Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to determine that an October 26, 2010, action was in error and to make a correction pursuant to section 110(k)(6) of the Clean Air Act (CAA). The correction will bring the codification section of the October 26, 2010, action into accord with the actual substance of the rulemaking action. The October 26, 2010, final rule approved various revisions to Ohio regulations that consolidated air quality standards in a new chapter of rules and adjusted the rule cross references accordingly in various related Ohio rules, including a specific revision to the cross reference in the Ohio Administrative Code (OAC) pertaining to methods for measurements for comparison with the particulate matter air quality standards. The correction will remove the appearance that EPA approved extraneous portions
Comments must be received on or before March 10, 2014.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2009–0807, by one of the following methods:
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John Summerhays, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6067,
This
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
This proposed action is to correct an error in an earlier EPA rulemaking, using the authority of section 110(k)(6) of the CAA. Section 110(k)(6) provides EPA with explicit authority to correct errors in prior rulemaking actions:
Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and the public.
The error at issue here occurred in an October 26, 2010, EPA rulemaking action pertaining to revisions to the SIP for the State of Ohio. On that date, EPA
Among the existing state regulations revised in the SIP submission was OAC 3745–17–03. The state gave no indication that it was revising OAC 3745–17–03 substantively or seeking EPA approval of any substantive revisions to that state regulation; the only revision identified by the state in the SIP submission was a revision to a cross reference in OAC 3745–17–03(A).
EPA's October 26, 2010, action reflected EPA's evaluation of the state's SIP submission, and EPA's approval of the various individual revisions requested by the state for the express purpose of consolidating the state's regulations. Unfortunately, in approving the state's SIP submission, EPA erred by publishing a notice which did not properly reflect the precise rule revision submitted by the state in OAC 3745–17–03. Specifically, the state's SIP submission requested that EPA approve a revision to OAC 3745–17–03, which the state itself reflected in “redline and strikeout” as merely one isolated change in OAC 3745–17–03(A),
However, EPA stated in the October 26, 2010, action that it “is approving the following Ohio Administrative Code rules: 3745–17–03 `Measurement methods and procedures' . . . .” This statement was incorrect because it did not clearly describe the precise revision being approved by EPA and the erroneous omission of the citation to subsection “(A)” left the misimpression that EPA was approving more than the revised cross reference in OAC 3745–17–03(A). EPA also codified this change with an incorporation by reference described in the October 26, 2010, notice as “(A) Ohio Administrative Code Rule 3745–17–03 `Measurement methods and procedures', effective April 18, 2009.” EPA should have explicitly limited that codification to OAC 3745–17–03(A). As evidenced by the lack of any evaluation or discussion of any substantive revisions to OAC 3745–17–03 whatsoever, and in light of the then pending proposed disapproval of certain substantive revisions to OAC 3745–17–03, it is evident that EPA did not intend, and could not have intended, to approve any revisions to OAC 3745–17–03 beyond the revised cross reference in OAC 3745–17–03(A).
EPA subsequently discovered the error in the October 26, 2010, rulemaking when EPA noticed the incorrect codification of OAC 3745–17–03 in the Ohio SIP in early 2013.
In response to EPA's April 3, 2013 notice, one party filed a petition for reconsideration requesting that EPA reconsider its procedure in this matter and requesting that EPA instead proceed using the SIP error correction procedure of section 110(k)(6) of the CAA. The same party and other parties also filed petitions for review challenging the April 3, 2013 action, likewise reflecting their views that EPA should use the procedure of section 110(k)(6) to address the error in the October 26, 2010, rulemaking.
Although EPA believes that the Administrative Procedures Act authorizes action without notice and comment in circumstances such as those presented in this particular situation, EPA has nevertheless elected to correct the error in the October 26, 2010, action through a notice and comment procedure using the explicit authority of section 110(k)(6) in this action.
Except for this specific error identified in this proposed action under section 110(k)(6), EPA is not revising its action in the October 26, 2010, action. EPA is not aware of any other errors associated with that action.
EPA's October 26, 2010, action was in error. In acting upon the September 10,
EPA's lack of precision in the preamble and in the codification in the October 26, 2010, action led to an incorrect codification in 40 CFR 52.1870, which erroneously could have suggested that EPA had approved substantive revisions to OAC 3745–17–03 in the Ohio SIP beyond the mere requested revision to the cross reference in OAC 3745–17–03(A).
