80 FR 68458 - Air Plan Approval; Ohio; Test Methods; Error Correction
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 80, Issue 214 (November 5, 2015)
Federal Register Volume 80, Issue 214 (November 5, 2015)
| Page Range | 68458-68465 | |
| FR Document | 2015-28095 |
[Federal Register Volume 80, Number 214 (Thursday, November 5, 2015)] [Rules and Regulations] [Pages 68458-68465] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-28095] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2009-0807; FRL-9936-54-Region 5] Air Plan Approval; Ohio; Test Methods; Error Correction AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is determining that a portion of an October 26, 2010, action was in error and is making a correction pursuant to section 110(k)(6) of the Clean Air Act. The October 26, 2010, EPA action approved various revisions to Ohio regulations in the EPA approved state implementation plan (SIP). The revisions were intended to consolidate air quality standards into a new chapter of rules and to adjust the cross references accordingly in various related Ohio rules. These changes included a specific revision to the cross reference in the Ohio rule pertaining to methods for measurements for comparison with the particulate matter air quality standards. This final correction action removes any misperception that EPA approved any revision to the pertinent rule other than the revised cross reference. This action will therefore assure that the codification of the October 26, 2010, action is in accord with the actual substance of the action. DATES: This final rule is effective on December 7, 2015. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2009-0807. All documents in the docket are listed on the www.regulations.gov 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 www.regulations.gov 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 Summerhays, Environmental Scientist, at (312) 886-6067 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: 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, [email protected]. SUPPLEMENTARY INFORMATION: This supplementary information section is arranged as follows: I. Summary of EPA's Proposed Rulemaking II. Comments and EPA's Responses III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. Summary of EPA's Proposed Rulemaking On June 4, 2003, Ohio submitted a variety of revisions to the EPA approved version of Ohio Administrative Code (OAC) 3745-17 in the state's SIP, which regulates particulate matter and opacity from affected sources. While EPA subsequently approved many of these revisions, EPA published action on June 27, 2005, proposing to disapprove specific submitted revisions in OAC 3745-17-03(B) that in EPA's view relaxed existing SIP opacity limitations without an adequate analysis under section 110(l) or section 193 of the Clean Air Act.\1\ Consistent with this proposed disapproval, the version of OAC 3745-17- 03(B) submitted by the state on June 4, 2003, was not, and is not, an approved provision of the Ohio SIP. --------------------------------------------------------------------------- \1\ See 70 FR 36901 (June 27, 2005). --------------------------------------------------------------------------- On September 10, 2009, for purposes of consolidating its existing SIP rules identifying applicable air quality standards, and to adjust the cross references between rules accordingly, Ohio submitted additional revisions to several of its existing rules to EPA for approval into the SIP. Most notably, these rule revisions included a modification to the existing cross reference in OAC 3745-17-03(A), which was necessary because the ambient particulate matter measurement method identified in this paragraph was for purposes of assessing attainment with the ambient air quality standards now located in OAC 3745-25-02, rather than in OAC 3745-17-02. On October 26, 2010, at 75 FR 65572, EPA published a direct final action approving the relevant revisions in the September 10, 2009, submission. In the preamble and in the codification of the October 26, 2010, action, EPA erroneously listed the approved SIP revisions as including the entirety of OAC 3745-17-03, rather than specifying more precisely that the approval as it pertained to OAC 3745-17-03 applied only to the revised cross reference in OAC 3745-17-03(A). This error left the misimpression that EPA had approved other significant substantive revisions in OAC 3745-17-03, including those in OAC 3745- 17-03(B) that EPA had previously proposed to disapprove. The codification in the October 26, 2010, action with respect to OAC 3745- 17-03 should have been explicitly limited to OAC 3745-17-03(A), to reflect the EPA approval of only the revised cross reference. EPA subsequently recognized that the codification erroneously left the misimpression that it had approved more of OAC 3745-17-03 than the revision of the cross reference in OAC 3745-17-03(A). On April 3, 2013, at 78 FR 19990, EPA published action to correct the error. EPA took this action pursuant to its general rulemaking authority under Administrative Procedures Act section 553. Two parties challenged EPA's April 3, 2013, action, and one of these parties also filed a petition for reconsideration of that action, objecting that EPA failed to correct the error in the October 26, 2010, action in accordance with the procedures of section 110(k)(6) of the Clean Air Act. EPA responded to the petition for reconsideration by agreeing to take this action pursuant to section 110(k)(6), as requested by the petitioner. Accordingly, EPA published proposed rulemaking on February 7, 2014, using its authority under section 110(k)(6) to correct errors in its rulemaking of October 26, 2010.\2\ Given the petitioners' expressed interest in commenting on EPA's action, EPA elected to use its authority under section 110(k)(6) for this action because, under these circumstances, it would provide the best mechanism to correct the apparent misunderstandings concerning the error in the October 26, 2010, action. --------------------------------------------------------------------------- \2\ See 79 FR 7412 (Feb. 7, 2014). --------------------------------------------------------------------------- EPA's February 7, 2014, proposal provides an extensive description of the error in its October 26, 2010, rulemaking, provided in subsections entitled, ``What was the error in description and codification?'', ``What precipitated this error?'', and ``Why was it evident that this was an error?'' It is not necessary to repeat that detailed explanation here. EPA proposed to correct the error to remove any misimpression in its October 26, 2010, [[Page 68459]] rulemaking that EPA had approved any revisions to OAC 3745-17-03 other than the cross reference in OAC 3745-17-03(A). Specifically, EPA proposed to take action pursuant to Clean Air Act section 110(k)(6) repromulgating the correction published on April 3, 2013. EPA solicited comments on this proposed error correction, while noting that any comments on the technical or legal merits of certain substantive revisions to OAC 3745-17-03 (e.g., the opacity-related provisions in OAC 3745-17-03(B)) or on the pending proposed disapproval of those provisions would not be germane to this error correction rulemaking. EPA intended to correct the error in the October 26, 2010, action first and then separately to complete the action to address the merits of the substantive revisions to OAC 3745-17-03 in the June 4, 2003, SIP submission that were the subject of the June 27, 2005, proposed disapproval. To this end, EPA published a supplemental proposal on June 26, 2014, reopening comment on its prior proposed disapproval of revisions to OAC 3745-17-03.\3\ Subsequently, however, Ohio has withdrawn the portion of the June 4, 2003, submission that EPA proposed to disapprove.\4\ --------------------------------------------------------------------------- \3\ See 79 FR 36277 (June 26, 2014). \4\ See letter from Craig W. Butler, Director, Ohio EPA, to Susan Hedman, Regional Administrator, USEPA Region 5, dated September 5, 2014, ``request[ing] withdrawal of [Ohio's] June 4, 2003 request to incorporate paragraph (B)(1)(b) into Ohio's SIP.'' --------------------------------------------------------------------------- Accordingly, since the provisions is withdrawn, EPA does not need to complete action on the June 4, 2003, SIP submission. Significantly, this also confirms that the submitted substantive revisions to OAC 3745-17-03 are not part of the EPA approved SIP and that the EPA's October 26, 2010, action could not have revised those elements of the existing version of OAC 3745-17-03 in the SIP, inadvertently or otherwise. Except for an amendment to the cross reference to ambient air quality standards in OAC 3745-17-03(A) (which EPA approved on October 26, 2010), the version of OAC 3745-17-03 in the SIP remains the version effective in the state on January 31, 1998, approved by EPA on October 16, 2007. II. Comments and EPA's Responses EPA received comments on its proposed error correction from three parties: (i) The Ohio Environmental Protection Agency (Ohio EPA); (ii) the Ohio Utility Group; and (iii) a group including the Ohio Chamber of Commerce, Ohio Manufacturers Association, and Ohio Chemistry Technology Council (Chamber et al.). The following are significant adverse comments from each commenter and EPA's responses. Ohio EPA Comment: The commenter asserted that: ``On February 7, 2014, U.S. EPA proposed, as an error correction, to remove from Ohio's State Implementation Plan (SIP) a previously approved (October 26, 2010) portion of OAC Rule 3745-17-07 regarding methods for measurements to determine compliance with Ohio's 20% opacity limitation.'' \5\ With this statement, the commenter is implying that EPA in fact approved substantive revisions to OAC 3745-17-03 in the October 26, 2010, action, rather than merely approved the cross reference in OAC 3745-17- 03(A). The commenter suggested that EPA acted on ``the entirety'' of the revisions to OAC 3745-17-03. --------------------------------------------------------------------------- \5\ EPA's October 26, 2010, rulemaking makes no reference to OAC 3745-17-07 (containing opacity limits). EPA presumes that the commenter intends to refer to OAC 3745-17-03, which among other provisions has provisions relating to measurement of opacity. --------------------------------------------------------------------------- Response: EPA disagrees with the commenter's premise that the Agency approved any portion of OAC 3745-17-03 other than the revision to the cross reference in OAC 3745-17-03(A). EPA's February 17, 2014, proposed action rule provides an extensive explanation of the error that occurred in the October 26, 2010, action and the genesis of the error. Ohio's clearly stated purpose in making the September 10, 2009, submission was to consolidate its existing SIP provisions relating to ambient air quality standards and to revise certain cross references in existing approved SIP rules in order to reflect that reorganization. The specific SIP revisions at issue in the state's submission were reflected in redline and the redlined document identified the cross reference in OAC 3745-17-03(A) as the only revision relevant to OAC 3745-17-03. This indicates that approval of any substantive revisions in OAC 3745-17-03(B) would have been beyond the scope of the rulemaking. Moreover, EPA had already proposed to disapprove revisions to OAC 3745-17-03(B) on June 27, 2005, EPA received numerous, substantial comments for and against that proposed disapproval, and the rulemaking of October 26, 2010, provided no evidence of consideration of any of these comments. Although the commenter described EPA's proposed error correction action as an action to ``remove . . . a previously approved'' portion of rule, this is simply incorrect. EPA did not ``previously approve'' the portions of OAC 3745-17-03 that the Agency rulemaking of October 26, 2010, did not substantively address. EPA fully acknowledged in the February 17, 2014, proposal that the error that occurred in the October 26, 2010, action was the result of misunderstandings and miscommunications that it is seeking to rectify in this final error correction action. EPA is taking this final action in order to avoid further confusion on the part of regulated entities, regulators, and members of the public. Comment: The commenter stated that it ``firmly believes [that the provision in OAC 3745-17-03(B)] is fully approvable.'' The commenter explained that it was ``attaching, and reaffirming'' its prior comments on EPA's proposed disapproval of this provision in the June 27, 2005, action. The commenter further requested that ``[c]onsideration should be taken to the previous comments submitted by Ohio EPA and others