[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36051-36060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17211]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH73-2-7033, OH74-2-7034, OH75-2-7035; FRL-5257-3]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: The USEPA is approving, in final, requests for exemptions from
the nitrogen oxides (NOX) requirements as provided for in Section
182(f) of the Clean Air Act (Act) for the following ozone nonattainment
areas in Ohio: Canton (Stark County); Cincinnati (Butler, Clermont,
Hamilton and Warren Counties); Cleveland (Ashtabula, Cuyahoga, Geauga,
Lake, Lorain, Medina, Portage and Summit Counties); Columbus (Delaware,
Franklin, and Licking Counties); Youngstown (Mahoning and Trumbull
Counties); Steubenville (Columbiana and Jefferson Counties); Preble
County; and Clinton County. These exemption requests, submitted by the
Ohio Environmental Protection Agency (OEPA), are based upon three years
of ambient air monitoring data which demonstrate that the National
Ambient Air Quality Standard (NAAQS) for ozone has been attained in
each of these areas without additional reductions of NOX.
EFFECTIVE DATE: This action will be effective August 14, 1995.
ADDRESSES: A copy of the exemption requests 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.
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
Section 182(f) Requirements
The air quality planning requirements for the reduction of NOX
emissions are set out in Section 182(f) of the Act. Section 182(f) of
the Act requires States with areas designated nonattainment of the
NAAQS for ozone, and classified as marginal and above, to impose the
same control requirements for major stationary sources of NOX as
apply to major stationary sources of volatile organic compounds (VOC).
The requirements include, for marginal and above areas, nonattainment
area new source review (NSR) for major new sources and modifications
that are major for NOX. For nonattainment areas classified as
moderate and above, the State is also required to adopt reasonably
available control technology (RACT) rules for major stationary sources
of NOX.
Section 182(f) further provides that, for areas outside an ozone
transport region (OTR), these NOX reduction requirements shall not
apply if the Administrator determines that additional reductions of
NOX would not contribute to attainment of the NAAQS for ozone.
Transportation Conformity
The transportation conformity rule, entitled ``Criteria and
Procedures for Determining Conformity to State or Federal
Implementation Plans of Transportation Plans, Programs, and Projects
Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act,''
was published in the November 24, 1993 Federal Register (58 FR 62188).
The rule was promulgated under Section 176(c)(4) of the Act.
The transportation conformity rule requires regional emissions
analysis of motor vehicle NOX emissions for ozone nonattainment
and maintenance areas in order to determine the conformity of
transportation plans and programs to implementation plan requirements.
This analysis must demonstrate that the NOX emissions which would
result from the transportation system if the proposed transportation
plan and program were implemented are within the total allowable level
of NOX emissions from highway and transit motor vehicles as
identified in a submitted or approved maintenance plan, as specified in
the transportation conformity rule.
Until a maintenance plan is approved by USEPA, the regional
emissions analysis of the transportation system must also satisfy the
``build/no-build'' test. That is, the analysis must demonstrate that
emissions from the transportation system, if the proposed
transportation plan and program were implemented, would be less than
the emissions from the transportation system if the proposed
transportation plan and program were not implemented. Furthermore, the
regional emissions analysis must show that
[[Page 36052]]
emissions from the transportation system, if the transportation plan or
program were implemented, would be lower than 1990 levels.
General Conformity
The general conformity rule, entitled ``Determining Conformity of
General Federal Actions to State or Federal Implementation Plans,'' was
published in the Federal Register on November 30, 1993 (58 FR 63214).
The rule was promulgated under Section 176(c)(4) of the Act.
Scope of Exemptions
If the USEPA Administrator determines, under Section 182(f) of the
Act, that additional reductions of NOX would not contribute to
attainment of the ozone NAAQS, the area at issue shall automatically
(i.e., a State would not need to submit an exemption request for each
requirement) be exempt from the following requirements (as applicable):
The NOX-related general and transportation conformity provisions,
NOX RACT, and nonattainment area NSR for new sources and
modifications that are major for NOX. Additionally, NOX
emission reductions would not be required of an enhanced inspection and
maintenance (I/M) program.
II. Criteria for Evaluation of Exemption Requests
The criteria used in the evaluation of the exemption requests can
be found in the following: a notice published in the June 17, 1994
Federal Register (59 FR 31238), entitled ``Conformity: General Preamble
for Exemption from Nitrogen Oxides Provisions,''; a USEPA memorandum
from John S. Seitz, Director, Office of Air Quality Planning and
Standards (OAQPS), dated May 27, 1994, entitled ``Section 182(f)
Nitrogen Oxides (NOX) Exemptions--Revised Process and Criteria,'';
a USEPA memorandum from G. T. Helms, Group Leader, Ozone/Carbon
Monoxide Programs Branch, OAQPS, dated January 12, 1995, entitled
``Scope of Nitrogen Oxides (NOX) Exemptions,''; a USEPA memorandum
from John S. Seitz, Director, OAQPS, dated February 8, 1995, entitled
``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised Process
and Criteria,''; and a USEPA guidance document entitled ``Guideline for
Determining the Applicability of Nitrogen Oxides Requirements Under
Section 182(f),'' dated December 1993, OAQPS, Air Quality Management
Division.
III. State Submittals
Marginal and Nonclassifiable Ozone Nonattainment Areas
In a letter dated March 18, 1994, the OEPA submitted a request that
the following marginal and nonclassifiable ozone nonattainment areas be
exempt from the NOX-related transportation and general conformity
requirements contained in Section 176(c) of the Act: Canton (Stark
County), Columbus (Delaware, Franklin and Licking Counties), Youngstown
(Mahoning and Trumbull Counties), Steubenville (Columbiana and
Jefferson Counties), Preble County, and Clinton County. Additionally,
USEPA is granting exemptions from the nonattainment area NSR
requirements for new sources and modifications that are major for
NOX, for the following marginal ozone nonattainment areas: Canton
(Stark County), Columbus (Delaware, Franklin and Licking Counties), and
Youngstown (Mahoning and Trumbull Counties). The NSR requirements do
not apply to the Steubenville area, Preble County, or Clinton County.
This exemption request is based upon three years (1991-1993) of
ambient air monitoring data which demonstrate that the NAAQS for ozone
has been attained in each of these areas without additional reductions
of NOX emissions.
Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area
In a letter dated November 15, 1994, the OEPA submitted a request
for an exemption from the NOX requirements contained in Section
182(f) of the Act for the Ohio portion of the Cincinnati-Hamilton
interstate moderate ozone nonattainment area (which includes the
Counties of Butler, Clermont, Hamilton and Warren). This exemption
request is based upon the most recent three years (1992-1994) of
ambient air monitoring data which demonstrate that the NAAQS for ozone
has been attained in the Ohio portion of the interstate area without
additional reductions of NOX emissions.
