[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36051-36060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17211]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH73-2-7033, OH74-2-7034, OH75-2-7035; FRL-5257-3]


Approval and Promulgation of Implementation Plans; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: The USEPA is approving, in final, requests for exemptions from 
the nitrogen oxides (NOX) requirements as provided for in Section 
182(f) of the Clean Air Act (Act) for the following ozone nonattainment 
areas in Ohio: Canton (Stark County); Cincinnati (Butler, Clermont, 
Hamilton and Warren Counties); Cleveland (Ashtabula, Cuyahoga, Geauga, 
Lake, Lorain, Medina, Portage and Summit Counties); Columbus (Delaware, 
Franklin, and Licking Counties); Youngstown (Mahoning and Trumbull 
Counties); Steubenville (Columbiana and Jefferson Counties); Preble 
County; and Clinton County. These exemption requests, submitted by the 
Ohio Environmental Protection Agency (OEPA), are based upon three years 
of ambient air monitoring data which demonstrate that the National 
Ambient Air Quality Standard (NAAQS) for ozone has been attained in 
each of these areas without additional reductions of NOX.

EFFECTIVE DATE: This action will be effective August 14, 1995.

ADDRESSES: A copy of the exemption requests are available for 
inspection at the following location (it is recommended that you 
contact Richard Schleyer at (312) 353-5089 before visiting the Region 5 
office): United States Environmental Protection Agency, Region 5, Air 
Enforcement Branch, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois, 60604.

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

SUPPLEMENTARY INFORMATION:

I. Background

Section 182(f) Requirements

    The air quality planning requirements for the reduction of NOX 
emissions are set out in Section 182(f) of the Act. Section 182(f) of 
the Act requires States with areas designated nonattainment of the 
NAAQS for ozone, and classified as marginal and above, to impose the 
same control requirements for major stationary sources of NOX as 
apply to major stationary sources of volatile organic compounds (VOC). 
The requirements include, for marginal and above areas, nonattainment 
area new source review (NSR) for major new sources and modifications 
that are major for NOX. For nonattainment areas classified as 
moderate and above, the State is also required to adopt reasonably 
available control technology (RACT) rules for major stationary sources 
of NOX.
    Section 182(f) further provides that, for areas outside an ozone 
transport region (OTR), these NOX reduction requirements shall not 
apply if the Administrator determines that additional reductions of 
NOX would not contribute to attainment of the NAAQS for ozone.

Transportation Conformity

    The transportation conformity rule, entitled ``Criteria and 
Procedures for Determining Conformity to State or Federal 
Implementation Plans of Transportation Plans, Programs, and Projects 
Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act,'' 
was published in the November 24, 1993 Federal Register (58 FR 62188). 
The rule was promulgated under Section 176(c)(4) of the Act.
    The transportation conformity rule requires regional emissions 
analysis of motor vehicle NOX emissions for ozone nonattainment 
and maintenance areas in order to determine the conformity of 
transportation plans and programs to implementation plan requirements. 
This analysis must demonstrate that the NOX emissions which would 
result from the transportation system if the proposed transportation 
plan and program were implemented are within the total allowable level 
of NOX emissions from highway and transit motor vehicles as 
identified in a submitted or approved maintenance plan, as specified in 
the transportation conformity rule.
    Until a maintenance plan is approved by USEPA, the regional 
emissions analysis of the transportation system must also satisfy the 
``build/no-build'' test. That is, the analysis must demonstrate that 
emissions from the transportation system, if the proposed 
transportation plan and program were implemented, would be less than 
the emissions from the transportation system if the proposed 
transportation plan and program were not implemented. Furthermore, the 
regional emissions analysis must show that 

[[Page 36052]]
emissions from the transportation system, if the transportation plan or 
program were implemented, would be lower than 1990 levels.

General Conformity

    The general conformity rule, entitled ``Determining Conformity of 
General Federal Actions to State or Federal Implementation Plans,'' was 
published in the Federal Register on November 30, 1993 (58 FR 63214). 
The rule was promulgated under Section 176(c)(4) of the Act.

Scope of Exemptions

    If the USEPA Administrator determines, under Section 182(f) of the 
Act, that additional reductions of NOX would not contribute to 
attainment of the ozone NAAQS, the area at issue shall automatically 
(i.e., a State would not need to submit an exemption request for each 
requirement) be exempt from the following requirements (as applicable): 
The NOX-related general and transportation conformity provisions, 
NOX RACT, and nonattainment area NSR for new sources and 
modifications that are major for NOX. Additionally, NOX 
emission reductions would not be required of an enhanced inspection and 
maintenance (I/M) program.

II. Criteria for Evaluation of Exemption Requests

    The criteria used in the evaluation of the exemption requests can 
be found in the following: a notice published in the June 17, 1994 
Federal Register (59 FR 31238), entitled ``Conformity: General Preamble 
for Exemption from Nitrogen Oxides Provisions,''; a USEPA memorandum 
from John S. Seitz, Director, Office of Air Quality Planning and 
Standards (OAQPS), dated May 27, 1994, entitled ``Section 182(f) 
Nitrogen Oxides (NOX) Exemptions--Revised Process and Criteria,''; 
a USEPA memorandum from G. T. Helms, Group Leader, Ozone/Carbon 
Monoxide Programs Branch, OAQPS, dated January 12, 1995, entitled 
``Scope of Nitrogen Oxides (NOX) Exemptions,''; a USEPA memorandum 
from John S. Seitz, Director, OAQPS, dated February 8, 1995, entitled 
``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised Process 
and Criteria,''; and a USEPA guidance document entitled ``Guideline for 
Determining the Applicability of Nitrogen Oxides Requirements Under 
Section 182(f),'' dated December 1993, OAQPS, Air Quality Management 
Division.

III. State Submittals

Marginal and Nonclassifiable Ozone Nonattainment Areas

    In a letter dated March 18, 1994, the OEPA submitted a request that 
the following marginal and nonclassifiable ozone nonattainment areas be 
exempt from the NOX-related transportation and general conformity 
requirements contained in Section 176(c) of the Act: Canton (Stark 
County), Columbus (Delaware, Franklin and Licking Counties), Youngstown 
(Mahoning and Trumbull Counties), Steubenville (Columbiana and 
Jefferson Counties), Preble County, and Clinton County. Additionally, 
USEPA is granting exemptions from the nonattainment area NSR 
requirements for new sources and modifications that are major for 
NOX, for the following marginal ozone nonattainment areas: Canton 
(Stark County), Columbus (Delaware, Franklin and Licking Counties), and 
Youngstown (Mahoning and Trumbull Counties). The NSR requirements do 
not apply to the Steubenville area, Preble County, or Clinton County.
    This exemption request is based upon three years (1991-1993) of 
ambient air monitoring data which demonstrate that the NAAQS for ozone 
has been attained in each of these areas without additional reductions 
of NOX emissions.

Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area

    In a letter dated November 15, 1994, the OEPA submitted a request 
for an exemption from the NOX requirements contained in Section 
182(f) of the Act for the Ohio portion of the Cincinnati-Hamilton 
interstate moderate ozone nonattainment area (which includes the 
Counties of Butler, Clermont, Hamilton and Warren). This exemption 
request is based upon the most recent three years (1992-1994) of 
ambient air monitoring data which demonstrate that the NAAQS for ozone 
has been attained in the Ohio portion of the interstate area without 
additional reductions of NOX emissions.
    An exemption request from the requirements contained in Section 
182(f) of the Act has also been submitted to USEPA--Region 4 by the 
Kentucky Department for Environmental Protection (KDEP) for the 
Kentucky portion of the interstate area (which includes the counties of 
Boone, Kenton, and Campbell). This exemption request is also based upon 
ambient air monitoring for ozone which demonstrate that the NAAQS for 
ozone has been attained in this area without additional reductions of 
NOX. This exemption request will be evaluated in a separate 
rulemaking (to be performed by USEPA--Region 4).

Cleveland Moderate Ozone Nonattainment Area

    In a letter dated November 1, 1994, the OEPA submitted a request 
for an exemption from the requirements contained in Section 182(f) of 
the Act for the Cleveland moderate ozone nonattainment area (which 
includes the Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain, 
Medina, Portage and Summit). This exemption request is based upon the 
most recent three years (1992-1994) of ambient air monitoring data 
which demonstrate that the NAAQS for ozone has been attained in this 
area without additional reductions of NOX.

IV. Analysis of State Submittals

    The USEPA has reviewed the ambient air monitoring data for ozone 
(consistent with the requirements contained in 40 CFR Part 58 and 
recorded in USEPA's--Aerometric Information Retrieval System--AIRS) 
submitted by the OEPA in support of these exemption requests.
    For ozone, an area is considered in attainment of the NAAQS if 
there are no violations, as determined in accordance with 40 CFR 50.9, 
based on quality assured monitoring data from three complete 
consecutive calendar years. A violation of the ozone NAAQS occurs when 
the annual average number of expected exceedances is greater than 1.0 
at any site in the area at issue. An exceedance occurs when the daily 
maximum hourly ozone concentration exceeds 0.124 parts per million 
(ppm).

Marginal and Nonclassifiable Ozone Nonattainment Areas

    The following ozone exceedances were recorded for the period from 
1991 to 1993 (the average number of expected exceedances for this three 
year period are also presented):
    Canton: Stark County, 6318 Heminger Ave. (1991)--0.130 ppm; average 
expected exceedances: 0.3.
    Columbus: Franklin County, 5750 Maple Canyon (1991)--0.131 ppm; 
average expected exceedances: 0.3.
    Steubenville: no exceedances recorded;
    Youngstown: Mahoning County, 9 West Front Street (1991)--0.143 ppm; 
average expected exceedances: 0.3. Trumbull County, Community Hall 
(1993)--0.127 ppm; average expected exceedances: 0.3.
    Preble County: National Trials (1991)--0.129 ppm; average expected 
exceedances: 0.3.
    Clinton County: 62 Laurel Drive (1993)--0.125 ppm; average expected 


[[Page 36053]]
exceedances: 0.5 (based only on two years of monitoring data).

Cincinnati and Cleveland Ozone Nonattainment Areas

    The following ozone exceedances were recorded for the period from 
1992 to 1994 (the average number of expected exceedances for this three 
year period are also presented):
    Cleveland: Medina County, 6364 Deerview (1994)--0.127 ppm; average 
expected exceedances: 0.5 (based only on two years of monitoring data). 
Cuyahoga County, 891 E. 125 St. (1993)--0.126 ppm, (1994) 0.127 ppm and 
0.125 ppm; average expected exceedances: 1.0.
    Cincinnati: Butler County, Schuler and Bend (1993)--0.131 ppm; 
average expected exceedances: 0.3. Hook Field Municipal (1993)--0.138 
ppm; average expected exceedances: 0.3. Clermont County, 389 Main St. 
(1994)--0.128 ppm; average expected exceedances: 0.3. Warren County, 
Southeast St. (1994)--0.139 ppm and 0.128 ppm; average expected 
exceedances: 0.7.
    Thus, for all of the areas at issue, the annual average number of 
expected exceedances were not greater than 1.0, and thus, the areas are 
currently meeting the NAAQS for ozone.

V. Exemptions from the Conformity Provisions

Background

    With respect to conformity, USEPA's conformity rules \1\,\2\ 
currently provide a NOX waiver from certain requirements if an 
area receives a Section 182(f) exemption. Under the transportation 
conformity rule, a NOX waiver relieves an area of the requirement 
to meet the ``build/no build'' and ``less-than-1990-baseline'' tests 
which apply during the period before State Implementation Plans (SIP) 
with emissions budgets are approved. In a notice published in the June 
17, 1994 Federal Register (59 FR 31238, 31241), entitled ``Conformity; 
General Preamble for Exemption From Nitrogen Oxides Provisions,'' USEPA 
acknowledged that the rule should also have provided that, in order to 
conform, nonattainment and maintenance areas must demonstrate that the 
transportation plan and transportation improvement program (TIP) are 
consistent with the motor vehicle emissions budget for NOX even 
where a conformity NOX waiver has been granted. Due to a drafting 
error, that view is not reflected in the current published 
transportation conformity rules. The USEPA is in the process of 
amending the conformity rule so as to remedy the problem.

    \1\ ``Criteria and Procedures for Determining Conformity to 
State or Federal Implementation Plans of Transportation Plans, 
Programs, and Projects Funded or Approved under Title 23 U.S.C. of 
the Federal Transit Act,'' November 24, 1993 (58 FR 62188).
    \2\ ``Determining Conformity of General Federal Actions to State 
or Federal Implementation Plans; Final Rule,'' November 30, 1993 (58 
FR 63214).
Approval Under Section 182(b)

