[Federal Register Volume 60, Number 120 (Thursday, June 22, 1995)]
[Rules and Regulations]
[Pages 32466-32469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15234]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-5225-1]
Determination of Attainment of Ozone Standard by Ashland,
Kentucky, Northern Kentucky (Cincinnati Area), Charlotte, North
Carolina, and Nashville, Tennessee, and Determination Regarding
Applicability of Certain Reasonable Further Progress and Attainment
Demonstration Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is determining, through direct final procedure, that
the Ashland, Kentucky, Northern Kentucky, Charlotte-Gastonia, North
Carolina, and Nashville, Tennessee ozone nonattainment areas have
attained the National Ambient Air Quality Standard (NAAQS) for ozone.
This determination is based upon three years of complete, quality
assured ambient air monitoring data for the years 1992-94 that
demonstrate that the ozone NAAQS has been attained in these areas. On
the basis of this determination, EPA is also determining that certain
reasonable further progress and attainment demonstration requirements,
along with certain other related requirements, of Part D of Title 1 of
the Clean Air Act are not applicable to the areas for so long as the
areas continue to attain the ozone NAAQS. In the proposed rules section
of this Federal Register, EPA is proposing these determinations and
soliciting public comment on them. If adverse comments are received on
this direct final rule, EPA will withdraw this final rule and address
these comments in a final rule on the related proposed rule which is
being published in the proposed rules section of this Federal Register.
DATES: This action will be effective August 7, 1995 unless notice is
received by July 24, 1995 that any person wishes to submit adverse or
critical comments. If the effective date is delayed, timely notice will
be published in the Federal Register.
ADDRESSES: A copy of the air quality data and EPA's analysis are
available for inspection at the following address:
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365
Commonwealth of Kentucky, Division of Air Quality, Department for
Environmental Protection, Natural Resources and Environmental
Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601
State of North Carolina, Air Quality Section, Division of Environmental
Management, North Carolina Department of Environment, Health, and
Natural Resources, Raleigh, North Carolina 27626
Environmental Management Division, Mecklenburg County Department of
Environmental Protection, 700 N. Tryon Street, Charlotte, North
Carolina 28202-2236
State of Tennessee, Division of Air Pollution Control, Tennessee
Department of Environment and Conservation, L & C Annex, 9th Floor, 401
Church Street, Nashville, Tennessee 37243-1531
Bureau of Environmental Health Services, Metropolitan Health
Department, Nashville-Davidson County, 311-23rd Avenue, North,
Nashville, Tennessee 37203
Written comments can be mailed to: Kay Prince, Regulatory Planning
and Development Section, Air Programs Branch, Air, Pesticides & Toxics
Management Division, Region 4, Environmental Protection Agency, 345
Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is
404/347-3555 extension 4221.
FOR FURTHER INFORMATION CONTACT: Kay Prince, Regulatory Planning and
Development Section, Air Programs Branch, Air, Pesticides & Toxics
Management Division, Region 4, Environmental Protection Agency, 345
Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is
404/347-3555 extension 4221.
SUPPLEMENTARY INFORMATION:
I. Background
Subpart 2 of Part D of Title I of the Clean Air Act (CAA) contains
various air quality planning and state implementation plan (SIP)
submission requirements for ozone nonattainment areas. EPA believes it
is reasonable to interpret provisions regarding reasonable further
progress (RFP) and attainment demonstrations, along with certain other
related provisions, so as not to require SIP submissions if an ozone
nonattainment area subject to those requirements is monitoring
attainment of the ozone standard (i.e., attainment of the NAAQS
demonstrated with three consecutive years of complete, quality assured
air quality monitoring data). As described below, EPA has previously
interpreted the general provisions of subpart 1 of part D of Title I
(sections 171 and 172) so as not to require the submission of SIP
revisions concerning RFP, attainment demonstrations, or contingency
measures. As explained in a memorandum dated May 10, 1995, from John S.
Seitz, Director, Office of Air Quality Planning and Standards to the
Regional Air Division Directors, entitled Reasonable Further Progress,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard, EPA believes it is appropriate to interpret the more specific
RFP, attainment demonstration and related provisions of subpart 2 in
the same manner.
First, with respect to RFP, section 171(1) states that, for
purposes of part D of Title I, RFP ``means such annual incremental
reductions in emissions of the relevant air pollutant as are required
by this part or may reasonably be required by the Administrator for the
[[Page 32467]] purpose of ensuring attainment of the applicable
national ambient air quality standard by the applicable date.'' Thus,
whether dealing with the general RFP requirement of section 172(c)(2),
or the more specific RFP requirements of subpart 2 for classified ozone
nonattainment areas (such as the 15 percent plan requirement of section
182(b)(1)), the stated purpose of RFP is to ensure attainment by the
applicable attainment date.1 If an area has in fact attained the
standard, the stated purpose of the RFP requirement will have already
been fulfilled and EPA does not believe that the area need submit
revisions providing for the further emission reductions described in
the RFP provisions of section 182(b)(1).