regarding the approvability of the provision at question in this action.'' Response: As explained in the February 17, 2014, proposal for this action, EPA is focusing this section 110(k)(6) rulemaking on the specific error that occurred in the October 26, 2010, action. This rulemaking is not addressing the substantive merits of any portion of OAC 3745-17-03. Instead, this rulemaking is addressing whether EPA made an error in its October 26, 2010, rulemaking by including a codification that went beyond the scope of the rulemaking and whether EPA should correct that error by correcting the codification to reflect that the only portion of OAC 3745-17-03 that was addressed in that rulemaking was the cross reference in OAC 3745-17-03(A). Accordingly, the commenter's resubmission of its prior comments on the June 27, 2005, proposed disapproval is inappropriate and not germane to this action. In addition to being outside the scope of this error correction action, EPA notes that the commenter's arguments also support EPA's conclusion that the October 26, 2010, action was in error to the extent that it appeared to approve any revision beyond the cross reference in OAC 3745-17-03(A). The commenter explicitly acknowledged that EPA previously received significant comments concerning the merits of OAC 3745-17-03(B), in particular comments that in the commenter's view warrant reversal of EPA's prior proposed disapproval. Furthermore, the commenter in effect argued that EPA has not adequately considered these comments. This is fully consistent with EPA's own observation that its October 26, 2010, rulemaking provided no [[Page 68460]] evidence of any consideration of public comments concerning OAC 3745- 17-03(B) whatsoever (again, because this provision was outside the scope of that rulemaking). Thus, the commenter appeared to agree with EPA's view that the October 26, 2010, rulemaking does not provide any evidence of the consideration of comments regarding OAC 3745-17-03(B) that would be necessary for any approval or disapproval of OAC 3745-17- 03(B) to be considered lawful. Moreover, the commenter did not appear to dispute EPA's view that rulemaking on OAC 3745-17-03(B) could not be considered a lawful and valid part of the October 26, 2010, rulemaking even if it had been intended to be within the scope of the rulemaking. As explained in the February 17, 2014, proposal for this action, EPA had no such intentions and the fact that EPA did not address prior substantive comments on the merits of OAC 3745-17-03(B) should have alerted the commenter and other parties to this fact. Finally, EPA acknowledges the commenter's request that that EPA complete its consideration of comments on the merits of OAC 3745-17- 03(B), but such consideration is outside the scope of this rulemaking. By separate action, EPA intended to address the merits of the substantive revisions to OAC 3745-17-03 in the June 4, 2003, SIP submission that were the subject of the June 27, 2005, proposed disapproval. To this end, EPA published a supplemental proposal on June 26, 2014, reopening comment on its prior proposed disapproval of certain substantive revisions to OAC 3745-17-03.\6\ Subsequently, however, Ohio withdrew its submittal of revisions to OAC 3745-17- 03(B).\7\ This renders consideration of comments with respect to the withdrawn submission moot, both for purposes of the June 27, 2005, proposed disapproval and for purposes of this error correction action. --------------------------------------------------------------------------- \6\ See 79 FR 36277 (June 26, 2014). \7\ See letter from Craig W. Butler, Director, Ohio EPA, to Susan Hedman, Regional Administrator, USEPA Region 5, dated September 5, 2014, which may be found in the docket for this final action. --------------------------------------------------------------------------- Comment: The commenter objected that ``U.S. EPA has made certain assertions regarding [OAC 3745-17-03(B)] that go beyond the scope of this proposed correction. U.S. EPA refers to the provision as `significant and substantive' and states the `unapproved' revisions `would allow significantly more opacity during certain periods.' '' The commenter disputed these statements. The commenter asserted its belief that ``U.S. EPA has crossed the threshold and cannot go forward with the package under 110(k), since U.S. EPA is now making a technical argument as to why the previously approved SIP revision is no longer acceptable.'' The commenter also argued that ``as a procedural matter, U.S. EPA must start over from the beginning and outline and address the entire technical issue in full and not use the 110(k) `error' approach.'' Response: The premise of the commenter's arguments is that EPA's February 17, 2014, action in effect proposed to finalize EPA's prior proposed disapproval of certain portions of OAC 3745-17-03, not merely correcting the error that led to the misimpression that EPA had already approved the revisions in toto. The commenter is thereby ignoring EPA's clear statements about the actual scope of this error correction. As explained in the February 17, 2014, proposal for this action, EPA is focusing this section 110(k)(6) rulemaking on the specific error that occurred in the October 26, 2010, action. EPA provided extensive discussion and explanation of the error that occurred in the October 26, 2010, action and why EPA could not be considered to have acted on any revisions to OAC 3745-17-03 that were outside the scope of that rulemaking. EPA explained the significance of OAC 3745-17-03(B) in the February 17, 2014, proposal as a means of explaining why EPA considered it important to correct the errors in its October 26, 2010, rulemaking. EPA noted in passing that it had already proposed to disapprove certain provisions for reasons that were already a matter of public record in the Federal Register as a means of emphasizing that it could not have approved those revisions in the October 26, 2010, action without an explicit discussion and justification for any such approval. The commenter appears to agree that the revisions in OAC 3745-17- 03(B) that it advocated for EPA to approve are significant and substantive. EPA statements regarding the significance of the error, however, cannot be considered to constitute final review of the merits of the erroneously addressed provisions. The October 26, 2010, action clearly did not address the merits of OAC 3745-17-03(B), and EPA's action proposing to correct an error related to these provisions did not address the merits of these provisions either. The commenter disagreed in particular with EPA's characterization of OAC 3745-17-03(B) in the February 17, 2014, proposal as allowing significantly more opacity during certain periods. A more precise statement would have been that EPA had proposed to disapprove the pertinent revisions to OAC 3745-17-03(B) in the June 27, 2005, proposal based in significant part on the view that the revisions would allow significantly more opacity during certain periods. The commenter, along with several other commenters, has disputed EPA's proposed views regarding the merits of OAC 3745-17-03(B). As explained in detail in the February 17, 2014, proposal for this error correction, however, EPA did not intend, and could not have intended, to address the substantive merits of those revisions in the October 26, 2010, action. Indeed, with Ohio's withdrawal of its request for rulemaking on these provisions, EPA will no longer be conducting final rulemaking on the merits of OAC 3745-17-03(B). Nevertheless, the more relevant point is that the existence of these disputes as to the merits of OAC 3745-17-03(B) illustrates the importance of correcting any errors that might create the misimpression that EPA had completed its review of these issues. EPA believes that the significance of the provisions in OAC 3745-17- 03(B) and the outstanding questions regarding whether those provisions could have been approved consistent with CAA requirements provide added value to correcting any misimpressions regarding the status of those provisions, namely misimpressions reasserted in these comments that EPA had already completed rulemaking on these provisions. Contrary to the commenter's statement, EPA's proposed rulemaking to correct the errors in its October 26, 2010, action was not based on a technical argument regarding the merits of OAC 3745-17-03(B), including any technical argument as to whether these provisions allow significantly more opacity during certain periods. This assertion regarding whether the now withdrawn revisions to OAC 3745-17-03 would allow more opacity (made in EPA's 2005 proposed rulemaking addressing the merits of Ohio's now withdrawn SIP revision and contested by various commenters) illustrates the significance of the error in the October 26, 2010, action. However, the commenter provided no reason why characterization of the issue as significant and identification of any of the unresolved issues that were not addressed in the October 26, 2010, rulemaking (or elsewhere) should preclude EPA from assuring that the [[Page 68461]] October 26, 2010, rulemaking is characterized properly. Comment: The commenter objected to EPA statements in a separate unrelated rulemaking regarding SIP revisions for the State of Alabama. The commenter referred to EPA statements that the commenter characterized as citing ``the 2005 proposed disapproval of Ohio's revision, in part, as justification for the proposed disapproval of Alabama's revision.'' The commenter further asserted that this ``mislead[s] the readers of the Alabama proposal that Ohio's proposed disapproval has followed its due course, when it has not.'' The commenter requested that ``any action taken on the Alabama proposal should not be used as justification for disapproving Ohio's provision.'' Response: EPA acknowledges that the proposed action concerning the State of Alabama mentioned the June 27, 2005, proposed disapproval of the Ohio submission. The existence of that proposal was, and is, a matter of record. EPA mentioned the June 27, 2005, proposed disapproval merely as means of explaining its views on relevant issue, not as a basis for a particular final action. The commenter did not explain why this comment concerning a proposed action in another state is relevant to the present error correction action concerning Ohio, nor does EPA consider it germane to this final action. In any event, the state has now withdrawn the portion of the submission that EPA proposed to disapprove, so this comment is moot. Ohio Utility Group Comment: The commenter asserted that ``U.S. EPA's action is not trivial and is not a mere `correction.' In support of this statement, the commenter recited its view of the history of rulemaking on OAC 3745-17-03(B), including adoption by Ohio and proposed disapproval by EPA. The commenter observed that EPA received extensive comments on the June 27, 2005, proposed disapproval, but acknowledged that ``U.S. EPA never finalized this proposed action and, based on a review of the record, U.S. EPA never responded to comments submitted on this proposed rule.'' The commenter presented a summary of arguments in support of the merits of the opacity ``exemption'' in OAC 3745-17-03(B) that EPA proposed to disapprove in the June 27, 2005, proposal, and concluded that ``this exemption is technically defensible and the data [compiled to formulate the exemption] were never rebutted by U.S. EPA.'' Response: The commenter did not elaborate on its argument that EPA's proposed error correction action ``is not trivial'' or why EPA's proposed action is not consistent with EPA's authority to correct errors under section 110(k)(6). To the extent that the commenter is arguing that EPA's authority under section 110(k)(6) is limited to correcting ``trivial'' errors, EPA disagrees. On its face, section 110(k)(6) authorizes EPA to correct any error in a rulemaking action and does not restrict that authority to correction of errors that other parties might characterize as ``trivial.'' By its plain terms, EPA's authority under section 110(k)(6) extends broadly to ``action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification.'' Similarly, by its plain terms EPA's authority is not limited with respect to the nature or seriousness of the error, i.e., it is not restricted to correction of ``trivial'' errors. EPA and the commenters appear to agree on the fact that the revisions to OAC 3745-17-03(B) that EPA proposed to disapprove are important substantive provisions. In EPA's view, the importance of these provisions makes it necessary for EPA to clarify the fact that the October 26, 2010, rulemaking did not make any substantive revision to these provisions, and EPA cannot be considered to have lawfully acted on the revisions provisions without