[Federal Register Volume 60, Number 147 (Tuesday, August 1, 1995)]
[Rules and Regulations]
[Pages 39115-39122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18510]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH50-5-7072, FRL-5258-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On May 2, 1995, the United States Environmental Protection 
Agency (USEPA) published a proposed and direct final rulemaking notice 
to approve the ozone redesignation request and associated section 175A 
maintenance plan for Toledo, Ohio under the Clean Air Act. The 30-day 
comment period for these notices concluded on June 1, 1995. Four 
comment letters were received in response to the May 2, 1995 proposal, 
and included adverse comments and a request to extend the comment 
period. The USEPA withdrew the direct final rulemaking but denied the 
request to extend the public comment period. This final rule summarizes 
all adverse comments and USEPA's responses, and finalizes the approval 
of the redesignation to attainment of the National Ambient Air Quality 
Standard for ozone and section 175A maintenance plan for the Toledo 
area.

EFFECTIVE DATE: This action will be effective August 1, 1995.

ADDRESSES: Copies of the SIP revisions, public comments and USEPA's 
responses are available for inspection at the following address: (It is 
recommended that you telephone Angela Lee at (312) 353-5142 before 
visiting the Region 5 Office.)
    United States Environmental Protection Agency, Region 5, Air and 
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Angela Lee, Regulation Development 
Section, Air Enforcement Branch (AE-17J), United States Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-5142.

SUPPLEMENTARY INFORMATION:

I. Background Information

    The 1977 Act required areas that were designated nonattainment to 
develop SIPs with sufficient control measures to expeditiously attain 
and maintain applicable standards. For Ohio, Lucas and Wood Counties 
were designated nonattainment for ozone, see 43 FR 8962 (March 3, 
1978), 43 FR 45993 (October 5, 1978), and 40 CFR part 81. After 
enactment of the amended Act on November 15, 1990, the nonattainment 
designation of the Toledo area continued by operation of law according 
to section 107(d)(1)(C)(i) of the Act; furthermore, the area was 
classified by operation of law as moderate for ozone pursuant to 
section 181(a)(1) (56 FR 56694, November 6, 1991), codified at 40 CFR 
81.336.
    More recently, ambient monitoring data for the Toledo area show no 
violations of the ozone National Ambient Air Quality Standard (NAAQS) 
during the period from 1990 through 1992. The area, therefore, became 
eligible for redesignation from nonattainment to attainment consistent 
with the amended Act. On September 17, 1993, Ohio requested 
redesignation of the area to attainment with respect to the ozone 
NAAQS. To ensure continued attainment of the ozone standard, Ohio 
submitted an ozone maintenance SIP for the Toledo area with the 
redesignation request. On November 1, 1993, Ohio held a public hearing 
on the maintenance plan and redesignation request.
    On May 2, 1995, the USEPA published a proposed (60 FR 21490) and 
direct final rule (60 FR 21456) to approve the redesignation request 
and section 175A maintenance plan as revisions to the Ohio ozone State 
Implementation Plan (SIP). The USEPA withdrew the direct final rule on 
June 19, 1995, (60 FR 31917) in response to receiving adverse comments. 
This final rule addresses these comments and takes final action 
regarding the redesignation and section 175A maintenance plan for the 
Toledo area.

II. Summary of Comments and Responses

    USEPA has considered the adverse comments received and has decided 
to proceed with formal action approving the redesignation. A summary of 
adverse comments received in response to the May 2, 1995 proposed and 
direct final rulemaking notices (60 FR 21490, 60 FR 21456) and 
responses to these comments is provided below. Comments were made by 
two residents of the Toledo, Ohio area, Environment Canada, and the 
Citizens Commission for Clean Air in the Lake Michigan Basin.
    (1) Comment: A commentor objects to the use of the direct final 
procedure when the proposed redesignation is neither noncontroversial 
nor routine. Another commentor objected to the final rule procedure due 
to insufficient opportunity for public comment. Several commentors 
requested that the direct final rule be withdrawn and republished as a 
proposed rule. The commentors also requested a 30 day extension of the 
public comment period. One commentor stated that ``most citizens have 
not heard about the opportunity to comment, and should be afforded 
additional time to do so.'' Another commentor requested an extension of 
the comment period so that concerns about increased vehicle emissions 
caused by new road construction projects and a possible increase in 
highway tolls can be evaluated and addressed.
    (1) Response: The USEPA did not expect adverse comments regarding 
the approval of the ozone redesignation request and viewed its decision 
as noncontroversial since it believed that all of the Clean Air Act 
requirements for redesignation were met. In response to the adverse 
comment letters which were received, the USEPA withdrew the direct 
final rule. In any event, that process preserves the public opportunity 
to comment as a proposed rule was published the same day as the direct 
final rule was published at 60 FR 21490.
    The USEPA is denying the extension requests because it believes the 
period provided for public comment was adequate in light of the issues 
presented by the Toledo redesignation request. USEPA further notes that 
the public had many opportunities to become informed about the issues 
as Ohio itself had its own public comment period and that a public 
function for the rulemaking package was held on March 14, 1995, in 
Toledo, Ohio, which was shown on television news programs. Moreover, 
USEPA has already exceeded the statutory deadline of section 
107(d)(3)(d) to act on this request which expired on March 17, 1995--
and does not believe further delay in the action is appropriate.
    (2) Comment: Several commentors stated that the last two summers 
were abnormally cool and that data for the last 10 years indicate a 
trend toward warmer summers in the Toledo area. The commentors 
requested that USEPA delay rulemaking so that one or two years of 
monitoring data could be collected to ensure that the improvement in 
air quality was not caused by cooler temperatures. The commentors also 
stated that it would be a waste of resources to redesignate the area to 
attainment when a violation 