An exemption request from the requirements contained in Section
182(f) of the Act has also been submitted to USEPA--Region 4 by the
Kentucky Department for Environmental Protection (KDEP) for the
Kentucky portion of the interstate area (which includes the counties of
Boone, Kenton, and Campbell). This exemption request is also based upon
ambient air monitoring for ozone which demonstrate that the NAAQS for
ozone has been attained in this area without additional reductions of
NOX. This exemption request will be evaluated in a separate
rulemaking (to be performed by USEPA--Region 4).
Cleveland Moderate Ozone Nonattainment Area
In a letter dated November 1, 1994, the OEPA submitted a request
for an exemption from the requirements contained in Section 182(f) of
the Act for the Cleveland moderate ozone nonattainment area (which
includes the Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain,
Medina, Portage and Summit). This exemption request is based upon the
most recent three years (1992-1994) of ambient air monitoring data
which demonstrate that the NAAQS for ozone has been attained in this
area without additional reductions of NOX.
IV. Analysis of State Submittals
The USEPA has reviewed the ambient air monitoring data for ozone
(consistent with the requirements contained in 40 CFR Part 58 and
recorded in USEPA's--Aerometric Information Retrieval System--AIRS)
submitted by the OEPA in support of these exemption requests.
For ozone, an area is considered in attainment of the NAAQS if
there are no violations, as determined in accordance with 40 CFR 50.9,
based on quality assured monitoring data from three complete
consecutive calendar years. A violation of the ozone NAAQS occurs when
the annual average number of expected exceedances is greater than 1.0
at any site in the area at issue. An exceedance occurs when the daily
maximum hourly ozone concentration exceeds 0.124 parts per million
(ppm).
Marginal and Nonclassifiable Ozone Nonattainment Areas
The following ozone exceedances were recorded for the period from
1991 to 1993 (the average number of expected exceedances for this three
year period are also presented):
Canton: Stark County, 6318 Heminger Ave. (1991)--0.130 ppm; average
expected exceedances: 0.3.
Columbus: Franklin County, 5750 Maple Canyon (1991)--0.131 ppm;
average expected exceedances: 0.3.
Steubenville: no exceedances recorded;
Youngstown: Mahoning County, 9 West Front Street (1991)--0.143 ppm;
average expected exceedances: 0.3. Trumbull County, Community Hall
(1993)--0.127 ppm; average expected exceedances: 0.3.
Preble County: National Trials (1991)--0.129 ppm; average expected
exceedances: 0.3.
Clinton County: 62 Laurel Drive (1993)--0.125 ppm; average expected
[[Page 36053]]
exceedances: 0.5 (based only on two years of monitoring data).
Cincinnati and Cleveland Ozone Nonattainment Areas
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):
Cleveland: Medina County, 6364 Deerview (1994)--0.127 ppm; average
expected exceedances: 0.5 (based only on two years of monitoring data).
Cuyahoga County, 891 E. 125 St. (1993)--0.126 ppm, (1994) 0.127 ppm and
0.125 ppm; average expected exceedances: 1.0.
Cincinnati: 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.
Thus, for all of the areas at issue, the annual average number of
expected exceedances were not greater than 1.0, and thus, the areas are
currently meeting the NAAQS for ozone.
V. Exemptions from the Conformity Provisions
Background
With respect to conformity, USEPA's conformity rules \1\,\2\
currently provide a NOX waiver from certain requirements if an
area receives a Section 182(f) exemption. Under the transportation
conformity rule, a NOX waiver relieves an area of the requirement
to meet the ``build/no build'' and ``less-than-1990-baseline'' tests
which apply during the period before State Implementation Plans (SIP)
with emissions budgets are approved. In a notice published in the June
17, 1994 Federal Register (59 FR 31238, 31241), entitled ``Conformity;
General Preamble for Exemption From Nitrogen Oxides Provisions,'' USEPA
acknowledged that the rule should also have provided that, in order to
conform, nonattainment and maintenance areas must demonstrate that the
transportation plan and transportation improvement program (TIP) are
consistent with the motor vehicle emissions budget for NOX even
where a conformity NOX waiver has been granted. Due to a drafting
error, that view is not reflected in the current published
transportation conformity rules. The USEPA is in the process of
amending the conformity rule so as to remedy the problem.
\1\ ``Criteria and Procedures for Determining Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Funded or Approved under Title 23 U.S.C. of
the Federal Transit Act,'' November 24, 1993 (58 FR 62188).
\2\ ``Determining Conformity of General Federal Actions to State
or Federal Implementation Plans; Final Rule,'' November 30, 1993 (58
FR 63214).
Approval Under Section 182(b)
An issue concerning the appropriate Act authority for granting
transportation-related NOX waivers has been raised by several
commenters. NOX exemptions are provided for in two separate parts
of the Act, Section 182(b)(1) and Section 182(f). These commenters
argue that exemptions from the NOX transportation conformity
requirements must follow the process provided in Section 182(b)(1),
since this is the only Section explicitly referenced by Section
176(c)(3)(A)(iii) in the Act's transportation conformity provisions.
With certain exceptions, USEPA agrees that Section 182(b)(1) is the
appropriate authority under the Act for waiving the transportation
conformity rule's NOX ``build/no build'' and ``less-than-1990''
tests, and is planning to amend the rule to be consistent with the
statute. However, USEPA believes that this authority is only applicable
with respect to those areas that are subject to Section 182(b)(1).
The change in authority for granting NOX waivers from Section
182(f) to Section 182(b)(1) has different impacts for areas subject to
Section 182(b)(1) depending on whether the area is relying on ``clean
air'' data or on modeling data. Areas relying on modeling data must
meet the procedure established under Section 182(b)(1), including
submitting the exemption request as part of a SIP revision. The USEPA
may not take action on exemptions for such areas until the rulemaking
amending the transportation conformity rule to establish Section
182(b)(1) as the appropriate authority for granting such relief has
been completed. ``Clean data'' areas that would otherwise be subject to
Section 182(b)(1), such as Cincinnati and Cleveland, will be relieved
of the transportation conformity rule's interim period NOX
requirements at such time as USEPA takes final action implementing its
recently-issued policy regarding the applicability of Section 182(b)(1)
requirements for areas demonstrating attainment of the ozone NAAQS
based on ``clean data''. This policy is contained in a May 10, 1995,
memorandum from John Seitz, Director, Office of Air Quality Planning
and Standards, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard,'' which should
be referred to for a more thorough discussion. The aspect of the policy
that is relevant here is USEPA's determination that the Section
182(b)(1) provisions regarding reasonable further progress (RFP) and
attainment demonstrations may be interpreted so as not to require the
SIP submissions otherwise called for in Section 182(b)(1) if an ozone
nonattainment area that would otherwise be subject to those
requirements is in fact attaining the ozone standard (i.e., attainment
of the NAAQS is demonstrated with 3 consecutive years of complete,
quality-assured, air-quality monitoring data). Any such ``clean data''
areas, under this interpretation, would no longer be subject to the
requirements of Section 182(b)(1) once USEPA takes final rulemaking
action adopting the interpretation in conjunction with its
determination that the area has attained the standard. At that time,
such areas would be treated like ozone nonattainment areas classified
marginal and below, and hence eligible for NOX waivers from the
interim-period transportation conformity requirements by obtaining a
waiver under Section 182(f), as described below.
