[Federal Register Volume 60, Number 147 (Tuesday, August 1, 1995)]
[Rules and Regulations]
[Pages 39115-39122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18510]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[OH50-5-7072, FRL-5258-9]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes: State of Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On May 2, 1995, the United States Environmental Protection
Agency (USEPA) published a proposed and direct final rulemaking notice
to approve the ozone redesignation request and associated section 175A
maintenance plan for Toledo, Ohio under the Clean Air Act. The 30-day
comment period for these notices concluded on June 1, 1995. Four
comment letters were received in response to the May 2, 1995 proposal,
and included adverse comments and a request to extend the comment
period. The USEPA withdrew the direct final rulemaking but denied the
request to extend the public comment period. This final rule summarizes
all adverse comments and USEPA's responses, and finalizes the approval
of the redesignation to attainment of the National Ambient Air Quality
Standard for ozone and section 175A maintenance plan for the Toledo
area.
EFFECTIVE DATE: This action will be effective August 1, 1995.
ADDRESSES: Copies of the SIP revisions, public comments and USEPA's
responses are available for inspection at the following address: (It is
recommended that you telephone Angela Lee at (312) 353-5142 before
visiting the Region 5 Office.)
United States Environmental Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Angela Lee, Regulation Development
Section, Air Enforcement Branch (AE-17J), United States Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604, (312) 353-5142.
SUPPLEMENTARY INFORMATION:
I. Background Information
The 1977 Act required areas that were designated nonattainment to
develop SIPs with sufficient control measures to expeditiously attain
and maintain applicable standards. For Ohio, Lucas and Wood Counties
were designated nonattainment for ozone, see 43 FR 8962 (March 3,
1978), 43 FR 45993 (October 5, 1978), and 40 CFR part 81. After
enactment of the amended Act on November 15, 1990, the nonattainment
designation of the Toledo area continued by operation of law according
to section 107(d)(1)(C)(i) of the Act; furthermore, the area was
classified by operation of law as moderate for ozone pursuant to
section 181(a)(1) (56 FR 56694, November 6, 1991), codified at 40 CFR
81.336.
More recently, ambient monitoring data for the Toledo area show no
violations of the ozone National Ambient Air Quality Standard (NAAQS)
during the period from 1990 through 1992. The area, therefore, became
eligible for redesignation from nonattainment to attainment consistent
with the amended Act. On September 17, 1993, Ohio requested
redesignation of the area to attainment with respect to the ozone
NAAQS. To ensure continued attainment of the ozone standard, Ohio
submitted an ozone maintenance SIP for the Toledo area with the
redesignation request. On November 1, 1993, Ohio held a public hearing
on the maintenance plan and redesignation request.
On May 2, 1995, the USEPA published a proposed (60 FR 21490) and
direct final rule (60 FR 21456) to approve the redesignation request
and section 175A maintenance plan as revisions to the Ohio ozone State
Implementation Plan (SIP). The USEPA withdrew the direct final rule on
June 19, 1995, (60 FR 31917) in response to receiving adverse comments.
This final rule addresses these comments and takes final action
regarding the redesignation and section 175A maintenance plan for the
Toledo area.
II. Summary of Comments and Responses
USEPA has considered the adverse comments received and has decided
to proceed with formal action approving the redesignation. A summary of
adverse comments received in response to the May 2, 1995 proposed and
direct final rulemaking notices (60 FR 21490, 60 FR 21456) and
responses to these comments is provided below. Comments were made by
two residents of the Toledo, Ohio area, Environment Canada, and the
Citizens Commission for Clean Air in the Lake Michigan Basin.
(1) Comment: A commentor objects to the use of the direct final
procedure when the proposed redesignation is neither noncontroversial
nor routine. Another commentor objected to the final rule procedure due
to insufficient opportunity for public comment. Several commentors
requested that the direct final rule be withdrawn and republished as a
proposed rule. The commentors also requested a 30 day extension of the
public comment period. One commentor stated that ``most citizens have
not heard about the opportunity to comment, and should be afforded
additional time to do so.'' Another commentor requested an extension of
the comment period so that concerns about increased vehicle emissions
caused by new road construction projects and a possible increase in
highway tolls can be evaluated and addressed.
(1) Response: The USEPA did not expect adverse comments regarding
the approval of the ozone redesignation request and viewed its decision
as noncontroversial since it believed that all of the Clean Air Act
requirements for redesignation were met. In response to the adverse
comment letters which were received, the USEPA withdrew the direct
final rule. In any event, that process preserves the public opportunity
to comment as a proposed rule was published the same day as the direct
final rule was published at 60 FR 21490.