    An issue concerning the appropriate Act authority for granting 
transportation-related NOX waivers has been raised by several 
commenters. NOX exemptions are provided for in two separate parts 
of the Act, Section 182(b)(1) and Section 182(f). These commenters 
argue that exemptions from the NOX transportation conformity 
requirements must follow the process provided in Section 182(b)(1), 
since this is the only Section explicitly referenced by Section 
176(c)(3)(A)(iii) in the Act's transportation conformity provisions.
    With certain exceptions, USEPA agrees that Section 182(b)(1) is the 
appropriate authority under the Act for waiving the transportation 
conformity rule's NOX ``build/no build'' and ``less-than-1990'' 
tests, and is planning to amend the rule to be consistent with the 
statute. However, USEPA believes that this authority is only applicable 
with respect to those areas that are subject to Section 182(b)(1).
    The change in authority for granting NOX waivers from Section 
182(f) to Section 182(b)(1) has different impacts for areas subject to 
Section 182(b)(1) depending on whether the area is relying on ``clean 
air'' data or on modeling data. Areas relying on modeling data must 
meet the procedure established under Section 182(b)(1), including 
submitting the exemption request as part of a SIP revision. The USEPA 
may not take action on exemptions for such areas until the rulemaking 
amending the transportation conformity rule to establish Section 
182(b)(1) as the appropriate authority for granting such relief has 
been completed. ``Clean data'' areas that would otherwise be subject to 
Section 182(b)(1), such as Cincinnati and Cleveland, will be relieved 
of the transportation conformity rule's interim period NOX 
requirements at such time as USEPA takes final action implementing its 
recently-issued policy regarding the applicability of Section 182(b)(1) 
requirements for areas demonstrating attainment of the ozone NAAQS 
based on ``clean data''. This policy is contained in a May 10, 1995, 
memorandum from John Seitz, Director, Office of Air Quality Planning 
and Standards, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone National Ambient Air Quality Standard,'' which should 
be referred to for a more thorough discussion. The aspect of the policy 
that is relevant here is USEPA's determination that the Section 
182(b)(1) provisions regarding reasonable further progress (RFP) and 
attainment demonstrations may be interpreted so as not to require the 
SIP submissions otherwise called for in Section 182(b)(1) if an ozone 
nonattainment area that would otherwise be subject to those 
requirements is in fact attaining the ozone standard (i.e., attainment 
of the NAAQS is demonstrated with 3 consecutive years of complete, 
quality-assured, air-quality monitoring data). Any such ``clean data'' 
areas, under this interpretation, would no longer be subject to the 
requirements of Section 182(b)(1) once USEPA takes final rulemaking 
action adopting the interpretation in conjunction with its 
determination that the area has attained the standard. At that time, 
such areas would be treated like ozone nonattainment areas classified 
marginal and below, and hence eligible for NOX waivers from the 
interim-period transportation conformity requirements by obtaining a 
waiver under Section 182(f), as described below.
    Marginal and below ozone nonattainment areas (which represents the 
majority of the areas USEPA is taking action on today) are not subject 
to Section 176(c)(3)(A)(iii) because they are not subject to Section 
182(b)(1), and general federal actions are also not subject to Section 
176(c)(3)(A)(iii) (and, hence, are not subject to Section 182(b)(1) 
either). These areas, however, are still subject to the conformity 
requirements of Section 176(c)(1), which sets out criteria that, if 
met, will assure consistency with the SIP. The USEPA believes it is 
reasonable and consistent with the Act to provide relief under Section 
176(c)(1) for areas not subject to Section 182(b)(1) from applicable 
NOX conformity requirements where the Agency has determined that 
NOX reductions would not be beneficial, and to rely, in doing so, 
on the NOX exemption tests provided in Section 182(f) for the 
reasons given below.
    The basic approach of the Act is that NOX reductions should 
apply when beneficial to an area's attainment goals, and should not 
apply when unhelpful or counterproductive. Section 182(f) reflects this 
approach but also includes specific substantive tests which provide a 
basis for USEPA to determine when NOX requirements should not 
apply. 

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Whether under Section 182(b)(1) or Section 182(f), where USEPA has 
determined that NOX reductions will not benefit attainment or 
would be counterproductive in an area, USEPA believes it would be 
unreasonable to insist on NOX reductions for purposes of meeting 
RFP or other milestone requirements. Moreover, there is no substantive 
difference between the technical analysis required to make an 
assessment of NOX impacts on attainment in a particular area 
whether undertaken with respect to mobile source or stationary source 
NOX emissions. Consequently, USEPA believes that granting relief 
from the NOX conformity requirements of Section 176(c)(1) under 
Section 182(f) in these cases is appropriate.
Action

* Marginal and Nonclassifiable Ozone Nonattainment Areas
    The USEPA is approving, as proposed in the January 17, 1995 Federal 
Register (60 FR 3361), the transportation and general conformity 
exemption requests submitted under Section 182(f) of the Act for the 
following areas: Canton (Stark County), Columbus (Delaware, Franklin 
and Licking Counties), Youngstown (Mahoning and Trumbull Counties), 
Steubenville (Columbiana and Jefferson Counties), Preble County, and 
Clinton County.
* Moderate and Above Ozone Nonattainment Areas
    The USEPA is delaying action at this time on approval of the 
transportation conformity exemptions for the Cincinnati and Cleveland 
ozone nonattainment areas. As explained above, USEPA must complete its 
rulemaking determining that these areas have attained the ozone 
standard and, in conjunction, implementing its interpretation that the 
SIP submissions otherwise called for in Section 182(b)(1) no longer 
apply. Thus, further action on this approval will occur only as such 
time as USEPA takes final action.

VI. NOX RACT Rules

Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area

    The State of Ohio was required to submit NOX RACT rules to 
USEPA for the Ohio portion of the Cincinnati-Hamilton interstate area. 
On July 14, 1994, USEPA notified the Governor of Ohio that the State 
had failed to submit the required rules. The State is required to 
either submit complete rules to USEPA (or have its NOX exemption 
request approved, in final) within 18 months from the date of the 
finding in order to avoid the initiation of sanctions under Section 
179(b) of the Act. Upon the effective date of the final approval of the 
exemption request for the Ohio portion of the Cincinnati-Hamilton 
Interstate area, the 18 month ``sanctions clock'' shall stop.
    On November 15, 1994, the State of Ohio submitted a redesignation 
request to attainment of the ozone NAAQS for the Ohio portion of the 
Cincinnati-Hamilton interstate ozone nonattainment area. This 
redesignation request will be evaluated in a separate rulemaking. The 
State has included NOX RACT as a contingency measure of the 
maintenance plan. The USEPA does not require that these rules be 
adopted to be included as a contingency measure. However, a specific 
schedule is provided for the adoption and implementation of NOX 
RACT rules if a violation of the ozone standard is monitored in the 
interstate area (which includes the following Counties located in the 
State of Kentucky: Boone, Kenton, and Campbell).

Cleveland Moderate Ozone Nonattainment Area

    The State of Ohio submitted adopted NOX RACT rules to USEPA on 
July 1, 1994, for the Toledo, Dayton, and Cleveland ozone nonattainment 
areas. These rules are currently under review and will be evaluated in 
a separate rulemaking. The State provided the following provision in 
the RACT rules submittal (Ohio Administrative Code (3745-14-02(B)(3)) 
for the suspension of the RACT rules:
    ``The Director also may suspend the requirements of this Chapter in 
an area in the event that the USEPA issues a national policy and/or 
promulgates a regulation which, based upon the ambient air monitoring 
data for ozone in the area, eliminates the need for NOX control 
requirements in that area.''
    On November 1, 1994, the State of Ohio submitted a redesignation 
request to attainment of the ozone NAAQS for the Cleveland moderate 
ozone nonattainment area. This redesignation request will be evaluated 
in a separate rulemaking. The State has included NOX RACT as a 
contingency measure of the maintenance plan. The USEPA does not require 
that these rules be adopted to be included as a contingency measure. 
However, a specific schedule is provided for the adoption and 
implementation of NOX RACT rules if a violation of the ozone 
standard is monitored in the area.