\1\ EPA notes that paragraph (1) of subsection 182(b) is
entitled ``Plan Provisions For Reasonable Further Progress'' and
that subparagraph (B) of paragraph 182(c)(2) is entitled
``Reasonable Further Progress Demonstration,'' thereby making it
clear that both the 15 percent plan requirement of section 182(b)(1)
and the 3 percent per year requirement of section 182(c)(2) are
specific varieties of RFP requirements.
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EPA notes that it took this view with respect to the general RFP
requirement of section 172(c)(2) in the General Preamble for the
Interpretation of title I of the Clean Air Act Amendments of 1990 (57
FR 13498 (April 16, 1992)), and it is now extending that interpretation
to the specific provisions of subpart 2. In the General Preamble, EPA
stated, in the context of a discussion of the requirements applicable
to the evaluation of requests to redesignate nonattainment areas to
attainment, that the ``requirements for RFP will not apply in
evaluating a request for redesignation to attainment since, at a
minimum, the air quality data for the area must show that the area has
already attained. Showing that the state will make RFP towards
attainment will, therefore, have no meaning at that point.'' (57 FR at
13564.) 2
\2\ See also ``Procedures for Processing Requests to Redesignate
Areas to Attainment,'' from John Calcagni, Director, Air Quality
Management Division, to Regional Air Division Directors, September
4, 1992, at page 6 (stating that the ``requirements for reasonable
further progress * * * will not apply for redesignations because
they only have meaning for areas not attaining the standard'')
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
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Second, with respect to the attainment demonstration requirements
of section 182(b)(1), an analogous rationale leads to the same result.
Section 182(b)(1) requires that the plan provide for ``such specific
annual reductions in emissions * * * as necessary to attain the
national primary ambient air quality standard by the attainment date
applicable under this Act.'' As with the RFP requirements, if an area
has in fact monitored attainment of the standard, EPA believes there is
no need for an area to make a further submission containing additional
measures to achieve attainment. This is also consistent with the
interpretation of certain section 172(c) requirements provided by EPA
in the General Preamble to title I, as EPA stated there that no other
measures to provide for attainment would be needed by areas seeking
redesignation to attainment since ``attainment will have been
reached.'' (57 FR at 13564; see also September 1992 Calcagni memorandum
at page 6.) Upon attainment of the NAAQS, the focus of state planning
efforts shifts to the maintenance of the NAAQS and the development of a
maintenance plan under section 175A.
EPA emphasizes that the lack of a requirement to submit the SIP
revisions discussed above exists only for as long as an area designated
nonattainment continues to attain the standard. If EPA subsequently
determines that such an area has violated the NAAQS, the basis for the
determination that the area need not make the pertinent SIP revisions
would no longer exist. The EPA would notify the State of that
determination and would also provide notice to the public in the
Federal Register. Such a determination would mean that the area would
have to address the pertinent SIP requirements within a reasonable
amount of time, which EPA would establish taking into account the
individual circumstances surrounding the particular SIP submissions at
issue. Thus, a determination that an area need not submit one of the
SIP submittals amounts to no more than a suspension of the requirement
for so long as the area continues to attain the standard.
The states must continue to operate an appropriate air quality
monitoring network, in accordance with 40 CFR Part 58, to verify the
attainment status of the area. The air quality data relied upon to
determine that the area is attaining the ozone standard must be
consistent with 40 CFR Part 58 requirements and other relevant EPA
guidance and recorded in EPA's Aerometric Information Retrieval System
(AIRS).
The determinations that are being made with this Federal Register
notice are not equivalent to the redesignation of the areas to
attainment. Attainment of the ozone NAAQS is only one of the criteria
set forth in section 107(d)(3)(E) that must be satisfied for an area to
be redesignated to attainment. To be redesignated the state must submit
and receive full approval of a redesignation request for the area that
satisfies all of the criteria of that section, including the
requirement of a demonstration that the improvement in the area's air
quality is due to permanent and enforceable reductions and the
requirements that the area have a fully approved SIP meeting all of the
applicable requirements under section 110 and Part D and a fully
approved maintenance plan.
Furthermore, the determinations made in this notice do not shield
an area from future EPA action to require emissions reductions from
sources in the area where there is evidence, such as photochemical grid
modeling, showing that emissions from sources in the area contribute
significantly to nonattainment in, or interfere with maintenance by,
other nonattainment areas. EPA has authority under sections
110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions if
necessary and appropriate to deal with transport situations.