The USEPA is denying the extension requests because it believes the
period provided for public comment was adequate in light of the issues
presented by the Toledo redesignation request. USEPA further notes that
the public had many opportunities to become informed about the issues
as Ohio itself had its own public comment period and that a public
function for the rulemaking package was held on March 14, 1995, in
Toledo, Ohio, which was shown on television news programs. Moreover,
USEPA has already exceeded the statutory deadline of section
107(d)(3)(d) to act on this request which expired on March 17, 1995--
and does not believe further delay in the action is appropriate.
(2) Comment: Several commentors stated that the last two summers
were abnormally cool and that data for the last 10 years indicate a
trend toward warmer summers in the Toledo area. The commentors
requested that USEPA delay rulemaking so that one or two years of
monitoring data could be collected to ensure that the improvement in
air quality was not caused by cooler temperatures. The commentors also
stated that it would be a waste of resources to redesignate the area to
attainment when a violation
[[Page 39116]]
would require a redesignation back to nonattainment.
(2) Response: The USEPA may not delay action on this redesignation
request since section 107(d)(3)(E) requires USEPA to act on complete
redesignation requests within 18 months of their receipt--a period that
expired on March 17, 1995. Furthermore, in establishing the criteria
for determining if an area is in attainment of the ozone standard,
USEPA used three years of ambient monitoring data. See 40 CFR part 50,
Appendix H. The USEPA notes that the Toledo area has been in attainment
for four consecutive three-year periods (1989-1991, 1990-1992, 1991-
1993, and 1992-1994). This includes six years of ambient monitoring
data. Thus, Toledo has already been in attainment substantially longer
than the three-year period required. The CAA expressly contemplates the
possibility that areas redesignated to attainment may violate the NAAQS
after redesignation and requires contingency plans to address future
violations. Ohio has adopted such a plan for Toledo. If a violation
occurs, Stage II Vapor Recovery Program (Stage II) and a vehicle
inspection and maintenance program (I/M) will be implemented according
to a specified schedule. If a violation occurs after these programs
have been implemented, nitrogen oxides (NOX) Reasonably Available
Control Technology requirements will be implemented in the area.
(3) Comment: Toledo will not be able to maintain attainment on a
permanent and enforceable basis and therefore does not meet requirement
107(d)(3)(E) of the Clean Air Act. The rulemaking notice states that
the measures are permanent and enforceable, but does not show that the
improvement is permanent and enforceable. The improvement in air
quality is temporary since emission increases resulting from increased
vehicle miles travelled (VMT) will surpass the emission reductions from
these measures. Short term emissions reductions and cooler temperatures
have been used to claim that a long term improvement in air quality has
occurred. Long term air quality will not improve and will decrease due
to emissions increases which will offset the gains which have been
made. Insufficient data has been gathered on which to base a long term
prediction, and models have been based on biased assumptions regarding
the effect of capacity expansions. The USEPA should require the state
to submit additional information regarding current trends in land use
and transportation in the Toledo area. The commentor mentioned trends
which were not conducive to efficient transportation such as decreasing
bus ridership, increasing tolls on the Ohio Turnpike, widening of I-75
which will lead to increased VMT, increasing single-occupant vehicle
capacity, and increasing use of the Toledo Airport. Another commentor
submitted excerpts from an article regarding traffic flow on congested
roads from the American Scientist dated November-December 1988 written
by Joel E. Cohen, Professor of Populations, Rockefeller University.
The USEPA and the State of Ohio have failed to demonstrate that the
improvement in air quality was due to permanent and enforceable
emission reductions rather than atypically cool ozone seasons in 1992
and 1993. Also the controls on the volatility of gasoline through
lowering of the Federal Volatility standard and controls new cars under
the Federal Motor Vehicle Emissions Control Program (FMVECP) are
insufficient to guarantee permanent improvements under the Clean Air
Act. These measures represent only a few of the requirements that
should have been enacted prior to any serious consideration of the
redesignation request by USEPA.
(3) Response: Section 107(d)(3)(E)(iii) of the Clean Air Act
requires the USEPA to determine that ``the improvement in air quality
is due to permanent and enforceable reductions in emissions resulting
from implementation of the applicable implementation plan and
applicable Federal air pollutant control regulations and other
permanent and enforceable reductions.'' Ohio met this requirement by
estimating emission reductions from federally mandated controls on new
cars and on fuel volatility as well as reductions which took place at
the British Petroleum Refinery. These controls provided a significant
reduction in the areas emissions and the State has shown that no
additional reductions are needed to maintain the standard. See 60 FR
21456 and 60 FR 21490.
