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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Parts 52 and 81
OH ID: [OH158-1a; FRL-7616-4]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
DOCUMENT ACTION: Direct final rule.
SUBJECT CATEGORY: Redesignation and Approval of Ohio Implementation Plan
DATES: This rule is effective on March 18, 2004, unless the EPA receives relevant adverse written comments by March 3, 2004. If EPA receives adverse comment, we will publish a timely withdrawal of the rule in the Federal Register and inform the public that the rule will not take effect.
DOCUMENT SUMMARY: EPA is redesignating Lucas County, Ohio to an attainment area
for sulfur dioxide (SO
SUMMARY: Ohio,
SUPPLEMENTAL INFORMATION
This supplemental information section is organized as follows:I. General Information
II. Background and Criteria for Review
III. Review of Emission Limit Revisions
IV. Review of Redesignation Request
A. Has the area attained the standards?
B. Has EPA fully approved the applicable implementation plan?
C. Is attainment due to permanent and enforceable emission reductions?
D. Does the maintenance plan assure continued attainment?
E. Has the State met the requirements of section 110 and part D?
V. Rulemaking Action
VI. Statutory and Executive Order Reviews
I. General Information
A. How Can I Get Copies of This Document and Other Related Information?
1. The Regional Office has established an official public
rulemaking file available for inspection at the Regional Office. EPA
has established an official public rulemaking file for this action
under ``Region 5 Air Docket OH158''. The official public file consists
of the documents specifically referenced in this action, any public
comments received, and other information related to this action.
Although a part of the official docket, the public rulemaking file does
not include Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. The official
public rulemaking file is the collection of materials that is available for public viewing at the Air Programs Branch, Air
[[Page 4857]]
and Radiation Division, EPA Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604. EPA requests that if at all possible, you
contact the contact 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 a.m. to 4:30 p.m. excluding Federal holidays.
2. Electronic Access. You may access this Federal Register document
electronically through the regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on
Federal rules that have been published in the Federal Register, the Government's legal newspaper, and are open for comment.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.
B. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text ``Public comment on proposed rulemaking Region 5 Air Docket OH158'' in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked ``late.'' EPA is not required to consider these late comments.
1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. 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.
i. Email. Comments may be sent by electronic mail (email) to bortzer.jay@epa.gov. Please include the text ``Public comment on proposed rulemaking Region 5 Air Docket OH158'' in the subject line. EPA's email system is not an ``anonymous access'' system. If you send an email comment directly without going through Regulations.gov, EPA's email system automatically captures your email address. Email addresses that are automatically captured by EPA's email system are included as part of the comment that is placed in the official public docket.
ii. Regulations.gov. Your use of regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to regulations.gov at http://www.regulations.gov, then click on the button ``TO SEARCH FOR REGULATIONS CLICK HERE'', and select Environmental Protection Agency as the Agency name to search on. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an ``anonymous access'' system, which means EPA will not know your identity, email address, or other contact information unless you provide it in the body of your comment.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.
2. By Mail. Send your comments to: Jay Bortzer, Acting Chief, Air Programs Branch, (AR18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please include the text ``Public comment on proposed rulemaking Regional Air Docket OH158'' in the subject line on the first page of your comment.
3. By Hand Delivery or Courier. Deliver your comments to: Jay Bortzer, Acting Chief, Air Programs Branch, (AR18J), U.S.
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
18th floor, 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 a.m. to 4:30 p.m. excluding Federal holidays.
C. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.
II. Background and Criteria for Review
On March 25, 1999, Ohio requested SO
The facilities affected by these requested limit revisions are
currently subject to federally promulgated limits. In 1976, in response
to the absence of federally enforceable SO
[[Page 4858]]
remain subject to FIP limits. The requested revisions would result in a
Lucas County SIP that relies entirely on Stateadopted limits.
Criteria for judging these limits are given in a memorandum from the Director of the Air Quality Management Division of the Office of Air Quality Planning and Standards to the Director of the Air and Radiation Division of Region 5, dated September 28, 1994. In brief, EPA may approve state limits to replace the federally promulgated limits provided the state limits are at least as stringent as the federally promulgated limits and provided there is no evidence that the original attainment demonstration underlying the limits is invalid. Further discussion of these criteria is given below.
