Air Plan Approval; Ohio; Approval of Sulfur Dioxide Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving Ohio's revisions to its State Implementation Plan (SIP) for sulfur dioxide (SO₂) under the Clean Air Act (CAA). These revisions update facility information statewide and add new emission limits for selected sources in Lake and Jefferson Counties. EPA proposed to approve Ohio's SIP revision request on August 16, 2018. The revised regulations do not impose additional emission restrictions except for certain site-specific provisions which have been included in response to Ohio's nonattainment area designations of August 5, 2013. EPA received no adverse comments and is finalizing the approval.

DATES:

This final rule is effective on November 13, 2018.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2017-0165. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (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 through www.regulations.gov or 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 Federal holidays. We recommend that you telephone Mary Portanova, Environmental Engineer, at (312) 353-5954 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Mary Portanova, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-5954, portanova.mary@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. Background

II. Public Comment and EPA Response

III. What Action is EPA Taking?

IV. Incorporation by Reference

V. Statutory and Executive Order Reviews

I. Background

On March 13, 2017, Ohio submitted revisions to the Ohio Administrative Code Chapter 3745-18 (OAC 3745-18), effective on February 16, 2017, for incorporation by EPA into the Ohio SO₂ SIP. OAC 3745-18 contains Ohio's air emission regulations for SO₂, which include both generally applicable requirements and specific SO₂ emission limits for each Ohio county. The revisions update facility information statewide, remove obsolete emission limits, and add new emission limits for selected sources in Lake and Jefferson Counties. On August 16, 2018 (83 FR 40723), EPA proposed to approve the submitted revisions. EPA is taking no action on certain parts of OAC 3745-18-04. EPA received no adverse public comments on this proposal; see the discussion in section II below.

Ohio's March 13, 2017 submittal included rules which Ohio had developed to address CAA requirements for its 1-hour SO₂ nonattainment areas. EPA proposed to approve the revised rules applicable to Ohio's nonattainment areas because these revisions update and strengthen the state's SO₂ SIP. See section II C of the August 16, 2018 (83 FR 40723) notice of proposed rulemaking. The approval of these rules is not intended to address whether Ohio has fully satisfied EPA's nonattainment planning requirements for the nonattainment areas. EPA proposed to approve Ohio's nonattainment plan for the Lake County nonattainment area on August 21, 2018 (83 FR 42235), and intends to address nonattainment planning requirements for the remaining nonattainment areas in subsequent actions.

II. Public Comment and EPA Response

The comment period on EPA's August 16, 2018 (83 FR 40723) notice of proposed rulemaking closed on September 17, 2018. EPA received one public comment, which generally supported EPA's proposed action. This comment and EPA's response are described below.

Comment: The commenter stated that fewer emissions are better emissions, and advocated the use of silicon for harnessing energy in solar cells.

EPA Response: The revised rules do represent a reduction in total SO₂ emissions in Ohio. The remainder of this comment is beyond the scope of EPA's action on Ohio's submittal.

III. What action is EPA taking?

EPA is approving Ohio's March 13, 2017 submittal of OAC 3745-18-01; OAC 3745-18-03; and OAC 3745-18-04 [except OAC 3745-18-04(D)(2), (D)(3), (D)(5), (D)(6), and (D)(9)(c), and OAC 3745-18-04 (E)(2), (E)(3) and (E)(4)]. EPA is also approving OAC 3745-18-05 and OAC 3745-18-07 through OAC 3745-18-94. Ohio's adoption of these rules was effective on February 16, 2017. EPA is taking no action on OAC 3745-18-04(D)(2), (D)(3), (D)(5), (D)(6), and (D)(9)(c), and OAC 3745-18-04 (E)(2), (E)(3) and (E)(4). EPA is also removing OAC 3745-18-02 from the Ohio SO₂ SIP, pursuant to Ohio's request of September 10, 2009 . In the codification of this rule, besides specifying the approved rules in 40 CFR 52.1870, EPA is also removing text in 40 CFR 52.1881 that provided a duplicated and outdated listing of approved and disapproved Ohio rules.

IV. Incorporation by Reference

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Ohio regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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 action 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

2. In § 52.1870, the table in paragraph (c) is amended by revising all the entries for “Chapter 3745-18 Sulfur Dioxide Regulations” to read as follows:

3. Section 52.1881 is amended by:

a. Revising paragraph (a) introductory text; and

b. Removing and reserving paragraphs (a)(1) through (6).

The revision reads as follows: