[Federal Register Volume 62, Number 221 (Monday, November 17, 1997)]
[Rules and Regulations]
[Pages 61241-61247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30136]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[OH107-3; KY94-9717a; FRL-5922-5]
Clean Air Act Promulgation of Extension of Attainment Date for
Ozone Nonattainment Area; Ohio; Kentucky
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: On May 27, 1997, USEPA extended the attainment date for the
Cincinnati-Hamilton interstate, moderate ozone nonattainment area from
November 15, 1996 to November 15, 1997 utilizing ``direct final
rulemaking'' procedures. On July 28, 1997, USEPA withdrew the direct
final rule due to the receipt of adverse comments. In this action USEPA
is responding to public comments received in response to the proposed
rule and announcing that it is extending the attainment date for the
Cincinnati-Hamilton interstate moderate ozone nonattainment area from
November 15, 1996 to November 15, 1997. This extension is based in part
on monitored air quality readings for the national ambient air quality
standard (NAAQS) for ozone during 1996. The USEPA is also revising the
table in the Code of Federal Regulations concerning ozone attainment
dates in this area.
EFFECTIVE DATE: This extension becomes effective December 17, 1997.
ADDRESSES: The Kentucky SIP revision is available for inspection at the
following addresses:
Environmental Protection Agency, Atlanta Federal Center, Region 4 Air
Planning Branch, 61 Forsyth Street S.W., Atlanta, Georgia 30303-3104.
Natural Resources and Environmental Protection Cabinet, 803 Schenkel
Lane, Frankfort, Kentucky 40601.
The Ohio SIP revision is available for inspection at the following
addresses:
Regulation Development Section, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois, 60604.
Ohio EPA, Division of Air Pollution Control, 1800 Watermark Drive,
Columbus, OH 43215.
FOR FURTHER INFORMATION CONTACT: Joseph M. LeVasseur at the USEPA
Region 4 address listed above or Randolph O. Cano at Region 5 at the
address listed above. (It is recommended that you contact Joseph M.
LeVasseur at (404) 562-9035 before visiting the Region 4 office.) (It
is recommended that you contact Randolph O. Cano at (312) 886-6036
before visiting the Region 5 office.)
SUPPLEMENTARY INFORMATION:
Request for Attainment Date Extension for the Cincinnati-Hamilton
Metropolitan Moderate Ozone Nonattainment Area
On November 7, 1996, the Ohio Environmental Protection Agency (Ohio
EPA) requested a one-year attainment date extension for the Ohio
portion of the Cincinnati-Hamilton moderate ozone nonattainment area
which consists of Hamilton, Butler, Clermont and Warren Counties in
Ohio. Similarly, on November 15, 1996, the Kentucky Natural Resources
and Environmental Protection Cabinet (KNREPC) requested
[[Page 61242]]
a one-year attainment date extension for the Kentucky portion of the
Cincinnati-Hamilton moderate ozone nonattainment area which consists of
Kenton, Boone and Campbell Counties. Since this area was classified as
a moderate ozone nonattainment area, the statutory ozone attainment
date, as prescribed by section 181(a) of the Clean Air Act (CAA), is
November 15, 1996. The submittals requested that the attainment date be
extended to November 15, 1997. On May 27, 1997 (62 FR 28634), USEPA
extended the attainment date for the Cincinnati-Hamilton interstate,
moderate ozone nonattainment area from November 15, 1996 to November
15, 1997 utilizing ``direct final rulemaking'' procedures. On July 28,
1997 (62 FR 40280), USEPA withdrew the direct final rule due to the
receipt of adverse comments. In this action USEPA is responding to
public comments received in response to the proposed rule and
announcing that it is extending the attainment date for the Cincinnati-
Hamilton interstate moderate ozone nonattainment area from November 15,
1996 to November 15, 1997. This extension is based in part on monitored
air quality readings for the ozone national ambient air quality
standard (NAAQS) during 1996.
CAA Requirements and USEPA Actions Concerning Designation and
Classification
Section 107(d)(4) of the CAA requires the States and USEPA to
designate areas as attainment, nonattainment, or unclassifiable for
ozone as well as other pollutants for which national ambient air
quality standards (NAAQS) have been set. Section 181(a)(1) requires
that ozone nonattainment areas be classified as marginal, moderate,
serious, severe, or extreme, depending on their air quality. In a
series of Federal Register documents, USEPA completed this process by
designating and classifying all areas of the country for ozone. See,
e.g., 56 FR 58694 (Nov. 6, 1991); 57 FR 56762 (Nov. 30, 1992).