With respect to the issue of unusual meteorology, the USEPA has
compared the average meteorological parameters of maximum daily
temperature, minimum daily temperature, average daily temperature,
cooling degrees, and days with high temperatures greater than 90
degrees fahrenheit for the periods of June through August, 1991 through
1993, with the 30-year norms for these parameters. The 1991 through
1993 averages for these parameters agreed with those for the 30-year
norms with only minor differences. Based on these averaged parameters,
it can be concluded that the 1991 through 1993 period was not unusually
cool in terms of temperatures. Thus, the State has adequately
demonstrated that the air quality improvement was not due to unusually
favorable meteorology.
To meet section 107(d)(3)(E)(iii), the improvement in air quality
does not have to be shown to be permanent, only the measures that
resulted in the improvement need to be permanent and enforceable.
However, section 107(d)(3)(E)(iv) does require that the area have a
fully approved maintenance plan showing that the ozone standard will be
maintained for ten years into the future. This can be done through air
quality modeling or by using emissions projections. Ohio demonstrated
that, by considering the growth in the area (including VMT growth) and
existing controls on emission sources, emissions will remain below the
attainment year inventory through the year 2005. In projecting mobile
source emissions, Ohio obtained VMT based on the Highway Performance
Modeling System which uses traffic counting data for the year 1990. To
forecast VMT to the year 2005, Ohio used growth parameters based on
modeling of the Long Range Transportation Plan (future highway
network). This modeling process incorporated population growth
estimates from Ohio Data Users Center, employment forecasts and other
forecasts of socio-economic data. The methodology which was used to
project emissions is reasonable. The USEPA notes that the emissions
projection for mobile sources in the maintenance plan establishes the
emissions budget which will be used for determining conformity of
transportation plans and transportation improvement programs for the
Toledo area. The conformity determination must include reasonable
assumptions about transit service and increases in transit fares and
road and bridge tolls over time.
The May 2, 1995 notice describes a tracking plan for updating the
emission inventory. As discussed, Ohio has committed to submitting
periodic inventories every 3 years. Ohio will compare the projected
emissions in the redesignation request with actual emissions. If
volatile organic compounds (VOC) emissions exceed 95 percent of 1990
levels, Ohio will implement Stage II and/or I/M.
If the periodic inventories exceed the attainment level of
emissions in the maintenance plan, the USEPA may issue a SIP call to
the area under section 110(k)(5) on the basis that the State made
inadequate assumptions in projecting the inventory used to demonstrate
maintenance. In this event, the USEPA may require the State to
[[Page 39117]]
correct the projection inventory and, if increases are projected,
propose and ultimately implement maintenance measure(s) to lower the
emissions to a level at or below the attainment year level. Under
section 175A of the Clean Air Act, Ohio must submit a demonstration
that the ozone standard will be maintained for another ten years, eight
years after the area is redesignated to attainment. This is expected to
result in the Toledo area maintaining the ozone standard for the next
20 years.
(4) Comment: Two commentors requested that USEPA prepare an
Environmental Impact Statement (EIS) as the redesignation constitutes a
major federal action with the potential for significant impacts on the
human environment. A number of transportation and land use control
measures which would have resulted under requirements applied to
nonattainment areas will not be required. The EIS should consider
downwind transport of ozone precursors, and the effect of such
transport on the Northeastern United States.
(4) Response: USEPA is not required to prepare an EIS in connection
with this redesignation. Section 7(c)(1) of the Energy Supply and
Environmental Coordination Act (Pub. L. 93-319) states that ``[n]o
action taken under the Clean Air Act shall be deemed a major Federal
action significantly affecting the quality of the human environment
within the meaning of the National Environmental Policy Act of 1969 (83
Stat. 856).'' This redesignation does not affect the applicability of
the National Environmental Policy Act (NEPA) to particular
transportation projects in the Toledo area. In addition, the
transportation and general conformity rules will still apply after the
area is redesignated to attainment. (Conformity determinations for
transportation plans, transportation improvement projects, and Federal
actions must demonstrate that the emissions budget established by the
maintenance plan is not exceeded.)
The redesignation does not allow States to automatically remove
control programs which have contributed to an area's attainment of a
U.S. National Ambient Air Quality Standard (NAAQS) for any pollutant.
Sources of ozone precursors in the Toledo area must continue to
implement all control equipment and/or measures in accordance with
applicable rules, regulations and permits. Other control programs
required by the Act will be implemented in the area, regardless of the
ozone designation, such as title IV NOX controls, section 112
toxic controls and on-board vapor recovery requirements. Upon
redesignation to attainment, Toledo will be subject to the Prevention
of Significant Deterioration provisions (PSD) of the Clean Air Act that
apply to stationary sources of air pollution.
