[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Rules and Regulations]
[Pages 33742-33745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15959]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[OH87-1-7075a; FRL-5227-1]


Determination of Attainment of the Ozone Standard by the 
Cleveland, Toledo, Dayton and the Cincinnati-Hamilton Interstate Ozone 
Nonattainment Areas and Determination Regarding Applicability of 
Certain Reasonable Further Progress and Attainment Demonstration 
Requirements; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA is determining, through direct final procedure, that 
the Cleveland ozone nonattainment area (which includes the Counties of 
Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit); 
Toledo (which includes the Counties of Lucas and Wood); Dayton (which 
includes the Counties of Clark, Greene, Miami, and Montgomery); and the 
Ohio portion of the Cincinnati-Hamilton Interstate (which includes the 
Counties of Butler, Clermont, Hamilton and Warren) ozone nonattainment 
areas have attained the National Ambient Air Quality Standard (NAAQS) 
for ozone. This determination is based upon three years of complete, 
quality-assured, ambient air monitoring data for the 1992 to 1994 ozone 
seasons that demonstrate that the ozone NAAQS has been attained in each 
of these areas. On the basis of this determination, USEPA is also 
determining that certain reasonable-further-progress (RFP) and 
attainment demonstration requirements, along with certain other related 
requirements, of Part D of Title 1 of the Clean Air Act are not 
applicable to the Cleveland, Toledo, Dayton and Cincinnati areas for so 
long as these areas continue to attain the ozone NAAQS. In the proposed 
rules section of this Federal Register, USEPA is proposing these 
determinations and soliciting public comment on them. If adverse 
comments are received on this direct final rule, USEPA will withdraw 
this final rule and address these comments in a final rule on the 
related proposed rule which is being published in the proposed rules 
section of this Federal Register.

DATES: This action will be effective on August 14, 1995 unless notice 
is received by July 31, 1995 that any person wishes to submit adverse 
or critical comments. If the effective date is delayed, timely notice 
will be published in the Federal Register.

ADDRESSES: A copy of the air quality data and USEPA's analysis are 
available for inspection at the following location (it is recommended 
that you contact Richard Schleyer at (312) 353-5089 before visiting the 
Region 5 office): United States Environmental Protection Agency, Region 
5, Air Enforcement Branch, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois, 60604.
    Written comments can be mailed to: William MacDowell, Chief, 
Regulation Development Section, Air Enforcement Branch (AE-17J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Richard Schleyer, Regulation 
Development Section, Air Enforcement Branch (AE-17J), Region 5, United 
States Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois, 60604, (312) 353-5089.
SUPPLEMENTARY INFORMATION:

I. Background

    Subpart 2 of Part D of Title I of the Clean Air Act (Act) contains 
various air quality planning and state implementation plan (SIP) 
submission requirements for ozone nonattainment areas. The USEPA 
believes it is reasonable to interpret provisions regarding RFP and 
attainment demonstrations, along with certain other related provisions, 
so as not to require SIP submissions if an ozone nonattainment area 
subject to those requirements is monitoring attainment of the ozone 
standard (i.e., attainment of the NAAQS demonstrated with three 
consecutive years of complete, quality-assured, air quality monitoring 
data). As described below, USEPA has previously interpreted the general 
provisions of subpart 1 of part D of Title I (Sections 171 and 172) so 
as not to require the submission of SIP revisions concerning RFP, 
attainment demonstrations, or contingency measures. As explained in a 
memorandum from John S. Seitz, Director, Office of Air Quality Planning 
and Standards, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment 

[[Page 33743]]
Areas Meeting the Ozone National Ambient Air Quality Standard,'' dated 
May 10, 1995, USEPA believes it is appropriate to interpret the more 
specific RFP, attainment demonstration and related provisions of 
subpart 2 in the same manner.
    First, with respect to RFP, Section 171(1) of the Act states that, 
for purposes of part D of Title I, RFP ``means such annual incremental 
reductions in emissions of the relevant air pollutant as are required 
by this part or may reasonably be required by the Administrator for the 
purpose of ensuring attainment of the applicable NAAQS by the 
applicable date.'' Thus, whether dealing with the general RFP 
requirement of Section 172(c)(2), or the more specific RFP requirements 
of subpart 2 for classified ozone nonattainment areas (such as the 15 
percent plan requirement of section 182(b)(1)), the stated purpose of 
RFP is to ensure attainment by the applicable attainment date.1 If 
an area has in fact attained the standard, the stated purpose of the 
RFP requirement will have already been fulfilled and USEPA does not 
believe that the area need submit revisions providing for the further 
emission reductions described in the RFP provisions of Section 
182(b)(1).

