[Federal Register Volume 60, Number 120 (Thursday, June 22, 1995)]
[Rules and Regulations]
[Pages 32466-32469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15234]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5225-1]


Determination of Attainment of Ozone Standard by Ashland, 
Kentucky, Northern Kentucky (Cincinnati Area), Charlotte, North 
Carolina, and Nashville, Tennessee, and Determination Regarding 
Applicability of Certain Reasonable Further Progress and Attainment 
Demonstration Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is determining, through direct final procedure, that 
the Ashland, Kentucky, Northern Kentucky, Charlotte-Gastonia, North 
Carolina, and Nashville, Tennessee ozone nonattainment areas have 
attained the National Ambient Air Quality Standard (NAAQS) for ozone. 
This determination is based upon three years of complete, quality 
assured ambient air monitoring data for the years 1992-94 that 
demonstrate that the ozone NAAQS has been attained in these areas. On 
the basis of this determination, EPA is also determining that certain 
reasonable further progress and attainment demonstration requirements, 
along with certain other related requirements, of Part D of Title 1 of 
the Clean Air Act are not applicable to the areas for so long as the 
areas continue to attain the ozone NAAQS. In the proposed rules section 
of this Federal Register, EPA is proposing these determinations and 
soliciting public comment on them. If adverse comments are received on 
this direct final rule, EPA will withdraw this final rule and address 
these comments in a final rule on the related proposed rule which is 
being published in the proposed rules section of this Federal Register.

DATES: This action will be effective August 7, 1995 unless notice is 
received by July 24, 1995 that any person wishes to submit adverse or 
critical comments. If the effective date is delayed, timely notice will 
be published in the Federal Register.

ADDRESSES: A copy of the air quality data and EPA's analysis are 
available for inspection at the following address:

Environmental Protection Agency, Region 4 Air Programs Branch, 345 
Courtland Street, NE, Atlanta, Georgia 30365
Commonwealth of Kentucky, Division of Air Quality, Department for 
Environmental Protection, Natural Resources and Environmental 
Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601
State of North Carolina, Air Quality Section, Division of Environmental 
Management, North Carolina Department of Environment, Health, and 
Natural Resources, Raleigh, North Carolina 27626
Environmental Management Division, Mecklenburg County Department of 
Environmental Protection, 700 N. Tryon Street, Charlotte, North 
Carolina 28202-2236
State of Tennessee, Division of Air Pollution Control, Tennessee 
Department of Environment and Conservation, L & C Annex, 9th Floor, 401 
Church Street, Nashville, Tennessee 37243-1531
Bureau of Environmental Health Services, Metropolitan Health 
Department, Nashville-Davidson County, 311-23rd Avenue, North, 
Nashville, Tennessee 37203

    Written comments can be mailed to: Kay Prince, Regulatory Planning 
and Development Section, Air Programs Branch, Air, Pesticides & Toxics 
Management Division, Region 4, Environmental Protection Agency, 345 
Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is 
404/347-3555 extension 4221.

FOR FURTHER INFORMATION CONTACT: Kay Prince, Regulatory Planning and 
Development Section, Air Programs Branch, Air, Pesticides & Toxics 
Management Division, Region 4, Environmental Protection Agency, 345 
Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is 
404/347-3555 extension 4221.

SUPPLEMENTARY INFORMATION:

I. Background

    Subpart 2 of Part D of Title I of the Clean Air Act (CAA) contains 
various air quality planning and state implementation plan (SIP) 
submission requirements for ozone nonattainment areas. EPA believes it 
is reasonable to interpret provisions regarding reasonable further 
progress (RFP) and attainment demonstrations, along with certain other 
related provisions, so as not to require SIP submissions if an ozone 
nonattainment area subject to those requirements is monitoring 
attainment of the ozone standard (i.e., attainment of the NAAQS 
demonstrated with three consecutive years of complete, quality assured 
air quality monitoring data). As described below, EPA has previously 
interpreted the general provisions of subpart 1 of part D of Title I 
(sections 171 and 172) so as not to require the submission of SIP 
revisions concerning RFP, attainment demonstrations, or contingency 
measures. As explained in a memorandum dated May 10, 1995, from John S. 
Seitz, Director, Office of Air Quality Planning and Standards to the 
Regional Air Division Directors, entitled Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard, EPA believes it is appropriate to interpret the more specific 
RFP, attainment demonstration and related provisions of subpart 2 in 
the same manner.
    First, with respect to RFP, section 171(1) states that, for 
purposes of part D of Title I, RFP ``means such annual incremental 
reductions in emissions of the relevant air pollutant as are required 
by this part or may reasonably be required by the Administrator for the 
[[Page 32467]] purpose of ensuring attainment of the applicable 
national ambient air quality standard by the applicable date.'' Thus, 
whether dealing with the general RFP requirement of section 172(c)(2), 
or the more specific RFP requirements of subpart 2 for classified ozone 
nonattainment areas (such as the 15 percent plan requirement of section 
182(b)(1)), the stated purpose of RFP is to ensure attainment by the 
applicable attainment date.1 If an area has in fact attained the 
standard, the stated purpose of the RFP requirement will have already 
been fulfilled and EPA does not believe that the area need submit 
revisions providing for the further emission reductions described in 
the RFP provisions of section 182(b)(1).

    \1\ EPA notes that paragraph (1) of subsection 182(b) is 
entitled ``Plan Provisions For Reasonable Further Progress'' and 
that subparagraph (B) of paragraph 182(c)(2) is entitled 
``Reasonable Further Progress Demonstration,'' thereby making it 
clear that both the 15 percent plan requirement of section 182(b)(1) 
and the 3 percent per year requirement of section 182(c)(2) are 
specific varieties of RFP requirements.
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    EPA notes that it took this view with respect to the general RFP 
requirement of section 172(c)(2) in the General Preamble for the 
Interpretation of title I of the Clean Air Act Amendments of 1990 (57 
FR 13498 (April 16, 1992)), and it is now extending that interpretation 
to the specific provisions of subpart 2. In the General Preamble, EPA 
stated, in the context of a discussion of the requirements applicable 
to the evaluation of requests to redesignate nonattainment areas to 
attainment, that the ``requirements for RFP will not apply in 
evaluating a request for redesignation to attainment since, at a 
minimum, the air quality data for the area must show that the area has 
already attained. Showing that the state will make RFP towards 
attainment will, therefore, have no meaning at that point.'' (57 FR at 
13564.) 2