VII. Inspection and Maintenance (I/M) Programs

Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area

    For the Cincinnati area, the local area government has opted for an 
enhanced I/M program. The I/M Final Rule (57 FR 52950) provides that if 
the Administrator determines that NOX emission reductions are not 
beneficial in a given ozone nonattainment area, then NOX emission 
reductions are not required of the enhanced I/M program, but the 
program shall be designed to offset NOX increases resulting from 
the repair of motor vehicles that have failed the hydrocarbon (HC) and 
carbon monoxide (CO) testing procedures.3 Upon the effective date 
of this action, the Butler, Clermont, Hamilton and Warren Counties 
shall not be required to demonstrate compliance with the enhanced I/M 
performance standard for NOX. However, the State shall be required 
to demonstrate, using USEPA's--Mobile Source Emissions Model, Mobile 5a 
(or its successor), that NOX emissions will be no higher than in 
the absence of any I/M program.

    \3\  Additional clarification concerning the I/M requirements 
and areas with NOX exemptions is provided in a memorandum from 
Mary T. Smith, Acting Director, Office of Mobile Sources, dated 
October 14, 1994, entitled ``I/M Requirements in NOX RACT 
Exempt Areas.''
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Cleveland Moderate Ozone Nonattainment Area

    For the Cleveland area, the local area government has opted for an 
enhanced I/M program for the following counties: Cuyahoga, Geauga, 
Lake, Lorain, Medina, Portage and Summit. The I/M Final Rule (57 FR 
52950) provides that if the Administrator determines that NOX 
emission reductions are not beneficial in a given ozone nonattainment 
area, then NOX emission reductions are not required of the 
enhanced I/M program, but the program shall be designed to offset 
NOX increases resulting from the repair of motor vehicles that 
have failed the hydrocarbon (HC) and carbon monoxide (CO) testing 
procedures. Upon the effective date of this action, Cuyahoga, Geauga, 
Lake, Lorain, Medina, Portage and Summit Counties shall not be required 
to demonstrate compliance with the enhanced I/M performance standard 
for NOX. However, the State shall be required to demonstrate, 
using USEPA's--Mobile Source Emissions Model, Mobile 5a (or its 
successor), that NOX emissions will be no higher than in the 
absence of any I/M program. 

[[Page 36055]]


VIII. Withdrawal of the Exemptions

    Until an area has been redesignated to attainment, continuation of 
the Section 182(f) exemptions granted herein is contingent upon 
continued monitoring and continued attainment of the ozone NAAQS in the 
affected area(s). If a violation of the ozone NAAQS is monitored in an 
area(s) (consistent with the requirements contained in 40 CFR Part 58 
and recorded in AIRS) USEPA will provide notice to the public in the 
Federal Register withdrawing the exemption.
    A determination that the NOX exemption no longer applies would 
mean that the NOX NSR, general conformity, and transportation 
conformity provisions would immediately be applicable (see 58 FR 63214 
and 58 FR 62188) for the affected area(s). The NOX RACT 
requirements would also be applicable, with a reasonable time provided 
as necessary to allow major stationary sources subject to the RACT 
requirements to purchase, install and operate the required controls. 
The USEPA believes that the State may provide sources a reasonable time 
period after the USEPA determination to actually meet the RACT emission 
limits. The USEPA expects such time period to be as expeditious as 
practicable, but in no case longer than 24 months.
    If a nonattainment area is redesignated to attainment of the ozone 
NAAQS, but then a violation of the ozone NAAQS occurs, NOX RACT 
shall be implemented as stated in the maintenance plan.

IX. Notice of Proposed Rulemaking and Responses to Comments

    The USEPA published a notice proposing to approve the exemption 
requests for the Cincinnati, Cleveland, and other nonattainment areas 
in Ohio in the January 17, 1995 Federal Register (60 FR 3361). The 
USEPA received comments supporting and adverse to this proposed action. 
Copies of all comments have been placed in the docket file. The 
following entities submitted adverse or supporting comments:
    Submitting Entity (date received by USEPA): Natural Resources 
Defense Council (08-24-94); Columbia Gas Transmission Corporation (02-
09-95); Private Citizen (02-14-95); LTV Steel Company (02-16-95); Ohio 
Sierra Club (02-21-95); Akron Regional Infrastructure Alliance (03-29-
95); State of New Hampshire--Department of Environmental Services (03-
30-95); Northeast States for Coordinated Air Use Management (03-30-95); 
Ameritech (03-31-95); Southern Environmental Law Center (04-03-95); 
Private Citizen (04-03-95); Environmental Defense Fund (04-03-95); 
Greater Cleveland Growth Association (04-03-95); Portage County Board 
of Commissioners (04-04-95); State of New York--Department of 
Environmental Conservation (04-10-95); State of New Jersey--Department 
of Environmental Protection (04-10-95); Executive of the County of 
Summit (04-11-95).
    Some of the adverse comments addressed similar points. The USEPA 
responds to these comments by issue as follows:
    Procedural Comments: Several commenters argued that USEPA should 
not approve the waiver requests at issue on procedural grounds. 
NOX exemptions are provided for in two separate parts of the Act, 
Section 182(b)(1) and Section 182(f). Commenters took the position that 
because the NOX exemption tests in Subsections 182(b)(1) and 
182(f)(1) include language indicating that action on such requests 
should take place ``when [EPA] approves a plan or plan revision,'' that 
all NOX exemption determinations by USEPA, including exemption 
actions taken under the petition process established by Subsection 
182(f)(3), must occur during consideration of an approvable attainment 
or maintenance plan, unless the area has been redesignated to 
attainment for the ozone NAAQS. These commenters also argue that even 
if the petition procedures of Subsection 182(f)(3) may be used to 
relieve areas of certain NOX requirements, exemptions from the 
NOX conformity requirements must follow the process provided in 
Subsection 182(b)(1), since this is the only provision explicitly 
referenced by Section 176(c) in the Act's conformity provisions.
    USEPA Response: Section 182(f) contains very few details regarding 
the administrative procedure for USEPA action on NOX exemption 
requests. The absence of specific guidelines by Congress leaves USEPA 
with discretion to establish reasonable procedures, consistent with the 
requirements of the Administrative Procedure Act (APA).
    The USEPA believes that Subsections 182(f)(1) and 182(f)(3) provide 
independent procedures for USEPA to act on NOX exemption requests. 
The language in Subsection 182(f)(1), which indicates that USEPA should 
act on NOX exemptions in conjunction with action on a plan or plan 
revision, does not appear in Subsection 182(f)(3). While Subsection 
182(f)(3) references Subsection 182(f)(1), USEPA believes that this 
reference encompasses only the substantive tests in paragraph (1) [and, 
by extension, paragraph (2)], and not the procedural requirement that 
USEPA act on exemptions only when acting on SIPs. Additionally, 
paragraph (3) provides that ``person[s]'' (which Section 302(e) of the 
Act defines to include States) may petition for NOX exemptions 
``at any time,'' and requires USEPA to make its determination within 
six months of the petition's submission. These key differences lead 
USEPA to believe that Congress intended the exemption petition process 
of paragraph (3) to be distinct and more expeditious than the longer 
plan revision process intended under paragraph (1).
    Section 182(f)(1) appears to contemplate that exemption requests 
submitted under these paragraphs are limited to States, since States 
are the entities authorized under the Act to submit plans or plan 
revisions. By contrast, Section 182(f)(3) provides that ``person[s]'' 
4 may petition for a NOX determination ``at any time'' after 
the ozone precursor study required under Section 185B of the Act is 
finalized,5 and gives USEPA a limit of 6 months after filing to 
grant or deny such petitions. Since individuals may submit petitions 
under paragraph (3) ``at any time,'' this must include times when there 
is no plan revision from the State pending at USEPA. The specific 
timeframe for USEPA action established in paragraph (3) is 
substantially shorter than the timeframe usually required for States to 
develop and for USEPA to take action on revisions to a SIP. These 
differences strongly suggest that Congress intended the process for 
acting on petitions under paragraph (3) to be distinct from and more 
expeditious than the plan revision process intended under paragraph 
(1). Thus, USEPA believes that paragraph (3)'s reference to paragraph 
(1) encompasses only the substantive tests in paragraph (1) [and, by 
extension, paragraph (2)], not the requirement in paragraph (1) for 
USEPA to grant exemptions only when acting on plan revisions. With 
respect to the comment that Section 182(b)(1) provides the appropriate 
authority to grant transportation conformity NO exemptions, please 
refer to the discussion in `` Section V., Approval Under Section 
182(b),'' of this notice.