considering the comments for and against its June 27, 2005, proposal to disapprove them. Regardless of whether the error was ``trivial'' or not, EPA has concluded that the error warrants correction pursuant the authority of section 110(k)(6) (or under authorities that EPA is not using in this action). The commenters' substantive arguments regarding the merits of OAC 3745-17-03(B) are not germane here, because they are not relevant to determining whether the codification contained in EPA's October 26, 2010, action was an erroneous description of that rulemaking action. The only issue in this action is EPA's correction of the error. Moreover, now that the state has withdrawn the submission seeking substantive revisions to OAC 3745-17-03(B), these comments are moot. Comment: The commenter, in describing EPA's actions, states that ``[i]n 2010, . . . it appeared that U.S. EPA approved [OAC] 3745-17-03 in its entirety.'' Response: The commenter evidently agrees that EPA had only ``appeared'' to have approved substantive revisions to OAC 3745-17- 03(B) in the October 26, 2010, action, because that is how they themselves describe what occurred. Comment: The commenter made several assertions that it believes preclude EPA from finalizing this error correction. First, the commenter ``object[ed] to U.S. EPA's statement that a comment period was not required in issuing [the correction EPA published on April 3, 2013].'' The commenter stated that section 110(k)(6) dictates how EPA should make corrections to past rulemakings. The commenter also noted that section 110(k)(6) in particular requires that an error made through notice and comment rulemaking can only be corrected through notice and comment rulemaking. The commenter asserted that EPA's April 3, 2013, action to effectuate the correction of the October 26, 2010, action was invalid because it failed to meet this requirement of section 110(k)(6). Response: While EPA continues to believe that the Administrative Procedures Act provides independent authority for agencies to issue corrections, that authority was not the basis of this rulemaking. The commenter submitted a petition for reconsideration requesting that EPA publish notice and solicit comment pursuant to its error correction authority under Clean Air Act section 110(k)(6). EPA granted that request, and this action is the final step of the requested error correction rulemaking. The commenter objected to the procedure EPA used to correct the error in the April 3, 2013, rulemaking, but that rulemaking is being replaced by this rulemaking under section 110(k)(6). Thus, comments concerning the procedure EPA should or should not have followed with respect to the April 3, 2013, rulemaking are not relevant and in fact are made moot by this action. In short, EPA is correcting the error by the procedure that the commenter advocated. Comment: The commenter also objected that EPA did not have ``good cause'' (in its April 3, 2013, rulemaking) under the Administrative Procedures Act section 553(b) to make corrections without undergoing notice and comment. The commenter asserted its view that notice and comment (for EPA's April 3, 2013, action) was ``not impracticable, unnecessary or contrary to the public interest.'' In other words, the commenter disagreed with EPA's determination that there was a good cause exception to the normal requirements for notice and comment, given the nature of error at issue. Response: EPA disagrees with the commenter's conclusion that correction of what was essentially a typographical [[Page 68462]] error requires full notice and comment rulemaking in all cases. Nevertheless, EPA notes that this comment suggests that the commenter acknowledged that Administrative Procedures Act section 553(b) authorizes corrections, even without notice and opportunity for comment, so long as EPA adequately justifies the decision not to undergo notice and opportunity for comment. In any case, EPA concludes that this rulemaking does not invoke that authority to forego notice and comment for good cause, and this action makes moot the rulemaking (published April 3, 2013) that did invoke that authority. Comment: The commenter also objected to EPA's description of the error in the October 26, 2010, action as essentially a typographical error. The commenter claimed that ``[t]he Utilities did not submit comments [at the time of EPA's October 26, 2010, rulemaking] because U.S. EPA approved Ohio Adm. Code 3745-17-03 in its entirety as the notice indicated. Had the Utilities understood that these rules were selective to subpart (A), the Utilities may have submitted comments on this proposal.'' Response: As an initial matter, EPA notes that the commenter's claim supports the Agency's view that the error in the October 26, 2010, action engendered confusion and misunderstanding among some affected parties. The commenter speculates that had EPA's October 26, 2010, rulemaking used preamble language and a codification that more clearly identified that the only revision to OAC 3745-17-03 that EPA was approving was the cross reference in OAC 3745-17-03(A), it might have commented. Presumably those comments would have urged EPA to approve portions of OAC 3745-17-03 that were outside the scope and purpose of the applicable state submission, which with respect to OAC 3745-17-03 only requested the revision of the cross reference in OAC 3745-17-03(A). In such a hypothetical situation, EPA presumably would have responded to those comments by explaining that it was not approving any revision to OAC 3745-17-03 beyond the cross reference in OAC 3745-17-03(A) and that comments beyond that narrow issue were beyond the scope of the October 26, 2010, rulemaking. In any case, the commenter has now had the opportunity to comment on the very issue that it speculated it would have commented on under the 2010 conditions it hypothesized. The proposed rulemaking for this error correction action proposed to find that rulemaking on portions of OAC 3745-17-03 other than OAC 3745-17-03(A) in the 2010 air quality standards rulemaking would have been outside the scope of that rulemaking. Thus, EPA solicited comment on precisely the issue that the commenter speculated it would have commented on in its hypothesized 2010 circumstances, i.e., whether or not rulemaking on OAC 3745-17- 03(B) would have been an appropriate part of the 2010 rulemaking on Ohio's air quality standards submittal. Of note is that in the actual, present circumstances, the commenter had the benefit of express EPA statements in the February 7, 2014, proposal, stating that any action in response to Ohio's submittal of September 10, 2009, on portions of OAC 3745-17-03 other than OAC 3745-17-03(A) would be outside the scope of the rulemaking because it would not be pertinent to the SIP revision request that EPA was considering. Finally, EPA notes that the commenter did in fact comment, to urge approval of revisions in OAC 3745-17-03(B), without contesting EPA's view that these provisions are outside the scope of the relevant state submission and EPA's rulemaking thereon. As explained in the proposal for this action, those revisions were not at issue in its October 26, 2010, rulemaking and are not at issue in this error correction. EPA regrets the inconvenience to all parties that arose from the error in its October 26, 2010, rulemaking. However, the point here is that it is unnecessary to speculate on how the commenter would have commented on the October 26, 2010, rulemaking had that rulemaking more clearly stated that the only revision to OAC 3745-17-03 under consideration was the revision to the cross reference in OAC 3745-17-03(A). The commenter has now had the opportunity to comment on the applicable issues, and EPA is addressing its comments here. Comment: The commenter also objected to EPA's statements in the proposal for this action that it is correcting what is essentially a typographical error. The commenter asserted that this ``correction is not trivial.'' Response: The commenter did not explain its substantive grounds for objecting to EPA's proposed error correction. The commenter omits any rationale for why the significance of the provisions of OAC 3745-17- 03(B) would justify labeling the mistaken codification in EPA's October 26, 2010, rulemaking as anything other than an error or why, regardless of label, the misleading codification does not warrant correction. For example, the commenter implies that a significance criterion applies in judging whether a statement is in error, as if an action with significant ramifications cannot be in error or that errors cannot have significant consequences. However, the commenter offered no rationale for why the misstatements in the October 26, 2010, rulemaking, whatever the significance of those misstatements, should not be considered to be in error. EPA's proposed rulemaking provides extensive discussion of why EPA believes that the codification in its October 26, 2010, action was in error, including multiple reasons that demonstrate that EPA did not intend and could not have intended to approve provisions in OAC 3745- 17-03 that were beyond the stated purpose of Ohio's submission, which with respect to OAC 3745-17-03 was only to revise the cross reference in OAC 3745-17-03(A). Conspicuously absent from the commenter's comments is any specific argument contesting EPA's rationale for this error correction, be it to question EPA's interpretation of Ohio's September 10, 2009, submission, to dispute that EPA did not intend and could not have intended to take action on OAC 3745-17-03(B), or to challenge EPA's assertion that in any case there has been no legally valid action on OAC 3745-17-03(B) because EPA has not addressed pertinent comments on its prior proposed disapproval of that separate revision (including comments that the commenter itself attests to making). Comment: The commenter states, ``the Utilities disagree with U.S. EPA's assertion that its `correction' does not allow substantive comments on Ohio Adm. Code 3745-17-03.'' The commenter further asserted that ``U.S. EPA's action is essentially making Ohio's SIP more stringent than it was when it approved Ohio Adm. Code 3745-17-03 in 2010. . . . [Therefore,] the Utilities believe that substantive comments on Ohio Adm. Code 3745-17-03 are proper and should be considered by U.S. EPA.'' Response: These comments misrepresent EPA's assertion, mischaracterize EPA's action, and provide no rationale for EPA to change its views on relevant matters. EPA's proposed rulemaking states: ``any substantive revisions to OAC 3745-17-03, including any revisions to OAC 3745-17-03(B)(1), are not at issue in this rulemaking. Only comments regarding EPA's correction of the error in the October 26, 2010, action are germane to this rulemaking under section 110(k)(6).'' The commenter may elect to make comments that are not germane, and the commenter has [[Page 68463]] exercised its right to do so, though the commenter has not challenged EPA's proposed rationale as to the scope of comments that should be considered germane. For example, even if EPA's action could be misconstrued as a substantive revision to the approved SIP (which it is not), and whether the newer version of OAC 3745-17-03(B) is less stringent than the older version (as the commenter contended in these comments) or not (as the commenter contended in its attached comments from 2005), the commenter does not explain why this asserted change in stringency justifies predicating EPA's action to correct an error on the substantive merits of erroneously codified provisions. Therefore, EPA concludes that comments as to the substantive merits of OAC 3745- 17-03(B) are not germane to this action, which only addresses the error that occurred in the October 26, 2010, action pertaining to Ohio EPA's submission regarding its air quality standards rules. Similarly, the commenter mischaracterized EPA's proposed error action, asserting that EPA is hereby removing an approval of portions of OAC 3745-17-03 that, it asserted, EPA approved in the October 26, 2010, action. The proposed rulemaking explained at length that EPA cannot have approved any portion of 3745-17-03 in 2010 other than the cross reference in OAC 3745-17-03(A), and so the action EPA proposed clarifies the approved SIP without changing the substance of what has actually been approved. Again, the commenter provided no rationale for adopting its views as to the nature of EPA's proposed action rather than the views EPA proposed. Chamber et al. Comment: The commenter provided an extensive description of provisions in OAC 3745-17-03(B). The commenter also provided a history of this provision, including Ohio's submission of the provision to EPA in June 2003, EPA's proposal to disapprove the provision in June 2005, the (erroneous) appearance