Areas designated nonattainment for ozone are required to meet
attainment dates specified under the CAA. The Cincinnati-Hamilton ozone
nonattainment area was designated nonattainment and classified moderate
for ozone pursuant to 56 FR 58694 (Nov. 6, 1991). By this
classification, its attainment date became November 15, 1996. A
discussion of the attainment dates is found in 57 FR 13498 (April 16,
1992) (the General Preamble).
CAA Requirements and USEPA Actions Concerning Meeting the Attainment
Date
Section 181(b)(2)(A) requires the Administrator, within six months
of the attainment date, to determine whether ozone nonattainment areas
attained the NAAQS. For ozone, USEPA determines attainment status on
the basis of the expected number of exceedances of the NAAQS over the
most recent three-year period. See General Preamble, 57 FR 13506. In
the case of moderate ozone nonattainment areas, the three-year period
is 1994-1996. CAA section 181(b)(2)(A) further states that, for areas
classified as marginal, moderate, or serious, if the Administrator
determines that the area did not attain the standard by its attainment
date, the area must be reclassified upward (bumped-up).
A review of the actual ambient air quality ozone data from the
USEPA Aerometric Information Retrieval System (AIRS), shows that a
number of air quality monitors located in the Cincinnati-Hamilton ozone
nonattainment area recorded exceedances of the NAAQS for ozone during
the three-year period from 1994 to 1996. At one of these monitors,
Warren County, OH, the number of expected exceedances was 2.0 per year,
for 1994 and 1995. Because these exceedances averaged more than 1.0
over the three-year period, they constitute a violation of the ozone
NAAQS for the Cincinnati-Hamilton area during this three-year period.
Thus, the area did not meet the November 15, 1996 attainment date.
However, CAA section 181(a)(5) provides an exemption from these
bump-up requirements. Under this exemption, USEPA may grant up to two,
one-year extensions of the attainment date under specified conditions:
Upon application by any State, the Administrator may extend for one
additional year (hereinafter referred to as the ``Extension Year'') the
date specified in table 1 of paragraph (1) of this subsection if--
(A) The State has complied with all requirements and commitments
pertaining to the area in the applicable implementation plan, and
(B) No more than one exceedance of the NAAQS level for ozone has
occurred in the area in the year preceding the Extension Year.
No more than two one-year extensions may be issued for a single
nonattainment area.
The USEPA interprets this provision to authorize the granting of a
one-year extension under the following minimum conditions:
(1) The State requests a one-year extension,
(2) All requirements and commitments in the USEPA-approved SIP for
the area have been complied with, and
(3) The area has no more than one measured exceedance of the NAAQS
at each monitor in the area during the year that includes the
attainment date (or the subsequent year, if a second one-year extension
is requested).
Table 1.--Exceedances of the Ozone Air Quality Standard in the Cincinnati-Hamilton Area 1994 to 1996
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Exceedances Expected
Site County/state Year measured exeedances
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Oxford\1\................................. Butler, OH................... 1994 0 0.0
Middletown................................ Butler, OH................... 1994 0 0.0
Middletown................................ Butler, OH................... 1995 2 2.0
Middletown................................ Butler, OH................... 1996 1 1.0
Hamilton.................................. Butler, OH................... 1994 0 0.0
Hamilton.................................. Butler, OH................... 1995 1 1.0
Hamilton.................................. Butler, OH................... 1996 0 0.0
4430 SR 222............................... Clermont, OH................. 1994 1 1.0
4430 SR 222............................... Clermont, OH................. 1995 1 1.0
4430 SR 222............................... Clermont, OH................. 1996 0 0.0
11590 Grooms Rd........................... Hamilton, OH................. 1994 0 0.0
11590 Grooms Rd........................... Hamilton, OH................. 1995 0 0.0
11590 Grooms Rd........................... Hamilton, OH................. 1996 0 0.0
6950 Ripple Rd............................ Hamilton, OH................. 1994 0 0.0
6950 Ripple Rd............................ Hamilton, OH................. 1995 1 1.0
6950 Ripple Rd............................ Hamilton, OH................. 1996 0 0.0
[[Page 61243]]
Cincinnati................................ Hamilton, OH................. 1994 0 0.0
Cincinnati................................ Hamilton, OH................. 1995 1 1.0
Cincinnati................................ Hamilton, OH................. 1996 0 0.0
Lebanon................................... Warren, OH................... 1994 2 2.0
Lebanon................................... Warren, OH................... 1995 2 2.0
Lebanon................................... Warren, OH................... 1996 0 0.0
KY 338.................................... Boone, KY.................... 1994 0 0.0
KY 338.................................... Boone, KY.................... 1995 0 0.0
KY 338.................................... Boone, KY.................... 1996 0 0.0
Dayton.................................... Campbell, KY................. 1994 0 0.0
Dayton.................................... Campbell, KY................. 1995 0 0.0
Dayton.................................... Campbell, KY................. 1996 1 1.0
Covington................................. Kenton, KY................... 1994 0 0.0
Covington................................. Kenton, KY................... 1995 1 1.0
Covington................................. Kenton, KY................... 1996 1 1.0
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\1\ This site was shutdown after 1994, so no data are available for 1995 and 1996.