[[Page 39116]]
would require a redesignation back to nonattainment.
    (2) Response: The USEPA may not delay action on this redesignation 
request since section 107(d)(3)(E) requires USEPA to act on complete 
redesignation requests within 18 months of their receipt--a period that 
expired on March 17, 1995. Furthermore, in establishing the criteria 
for determining if an area is in attainment of the ozone standard, 
USEPA used three years of ambient monitoring data. See 40 CFR part 50, 
Appendix H. The USEPA notes that the Toledo area has been in attainment 
for four consecutive three-year periods (1989-1991, 1990-1992, 1991-
1993, and 1992-1994). This includes six years of ambient monitoring 
data. Thus, Toledo has already been in attainment substantially longer 
than the three-year period required. The CAA expressly contemplates the 
possibility that areas redesignated to attainment may violate the NAAQS 
after redesignation and requires contingency plans to address future 
violations. Ohio has adopted such a plan for Toledo. If a violation 
occurs, Stage II Vapor Recovery Program (Stage II) and a vehicle 
inspection and maintenance program (I/M) will be implemented according 
to a specified schedule. If a violation occurs after these programs 
have been implemented, nitrogen oxides (NOX) Reasonably Available 
Control Technology requirements will be implemented in the area.
    (3) Comment: Toledo will not be able to maintain attainment on a 
permanent and enforceable basis and therefore does not meet requirement 
107(d)(3)(E) of the Clean Air Act. The rulemaking notice states that 
the measures are permanent and enforceable, but does not show that the 
improvement is permanent and enforceable. The improvement in air 
quality is temporary since emission increases resulting from increased 
vehicle miles travelled (VMT) will surpass the emission reductions from 
these measures. Short term emissions reductions and cooler temperatures 
have been used to claim that a long term improvement in air quality has 
occurred. Long term air quality will not improve and will decrease due 
to emissions increases which will offset the gains which have been 
made. Insufficient data has been gathered on which to base a long term 
prediction, and models have been based on biased assumptions regarding 
the effect of capacity expansions. The USEPA should require the state 
to submit additional information regarding current trends in land use 
and transportation in the Toledo area. The commentor mentioned trends 
which were not conducive to efficient transportation such as decreasing 
bus ridership, increasing tolls on the Ohio Turnpike, widening of I-75 
which will lead to increased VMT, increasing single-occupant vehicle 
capacity, and increasing use of the Toledo Airport. Another commentor 
submitted excerpts from an article regarding traffic flow on congested 
roads from the American Scientist dated November-December 1988 written 
by Joel E. Cohen, Professor of Populations, Rockefeller University.
    The USEPA and the State of Ohio have failed to demonstrate that the 
improvement in air quality was due to permanent and enforceable 
emission reductions rather than atypically cool ozone seasons in 1992 
and 1993. Also the controls on the volatility of gasoline through 
lowering of the Federal Volatility standard and controls new cars under 
the Federal Motor Vehicle Emissions Control Program (FMVECP) are 
insufficient to guarantee permanent improvements under the Clean Air 
Act. These measures represent only a few of the requirements that 
should have been enacted prior to any serious consideration of the 
redesignation request by USEPA.
    (3) Response: Section 107(d)(3)(E)(iii) of the Clean Air Act 
requires the USEPA to determine that ``the improvement in air quality 
is due to permanent and enforceable reductions in emissions resulting 
from implementation of the applicable implementation plan and 
applicable Federal air pollutant control regulations and other 
permanent and enforceable reductions.'' Ohio met this requirement by 
estimating emission reductions from federally mandated controls on new 
cars and on fuel volatility as well as reductions which took place at 
the British Petroleum Refinery. These controls provided a significant 
reduction in the areas emissions and the State has shown that no 
additional reductions are needed to maintain the standard. See 60 FR 
21456 and 60 FR 21490.
    With respect to the issue of unusual meteorology, the USEPA has 
compared the average meteorological parameters of maximum daily 
temperature, minimum daily temperature, average daily temperature, 
cooling degrees, and days with high temperatures greater than 90 
degrees fahrenheit for the periods of June through August, 1991 through 
1993, with the 30-year norms for these parameters. The 1991 through 
1993 averages for these parameters agreed with those for the 30-year 
norms with only minor differences. Based on these averaged parameters, 
it can be concluded that the 1991 through 1993 period was not unusually 
cool in terms of temperatures. Thus, the State has adequately 
demonstrated that the air quality improvement was not due to unusually 
favorable meteorology.
    To meet section 107(d)(3)(E)(iii), the improvement in air quality 
does not have to be shown to be permanent, only the measures that 
resulted in the improvement need to be permanent and enforceable. 
However, section 107(d)(3)(E)(iv) does require that the area have a 
fully approved maintenance plan showing that the ozone standard will be 
maintained for ten years into the future. This can be done through air 
quality modeling or by using emissions projections. Ohio demonstrated 
that, by considering the growth in the area (including VMT growth) and 
existing controls on emission sources, emissions will remain below the 
attainment year inventory through the year 2005. In projecting mobile 
source emissions, Ohio obtained VMT based on the Highway Performance 
Modeling System which uses traffic counting data for the year 1990. To 
forecast VMT to the year 2005, Ohio used growth parameters based on 
modeling of the Long Range Transportation Plan (future highway 
network). This modeling process incorporated population growth 
estimates from Ohio Data Users Center, employment forecasts and other 
forecasts of socio-economic data. The methodology which was used to 
project emissions is reasonable. The USEPA notes that the emissions 
projection for mobile sources in the maintenance plan establishes the 
emissions budget which will be used for determining conformity of 
transportation plans and transportation improvement programs for the 
Toledo area. The conformity determination must include reasonable 
assumptions about transit service and increases in transit fares and 
road and bridge tolls over time.
    The May 2, 1995 notice describes a tracking plan for updating the 
emission inventory. As discussed, Ohio has committed to submitting 
periodic inventories every 3 years. Ohio will compare the projected 
emissions in the redesignation request with actual emissions. If 
volatile organic compounds (VOC) emissions exceed 95 percent of 1990 
levels, Ohio will implement Stage II and/or I/M.
    If the periodic inventories exceed the attainment level of 
emissions in the maintenance plan, the USEPA may issue a SIP call to 
the area under section 110(k)(5) on the basis that the State made 
inadequate assumptions in projecting the inventory used to demonstrate 
maintenance. In this event, the USEPA may require the State to 