    \2\ See also ``Procedures for Processing Requests to Redesignate 
Areas to Attainment,'' from John Calcagni, Director, Air Quality 
Management Division, to Regional Air Division Directors, September 
4, 1992, at page 6 (stating that the ``requirements for reasonable 
further progress * * * will not apply for redesignations because 
they only have meaning for areas not attaining the standard'') 
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
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    Second, with respect to the attainment demonstration requirements 
of section 182(b)(1), an analogous rationale leads to the same result. 
Section 182(b)(1) requires that the plan provide for ``such specific 
annual reductions in emissions * * * as necessary to attain the 
national primary ambient air quality standard by the attainment date 
applicable under this Act.'' As with the RFP requirements, if an area 
has in fact monitored attainment of the standard, EPA believes there is 
no need for an area to make a further submission containing additional 
measures to achieve attainment. This is also consistent with the 
interpretation of certain section 172(c) requirements provided by EPA 
in the General Preamble to title I, as EPA stated there that no other 
measures to provide for attainment would be needed by areas seeking 
redesignation to attainment since ``attainment will have been 
reached.'' (57 FR at 13564; see also September 1992 Calcagni memorandum 
at page 6.) Upon attainment of the NAAQS, the focus of state planning 
efforts shifts to the maintenance of the NAAQS and the development of a 
maintenance plan under section 175A.
    EPA emphasizes that the lack of a requirement to submit the SIP 
revisions discussed above exists only for as long as an area designated 
nonattainment continues to attain the standard. If EPA subsequently 
determines that such an area has violated the NAAQS, the basis for the 
determination that the area need not make the pertinent SIP revisions 
would no longer exist. The EPA would notify the State of that 
determination and would also provide notice to the public in the 
Federal Register. Such a determination would mean that the area would 
have to address the pertinent SIP requirements within a reasonable 
amount of time, which EPA would establish taking into account the 
individual circumstances surrounding the particular SIP submissions at 
issue. Thus, a determination that an area need not submit one of the 
SIP submittals amounts to no more than a suspension of the requirement 
for so long as the area continues to attain the standard.
    The states must continue to operate an appropriate air quality 
monitoring network, in accordance with 40 CFR Part 58, to verify the 
attainment status of the area. The air quality data relied upon to 
determine that the area is attaining the ozone standard must be 
consistent with 40 CFR Part 58 requirements and other relevant EPA 
guidance and recorded in EPA's Aerometric Information Retrieval System 
(AIRS).
    The determinations that are being made with this Federal Register 
notice are not equivalent to the redesignation of the areas to 
attainment. Attainment of the ozone NAAQS is only one of the criteria 
set forth in section 107(d)(3)(E) that must be satisfied for an area to 
be redesignated to attainment. To be redesignated the state must submit 
and receive full approval of a redesignation request for the area that 
satisfies all of the criteria of that section, including the 
requirement of a demonstration that the improvement in the area's air 
quality is due to permanent and enforceable reductions and the 
requirements that the area have a fully approved SIP meeting all of the 
applicable requirements under section 110 and Part D and a fully 
approved maintenance plan.
    Furthermore, the determinations made in this notice do not shield 
an area from future EPA action to require emissions reductions from 
sources in the area where there is evidence, such as photochemical grid 
modeling, showing that emissions from sources in the area contribute 
significantly to nonattainment in, or interfere with maintenance by, 
other nonattainment areas. EPA has authority under sections 
110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions if 
necessary and appropriate to deal with transport situations.

II. Analysis of Air Quality Data

    The EPA has reviewed the ambient air monitoring data for ozone 
(consistent with the requirements contained in 40 CFR part 58 and 
recorded in AIRS) for the Ashland, Northern Kentucky, Charlotte-
Gastonia, and Nashville ozone nonattainment areas in the Commonwealth 
of Kentucky and the States of North Carolina and Tennessee from 1992 
through the present time. On the basis of that review EPA has concluded 
that the areas attained the ozone standard during the 1992-94 period 
and continue to attain the standard at this time. The monitors in the 
Northern Kentucky portion of the Cincinnati ozone nonattainment area 
have not recorded a violation of the ozone standard since 1988 and have 
recorded only one exceedance (Campbell County monitor) during the 1992-
94 period. Additionally, all monitors in the Cincinnati ozone 
nonattainment area have an expected exceedance rate of less than 1.1 
for the 1992-94 period. The Ashland portion of the Ashland-Huntington 
area has air quality data showing attainment of the standard for the 
period 1991-94. Both the Boyd County and Greenup County monitors have 
recorded 2 exceedances in the 1992-94 period. All monitors in the 
Ashland-Huntington area have an expected exceedance rate for the 1992-
94 period of less than 1.1. All monitors in the Charlotte-Gastonia area 
have an expected exceedance rate of less than 1.1 for the 1992-94 
period with no violations recorded at any monitor for the 1990-94 
period. Two of the monitors in Mecklenburg County have recorded two 
exceedances during the 1992-94 period, with no exceedance at 
[[Page 32468]] any monitor in the area during 1994. All monitors in the 
Nashville area have less than 1.1 expected exceedance rate. One of the 
two monitors located in Sumner County recorded 3 exceedances during the 
1992-94 period. None of the other monitors in the Nashville ozone 
nonattainment area have recorded a violation since 1988. Thus, these 
areas are no longer recording violations of the air quality standard 
for ozone. A more detailed summary of the ozone monitoring data for the 
area is provided in the EPA technical support document dated May 19, 
1995.

