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ENVIRONMENTAL PROTECTION AGENCY

Environmental Protection Agency

CFR Citation: 40 CFR Part 52

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

NOTICE: RULES

DOCUMENT ACTION: Direct final rule.

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

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.

DOCUMENT SUMMARY: EPA is approving a revision to the Ohio oxides of nitrogen (NOX) State Implementation Plan (SIP) containing provisions which control emissions of NOX from large internal combustion (IC) engines, makes corrections to typographical errors in the previously approved Phase I NOX SIP, and expands the definition of NOX budget unit. This approval requires reductions in NOX emissions from large IC engines, based on costeffective control measures. Large IC engines are defined in the State rule as emitting one ton or more of NOX per day during the ozone season. The Ohio NOX SIP Call IC engine inventory is based on the inventory of IC engines compiled by EPA as part of the NOX SIP Call rule. Including these engines in the Ohio plan reduces NOX to a level at which the State will meet its ozone season NOX 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.

SUMMARY: Ohio; Revised Oxides of Nitrogen (NO) Regulation, Phase II, and Revised NO Trading Rule,

SUPPLEMENTAL 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 NOX 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 NOX SIP Call stationary internal combustion engines as defined in the State rule and located in the State of Ohio. A ``large NOX SIP Call engine'' means any engine in the Ohio NOX SIP Call engine inventory emitting more than one ton of NOX emissions per control period day in 1995. Ohio used the EPA 1995 baseline inventory list that contained the NOX 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 NOX SIP Call Phase II budget. Compliance plans are expected to show that control of these 12 units will bring about reductions of NOX to meet the portion of the NOX 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 NOX plan?

In order to reduce ozone transport in the eastern part of the United States, the EPA issued the NOX SIP Call on October 27, 1998, (63 FR 57356) to reduce emissions of NOX, 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 reissued 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 NOX SIP Call. B. What did Ohio submit?

Ohio's revision contains rules which add IC engines to the list of affected sources of NOX. The revision also includes some language changes to the original NOX SIP, and also changes in definitions and the addition of specific language for cogeneration units. These changes are located in OAC 37451401, 05, and 12, and Appendix B.

OAC 37451401 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 37451408, and 40 CFR part 75, and expanded the language in the state's rule pertaining to automated data acquisition and handling system and NOX 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 37451405, relating to Ohio's incorporation by reference of EPA's technical amendments to the NOX SIP Call Rule and ASTM standard test methods for several pollutants including NOX. This State rule revision includes Appendix B to the chapter, and lists the non electric generating unit's (nonEGU) annual NOX allowance allocations. This appendix contains corrections to errors on the list made in the point identification portion of the State's Appendix B for nonEGUs.

OAC 37451412, Stationary internal combustion engines, is an entirely new rule which applies to large NOX SIP Call engines as defined in OAC 37451401. 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 NOX SIP Call. On August 5, 2003, 68 FR 46089, EPA published a final rule giving conditional approval of the Ohio NOX 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 NOX 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 NOX budgets for States subject to the NOX SIP Call. The final full NOX 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 NOX 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 NOX 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 374514 01) of: (1) A standard test method for determining NOX concentrations in emissions from natural gasfired 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 NOX SIP Call, NOX 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 NOX 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 preexisting 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. 1044).

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

Authority: 42 U.S.C. 7401 et seq.
Subpart KKOhio
2. Section 52.1870 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) 37451412. This rule adds stationary internal combustion engines to the list of sources in the Ohio NOX SIP Call emission reduction program. Also, OAC 374514 01, General Provisions, is amended. This rule contains definitions used for the nitrogen oxides rules, expands the definition of NOX budget unit, adds definitions for the internal combustion engine rule, amends definition associated with continuous emissions monitoring, and makes corrections to typographical errors. OAC 37451405 Portions of this rule are amended to correctly line up with the changes made in the definitions section of the NOX 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 37451401, General Provisions, effective on May 07, 2005. (B) OAC 37451405, NOX Allowance Allocations, effective on May 07, 2005.
(C) OAC 37451412, Stationary Internal Combustion Engines, effective on May 7, 2005.
[FR Doc. E81797 Filed 2108; 8:45 am]
BILLING CODE 656050P

FOR FURTHER INFORMATION CONTACT John Paskevicz, Engineer, Criteria Pollutant Section, Air Programs Branch (AR18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. The telephone number is (312) 8866084. Mr. Paskevicz can also be reached via electronic mail at: paskevicz.john@epa.gov.

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