Marginal and below ozone nonattainment areas (which represents the
majority of the areas USEPA is taking action on today) are not subject
to Section 176(c)(3)(A)(iii) because they are not subject to Section
182(b)(1), and general federal actions are also not subject to Section
176(c)(3)(A)(iii) (and, hence, are not subject to Section 182(b)(1)
either). These areas, however, are still subject to the conformity
requirements of Section 176(c)(1), which sets out criteria that, if
met, will assure consistency with the SIP. The USEPA believes it is
reasonable and consistent with the Act to provide relief under Section
176(c)(1) for areas not subject to Section 182(b)(1) from applicable
NOX conformity requirements where the Agency has determined that
NOX reductions would not be beneficial, and to rely, in doing so,
on the NOX exemption tests provided in Section 182(f) for the
reasons given below.
The basic approach of the Act is that NOX reductions should
apply when beneficial to an area's attainment goals, and should not
apply when unhelpful or counterproductive. Section 182(f) reflects this
approach but also includes specific substantive tests which provide a
basis for USEPA to determine when NOX requirements should not
apply.
[[Page 36054]]
Whether under Section 182(b)(1) or Section 182(f), where USEPA has
determined that NOX reductions will not benefit attainment or
would be counterproductive in an area, USEPA believes it would be
unreasonable to insist on NOX reductions for purposes of meeting
RFP or other milestone requirements. Moreover, there is no substantive
difference between the technical analysis required to make an
assessment of NOX impacts on attainment in a particular area
whether undertaken with respect to mobile source or stationary source
NOX emissions. Consequently, USEPA believes that granting relief
from the NOX conformity requirements of Section 176(c)(1) under
Section 182(f) in these cases is appropriate.
Action
* Marginal and Nonclassifiable Ozone Nonattainment Areas
The USEPA is approving, as proposed in the January 17, 1995 Federal
Register (60 FR 3361), the transportation and general conformity
exemption requests submitted under Section 182(f) of the Act for the
following areas: Canton (Stark County), Columbus (Delaware, Franklin
and Licking Counties), Youngstown (Mahoning and Trumbull Counties),
Steubenville (Columbiana and Jefferson Counties), Preble County, and
Clinton County.
* Moderate and Above Ozone Nonattainment Areas
The USEPA is delaying action at this time on approval of the
transportation conformity exemptions for the Cincinnati and Cleveland
ozone nonattainment areas. As explained above, USEPA must complete its
rulemaking determining that these areas have attained the ozone
standard and, in conjunction, implementing its interpretation that the
SIP submissions otherwise called for in Section 182(b)(1) no longer
apply. Thus, further action on this approval will occur only as such
time as USEPA takes final action.
VI. NOX RACT Rules
Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area
The State of Ohio was required to submit NOX RACT rules to
USEPA for the Ohio portion of the Cincinnati-Hamilton interstate area.
On July 14, 1994, USEPA notified the Governor of Ohio that the State
had failed to submit the required rules. The State is required to
either submit complete rules to USEPA (or have its NOX exemption
request approved, in final) within 18 months from the date of the
finding in order to avoid the initiation of sanctions under Section
179(b) of the Act. Upon the effective date of the final approval of the
exemption request for the Ohio portion of the Cincinnati-Hamilton
Interstate area, the 18 month ``sanctions clock'' shall stop.
On November 15, 1994, the State of Ohio submitted a redesignation
request to attainment of the ozone NAAQS for the Ohio portion of the
Cincinnati-Hamilton interstate ozone nonattainment area. This
redesignation request will be evaluated in a separate rulemaking. The
State has included NOX RACT as a contingency measure of the
maintenance plan. The USEPA does not require that these rules be
adopted to be included as a contingency measure. However, a specific
schedule is provided for the adoption and implementation of NOX
RACT rules if a violation of the ozone standard is monitored in the
interstate area (which includes the following Counties located in the
State of Kentucky: Boone, Kenton, and Campbell).
Cleveland Moderate Ozone Nonattainment Area
The State of Ohio submitted adopted NOX RACT rules to USEPA on
July 1, 1994, for the Toledo, Dayton, and Cleveland ozone nonattainment
areas. These rules are currently under review and will be evaluated in
a separate rulemaking. The State provided the following provision in
the RACT rules submittal (Ohio Administrative Code (3745-14-02(B)(3))
for the suspension of the RACT rules:
``The Director also may suspend the requirements of this Chapter in
an area in the event that the USEPA issues a national policy and/or
promulgates a regulation which, based upon the ambient air monitoring
data for ozone in the area, eliminates the need for NOX control
requirements in that area.''
On November 1, 1994, the State of Ohio submitted a redesignation
request to attainment of the ozone NAAQS for the Cleveland moderate
ozone nonattainment area. This redesignation request will be evaluated
in a separate rulemaking. The State has included NOX RACT as a
contingency measure of the maintenance plan. The USEPA does not require
that these rules be adopted to be included as a contingency measure.
However, a specific schedule is provided for the adoption and
implementation of NOX RACT rules if a violation of the ozone
standard is monitored in the area.
VII. Inspection and Maintenance (I/M) Programs
Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area
For the Cincinnati area, the local area government has opted for an
enhanced I/M program. The I/M Final Rule (57 FR 52950) provides that if
the Administrator determines that NOX emission reductions are not
beneficial in a given ozone nonattainment area, then NOX emission
reductions are not required of the enhanced I/M program, but the
program shall be designed to offset NOX increases resulting from
the repair of motor vehicles that have failed the hydrocarbon (HC) and
carbon monoxide (CO) testing procedures.3 Upon the effective date
of this action, the Butler, Clermont, Hamilton and Warren Counties
shall not be required to demonstrate compliance with the enhanced I/M
performance standard for NOX. However, the State shall be required
to demonstrate, using USEPA's--Mobile Source Emissions Model, Mobile 5a
(or its successor), that NOX emissions will be no higher than in
the absence of any I/M program.