of EPA approving the provision on October 26, 2010, the EPA correction of this appearance on April 3, 2013, without reference to correction authority in Clean Air Act section 110(k)(6), a petition for EPA to reconsider this correction, and EPA's proposal published on February 7, 2014, to make this correction under the authority of Clean Air Act section 110(k)(6). Response: EPA generally agrees with the commenters recitation of the facts, but does not agree with the implication that ``appearing'' to approve the revision means that it was in fact approved. Moreover, this portion of these comments provides background information and does not urge any changes to EPA's views underlying the relevant proposed action, and so no detailed review of this portion of these comments is warranted. Any history of the provisions of OAC 3745-17-03(B) should also note that Ohio (subsequent to these comments) has withdrawn its submission that sought approval of the provision. Comment: The commenter stated that it ``submit[ted] these comments for two reasons. First, we would like to briefly address EPA's comment that the COMS provision is `significant and substantive' and `would allow significantly more opacity during certain periods.' This appears to be a reference to [text in EPA's June 2005 proposed rulemaking (at 70 FR 36903), quoted in the comment].'' The commenter raised several objections to these EPA statements. The commenter asserted that the scenario EPA discussed in the June 2005 proposed disapproval, intended as an example case in which the revised version of OAC 3745-17-03(B) ``allow[s] excess opacity on occasions that excess opacity is currently prohibited,'' to reflect an unlikely pattern of operation that would not be expected to be identified as a violation using the reference method (Method 9) of the unrevised rule. ``In summary, the alternative of continuous instrumental monitoring of in-stack opacity in lieu of periodic Method 9 visible emission observations may be `significant and substantive' in terms of imposing more stringent performance obligations, but it certainly [is] not a `significant and substantive' relaxation of the performance obligation where Method 9 is the SIP reference test for opacity.'' Response: The commenter is correct that the pertinent statement in the February 7, 2014, proposed rulemaking reflects the views expressed in the cited statement in EPA's June 27, 2005, proposed rulemaking. The commenter also observed that EPA has not completed rulemaking pursuant to this June 2005 proposed disapproval. EPA's purpose for making these statements in the proposal for this error correction was to provide context and to explain the significance of the error, not to take a substantive position. To be clear, in the June 2005 proposal, EPA proposed to find that the revised version of OAC 3745-17-03(B) would have allowed significantly more opacity during certain periods and that the state had failed to provide a section 110(l) or section 193 analysis to justify the resulting relaxation; subsequently, EPA received comments disputing that finding, and EPA has not yet taken final action on that proposal. Because Ohio has withdrawn its June 2003 submission, however, EPA will be conducting no further rulemaking on that submission. Therefore, it is no longer germane to any ongoing rulemaking whether Ohio's June 2003 submission would have tightened or relaxed the stringency of Ohio's existing SIP. In any case, the desirability of clarifying the status of OAC 3745-17-03(B) is not contingent on any final judgment regarding the effect of previously submitted revisions to OAC 3745-17- 03(B) on allowable opacity. In its February 7, 2014, proposal, EPA sought merely to explain why the error in its October 26, 2010, final rule warranted correction. Comments from the Ohio Utilities Group discussed above suggest that the provisions of OAC 3745-17-03(B), and the associated relaxation of requirements, are too important to be the subject of an error correction. These comments from the Chamber et al. argue that the provisions of OAC 3745-17-03(B) are not a ``significant and substantive'' relaxation of the opacity-related requirements and in fact may be a ``significant and substantive'' tightening of performance obligations. Regardless of these conflicting comments, three parties have concluded that the status of OAC 3745-17-03(B) is sufficiently important to comment on rulemaking proposing to clarify the status of this rule. Even aside from questions regarding the substantive consequences of revisions to OAC 3745-17-03(B), EPA seeks clarity regarding which rules have been approved into the SIP, especially for rules that prompt significant substantive interest. Consequently, EPA has concluded that it is important to clarify the scope of EPA's rulemaking on Ohio's submittal addressing air quality standards and to correct the errors in the October 26, 2010, action that created a misimpression that EPA had approved OAC 3745-17-03(B)as a part of the SIP. Comment: The commenter also asked that EPA complete its rulemaking action on the June 2003 SIP revision that EPA addressed in the June 2005 proposed disapproval. Response: Ohio has withdrawn the pertinent elements of its June 2003 SIP revision submission. Thus, no portion of this submission remains pending. III. What action is EPA taking? Pursuant to section 110(k)(6), EPA is determining that its October 26, 2010, rulemaking was in error to the extent [[Page 68464]] 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 this action, EPA is clarifying that in the October 26, 2010, action, the Agency 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. This action establishes that the codification of EPA's October 26, 2010, action, in relevant part at 40 CFR 52.1870(c)(151)(i)(A), is clarified pursuant to the authority of Clean Air Act section 110(k)(6) to codify the approval of only the revised cross reference in OAC 3745-17-03(A) and not of any other portions of OAC 3745-17-03. In particular, EPA in that action did not approve any revisions related to OAC 3745-17-03(B). 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. In that rulemaking, EPA corrected the erroneous statements and the misleading codification to reflect more clearly that EPA had only approved the one narrow revision requested by the state in OAC 3745-17- 03, i.e., the revision of the cross reference in OAC 3745-17-03(A). Thus, effective April 3, 2013, the Code of Federal Regulations has properly reflected the corrected codification. In response to a petition for reconsideration, EPA today is replacing that prior correction with an error correction pursuant to section 110(k)(6). Nevertheless, during the pendency of the current rulemaking pursuant to section 110(k)(6), EPA opted not to stay or revoke the correction action of April 3, 2013, to avoid exacerbating the misimpressions caused by the October 26, 2010, error. Therefore, the status quo is that the Code of Federal Regulations already reflects the corrected codification. Ordinarily, a rulemaking establishing a corrected codification would include not just a preamble but would also include a codification section, in which the Office of the Federal Register is instructed to amend the applicable sections of the Code of Federal Regulations. However, this action involves circumstances in which the pertinent section of the Code of Federal Regulations already correctly reflects the EPA approved version of OAC 3745-17-03, as a result of action taken April 3, 2013. Conceptually, this action replaces the pertinent revisions to the Code of Federal Regulations promulgated on April 3, 2013, with identical revisions pursuant to this action. In practical terms, the net effect of this action is no change in the Code of Federal Regulations. It is inappropriate to provide a null set of instructions, to instruct the Office of the Federal Register to make no changes to the Code of Federal Regulations. Therefore, this action includes no instructions to the Office of the Federal Register, no requested revisions to the Code of Federal Regulations, and indeed no codification section. As a result, the Office of the Federal Register's records will show the pertinent revisions as being made April 3, 2013. Nevertheless, this action should be viewed as replacing those corrections, promulgated under the authority of Administrative Procedures Act section 553, with identical corrections, promulgated under the authority of Clean Air Action section 110(k)(6). IV. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act 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 Clean Air Act. 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 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 (Public Law 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. 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 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 January 4, 2016. 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)). [[Page 68465]] List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements. Dated: October 22, 2015. Susan Hedman, Regional Administrator, Region 5. [FR Doc. 2015-28095 Filed 11-4-15; 8:45 am] BILLING CODE 6560-50-P
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[FR Doc. 2015–28098 Filed 11–4–15; 8:45 am] recommend that you telephone John erroneously listed the approved SIP
BILLING CODE 6560–50–P Summerhays, Environmental Scientist, revisions as including the entirety of
at (312) 886–6067 before visiting the OAC 3745–17–03, rather than specifying
Region 5 office. more precisely that the approval as it
ENVIRONMENTAL PROTECTION FOR FURTHER INFORMATION CONTACT: John pertained to OAC 3745–17–03 applied
AGENCY Summerhays, Environmental Scientist, only to the revised cross reference in
Attainment Planning and Maintenance OAC 3745–17–03(A). This error left the
40 CFR Part 52 misimpression that EPA had approved
Section, Air Programs Branch (AR–18J),
[EPA–R05–OAR–2009–0807; FRL–9936–54– Environmental Protection Agency, other significant substantive revisions in
Region 5] Region 5, 77 West Jackson Boulevard, OAC 3745–17–03, including those in
Chicago, Illinois 60604, (312) 886–6067, OAC 3745–17–03(B) that EPA had
Air Plan Approval; Ohio; Test Methods; summerhays.john@epa.gov. previously proposed to disapprove. The
Error Correction codification in the October 26, 2010,
SUPPLEMENTARY INFORMATION: This
AGENCY: Environmental Protection action with respect to OAC 3745–17–03
supplementary information section is
Agency (EPA). should have been explicitly limited to
arranged as follows: OAC 3745–17–03(A), to reflect the EPA
ACTION: Final rule. I. Summary of EPA’s Proposed Rulemaking approval of only the revised cross
II. Comments and EPA’s Responses reference.
SUMMARY: The Environmental Protection
III. What action is EPA taking? EPA subsequently recognized that the
Agency (EPA) is determining that a IV. Statutory and Executive Order Reviews
portion of an October 26, 2010, action codification erroneously left the
was in error and is making a correction I. Summary of EPA’s Proposed misimpression that it had approved
pursuant to section 110(k)(6) of the Rulemaking more of OAC 3745–17–03 than the
Clean Air Act. The October 26, 2010, revision of the cross reference in OAC
On June 4, 2003, Ohio submitted a 3745–17–03(A). On April 3, 2013, at 78
EPA action approved various revisions variety of revisions to the EPA approved
to Ohio regulations in the EPA approved FR 19990, EPA published action to
version of Ohio Administrative Code correct the error. EPA took this action
state implementation plan (SIP). The (OAC) 3745–17 in the state’s SIP, which
revisions were intended to consolidate pursuant to its general rulemaking
regulates particulate matter and opacity authority under Administrative
air quality standards into a new chapter from affected sources. While EPA
of rules and to adjust the cross Procedures Act section 553. Two parties
subsequently approved many of these challenged EPA’s April 3, 2013, action,
references accordingly in various related revisions, EPA published action on June
Ohio rules. These changes included a and one of these parties also filed a
27, 2005, proposing to disapprove petition for reconsideration of that
specific revision to the cross reference specific submitted revisions in OAC
in the Ohio rule pertaining to methods action, objecting that EPA failed to
3745–17–03(B) that in EPA’s view correct the error in the October 26, 2010,
for measurements for comparison with relaxed existing SIP opacity limitations
the particulate matter air quality action in accordance with the
without an adequate analysis under procedures of section 110(k)(6) of the
standards. This final correction action section 110(l) or section 193 of the
removes any misperception that EPA Clean Air Act.