The State has assessed emission increases due to growth in all
potential sources of emissions and has shown that reductions in
emissions over the maintenance period will more than offset any
increases in emissions of VOC and NOX. As stated in the Federal
Register notice (60 FR 21456), USEPA will address transport of ozone
precursors to downwind areas under section 110 of the Clean Air Act
based on a domain-wide modeling analysis. Should this or other studies
provide a sufficient scientific basis for taking action in the future,
the USEPA will take appropriate action notwithstanding the
redesignation of the Toledo area to attainment for ozone.
(5) Comment: The USEPA should delay rulemaking on this and all
other ozone redesignation requests pending a re-evaluation of the
current ozone standard to determine if public health is adequately
protected. Recent studies indicate that health impacts occur at lower
levels of ozone than the current ozone standard.
(5) Response: The USEPA is currently in the process of reevaluating
the ozone NAAQS and expects to make a final decision in mid-1997. Until
any change is made, however, the USEPA is bound to implement the
provisions of the Act as they relate to the current standard, including
those relating to designations and redesignation. Moreover, as
previously noted under section 107(d)(3)(D) USEPA has 18 months in
which to act on a redesignation request and has no authority to delay
rulemaking until the entire evaluation of the ozone NAAQS is complete.
(6) Comment: Ozone levels exceeded 0.124 parts per million (ppm) at
the Yondota Avenue monitor in 1991, 1993, and 1994. From these
occurrences, and the absence of mandated forceful control measures post
1994, it is very difficult to have the expectation that the Yondota
station will remain in attainment.
(6) Response: Exceedances of the ozone standard did occur at the
Yondota monitor in 1991, 1993 and 1994, but did not cause a violation
of the ozone standard. The control measures approved into the State's
Implementation Plan will remain in place to ensure that the ozone
standard is maintained. Ohio's maintenance demonstration shows that
future emission levels will remain below levels associated with
attainment. Continued maintenance of the ozone NAAQS will be determined
by continued ambient monitoring. If a violation does occur at the
Yondota monitor after the redesignation is approved, Stage II and I/M
will be implemented. In addition, the area will be subject to the PSD
program, FMVECP, and other measures.
(7) Comment: Environment Canada commented that air quality needs to
be managed in a regional context and evaluated over a long term period
that takes meteorological variations into consideration. Environment
Canada is disappointed that current USEPA policy does not reflect this
opinion. Environment Canada believes that the ground level ozone
standards in effect in the United States allow such high levels of
ozone and ozone precursors to flow into Canada as to make it
practically impossible for Canada to reach its ground level ozone
objective of 82 parts per billion. Another commentor asserted that
USEPA failed to consider adverse impacts of transport of ozone and
ozone precursors to the Province of Ontario, Detroit, the Northeastern
United States and the Lake Michigan Basin. USEPA has failed to obtain a
legally enforceable commitment from the State of Ohio to cooperate in
developing a strategy to reduce the documented problem of ozone
transport throughout Eastern North America. Another commentor stated
that the air quality problem is not being solved, it is being moved off
to other downwind states. This breaks the spirit of the Clean Air Act.
(7) Response: The USEPA would like to note that the governments of
the United States and Canada are in the process of developing a joint
study of the transboundary ozone phenomena under the U.S.-Canada Air
Quality Agreement. It is envisioned that this regional ozone study will
provide the scientific information necessary to understand what
contributes to ozone levels in the region, as well as what control
measures would contribute to reductions in ozone levels. Should this or
other studies provide a sufficient scientific basis for taking action
in the future, the USEPA will take an appropriate course of action. The
USEPA may take appropriate action notwithstanding the redesignation of
the Toledo area. Therefore, the USEPA does not believe that the
contentions regarding transboundary impact provide a basis for delaying
action at this time on this redesignation or disapproving the
redesignation. This is particularly true since approval of the
redesignation is not expected to result in an increase in ozone
precursor emissions and is not expected to adversely affect air quality
[[Page 39118]]
in Canada. In fact, a decrease in both VOC and NOX emissions from
the Toledo area is expected over the 10-year maintenance period. It
should also be noted that redesignation does not allow States to
automatically remove control programs which have contributed to an
area's attainment of a U.S. National Ambient Air Quality Standard for
any pollutant. As discussed previously, the USEPA's general policy is
that a State may not relax the adopted and implemented SIP for an area
upon the area's redesignation to attainment unless an appropriate
demonstration,1 based on computer modeling, is approved by the
USEPA. In this case, no previously implemented control strategies are
being relaxed as part of this redesignation.