\3\ Additional clarification concerning the I/M requirements
and areas with NOX exemptions is provided in a memorandum from
Mary T. Smith, Acting Director, Office of Mobile Sources, dated
October 14, 1994, entitled ``I/M Requirements in NOX RACT
Exempt Areas.''
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Cleveland Moderate Ozone Nonattainment Area
For the Cleveland area, the local area government has opted for an
enhanced I/M program for the following counties: Cuyahoga, Geauga,
Lake, Lorain, Medina, Portage and Summit. The I/M Final Rule (57 FR
52950) provides that if the Administrator determines that NOX
emission reductions are not beneficial in a given ozone nonattainment
area, then NOX emission reductions are not required of the
enhanced I/M program, but the program shall be designed to offset
NOX increases resulting from the repair of motor vehicles that
have failed the hydrocarbon (HC) and carbon monoxide (CO) testing
procedures. Upon the effective date of this action, Cuyahoga, Geauga,
Lake, Lorain, Medina, Portage and Summit Counties shall not be required
to demonstrate compliance with the enhanced I/M performance standard
for NOX. However, the State shall be required to demonstrate,
using USEPA's--Mobile Source Emissions Model, Mobile 5a (or its
successor), that NOX emissions will be no higher than in the
absence of any I/M program.
[[Page 36055]]
VIII. Withdrawal of the Exemptions
Until an area has been redesignated to attainment, continuation of
the Section 182(f) exemptions granted herein is contingent upon
continued monitoring and continued attainment of the ozone NAAQS in the
affected area(s). If a violation of the ozone NAAQS is monitored in an
area(s) (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 withdrawing the exemption.
A determination that the NOX exemption no longer applies would
mean that the NOX NSR, general conformity, and transportation
conformity provisions would immediately be applicable (see 58 FR 63214
and 58 FR 62188) for the affected area(s). The NOX RACT
requirements would also be applicable, with a reasonable time provided
as necessary to allow major stationary sources subject to the RACT
requirements to purchase, install and operate the required controls.
The USEPA believes that the State may provide sources a reasonable time
period after the USEPA determination to actually meet the RACT emission
limits. The USEPA expects such time period to be as expeditious as
practicable, but in no case longer than 24 months.
If a nonattainment area is redesignated to attainment of the ozone
NAAQS, but then a violation of the ozone NAAQS occurs, NOX RACT
shall be implemented as stated in the maintenance plan.
IX. Notice of Proposed Rulemaking and Responses to Comments
The USEPA published a notice proposing to approve the exemption
requests for the Cincinnati, Cleveland, and other nonattainment areas
in Ohio in the January 17, 1995 Federal Register (60 FR 3361). The
USEPA received comments supporting and adverse to this proposed action.
Copies of all comments have been placed in the docket file. The
following entities submitted adverse or supporting comments:
Submitting Entity (date received by USEPA): Natural Resources
Defense Council (08-24-94); Columbia Gas Transmission Corporation (02-
09-95); Private Citizen (02-14-95); LTV Steel Company (02-16-95); Ohio
Sierra Club (02-21-95); Akron Regional Infrastructure Alliance (03-29-
95); State of New Hampshire--Department of Environmental Services (03-
30-95); Northeast States for Coordinated Air Use Management (03-30-95);
Ameritech (03-31-95); Southern Environmental Law Center (04-03-95);
Private Citizen (04-03-95); Environmental Defense Fund (04-03-95);
Greater Cleveland Growth Association (04-03-95); Portage County Board
of Commissioners (04-04-95); State of New York--Department of
Environmental Conservation (04-10-95); State of New Jersey--Department
of Environmental Protection (04-10-95); Executive of the County of
Summit (04-11-95).
Some of the adverse comments addressed similar points. The USEPA
responds to these comments by issue as follows:
Procedural Comments: Several commenters argued that USEPA should
not approve the waiver requests at issue on procedural grounds.
NOX exemptions are provided for in two separate parts of the Act,
Section 182(b)(1) and Section 182(f). Commenters took the position that
because the NOX exemption tests in Subsections 182(b)(1) and
182(f)(1) include language indicating that action on such requests
should take place ``when [EPA] approves a plan or plan revision,'' that
all NOX exemption determinations by USEPA, including exemption
actions taken under the petition process established by Subsection
182(f)(3), must occur during consideration of an approvable attainment
or maintenance plan, unless the area has been redesignated to
attainment for the ozone NAAQS. These commenters also argue that even
if the petition procedures of Subsection 182(f)(3) may be used to
relieve areas of certain NOX requirements, exemptions from the
NOX conformity requirements must follow the process provided in
Subsection 182(b)(1), since this is the only provision explicitly
referenced by Section 176(c) in the Act's conformity provisions.
USEPA Response: Section 182(f) contains very few details regarding
the administrative procedure for USEPA action on NOX exemption
requests. The absence of specific guidelines by Congress leaves USEPA
with discretion to establish reasonable procedures, consistent with the
requirements of the Administrative Procedure Act (APA).
The USEPA believes that Subsections 182(f)(1) and 182(f)(3) provide
independent procedures for USEPA to act on NOX exemption requests.
The language in Subsection 182(f)(1), which indicates that USEPA should
act on NOX exemptions in conjunction with action on a plan or plan
revision, does not appear in Subsection 182(f)(3). While Subsection
182(f)(3) references Subsection 182(f)(1), USEPA believes that this
reference encompasses only the substantive tests in paragraph (1) [and,
by extension, paragraph (2)], and not the procedural requirement that
USEPA act on exemptions only when acting on SIPs. Additionally,
paragraph (3) provides that ``person[s]'' (which Section 302(e) of the
Act defines to include States) may petition for NOX exemptions
``at any time,'' and requires USEPA to make its determination within
six months of the petition's submission. These key differences lead
USEPA to believe that Congress intended the exemption petition process
of paragraph (3) to be distinct and more expeditious than the longer
plan revision process intended under paragraph (1).