Clean Air Act.1 Consistent with this EPA responded to the petition for
approved any revision to the pertinent proposed disapproval, the version of reconsideration by agreeing to take this
rule other than the revised cross OAC 3745–17–03(B) submitted by the action pursuant to section 110(k)(6), as
reference. This action will therefore state on June 4, 2003, was not, and is requested by the petitioner.
assure that the codification of the not, an approved provision of the Ohio Accordingly, EPA published proposed
October 26, 2010, action is in accord SIP. rulemaking on February 7, 2014, using
with the actual substance of the action. On September 10, 2009, for purposes its authority under section 110(k)(6) to
DATES: This final rule is effective on of consolidating its existing SIP rules correct errors in its rulemaking of
December 7, 2015. identifying applicable air quality October 26, 2010.2 Given the
ADDRESSES: EPA has established a standards, and to adjust the cross petitioners’ expressed interest in
docket for this action under Docket ID references between rules accordingly, commenting on EPA’s action, EPA
No. EPA–R05–OAR–2009–0807. All Ohio submitted additional revisions to elected to use its authority under
documents in the docket are listed on several of its existing rules to EPA for section 110(k)(6) for this action because,
the www.regulations.gov Web site. approval into the SIP. Most notably, under these circumstances, it would
Although listed in the index, some these rule revisions included a provide the best mechanism to correct
information is not publicly available, modification to the existing cross the apparent misunderstandings
i.e., Confidential Business Information reference in OAC 3745–17–03(A), which concerning the error in the October 26,
(CBI) or other information whose was necessary because the ambient 2010, action.
disclosure is restricted by statute. particulate matter measurement method EPA’s February 7, 2014, proposal
Certain other material, such as identified in this paragraph was for provides an extensive description of the
copyrighted material, is not placed on purposes of assessing attainment with error in its October 26, 2010,
the Internet and will be publicly the ambient air quality standards now rulemaking, provided in subsections
available only in hard copy form. located in OAC 3745–25–02, rather than entitled, ‘‘What was the error in
Publicly available docket materials are in OAC 3745–17–02. description and codification?’’, ‘‘What
available either electronically through On October 26, 2010, at 75 FR 65572, precipitated this error?’’, and ‘‘Why was
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www.regulations.gov or in hard copy at EPA published a direct final action it evident that this was an error?’’ It is
the Environmental Protection Agency, approving the relevant revisions in the not necessary to repeat that detailed
Region 5, Air and Radiation Division, 77 September 10, 2009, submission. In the explanation here. EPA proposed to
West Jackson Boulevard, Chicago, preamble and in the codification of the correct the error to remove any
Illinois 60604. This facility is open from October 26, 2010, action, EPA misimpression in its October 26, 2010,
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We 1 See 70 FR 36901 (June 27, 2005). 2 See 79 FR 7412 (Feb. 7, 2014).
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rulemaking that EPA had approved any Association, and Ohio Chemistry portions of OAC 3745–17–03 that the
revisions to OAC 3745–17–03 other than Technology Council (Chamber et al.). Agency rulemaking of October 26, 2010,
the cross reference in OAC 3745–17– The following are significant adverse did not substantively address. EPA fully
03(A). Specifically, EPA proposed to comments from each commenter and acknowledged in the February 17, 2014,
take action pursuant to Clean Air Act EPA’s responses. proposal that the error that occurred in
section 110(k)(6) repromulgating the the October 26, 2010, action was the
Ohio EPA
correction published on April 3, 2013. result of misunderstandings and
EPA solicited comments on this Comment: The commenter asserted miscommunications that it is seeking to
proposed error correction, while noting that: ‘‘On February 7, 2014, U.S. EPA rectify in this final error correction
that any comments on the technical or proposed, as an error correction, to action. EPA is taking this final action in
legal merits of certain substantive remove from Ohio’s State order to avoid further confusion on the
revisions to OAC 3745–17–03 (e.g., the Implementation Plan (SIP) a previously part of regulated entities, regulators, and
opacity-related provisions in OAC approved (October 26, 2010) portion of members of the public.
3745–17–03(B)) or on the pending OAC Rule 3745–17–07 regarding Comment: The commenter stated that
proposed disapproval of those methods for measurements to determine it ‘‘firmly believes [that the provision in
provisions would not be germane to this compliance with Ohio’s 20% opacity OAC 3745–17–03(B)] is fully
error correction rulemaking. limitation.’’ 5 With this statement, the approvable.’’ The commenter explained
EPA intended to correct the error in commenter is implying that EPA in fact that it was ‘‘attaching, and reaffirming’’
the October 26, 2010, action first and approved substantive revisions to OAC its prior comments on EPA’s proposed
then separately to complete the action to 3745–17–03 in the October 26, 2010, disapproval of this provision in the June
address the merits of the substantive action, rather than merely approved the 27, 2005, action. The commenter further
revisions to OAC 3745–17–03 in the cross reference in OAC 3745–17–03(A). requested that ‘‘[c]onsideration should
June 4, 2003, SIP submission that were The commenter suggested that EPA be taken to the previous comments
the subject of the June 27, 2005, acted on ‘‘the entirety’’ of the revisions submitted by Ohio EPA and others
proposed disapproval. To this end, EPA to OAC 3745–17–03. regarding the approvability of the
published a supplemental proposal on Response: EPA disagrees with the provision at question in this action.’’
June 26, 2014, reopening comment on commenter’s premise that the Agency Response: As explained in the
its prior proposed disapproval of approved any portion of OAC 3745–17– February 17, 2014, proposal for this
revisions to OAC 3745–17–03.3 03 other than the revision to the cross action, EPA is focusing this section
Subsequently, however, Ohio has reference in OAC 3745–17–03(A). EPA’s 110(k)(6) rulemaking on the specific
withdrawn the portion of the June 4, February 17, 2014, proposed action rule error that occurred in the October 26,
2003, submission that EPA proposed to provides an extensive explanation of the 2010, action. This rulemaking is not
disapprove.4 error that occurred in the October 26, addressing the substantive merits of any
Accordingly, since the provisions is 2010, action and the genesis of the error. portion of OAC 3745–17–03. Instead,
withdrawn, EPA does not need to Ohio’s clearly stated purpose in making this rulemaking is addressing whether
complete action on the June 4, 2003, SIP the September 10, 2009, submission was EPA made an error in its October 26,
submission. Significantly, this also to consolidate its existing SIP provisions 2010, rulemaking by including a
confirms that the submitted substantive relating to ambient air quality standards codification that went beyond the scope
revisions to OAC 3745–17–03 are not and to revise certain cross references in of the rulemaking and whether EPA
part of the EPA approved SIP and that existing approved SIP rules in order to should correct that error by correcting
the EPA’s October 26, 2010, action reflect that reorganization. The specific the codification to reflect that the only
could not have revised those elements SIP revisions at issue in the state’s portion of OAC 3745–17–03 that was
of the existing version of OAC 3745–17– submission were reflected in redline addressed in that rulemaking was the
03 in the SIP, inadvertently or and the redlined document identified cross reference in OAC 3745–17–03(A).
otherwise. Except for an amendment to the cross reference in OAC 3745–17– Accordingly, the commenter’s
the cross reference to ambient air 03(A) as the only revision relevant to resubmission of its prior comments on
quality standards in OAC 3745–17– OAC 3745–17–03. This indicates that the June 27, 2005, proposed disapproval
03(A) (which EPA approved on October approval of any substantive revisions in is inappropriate and not germane to this
26, 2010), the version of OAC 3745–17– OAC 3745–17–03(B) would have been action.
03 in the SIP remains the version beyond the scope of the rulemaking. In addition to being outside the scope
effective in the state on January 31, Moreover, EPA had already proposed to of this error correction action, EPA
1998, approved by EPA on October 16, disapprove revisions to OAC 3745–17– notes that the commenter’s arguments
2007. 03(B) on June 27, 2005, EPA received also support EPA’s conclusion that the
numerous, substantial comments for October 26, 2010, action was in error to
II. Comments and EPA’s Responses and against that proposed disapproval, the extent that it appeared to approve
EPA received comments on its and the rulemaking of October 26, 2010, any revision beyond the cross reference
proposed error correction from three provided no evidence of consideration in OAC 3745–17–03(A). The commenter
parties: (i) The Ohio Environmental of any of these comments. Although the explicitly acknowledged that EPA
Protection Agency (Ohio EPA); (ii) the commenter described EPA’s proposed previously received significant
Ohio Utility Group; and (iii) a group error correction action as an action to comments concerning the merits of OAC
including the Ohio Chamber of ‘‘remove . . . a previously approved’’ 3745–17–03(B), in particular comments
Commerce, Ohio Manufacturers portion of rule, this is simply incorrect. that in the commenter’s view warrant
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EPA did not ‘‘previously approve’’ the reversal of EPA’s prior proposed
3 See 79 FR 36277 (June 26, 2014). disapproval. Furthermore, the
4 See letter from Craig W. Butler, Director, Ohio 5 EPA’s October 26, 2010, rulemaking makes no commenter in effect argued that EPA
EPA, to Susan Hedman, Regional Administrator, reference to OAC 3745–17–07 (containing opacity has not adequately considered these
USEPA Region 5, dated September 5, 2014, limits). EPA presumes that the commenter intends
‘‘request[ing] withdrawal of [Ohio’s] June 4, 2003 to refer to OAC 3745–17–03, which among other
comments. This is fully consistent with
request to incorporate paragraph (B)(1)(b) into provisions has provisions relating to measurement EPA’s own observation that its October
Ohio’s SIP.’’ of opacity. 26, 2010, rulemaking provided no
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evidence of any consideration of public threshold and cannot go forward with certain periods. A more precise
comments concerning OAC 3745–17– the package under 110(k), since U.S. statement would have been that EPA
03(B) whatsoever (again, because this EPA is now making a technical had proposed to disapprove the
provision was outside the scope of that argument as to why the previously pertinent revisions to OAC 3745–17–
rulemaking). Thus, the commenter approved SIP revision is no longer 03(B) in the June 27, 2005, proposal
appeared to agree with EPA’s view that acceptable.’’ The commenter also argued based in significant part on the view
the October 26, 2010, rulemaking does that ‘‘as a procedural matter, U.S. EPA that the revisions would allow
not provide any evidence of the must start over from the beginning and significantly more opacity during
consideration of comments regarding outline and address the entire technical certain periods. The commenter, along
OAC 3745–17–03(B) that would be issue in full and not use the 110(k) with several other commenters, has
necessary for any approval or ‘error’ approach.’’ disputed EPA’s proposed views
disapproval of OAC 3745–17–03(B) to Response: The premise of the regarding the merits of OAC 3745–17–
be considered lawful. Moreover, the commenter’s arguments is that EPA’s 03(B). As explained in detail in the
commenter did not appear to dispute February 17, 2014, action in effect
February 17, 2014, proposal for this
EPA’s view that rulemaking on OAC proposed to finalize EPA’s prior
error correction, however, EPA did not
3745–17–03(B) could not be considered proposed disapproval of certain
intend, and could not have intended, to
a lawful and valid part of the October portions of OAC 3745–17–03, not
merely correcting the error that led to address the substantive merits of those
26, 2010, rulemaking even if it had been revisions in the October 26, 2010,
intended to be within the scope of the the misimpression that EPA had already
approved the revisions in toto. The action. Indeed, with Ohio’s withdrawal
rulemaking. As explained in the of its request for rulemaking on these
February 17, 2014, proposal for this commenter is thereby ignoring EPA’s
clear statements about the actual scope provisions, EPA will no longer be
action, EPA had no such intentions and conducting final rulemaking on the
the fact that EPA did not address prior of this error correction.