The criteria for redesignating areas from nonattainment to
attainment are given in section 107(d)(3)(E) of the Clean Air Act. This section includes 5 criteria:
1. Has the area attained the standards?
2. Has EPA fully approved the applicable implementation plan?
3. Is attainment due to permanent and enforceable emission reductions?
4. Does the maintenance plan assure continued attainment?
5. Has the State met the requirements of section 110 and part D?
EPA guidance on implementing these criteria is given in a memorandum from the Director of the Air Quality Management Division to the EPA regional air division directors dated September 4, 1992. Lucas County poses complex circumstances, posing special issues in applying these criteria. For clarity, further discussion of these criteria is included as part of the review of Ohio's request.
III. Review of Emission Limit Revisions
EPA approved the attainment plan and most limits for Lucas County on June 30, 1982 (47 FR 28375). However, at Ohio's request, EPA did not rulemake at that time on limits for facilities owned by Sun Oil Company, Gulf Oil Company, Phillips Chemical, and Coulton Chemical. Consequently, the FIP limits remained in effect for these facilities.
On March 3, 1998, EPA approved State limits for the Sun Oil Company
facility (see 63 FR 15091). For the other three facilities, FIP limits
remain in effect. Ohio is now requesting EPA rulemaking on State limits
for the Gulf Oil facility and for the former Coulton Chemical facility
(now owned by Marsulex, Inc.). Ohio requested that EPA delete limits in
the FIP for Phillips Petroleum Company's Philblack facility, since that
facility no longer exists. These requested revisions would result in
the state implementation plan for SO
Criteria for judging these limits are given in a memorandum from the Director of the Air Quality Management Division of the Office of Air Quality Planning and Standards to the Director of the Air and Radiation Division of Region 5, dated September 28, 1994. The criteria are:
1. That the FIP demonstrated the limits were adequately protective at the time of promulgation.
2. There is no evidence now that the FIP and associated emission
limits are inadequate to protect the SO
3. This is not a relaxation of existing emission limits.
EPA concludes that these criteria are met. The original FIP limits reflect a modeling analysis that demonstrated that these limits would suffice to attain the standards. EPA has no evidence that these limits are inadequate. For the Gulf Oil and former Coulton Chemical facilities, the state limits are essentially identical to corresponding FIP limits. Since the Philblack facility no longer operates, the FIP limits are irrelevant in assessing whether the State limits provide equal air quality protection as the FIP.
EPA is not revising the FIP in this rulemaking. EPA anticipates
removing the FIP limits for the Philblack facility in a future
rulemaking that will also address other FIP limits that EPA expects to
become moot due to approval of corresponding state limits. Despite the
temporary continuance of FIP limits for this shut down facility,
today's action provides that Ohio has a fully approved state plan
providing for attainment of the SO
IV. Review of Redesignation Request
A. Has the Area Attained the Standards?
The first prerequisite for a redesignation to attainment, given in
Clean Air Act section 107(d)(3)(E)(i), is that ``[EPA] determines that
the area has attained [the standard]''. For some pollutants, this
determination relies solely on air quality monitoring data. However,
for SO
Typically, attainment planning for SO
The situation in Lucas County was more complicated. At the time of
Ohio's request for redesignation, available evidence indicated that an
important SO
More recently, Marsulex modified its process and reduced emissions
for the facility to levels below those included for it in the State's
attainment demonstration for Lucas County. Ohio in its submittal stated
that other major SO
B. Has EPA Fully Approved the Applicable Implementation Plan?
The principal relevant element of the SIP required under part D of
Title I of the Clean Air Act for SO
[[Page 4859]]
at 47 FR 28375, except that EPA did not act on limits for four sources.
Although EPA subsequently approved limits for one of these sources (the
Sun Oil facility), the federally promulgated FIP remained in effect for the other three sources.
EPA informed Ohio of its view that a federally promulgated measure
does not constitute an ``approved plan'' as required under section
107(d)(3)(E)(ii). In EPA's view, this section can only be satisfied by
EPA approval of rules and related plan elements that the state had
submitted. The request by Ohio for EPA to approve limits for the Gulf
Oil Company and Coulton Chemical facilities and to remove limits for
Phillips Chemical's Philblack plant were intended to provide that all
limits needed to ensure attainment in Lucas County are State adopted,
EPA approved limits. Today's action to approve the limits for the Gulf
Oil Company and Coulton Chemical facilities addresses this need for
these two facilities. Since the Philblack plant is shut down, limits
for this facility are unnecessary for the State's attainment plan. EPA
thus concludes that it has now fully approved the State's attainment
plan for this area, including approval of all limits needed to assure attainment in this area.