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

    \2\ See also ``Procedures for Processing Requests to Redesignate 
Areas to Attainment,'' from John Calcagni, Director, Air Quality 
Management Division, to Regional Air Division Directors, September 
4, 1992, at page 6 (stating that the ``requirements for reasonable 
further progress * * * will not apply for redesignations because 
they only have meaning for areas not attaining the standard'') 
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
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    Second, with respect to the attainment demonstration requirements 
of Section 182(b)(1), an analogous rationale leads to the same result. 
Section 182(b)(1) requires that the plan provide for ``such specific 
annual reductions in emissions * * * as necessary to attain the 
national primary ambient air quality standard by the attainment date 
applicable under this Act.'' As with the RFP requirements, if an area 
has in fact monitored attainment of the standard, USEPA believes there 
is no need for an area to make a further submission containing 
additional measures to achieve attainment. This is also consistent with 
the interpretation of certain Section 172(c) requirements provided by 
USEPA in the General Preamble to Title I. As USEPA stated in the 
Preamble, no other measures to provide for attainment would be needed 
by areas seeking redesignation to attainment since ``attainment will 
have been reached.'' (57 FR at 13564; see also September 1992 Calcagni 
memorandum at page 6) Upon attainment of the NAAQS, the focus of state 
planning efforts shifts to the maintenance of the NAAQS and the 
development of a maintenance plan under Section 175A.
    Similar reasoning applies to other related provisions of subpart 2. 
The first of these are the contingency measure requirements of Section 
172(c)(9) of the Act. The USEPA has previously interpreted the 
contingency measure requirement of Section 172(c)(9) as no longer being 
applicable once an area has attained the standard since those 
``contingency measures are directed at ensuring RFP and attainment by 
the applicable date.'' (57 FR at 13564; see also September 1992 
Calcagni memorandum at page 6)
    The USEPA emphasizes that the lack of a requirement to submit the 
SIP revisions discussed above exists only for as long as an area 
designated nonattainment continues to attain the standard. If USEPA 
subsequently determines that such an area has violated the NAAQS, the 
basis for the determination that the area need not make the pertinent 
SIP revisions would no longer exist. The USEPA would notify the State 
of that determination and would also provide notice to the public in 
the Federal Register. Such a determination would mean that the area 
would have to address the pertinent SIP requirements within a 
reasonable amount of time, which USEPA would establish taking into 
account the individual circumstances surrounding the particular SIP 
submissions at issue. Thus, a determination that an area need not 
submit one of the SIP submittals amounts to no more than a suspension 
of the requirement for so long as the area continues to attain the 
standard.
    The State must continue to operate an appropriate air quality 
monitoring network, in accordance with 40 CFR Part 58, to verify the 
attainment status of the area. The air quality data relied upon to 
determine that the area is attaining the ozone standard must be 
consistent with 40 CFR Part 58 requirements and other relevant USEPA 
guidance and recorded in USEPA's--Aerometric Information Retrieval 
System (AIRS).
    These determinations that are being made with this Federal Register 
notice are not equivalent to the redesignation of the area to 
attainment. Attainment of the ozone NAAQS is only one of the criteria 
set forth in section 107(d)(3)(E) that must be satisfied for an area to 
be redesignated to attainment. To be redesignated the state must submit 
and receive full approval of a redesignation request for the area that 
satisfies all of the criteria of that section, including the 
requirement of a demonstration that the improvement in the area's air 
quality is due to permanent and enforceable reductions and the 
requirements that the area have a fully approved SIP meeting all of the 
applicable requirements under section 110 and Part D and a fully 
approved maintenance plan. Please note that redesignation requests have 
been submitted for the Cleveland, Toledo, Dayton and Cincinnati areas. 
These redesignation requests are being evaluated in separate rulemaking 
actions.
    Furthermore, the determinations made in this notice do not shield 
an area from future USEPA action to require emissions reductions from 
sources in the area where there is evidence, such as photochemical grid 
modeling, showing that emissions from sources in the area contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other States with respect to the NAAQS (see section 110(a)(2)(D)). 
The USEPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of 
the Act to require such emission reductions if necessary and 
appropriate to deal with transport situations.