As explained in the February 17, merits of OAC 3745–17–03(B).
substantive comments on the merits of
2014, proposal for this action, EPA is Nevertheless, the more relevant point is
OAC 3745–17–03(B) should have
focusing this section 110(k)(6) that the existence of these disputes as to
alerted the commenter and other parties
rulemaking on the specific error that the merits of OAC 3745–17–03(B)
to this fact.
occurred in the October 26, 2010, illustrates the importance of correcting
Finally, EPA acknowledges the
action. EPA provided extensive any errors that might create the
commenter’s request that that EPA
discussion and explanation of the error misimpression that EPA had completed
complete its consideration of comments
that occurred in the October 26, 2010, its review of these issues. EPA believes
on the merits of OAC 3745–17–03(B),
action and why EPA could not be that the significance of the provisions in
but such consideration is outside the
considered to have acted on any OAC 3745–17–03(B) and the
scope of this rulemaking. By separate
revisions to OAC 3745–17–03 that were outstanding questions regarding
action, EPA intended to address the
outside the scope of that rulemaking. whether those provisions could have
merits of the substantive revisions to
EPA explained the significance of OAC been approved consistent with CAA
OAC 3745–17–03 in the June 4, 2003,
3745–17–03(B) in the February 17, 2014, requirements provide added value to
SIP submission that were the subject of
proposal as a means of explaining why correcting any misimpressions regarding
the June 27, 2005, proposed
EPA considered it important to correct the status of those provisions, namely
disapproval. To this end, EPA published
the errors in its October 26, 2010, misimpressions reasserted in these
a supplemental proposal on June 26,
rulemaking. EPA noted in passing that comments that EPA had already
2014, reopening comment on its prior
it had already proposed to disapprove completed rulemaking on these
proposed disapproval of certain certain provisions for reasons that were
substantive revisions to OAC 3745–17– provisions.
already a matter of public record in the
03.6 Subsequently, however, Ohio Contrary to the commenter’s
Federal Register as a means of
withdrew its submittal of revisions to statement, EPA’s proposed rulemaking
emphasizing that it could not have
OAC 3745–17–03(B).7 This renders approved those revisions in the October to correct the errors in its October 26,
consideration of comments with respect 26, 2010, action without an explicit 2010, action was not based on a
to the withdrawn submission moot, both discussion and justification for any such technical argument regarding the merits
for purposes of the June 27, 2005, approval. of OAC 3745–17–03(B), including any
proposed disapproval and for purposes The commenter appears to agree that technical argument as to whether these
of this error correction action. the revisions in OAC 3745–17–03(B) provisions allow significantly more
Comment: The commenter objected that it advocated for EPA to approve are opacity during certain periods. This
that ‘‘U.S. EPA has made certain significant and substantive. EPA assertion regarding whether the now
assertions regarding [OAC 3745–17– statements regarding the significance of withdrawn revisions to OAC 3745–17–
03(B)] that go beyond the scope of this the error, however, cannot be 03 would allow more opacity (made in
proposed correction. U.S. EPA refers to considered to constitute final review of EPA’s 2005 proposed rulemaking
the provision as ‘significant and the merits of the erroneously addressed addressing the merits of Ohio’s now
substantive’ and states the ‘unapproved’ provisions. The October 26, 2010, action withdrawn SIP revision and contested
revisions ‘would allow significantly clearly did not address the merits of by various commenters) illustrates the
more opacity during certain periods.’ ’’ OAC 3745–17–03(B), and EPA’s action significance of the error in the October
The commenter disputed these proposing to correct an error related to 26, 2010, action. However, the
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statements. The commenter asserted its these provisions did not address the commenter provided no reason why
belief that ‘‘U.S. EPA has crossed the merits of these provisions either. characterization of the issue as
The commenter disagreed in significant and identification of any of
6 See79 FR 36277 (June 26, 2014). particular with EPA’s characterization the unresolved issues that were not
7 Seeletter from Craig W. Butler, Director, Ohio
EPA, to Susan Hedman, Regional Administrator,
of OAC 3745–17–03(B) in the February addressed in the October 26, 2010,
USEPA Region 5, dated September 5, 2014, which 17, 2014, proposal as allowing rulemaking (or elsewhere) should
may be found in the docket for this final action. significantly more opacity during preclude EPA from assuring that the
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October 26, 2010, rulemaking is Response: The commenter did not 2010, action, because that is how they
characterized properly. elaborate on its argument that EPA’s themselves describe what occurred.
Comment: The commenter objected to proposed error correction action ‘‘is not Comment: The commenter made
EPA statements in a separate unrelated trivial’’ or why EPA’s proposed action is several assertions that it believes
rulemaking regarding SIP revisions for not consistent with EPA’s authority to preclude EPA from finalizing this error
the State of Alabama. The commenter correct errors under section 110(k)(6). correction. First, the commenter
referred to EPA statements that the To the extent that the commenter is ‘‘object[ed] to U.S. EPA’s statement that
commenter characterized as citing ‘‘the arguing that EPA’s authority under a comment period was not required in
2005 proposed disapproval of Ohio’s section 110(k)(6) is limited to correcting issuing [the correction EPA published
revision, in part, as justification for the ‘‘trivial’’ errors, EPA disagrees. On its on April 3, 2013].’’ The commenter
proposed disapproval of Alabama’s face, section 110(k)(6) authorizes EPA to stated that section 110(k)(6) dictates
revision.’’ The commenter further correct any error in a rulemaking action how EPA should make corrections to
asserted that this ‘‘mislead[s] the readers and does not restrict that authority to past rulemakings. The commenter also
of the Alabama proposal that Ohio’s correction of errors that other parties noted that section 110(k)(6) in particular
proposed disapproval has followed its might characterize as ‘‘trivial.’’ By its requires that an error made through
due course, when it has not.’’ The plain terms, EPA’s authority under notice and comment rulemaking can
commenter requested that ‘‘any action section 110(k)(6) extends broadly to only be corrected through notice and
taken on the Alabama proposal should ‘‘action approving, disapproving, or comment rulemaking. The commenter
not be used as justification for promulgating any plan or plan revision asserted that EPA’s April 3, 2013, action
disapproving Ohio’s provision.’’ (or part thereof), area designation, to effectuate the correction of the
redesignation, classification, or October 26, 2010, action was invalid
Response: EPA acknowledges that the
reclassification.’’ Similarly, by its plain because it failed to meet this
proposed action concerning the State of
terms EPA’s authority is not limited requirement of section 110(k)(6).
Alabama mentioned the June 27, 2005, Response: While EPA continues to
proposed disapproval of the Ohio with respect to the nature or seriousness
of the error, i.e., it is not restricted to believe that the Administrative
submission. The existence of that Procedures Act provides independent
proposal was, and is, a matter of record. correction of ‘‘trivial’’ errors.
authority for agencies to issue
EPA mentioned the June 27, 2005, EPA and the commenters appear to
corrections, that authority was not the
proposed disapproval merely as means agree on the fact that the revisions to
basis of this rulemaking. The
of explaining its views on relevant OAC 3745–17–03(B) that EPA proposed
commenter submitted a petition for
issue, not as a basis for a particular final to disapprove are important substantive
reconsideration requesting that EPA
action. The commenter did not explain provisions. In EPA’s view, the
publish notice and solicit comment
why this comment concerning a importance of these provisions makes it
pursuant to its error correction authority
proposed action in another state is necessary for EPA to clarify the fact that
under Clean Air Act section 110(k)(6).
relevant to the present error correction the October 26, 2010, rulemaking did
EPA granted that request, and this
action concerning Ohio, nor does EPA not make any substantive revision to
action is the final step of the requested
consider it germane to this final action. these provisions, and EPA cannot be error correction rulemaking. The
In any event, the state has now considered to have lawfully acted on the commenter objected to the procedure
withdrawn the portion of the revisions provisions without EPA used to correct the error in the
submission that EPA proposed to considering the comments for and April 3, 2013, rulemaking, but that
disapprove, so this comment is moot. against its June 27, 2005, proposal to rulemaking is being replaced by this
disapprove them. Regardless of whether rulemaking under section 110(k)(6).