\1\Such a demonstration must show that removal of a control
program will not interfere with maintenance of the ozone NAAQS and
would entail submittal of an attainment modeling demonstration with
the USEPA's current Guideline on Air Quality Models. Also, see
memorandum from Gerald A. Emison, April 6, 1987, entitled Ozone
Redesignation Policy, and memorandum from Michael H. Shapiro,
September 17, 1993, entitled State Implementation Plan (SIP)
Requirements for Submitting Requests for Redesignation to Attainment
of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality
Standards (NAAQS) on or after November 15, 1992.
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(8) Comment: The maintenance demonstration overestimates reductions
in VOC and NOX emissions, especially for the latter which relies
heavily on NOX emission reductions obtained from modifications at
the British Petroleum refinery and underestimated economic, population
and VMT growth projections. VMT growth projections fail to consider the
ensuing sprawl caused by the development of a corridor from northeast
to southern Ohio. USEPA reliance on assurances from the State of Ohio
that VOC and NOX emissions in the Toledo area will decrease 35
percent and 38 percent, respectively, from attainment levels by 2005,
is speculative and suspect given continued urban growth and sprawl
along major transportation corridors.
(8) Response: The methodology used to project emissions followed
USEPA guidance. Point source emissions were projected by accounting for
known changes to sources for each year between 1990 and 2005 and
applying a growth factor based on manufacturing employment data
provided by the Bureau of Economic Analysis, United States Department
of Commerce, to derive inventories for all ensuing years. Manufacturing
employment is expected to remain relatively constant. The NOX
emission reductions which would result from compliance with Title IV
NOX requirements are reasonable. Population projections were
obtained from using data from the Ohio Data Users Center (ODUC). ODUC
takes into account past trends, the age of the population, economic
cycles, and other factors in estimating the future population of the
area. Ohio used the Highway Performance Modeling System which uses
actual traffic counts to obtain 1990 levels of VMT. This model was
developed by the Federal Highway Administration and is an acceptable
model for estimating VMT. To project levels of VMT, Ohio used the Long
Range Transportation Planning Program which considered the future
transportation network. The methodology used to project mobile source
emissions was reasonable and should not underpredict growth.
While the overall VMT are expected to increase, this growth will be
offset by the FMVECP which will be providing emissions reductions in
the area through the production of cleaner automobiles. In addition
this area is still subject to the transportation conformity
requirements and must show that the expected transportation projects in
the area will conform to the ozone SIP for the area. This will help to
ensure that growth in VMT will not increase emissions to a point where
the ozone standard could be violated. In addition, Ohio has committed
to submit an emissions inventory every three years to USEPA. If the
total of point, area, and mobile VOC emissions exceed 95 percent of
1990 levels, Ohio has committed to implement either Stage II or I/M or
both. Mobile source inventories will incorporate new VMT estimates.
(9) Comment: Ohio has not made the necessary commitments to ensure
the prompt implementation and operation of the contingency plan in the
event of a violation. It is unlikely that Stage II would be re-
implemented given that the Director of the Ohio Environmental
Protection Agency (OEPA) suspended Stage II on September 17, 1993.
(9) Response: The State provided a schedule in their contingency
plan for implementing Stage II and an automobile inspection and
maintenance program. This schedule was provided in the direct final
rule published on May 2, 1995. The Director of the OEPA also committed
in the SIP submittal to implementing the contingency plan for the area
in the event of a violation in the area. As the compliance deadlines
for Stage II begin as early as 6 months after a violation and I/M
testing is to commence within 18 months of a violation, the contingency
measures satisfy the statutory criteria section of section 175A.
(10) Comment: Ohio's failure to implement a part D New Source
Review program for Toledo, Ohio cannot be excused by the memorandum
from Mary Nichols entitled, ``Part D New Source Review (part D NSR)
Requirements for Areas Requesting Redesignation to Attainment''. The
USEPA cannot waive statutory requirements of the Clean Air Act when
such waivers frustrate the purpose of the Clean Air Act which is to
provide clean air, not convenient loopholes for state responsibilities
under the Clean Air Act.
(10) Response: The USEPA believes that its decision not to insist
on a fully-approved NSR program as a pre-requisite to redesignation is
justifiable as an exercise of the Agency's general authority to
establish de minimis exceptions to statutory requirements. See Alabama
Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under
Alabama Power Co. v. Costle, the USEPA has the authority to establish
de minimis exceptions to statutory requirements where the application
of the statutory requirements would be of trivial or no value
environmentally.
In this context, the issue presented is whether the USEPA has the
authority to establish an exception to the requirements of section
107(d)(3)(E) that the USEPA have fully-approved a SIP meeting all of
the requirements applicable to the area under section 110 and part D of
title I of the Act. Plainly, the NSR provisions of section 110 and part
D are requirements that were applicable to the Ohio area seeking
redesignation at the time of the submission of the request for
redesignation. Thus, on its face, section 107(d)(3)(E) would seem to
require that the State have submitted and the USEPA have fully-approved
a part D NSR program meeting the requirements of the Act before the
areas could be redesignated to attainment.
