06-5013. Approval and Promulgation of Maintenance Plan Revisions; Ohio: Carbon Monoxide Maintenance Plan Updates; Limited Maintenance Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving an October 20, 2005, request from Ohio for a State Implementation Plan (SIP) revision of the Cuyahoga County carbon monoxide (CO) maintenance plan. The CO maintenance plan revision is an update to the current approved maintenance plan and continues to demonstrate maintenance of the CO National Ambient Air Quality Standard (NAAQS) for an additional 10 years. The maintenance plan revision is submitted as a limited maintenance plan for the Cuyahoga County, Ohio carbon monoxide area.

DATES:

This rule is effective on July 31, 2006, unless EPA receives adverse written comments by July 3, 2006. If EPA receives adverse comments, EPA will publish a timely withdrawal of the rule in the Federal Register and inform the public that the rule will not take effect at that time.

ADDRESSES:

Submit comments, identified by Docket ID No. EPA-R05-OAR-2006-0052 by one of the following methods:

• http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: John M. Mooney, Chief, Criteria Pollutant Section, (AR-18J), Air Programs Branch, Air and Radiation Division, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
• Hand delivery: John M. Mooney, Chief, Criteria Pollutant Section, (AR-18J), Air Programs Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604.

Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-2006-0052. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov,, or e-mail. The http://www.regulations.gov Web site is an “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at 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 legal holidays. We recommend that you telephone Patricia Morris, Environmental Scientist, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Patricia Morris, Environmental Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

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

I. What Should I Consider as I Prepare My Comments for EPA?

II. What Is the Background of This SIP?

III. What Is a Limited Maintenance Plan?

IV. What Does This Mean for Transportation Conformity?

V. What Action Is EPA Taking Today?

VI. Statutory and Executive Order Reviews

I. What Should I Consider as I Prepare My Comments for EPA?

A. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments. When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

4. Describe any assumptions and provide any technical information and/or data that you used.

5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

6. Provide specific examples to illustrate your concerns, and suggest alternatives.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

8. Make sure to submit your comments by the comment period deadline identified.

II. What Is the Background of This SIP?

On October 20, 2005, the Ohio Environmental Protection Agency (OEPA), submitted the final public hearing documentation for a SIP revision request for the Cuyahoga County, Ohio carbon monoxide area. The revision consists of a second follow-on ten year carbon monoxide maintenance plan, and a request for a limited CO maintenance plan designation. A public hearing was held on March 10, 2005, in Cleveland, Ohio and a transcript from the public hearing was submitted.

In 1991, EPA designated Cuyahoga County, Ohio as a CO nonattainment area (see 56 FR 56694 November 6, 1991). The State of Ohio developed state implementation plans to control CO emissions through a number of federally mandated control programs, as well as State initiated control programs. These control measures resulted in the attainment of the NAAQS for carbon monoxide in Cuyahoga County, Ohio. The area was redesignated to attainment effective March 7, 1994, (59 FR 5332).

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the EPA Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates attainment for the ten years following the initial ten-year period. The SIP submittal has been submitted by Ohio to meet the second maintenance plan requirement of the CAA. This second maintenance plan supplements, and does not replace, the original approved maintenance plan. The commitments in the approved maintenance plan continue to apply for the second 10 year timeframe.

Ohio originally submitted the emissions projections and SIP revision request on December 24, 2003. However, the state did not conduct a public hearing on the proposed SIP revision at that time. The EPA wrote a letter to Ohio dated January 28, 2004, noting that the public hearing requirements needed to be met. Ohio has now conducted the appropriate public hearing and has submitted the public hearing materials with the SIP revision request.

III. What Is a Limited Maintenance Plan?

EPA detailed the limited maintenance plan approach in a memorandum entitled “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas” from Joseph Paisie, Group Leader, Integrated Policy and Strategies Group, Office of Air Quality Planning and Standards (OAQPS), dated October 6, 1995. Pursuant to this approach, EPA will consider the maintenance demonstration satisfied for “not classified” areas if the monitoring data show the design value is at or below, 7.65 parts per million (ppm), or 85 percent of the level of the 8-hour CO NAAQS. The design value must be based on eight consecutive quarters of data. For such areas, there is no requirement to project emissions of air quality over the maintenance period. EPA believes that if the area begins the maintenance period at, or below, 85 percent of the CO 8 hour NAAQS, then the applicability of Prevention of Significant Deterioration (PSD) requirements, the control measures already in the SIP, and Federal measures, should provide adequate assurance of maintenance over the 10-year maintenance period.

In addition, the design value for the area must continue to be at or below 7.65 ppm until the time of final EPA action.

Current 2005 and 2006 8-hour CO design values for the Cuyahoga County area meet the requirements for a limited maintenance plan. The 8 hour values from the Airdata reports were examined for Cuyahoga County and have not exceeded the 7.65 ppm level for the time frame of 2001 to 2005. Because Cuyahoga County is an attainment/unclassifiable area and meets the monitored CO levels, the area qualifies for the limited maintenance plan option. The Ohio EPA will continue to maintain a continuous CO monitoring network, meeting the requirements of 40 CFR Part 58, that provides adequate coverage to verify continued compliance with the CO NAAQS.