EPA believes that this is precisely the type of scenario in which Congress has given EPA explicit authority to revise prior erroneous actions pursuant to section 110(k)(6). Accordingly, EPA is proposing to determine that its October 26, 2010, action was in error to the extent that it appeared to approve revisions to OAC 3745–17–03, beyond the mere approval of the revised cross reference in OAC 3745–17–03(A).
Even if EPA's mere failure to include the specific reference to subsection “(A)” of OAC 3745–17–03 in the October 26, 2010, action could have accidentally and unintentionally resulted in an approval of all of the other substantive changes in the version of OAC 3745–17–03 that the state failed to discuss or identify in the September 10, 2009, SIP submission, and that EPA failed to discuss or identify in its October 26, 2010, action, that would also have been in error as EPA cannot approve such substantive SIP revisions without proposing to do so, explaining the proposal, taking comment on the proposal, responding to comment on the proposal, and explaining the final approval. EPA could not have approved other substantive revisions claimed by some parties
The error at issue resulted from a combination of causes, related to unintended ambiguities in both the state's SIP submission and EPA's October 26, 2010, action upon that SIP submission. The ambiguities in the September 10, 2009, SIP submission include: (i) The state's cover letter referred to the amendment of “OAC 3745–17–03” without highlighting that the actual requested amendment at issue was only in OAC 3745–17–03(A); (ii) the state's cover letter requested that EPA “accept the new and amended rules as replacements for the rules currently in our SIP” but without enumerating the specific revised subsections for such replacements; and (iii) although the state did include a redline/strikeout version to reflect the specific amendment in question, the state provided a redline/strikeout version against a version of OAC 3745–17–03 that was not the current version of OAC 3745–17–03 approved by EPA in the SIP.
Notwithstanding any ambiguity in the state's SIP submission, however, EPA should have noted the ambiguities and should have been clearer in describing its own actions in the October 26, 2010, action. In acting upon the specific revision to OAC 3745–17–03 at issue in the September 10, 2009, SIP submission, EPA should have: (i) Explicitly articulated that it was evaluating and approving only the revision to the replaced cross reference in OAC 3745–17–03(A) identified in the SIP submission by the state; (ii) correctly referred to and cited 3745–17–03(A) specifically in the notice and the codification, rather than OAC 3745–17–03 in general; (iii) should have noticed and addressed the fact that the version of OAC 3745–17–03 that the state used as the baseline from which it identified revisions was not the current approved version in the Ohio SIP; and (iv) should have noted the pending proposed disapproval of certain substantive revisions to OAC 3745–17–03 from another prior SIP submission. The confusion injected in part by EPA's failure to notice and address the significant unnoted substantive differences between the SIP version and the submitted version of OAC 3745–17–03 led some parties to take the position that EPA had approved substantive revisions to OAC 3745–17–03 beyond those actually approved by EPA.
EPA believes that it should have been apparent that the October 26, 2010, action contained an error. First, although the state's September 10, 2009, SIP submission appeared to request that EPA approve “OAC 3745–17–03” in its entirety instead of being clear that only the cross reference in OAC 3745–17–03(A) was at issue, the attached redline/strikeout version of the rule included in the SIP submission highlighted only the replaced cross reference OAC 3745–17–03(A). The state identified no other revisions to OAC 3745–17–03, either in its description of the revision or in the redline/strikeout version of the regulation. Moreover, the “Rule Summary and Fiscal Analysis” submitted as part of the state's September 10, 2009, submission explicitly stated that the purpose of the state's own regulatory revision to OAC 3745–17–03 was “to update a citation to OAC rule 3745–17–02 in paragraph (A).”
Second, the version of OAC 3745–17–03 submitted by the state as part of the SIP submission did not reflect or identify revisions relative to the version of that rule that had actually been approved by EPA into the SIP. The version of OAC 3745–17–03 that had been approved by EPA into the Ohio SIP was the version effective in the state as of January 31, 1998, approved by EPA
Third, there is a pending rulemaking in which EPA proposed to disapprove certain substantive revisions to OAC 3745–17–03 contained in a June 4, 2003, SIP submission, during which EPA received comments both supporting and opposing the proposed disapproval.