Under the USEPA's de minimis authority, however, the Agency may
establish an exception to an otherwise plain statutory requirement if
its fulfillment would be of little or no environmental value. In this
context, it is necessary to determine what would be achieved by
insisting that there be a fully-approved part D NSR program in place
prior to the redesignation of the Toledo area. For the following
reasons, the USEPA believes that requiring the adoption and full-
approval of a part D NSR program prior to redesignation would not be of
significant environmental value in this case.
Ohio has demonstrated that maintenance of the ozone NAAQS will
occur even if the emission reductions expected to result from the part
D NSR
[[Page 39119]]
program do not occur. Ohio assumed that NSR would not apply after
redesignation to attainment, and therefore, assumed source growth
factors based on projected growth in the economy and in the area's
population. (It should be noted that the growth factors assumed may be
overestimates under PSD, which would restrain source growth through the
application of best available control techniques.) Thus, contrary to
the assertion of the commentor, Ohio has demonstrated that there is no
need to retain the part D NSR as an operative program in the SIP during
the maintenance period in order to provide for continued maintenance of
the NAAQS. (If this demonstration had not been made, NSR would have had
to have been retained in the SIP as an operative program since it would
have been needed to maintain the ozone standard.)
The other purpose that requiring the full-approval of a part D NSR
program might serve would be to ensure that NSR would become a
contingency provision in the maintenance plan required for these areas
by section 107(d)(3)(E)(iv) and 175A(d). These provisions require that,
for an area to be redesignated to attainment, it must receive full
approval of a maintenance plan containing ``such contingency provisions
as the Administrator deems necessary to assure that the State will
promptly correct any violation of the standard which occurs after the
redesignation of the area as an attainment area. Such provisions shall
include a requirement that the State will implement all measures with
respect to the control of the air pollutant concerned which were
contained in the SIP for the area before redesignation of the area as
an attainment area.'' Based on this language, it is apparent that
whether an approved NSR program must be included as a contingency
provision depends on whether it is a ``measure'' for the control of the
pertinent air pollutants.
As the USEPA noted in the proposal regarding this redesignation
request, the term ``measure'' is not defined in section 175A(d) and
Congress utilized that term differently in different provisions of the
Act with respect to the PSD and NSR permitting programs. For example,
in section 110(a)(2)(A), Congress required that SIPs to include
``enforceable emission limitations and other control measures, means,
or techniques * * * as may be necessary or appropriate to meet the
applicable requirements of the Act.'' In section 110(a)(2)(C), Congress
required that SIPs include ``a program to provide for the enforcement
of the measures described in subparagraph (A), and regulation of the
modification and construction of any stationary source within the areas
covered by the plan as necessary to assure that NAAQS are achieved,
including a permit program as required in parts C and D.'' (Emphasis
added.) If the term measures as used in section 110(a)(2) (A) and (C)
had been intended to include PSD and NSR there would have been no point
to requiring that SIPs include both measures and preconstruction review
under parts C and D (PSD or NSR). Unless ``measures'' referred to
something other than preconstruction review under parts C and D, the
reference to preconstruction review programs in section 110(a)(2)(C)
would be rendered mere surplusage. Thus, in section 110(a)(2) (A) and
(C), it is apparent that Congress distinguished ``measures'' from
preconstruction review. On the other hand, in other provisions of the
Act, such as section 161, Congress appeared to include PSD within the
scope of the term ``measures.''
The USEPA believes that the fact that Congress used the undefined
term ``measure'' differently in different sections of the Act is
germane to this issue. This indicates that the term is susceptible to
more than one interpretation and that the USEPA has the discretion to
interpret it in a reasonable manner in the context of section 175A.
Inasmuch as Congress itself has used the term in a manner that excluded
PSD and NSR from its scope, the USEPA believes it is reasonable to
interpret ``measure,'' as used in section 175A(d), not to include NSR.
That this is a reasonable interpretation is further supported by the
fact that PSD, a program that is the corollary of part D NSR for
attainment areas, goes into effect in lieu of part D NSR.2 This
distinguishes NSR from other required programs under the Act, such as
inspection and maintenance and Reasonably Available Control Technology
programs, which have no corollary for attainment areas. Moreover, the
USEPA believes that those other required programs are clearly within
the scope of the term ``measure.''
