[Federal Register Volume 59, Number 182 (Wednesday, September 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23109]


[[Page Unknown]]

[Federal Register: September 21, 1994]


-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81

[OH31-2-6361; FRL-5066-9]

 

Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency is approving maintenance 
plans and redesignation of Morgan and Washington Counties, Ohio, from 
nonattainment to attainment for sulfur dioxide (SO2), and is 
deferring action on the maintenance plans and redesignation request for 
Gallia and Coshocton Counties. This action for Morgan and Washington 
Counties is based on Ohio's request, and provides that the new source 
review requirements for nonattainment areas will no longer apply for 
SO2 in these two counties.

EFFECTIVE DATE: This final rule is effective on October 21, 1994.

ADDRESSES: Copies of the maintenance plan and redesignation request, 
public comments on the rulemaking, and other materials relating to this 
rulemaking are available for inspection at the following address: (It 
is recommended that you telephone John Summerhays at (312) 886-6067 
before visiting the Region 5 Office.) United States Environmental 
Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard (AE-17J), Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John Summerhays at (312) 886-6067.

SUPPLEMENTARY INFORMATION:

I. Summary of Proposed Rulemaking

    A subsequent submittal provided stack test data for one of the 
relevant facilities. On March 18, 1994, at 59 FR 12886, USEPA proposed 
to approve maintenance plans and redesignation of Morgan and Washington 
Counties, Ohio, from nonattainment to attainment for sulfur dioxide 
(SO2). In that document, USEPA did not propose to take action on 
the maintenance plans and redesignation request for Gallia and 
Coshocton Counties. The notice of proposed rulemaking (NPR) included a 
background synopsis of the State's submittals and the applicable 
criteria, a full review of the State's submittals, and a summary of the 
proposed action. The NPR contained five subsections corresponding to 
the five criteria for redesignation from nonattainment to attainment 
given in section 107(d)(3)(E) of the Clean Air Act. In the NPR, USEPA 
made the following proposed findings: (i) All four counties are 
attaining the 24-hour air quality standard, Morgan and Washington 
Counties are attaining the 3-hour standard, and USEPA did not evaluate 
whether Coshocton and Gallia Counties are attaining the 3-hour 
standard; (ii) USEPA considered approval of the Morgan and Washington 
County plans under section 110(a)(2) to satisfy section 
107(d)(3)(E)(ii) for these counties, but ``based on questions as to 
whether (Federal Implementation Plans (FIPs)) satisfy the requirements 
of section 107(d)(3)(E)(ii),'' USEPA deferred action on Ohio's request 
for Coshocton and Gallia Counties; (iii) USEPA judged all four counties 
to have permanent and enforceable emission reductions; (iv) USEPA 
judged the maintenance plans for Morgan and Washington Counties 
adequate, and did not evaluate the maintenance plans for Coshocton and 
Gallia Counties; and (v) USEPA judged that Ohio had satisfied the 
requirements of section 110 and part D of title I for Morgan and 
Washington Counties, and did not evaluate whether these requirements 
were satisfied for Coshocton and Gallia Counties. On the basis of this 
review, USEPA proposed to approve the maintenance plans and 
redesignation request for Morgan and Washington Counties and did not 
propose action for Coshocton and Gallia Counties.