In both extension requests Ohio and Kentucky indicated that they
satisfied the attainment date extension criteria in as much as no
monitors in the Cincinnati-Hamilton area monitored more than one
exceedance each during 1996. The 1996 monitoring data has been quality
controlled and quality assured, as has been the data for 1994 and 1995.
These data are summarized in Table 1. An examination of the data
indicates that three of the ten monitors recorded one exceedance each
during 1996.
Both Ohio and Kentucky certified that they are implementing the
ozone State Implementation Plans (SIPs) for the area. USEPA conducted a
review of the ozone SIPs, as contained in 40 CFR part 52 and USEPA's
electronic version of the SIP, and believes that the States are
implementing the USEPA approved ozone SIPs. Additionally, USEPA has not
made a finding of failure to implement the SIPs for the area. This
supports the States' certification that the area is implementing its
SIPs.
Ohio is implementing the requirements of the approved Ozone SIP.
Regarding implementation of the vehicle inspection and maintenance (I/
M) program, Ohio enacted legislation authorizing the I/M program and
adopted regulations for the operation of the program. The USEPA
approved the program on April 4, 1995 (see 60 FR 16989). The State of
Ohio awarded a contract for program operations, and on January 2, 1996,
Ohio began testing vehicles in the Cincinnati area. The enactment of
legislation, adoption of regulations, and the capital investment in
structures and equipment to perform testing meets the implementation
test. While the Cincinnati program has been suspended due to program
performance problems, Ohio is in compliance with CAA implementation
requirements. The Ohio Stage II vapor recovery program is being
implemented in the Cincinnati area. The State is also collecting
emissions statements from sources in the area. The State is
implementing its SIP for conformity. Also, the area is implementing its
approved SIP which includes a program for controlling volatile organic
compound (VOC) emissions from stationary sources. This includes the
Non-Control Technique Guideline Reasonably Available Control Technique
requirements approved within the past several years for the following
plants in the Ohio portion of the area: Steelcraft Manufacturing Co.,
Chevron USA Inc., International Paper Co., Morton Thiokol, Armco Steel
Co., Formica Corp., PMC Specialties Group, Hilton Davis Co., Monsanto
Co., and Proctor and Gamble.
Kentucky is implementing the requirements of its approved ozone SIP
for the Cincinnati-Hamilton interstate area. The Kentucky portion of
the area is implementing its program for controlling oxides of nitrogen
(NOX) and VOC emissions from stationary sources.
Proposed Rule and Responses to Comments
The USEPA published a direct final rule to approve the attainment
date extension request for the Cincinnati-Hamilton moderate ozone
nonattainment area in the May 27, 1997 (62 FR 28634), Federal Register.
This action was accompanied by a proposed rule (62 FR 28650). Because
USEPA received comments adverse to this action, the direct final rule
was withdrawn. The comments received are summarized below along with
USEPA's responses. Copies of all comments have been placed in the
docket file and are available for public review.
Comment 1: Ohio has failed to comply with the CAA implementation
requirements under sec. 181 (a)(5)(B): ``no more than one exceedance of
the NAAQS level for ozone has occurred in the area in the year
preceding the Extension Year.'' The USEPA's proposal states that ``a
review of the ozone data for the area indicates the area has monitored
no more than one exceedance of the NAAQS at any monitor during 1996.''
Section 181 (a)(5)(B) states that one exceedance be allowed in the
area, not one exceedance be allowed per monitor.