C. Is Attainment Due to Permanent and Enforceable Emission Reductions?
For most facilities in Lucas County, including most of the facilities that Ohio's modeling has demonstrated to be the key contributors to prior air quality problems, permanent and enforceable emission reductions are mandated by emission limits in Ohio's SIP. To meet these limits, some facilities switched to burning lower sulfur fuel and some facilities installed air pollution control equipment. These emission limits, adopted in Ohio Administrative Code Chapter 374518 and approved by EPA (as compiled at http://www.epa.gov/region5/air/sips/sips.htm ), assure the permanence of these emission reductions.
EPA pursued additional assurances that the air quality improvement attributable to the recent emission reductions at the Marsulex facility will be permanent and enforceable. These assurances are provided in the Title V permit for Marsulex that Ohio issued on January 9, 2004, clarifying that Marsulex' Lucas County facility must meet the relevant new source performance standard, which reflects a substantially lower emission limit than the SIP limit. With this limit for the Marsulex facility and SIP limits for other facilities, EPA concludes that permanent and enforceable emission reductions have enabled Lucas County to attain the standards.
D. Does the Maintenance Plan Assure Continued Attainment?
Under section 175A of the Clean Air Act, maintenance plans must
demonstrate continued attainment of the standards for 10 years after
the redesignation. For SO
With the major sources thus limited to attainment level emissions,
the only remaining question for maintenance is whether ``background''
sources can be expected to increase or decrease emissions. Ohio notes
that background concentrations can be expected to decline. Ohio
attributes this expected decline to requirements for lower sulfur
contents for gasoline and diesel fuel and ongoing national sulfur
dioxide emission limitations from the acid rain program. EPA concurs
with Ohio's expectations. EPA thus concludes that these reductions in
background concentrations in conjunction with the permanent limitations
on SO
E. Has the State Met the Requirements of Section 110 and Part D?
This criterion requires that the state has met the requirements of Clean Air Act section 110 and part D. The principal relevant requirement is for an approved attainment plan, which EPA approved on June 30, 1982 (47 FR 28375).
The discussion above of the second criterion, requiring a fully approved SIP, notes EPA's belief that that criterion is not met with federally promulgated rules, and that that criterion requires approval of a submittal that the state has adopted and submitted pursuant to section 110. Similarly for this fourth criterion, EPA believes that the criterion can be met only by the state adopting and submitting rules and other material that EPA finds to satisfy section 110 and part D. That is, EPA believes that this criterion is not satisfied if some of the rules needed to satisfy section 110 and part D were federally promulgated rather than state adopted and federally approved.
Recognizing this EPA view, Ohio submitted the limits which remained on a FIPbasis. EPA is approving these limits in today's action. As a result, Ohio now has satisfied the applicable requirements of section 110 and part D.
V. Rulemaking Action
EPA is approving limits for the Gulf Oil Company and the Marsulex
facility (formerly owned by Coulton Chemical Company). EPA is
redesignating Lucas County, Ohio, to attainment for SO
The approved limits for the Gulf Oil Company and Marsulex facilities supersede the corresponding FIP limits. EPA is not formally removing those FIP limits but anticipates doing so in a future rulemaking.
Clean Air Act section 107(d)(3)(E) identifies five prerequisites
for redesignation of areas from nonattainment to attainment. EPA
concludes that these criteria are met with respect to SO
EPA is publishing these actions without a prior proposal because we
view these as noncontroversial actions and anticipate no adverse
comments. However, in the ``Proposed Rules'' section of today's Federal
Register, EPA is publishing a separate document that will serve as the
proposal to approve the redesignation and maintenance plan if adverse
comments are filed. This rule will be effective on March 18, 2004,
without further notice unless we receive relevant adverse written
comment by March 3, 2004. If the EPA receives adverse comment, we will
publish a final rule informing the public that this rule will not take
effect. We will address all public comments in a subsequent final rule
based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting on these actions must do so at this time.