Analysis of Air Quality Data

    The USEPA has reviewed the ambient air monitoring data for ozone 
(consistent with the requirements contained in 40 CFR Part 58 and 
recorded in AIRS) for 

[[Page 33744]]
the Cleveland, Toledo, Dayton, and Cincinnati ozone nonattainment areas 
in the State of Ohio from the 1992 through 1994 ozone seasons.3 
The following ozone exceedances were recorded for the period from 1992 
to 1994 (the average number of expected exceedances for this three year 
period are also presented):

    \3\  The Cincinnati-Hamilton Interstate Area includes the 
following counties in Ohio: Butler, Clermont, Hamilton and Warren; 
and the following counties in Kentucky: Boone, Campbell and Kenton. 
If a violation were monitored in the Kentucky portion of the 
interstate area (or the Ohio portion of the Interstate area) these 
nonattainment area provisions would then be applicable.
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    Cleveland: Medina County, 6364 Deerview Lane (1994) - 0.127 ppm; 
average expected exceedances: 0.5 (based only on two years of 
monitoring data). Cuyahoga County, 891 E. 152 St. (1993) - 0.126 ppm, 
(1994) 0.127 ppm and 0.125 ppm; average expected exceedances: 1.0.
    Cincinnati-Hamilton Interstate Area: Ohio Portion: Butler County, 
Schuler and Bend (1993) - 0.131 ppm; average expected exceedances: 0.3. 
Hook Field Municipal (1993) - 0.138 ppm; average expected exceedances: 
0.3. Clermont County, 389 Main St. (1994) - 0.128 ppm; average expected 
exceedances: 0.3. Warren County, Southeast St. (1994) - 0.139 ppm and 
0.128 ppm; average expected exceedances: 0.7.
    Kentucky Portion: Campbell County, 9th and Maple (1993) - 0.126 
ppm; average expected exceedances: 0.3.
    Toledo: Lucas County, 306 N. Yondota (1993) 0.126 ppm, (1994) 0.142 
ppm; average expected exceedances: 0.7. Friendship Park (1993) 0.126 
ppm; average expected exceedances: 0.3.
    Dayton: Clark County, 5171 Urbana Road (1994) 0.125 ppm; average 
expected exceedances: 0.5. Montgomery County, 2100 Timberlane (1993) 
0.125 ppm; average expected exceedances: 0.3.
    On the basis of this review, USEPA has concluded that these areas 
have attained the ozone standard during the 1992-94 period and 
continues to attain the standard at this time.

15% Plan/Attainment Demonstration Submittal Status

    On March 14, 1994, the State of Ohio submitted revisions to the 
ozone portion of the Ohio SIP which included fifteen percent rate of 
progress plans for the Toledo, Dayton, Cleveland and Cincinnati ozone 
nonattainment areas. These fifteen percent plans were deemed complete 
by USEPA on August 8, 1994. Also included in this SIP revision were 
attainment demonstrations for the Toledo, Dayton and Cleveland ozone 
nonattainment areas. These attainment demonstrations were deemed 
complete on September 14, 1994. Upon the effective date of this 
determination, the State may withdraw these SIP revisions.
    If Ohio withdraws the submitted 15 percent plan or attainment 
demonstration for Cleveland and Cincinnati areas through the submission 
of a letter from the Governor or his or her designee, the motor vehicle 
emissions budget test would no longer apply for conformity purposes in 
that area 4. The build/no-build and less than-1990 test would 
apply until a maintenance plan is approved. This is because the area 
would not be subject to the 15 percent and attainment demonstration 
requirements of section 182(b)(1) for so long as the area continues to 
attain the standard. If the submitted SIP is not withdrawn, the budget 
in that submission will continue to apply for conformity purposes.

    \4\  For Toledo and Dayton, the Ohio Department of 
Transportation and metropolitan planning organizations demonstrated 
conformity to the 15 percent plan and attainment demonstration motor 
vehicle emissions budgets for illustrative purposes in 1994. The 
USEPA provided written guidance to the Ohio Department of 
Transportation and the Ohio Environmental Protection Agency that the 
submitted maintenance plans for Toledo and Dayton were to be used in 
lieu of the 15 percent plans and attainment demonstrations in 
letters dated July 1, 1994, and May 9, 1995. Ohio may withdraw the 
15 percent plan and attainment demonstrations submitted for the 
Dayton and Toledo areas. This will not affect USEPA's interpretation 
of the applicability of these SIPs for conformity purposes.
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    However, areas that are already demonstrating conformity to a 
submitted maintenance plan pursuant to section 51.448(i) (Toledo and 
Dayton) may continue to do so, or may elect to withdraw the 
applicability of the submitted maintenance plan budget for conformity 
purposes until the maintenance plan is approved. If the applicability 
of the submitted maintenance plan budget is withdrawn for conformity 
purposes, the build/no-build and less-than 1990 tests will apply until 
the maintenance plan is approved.

