain a part of the SIP.
    The USEPA notified the State of Indiana in a January 5, 1994, 
letter that the Seagram limits must be incorporated into the Indiana 
SO<INF>2 SIP. On August 25, 1995, Indiana submitted to USEPA a site-
specific SO<INF>2 SIP revision request which provided that when 
Seagram's Boilers 5 and 6 were being operated simultaneously, only one 
boiler would use coal or fuel oil. USEPA published a direct final 
approval of Indiana's SIP revision for Seagram on February 9, 1996 (61 
FR 4897). Therefore, USEPA is now able to fully accept Ohio's modeled 
attainment demonstration and finalize the Hamilton County SO<INF>2 SIP 
approval. (Adverse or critical comments received on the Seagram SIP 
revision may affect the effective date of approval of the Hamilton 
County, Ohio SO<INF>2 SIP.)

III. Final Rulemaking Action

    The USEPA is approving Ohio's October 16, 1991, and March 17, 1993, 
Hamilton County SO<INF>2 SIP revisions because the approval condition 
cited in the Federal Register on August 23, 1994 (59 FR 43287) has been 
satisfied. The State of Indiana submitted acceptable SO<INF>2 SIP 
revisions, as required, and USEPA approved them in a direct final 
action on February 9, 1996 (61 FR 4897). As indicated in the August 23, 
1994, conditional approval, the USEPA has determined that the Ohio 
SO<INF>2 SIP revisions for Hamilton County satisfy section 110(A)(2) of 
the Clean Air Act and are fully approvable at this time. It is 
important to note that if USEPA receives adverse or critical comments 
on the SO<INF>2 SIP revision for Seagram, the receipt of such comments 
may affect the effective date of USEPA's approval of the Hamilton 
County, Ohio SO<INF>2 SIP.
    The USEPA is publishing this action without prior proposal because 
USEPA views this action as a noncontroversial revision and anticipates 
no adverse comments. However, the rulemaking will not be deemed final 
if timely unaddressed adverse or critical

[[Page 24459]]

comments are filed. The ``direct final'' approval shall be effective on 
July 15, 1996, unless USEPA receives such adverse or critical comments 
by June 14, 1996. The USEPA is now soliciting public comments on this 
action. Any parties interested in commenting on this action should do 
so at this time. In the proposed rules section of this Federal 
Register, USEPA is publishing a separate document which constitutes a 
``proposed approval'' of the requested SIP revision. If warranted by 
comments adverse to or critical of the approval discussed above, which 
have not been addressed by the State or USEPA, USEPA will publish a 
Federal Register document which withdraws the final action. The USEPA 
will then address public comments received in a subsequent rulemaking 
document based on the proposed approval.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. The USEPA shall consider each request for revision to the SIP in 
light of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from Executive Order 12866 review.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. (5 U.S.C. 603 and 604.) 
Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the 
Clean Air Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the Clean Air Act, preparation of a regulatory flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of the State action. The Clean Air Act forbids USEPA to 
base its actions concerning SIPs on such grounds.Union Electric Co. v. 
USEPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
    Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
Mandates Act''), signed into law on March 22, 1995, requires that the 
USEPA prepare a budgetary impact statement before promulgating a rule 
that includes a Federal mandate that may result in expenditure by 
State, local, and tribal governments, in aggregate, or by the private 
sector, of $100 million or more in any one year. Section 203 requires 
the USEPA to establish a plan for obtaining input from and informing, 
educating, and advising any small governments that may be significantly 
or uniquely affected by the rule.
    Under section 205 of the Unfunded Mandates Act, the USEPA must 
identify and consider a reasonable number of regulatory alternatives 
before promulgating a rule for which a budgetary impact statement must 
be prepared. The USEPA must select from those alternatives the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule, unless the USEPA explains why this 
alternative is not selected or the selection of this alternative is 
inconsistent with law.
    This rule only approves the incorporation of existing state rules 
into the SIP. It imposes no additional requirements. Because this final 
rule is estimated to result in the expenditure by State, local, and 
tribal governments or the private sector of less then $100 million in 
any one year, the USEPA has not prepared a budgetary impact statement 
or specifically addressed the selection of the least costly, most cost-
effective, or least burdensome alternative. Because small governments 
will not be significantly or uniquely affected by this rule, the USEPA 
is not required to develop a plan with regard to small governments.
    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 July 15, 1996. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Sulfur oxides.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of Ohio was approved by the Director of the 
Federal Register on July 1, 1982.

    Dated: February 14, 1996.
David A. Ullrich,
Acting Regional Administrator.

    For the reasons set forth in the preamble 40 CFR part 52 is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart KK--Ohio

    2. Section 52.1870 is amended by adding paragraph (c)(92) to read 
as follows:


Sec. 52.1870   Identification of plan.

* * * * *
    (c) * * *
    (92) On October 16, 1991, and March 17, 1993, the Ohio 
Environmental Protection Agency (OEPA) submitted revisions to the State 
Implementation Plan for sulfur dioxide for sources in Hamilton County, 
Ohio.
    (i) Incorporation by reference.
    (A) Ohio Administrative Code (OAC) Rule 3745-18-03 Attainment dates 
and compliance time schedules, Sections (A)(2)(c); (B)(7)(a); 
(B)(7)(b); (C)(8)(a); (C)(8)(b); (C)(9)(a); (C)(9)(b); (D)(1); (D)(2); 
dated October 11, 1991, and effective on October 31, 1991.
    (B) Ohio Administrative Code (OAC) Rule 3745-18-04 Measurement 
methods and procedures, Sections (D)(7); (D)(8)(a) to (D)(8)(e); 
(E)(5); (E)(6)(a); (E)(6)(b); (F); (G)(1) to (G)(4); (I); dated October 
11, 1991, and effective on October 31, 1991.
    (C) Ohio Administrative Code (OAC) Rule 3745-18-37, Hamilton county 
emission limits, dated February 22, 1993, and effective on March 10, 
1993.
    (D) Director's Final Findings and Order for Cincinnati Gas and 
Electric Company, Miami Fort Station, dated February 22, 1993.
* * * * *
    3. Section 52.1919 is revised to read as follows.

[[Page 24460]]

Sec. 52.1919   Identification of plan-conditional approval.

    (a) The plan commitments listed below were submitted on the dates 
specified.
    (1) [Reserved]
    (2) On April 20, 1994, Ohio submitted Rule 3745-35-07, entitled 
``Federally Enforceable Limitations on Potential to Emit,'' and 
requested authority to issue such limitations as conditions in State 
operating permits. On June 16, 1994, Ohio submitted a commitment to 
revise Rule 3745-35-07 to clarify that the rule provides for USEPA 
objection to permits after issuance. The revisions are approved 
provided Ohio fulfills this commitment by October 25, 1995.
    (i) Incorporation by reference.
    (A) Rule 3745-35-07, adopted April 4, 1994, effective April 20, 
1994.
    (b) (Reserved)

[FR Doc. 96-12119 Filed 5-14-96; 8:45 am]
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