[Federal Register Volume 73, Number 23 (Monday, February 4, 2008)]
[Rules and Regulations]
[Pages 6427-6430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1797]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1085; FRL-8519-1]


Final Rule; Ohio; Revised Oxides of Nitrogen (NOX) Regulation, 
Phase II, and Revised NOX Trading Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a revision to the Ohio oxides of nitrogen 
(NO<INF>X</INF>) State Implementation Plan (SIP) containing provisions 
which control emissions of NO<INF>X</INF> from large internal 
combustion (IC) engines, makes corrections to typographical errors in 
the previously approved Phase I NO<INF>X</INF> SIP, and expands the 
definition of NO<INF>X</INF> budget unit. This approval requires 
reductions in NO<INF>X</INF> emissions from large IC engines, based on 
cost-effective control measures. Large IC engines are defined in the 
State rule as emitting one ton or more of NO<INF>X</INF> per day during 
the ozone season. The Ohio NO<INF>X</INF> SIP Call IC engine inventory 
is based on the inventory of IC engines compiled by EPA as part of the 
NO<INF>X</INF> SIP Call rule. Including these engines in the Ohio plan 
reduces NO<INF>X</INF> to a level at which the State will meet its 
ozone season NO<INF>X</INF> budget. EPA is approving the State's 
revision because it satisfies the Federal requirements for Phase II 
sources and demonstrates that these rules will meet the Phase II budget 
for Ohio.

DATES: This direct final rule is effective April 4, 2008 without 
further notice, unless EPA receives adverse comment by March 5, 2008. 
If EPA receives such comments, it will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-1085, by one of the following methods:
    I. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    II. E-mail: <a href="/cdn-cgi/l/email-protection#6e030101000b1740040106002e0b1e0f40090118"><span class="__cf_email__" data-cfemail="016c6e6e6f64782f6b6e696f416471602f666e77">[email protected]</span></a>.
    III. Fax: (312) 886-5824
    IV. Mail: Reference EPA-R05-OAR-2007-1085 Docket, Air Programs 
Branch, U.S. Environmental Protection Agency, (AR-18J), 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    V. Hand Delivery or Courier: John Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch, U.S. Environmental Protection Agency (AR-
18J), 77 West Jackson Boulevard, Chicago, Illinois 60604. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R05-OAR-
2007-1085''. 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 through 
www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. 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 and any form of encryption and should be 
free of any defects or viruses. For additional information about EPA's 
public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 at 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. 
EPA requests that if at all possible, you

[[Page 6428]]

contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Engineer, Criteria 
Pollutant Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. The telephone number is (312) 886-6084. Mr. Paskevicz 
can also be reached via electronic mail at: <a href="/cdn-cgi/l/email-protection#85f5e4f6eee0f3ece6ffabefeaedebc5e0f5e4abe2eaf3"><span class="__cf_email__" data-cfemail="b4c4d5c7dfd1c2ddd7ce9adedbdcdaf4d1c4d59ad3dbc2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the U.S. Environmental Protection Agency.

Table of Contents

I. Does this rule apply to me?
II. The State's Submittal
    A. Why did the State submit this revision and how does it fit in 
with the State's NO<INF>X</INF> plan?
    B. What did Ohio submit?
III. EPA's Evaluation and Final Action
    A. Is the Ohio submittal complete?
    B. Did the State submit the revision in time to meet EPA 
requirements?
    C. Does the Ohio submittal meet the evaluation criteria?
IV. What action is EPA taking today?
V. Statutory and Executive Order Reviews

I. Does this rule apply to me?

    This rule applies to owners or operators of any large 
NO<INF>X</INF> SIP Call stationary internal combustion engines as 
defined in the State rule and located in the State of Ohio. A ``large 
NO<INF>X</INF> SIP Call engine'' means any engine in the Ohio 
NO<INF>X</INF> SIP Call engine inventory emitting more than one ton of 
NO<INF>X</INF> emissions per control period day in 1995. Ohio used the 
EPA 1995 baseline inventory list that contained the NO<INF>X</INF> 
emission units for all of the States including Ohio. A search of that 
list shows that there are 12 large lean burn IC engines, as described 
by EPA, in Ohio. These engines are located at pipeline pumping stations 
and are required by State rule to meet the NO<INF>X</INF> SIP Call 
Phase II budget. Compliance plans are expected to show that control of 
these 12 units will bring about reductions of NO<INF>X</INF> to meet 
the portion of the NO<INF>X</INF> budget associated with these units.