\2\The U.S. EPA is not suggesting that NSR and PSD are
equivalent, but merely that they are the same type of program. The
PSD program is a requirement in attainment areas and designed to
allow new source permitting, yet contains adequate provisions to
protect the NAAQS. If any information including preconstruction
monitoring, indicates that an area is not continuing to meet the
NAAQS after redesignation to attainment, 40 CFR part 51 appendix S
(Interpretive Offset Rule) or a 40 CFR 51.165(b) program would
apply. The USEPA believes that in any area that is designated or
redesignated as attainment under section 107, but experiences
violations of the NAAQS, these provisions should be interpreted as
requiring major new or modified sources to obtain VOC emission
offsets of at least a 1:1 ratio, and as presuming that 1:1 NOX
offsets are necessary. See October 14, 1994 memorandum from Mary
Nichols entitled Part D New Source Review (part D NSR) Requirements
for Areas Requesting Redesignation to Attainment.
---------------------------------------------------------------------------
The USEPA's logic in treating part D NSR in this manner does not
mean that other applicable part D requirements, including those that
have been previously met and previously relied upon in demonstrating
attainment, could be eliminated without an analysis demonstrating that
maintenance would be protected. As noted above, Ohio has demonstrated
that maintenance would be protected with PSD requirements in effect,
rather than those of part D NSR. Thus, the USEPA is not permitting part
D NSR to be removed without a demonstration that maintenance of the
standard will be achieved. Moreover, the USEPA has not amended its
policy with respect to the conversion of other SIP elements to
contingency provisions, which provides that they may be converted to
contingency provisions only upon a showing that maintenance will be
achieved without them being in effect. Finally, as noted above, the
USEPA believes that the NSR requirement differs from other
requirements, and does not believe that the rationale for the NSR
exception extends to other required programs.
The position taken in this action is consistent with the USEPA's
current national policy. That policy permits redesignation to proceed
without otherwise required NSR programs having been fully approved and
converted to contingency provisions provided that the area
demonstrates, as has been done in this case, that maintenance will be
achieved with the application of PSD rather than part D NSR.
(11) Comment: Permitting Toledo, Ohio to defer adoption and
implementation of I/M according to the revised USEPA I/M Program
Requirements Rule published on January 5, 1995, at 60 FR 1735
frustrates meaningful control of vehicle emissions.
(11) Response: While the revised I/M rule (60 FR 1735) allows the
I/M program to be placed in the contingency plan, there are still
ongoing emission reductions in the area due to the FMVECP. The
maintenance demonstration shows that the mobile source emissions are
expected to decrease from 102,560 pounds of volatile organic compounds
per day in 1996 to 57,412 pounds per day in 2005. The mobile source
emissions of oxides of nitrogen are expected to decrease from 65,128
pounds per day in 1996 to 49,374 pounds per day in 2005. These
[[Page 39120]]
are significant reductions and are expected to ensure that the area
maintains the ozone standard. Thus, deferral of the I/M program does
not frustrate meaningful control of vehicle emissions.
(12) Comment: One commentor stated that Toledo illegally obtained a
waiver from NOX conformity requirements under a section 182(f)
submittal, and because of it NOX conformity requirements should be
incorporated into Toledo's maintenance plan. The commentor notes that a
NOX waiver for conformity purposes can only be issued under
section 182(b)(1)(A). Also, not requiring Toledo, Ohio to submit
general and transportation conformity SIP revisions with the
redesignation request removes any incentive for Toledo, Ohio to adopt
procedures for preventing emissions from transportation and federal
construction projects contributing to ozone pollution levels. Another
commentor stated that land use and transportation controls under the
Clean Air Act will not be taken, resulting in increased pollution, if
these requirements are changed.
(12) Response: Ohio is currently developing transportation and
conformity SIP revisions. The USEPA expects to receive these submittals
this summer. Maintenance areas are subject to the transportation and
general conformity rules and therefore, must submit the SIP revisions
required by these rules. The approval of these submissions was not
required for the approval of the redesignation request because the
redesignation request was submitted before the transportation and
general conformity SIPs were due and were, therefore, not applicable
requirements for purposes of evaluating this redesignation. Upon
redesignation, the transportation conformity rule requires that a
regional emission analyses of proposed transportation plans and
programs for the Toledo area demonstrate that emissions from the future
transportation system are below the motor vehicle emission budget
established in the maintenance plan and lower than 1990 levels. The
general conformity rule will also apply to the Toledo area after
redesignation.
With respect to conformity, USEPA's conformity rules34
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 only of the
requirement to meet the ``build/no build'' and ``less-than-1990-
baseline'' tests. 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 reiterated its
view 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. USEPA is in the process of
amending the conformity rule to remedy the problem.
\3\``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).
\4\``Determining Conformity of General Federal Actions to State
or Federal Implementation Plans; Final Rule,'' November 30, 1993 (58
FR 63214).