IV. What Does This Mean for Transportation Conformity?

Section 176(c) of the CAA defines transportation conformity as conformity to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. The CAA further defines transportation conformity to mean that no Federal transportation activity will: (1) Cause or contribute to any new violation of any standard in any area; (2) increase the frequency or severity of any existing violation of any standard in any area; or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. The Federal Transportation Conformity Rule, 40 CFR part 93 subpart A, sets forth the criteria and procedures for demonstrating and assuring conformity of transportation plans, programs and projects which are developed, funded or approved by the U.S. Department of Transportation, and by metropolitan planning organizations or other recipients of funds under title 23 U.S.C. or the Federal Transit Laws (49 U.S.C. chapter 53). The transportation conformity rule applies within all nonattainment and maintenance areas. As prescribed by the transportation conformity rule, once an area has an applicable State Implementation Plan with motor vehicle emissions budgets, the expected emissions from planned transportation activities must be consistent with (”conform to”) such established budgets for that area.

In the case of the Cuyahoga County, Ohio, CO limited maintenance plan area, however, the emissions budgets may be treated as essentially not constraining for the length of the second maintenance period as long as the area continues to meet the limited maintenance criteria. There is no reason to expect that this area will experience so much growth in that period that a violation of the CO NAAQS would result. The OEPA submittal includes projections of point, area, and mobile source emissions out to the year 2015. During this timeframe, CO emissions are projected to decrease from 248,801 tons per year in 2002 to 154,102 tons per year in 2015. The on-road mobile source emissions are estimated at 219,912 tons per year in 2002 and are expected to decrease to 120,267 tons per year in 2015. In other words, emissions from on-road transportation sources need not be capped for the maintenance period because, based on the available data, it is unreasonable to believe that emissions from such sources would increase to a level that would threaten the air quality in this area for the duration of this maintenance plan. Therefore, for the limited maintenance plan CO maintenance area, all Federal actions that require conformity determinations under the transportation conformity rule are considered to satisfy the regional emissions analysis and “budget test” requirements in 40 CFR 93.118 of the rule.

Since limited maintenance plan areas are still maintenance areas, however, transportation conformity determinations are still required for transportation plans, programs and projects. Specifically, for such determinations, transportation plans, transportation improvement programs and projects must still demonstrate that they are fiscally constrained (40 CFR part 108) and must meet the criteria for consultation and Transportation Control Measure (TCM) implementation in the conformity rule (40 CFR 93.112 and 40 CFR 93.113, respectively). In addition, projects in limited maintenance areas will still be required to meet the criteria for CO hot spot analyses to satisfy “project level” conformity determinations (40 CFR 93.116 and 40 CFR 93.123) which must incorporate the latest planning assumptions and models that are available. All aspects of transportation conformity (with the exception of satisfying the emissions budget test) will still be required.

If one of the carbon monoxide attainment areas monitors carbon monoxide concentrations at or above the limited maintenance eligibility criteria of 7.65 parts per million then that maintenance area would no longer qualify for a limited maintenance plan and would revert to a full maintenance plan. In this event, the limited maintenance plan would remain applicable for conformity purposes only until the full maintenance plan is submitted and EPA has found its motor vehicle emissions budgets adequate for conformity purposes or EPA approves the full maintenance plan SIP revision.

V. What Action Is EPA Taking Today?

EPA is approving a SIP revision request submitted by the State of Ohio. This SIP revision meets the requirement for a second 10 year maintenance plan for Cuyahoga County, Ohio. The SIP revision supplements the current approved CO maintenance plan and establishes a limited maintenance plan with an unlimited budget for regional motor vehicle emissions for the Cuyahoga County, Ohio CO maintenance area.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan in the event that relevant adverse written comments are filed. This rule will be effective July 31, 2006 without further notice unless we receive relevant adverse written comments by July 31, 2006. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective July 31, 2006.

VI. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175 Consultation and Coordination With Indian Tribal Governments

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000).

Executive Order 13132 Federalism

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

Executive Order 13045 Protection of Children From Environmental Health and Safety Risks

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

National Technology Transfer Advancement Act

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Paperwork Reduction Act

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 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 July 31, 2006. 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

• Environmental protection
• Air pollution control
• Carbon monoxide
• Intergovernmental relations

Dated: May 19, 2006.

Norman Niedergang,

Acting Regional Administrator, Region 5.

For the reasons stated in the preamble, part 52, chapter I, of 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 et seq.

Subpart KK—Ohio

2. Section 52.1887 is amended by adding paragraph (e) to read as follows:

§ 52.1887

Control strategy: Carbon monoxide.

* * * * *

(e) Approval—On October 20, 2005, Ohio submitted a State Implementation Plan (SIP) revision of the Cuyahoga County carbon monoxide (CO) maintenance plan. The CO maintenance plan revision is an update to the current approved maintenance plan and continues to demonstrate maintenance of the CO National Ambient Air Quality Standard (NAAQS) for an additional 10 years. The maintenance plan revision is submitted as a limited maintenance plan for the Cuyahoga County, Ohio carbon monoxide area and provides an unlimited motor vehicle emissions budget as long as the ambient CO levels remain below the 7.65 parts per million design value specified as the criterion for the limited maintenance plan.