Section 182(f)(1) appears to contemplate that exemption requests
submitted under these paragraphs are limited to States, since States
are the entities authorized under the Act to submit plans or plan
revisions. By contrast, Section 182(f)(3) provides that ``person[s]''
4 may petition for a NOX determination ``at any time'' after
the ozone precursor study required under Section 185B of the Act is
finalized,5 and gives USEPA a limit of 6 months after filing to
grant or deny such petitions. Since individuals may submit petitions
under paragraph (3) ``at any time,'' this must include times when there
is no plan revision from the State pending at USEPA. The specific
timeframe for USEPA action established in paragraph (3) is
substantially shorter than the timeframe usually required for States to
develop and for USEPA to take action on revisions to a SIP. These
differences strongly suggest that Congress intended the process for
acting on petitions under paragraph (3) to be distinct from and more
expeditious than the plan revision process intended under paragraph
(1). Thus, USEPA believes that paragraph (3)'s reference to paragraph
(1) encompasses only the substantive tests in paragraph (1) [and, by
extension, paragraph (2)], not the requirement in paragraph (1) for
USEPA to grant exemptions only when acting on plan revisions. With
respect to the comment that Section 182(b)(1) provides the appropriate
authority to grant transportation conformity NO exemptions, please
refer to the discussion in `` Section V., Approval Under Section
182(b),'' of this notice.
\4\ Section 302(e) of the Act defines the term ``person'' to
include States.
\5\ The final Section 185B report was issued July 30, 1993.
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Air Monitoring Network: One commenter stated that the network
established for air monitoring is
[[Page 36056]]
insufficient to accurately assess the ambient air quality in these
areas.
USEPA Response: The USEPA has established ambient air monitoring
networks for each of these areas to provide the most accurate
assessment of the ambient air concentrations of ozone as practicable.
These monitors meet the requirements set in 40 CFR Part 58 for ambient
air monitoring, and USEPA has not been provided with any evidence that
would allow it to conclude either that the number of monitors nor their
locations are inadequate.
Attainment Data Comments: Three years of ``clean'' data fail to
demonstrate that NOX reductions would not contribute to attainment
of the NAAQS for ozone. The USEPA's policy erroneously equates the
absence of a violation for one three-year period with ``attainment.''
USEPA Response: The USEPA has separate criteria for determining if
an area should be redesignated to an ozone attainment area under
Section 107 of the Act. The Section 107 redesignation criteria are more
comprehensive than the Act requires with respect to NOX exemptions
under Section 182(f).
Under Section 182(f)(1)(A), an exemption from the NOX
requirements may be granted for nonattainment areas outside an OTR if
USEPA determines that ``additional reductions of [NOX] would not
contribute to attainment'' of the ozone NAAQS in those areas. In some
cases, an ozone nonattainment area might attain the ozone standard, as
demonstrated by 3 years of adequate monitoring data, without having
implemented the Section 182(f) NOX provisions over that 3-year
period.
In cases where a nonattainment area is demonstrating attainment
with 3 consecutive years of air quality monitoring data without having
implemented the Section 182(f) NOX provisions, USEPA believes that
the Section 182(f) test is met since ``additional reductions of
[NOX] would not contribute to attainment'' of the NAAQS in that
area. In cases where it is warranted, USEPA's approval of the exemption
is granted on a contingent basis (i.e., the exemption would last for
only as long as the area's monitoring data continue to demonstrate
attainment).
Review Criteria: One commenter requested that USEPA should review
all exemption requests with the same level of scrutiny.
USEPA Response: It is the Clean Air Act itself, not USEPA, that
treats areas differently for purposes of qualifying for a NOX
exemption. Section 182(f) establishes separate criteria for USEPA to
use in determining whether an area should be granted a NOX
exemption or not depending on whether an area falls within or outside
of an OTR. Within these bounds, USEPA has established national guidance
for evaluating NOX petitions. The relevant NOX exemption
guidance documents are listed earlier in this notice. Each USEPA
Regional Office implements the established policy contained in the
guidance when evaluating individual State's exemption requests. The
USEPA--Region 5 used the same criteria and scrutiny in reviewing these
exemption requests and finds that these exemption requests submitted by
the State meet the procedures set forth in the guidance in order to
meet the applicable requirements of the Act.
Modeling Comments: Some commenters stated that no modeling has been
performed to show that NOX is not a contributor to the ozone
``problem'' in these nonattainment areas and in downwind areas. Other
commenters stated that the modeling required by USEPA guidance is
insufficient to establish that NOX reductions would not contribute
to attainment of the ozone NAAQS.
USEPA Response: As described in USEPA's December 1993 NOX
exemption guidance,6 photochemical grid modeling is generally
needed to document cases where NOX reductions are
counterproductive to net air quality, do not contribute to attainment,
do not show a net ozone benefit, or include excess reductions. The
Urban Airshed Model (UAM) or, in the OTR, the Regional Oxidant Model
(ROM), are acceptable methods for these purposes. However, the December
guidance also provides that, under the ``not contribute to attainment
test,'' an area may qualify for a NOX exemption by attaining the
ozone standard, as demonstrated by three years of ambient air
monitoring data. The exemption requests submitted by the State for
these areas are based upon ambient air monitoring data for ozone, which
demonstrate that the area is in fact attaining the NAAQS and,
consequently, additional reductions of NOX in that area would not
``contribute to attainment''. The comment regarding the sufficiency of
USEPA's modeling guidance is not relevant to this action since these
petitions are based on air monitoring data. For additional information,
please refer to the ``Downwind Area'' comments and response below.
\6\ ``Guideline for Determining the Applicability of Nitrogen
Oxide Requirements under Section 182(f),'' from John S. Seitz,
Director, Office of Air Quality Planning and Standards, dated
December 19, 1993.
---------------------------------------------------------------------------
SIP Status Request: One commenter stated that since other SIP
revisions have not been approved (i.e., the 15% rate-of-progress plans,
maintenance plans, contingency plans, and redesignation request), it is
premature to approve the exemption requests.
USEPA Response: This action only addresses the requests for
exemptions from the NOX requirements contained in Section 182(f)
of the Act and from certain NOX requirements of USEPA's I/M and
conformity regulations as submitted by the State of Ohio. Final actions
by USEPA on these requests are not dependent on final actions on other
required SIP submittals, such as the ones mentioned. Non-related SIP
revisions will be addressed separately. See also USEPA response to
``Conclusive Evidence'' comments.
Transportation Modeling and Emissions Estimates: One commenter
cited a specific highway project, and others stated that generally
there were significant flaws in the transportation modeling and with
the SIP emission estimates for several of the areas included in the
exemption petition.
USEPA Response: This action addresses only the requests for
exemptions from the NOX requirements contained in Section 182(f)
of the Act and certain NOX requirements of USEPA's conformity and
I/M regulations as submitted by the State of Ohio based upon ambient
air monitoring data. Transportation modeling and emission estimates are
not required to be reviewed as part of this approval. Therefore,
adverse comments submitted concerning transportation modeling and
emissions estimates are not being further addressed.