Ohio Utility Group the error was ‘‘trivial’’ or not, EPA has Thus, comments concerning the
Comment: The commenter asserted concluded that the error warrants procedure EPA should or should not
that ‘‘U.S. EPA’s action is not trivial and correction pursuant the authority of have followed with respect to the April
is not a mere ‘correction.’ In support of section 110(k)(6) (or under authorities 3, 2013, rulemaking are not relevant and
this statement, the commenter recited that EPA is not using in this action). in fact are made moot by this action. In
its view of the history of rulemaking on The commenters’ substantive short, EPA is correcting the error by the
OAC 3745–17–03(B), including arguments regarding the merits of OAC procedure that the commenter
adoption by Ohio and proposed 3745–17–03(B) are not germane here, advocated.
disapproval by EPA. The commenter because they are not relevant to Comment: The commenter also
observed that EPA received extensive determining whether the codification objected that EPA did not have ‘‘good
comments on the June 27, 2005, contained in EPA’s October 26, 2010, cause’’ (in its April 3, 2013, rulemaking)
proposed disapproval, but action was an erroneous description of under the Administrative Procedures
acknowledged that ‘‘U.S. EPA never that rulemaking action. The only issue Act section 553(b) to make corrections
finalized this proposed action and, in this action is EPA’s correction of the without undergoing notice and
based on a review of the record, U.S. error. Moreover, now that the state has comment. The commenter asserted its
EPA never responded to comments withdrawn the submission seeking view that notice and comment (for
submitted on this proposed rule.’’ The substantive revisions to OAC 3745–17– EPA’s April 3, 2013, action) was ‘‘not
commenter presented a summary of 03(B), these comments are moot. impracticable, unnecessary or contrary
arguments in support of the merits of Comment: The commenter, in to the public interest.’’ In other words,
the opacity ‘‘exemption’’ in OAC 3745– describing EPA’s actions, states that the commenter disagreed with EPA’s
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17–03(B) that EPA proposed to ‘‘[i]n 2010, . . . it appeared that U.S. determination that there was a good
disapprove in the June 27, 2005, EPA approved [OAC] 3745–17–03 in its cause exception to the normal
proposal, and concluded that ‘‘this entirety.’’ requirements for notice and comment,
exemption is technically defensible and Response: The commenter evidently given the nature of error at issue.
the data [compiled to formulate the agrees that EPA had only ‘‘appeared’’ to Response: EPA disagrees with the
exemption] were never rebutted by U.S. have approved substantive revisions to commenter’s conclusion that correction
EPA.’’ OAC 3745–17–03(B) in the October 26, of what was essentially a typographical
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error requires full notice and comment in the 2010 air quality standards criterion applies in judging whether a
rulemaking in all cases. Nevertheless, rulemaking would have been outside statement is in error, as if an action with
EPA notes that this comment suggests the scope of that rulemaking. Thus, EPA significant ramifications cannot be in
that the commenter acknowledged that solicited comment on precisely the error or that errors cannot have
Administrative Procedures Act section issue that the commenter speculated it significant consequences. However, the
553(b) authorizes corrections, even would have commented on in its commenter offered no rationale for why
without notice and opportunity for hypothesized 2010 circumstances, i.e., the misstatements in the October 26,
comment, so long as EPA adequately whether or not rulemaking on OAC 2010, rulemaking, whatever the
justifies the decision not to undergo 3745–17–03(B) would have been an significance of those misstatements,
notice and opportunity for comment. In appropriate part of the 2010 rulemaking should not be considered to be in error.
any case, EPA concludes that this on Ohio’s air quality standards EPA’s proposed rulemaking provides
rulemaking does not invoke that submittal. Of note is that in the actual, extensive discussion of why EPA
authority to forego notice and comment present circumstances, the commenter believes that the codification in its
for good cause, and this action makes had the benefit of express EPA October 26, 2010, action was in error,
moot the rulemaking (published April 3, statements in the February 7, 2014, including multiple reasons that
2013) that did invoke that authority. proposal, stating that any action in demonstrate that EPA did not intend
Comment: The commenter also response to Ohio’s submittal of and could not have intended to approve
objected to EPA’s description of the September 10, 2009, on portions of OAC provisions in OAC 3745–17–03 that
error in the October 26, 2010, action as 3745–17–03 other than OAC 3745–17– were beyond the stated purpose of
essentially a typographical error. The 03(A) would be outside the scope of the Ohio’s submission, which with respect
commenter claimed that ‘‘[t]he Utilities rulemaking because it would not be to OAC 3745–17–03 was only to revise
did not submit comments [at the time of pertinent to the SIP revision request that the cross reference in OAC 3745–17–
EPA’s October 26, 2010, rulemaking] EPA was considering. 03(A). Conspicuously absent from the
because U.S. EPA approved Ohio Adm. Finally, EPA notes that the commenter’s comments is any specific
Code 3745–17–03 in its entirety as the commenter did in fact comment, to urge argument contesting EPA’s rationale for
notice indicated. Had the Utilities approval of revisions in OAC 3745–17– this error correction, be it to question
understood that these rules were 03(B), without contesting EPA’s view EPA’s interpretation of Ohio’s
selective to subpart (A), the Utilities that these provisions are outside the September 10, 2009, submission, to
may have submitted comments on this scope of the relevant state submission dispute that EPA did not intend and
proposal.’’ and EPA’s rulemaking thereon. As could not have intended to take action
Response: As an initial matter, EPA explained in the proposal for this on OAC 3745–17–03(B), or to challenge
notes that the commenter’s claim action, those revisions were not at issue EPA’s assertion that in any case there
supports the Agency’s view that the in its October 26, 2010, rulemaking and has been no legally valid action on OAC
error in the October 26, 2010, action are not at issue in this error correction. 3745–17–03(B) because EPA has not
engendered confusion and EPA regrets the inconvenience to all addressed pertinent comments on its
misunderstanding among some affected parties that arose from the error in its prior proposed disapproval of that
parties. The commenter speculates that October 26, 2010, rulemaking. However, separate revision (including comments
had EPA’s October 26, 2010, rulemaking the point here is that it is unnecessary that the commenter itself attests to
used preamble language and a to speculate on how the commenter making).
codification that more clearly identified would have commented on the October Comment: The commenter states, ‘‘the
that the only revision to OAC 3745–17– 26, 2010, rulemaking had that Utilities disagree with U.S. EPA’s
03 that EPA was approving was the rulemaking more clearly stated that the assertion that its ‘correction’ does not
cross reference in OAC 3745–17–03(A), only revision to OAC 3745–17–03 under allow substantive comments on Ohio
it might have commented. Presumably consideration was the revision to the Adm. Code 3745–17–03.’’ The
those comments would have urged EPA cross reference in OAC 3745–17–03(A). commenter further asserted that ‘‘U.S.
to approve portions of OAC 3745–17–03 The commenter has now had the EPA’s action is essentially making
that were outside the scope and purpose opportunity to comment on the Ohio’s SIP more stringent than it was
of the applicable state submission, applicable issues, and EPA is addressing when it approved Ohio Adm. Code
which with respect to OAC 3745–17–03 its comments here. 3745–17–03 in 2010. . . . [Therefore,]
only requested the revision of the cross Comment: The commenter also the Utilities believe that substantive
reference in OAC 3745–17–03(A). In objected to EPA’s statements in the comments on Ohio Adm. Code 3745–
such a hypothetical situation, EPA proposal for this action that it is 17–03 are proper and should be
presumably would have responded to correcting what is essentially a considered by U.S. EPA.’’
those comments by explaining that it typographical error. The commenter Response: These comments
was not approving any revision to OAC asserted that this ‘‘correction is not misrepresent EPA’s assertion,
3745–17–03 beyond the cross reference trivial.’’ mischaracterize EPA’s action, and
in OAC 3745–17–03(A) and that Response: The commenter did not provide no rationale for EPA to change
comments beyond that narrow issue explain its substantive grounds for its views on relevant matters. EPA’s
were beyond the scope of the October objecting to EPA’s proposed error proposed rulemaking states: ‘‘any
26, 2010, rulemaking. correction. The commenter omits any substantive revisions to OAC 3745–17–
In any case, the commenter has now rationale for why the significance of the 03, including any revisions to OAC
had the opportunity to comment on the provisions of OAC 3745–17–03(B) 3745–17–03(B)(1), are not at issue in
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very issue that it speculated it would would justify labeling the mistaken this rulemaking. Only comments
have commented on under the 2010 codification in EPA’s October 26, 2010, regarding EPA’s correction of the error
conditions it hypothesized. The rulemaking as anything other than an in the October 26, 2010, action are
proposed rulemaking for this error error or why, regardless of label, the germane to this rulemaking under
correction action proposed to find that misleading codification does not section 110(k)(6).’’ The commenter may
rulemaking on portions of OAC 3745– warrant correction. For example, the elect to make comments that are not
17–03 other than OAC 3745–17–03(A) commenter implies that a significance germane, and the commenter has
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exercised its right to do so, though the that ‘‘appearing’’ to approve the revision section 193 analysis to justify the
commenter has not challenged EPA’s means that it was in fact approved. resulting relaxation; subsequently, EPA
proposed rationale as to the scope of Moreover, this portion of these received comments disputing that
comments that should be considered comments provides background finding, and EPA has not yet taken final
germane. For example, even if EPA’s information and does not urge any action on that proposal.
action could be misconstrued as a changes to EPA’s views underlying the Because Ohio has withdrawn its June
substantive revision to the approved SIP relevant proposed action, and so no 2003 submission, however, EPA will be
(which it is not), and whether the newer detailed review of this portion of these conducting no further rulemaking on
version of OAC 3745–17–03(B) is less comments is warranted. Any history of that submission. Therefore, it is no
stringent than the older version (as the the provisions of OAC 3745–17–03(B) longer germane to any ongoing
commenter contended in these should also note that Ohio (subsequent rulemaking whether Ohio’s June 2003
comments) or not (as the commenter to these comments) has withdrawn its submission would have tightened or
contended in its attached comments submission that sought approval of the relaxed the stringency of Ohio’s existing
from 2005), the commenter does not provision. SIP. In any case, the desirability of
explain why this asserted change in Comment: The commenter stated that clarifying the status of OAC 3745–17–
stringency justifies predicating EPA’s it ‘‘submit[ted] these comments for two 03(B) is not contingent on any final
action to correct an error on the reasons. First, we would like to briefly judgment regarding the effect of
substantive merits of erroneously address EPA’s comment that the COMS previously submitted revisions to OAC
codified provisions. Therefore, EPA provision is ‘significant and substantive’ 3745–17–03(B) on allowable opacity. In
concludes that comments as to the and ‘would allow significantly more its February 7, 2014, proposal, EPA
substantive merits of OAC 3745–17– opacity during certain periods.’ This sought merely to explain why the error
03(B) are not germane to this action, appears to be a reference to [text in in its October 26, 2010, final rule
which only addresses the error that EPA’s June 2005 proposed rulemaking warranted correction. Comments from
occurred in the October 26, 2010, action (at 70 FR 36903), quoted in the the Ohio Utilities Group discussed
pertaining to Ohio EPA’s submission comment].’’ above suggest that the provisions of
regarding its air quality standards rules. The commenter raised several OAC 3745–17–03(B), and the associated
Similarly, the commenter objections to these EPA statements. The relaxation of requirements, are too
mischaracterized EPA’s proposed error commenter asserted that the scenario important to be the subject of an error
action, asserting that EPA is hereby EPA discussed in the June 2005 correction. These comments from the
removing an approval of portions of proposed disapproval, intended as an Chamber et al. argue that the provisions
OAC 3745–17–03 that, it asserted, EPA example case in which the revised of OAC 3745–17–03(B) are not a
approved in the October 26, 2010, version of OAC 3745–17–03(B) ‘‘significant and substantive’’ relaxation
action. The proposed rulemaking ‘‘allow[s] excess opacity on occasions of the opacity-related requirements and
explained at length that EPA cannot that excess opacity is currently in fact may be a ‘‘significant and
have approved any portion of 3745–17– prohibited,’’ to reflect an unlikely substantive’’ tightening of performance
03 in 2010 other than the cross reference pattern of operation that would not be obligations. Regardless of these
in OAC 3745–17–03(A), and so the expected to be identified as a violation conflicting comments, three parties have
action EPA proposed clarifies the using the reference method (Method 9) concluded that the status of OAC 3745–
approved SIP without changing the of the unrevised rule. ‘‘In summary, the 17–03(B) is sufficiently important to
substance of what has actually been alternative of continuous instrumental comment on rulemaking proposing to
approved. Again, the commenter monitoring of in-stack opacity in lieu of clarify the status of this rule. Even aside
provided no rationale for adopting its periodic Method 9 visible emission from questions regarding the substantive
views as to the nature of EPA’s observations may be ‘significant and consequences of revisions to OAC 3745–
proposed action rather than the views substantive’ in terms of imposing more 17–03(B), EPA seeks clarity regarding
EPA proposed. stringent performance obligations, but it which rules have been approved into
certainly [is] not a ‘significant and the SIP, especially for rules that prompt
Chamber et al. substantive’ relaxation of the significant substantive interest.