USEPA Response: Appendix H to Part 50.9 of Title 40 of the Code of
Federal Regulations provides for review of the data from each monitor
individually as opposed to adding up all of the individual monitor
exceedances across the region to determine whether or not the area
meets the air quality test for an extension. This is consistent with
the process that USEPA uses to evaluate whether or not an area attained
the ozone standard by its attainment date. For instance in the
Cincinnati/Northern Kentucky area, USEPA reviewed the monitoring data
collected for 1994 through 1996 at each of the ten monitors in the
seven county multi-state area to determine whether or not the area
attained the ozone standard by November 15, 1996. This review showed
that the Lebanon monitor located in Warren County was in violation of
the ozone standard. This resulted in the entire multi-state area having
failed to attain the ozone standard by 1996.
In determining whether or not to extend the attainment date from
1996 to 1997, USEPA reviewed the ozone
[[Page 61244]]
monitoring data for 1996 at each monitoring site in the area to see if
any of the sites recorded more than one exceedance of the ozone
standard during 1996 (see table 1). The results of this review showed
that while three of the monitors recorded an exceedance during 1996,
none of the monitors recorded more than one exceedance. The monitors'
exceedances were not added up to see if they were more than one, which
is consistent with how USEPA evaluates data to determine if an area
attained the standard by 1996. Therefore, the Cincinnati/Northern
Kentucky area meets the monitoring requirements for an extension to
November 15, 1997.
Comment 2: A fourth exceedance in three years was monitored at the
Middletown monitoring site. Therefore, the area is in violation of the
NAAQS for ozone and now qualifies for serious nonattainment so it does
not meet the requirements for an extension.
USEPA Response: The criteria in section 181(a)(5) of the CAA
requires that in order for an area to be eligible for an extension not
more than one exeedance of the NAAQS for ozone may be monitored in the
year prior to the extension year. The year prior to the extension year,
in this case, is 1996. The ambient air monitoring data for the area
shows that not more than one exeedance occurred in 1996 at any
monitoring site in the area (see table 1). Therefore, the area
satisfies the air quality requirements for an extension. The
preliminary air monitoring data for 1997 shows no indication that any
monitor recorded more than one exceedance.
Comment 3: Section 181 (a)(5) states that an extension may be
granted if ``(A) the State has complied with all requirements and
commitments pertaining to the area in the applicable implementation
plan.'' The State committed to an I/M program in their submitted SIP.
The I/M program began, but was suspended on August 20, 1996, and is not
expected to resume until at least after the 1997 ozone season.
Additionally, the I/M program has not yet made a full cycle (a full
cycle takes two years to complete). No program was implemented that
would take the place of the 18 ton/day reduction which the I/M program
was to provide.
USEPA Response: Ohio is implementing the I/M requirements of the
SIP. The State of Ohio awarded a contract for program operations, and
on January 2, 1996, Ohio began testing vehicles in the Cincinnati area.
The enactment of legislation, adoption of regulations, and the capital
investment in structures and equipment to perform testing meets the
implementation test.
The State of Ohio has been working to resume automobile testing in
the Cincinnati area. The program was suspended, due to program
performance requirements. However, the State has been actively working
to get the program back up and running in the area. It is reasonable to
allow the State the opportunity to improve the performance of the
program and to allow sufficient time to get the program operational
again. It is expected that the program will be operational in January
1998.
Comment 4: The extension proposal states that Stage II vapor
recovery program is fully implemented, however, according to the
Hamilton County Department of Environmental Services approximately 225
warning letters are issued annually to facilities whose vapor recovery
devices were delinquent upon inspection. Since the area only has about
500 facilities, it is likely not achieving the required reductions.
USEPA Response: Ohio has implemented the Stage II gasoline vapor
control program in the Ohio portion of the Cincinnati ozone
nonattainment area. Subsequent to the beginning of the program,
inspections have been carried out by the local Department of
Environmental Services (DOES). These inspections have uncovered a
number of deficiencies at some of the facilities inspected prompting
warning letters to facility owners. The warning letters represent a
concerted effort on the part of the DOES to encourage full compliance
with requirements of the Stage II program. The DOES sent 291 warning
letters to gasoline dispensing facilities for a number of different
deficiencies. The warning letters do not necessarily mean that the
facility is not complying with all of the required elements of the
Stage II rule. Of all of the letters sent, 143 letters were sent to
stations because of recordkeeping deficiencies as opposed to a control
equipment problem. Of the remaining 148 letters, there were 431
physical problems such as a leaking nozzle or damaged hoses, cited out
of approximately 10,000 gasoline dispensing nozzles in the four Ohio
counties. Some of the nozzles, for example, were cited for multiple
defects. These deficiencies represent 4.3 percent or less of the
nozzles having some type of problem. This indicates that for the vast
majority of the facilities visited, the Stage II control equipment is
operational and the stage II program is being adequately implemented in
the area.