Attainment Demonstration Comments: Some commenters stated that
ambient air monitoring data is a poor indicator for the purpose of
demonstrating that NOX reductions would not contribute to
attainment.
USEPA Response: Under Section 182(f)(1)(A), an exemption from the
NOX requirements may be granted for nonattainment areas outside an
OTR if USEPA determines that ``additional reductions of [NOX]
would not contribute to attainment'' of the ozone NAAQS in those areas.
In some cases, an ozone nonattainment area might attain the ozone
standard, as demonstrated by 3 years of adequate monitoring data,
without having implemented the Section 182(f) NOX provisions over
that 3-year period. In cases where a nonattainment area is
demonstrating attainment with 3 consecutive years of air quality
monitoring data without having
[[Page 36057]]
implemented the Section 182(f) NOX provisions, USEPA believes that
the Section 182(f) test is met since ``additional reductions of
[NOX] would not contribute to attainment'' of the NAAQS in that
area. In all such cases, USEPA's approval of the exemption is granted
on a contingent basis (i.e., the exemption would last for only as long
as the area's monitoring data continue to demonstrate attainment). The
policy described above is applicable to the areas of the country that
successfully meet the ``not contribute to attainment'' NOX
exemption test in Section 182(f)(1)(A), and is further described in
USEPA's December 1993 guidance and May 27, 1994, policy memorandum.
Downwind Area Comments: Several commenters note that USEPA's
December 1993 guidance prohibits granting a Section 182(f) waiver based
on 3 years of clean data if evidence exists showing that the waiver
would interfere with attainment or maintenance in downwind areas. The
commenters argue that the same condition should also apply to waiver
requests based on modeling. Exemptions in Ohio cities, they claim, are
likely to exacerbate ozone nonattainment downwind, and therefore are
not consistent with the Act. If the exemptions are granted, emissions
from new stationary sources and the transportation sector in Ohio,
which are projected to increase, could delay attainment of the ozone
standard in areas in the northeastern United States.
These commenters further claim that USEPA modeling has demonstrated
that Ohio is a significant contributor to atmospheric transport of
ozone precursors to the OTR. Since this modeling indicates that
emissions of NOX from stationary sources west of the OTR
contribute to increased ozone levels in the northeast, they argue that
control of NOX emissions in the OTR and in States west of the OTR
will contribute to significant reductions in peak ozone levels within
the OTR.
USEPA Response: As a result of such comments, USEPA has re-
evaluated its position on this issue and decided to revise the
previously-issued guidance.7 As described below, USEPA intends to
use its authority under Section 110(a)(2)(D) to require a State to
reduce NOX emissions from stationary and/or mobile sources where
there is evidence, such as photochemical grid modeling, showing that
NOX emissions would contribute significantly to nonattainment in,
or interfere with maintenance by, any other State. This action would be
independent of any action taken by USEPA on a NOX exemption
request for stationary sources under Section 182(f). That is, USEPA
action to grant or deny a NOX exemption request under Section
182(f) would not shield that area from USEPA action to require NOX
emission reductions, if necessary, under Section 110(a)(2)(D).
\7\ Please refer to ``Section 182(f) Nitrogen Oxides (NOX)
Exemptions--Revised Process and Criteria,'' from John Seitz,
Director, OAQPS, dated February 8, 1995.
---------------------------------------------------------------------------
Recent modeling data suggest that certain ozone nonattainment areas
may benefit from reductions in NOX emissions far upwind of the
nonattainment area. For example, the northeast corridor and the Lake
Michigan areas are considering attainment strategies which rely in part
on NOX emission reductions hundreds of miles upwind. The USEPA is
working with the States and other organizations to design and complete
studies which consider upwind sources and quantify their impacts. As
the studies progress, USEPA will continue to work with the States and
other organizations to develop mutually acceptable attainment
strategies.
At the same time as these large scale modeling analyses are being
conducted, certain nonattainment areas that are located in the area
being modeled, have requested exemptions from NOX requirements
under Section 182(f). Some areas requesting an exemption may impact
upon downwind nonattainment areas. The USEPA intends to address the
transport issue through Section 110(a)(2)(D) based on a domain-wide
modeling analysis.
Under Section 182(f) of the Act, an exemption from the NOX
requirements may be granted for nonattainment areas outside an OTR if
USEPA determines that ``additional reductions of [NOX] would not
contribute to attainment of the national ambient air quality standard
for ozone in the area.''\8\ As described in section 4.3 of the December
16, 1993 guidance document, USEPA believes that the term ``area'' means
the ``nonattainment area,'' and that USEPA's determination is limited
to consideration of the effects in a single nonattainment area due to
NOX emissions reductions from sources in the same nonattainment
area.
\8\ There are three NOX exemption tests specified in
Section 182(f). Of these, two are applicable for areas outside an
ozone transport region; the ``contribute to attainment'' test
described above, and the ``net air quality benefits'' test. The
USEPA must determine, under the latter test, that the net benefits
to air quality in an area ``are greater in the absence of NOX
reductions'' from relevant sources. Based on the plain language of
Section 182(f), USEPA believes that each test provides an
independent basis for receiving a full or limited NOX
exemption. Consequently, as stated in Section 1.4 of the December
16, 1993 USEPA guidance, ``[w]here any one of the tests is met (even
if another test is failed), the Section 182(f) NOX requirements
would not apply or, under the excess reductions provision, a portion
of these requirements would not apply.''
---------------------------------------------------------------------------
Section 4.3 of the guidance goes on to encourage, but not require,
States/petitioners to include consideration of the entire modeling
domain, since the effects of an attainment strategy may extend beyond
the designated nonattainment area. Specifically, the guidance
encourages States to ``consider imposition of the NOX requirements
if needed to avoid adverse impacts in downwind areas, either intra- or
inter-State. States need to consider such impacts since they are
ultimately responsible for achieving attainment in all portions of
their State (see generally Section 110) and for ensuring that emissions
originating in their State do not contribute significantly to
nonattainment in, or interfere with maintenance by, any other State
[see Section 110(a)(2)(D)(i)(I)].''
In contrast, Section 4.4 of the guidance states that the Section
182(f) demonstration would not be approved if there is evidence, such
as photochemical grid modeling, showing that the NOX exemption
would interfere with attainment or maintenance in downwind areas. The
guidance goes on to explain that Section 110(a)(2)(D) [not Section
182(f)] prohibits such impacts.