II. Public Comments/USEPA Responses

    One letter commenting on the proposed rulemaking was received, 
submitted by the Ohio Environmental Protection Agency (OEPA). This 
letter included as an attachment a letter commenting on the same 
issues, sent from Ohio Governor Voinovich to Administrator Carol 
Browner prior to publication of the notice of proposed rulemaking. The 
comments in these letters and USEPA's responses follow:
    Comment: Ohio supports the proposed action with respect to Morgan 
and Washington Counties.
    Response: USEPA received no adverse comments on this part of its 
proposal, and, for the reasons provided in the proposal, concludes that 
the maintenance plans and redesignation request for these counties 
should be approved.
    Comment: The State objects to USEPA's decision to defer action on 
the redesignation of Coshocton and Gallia Counties, and in particular 
presents arguments that areas subject to FIP limits (promulgated under 
section 110(c) of the Clean Air Act) rather than SIP limits (approved 
under section 110(k) or its equivalent) may be redesignated. Ohio 
argues that FIP limits are equivalent to SIP limits. The State cites 
language previously in section 110(d) (essentially moved to section 
302(q) by the Clean Air Act Amendments of 1990) that the 
``implementation plan'' includes both approved State submittals and 
federally promulgated measures. The State comments that if areas with 
FIPs could not be redesignated, then ``U.S. EPA could never promulgate 
a FIP because such a plan would not provide for attainment 
redesignations and thus would be incomplete,'' and ``nonattainment 
areas would be frozen, even though air quality may be demonstrably 
improved.''
    Also, the Governor commented that designations are based on air 
quality and that FIPs provide for permanent air quality improvement. 
The Governor concluded that Coshocton and Gallia Counties have been 
exhibiting attainment for 14 years, and that obstruction to the 
attainment status of these counties is based on a narrow interpretation 
of the Clean Air based on ``periodic changes in review requirements,'' 
and is inappropriate and unnecessary.
    Response: Section 107(d)(3)(E) of the Act, as amended in 1990, 
precludes USEPA from redesignating areas subject to FIPs, such as 
Coshocton and Gallia Counties to attainment. That section of the Act 
prohibits USEPA from redesignating a nonattainment area to attainment 
unless the area satisfies certain explicit statutory criteria. It 
provides that:
    The Administrator may not promulgate a redesignation of a 
nonattainment area (or portion thereof) to attainment unless--
    (i) The Administrator determines that the area has attained the 
national ambient air quality standard;
    (ii) The Administrator has fully approved the applicable 
implementation plan for the area under section 110(k);
    (iii) The Administrator determines 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;
    (iv) The Administrator has fully approved a maintenance plan for 
the area as meeting the requirements of section 175A; and
    (v) The State containing such area has met all requirements 
applicable to the area under section 110 and part D.
    As is evident, several criteria must be satisfied for an area to be 
redesignated to attainment apart from attaining the national ambient 
air quality standard and the determination that improvements in air 
quality are due to permanent and enforceable reductions in emissions. 
It is those criteria, especially that in clauses (ii), (iv) and (v), 
that are pertinent with respect to the issue of whether a nonattainment 
area may be redesignated to attainment if there is FIP, rather than a 
SIP, in place.
    First, the language of clause (ii) requires that for USEPA to 
redesignate an area, USEPA must have ``fully approved the applicable 
implementation plan for the area under section 110(k).'' This clause 
clearly requires that a SIP be in place. Only SIPs are approved by 
USEPA; FIPs are not approved, but promulgated. More importantly, the 
clause refers to approval under section 110(k), the provision of the 
Act setting forth the procedure for USEPA to act on SIP revisions 
submitted to the Agency by states. Thus, a FIP does not qualify as a 
plan approved under section 110(k). In contrast, the language of 
section 302(q) defines the term ``applicable attainment plan'' as 
meaning a FIP or a SIP. Thus, it defines ``applicable implementation 
plan'' as ``the portion (or portions) of the implementation plan, or 
most recent revision thereof, which has been approved under section 110 
(a SIP, which is referred to in section 107(d)), or promulgated under 
section 110(c) (a FIP, which is not referred to in section 
107(d)(3)(E)(ii)).''
    Second, clause (iv) requires that USEPA have fully approved a 
maintenance plan as meeting the requirements of section 175A. Section 
175A(a) requires that each State that submits a redesignation request 
to submit ``a revision of the applicable State implementation plan to 
provide for maintenance of the national primary ambient air quality 
standard,'' and thus clearly presupposes that a SIP, not a FIP, will be 
in place prior to redesignation.
    Third, clause (v) requires that, in order to have an area 
redesignated to attainment, the State containing the area must meet 
``all requirements applicable to the area under section 110 and part 
D.'' As these requirements concern various SIP submissions, this clause 
also implicitly means that USEPA cannot approve a redesignation request 
for an area that is subject to a FIP.
    Thus, the language of section 107(d)(3) plainly prohibits USEPA 
from redesignating an area to attainment if that area is subject to a 
FIP. This outcome is fully consistent with a fundamental policy 
underlying the law--that the states have primary responsibility for 
attaining and maintaining air quality standards and that FIPs are 
intended to be only short-term measures to fill gaps in control 
strategies. Further evidence of this policy is provided by the fact 
that sanctions imposed under section 179 due to a state's failure to 
comply with its SIP obligations are not suspended or lifted due to 
USEPA's promulgation of a FIP pursuant to its obligations under section 
110(c).
    USEPA also notes that areas subject to FIPs are not frozen in place 
as nonattainment areas. Assuming that the area continued to satisfy the 
national ambient air quality standards, the area would be eligible for 
redesignation to attainment once the state submitted approvable SIP 
revisions as required by the Act, and submitted an approvable state 
maintenance plan.
    Comment: In another argument for redesignating areas with FIP-based 
plans, the State interprets section 110(n)(1), the ``Savings Clause,'' 
as providing that ``[t]he authority of USEPA to redesignate 
nonattainment areas under a section 110(c) plan would remain unchanged 
as a result of the 1990 Amendments.'' The State believes that former 
section 110(d) provided this authority prior to the 1990 amendments.
    Response: Section 110(n)(1) authorizes the enforcement of plan 
elements approved prior to 1990. It does not authorize USEPA to ignore 
post-1990 Clean Air Act criteria in judging the acceptability of 
States' requests. The requirement now in section 107(d)(3)(E)(ii) 
requiring a plan approved under section 110(k) was not included in the 
pre-1990 Clean Air Act or in USEPA's guidance. However, this 
requirement is applicable now under the Act.
    Comment: The Governor commented that ``[a]reas with FIPs have been 
redesignated in Ohio in the past,'' indicating that USEPA agreed that 
FIPs provide for permanent air quality improvement, and indicating 
further that Gallia and Coshocton Counties should be redesignated.
    Response: Regardless of the situation prior to the enactment of the 
Clean Air Act Amendments of 1990, the requirements of section 
107(d)(3)(E) are applicable under the Act now, and must be satisfied as 
a prerequisite for redesignating an area from nonattainment to 
attainment.
    Comment: The State comments that USEPA should not use 1.95 as the 
conversion factor from coal sulfur content to sulfur dioxide emissions, 
but should instead use the factor of 1.9 given in Supplement F of AP-42 
(dated July 1993).
    Response: USEPA agrees with the State's comment. Since the fuel 
quality information indicated the air quality standards being met using 
a 1.95 conversion factor, the fuel quality information also indicates 
the air quality standards being met using a 1.9 conversion factor.

