[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Rules and Regulations]
[Pages 33742-33745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15959]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH87-1-7075a; FRL-5227-1]
Determination of Attainment of the Ozone Standard by the
Cleveland, Toledo, Dayton and the Cincinnati-Hamilton Interstate Ozone
Nonattainment Areas and Determination Regarding Applicability of
Certain Reasonable Further Progress and Attainment Demonstration
Requirements; Ohio
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
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SUMMARY: The USEPA is determining, through direct final procedure, that
the Cleveland ozone nonattainment area (which includes the Counties of
Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit);
Toledo (which includes the Counties of Lucas and Wood); Dayton (which
includes the Counties of Clark, Greene, Miami, and Montgomery); and the
Ohio portion of the Cincinnati-Hamilton Interstate (which includes the
Counties of Butler, Clermont, Hamilton and Warren) 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 1992 to 1994 ozone
seasons that demonstrate that the ozone NAAQS has been attained in each
of these areas. On the basis of this determination, USEPA is also
determining that certain reasonable-further-progress (RFP) 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 Cleveland, Toledo, Dayton and Cincinnati areas for so
long as these areas continue to attain the ozone NAAQS. In the proposed
rules section of this Federal Register, USEPA is proposing these
determinations and soliciting public comment on them. If adverse
comments are received on this direct final rule, USEPA 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 on August 14, 1995 unless notice
is received by July 31, 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 USEPA's analysis are
available for inspection at the following location (it is recommended
that you contact Richard Schleyer at (312) 353-5089 before visiting the
Region 5 office): United States Environmental Protection Agency, Region
5, Air Enforcement Branch, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois, 60604.
Written comments can be mailed to: William MacDowell, Chief,
Regulation Development Section, Air Enforcement Branch (AE-17J), U.S.
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Richard Schleyer, Regulation
Development Section, Air Enforcement Branch (AE-17J), Region 5, United
States Environmental Protection Agency, 77 West Jackson Boulevard,
Chicago, Illinois, 60604, (312) 353-5089.
SUPPLEMENTARY INFORMATION:
I. Background
Subpart 2 of Part D of Title I of the Clean Air Act (Act) contains
various air quality planning and state implementation plan (SIP)
submission requirements for ozone nonattainment areas. The USEPA
believes it is reasonable to interpret provisions regarding 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, USEPA 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 from John S. Seitz, Director, Office of Air Quality Planning
and Standards, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment
[[Page 33743]]
Areas Meeting the Ozone National Ambient Air Quality Standard,'' dated
May 10, 1995, USEPA 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) of the Act 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
purpose of ensuring attainment of the applicable NAAQS 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 USEPA 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\ USEPA 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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The USEPA 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, USEPA
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, USEPA 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
USEPA in the General Preamble to Title I. As USEPA stated in the
Preamble, 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.
Similar reasoning applies to other related provisions of subpart 2.
The first of these are the contingency measure requirements of Section
172(c)(9) of the Act. The USEPA has previously interpreted the
contingency measure requirement of Section 172(c)(9) as no longer being
applicable once an area has attained the standard since those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' (57 FR at 13564; see also September 1992
Calcagni memorandum at page 6)
The USEPA 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 USEPA
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 USEPA 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 USEPA 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 State 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 USEPA
guidance and recorded in USEPA's--Aerometric Information Retrieval
System (AIRS).
These determinations that are being made with this Federal Register
notice are not equivalent to the redesignation of the area 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. Please note that redesignation requests have
been submitted for the Cleveland, Toledo, Dayton and Cincinnati areas.
These redesignation requests are being evaluated in separate rulemaking
actions.
Furthermore, the determinations made in this notice do not shield
an area from future USEPA 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,
any other States with respect to the NAAQS (see section 110(a)(2)(D)).
The USEPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of
the Act to require such emission reductions if necessary and
appropriate to deal with transport situations.
Analysis of Air Quality Data
The USEPA has reviewed the ambient air monitoring data for ozone
(consistent with the requirements contained in 40 CFR Part 58 and
recorded in AIRS) for
[[Page 33744]]
the Cleveland, Toledo, Dayton, and Cincinnati ozone nonattainment areas
in the State of Ohio from the 1992 through 1994 ozone seasons.3
The following ozone exceedances were recorded for the period from 1992
to 1994 (the average number of expected exceedances for this three year
period are also presented):
\3\ The Cincinnati-Hamilton Interstate Area includes the
following counties in Ohio: Butler, Clermont, Hamilton and Warren;
and the following counties in Kentucky: Boone, Campbell and Kenton.
If a violation were monitored in the Kentucky portion of the
interstate area (or the Ohio portion of the Interstate area) these
nonattainment area provisions would then be applicable.
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Cleveland: Medina County, 6364 Deerview Lane (1994) - 0.127 ppm;
average expected exceedances: 0.5 (based only on two years of
monitoring data). Cuyahoga County, 891 E. 152 St. (1993) - 0.126 ppm,
(1994) 0.127 ppm and 0.125 ppm; average expected exceedances: 1.0.
Cincinnati-Hamilton Interstate Area: Ohio Portion: Butler County,
Schuler and Bend (1993) - 0.131 ppm; average expected exceedances: 0.3.
Hook Field Municipal (1993) - 0.138 ppm; average expected exceedances:
0.3. Clermont County, 389 Main St. (1994) - 0.128 ppm; average expected
exceedances: 0.3. Warren County, Southeast St. (1994) - 0.139 ppm and
0.128 ppm; average expected exceedances: 0.7.