Comment 5: The interstate area continues to violate the standard
while claiming its Transportation Improvement Program (TIP) will meet
the standards. The Ohio Indiana Kentucky Regional Planning Commission
predicts that the area's TIP will conform, but fails to meet the
standard each year. This is perhaps due to the use of outdated data and
modeling (from the 1960's) for determining conformity with the TIP.
USEPA Response: The CAA requires the TIP to conform to the SIP. For
the Cincinnati/Northern Kentucky area this means that the area must
perform a build/no build analysis on its transportation plan to show
that its volatile organic compound (VOC) and oxides of nitrogen
emissions (NOx) will not increase if the transportation projects are
built. Additionally as part of this conformity demonstration the
emissions resulting from building projects outlined in the TIP must be
shown not to exceed the emissions levels that are planned for in the
SIP. For Cincinnati/Northern Kentucky this calls for comparing the
projected TIP emissions to the emissions in the 15% rate of progress
(ROP) plan submitted by the State of Ohio to USEPA. The ROP plan
provides for an emissions reduction in VOC that the area is required to
meet on its way toward achieving the NAAQS. This level of emissions
will result in improved air quality, but not necessarily air quality
that will attain the NAAQS. The current SIP does not provide for the
reductions or a specific emissions level (attainment target) in order
to reach attainment of the NAAQS. Until this level is set the TIP is
only required to meet the Rate of Progress (ROP) emissions targets and
the build/no build test. The State has been implementing its SIP for
conformity in the Cincinnati area by ensuring that the TIP meets the
ROP test. Therefore, the area satisfied the SIP implementation
requirement for receiving an attainment date extension.
While the interstate area is in violation of the standard, it is
eligible for an attainment date extension because it meets the air
quality test of no more than one exceedance at each monitor in the
area.
Comment 6: The proposed extension does not include any requirements
that will bring the area into compliance. Therefore, it is not
reasonable to expect that a one-year extension will improve the area's
air quality.
USEPA Response: Section 181(a)(5) of the CAA authorizes the
Administrator to provide a one-year extension of time to attain the
ozone NAAQS upon State application as long as two requirements are met.
The State must have complied with all requirements and commitments
pertaining to the area in the applicable
[[Page 61245]]
implementation plan. No more than one exceedance of the NAAQS level may
have occurred in the extension area in the year proceeding the
extension year. A second one-year extension may be granted if the
requirements can be met the following year.
Congress likely intended the extension year as a period to evaluate
the effectiveness of the control strategy prior to developing
additional emission control measures. Over the course of the extension
year, the Federal Motor Vehicle Emissions Control Program (FMVECP) will
reduce mobile source emissions as older, more polluting motor vehicles
were replaced by newer, less polluting motor vehicles. Providing an
additional year for the FMVECP to operate will provide sufficient
additional emission reductions bringing the area closer toward
achieving attainment.
Comment 7: The scientific and medical evidence shows that levels of
ozone in the area are unhealthy. The purpose of the CAA is to protect
the environment and public health, and to prevent damage from air
pollution. If the USEPA grants the area an extension, it would fail to
enforce the CAA, and betray its mission to protect human health and the
environment.
USEPA Response: As stated above, section 181(a)(5) authorizes the
Administrator to grant a one-year extension of the ozone attainment
date upon application by the State if the two conditions discussed
above are met. In granting such an extension, the Administrator is
clearly within the scope of authority granted him by the CAA. In as
much as the extension is authorized by the CAA, it should be considered
consistent with the goals and objectives of the CAA. The extension may
allow the area to reach attainment without incurring the additional
costs that would result from reclassification to a serious area.
Comment 8: The commenter states that an extension can only be
granted upon state submittal of an approvable 15% plan. The areas
current 15% plan is no longer valid because its I/M program has been
suspended. The commenter requests further explanation of the suspension
and a schedule for reimplementing the I/M program prior to any final
action on the attainment date extension.