    \4\  Section 302(e) of the Act defines the term ``person'' to 
include States.
    \5\  The final Section 185B report was issued July 30, 1993.
---------------------------------------------------------------------------

    Air Monitoring Network: One commenter stated that the network 
established for air monitoring is 

[[Page 36056]]
insufficient to accurately assess the ambient air quality in these 
areas.
    USEPA Response: The USEPA has established ambient air monitoring 
networks for each of these areas to provide the most accurate 
assessment of the ambient air concentrations of ozone as practicable. 
These monitors meet the requirements set in 40 CFR Part 58 for ambient 
air monitoring, and USEPA has not been provided with any evidence that 
would allow it to conclude either that the number of monitors nor their 
locations are inadequate.
    Attainment Data Comments: Three years of ``clean'' data fail to 
demonstrate that NOX reductions would not contribute to attainment 
of the NAAQS for ozone. The USEPA's policy erroneously equates the 
absence of a violation for one three-year period with ``attainment.''
    USEPA Response: The USEPA has separate criteria for determining if 
an area should be redesignated to an ozone attainment area under 
Section 107 of the Act. The Section 107 redesignation criteria are more 
comprehensive than the Act requires with respect to NOX exemptions 
under Section 182(f).
    Under Section 182(f)(1)(A), an exemption from the NOX 
requirements may be granted for nonattainment areas outside an OTR if 
USEPA determines that ``additional reductions of [NOX] would not 
contribute to attainment'' of the ozone NAAQS in those areas. In some 
cases, an ozone nonattainment area might attain the ozone standard, as 
demonstrated by 3 years of adequate monitoring data, without having 
implemented the Section 182(f) NOX provisions over that 3-year 
period.
    In cases where a nonattainment area is demonstrating attainment 
with 3 consecutive years of air quality monitoring data without having 
implemented the Section 182(f) NOX provisions, USEPA believes that 
the Section 182(f) test is met since ``additional reductions of 
[NOX] would not contribute to attainment'' of the NAAQS in that 
area. In cases where it is warranted, USEPA's approval of the exemption 
is granted on a contingent basis (i.e., the exemption would last for 
only as long as the area's monitoring data continue to demonstrate 
attainment).
    Review Criteria: One commenter requested that USEPA should review 
all exemption requests with the same level of scrutiny.
    USEPA Response: It is the Clean Air Act itself, not USEPA, that 
treats areas differently for purposes of qualifying for a NOX 
exemption. Section 182(f) establishes separate criteria for USEPA to 
use in determining whether an area should be granted a NOX 
exemption or not depending on whether an area falls within or outside 
of an OTR. Within these bounds, USEPA has established national guidance 
for evaluating NOX petitions. The relevant NOX exemption 
guidance documents are listed earlier in this notice. Each USEPA 
Regional Office implements the established policy contained in the 
guidance when evaluating individual State's exemption requests. The 
USEPA--Region 5 used the same criteria and scrutiny in reviewing these 
exemption requests and finds that these exemption requests submitted by 
the State meet the procedures set forth in the guidance in order to 
meet the applicable requirements of the Act.
    Modeling Comments: Some commenters stated that no modeling has been 
performed to show that NOX is not a contributor to the ozone 
``problem'' in these nonattainment areas and in downwind areas. Other 
commenters stated that the modeling required by USEPA guidance is 
insufficient to establish that NOX reductions would not contribute 
to attainment of the ozone NAAQS.
    USEPA Response: As described in USEPA's December 1993 NOX 
exemption guidance,6 photochemical grid modeling is generally 
needed to document cases where NOX reductions are 
counterproductive to net air quality, do not contribute to attainment, 
do not show a net ozone benefit, or include excess reductions. The 
Urban Airshed Model (UAM) or, in the OTR, the Regional Oxidant Model 
(ROM), are acceptable methods for these purposes. However, the December 
guidance also provides that, under the ``not contribute to attainment 
test,'' an area may qualify for a NOX exemption by attaining the 
ozone standard, as demonstrated by three years of ambient air 
monitoring data. The exemption requests submitted by the State for 
these areas are based upon ambient air monitoring data for ozone, which 
demonstrate that the area is in fact attaining the NAAQS and, 
consequently, additional reductions of NOX in that area would not 
``contribute to attainment''. The comment regarding the sufficiency of 
USEPA's modeling guidance is not relevant to this action since these 
petitions are based on air monitoring data. For additional information, 
please refer to the ``Downwind Area'' comments and response below.

    \6\ ``Guideline for Determining the Applicability of Nitrogen 
Oxide Requirements under Section 182(f),'' from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, dated 
December 19, 1993.
---------------------------------------------------------------------------

    SIP Status Request: One commenter stated that since other SIP 
revisions have not been approved (i.e., the 15% rate-of-progress plans, 
maintenance plans, contingency plans, and redesignation request), it is 
premature to approve the exemption requests.
    USEPA Response: This action only addresses the requests for 
exemptions from the NOX requirements contained in Section 182(f) 
of the Act and from certain NOX requirements of USEPA's I/M and 
conformity regulations as submitted by the State of Ohio. Final actions 
by USEPA on these requests are not dependent on final actions on other 
required SIP submittals, such as the ones mentioned. Non-related SIP 
revisions will be addressed separately. See also USEPA response to 
``Conclusive Evidence'' comments.
    Transportation Modeling and Emissions Estimates: One commenter 
cited a specific highway project, and others stated that generally 
there were significant flaws in the transportation modeling and with 
the SIP emission estimates for several of the areas included in the 
exemption petition.
    USEPA Response: This action addresses only the requests for 
exemptions from the NOX requirements contained in Section 182(f) 
of the Act and certain NOX requirements of USEPA's conformity and 
I/M regulations as submitted by the State of Ohio based upon ambient 
air monitoring data. Transportation modeling and emission estimates are 
not required to be reviewed as part of this approval. Therefore, 
adverse comments submitted concerning transportation modeling and 
emissions estimates are not being further addressed.
    Attainment Demonstration Comments: Some commenters stated that 
ambient air monitoring data is a poor indicator for the purpose of 
demonstrating that NOX reductions would not contribute to 
attainment.
    USEPA Response: Under Section 182(f)(1)(A), an exemption from the 
NOX requirements may be granted for nonattainment areas outside an 
OTR if USEPA determines that ``additional reductions of [NOX] 
would not contribute to attainment'' of the ozone NAAQS in those areas. 
In some cases, an ozone nonattainment area might attain the ozone 
standard, as demonstrated by 3 years of adequate monitoring data, 
without having implemented the Section 182(f) NOX provisions over 
that 3-year period. In cases where a nonattainment area is 
demonstrating attainment with 3 consecutive years of air quality 
monitoring data without having 