---------------------------------------------------------------------------
An issue concerning the appropriate Act authority for granting
transportation-related NOX waivers has been raised by several
commentors. NOX exemptions are provided for in two separate parts
of the Act, section 182(b)(1) and section 182(f). These commentors
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
[[Page 39121]]
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. 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.
III. Final Rulemaking Action
The USEPA approves the redesignation of the Toledo, Ohio ozone area
to attainment and the section 175A maintenance plan as a revision to
the Ohio SIP. The State of Ohio has satisfied all of the necessary
requirements of the Act.
USEPA finds that there is good cause for this redesignation to
become effective immediately upon publication because a delayed
effective date is unnecessary due to the nature of a redesignation to
attainment, which exempts the area from certain Clean Air Act
requirements that would otherwise apply to it. The immediate effective
date for this redesignation is authorized under both 5 U.S.C 553(d)(1),
which provides that rulemaking actions may become effective less than
30 days after publication if the rule ``grants or recognizes an
exemption or relieves a restriction'' and section 553(d)(3), which
allows an effective date less than 30 days after publication ``as
otherwise provided by the agency for good cause found and published
with the rule.''
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
This action 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 has exempted
this regulatory action from Executive Order 12866 review.
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 economic 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.
The SIP approvals under section 100 and subchapter I, part D, of
the Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on 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 (1976).
Redesignation of an area to attainment under section 107(d)(3)(E)
of the Clean Air Act does not impose any new requirements on small
entities. Redesignation is an action that affects the status of a
geographical area and does not impose any regulatory requirements on
sources. The Administrator certifies that the approval of the
redesignation request will not affect a substantial number of small
entities.
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 2, 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)).
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.
Through submission of the state implementation plan or plan
revisions approved in this action, the State and any affected local or
tribal governments have elected to adopt the program provided for under
section 175A of the Clean Air Act. The rules and commitments being
proposed for approval in this action may bind State, local and tribal
governments to perform certain actions and also may ultimately lead to
the private sector being required to perform certain duties. To the
extent that the rules and commitments being proposed for approval by
this action will impose or lead to the imposition of any mandate upon
the State, local or tribal governments either as the owner or operator
of a source or as a regulator, or would impose or lead to the
imposition of any mandate upon the private sector, EPA's action will
impose no new requirements; such sources are already subject to these
requirements under State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, result
from this action. The USEPA has also determined that this action does
not include a mandate that may result in estimated costs or $100
million or more to State, local, or tribal governments in the aggregate
or to the private sector.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Motor vehicle
pollution, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
40 CFR Part 81
Air pollution control, Environmental protection, National parks,
and Wilderness areas.
[[Page 39122]]
Dated: July 5, 1995.
David A. Ullrich,
Acting Regional Administrator.
Title 40 of the Code of Federal Regulations, chapter I, parts 52
and 81, are amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1870 is amended by adding a new paragraph (c)(105) to
read as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(105) On September 17, 1993, the Ohio Environmental Protection
Agency requested the redesignation of Lucas and Wood Counties to
attainment of the National Ambient Air Quality Standard for ozone. To
meet the redesignation criteria set forth by section 107(d)(3)(E) (iii)
and (iv), Ohio credited emissions reductions from the enclosure of the
``oily ditch'' at the British Petroleum Refinery in Oregon, Ohio. The
USEPA is approving the Director's Finding and Order which requires the
enclosure of the ``oily ditch'' into the SIP for Lucas and Wood
Counties.
(i) Incorporation by reference.
(A) letter dated June 2, 1994, from Donald R. Schregardus,
Director, Ohio Environmental Protection Agency, to Valdas Adamkus,
Regional Administrator, USEPA, Region 5, and one enclosure which is the
revised Director's Final Findings and Orders in the matter of BP Oil
company, Toledo Refinery, 4001 Cedar Point Road, Oregon, Ohio, Fugitive
Emissions from the Refinery Waste Water System ``Oily Ditch'',
effective June 2, 1994.
3. Section 52.1885 is amended by adding paragraph (b)(5) to read as
follows:
Sec. 52.1885 Control Strategy: Ozone.
* * * * *
(b) * * *
(5) Lucas and Wood Counties.
* * * * *
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 81.336 is amended by revising the entry in the ozone
table for Toledo to read as follows:
Sec. 81.336 Ohio.
* * * * *
Ohio-Ozone
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ------------------------------------------------------------------------------------------
Date\1\ Type Date\1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Toledo area:
Lucas County..... August 1, 1995....... Attainment...........
Wood County...... August 1, 1995....... Attainment...........
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
* * * * *
\1\This date is November 15, 1990, unless otherwise noted.
[FR Doc. 95-18510 Filed 7-31-95; 8:45 am]
BILLING CODE 6560-50-P