Final Action

    EPA determines that the Ashland, Kentucky, Northern Kentucky, 
Charlotte-Gastonia, North Carolina, and Nashville, Tennessee, ozone 
nonattainment areas have attained the ozone standard and continue to 
attain the standard at this time. As a consequence of EPA's 
determination that the Ashland, Kentucky, Northern Kentucky, Charlotte-
Gastonia, North Carolina, and Nashville, Tennessee, areas have attained 
the ozone standard, the requirements of section 182(b)(1) concerning 
the submission of the 15 percent plan and ozone attainment 
demonstration and the requirements of section 172(c)(9) concerning 
contingency measures are not applicable to the areas so long as the 
areas do not violate the ozone standard.
    The issuance of this determination will have no immediate impact on 
the way transportation conformity is demonstrated. These areas will 
continue to demonstrate conformity using the build/no-build test and 
less-than-1990 test (section 51.436-51.446 of the transportation 
conformity rule), and the 15 percent SIP if one has been submitted (and 
attainment/RFP SIP, if one with a budget has been submitted). Since 
these areas are the subject of conformity determinations pursuant to 
this action and will not be required to submit RFP or attainment 
demonstration SIPs, these areas will not generally be in the control 
strategy period for conformity purposes (i.e., have a control strategy 
SIP approved and build/no-build test no longer required) for so long as 
the area does not violate the standard. These areas will not have 
approved budgets until a maintenance plan is approved as part of the 
approval of a redesignation request, therefore the build/no-build test 
and less-than-1990 test, in addition to consistency with any applicable 
submitted budgets, will be required until maintenance plan approval. (A 
maintenance plan budget does not apply for conformity purposes until 
the maintenance plan has been approved, except as provided by section 
51.448(i) of the conformity rule (which applies to the Ashland, 
Kentucky, and Charlotte-Gastonia, North Carolina, areas which were 
required to submit a 15 percent SIP but submitted a maintenance plan 
instead).)
    The Northern Kentucky area which had previously submitted a 15 
percent SIP, and the Nashville, Tennessee, area which had previously 
submitted 15 percent and attainment SIPs, may choose to withdraw their 
submitted SIPs through the submission of a letter from the Governors or 
their designees in order to eliminate the applicability of their motor 
vehicle emission budgets for conformity purposes. This is because these 
areas will not be subject to the 15 percent and attainment 
demonstration requirements of section 182(b)(1) for so long as the area 
continues to attain the standard. If the respective submitted SIP is 
not withdrawn, the budget in that submittal will continue to apply for 
conformity purposes. If the submitted 15 percent or attainment SIP is 
withdrawn, only the build/no-build and less-than-1990 tests would apply 
until a maintenance plan is approved.
    The Ashland, Kentucky, and Charlotte-Gastonia, North Carolina, 
areas which are already demonstrating conformity to a submitted 
maintenance plan pursuant to Sec. 51.448(i) may continue to do so, or 
may elect to withdraw the applicability of the submitted maintenance 
plan budget for conformity purposes until the maintenance plan is 
approved. The applicability may be withdrawn through the submission of 
a letter from the respective Governor or his or her designee. If the 
applicability of the submitted maintenance plan budget is withdrawn for 
conformity purposes, the build/no-build test and less-than-1990 tests 
will apply until the maintenance plan is approved.
    EPA emphasizes that these determinations are contingent upon the 
continued monitoring and continued attainment and maintenance of the 
ozone NAAQS in the affected areas. If a violation of the ozone NAAQS is 
monitored in the Ashland, Kentucky, Northern Kentucky, Charlotte-
Gastonia, North Carolina, or Nashville, Tennessee, areas (consistent 
with the requirements contained in 40 CFR part 58 and recorded in 
AIRS), EPA will provide notice to the public in the Federal Register. 
Such a violation would mean that the area would thereafter have to 
address the requirements of section 182(b)(1) and section 172(c)(9) 
since the basis for the determination that they do not apply would no 
longer exist.
    As a consequence of the determinations that these areas have 
attained and that the reasonable further progress and attainment 
demonstration requirements of section 182(b)(1) do not presently apply, 
the sanctions clocks started by EPA on January 28, 1994, for the 
Ashland and Charlotte-Gastonia areas for the failure to submit a 
section 181(b)(1) 15 percent plan and attainment demonstration and on 
April 1, 1994, for the Nashville area for submittal of an incomplete 15 
percent plan are hereby stopped as the deficiency for which the clocks 
were started no longer exists.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a 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 will become effective on August 7, 1995. However, if 
the EPA receives adverse comments by July 24, 1995, then the EPA will 
publish a document that withdraws the action, and will address those 
comments in the final rule on the requested redesignation and SIP 
revision which has been proposed for approval in the proposed rules 
section of this Federal Register.
    The Office of Management and Budget exempted this regulatory action 
from Executive Order 12866 review.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA 
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, EPA 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. This determination does not create any new requirements, but 
allows suspension of the indicated requirements. Therefore, because the 
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected.
    Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act 
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, 
EPA 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. [[Page 32469]] 
    EPA's final action does not impose any federal intergovernmental 
mandate, as defined in section 101 of the Unfunded Mandates Act, upon 
the State. No additional costs to State, local, or tribal governments, 
or to the private sector, result from this action, which suspends the 
indicated requirements. Thus, EPA has determined that this final action 
does not include a mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector.
    Under Section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 21, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See Section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Air pollution control, Nitrogen oxides, Ozone, Volatile organic 
compounds, Intergovernmental relations, Reporting and record keeping 
requirements.