II. The State's Submittal

A. Why did the State submit this revision and how does it fit in with 
the State's NO<INF>X</INF> plan?

    In order to reduce ozone transport in the eastern part of the 
United States, the EPA issued the NO<INF>X</INF> SIP Call on October 
27, 1998, (63 FR 57356) to reduce emissions of NO<INF>X</INF>, a 
precursor of ozone. Subsequent litigation affecting this SIP Call 
prompted the EPA to divide the SIP Call into two phases. The majority 
of the SIP Call was upheld by the D.C. Circuit Court of Appeals and 
these requirements became Phase I of the SIP Call. A second phase of 
the SIP Call was necessary to address the portions of the October 1998 
action which were vacated or remanded to EPA by the Court. EPA 
published the final Phase II Rule on April 21, 2004 (69 FR 21604). The 
plans that cover the portion of the rule re-issued after the Court 
decision are known as ``Phase II'' SIPs and were due to be submitted to 
EPA on April 1, 2005, with full compliance by May 1, 2007. The Ohio 
plan revision was received by EPA on June 16, 2005. Additional 
information regarding compliance plan approval by Ohio was provided on 
November 7, 2006.
    In addition to the Phase II rule, EPA published a draft example 
rule on September 15, 2004, for States to use as a model for their 
State rules. A copy of this draft example rule is available at the Web 
site: http://www.epa.gov/ttn/oarpg/t1/meta/m25546.html. Coincidental 
with the draft example rule EPA provided a list of questions and 
answers for use by States in response to some common questions 
expressed by the regulated community. (http://www.epa.gov/ttn/oarpg/t1/reports/23814qnaasfin.pdf) The EPA Phase II rule identifies the 
incremental budget for Ohio which the State is expected to comply with 
in order to fulfill the requirements of the NO<INF>X</INF> SIP Call.

B. What did Ohio submit?

    Ohio's revision contains rules which add IC engines to the list of 
affected sources of NO<INF>X</INF>. The revision also includes some 
language changes to the original NO<INF>X</INF> SIP, and also changes 
in definitions and the addition of specific language for cogeneration 
units. These changes are located in OAC 3745-14-01, -05, and -12, and 
Appendix B.
    OAC 3745-14-01 was changed in the areas of Definitions and 
Applicability. Ohio made changes in the Definitions section addressing 
continuous emissions monitoring, linking the language to Ohio rule 
3745-14-08, and 40 CFR part 75, and expanded the language in the 
state's rule pertaining to automated data acquisition and handling 
system and NO<INF>X</INF> monitoring. An additional list of definitions 
was added pertaining to IC engines, clearly defining to which source 
types this rule applies. In the applicability portion of the rule a 
separate section addressing (and including) cogeneration units was 
added.
    A number of minor wording revisions were made in OAC 3745-14-05, 
relating to Ohio's incorporation by reference of EPA's technical 
amendments to the NO<INF>X</INF> SIP Call Rule and ASTM standard test 
methods for several pollutants including NO<INF>X</INF>. This State 
rule revision includes Appendix B to the chapter, and lists the non-
electric generating unit's (non-EGU) annual NO<INF>X</INF> allowance 
allocations. This appendix contains corrections to errors on the list 
made in the point identification portion of the State's Appendix B for 
non-EGUs.
    OAC 3745-14-12, Stationary internal combustion engines, is an 
entirely new rule which applies to large NO<INF>X</INF> SIP Call 
engines as defined in OAC 3745-14-01. The rule lists the requirements 
for a compliance plan, and the requirements for monitoring, 
recordkeeping and reporting of data.

III. EPA's Evaluation and Final Action

A. Is the Ohio submittal complete?

    Yes, Ohio submitted a complete SIP revision. The revision is 
complete from the point of view of satisfying the Ohio state code for 
submitting State plans to EPA. And the revision is complete based on 
the requirements of 40 CFR part 51, Appendix V.
    This revision augments a number of earlier revisions to the Ohio 
NO<INF>X</INF> SIP Call. On August 5, 2003, 68 FR 46089, EPA published 
a final rule giving conditional approval of the Ohio NO<INF>X</INF> SIP 
Call plan, following receipt of a written commitment from Ohio to 
revise the flow control date.
    On June 27, 2005, 70 FR 36845, EPA published a final rule approving 
the Ohio revision which excludes carbon monoxide boilers at fluid 
catalytic cracking units in oil refineries from Ohio's NO<INF>X</INF> 
trading program.