[[Page 36057]]
implemented the Section 182(f) NOX provisions, USEPA believes that 
the Section 182(f) test is met since ``additional reductions of 
[NOX] would not contribute to attainment'' of the NAAQS in that 
area. In all such cases, USEPA's approval of the exemption is granted 
on a contingent basis (i.e., the exemption would last for only as long 
as the area's monitoring data continue to demonstrate attainment). The 
policy described above is applicable to the areas of the country that 
successfully meet the ``not contribute to attainment'' NOX 
exemption test in Section 182(f)(1)(A), and is further described in 
USEPA's December 1993 guidance and May 27, 1994, policy memorandum.
    Downwind Area Comments: Several commenters note that USEPA's 
December 1993 guidance prohibits granting a Section 182(f) waiver based 
on 3 years of clean data if evidence exists showing that the waiver 
would interfere with attainment or maintenance in downwind areas. The 
commenters argue that the same condition should also apply to waiver 
requests based on modeling. Exemptions in Ohio cities, they claim, are 
likely to exacerbate ozone nonattainment downwind, and therefore are 
not consistent with the Act. If the exemptions are granted, emissions 
from new stationary sources and the transportation sector in Ohio, 
which are projected to increase, could delay attainment of the ozone 
standard in areas in the northeastern United States.
    These commenters further claim that USEPA modeling has demonstrated 
that Ohio is a significant contributor to atmospheric transport of 
ozone precursors to the OTR. Since this modeling indicates that 
emissions of NOX from stationary sources west of the OTR 
contribute to increased ozone levels in the northeast, they argue that 
control of NOX emissions in the OTR and in States west of the OTR 
will contribute to significant reductions in peak ozone levels within 
the OTR.
    USEPA Response: As a result of such comments, USEPA has re-
evaluated its position on this issue and decided to revise the 
previously-issued guidance.7 As described below, USEPA intends to 
use its authority under Section 110(a)(2)(D) to require a State to 
reduce NOX emissions from stationary and/or mobile sources where 
there is evidence, such as photochemical grid modeling, showing that 
NOX emissions would contribute significantly to nonattainment in, 
or interfere with maintenance by, any other State. This action would be 
independent of any action taken by USEPA on a NOX exemption 
request for stationary sources under Section 182(f). That is, USEPA 
action to grant or deny a NOX exemption request under Section 
182(f) would not shield that area from USEPA action to require NOX 
emission reductions, if necessary, under Section 110(a)(2)(D).

    \7\ Please refer to ``Section 182(f) Nitrogen Oxides (NOX) 
Exemptions--Revised Process and Criteria,'' from John Seitz, 
Director, OAQPS, dated February 8, 1995.
---------------------------------------------------------------------------

    Recent modeling data suggest that certain ozone nonattainment areas 
may benefit from reductions in NOX emissions far upwind of the 
nonattainment area. For example, the northeast corridor and the Lake 
Michigan areas are considering attainment strategies which rely in part 
on NOX emission reductions hundreds of miles upwind. The USEPA is 
working with the States and other organizations to design and complete 
studies which consider upwind sources and quantify their impacts. As 
the studies progress, USEPA will continue to work with the States and 
other organizations to develop mutually acceptable attainment 
strategies.
    At the same time as these large scale modeling analyses are being 
conducted, certain nonattainment areas that are located in the area 
being modeled, have requested exemptions from NOX requirements 
under Section 182(f). Some areas requesting an exemption may impact 
upon downwind nonattainment areas. The USEPA intends to address the 
transport issue through Section 110(a)(2)(D) based on a domain-wide 
modeling analysis.
    Under Section 182(f) of the Act, an exemption from the NOX 
requirements may be granted for nonattainment areas outside an OTR if 
USEPA determines that ``additional reductions of [NOX] would not 
contribute to attainment of the national ambient air quality standard 
for ozone in the area.''\8\ As described in section 4.3 of the December 
16, 1993 guidance document, USEPA believes that the term ``area'' means 
the ``nonattainment area,'' and that USEPA's determination is limited 
to consideration of the effects in a single nonattainment area due to 
NOX emissions reductions from sources in the same nonattainment 
area.

    \8\ There are three NOX exemption tests specified in 
Section 182(f). Of these, two are applicable for areas outside an 
ozone transport region; the ``contribute to attainment'' test 
described above, and the ``net air quality benefits'' test. The 
USEPA must determine, under the latter test, that the net benefits 
to air quality in an area ``are greater in the absence of NOX 
reductions'' from relevant sources. Based on the plain language of 
Section 182(f), USEPA believes that each test provides an 
independent basis for receiving a full or limited NOX 
exemption. Consequently, as stated in Section 1.4 of the December 
16, 1993 USEPA guidance, ``[w]here any one of the tests is met (even 
if another test is failed), the Section 182(f) NOX requirements 
would not apply or, under the excess reductions provision, a portion 
of these requirements would not apply.''
---------------------------------------------------------------------------

    Section 4.3 of the guidance goes on to encourage, but not require, 
States/petitioners to include consideration of the entire modeling 
domain, since the effects of an attainment strategy may extend beyond 
the designated nonattainment area. Specifically, the guidance 
encourages States to ``consider imposition of the NOX requirements 
if needed to avoid adverse impacts in downwind areas, either intra- or 
inter-State. States need to consider such impacts since they are 
ultimately responsible for achieving attainment in all portions of 
their State (see generally Section 110) and for ensuring that emissions 
originating in their State do not contribute significantly to 
nonattainment in, or interfere with maintenance by, any other State 
[see Section 110(a)(2)(D)(i)(I)].''
    In contrast, Section 4.4 of the guidance states that the Section 
182(f) demonstration would not be approved if there is evidence, such 
as photochemical grid modeling, showing that the NOX exemption 
would interfere with attainment or maintenance in downwind areas. The 
guidance goes on to explain that Section 110(a)(2)(D) [not Section 
182(f)] prohibits such impacts.
    Consistent with the guidance in section 4.3, USEPA believes that 
the Section 110(a)(2)(D) and 182(f) provisions must be considered 
independently, and, hence, is withdrawing the guidance presently 
contained in Section 4.4. Thus, if there is evidence that NOX 
emissions in an upwind area would interfere with attainment or 
maintenance in a downwind area, that action should be separately 
addressed by the State(s) or, if necessary, by USEPA in a Section 
110(a)(2)(D) action. A Section 182(f) exemption request should be 
independently considered by USEPA. In some cases, then, USEPA may grant 
an exemption from across-the-board NOX RACT controls under Section 
182(f) and, in a separate action, require NOX controls from 
stationary and/or mobile sources under Section 110(a)(2)(D). It should 
be noted that the controls required under Section 110(a)(2)(D) may be 
more or less stringent than RACT, depending upon the circumstances. 
Consistent with these principles, USEPA is approving these exemption 
requests under Section 182(f) of the Act. If evidence appears that 
NOX emissions in an upwind area would interfere with attainment or 
maintenance in a 