Kentucky Portion: Campbell County, 9th and Maple (1993) - 0.126
ppm; average expected exceedances: 0.3.
Toledo: Lucas County, 306 N. Yondota (1993) 0.126 ppm, (1994) 0.142
ppm; average expected exceedances: 0.7. Friendship Park (1993) 0.126
ppm; average expected exceedances: 0.3.
Dayton: Clark County, 5171 Urbana Road (1994) 0.125 ppm; average
expected exceedances: 0.5. Montgomery County, 2100 Timberlane (1993)
0.125 ppm; average expected exceedances: 0.3.
On the basis of this review, USEPA has concluded that these areas
have attained the ozone standard during the 1992-94 period and
continues to attain the standard at this time.
15% Plan/Attainment Demonstration Submittal Status
On March 14, 1994, the State of Ohio submitted revisions to the
ozone portion of the Ohio SIP which included fifteen percent rate of
progress plans for the Toledo, Dayton, Cleveland and Cincinnati ozone
nonattainment areas. These fifteen percent plans were deemed complete
by USEPA on August 8, 1994. Also included in this SIP revision were
attainment demonstrations for the Toledo, Dayton and Cleveland ozone
nonattainment areas. These attainment demonstrations were deemed
complete on September 14, 1994. Upon the effective date of this
determination, the State may withdraw these SIP revisions.
If Ohio withdraws the submitted 15 percent plan or attainment
demonstration for Cleveland and Cincinnati areas through the submission
of a letter from the Governor or his or her designee, the motor vehicle
emissions budget test would no longer apply for conformity purposes in
that area 4. The build/no-build and less than-1990 test would
apply until a maintenance plan is approved. This is because the area
would 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 submitted SIP is not withdrawn, the budget
in that submission will continue to apply for conformity purposes.
\4\ For Toledo and Dayton, the Ohio Department of
Transportation and metropolitan planning organizations demonstrated
conformity to the 15 percent plan and attainment demonstration motor
vehicle emissions budgets for illustrative purposes in 1994. The
USEPA provided written guidance to the Ohio Department of
Transportation and the Ohio Environmental Protection Agency that the
submitted maintenance plans for Toledo and Dayton were to be used in
lieu of the 15 percent plans and attainment demonstrations in
letters dated July 1, 1994, and May 9, 1995. Ohio may withdraw the
15 percent plan and attainment demonstrations submitted for the
Dayton and Toledo areas. This will not affect USEPA's interpretation
of the applicability of these SIPs for conformity purposes.
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However, areas that are already demonstrating conformity to a
submitted maintenance plan pursuant to section 51.448(i) (Toledo and
Dayton) 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. If the applicability
of the submitted maintenance plan budget is withdrawn for conformity
purposes, the build/no-build and less-than 1990 tests will apply until
the maintenance plan is approved.
Conclusion
The USEPA has determined that the Cleveland (which includes the
Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage
and Summit); Toledo (which includes the Counties of Lucas and Wood);
Dayton (which includes the counties of Clark, Greene, Miami and
Montgomery); and the Ohio portion of the Cincinnati-Hamilton interstate
(which includes the Counties of Butler, Clermont, Hamilton and Warren)
ozone nonattainment areas have attained the ozone standard and continue
to attain the standard at this time.
As a consequence of this determination that the Cleveland, Toledo,
Dayton and Cincinnati ozone nonattainment 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 will not be applicable to the area so long as the area does
not violate the ozone standard.
It should be emphasized that these determinations are contingent
upon the continued monitoring and continued attainment and maintenance
of the ozone NAAQS in the affected area. If a violation of the ozone
NAAQS is monitored in the Cleveland, Toledo, Dayton and Cincinnati
ozone nonattainment areas (consistent with the requirements contained
in 40 CFR part 58 and recorded in AIRS), USEPA will provide notice to
the public in the Federal Register. Such a violation would mean that
the area(s) would thereafter have to address the requirements of
section 182(b)(1) and 172(c)(9) since the basis for the determination
that they do not apply would no longer exist.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a 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.
This action will become effective on August 14, 1995. However, if
USEPA receives adverse comments by July 31, 1995, then USEPA 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.
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. 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., USEPA
must
[[Page 33745]]
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. Today's 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. Moreover,
due to the nature of the Federal-State relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
Act forbids USEPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,
USEPA 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.
The USEPA'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, USEPA 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 14, 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, Intergovernmental relations, Nitrogen
oxides, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Dated: June 14, 1995.
David A. Kee,
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 KK--Ohio
2. Section 52.1885 is amended by adding new paragraph (w) to read
as follows:
Sec. 52.1885 Control Strategy: Ozone.
* * * * *
(w) Determination--USEPA is determining that, as of May 31, 1995,
the Cleveland (which includes the Counties of Ashtabula, Cuyahoga,
Geauga, Lake, Lorain, Medina, Portage and Summit); Toledo (which
includes the Counties of Lucas and Wood); Dayton (which includes the
Counties of Clark, Greene, Miami and Montgomery); and the Ohio portion
of the Cincinnati-Hamilton Interstate (which includes the Counties of
Butler, Clermont, Hamilton and Warren) 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 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 Cleveland, Toledo, Dayton or Cincinnati-Hamilton
Interstate (ambient air monitoring data shall be reviewed for all
monitors located in the interstate nonattainment area which includes
the State of Kentucky Counties of Boone, Campbell, and Kenton) ozone
nonattainment area(s), this determination(s) shall no longer apply.
[FR Doc. 95-15959 Filed 6-28-95; 8:45 am]
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