Consistent with the guidance in section 4.3, USEPA believes that
the Section 110(a)(2)(D) and 182(f) provisions must be considered
independently, and, hence, is withdrawing the guidance presently
contained in Section 4.4. Thus, if there is evidence that NOX
emissions in an upwind area would interfere with attainment or
maintenance in a downwind area, that action should be separately
addressed by the State(s) or, if necessary, by USEPA in a Section
110(a)(2)(D) action. A Section 182(f) exemption request should be
independently considered by USEPA. In some cases, then, USEPA may grant
an exemption from across-the-board NOX RACT controls under Section
182(f) and, in a separate action, require NOX controls from
stationary and/or mobile sources under Section 110(a)(2)(D). It should
be noted that the controls required under Section 110(a)(2)(D) may be
more or less stringent than RACT, depending upon the circumstances.
Consistent with these principles, USEPA is approving these exemption
requests under Section 182(f) of the Act. If evidence appears that
NOX emissions in an upwind area would interfere with attainment or
maintenance in a
[[Page 36058]]
downwind area, appropriate action shall be taken by the State(s) or, if
necessary, by USEPA under Section 110(a)(2)(D). The USEPA also believes
this approach is consistent with statements made by Mary Nichols,
Assistant Administrator for Air and Radiation, in a March 2, 1995,
memorandum entitled ``Ozone Attainment Demonstrations,'' concerning the
development of regional approaches to resolve NOX transport
issues. Also see response to comment on ``Alternative Ozone Attainment
Demonstration Policy''.
Scope of Exemption: One commenter stated that if USEPA granted
these exemptions, NOX RACT and NSR would be waived for all
NOX sources in the State of Ohio.
USEPA Response: Upon the effective date of this final approval,
NOX RACT and NSR will not be required for any nonattainment area
in the State of Ohio; however, the NOX requirements of Title IV,
acid rain, are not affected by this action and must be met by affected
sources in Ohio. Moreover, as noted earlier, all NOX exemption
approvals are contingent upon the exempted areas continuing to attain
the ozone NAAQS, and would no longer apply in any previously-exempted
area where, prior to redesignation, a violation occurs. Also, NOX
reductions that are needed for maintenance would still be applicable.
Alternative Ozone Attainment Demonstration Policy: One commenter
stated that proposed approval of Ohio's exemption requests seems
premature in light of a recent USEPA policy memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, entitled
``Ozone Attainment Demonstrations,'' dated March 2, 1995.
USEPA Response: The March 2, 1995, policy memorandum is applicable
to ozone nonattainment areas significantly affected by ozone transport
that are classified as serious and above (discretion is given to the
Regional Offices to determine, in consultation with State Agencies,
whether it would be appropriate to apply the policy to other areas in
the State). For the State of Ohio, the Cincinnati-Hamilton interstate
area is the only area that may be affected by this memorandum. However,
a redesignation request has been submitted for this area, and upon the
effective date of the final approval, an attainment demonstration for
this area would no longer be required, thus relieving that area of the
need for the flexibility offered in the March 2nd memorandum. Please
note that the States of Ohio and Kentucky are still funding a
contractual effort to develop an attainment demonstration for the area
in the event the redesignation requests are not approved. See also
response to comment regarding ``Downwind Areas''.
Conclusive Evidence: The Act does not authorize any waiver of the
NOX reduction requirements until conclusive evidence exists that
such reductions are counter-productive.
USEPA Response: The USEPA does not agree with this comment since it
is contrary to Congressional intent as evidenced by the plain language
of Section 182(f), the structure of the Title I ozone subpart as a
whole, and relevant legislative history. In developing and implementing
its NOX exemption policies, USEPA has sought an approach that
reasonably accords with that intent.
In addition to imposing control requirements on major stationary
sources of NOX similar to those that apply for such sources of
VOC, Section 182(f) also provides for an exemption (or limitation) from
application of these requirements if, under one of several tests, USEPA
determines that in certain areas NOX reductions would generally
not be beneficial. In Subsection 182(f)(1), Congress explicitly
conditioned action on NOX exemptions on the results of an ozone
precursor study required under Section 185B. Because of the possibility
that reducing NOX in a particular area may either not contribute
to ozone attainment or may cause the ozone problem to worsen, Congress
included attenuating language, not just in Section 182(f), but
throughout the Title I ozone subpart, to avoid requiring NOX
reductions where they would be non-beneficial or counterproductive.
In describing these various ozone provisions (including Section
182(f), the House Conference Committee Report states in pertinent part:
``[T]he Committee included a separate NOX/VOC study provision in
Section [185B] to serve as the basis for the various findings
contemplated in the NOX provisions. The Committee does not intend
NOX reduction for reduction's sake, but rather as a measure scaled
to the value of NOX reductions for achieving attainment in the
particular ozone nonattainment area.'' H.R. Rep. No. 490, 101st Cong.,
2d Sess. 257-258 (1990).
As noted in response to a comment discussed above, the command in
Subsection 182(f)(1) that USEPA ``shall consider'' the Section 185B
report taken together with the timeframe the Act provides both for
completion of the report and for acting on NOX exemption petitions
clearly demonstrate that Congress believed the information in the
completed Section 185B report would provide a sufficient basis for
USEPA to act on NOX exemption requests, even absent the additional
information that would be included in affected areas' attainment or
maintenance demonstrations. However, while there is no specific
requirement in the Act that USEPA actions granting NOX exemption
requests must await ``conclusive evidence,'' as the commenters argue,
there is also nothing in the Act to prevent USEPA from revisiting an
approved NOX exemption if warranted due to subsequent ambient
monitoring information.
In addition, USEPA believes (as described in USEPA's December 1993
guidance) that Section 182(f)(1) of the Act provides that the new
NOX requirements shall not apply (or may by limited to the extent
necessary to avoid excess reductions) if the USEPA Administrator
determines that any one of the following tests is met:
(1) In any area, the net air quality benefits are greater in the
absence of NOX reductions from the sources concerned;
(2) In nonattainment areas not within an ozone transport region,
additional NOX reductions would not contribute to ozone attainment
in the area; or
(3) In nonattainment areas within an ozone transport region,
additional NOX reductions would not produce net ozone air quality
benefits in the transport region.
Based on the plain language of Section 182(f), USEPA believes that
each test provides an independent basis for the granting of a full or
limited NOX exemption.
Only the first test listed above is based on a showing that
NOX reductions are ``counter-productive.'' If even one of the
tests is met, the Section 182(f) NOX requirements would not apply
or, under the excess reductions provision, a portion of these
requirements would not apply.
Air Quality Comment: One commenter stated that attainment of the
ozone NAAQS has not occurred, while several commenters stated that the
air quality monitoring data alone does not support this exemption
proposal (even though the air quality levels are below USEPA's
definition of an exceedance of the ozone NAAQS at 0.125 ppm, but are
greater than the ozone NAAQS of 0.120 ppm).