USEPA Response: In order to be granted an extension, the States are
required to implement their SIPs for the Cincinnati/Northern Kentucky
area. Neither Ohio nor Kentucky has 15% plans that are federally
approved into the State Implementation Plans for the area. Therefore,
the status of the 15% plan is not relevant to the question of whether
or not the States are implementing their SIP since it is not part of
the federally approved SIP. In regards to the I/M program, which is a
part of the federally approved SIP for Ohio, it is expected that the
program will be operational in January 1998. The State is actively
working to improve the performance of the program and to restart the I/
M program.
Comment 9: Implementation of NOX Reasonably Available
Control Technology (RACT) for major sources in the Ohio portion of the
nonattainment area is over a year late. Concerns regarding this
tardiness have been repeatedly expressed in letters addressed to USEPA.
New York State Department of Environmental Conservation requests that
pertinent NOX requirements of the CAA be addressed
expeditiously through revisions to the Ohio SIP.
USEPA Response: USEPA responded to the letters from the State of
New York in three letters dated October 10, 1996, October 30, 1996, and
January 17, 1997. In USEPA's correspondence with the State of New York,
USEPA stated that it would publish a proposed rule in the Federal
Register to provide the community with an opportunity to comment on
removing the Cincinnati area's monitoring-based NOX waiver
and to comment on what ``reasonable time'' may be necessary to allow
major stationary sources subject to the reasonably available control
technology requirements to purchase install and operate the required
controls.
Along with the USEPA's efforts in this regard, it should be noted
that on October 10, 1997, USEPA Administrator Carol Browner signed a
proposed rulemaking to require emissions reductions, including
NOX, in Ohio and twenty-one other states in order to reduce
the effects on attainment caused by the interstate transport of ozone,
which is clearly the issue that New York in its correspondence sought
to have the USEPA address. The proposal reiterates USEPA's view that
ozone pollution is a regional as well as a local problem. As USEPA has
pointed out to New York in it's response letters, the State's concerns
are more appropriately addressed through a process dealing with
resolving the regional ozone pollution problem, particularly long-range
transport. However, section 182(f), which authorizes the granting of
NOX waivers, focuses only on the effects of reducing
NOX in local nonattainment areas, like Cincinnati, while the
provisions of section 110(a)(2)(D), the main statutory basis for the
proposed action, are specifically intended to address the kinds of
interstate problems exemplified by long-range ozone transport. The
USEPA notes that the requirements of the proposed ``SIP call'' action
if finalized would apply both to areas with approved NOX
waiver petitions and areas without such petitions. That is, any
nonattainment area with NOX waiver petitions approved by
USEPA in the past or in the future are not proposed to be exempt from
that action.
Comment 10: A commenter stated that the area should not be granted
an extension because of existing air pollution problems that cause
adverse health effects. Emission controls should be more strict. The
area should not be given more time to comply because it is not
enforcing current rules, and is not doing anything to solve current air
pollution problems.
USEPA Response: As stated above, the one-year extension is
authorized by the CAA for areas that meet the extension requirements.
This gives the area an additional year to realize the benefits of the
controls that are currently in place and the effects FMVECP on reducing
automobile emissions. The CAA allows areas that qualify for an
extension to request an attainment date extension instead of being
reclassified upward to serious and implementing more emission controls.
The area is enforcing its current controls as described in the above
responses.
USEPA Final Action
USEPA has determined that the requirements for a one-year extension
of the attainment date have been fulfilled as follows:
(1) Ohio and Kentucky have formally submitted the attainment date
extension requests.
(2) Ohio and Kentucky are implementing the USEPA-approved SIPs.
(3) A review of actual ozone ambient air quality data for the
Cincinnati-Hamilton area indicates that the area has monitored no more
than one exceedance of the NAAQS at any monitor during 1996. Therefore,
USEPA is approving the attainment date extension requests for the
Cincinnati-Hamilton moderate ozone nonattainment area from November 15,
1996 to November 15, 1997.
Therefore, USEPA approves the Ohio and Kentucky attainment date
extension requests for the Cincinnati-Hamilton ozone nonattainment
area. As a result, the Kentucky Control Strategy for Ozone which is
codified at 40 CFR 52.930 and the Ohio Control Strategy for Ozone which
is codified at 40 CFR 52.1885 are being amended to record these
attainment date extensions. The chart in
[[Page 61246]]
40 CFR 81.318 entitled ``Kentucky-Ozone'' is being modified to reflect
USEPA's approval of Kentucky's attainment date extension request. The
chart in 40 CFR 81.336 entitled ``Ohio-Ozone'' is also being modified
to reflect USEPA's approval of Ohio's attainment date extension
request.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
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, USEPA 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.