II. Analysis of Air Quality Data
The EPA has reviewed the ambient air monitoring data for ozone
(consistent with the requirements contained in 40 CFR part 58 and
recorded in AIRS) for the Ashland, Northern Kentucky, Charlotte-
Gastonia, and Nashville ozone nonattainment areas in the Commonwealth
of Kentucky and the States of North Carolina and Tennessee from 1992
through the present time. On the basis of that review EPA has concluded
that the areas attained the ozone standard during the 1992-94 period
and continue to attain the standard at this time. The monitors in the
Northern Kentucky portion of the Cincinnati ozone nonattainment area
have not recorded a violation of the ozone standard since 1988 and have
recorded only one exceedance (Campbell County monitor) during the 1992-
94 period. Additionally, all monitors in the Cincinnati ozone
nonattainment area have an expected exceedance rate of less than 1.1
for the 1992-94 period. The Ashland portion of the Ashland-Huntington
area has air quality data showing attainment of the standard for the
period 1991-94. Both the Boyd County and Greenup County monitors have
recorded 2 exceedances in the 1992-94 period. All monitors in the
Ashland-Huntington area have an expected exceedance rate for the 1992-
94 period of less than 1.1. All monitors in the Charlotte-Gastonia area
have an expected exceedance rate of less than 1.1 for the 1992-94
period with no violations recorded at any monitor for the 1990-94
period. Two of the monitors in Mecklenburg County have recorded two
exceedances during the 1992-94 period, with no exceedance at
[[Page 32468]] any monitor in the area during 1994. All monitors in the
Nashville area have less than 1.1 expected exceedance rate. One of the
two monitors located in Sumner County recorded 3 exceedances during the
1992-94 period. None of the other monitors in the Nashville ozone
nonattainment area have recorded a violation since 1988. Thus, these
areas are no longer recording violations of the air quality standard
for ozone. A more detailed summary of the ozone monitoring data for the
area is provided in the EPA technical support document dated May 19,
1995.
Final Action
EPA determines that the Ashland, Kentucky, Northern Kentucky,
Charlotte-Gastonia, North Carolina, and Nashville, Tennessee, ozone
nonattainment areas have attained the ozone standard and continue to
attain the standard at this time. As a consequence of EPA's
determination that the Ashland, Kentucky, Northern Kentucky, Charlotte-
Gastonia, North Carolina, and Nashville, Tennessee, areas have attained
the ozone standard, the requirements of section 182(b)(1) concerning
the submission of the 15 percent plan and ozone attainment
demonstration and the requirements of section 172(c)(9) concerning
contingency measures are not applicable to the areas so long as the
areas do not violate the ozone standard.
The issuance of this determination will have no immediate impact on
the way transportation conformity is demonstrated. These areas will
continue to demonstrate conformity using the build/no-build test and
less-than-1990 test (section 51.436-51.446 of the transportation
conformity rule), and the 15 percent SIP if one has been submitted (and
attainment/RFP SIP, if one with a budget has been submitted). Since
these areas are the subject of conformity determinations pursuant to
this action and will not be required to submit RFP or attainment
demonstration SIPs, these areas will not generally be in the control
strategy period for conformity purposes (i.e., have a control strategy
SIP approved and build/no-build test no longer required) for so long as
the area does not violate the standard. These areas will not have
approved budgets until a maintenance plan is approved as part of the
approval of a redesignation request, therefore the build/no-build test
and less-than-1990 test, in addition to consistency with any applicable
submitted budgets, will be required until maintenance plan approval. (A
maintenance plan budget does not apply for conformity purposes until
the maintenance plan has been approved, except as provided by section
51.448(i) of the conformity rule (which applies to the Ashland,
Kentucky, and Charlotte-Gastonia, North Carolina, areas which were
required to submit a 15 percent SIP but submitted a maintenance plan
instead).)
The Northern Kentucky area which had previously submitted a 15
percent SIP, and the Nashville, Tennessee, area which had previously
submitted 15 percent and attainment SIPs, may choose to withdraw their
submitted SIPs through the submission of a letter from the Governors or
their designees in order to eliminate the applicability of their motor
vehicle emission budgets for conformity purposes. This is because these
areas will not be subject to the 15 percent and attainment
demonstration requirements of section 182(b)(1) for so long as the area
continues to attain the standard. If the respective submitted SIP is
not withdrawn, the budget in that submittal will continue to apply for
conformity purposes. If the submitted 15 percent or attainment SIP is
withdrawn, only the build/no-build and less-than-1990 tests would apply
until a maintenance plan is approved.