III. Rulemaking Action

    USEPA has reviewed the State's submittals and other related 
material and, for the reasons stated in the proposal, has concluded 
that the maintenance plan and redesignation request for Morgan and 
Washington Counties satisfy the applicable criteria for approval. 
Consequently, USEPA approves the maintenance plan for SO2 for 
Morgan and Washington Counties, and redesignates these two counties to 
attainment. USEPA continues to defer action with respect to Ohio's 
maintenance plans and redesignation requests for Coshocton and Gallia 
Counties.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. USEPA shall consider each request for revision to the SIP 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 under the 
processing 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. On January 6, 1989, the Office of Management and Budget 
(OMB) waived Table 2 and Table 3 SIP revisions (54 FR 2222) from the 
requirements of section 3 of Executive Order 22291 for a period of 2 
years. The USEPA has submitted a request for a permanent waiver for 
Table 2 and 3 SIP revisions. The OMB has agreed to continue the 
temporary waiver until such time as it rules on USEPA's request. This 
request continues in effect under Executive Order 12866 which 
superseded Executive Order 12291 on September 30, 1993.
    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 November 21, 1994. 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

40 CFR Part 52

    Air pollution control, Intergovernmental relations, Sulfur oxides.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

    Dated: August 25, 1994.
Valdas V. Adamkus,
Regional Administrator.

    Part 52, chapter I, 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 52.1881 is amended by adding paragraph (a)(12) to read 
as follows:


Sec. 52.1881  Control strategy: Sulfur oxides (sulfur dioxide).

    (a) * * *
    (12) In a letter dated June 25, 1992, Ohio submitted a maintenance 
plan for sulfur dioxide in Morgan and Washington Counties.
* * * * *

PART 81--[AMENDED]

    1. The authority citation of part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

    2. In Sec. 81.336 the ``Ohio-SO2'' table is amended by 
revising the entries for ``Morgan County'' and ``Washington County'' to 
read as follows:


Sec. 81.336  Ohio.

* * * * *

                                                   Ohio--SO2                                                    
----------------------------------------------------------------------------------------------------------------
                                                        Does not meet  Does not meet                 Better than
                    Designated area                        primary       secondary      Cannot be      national 
                                                          standards      standards      classified    standards 
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                                                  * * * * * * *                                                 
Morgan County.........................................  .............  .............  .............            X
                                                                                                                
                                                                                                                
                                                  * * * * * * *                                                 
Washington County.....................................  .............  .............  .............            X
                                                                                                                
                                                                                                                
                                                  * * * * * * *                                                 
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 94-23109 Filed 9-20-94; 8:45 am]
BILLING CODE 6560-50-P