USEPA Response: The exemption requests were evaluated against the
standards set forth for this purpose under the Act, regulations, and
USEPA policy. As stated in 40 CFR 50.9, the ozone ``standard is
attained when the expected number of days per calendar year with
maximum hourly average
[[Page 36059]]
concentrations above 0.12 parts per million (235 ug/m\3\) is equal to
or less than 1, as determined by Appendix H.'' Appendix H references
USEPA's ``Guideline for Interpretation of Ozone Air Quality
Standards,'' (EPA-450/4-79-003, January 1979), which notes that the
stated level of the standard is taken as defining the number of
significant figures to be used in comparison with the standard. For
example, a standard level of 0.12 ppm means that measurements are to be
rounded to two decimal places (0.005 rounds up to 0.01). Thus, 0.125
ppm is the smallest concentration value in excess of the level of the
ozone standard (please refer to ``Section IV. Analysis of the State
Submittal'' in this notice for monitored ozone concentrations in these
areas). Based on these criteria, the ambient air monitoring data shows
that a violation of the ozone standard has not occurred for any of the
areas during the indicated ozone seasons.
Monitoring Data Demonstration: One commenter was concerned that
USEPA reviewed 1991-1993 ambient air ozone monitoring data for the
exemption request submitted for the Canton, Columbus, Steubenville,
Youngstown areas; Preble and Clinton Counties; and 1992-1994 ambient
air ozone monitoring data for the Cleveland and Cincinnati areas. The
commenter believed that the inconsistencies between these time periods
brought into question the entire proposed approval.
USEPA Response: The USEPA reviewed the exemption requests based on
when the submittal and accompanying ozone data were received by USEPA.
For the marginal and nonclassifiable ozone nonattainment areas, the
exemption requests were submitted to USEPA in a letter dated March 18,
1994 (based upon monitoring data from the 1991-1993 ozone seasons). For
the Cleveland and Cincinnati areas, the State submitted the exemptions
requests in letters dated November 1 and 15, 1994, respectively, (based
upon monitoring data from the 1992-1994 ozone seasons). The approvals
are consistent with the criteria in 40 CFR 50.9 and Appendix H, as well
as with relevant USEPA guidance, under which the relevant factor is
that there are 3 consecutive years during which the standard has been
attainment as demonstrated by quality-assured ambient air quality data.
X. Final Action
The USEPA is approving, in final, the exemption requests submitted
by the State of Ohio from the NOX requirements provided for in
Section 182(f) of the Act. This approval would exempt the following
Counties in Ohio from the NOX-related general and transportation
conformity provisions; and nonattainment area NSR for new sources and
modifications that are major for NOX: Clinton, Columbiana,
Delaware, Franklin, Jefferson, Licking, Mahoning, Preble, Stark, and
Trumbull.
This approval also exempts the following Counties in Ohio from the
NOX-related general conformity provisions, nonattainment area NSR
for new sources and modifications that are major for NOX, NOX
RACT; and a demonstration of compliance with the enhanced I/M
performance standard for NOX (please note that the following
counties are not being granted an exemption from the transportation
conformity NOX provisions): Ashtabula, Butler, Clermont, Cuyahoga,
Geauga, Hamilton, Lake, Lorain, Medina, Portage, Summit and Warren.
XI. General Provisions
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 has been classified as a Table 2 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.
XII. Regulatory Process
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. Today's exemptions do not create any new requirements, but
allow suspension of the indicated requirements for the life of the
exemptions. 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, 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 relieves requirements otherwise imposed
under the Act and hence, does not impose any federal intergovernmental
mandate, as defined in Section 101 of the Unfunded Mandates Act. This
action also will not impose 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 September 11, 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
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: June 30, 1995.
David A. Ullrich,
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 52.1879 is amended by adding new paragraph (e) to read
as follows:
[[Page 36060]]
Sec. 52.1879 Review of new sources and modifications.
* * * * *
(e) Approval--The USEPA is approving exemption requests submitted
by the State of Ohio on March 18, November 1, and November 15, 1994,
from the requirements contained in Section 182(f) of the Clean Air Act.
This approval exempts the following counties in Ohio from the NOX-
related general and transportation conformity provisions; and
nonattainment area NSR for new sources and modifications that are major
for NOX: Clinton, Columbiana, Delaware, Franklin, Jefferson,
Licking, Mahoning, Preble, Stark, and Trumbull. This approval also
exempts the following counties in Ohio from the NOX-related
general conformity provisions, nonattainment area NSR for new sources
and modifications that are major for NOX, NOX RACT; and a
demonstration of compliance with the enhanced I/M performance standard
for NOX: Ashtabula, Butler, Clermont, Cuyahoga, Geauga, Hamilton,
Lake, Lorain, Medina, Portage, Summit and Warren. If, prior to
redesignation to attainment, a violation of the ozone NAAQS is
monitored in the Canton, Cincinnati, Cleveland, Columbus, Youngstown,
and Steubenville areas, Preble County and Clinton County, the
exemptions from the requirements of Section 182(f) of the Act in the
applicable area(s) shall no longer apply.
3. Section 52.1885 is amended by adding new paragraph (x) to read
as follows:
Sec. 52.1885 Control strategy: Ozone.
* * * * *
(x) Approval--The USEPA is approving exemption requests submitted
by the State of Ohio on March 18, November 1, and November 15, 1994,
from the requirements contained in Section 182(f) of the Clean Air Act.
This approval exempts the following counties in Ohio from the NOX-
related general and transportation conformity provisions, and
nonattainment area NSR for new sources and modifications that are major
for NOX: Clinton, Columbiana, Delaware, Franklin, Jefferson,
Licking, Mahoning, Preble, Stark, and Trumbull. This approval also
exempts the following counties in Ohio from the NOX-related
general conformity provisions, nonattainment area NSR for new sources
and modifications that are major for NOX, NOX RACT, and a
demonstration of compliance with the enhanced I/M performance standard
for NOX: Ashtabula, Butler, Clermont, Cuyahoga, Geauga, Hamilton,
Lake, Lorain, Medina, Portage, Summit, and Warren. If, prior to
redesignation to attainment, a violation of the ozone NAAQS is
monitored in the Canton, Cincinnati, Cleveland, Columbus, Youngstown,
and Steubenville areas, Preble County and Clinton County, the
exemptions from the requirements of Section 182(f) of the Act in the
applicable area(s) shall no longer apply.
[FR Doc. 95-17211 Filed 7-12-95; 8:45 am]
BILLING CODE 6560-50-P