VI. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
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.
Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
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). [[Page 4860]]
Regulatory Flexibility Act
This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this 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 approves preexisting 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. 1044).
Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
This 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 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 approves 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 13045: Protection of Children From Environmental Health and Safety Risks
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 is not economically significant. National Technology Transfer Advancement Act
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.
Paperwork Reduction Act
This 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.).
Congressional Review Act
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 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 2, 2004. 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
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: January 20, 2004.
Bharat Mathur,
Acting Regional Administrator, Region 5.
Chapter 1, title 40 of the Code of Federal Regulations 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 et seq.
Subpart KKOhio
2. Section 52.1881 is amended by revising paragraphs (a)(4) and (a)(8) to read as follows:
Sec. 52.1881 Control strategy: Sulfur Oxides (sulfur dioxide). (a) * * *
(4) ApprovalEPA approves the sulfur dioxide emission limits for
the following counties: Adams County (except Dayton Power & Light
Stuart), Allen County (except Cairo Chemical), Ashland County,
Ashtabula County, Athens County, Auglaize County, Belmont County, Brown
County, Butler County, Carroll County, Champaign County, Clark County,
Clermont County, (except Cincinnati Gas & ElectricBeckjord), Clinton
County, Columbiana County, Coshocton County, Crawford County, Darke
County, Defiance County, Delaware County, Erie County, Fairfield
County, Fayette County, Fulton County, Gallia County, Geauga County,
Greene County, Guernsey County, Hamilton County, Hancock County, Hardin
County, Harrison County, Henry County, Highland County, Hocking County,
Holmes County, Huron County, Jackson County, Jefferson County, Knox
County, Lake County, Lawrence County (except Allied ChemicalSouth
Point), Licking County, Logan County, Lorain County, Lucas County,
Madison County, Marion County, Medina County, Meigs County, Mercer
County, Miami County, Monroe County, Montgomery County (except
Bergstrom Paper, Miami Paper), Morgan County, Morrow County, Muskingum
County, Noble County, Ottawa County, Paulding County, Perry County,
Pickaway County, Pike County (except Portsmouth Gaseous Diffusion
Plant), Portage County, Preble County, Putnam County, Richland County,
Ross County (except Mead Corporation), Sandusky County (except Martin
Marietta Chemicals), Scioto County, Seneca County, Shelby County, Trumbull County, Tuscarawas County,
[[Page 4861]]
Union County, Van Wert County, Vinton County, Warren County, Washington
County (except Shell Chemical), Wayne County, Williams County, Wood
County (except LibbeyOwensFord Plants Nos. 4 and 8 and No. 6), and Wyandot County.
* * * * *
(8) No ActionEPA is neither approving nor disapproving the
emission limitations for the following counties/sources pending further
review: Adams County (Dayton Power & LightStuart), Allen County (Cairo
Chemical), Clermont County (Cincinnati Gas & ElectricBeckjord),
Cuyahoga County, Franklin County, Lawrence County (Allied Chemical
South Point), Mahoning County, Montgomery County (Bergstrom Paper and
Miami Paper), Pike County (Portsmouth Gaseous Diffusion Plant), Ross
County (Mead corporation), Sandusky County (Martin Marietta Chemicals),
Stark County, Washington County (Shell Chemical Company), and Wood County (LibbeyOwensFord Plants Nos. 4 and 8 and No. 6).
* * * * *
PART 81[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 81.336 is amended by revising the sulfur dioxide table entry for Lucas County to read as follows:
Sec. 81.336 Ohio.
* * * * *
OhioSO2
Better than
Designated area Does not meet Does not meet Cannot be national
primary standards secondary standards classified standards
* * * * * * *
Lucas County: The area east of ................... ................... .................. X Route 23 and west of the
eastern boundary of Oregon
Township.
The remainder of Lucas County:
* * * * * * * * * * * *
[FR Doc. 041966 Filed 13004; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT John Summerhays, Criteria Pollutant
Section, Air Programs Branch (AR18J), U.S. Environmental Protection Agency, Region 5, Chicago, Illinois 60604, (312) 8866067,
summerhays.john@epa.gov.
Common CFR Searches
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