B. Did the State submit the revision in time to meet EPA requirement?

    The State Phase II SIP was required to be submitted one year 
following the approval by the EPA Administrator establishing the final 
full NO<INF>X</INF> budgets for States subject to the NO<INF>X</INF> 
SIP Call. The final full NO<INF>X</INF> budget rule was signed by the 
administrator on April 1, 2004. (69 FR 21604) The revised State plans 
were due on April 1, 2005. The Ohio plan was received by EPA on June 
16, 2005.

C. Does the Ohio submittal meet the evaluation criteria?

    EPA evaluated the Ohio plan submittal based on the guidance EPA

[[Page 6429]]

provided to states affected by the NO<INF>X</INF> SIP Call. We are 
satisfied that the plan submitted by Ohio meets this guidance. EPA 
published an example rule (EPA guidance) illustrating a means by which 
States can meet the NO<INF>X</INF> SIP Call Phase II requirements. The 
example rule contained: A set of new definitions associated with 
stationary internal combustion engines; a description of a compliance 
plan containing provisions applicable to each owner/operator of a large 
IC engine; and a detailed list of reporting, monitoring, and 
recordkeeping requirements with which an owner/operator must comply. We 
reviewed the Ohio Phase II submittal against our example rule and find 
the Ohio IC engine rule to be consistent with applicable elements of 
the EPA example rule.
    Ohio also included an incorporation by reference (in OAC 3745-14-
01) of: (1) A standard test method for determining NO<INF>X</INF> 
concentrations in emissions from natural gas-fired reciprocating 
engines, combustion turbines, boilers, and process heaters using 
portable analyzers; (2) Technical Amendment to the Finding of 
Significant Contribution and Rulemaking for Certain States for Purposes 
of Reducing Regional Transport of Ozone, (65 FR 11222, March 2, 2000); 
and, (3) Interstate Ozone Transport Response to Court Decisions on the 
NO<INF>X</INF> SIP Call, NO<INF>X</INF> SIP Call Technical Amendments, 
and Section 126 Rules (69 FR 21603, April 21, 2004.)

IV. What action is EPA taking?

    EPA is approving the revision to the Ohio NO<INF>X</INF> SIP Call 
which adds provisions affecting large stationary internal combustion 
engines. We are also approving a number of changes to the State's plan 
including the revised budget demonstration for IC engines, rule changes 
affecting continuous emissions monitoring, and additional language 
affecting cogeneration units.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, 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). This action 
merely approves State law as making progress toward meeting Federal 
requirements and would impose no additional requirements beyond those 
imposed by State law. Accordingly, the Administrator certifies that 
this rule would 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.). Because this action approves pre-existing requirements 
under State law and would 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).
    This rule also does not have tribal implications because it would 
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). This action also does not have Federalism 
implications because it would 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 approves a State rule making 
progress toward implementing a Federal standard. It does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This rule also is not subject to 
Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it would approve a State rule making progress toward implementing a 
Federal Standard.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule would not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 4, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Oxides of nitrogen, Reporting 
and recordkeeping requirements.

    Dated: January 11, 2008.
Gary Gulezian,
Acting Regional Administrator, Region 5.

0
For the reasons stated in the preamble, part 52, chapter I, of title 40 
of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart KK--Ohio

0
2. Section 52.1870 is amended by adding paragraph (c)(141) to read as 
follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *

[[Page 6430]]

    (141) Ohio Environmental Protection Agency, on June 16, 2005, 
submitted amendments to the State Implementation Plan to control 
nitrogen oxide emissions from internal combustion engines in new rule 
Ohio Administrative Code (OAC) 3745-14-12. This rule adds stationary 
internal combustion engines to the list of sources in the Ohio 
NO<INF>X</INF> SIP Call emission reduction program. Also, OAC 3745-14-
01, General Provisions, is amended. This rule contains definitions used 
for the nitrogen oxides rules, expands the definition of NO<INF>X</INF> 
budget unit, adds definitions for the internal combustion engine rule, 
amends definition associated with continuous emissions monitoring, and 
makes corrections to typographical errors. OAC 3745-14-05 Portions of 
this rule are amended to correctly line up with the changes made in the 
definitions section of the NO<INF>X</INF> plan. Typographical errors 
are also corrected.
    (i) Incorporation by reference. The following sections of the Ohio 
Administrative Code (OAC) are incorporated by reference.
    (A) OAC 3745-14-01, General Provisions, effective on May 07, 2005.
    (B) OAC 3745-14-05, NO<INF>X</INF> Allowance Allocations, effective 
on May 07, 2005.
    (C) OAC 3745-14-12, Stationary Internal Combustion Engines, 
effective on May 7, 2005.

 [FR Doc. E8-1797 Filed 2-1-08; 8:45 am]
BILLING CODE 6560-50-P


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