Comment: The commenter provided performance obligation where Method 9 Consequently, EPA has concluded that
an extensive description of provisions is the SIP reference test for opacity.’’ it is important to clarify the scope of
in OAC 3745–17–03(B). The commenter Response: The commenter is correct EPA’s rulemaking on Ohio’s submittal
also provided a history of this provision, that the pertinent statement in the addressing air quality standards and to
including Ohio’s submission of the February 7, 2014, proposed rulemaking correct the errors in the October 26,
provision to EPA in June 2003, EPA’s reflects the views expressed in the cited 2010, action that created a
proposal to disapprove the provision in statement in EPA’s June 27, 2005, misimpression that EPA had approved
June 2005, the (erroneous) appearance proposed rulemaking. The commenter OAC 3745–17–03(B)as a part of the SIP.
of EPA approving the provision on also observed that EPA has not Comment: The commenter also asked
October 26, 2010, the EPA correction of completed rulemaking pursuant to this that EPA complete its rulemaking action
this appearance on April 3, 2013, June 2005 proposed disapproval. EPA’s on the June 2003 SIP revision that EPA
without reference to correction purpose for making these statements in addressed in the June 2005 proposed
authority in Clean Air Act section the proposal for this error correction disapproval.
110(k)(6), a petition for EPA to was to provide context and to explain Response: Ohio has withdrawn the
reconsider this correction, and EPA’s the significance of the error, not to take pertinent elements of its June 2003 SIP
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proposal published on February 7, 2014, a substantive position. To be clear, in revision submission. Thus, no portion of
to make this correction under the the June 2005 proposal, EPA proposed this submission remains pending.
authority of Clean Air Act section to find that the revised version of OAC
110(k)(6). 3745–17–03(B) would have allowed III. What action is EPA taking?
Response: EPA generally agrees with significantly more opacity during Pursuant to section 110(k)(6), EPA is
the commenters recitation of the facts, certain periods and that the state had determining that its October 26, 2010,
but does not agree with the implication failed to provide a section 110(l) or rulemaking was in error to the extent
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List of Subjects in 40 CFR Part 52 broader term ‘‘cultural items’’ (25 U.S.C. Indian organization, 1 non-federally
Environmental protection, Air 3001(3)). Pursuant to Section 13 of recognized Indian group, 1 Native
pollution control, Incorporation by NAGPRA (25 U.S.C. 3011), the Hawaiian organization, 1 museum, 1
reference, Intergovernmental relations, Department of the Interior (Department) scientific organization, 3 Federal
Particulate matter, Reporting and published the initial rules to implement entities, 6 individual members of the
recordkeeping requirements. NAGPRA in 1995 (60 FR 62158, public, and 1 anonymous commenter.
December 4, 1995); those rules are now All relevant comments on the proposed
Dated: October 22, 2015. codified at 43 CFR part 10. rule were considered during the final
Susan Hedman, Subsequently, the Department rulemaking.
Regional Administrator, Region 5. published additional rules concerning:
• Civil penalties (68 FR 16354, April Final Rule 43 CFR 10.2 Definition of
[FR Doc. 2015–28095 Filed 11–4–15; 8:45 am]
3, 2003); ‘‘Unclaimed Cultural Items’’
BILLING CODE 6560–50–P
• Future applicability (72 FR 13189, Comment 1: Four commenters stated
March 21, 2007); and that the definition of unclaimed cultural
• Disposition of culturally items should include the phrase ‘‘as
DEPARTMENT OF THE INTERIOR unidentifiable human remains (75 FR used in § 10.7 of this part.’’
Office of the Secretary of the Interior 12378, March 15, 2010).
Section 3(b) of the Act (25 U.S.C. 3002 Our Response: The term ‘‘unclaimed
(b)) explicitly directs the Secretary to cultural items’’ is used only in § 10.7
43 CFR Part 10 and therefore the specific reference is
publish regulations for the disposition
[NPS–WASO–NAGPRA–19087; of unclaimed cultural items excavated not needed.
PPWOCRADN0–PCU00RP14.R50000] or discovered on, and removed from, Comment 2: Three commenters stated
Federal lands after November 16, 1990. that the definition of unclaimed cultural
RIN 1024–AE00 items should be expanded and the
When we published the NAGPRA
regulations on December 4, 1995, we difference between the categories of
Disposition of Unclaimed Human
reserved 43 CFR 10.7 for this purpose. unclaimed cultural items be clarified.
Remains, Funerary Objects, Sacred
This rule is limited to Federal lands, One of these commenters added that the
Objects, or Objects of Cultural
as NAGPRA provides that ownership or definition should provide a timeframe
Patrimony
control of any cultural item excavated or that structures how long cultural items
AGENCY: Office of the Secretary, Interior. discovered on, and removed from, tribal must be held by the Federal agency
ACTION: Final rule. land after November 16, 1990, is in prior to being classified as unclaimed.
either a known lineal descendant (for Our Response: We agree. In the final
SUMMARY: This final rule provides human remains and associated funerary rule, we have revised the definition of
procedures for the disposition of objects) or in the Indian tribe from unclaimed cultural items and clarified
unclaimed human remains, funerary whose tribal land the cultural items the difference between the categories.
objects, sacred objects, or objects of were removed, and does not require the We have included a timeframe.
cultural patrimony excavated or lineal descendant or the Indian tribe to Comment 3: Four commenters stated
discovered on, and removed from, make a claim for the cultural items. that the definition of unclaimed cultural
Federal lands after November 16, 1990. Consultation regarding a proposed items imposes an inappropriate time
It implements section 3(b) of the Native rule for § 10.7 began in 2005. On three limit on Indian tribes and Native
American Graves Protection and separate occasions, we consulted with Hawaiian organizations to make claims
Repatriation Act. representatives of Indian tribes, Native for cultural items. One of these
DATES: The rule is effective December 7, Hawaiian organizations, museums, and commenters added that the definition
2015. scientific organizations. We also assumes Federal agencies have been
FOR FURTHER INFORMATION CONTACT:
consulted with the Native American proactive and have provided notice to
Melanie O’Brien, Manager, National Graves Protection and Repatriation all potential claimants.
NAGPRA Program, National Park Review Committee (Review Committee)
Our Response: A potential claimant
Service, 1849 C Street NW., during its scheduled meetings in
may make a claim for unclaimed
Washington, DC 20240, telephone (202) Albuquerque, NM (November 2005);
cultural items at any time prior to
354–2204, email melanie_o’brien@ Washington, DC (April 2007); Phoenix,
transfer or reinterment under this rule.
nps.gov. AZ (October 2007); and Washington, DC
While the rule establishes a timeframe
(November 2010).
SUPPLEMENTARY INFORMATION: We published a proposed rule on for cultural items to become unclaimed,
October 29, 2013 (78 FR 64436). Public there is no timeline imposed for Federal
Background agencies to transfer or to reinter cultural
comment was invited for a 60-day
The Secretary of the Interior period, ending December 30, 2013. The items. We feel the timeframes
(Secretary) is responsible for proposed rule also was posted on the established by the definitions in this
implementation of the Native American National Park Service’s National final rule strike an appropriate balance
Graves Protection and Repatriation Act NAGPRA Program Web site. The Review between assuring Federal agencies that
(NAGPRA or Act) (25 U.S.C. 3001 et Committee commented on the record on the NAGPRA process will end at a
seq.), including the issuance of the proposed rule at a public meeting on certain time and granting non-claimant
appropriate regulations implementing November 6, 2013. Indian tribes and Native Hawaiian
jstallworth on DSK7TPTVN1PROD with RULES
and interpreting its provisions. organizations an opportunity to request
NAGPRA addresses the rights of lineal Summary of and Responses to the transfer of these cultural items.
descendants, Indian tribes, and Native Comments on the Proposed Rule Comment 4: One commenter stated
Hawaiian organizations in certain During the comment period, we that the definition of ‘‘disposition’’ in
human remains, funerary objects, sacred received 27 written comments on the § 10.2(g)(5) should be changed to
objects, and objects of cultural proposed rule, contained in 20 separate include disposition of unclaimed
patrimony, for which the Act uses the submissions from 5 Indian tribes, 1 cultural items.
VerDate Sep<11>2014 14:34 Nov 04, 2015 Jkt 238001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\05NOR1.SGM 05NOR1](https://thefederalregister.org/doc/80_FR_68672/page/8.svg)
Document Created: 2015-12-14 15:02:35
Document Modified: 2015-12-14 15:02:35
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on December 7, 2015. | |
| Contact | 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, [email protected] | |
| FR Citation | 80 FR 68458 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Particulate Matter and Reporting and Recordkeeping Requirements |
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