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Approval and Promulgation of Air Quality Implementation Plans; Ohio; Revision to Ohio State Implementation Plan To Rescind Oxides of Nitrogen Rule

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Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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Environmental Protection Agency (EPA).


Final rule.


EPA is approving a revision to the Ohio State Implementation Plan (SIP) submitted by Ohio on April 11, 2005 to rescind a rule which affected stationary combustion sources located within Priority I regions of the State and new sources regardless of location. The rule revision we are approving here also applies to nitric acid manufacture. We are taking this action at the request of the Ohio Environmental Protection Agency (Ohio EPA) because this rule is no longer the limiting regulation for any oxides of nitrogen (NOX) emission units in the State. The rule was originally approved by EPA over 30 years ago and since then has been superseded by a number of more stringent State and Federal regulations. The Ohio NOX SIP call rules and Federal emission standards for utility and industrial units all have greater potential for reducing emissions of NOX and improving human health than does the State's rescinded rule.


This final rule is effective on January 22, 2007.


EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2006-0354. All documents in the docket are listed on the Web site. 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 electronically through or in hard copy 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 John Paskevicz, Engineer at (312) 886-6084 before visiting the Region 5 office.

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John Paskevicz, Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6084, or e-mail at

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

I. What Action is EPA Taking?

II. What is the Background for the Action?

III. Final Action

IV. Statutory and Executive Order Reviews

I. What Action is EPA Taking?

EPA is approving the request from Ohio to rescind a rule, Ohio Administrative Code (OAC) 3745-23-06, which the State has determined no longer applies to any source in the State. The rule formerly applied to sources of oxides of nitrogen (NOX) including nitric acid plants and combustion sources greater than 250 million British Thermal Units (BTU) per hour. Ohio made this request on April 11, 2005, following public hearing. We reviewed the State's request and find that it meets the requirements for technical approvability and agreed that the rule is redundant with regard to control of large NOX combustion sources and nitric acid plants in the State. We agree that the rule has been superseded by recent State and Federal rules and is therefore no longer needed.

II. What is the Background for the Action?

The Ohio EPA sent a letter and supporting materials to EPA requesting to revise the Ohio SIP by eliminating that portion of plan which approved rule 3745-23-06 of the Ohio Administrative Code. Ohio EPA had made the determination that this rule, originally promulgated in 1972, was no longer viable because it had been superseded by more recent and more stringent rules. We agreed with Ohio EPA and on June 1, 2006, we published a proposal in the Federal Register (71 FR 31129) to approve the State's request. In that proposal we asked the public to comment on the State's request and noted that there are no sources in the State subject to rule OAC 3745-23-06. We gave the public thirty days to respond to our proposed action. We did not receive any comments on the proposal from the public either via the U.S. Postal Service or through the EPA public docket on the EPA Web site, Start Printed Page 76919and conclude that the State's request is approvable.

III. Final Action

EPA is approving the SIP revision request submitted by Ohio on April 11, 2005. We are publishing this action because it meets all of the technical requirements for a revision of the SIP. We received no comments from the public regarding this action.

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

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” 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).

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 pre-existing 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 (Public Law 104-4).

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 February 20, 2007. 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).)

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List of Subjects in 40 CFR Part 52

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Dated: December 12, 2006.

Bharat Mathur,

Acting Regional Administrator, Region 5.

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

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

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

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Subpart KK—Ohio

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2. Section 52.1890 is amended by adding paragraph (c) to read as follows:

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Removed control measures.
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(c) On April 11, 2005, the Ohio Environmental Protection Agency submitted a request to revise the State's plan controlling nitrogen oxide emissions from stationary sources in the State. The request included the results of the action taken by Ohio EPA to rescind OAC 3745-23-06, which affected emissions of oxides of nitrogen from combustion sources and nitric acid plants. This action was preceded by a negative declaration regarding nitric acid plants dated April 11, 1994, and Start Printed Page 76920rule approvals (NOX SIP Call, NSPS, budget trading program, etc.) affecting large fossil-fueled utility and industrial boilers. OAC 3745-23-06, Control of nitrogen oxide emissions from stationary sources, also known as AP-7-06 in its original form, is therefore removed from the Ohio SIP.

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[FR Doc. E6-21864 Filed 12-21-06; 8:45 am]