[[Page 36058]]
downwind area, appropriate action shall be taken by the State(s) or, if 
necessary, by USEPA under Section 110(a)(2)(D). The USEPA also believes 
this approach is consistent with statements made by Mary Nichols, 
Assistant Administrator for Air and Radiation, in a March 2, 1995, 
memorandum entitled ``Ozone Attainment Demonstrations,'' concerning the 
development of regional approaches to resolve NOX transport 
issues. Also see response to comment on ``Alternative Ozone Attainment 
Demonstration Policy''.
    Scope of Exemption: One commenter stated that if USEPA granted 
these exemptions, NOX RACT and NSR would be waived for all 
NOX sources in the State of Ohio.
    USEPA Response: Upon the effective date of this final approval, 
NOX RACT and NSR will not be required for any nonattainment area 
in the State of Ohio; however, the NOX requirements of Title IV, 
acid rain, are not affected by this action and must be met by affected 
sources in Ohio. Moreover, as noted earlier, all NOX exemption 
approvals are contingent upon the exempted areas continuing to attain 
the ozone NAAQS, and would no longer apply in any previously-exempted 
area where, prior to redesignation, a violation occurs. Also, NOX 
reductions that are needed for maintenance would still be applicable.
    Alternative Ozone Attainment Demonstration Policy: One commenter 
stated that proposed approval of Ohio's exemption requests seems 
premature in light of a recent USEPA policy memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, entitled 
``Ozone Attainment Demonstrations,'' dated March 2, 1995.
    USEPA Response: The March 2, 1995, policy memorandum is applicable 
to ozone nonattainment areas significantly affected by ozone transport 
that are classified as serious and above (discretion is given to the 
Regional Offices to determine, in consultation with State Agencies, 
whether it would be appropriate to apply the policy to other areas in 
the State). For the State of Ohio, the Cincinnati-Hamilton interstate 
area is the only area that may be affected by this memorandum. However, 
a redesignation request has been submitted for this area, and upon the 
effective date of the final approval, an attainment demonstration for 
this area would no longer be required, thus relieving that area of the 
need for the flexibility offered in the March 2nd memorandum. Please 
note that the States of Ohio and Kentucky are still funding a 
contractual effort to develop an attainment demonstration for the area 
in the event the redesignation requests are not approved. See also 
response to comment regarding ``Downwind Areas''.
    Conclusive Evidence: The Act does not authorize any waiver of the 
NOX reduction requirements until conclusive evidence exists that 
such reductions are counter-productive.
    USEPA Response: The USEPA does not agree with this comment since it 
is contrary to Congressional intent as evidenced by the plain language 
of Section 182(f), the structure of the Title I ozone subpart as a 
whole, and relevant legislative history. In developing and implementing 
its NOX exemption policies, USEPA has sought an approach that 
reasonably accords with that intent.
    In addition to imposing control requirements on major stationary 
sources of NOX similar to those that apply for such sources of 
VOC, Section 182(f) also provides for an exemption (or limitation) from 
application of these requirements if, under one of several tests, USEPA 
determines that in certain areas NOX reductions would generally 
not be beneficial. In Subsection 182(f)(1), Congress explicitly 
conditioned action on NOX exemptions on the results of an ozone 
precursor study required under Section 185B. Because of the possibility 
that reducing NOX in a particular area may either not contribute 
to ozone attainment or may cause the ozone problem to worsen, Congress 
included attenuating language, not just in Section 182(f), but 
throughout the Title I ozone subpart, to avoid requiring NOX 
reductions where they would be non-beneficial or counterproductive.
    In describing these various ozone provisions (including Section 
182(f), the House Conference Committee Report states in pertinent part: 
``[T]he Committee included a separate NOX/VOC study provision in 
Section [185B] to serve as the basis for the various findings 
contemplated in the NOX provisions. The Committee does not intend 
NOX reduction for reduction's sake, but rather as a measure scaled 
to the value of NOX reductions for achieving attainment in the 
particular ozone nonattainment area.'' H.R. Rep. No. 490, 101st Cong., 
2d Sess. 257-258 (1990).
    As noted in response to a comment discussed above, the command in 
Subsection 182(f)(1) that USEPA ``shall consider'' the Section 185B 
report taken together with the timeframe the Act provides both for 
completion of the report and for acting on NOX exemption petitions 
clearly demonstrate that Congress believed the information in the 
completed Section 185B report would provide a sufficient basis for 
USEPA to act on NOX exemption requests, even absent the additional 
information that would be included in affected areas' attainment or 
maintenance demonstrations. However, while there is no specific 
requirement in the Act that USEPA actions granting NOX exemption 
requests must await ``conclusive evidence,'' as the commenters argue, 
there is also nothing in the Act to prevent USEPA from revisiting an 
approved NOX exemption if warranted due to subsequent ambient 
monitoring information.
    In addition, USEPA believes (as described in USEPA's December 1993 
guidance) that Section 182(f)(1) of the Act provides that the new 
NOX requirements shall not apply (or may by limited to the extent 
necessary to avoid excess reductions) if the USEPA Administrator 
determines that any one of the following tests is met:
    (1) In any area, the net air quality benefits are greater in the 
absence of NOX reductions from the sources concerned;
    (2) In nonattainment areas not within an ozone transport region, 
additional NOX reductions would not contribute to ozone attainment 
in the area; or
    (3) In nonattainment areas within an ozone transport region, 
additional NOX reductions would not produce net ozone air quality 
benefits in the transport region.
    Based on the plain language of Section 182(f), USEPA believes that 
each test provides an independent basis for the granting of a full or 
limited NOX exemption.
    Only the first test listed above is based on a showing that 
NOX reductions are ``counter-productive.'' If even one of the 
tests is met, the Section 182(f) NOX requirements would not apply 
or, under the excess reductions provision, a portion of these 
requirements would not apply.
    Air Quality Comment: One commenter stated that attainment of the 
ozone NAAQS has not occurred, while several commenters stated that the 
air quality monitoring data alone does not support this exemption 
proposal (even though the air quality levels are below USEPA's 
definition of an exceedance of the ozone NAAQS at 0.125 ppm, but are 
greater than the ozone NAAQS of 0.120 ppm).
    USEPA Response: The exemption requests were evaluated against the 
standards set forth for this purpose under the Act, regulations, and 
USEPA policy. As stated in 40 CFR 50.9, the ozone ``standard is 
attained when the expected number of days per calendar year with 
maximum hourly average 