The Ashland, Kentucky, and Charlotte-Gastonia, North Carolina,
areas which are already demonstrating conformity to a submitted
maintenance plan pursuant to Sec. 51.448(i) may continue to do so, or
may elect to withdraw the applicability of the submitted maintenance
plan budget for conformity purposes until the maintenance plan is
approved. The applicability may be withdrawn through the submission of
a letter from the respective Governor or his or her designee. If the
applicability of the submitted maintenance plan budget is withdrawn for
conformity purposes, the build/no-build test and less-than-1990 tests
will apply until the maintenance plan is approved.
EPA emphasizes that these determinations are contingent upon the
continued monitoring and continued attainment and maintenance of the
ozone NAAQS in the affected areas. If a violation of the ozone NAAQS is
monitored in the Ashland, Kentucky, Northern Kentucky, Charlotte-
Gastonia, North Carolina, or Nashville, Tennessee, areas (consistent
with the requirements contained in 40 CFR part 58 and recorded in
AIRS), EPA will provide notice to the public in the Federal Register.
Such a violation would mean that the area would thereafter have to
address the requirements of section 182(b)(1) and section 172(c)(9)
since the basis for the determination that they do not apply would no
longer exist.
As a consequence of the determinations that these areas have
attained and that the reasonable further progress and attainment
demonstration requirements of section 182(b)(1) do not presently apply,
the sanctions clocks started by EPA on January 28, 1994, for the
Ashland and Charlotte-Gastonia areas for the failure to submit a
section 181(b)(1) 15 percent plan and attainment demonstration and on
April 1, 1994, for the Nashville area for submittal of an incomplete 15
percent plan are hereby stopped as the deficiency for which the clocks
were started no longer exists.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
This action will become effective on August 7, 1995. However, if
the EPA receives adverse comments by July 24, 1995, then the EPA will
publish a document that withdraws the action, and will address those
comments in the final rule on the requested redesignation and SIP
revision which has been proposed for approval in the proposed rules
section of this Federal Register.
The Office of Management and Budget exempted this regulatory action
from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000. This determination does not create any new requirements, but
allows suspension of the indicated requirements. Therefore, because the
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected.
Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,
EPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to State,
local, or tribal governments in the aggregate. [[Page 32469]]
EPA's final action does not impose any federal intergovernmental
mandate, as defined in section 101 of the Unfunded Mandates Act, upon
the State. No additional costs to State, local, or tribal governments,
or to the private sector, result from this action, which suspends the
indicated requirements. Thus, EPA has determined that this final action
does not include a mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector.
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 August 21, 1995. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Air pollution control, Nitrogen oxides, Ozone, Volatile organic
compounds, Intergovernmental relations, Reporting and record keeping
requirements.
Dated: June 9, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
Part 52, chapter 1, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart S--Kentucky
2. Section 52.930 is amended by adding new paragraph (c) to read as
follows:
Sec. 52.930 Control strategy: Ozone.
* * * * *
(c) Determination--EPA is determining that, as of August 7, 1995,
the Cincinnati-Hamilton and Huntington-Ashland ozone nonattainment
areas have attained the ozone standard and that the reasonable further
progress and attainment demonstration requirements of section 182(b)(1)
and related requirements of section 172(c)(9) of the Clean Air Act do
not apply to the areas for so long as the areas do not monitor any
violations of the ozone standard. If a violation of the ozone NAAQS is
monitored in the Cincinnati-Hamilton or Huntington-Ashland ozone
nonattainment areas, these determinations shall no longer apply.
Subpart II--North Carolina
2. Section 52.1782 is added to read as follows:
Sec. 52.1782 Control strategy: Ozone.
(a) Determination--EPA is determining that, as of August 7, 1995,
the Charlotte-Gastonina ozone nonattainment area has attained the ozone
standard and that the reasonable further progress and attainment
demonstration requirements of section 182(b)(1) and related
requirements of section 172(c)(9) of the Clean Air Act do not apply to
the area for so long as the area does not monitor any violations of the
ozone standard. If a violation of the ozone NAAQS is monitored in the
Charlotte-Gastonia ozone nonattainment area, these determinations shall
no longer apply.
(b) [Reserved]
Subpart RR--Tennessee
2. Section 52.2235 is added to read as follows:
Sec. 52.2235 Control strategy: Ozone.
* * * * *
(a) Determination--EPA is determining that, as of August 7, 1995,
the Nashville ozone nonattainment area has attained the ozone standard
and that the reasonable further progress and attainment demonstration
requirements of section 182(b)(1) and related requirements of section
172(c)(9) of the Clean Air Act do not apply to the area for so long as
the area does not monitor any violations of the ozone standard. If a
violation of the ozone NAAQS is monitored in the Nashville ozone
nonattainment area, these determinations shall no longer apply.
(b) [Reserved]
[FR Doc. 95-15234 Filed 6-21-95; 8:45 am]
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