Conclusion

    The USEPA has determined that the Cleveland (which includes the 
Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage 
and Summit); Toledo (which includes the Counties of Lucas and Wood); 
Dayton (which includes the counties of Clark, Greene, Miami and 
Montgomery); and the Ohio portion of the Cincinnati-Hamilton interstate 
(which includes the Counties of Butler, Clermont, Hamilton and Warren) 
ozone nonattainment areas have attained the ozone standard and continue 
to attain the standard at this time.
    As a consequence of this determination that the Cleveland, Toledo, 
Dayton and Cincinnati ozone nonattainment areas have attained the ozone 
standard, the requirements of section 182(b)(1) concerning the 
submission of the 15 percent plan and ozone attainment demonstration 
and the requirements of section 172(c)(9) concerning contingency 
measures will not be applicable to the area so long as the area does 
not violate the ozone standard.
    It should be emphasized that these determinations are contingent 
upon the continued monitoring and continued attainment and maintenance 
of the ozone NAAQS in the affected area. If a violation of the ozone 
NAAQS is monitored in the Cleveland, Toledo, Dayton and Cincinnati 
ozone nonattainment areas (consistent with the requirements contained 
in 40 CFR part 58 and recorded in AIRS), USEPA will provide notice to 
the public in the Federal Register. Such a violation would mean that 
the area(s) would thereafter have to address the requirements of 
section 182(b)(1) and 172(c)(9) since the basis for the determination 
that they do not apply would no longer exist.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the State 
implementation plan shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.
    This action will become effective on August 14, 1995. However, if 
USEPA receives adverse comments by July 31, 1995, then USEPA will 
publish a document that withdraws the action, and will address those 
comments in the final rule on the requested redesignation and SIP 
revision which has been proposed for approval in the proposed rules 
section of this Federal Register.
    This action has been classified as a Table 3 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget exempted this 
regulatory action from Executive Order 12866 review.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must 

[[Page 33745]]
prepare a regulatory flexibility analysis assessing the impact of any 
proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000. Today's determination does not create any new requirements, but 
allows suspension of the indicated requirements. Therefore, because the 
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the Act, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action. The 
Act forbids USEPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).
    Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act 
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, 
USEPA must undertake various actions in association with proposed or 
final rules that include a Federal mandate that may result in estimated 
costs of $100 million or more to the private sector, or to State, 
local, or tribal governments in the aggregate.
    The USEPA's final action does not impose any Federal 
intergovernmental mandate, as defined in section 101 of the Unfunded 
Mandates Act, upon the State. No additional costs to State, local, or 
tribal governments, or to the private sector, result from this action, 
which suspends the indicated requirements. Thus, USEPA has determined 
that this final action does not include a mandate that may result in 
estimated costs of $100 million or more to either State, local, or 
tribal governments in the aggregate, or to the private sector.
    Under Section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 14, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See Section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

    Dated: June 14, 1995.
David A. Kee,
Acting Regional Administrator.

    Part 52, chapter 1, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart KK--Ohio

    2. Section 52.1885 is amended by adding new paragraph (w) to read 
as follows:


Sec. 52.1885  Control Strategy: Ozone.

* * * * *
    (w) Determination--USEPA is determining that, as of May 31, 1995, 
the Cleveland (which includes the Counties of Ashtabula, Cuyahoga, 
Geauga, Lake, Lorain, Medina, Portage and Summit); Toledo (which 
includes the Counties of Lucas and Wood); Dayton (which includes the 
Counties of Clark, Greene, Miami and Montgomery); and the Ohio portion 
of the Cincinnati-Hamilton Interstate (which includes the Counties of 
Butler, Clermont, Hamilton and Warren) ozone nonattainment areas have 
attained the ozone standard and that the reasonable further progress 
and attainment demonstration requirements of Section 182(b)(1) and 
related requirements of Section 172(c)(9) of the Clean Air Act do not 
apply to the area for so long as the area does not monitor any 
violations of the ozone standard. If a violation of the ozone NAAQS is 
monitored in the Cleveland, Toledo, Dayton or Cincinnati-Hamilton 
Interstate (ambient air monitoring data shall be reviewed for all 
monitors located in the interstate nonattainment area which includes 
the State of Kentucky Counties of Boone, Campbell, and Kenton) ozone 
nonattainment area(s), this determination(s) shall no longer apply.

[FR Doc. 95-15959 Filed 6-28-95; 8:45 am]
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