[[Page 36059]]
concentrations above 0.12 parts per million (235 ug/m\3\) is equal to 
or less than 1, as determined by Appendix H.'' Appendix H references 
USEPA's ``Guideline for Interpretation of Ozone Air Quality 
Standards,'' (EPA-450/4-79-003, January 1979), which notes that the 
stated level of the standard is taken as defining the number of 
significant figures to be used in comparison with the standard. For 
example, a standard level of 0.12 ppm means that measurements are to be 
rounded to two decimal places (0.005 rounds up to 0.01). Thus, 0.125 
ppm is the smallest concentration value in excess of the level of the 
ozone standard (please refer to ``Section IV. Analysis of the State 
Submittal'' in this notice for monitored ozone concentrations in these 
areas). Based on these criteria, the ambient air monitoring data shows 
that a violation of the ozone standard has not occurred for any of the 
areas during the indicated ozone seasons.
    Monitoring Data Demonstration: One commenter was concerned that 
USEPA reviewed 1991-1993 ambient air ozone monitoring data for the 
exemption request submitted for the Canton, Columbus, Steubenville, 
Youngstown areas; Preble and Clinton Counties; and 1992-1994 ambient 
air ozone monitoring data for the Cleveland and Cincinnati areas. The 
commenter believed that the inconsistencies between these time periods 
brought into question the entire proposed approval.
    USEPA Response: The USEPA reviewed the exemption requests based on 
when the submittal and accompanying ozone data were received by USEPA. 
For the marginal and nonclassifiable ozone nonattainment areas, the 
exemption requests were submitted to USEPA in a letter dated March 18, 
1994 (based upon monitoring data from the 1991-1993 ozone seasons). For 
the Cleveland and Cincinnati areas, the State submitted the exemptions 
requests in letters dated November 1 and 15, 1994, respectively, (based 
upon monitoring data from the 1992-1994 ozone seasons). The approvals 
are consistent with the criteria in 40 CFR 50.9 and Appendix H, as well 
as with relevant USEPA guidance, under which the relevant factor is 
that there are 3 consecutive years during which the standard has been 
attainment as demonstrated by quality-assured ambient air quality data.

X. Final Action

    The USEPA is approving, in final, the exemption requests submitted 
by the State of Ohio from the NOX requirements provided for in 
Section 182(f) of the Act. This approval would exempt the following 
Counties in Ohio from the NOX-related general and transportation 
conformity provisions; and nonattainment area NSR for new sources and 
modifications that are major for NOX: Clinton, Columbiana, 
Delaware, Franklin, Jefferson, Licking, Mahoning, Preble, Stark, and 
Trumbull.
    This approval also exempts the following Counties in Ohio from the 
NOX-related general conformity provisions, nonattainment area NSR 
for new sources and modifications that are major for NOX, NOX 
RACT; and a demonstration of compliance with the enhanced I/M 
performance standard for NOX (please note that the following 
counties are not being granted an exemption from the transportation 
conformity NOX provisions): Ashtabula, Butler, Clermont, Cuyahoga, 
Geauga, Hamilton, Lake, Lorain, Medina, Portage, Summit and Warren.

XI. General Provisions

    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the state 
implementation plan shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget exempted this 
regulatory action from Executive Order 12866 review.

XII. Regulatory Process

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000. Today's exemptions do not create any new requirements, but 
allow suspension of the indicated requirements for the life of the 
exemptions. Therefore, because the approval does not impose any new 
requirements, I certify that it does not have a significant impact on 
any small entities affected.
    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995, signed into law on March 22, 1995, USEPA must undertake 
various actions in association with proposed or final rules that 
include a Federal mandate that may result in estimated costs of $100 
million or more to the private sector, or to State, local, or tribal 
governments in the aggregate.
    The USEPA's final action relieves requirements otherwise imposed 
under the Act and hence, does not impose any federal intergovernmental 
mandate, as defined in Section 101 of the Unfunded Mandates Act. This 
action also will not impose a mandate that may result in estimated 
costs of $100 million or more to either State, local, or tribal 
governments in the aggregate, or to the private sector.
    Under Section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 11, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See Section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: June 30, 1995.
David A. Ullrich,
Acting Regional Administrator.

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

PART 52--[AMENDED]

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

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

Subpart KK--Ohio

    2. Section 52.1879 is amended by adding new paragraph (e) to read 
as follows: 

[[Page 36060]]



Sec. 52.1879  Review of new sources and modifications.

* * * * *
    (e) Approval--The USEPA is approving exemption requests submitted 
by the State of Ohio on March 18, November 1, and November 15, 1994, 
from the requirements contained in Section 182(f) of the Clean Air Act. 
This approval exempts the following counties in Ohio from the NOX-
related general and transportation conformity provisions; and 
nonattainment area NSR for new sources and modifications that are major 
for NOX: Clinton, Columbiana, Delaware, Franklin, Jefferson, 
Licking, Mahoning, Preble, Stark, and Trumbull. This approval also 
exempts the following counties in Ohio from the NOX-related 
general conformity provisions, nonattainment area NSR for new sources 
and modifications that are major for NOX, NOX RACT; and a 
demonstration of compliance with the enhanced I/M performance standard 
for NOX: Ashtabula, Butler, Clermont, Cuyahoga, Geauga, Hamilton, 
Lake, Lorain, Medina, Portage, Summit and Warren. If, prior to 
redesignation to attainment, a violation of the ozone NAAQS is 
monitored in the Canton, Cincinnati, Cleveland, Columbus, Youngstown, 
and Steubenville areas, Preble County and Clinton County, the 
exemptions from the requirements of Section 182(f) of the Act in the 
applicable area(s) shall no longer apply.

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


Sec. 52.1885  Control strategy: Ozone.

* * * * *
    (x) Approval--The USEPA is approving exemption requests submitted 
by the State of Ohio on March 18, November 1, and November 15, 1994, 
from the requirements contained in Section 182(f) of the Clean Air Act. 
This approval exempts the following counties in Ohio from the NOX-
related general and transportation conformity provisions, and 
nonattainment area NSR for new sources and modifications that are major 
for NOX: Clinton, Columbiana, Delaware, Franklin, Jefferson, 
Licking, Mahoning, Preble, Stark, and Trumbull. This approval also 
exempts the following counties in Ohio from the NOX-related 
general conformity provisions, nonattainment area NSR for new sources 
and modifications that are major for NOX, NOX RACT, and a 
demonstration of compliance with the enhanced I/M performance standard 
for NOX: Ashtabula, Butler, Clermont, Cuyahoga, Geauga, Hamilton, 
Lake, Lorain, Medina, Portage, Summit, and Warren. If, prior to 
redesignation to attainment, a violation of the ozone NAAQS is 
monitored in the Canton, Cincinnati, Cleveland, Columbus, Youngstown, 
and Steubenville areas, Preble County and Clinton County, the 
exemptions from the requirements of Section 182(f) of the Act in the 
applicable area(s) shall no longer apply.

[FR Doc. 95-17211 Filed 7-12-95; 8:45 am]
BILLING CODE 6560-50-P