Extension of an area's attainment date under the CAA does not
impose any new requirements on small entities. Extension of an
attainment date is an action that affects a geographical area and does
not impose any regulatory requirements on sources. USEPA certifies that
the approval of the attainment date extension will not affect a
substantial number of small entities.
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, USEPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, USEPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires USEPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
The USEPA has determined that the approval action promulgated does
not include a Federal 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. This Federal action imposes no
new requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Audit Privilege and Immunity Law
Nothing in this action should be construed as making any
determination or expressing any position regarding Ohio's audit
privilege and immunity law (Sections 3745.70--3745.73 of the Ohio
Revised Code.) The USEPA will be reviewing the effect of the Ohio audit
privilege and immunity law on various Ohio environmental programs,
including those under the CAA. The USEPA will take appropriate
action(s), if any, after thorough analysis and opportunity for Ohio to
state and explain its views and positions on the issues raised by the
law. The action taken herein does not express or imply any viewpoint on
the question of whether there are legal deficiencies in this or any
Ohio CAA program resulting from the effect of the audit privilege and
immunity law. As a consequence of the review process, the regulations
subject to the action taken herein may be disapproved, Federal approval
for the CAA program under which they are implemented may be withdrawn,
or other appropriate action may be taken, as necessary.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, USEPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in this
Federal Register. This rule is not a ``major rule'' as defined by
section 804(2).
F. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 16, 1998. 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 to grant Ohio and Kentucky an extension to attain the ozone
NAAQS in the Cincinnati-Hamilton ozone nonattainment area as defined in
40 CFR 81.318 and 40 CFR 81.336 may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Ozone.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: November 5, 1997.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
Dated: November 6, 1997.
Gail C. Ginsberg,
Acting Regional Administrator, Region 5.
Parts 52 and 81 of chapter I, title 40 of the Code of Federal
Regulations are 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 paragraph (d) to read as
follows:
Sec. 52.930 Control strategy: Ozone.
* * * * *
(d) Kentucky's November 15, 1996, request for a one-year attainment
date extension for the Kentucky portion of the Cincinnati-Hamilton
metropolitan moderate ozone nonattainment area which consists of
Kenton, Boone, and Campbell Counties is approved. The date for
attaining the ozone standard in these counties is November 15, 1997.
Subpart KK--Ohio
3. Section 52.1885 is amended by adding paragraph (bb) to read as
follows:
Sec. 52.1885 Control strategy: Ozone.
* * * * *
(bb) Ohio's November 7, 1996, request for a one-year attainment
date extension
[[Page 61247]]
for the Ohio portion of the Cincinnati-Hamilton metropolitan moderate
ozone nonattainment area which consists of Hamilton, Butler, Clermont
and Warren Counties is approved. The date for attaining the ozone
standard in these counties is November 15, 1997.
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In Sec. 81.318, the ``Kentucky--Ozone'' table is amended by
revising the entry for the ``Cincinnati-Hamilton Area'' to read as
follows:
Sec. 81.318 Kentucky.
* * * * *
Kentucky--Ozone
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cincinnati-Hamilton Area:
Boone County........................ ........... Nonattainment............................ ........... Moderate.\2\
Campbell County..................... ........... Nonattainment............................ ........... Moderate.\2\
Kenton County....................... ........... Nonattainment............................ ........... Moderate.\2\
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.
\2\ Attainment date extended to November 15, 1997.
* * * * *
3. In Section 81.336, the ``Ohio--Ozone'' table is amended by
revising the entry for the ``Cincinnati-Hamilton Area'' to read as
follows:
Sec. 81.336 Ohio.
* * * * *
Ohio--Ozone
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Cincinnati-Hamilton Area:
Butler County....................... ........... Nonattainment............................ ........... Moderate.\2\
Clermont County..................... ........... Nonattainment............................ ........... Moderate.\2\
Hamilton County..................... ........... Nonattainment............................ ........... Moderate.\2\
Warren County....................... ........... Nonattainment............................ ........... Moderate.\2\
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.
\2\ Attainment date extended to November 15, 1997.
* * * * *
[FR Doc. 97-30136 Filed 11-14-97; 8:45 am]
BILLING CODE 6560-50-P