    Dated: June 9, 1995.
Patrick M. Tobin,
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 S--Kentucky

    2. Section 52.930 is amended by adding new paragraph (c) to read as 
follows:


Sec. 52.930  Control strategy: Ozone.

* * * * *
    (c) Determination--EPA is determining that, as of August 7, 1995, 
the Cincinnati-Hamilton and Huntington-Ashland ozone nonattainment 
areas have attained the ozone standard and that the reasonable further 
progress and attainment demonstration requirements of section 182(b)(1) 
and related requirements of section 172(c)(9) of the Clean Air Act do 
not apply to the areas for so long as the areas do not monitor any 
violations of the ozone standard. If a violation of the ozone NAAQS is 
monitored in the Cincinnati-Hamilton or Huntington-Ashland ozone 
nonattainment areas, these determinations shall no longer apply.

Subpart II--North Carolina

    2. Section 52.1782 is added to read as follows:


Sec. 52.1782  Control strategy: Ozone.

    (a) Determination--EPA is determining that, as of August 7, 1995, 
the Charlotte-Gastonina ozone nonattainment area has attained the ozone 
standard and that the reasonable further progress and attainment 
demonstration requirements of section 182(b)(1) and related 
requirements of section 172(c)(9) of the Clean Air Act do not apply to 
the area for so long as the area does not monitor any violations of the 
ozone standard. If a violation of the ozone NAAQS is monitored in the 
Charlotte-Gastonia ozone nonattainment area, these determinations shall 
no longer apply.
    (b) [Reserved]

Subpart RR--Tennessee

    2. Section 52.2235 is added to read as follows:


Sec. 52.2235  Control strategy: Ozone.

* * * * *
    (a) Determination--EPA is determining that, as of August 7, 1995, 
the Nashville ozone nonattainment area has attained the ozone standard 
and that the reasonable further progress and attainment demonstration 
requirements of section 182(b)(1) and related requirements of section 
172(c)(9) of the Clean Air Act do not apply to the area for so long as 
the area does not monitor any violations of the ozone standard. If a 
violation of the ozone NAAQS is monitored in the Nashville ozone 
nonattainment area, these determinations shall no longer apply.
    (b) [Reserved]

[FR Doc. 95-15234 Filed 6-21-95; 8:45 am]
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