Given the foregoing facts, EPA believes that its October 26, 2010, action with respect to OAC 3745–17–03 was clearly in error. EPA could not have approved any revision, except with respect to the revision to the cross reference in OAC 3745–17–03(A) specifically requested by the state in the SIP submission. Moreover, given the context, EPA believes that the error should have been evident at the time of the action. The foregoing facts form the basis for EPA's proposed determination that the October 26, 2010, action was in error.
Pursuant to section 110(k)(6), EPA is proposing to determine that its October 26, 2010, rulemaking was in error to the extent that it appeared to approve revisions to OAC 3745–17–03 beyond the revision to the cross reference in OAC 3745–17–03(A). Through today's action, EPA is proposing to clarify that in the October 26, 2010, action, EPA did not approve any revisions to OAC 3745–17–03 except for the specific revision to the cross reference in OAC 3745–17–03(A) requested by the state. But for that change, the currently applicable version of OAC 3745–17–03 in the Ohio SIP is the version effective in the state on January 31, 1998, approved by EPA on October 16, 2007. The currently applicable version of OAC 3745–17–03 in the Ohio SIP does not contain any revisions addressed in EPA's proposed approval and disapproval on June 27, 2005.
On April 3, 2013, EPA used its authority under section 553 of the Administrative Procedures Act to amend the erroneous codification in its October 26, 2010, rulemaking without notice and comment rulemaking to reflect more clearly that EPA had only approved the one isolated revision requested by the state in OAC 3745–17–03, i.e, the revision of the cross reference in OAC 3745–17–03(A). That corrected codification is already reflected in the CFR, i.e., the
EPA is soliciting comment on this proposed action under section 110(k)(6). By this means, EPA is taking proposed action to correct the erroneous codification of its October 26, 2010, rulemaking by clarifying that the only portion of Ohio's submittal on September 10, 2009, of OAC 3745–17–03 that should be codified as approved by EPA is OAC 3745–17–03(A). To reiterate, the only revision that EPA approved to OAC 3745–17–03 in the October 26, 2010, action is the revised cross reference in OAC 3745–17–03(A).
EPA believes that the facts set forth in this proposal demonstrate clearly that the October 26, 2010, action was in error to the extent that it appeared to approve revisions to OAC 3745–17–03 beyond the revision to the cross reference in OAC 3745–17–03(A). If EPA takes final action as proposed in this notice, EPA will also reaffirm the codification of OAC 3745–17–03(A) in 40 CFR 52.1870 (c)(151)(i)(A). EPA is not reconsidering its October 26, 2010, action with respect to any other issues. EPA is also not in this rulemaking addressing the substance of provisions of OAC 3745–17–03 other than paragraph (A), which are outside the scope of the revision requested in the state's September 10, 2009, SIP submission and EPA's October 26, 2010, rulemaking. In
EPA notes that it is neither staying nor revoking the correction action in the April 3, 2013, notice, because that could be misleading to regulated entities, regulators, and members of the public alike. Because the error in the October 26, 2010, action was in essence a typographical error, and because there was no actual approval of any revisions to OAC 3745–17–03 other than the revised cross reference in OAC 3745–17–03(A), the previously approved version of the remainder of OAC 3745–17–03 remains in effect in the Ohio SIP. Based upon the still pending proposed disapproval of certain substantive revisions to OAC 3745–17–03, EPA believes that parties such as regulated entities affected by those substantive revisions would be well aware of this fact, but not all other parties should be expected or presumed to have this degree of understanding or responsibility to be informed. While EPA is pursuing correcting action under authority of CAA section 110(k)(6), to supersede the correcting action under the Administrative Procedures Act, that EPA published on April 3, 2013, EPA anticipates that the codification as corrected pursuant to section 110(k)(6) will replicate the codification as corrected on April 3, 2013. Accordingly, EPA is not staying or revoking the correction in the April 3, 2013, action, in the interim during this rulemaking under section 110(k)(6). The April 3, 2013, action will become moot once EPA takes final action on today's proposal.
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. This action merely corrects an error in EPA's prior action 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 Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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
• 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.