[[Page 39117]]
correct the projection inventory and, if increases are projected, 
propose and ultimately implement maintenance measure(s) to lower the 
emissions to a level at or below the attainment year level. Under 
section 175A of the Clean Air Act, Ohio must submit a demonstration 
that the ozone standard will be maintained for another ten years, eight 
years after the area is redesignated to attainment. This is expected to 
result in the Toledo area maintaining the ozone standard for the next 
20 years.
    (4) Comment: Two commentors requested that USEPA prepare an 
Environmental Impact Statement (EIS) as the redesignation constitutes a 
major federal action with the potential for significant impacts on the 
human environment. A number of transportation and land use control 
measures which would have resulted under requirements applied to 
nonattainment areas will not be required. The EIS should consider 
downwind transport of ozone precursors, and the effect of such 
transport on the Northeastern United States.
    (4) Response: USEPA is not required to prepare an EIS in connection 
with this redesignation. Section 7(c)(1) of the Energy Supply and 
Environmental Coordination Act (Pub. L. 93-319) states that ``[n]o 
action taken under the Clean Air Act shall be deemed a major Federal 
action significantly affecting the quality of the human environment 
within the meaning of the National Environmental Policy Act of 1969 (83 
Stat. 856).'' This redesignation does not affect the applicability of 
the National Environmental Policy Act (NEPA) to particular 
transportation projects in the Toledo area. In addition, the 
transportation and general conformity rules will still apply after the 
area is redesignated to attainment. (Conformity determinations for 
transportation plans, transportation improvement projects, and Federal 
actions must demonstrate that the emissions budget established by the 
maintenance plan is not exceeded.)
    The redesignation does not allow States to automatically remove 
control programs which have contributed to an area's attainment of a 
U.S. National Ambient Air Quality Standard (NAAQS) for any pollutant. 
Sources of ozone precursors in the Toledo area must continue to 
implement all control equipment and/or measures in accordance with 
applicable rules, regulations and permits. Other control programs 
required by the Act will be implemented in the area, regardless of the 
ozone designation, such as title IV NOX controls, section 112 
toxic controls and on-board vapor recovery requirements. Upon 
redesignation to attainment, Toledo will be subject to the Prevention 
of Significant Deterioration provisions (PSD) of the Clean Air Act that 
apply to stationary sources of air pollution.
    The State has assessed emission increases due to growth in all 
potential sources of emissions and has shown that reductions in 
emissions over the maintenance period will more than offset any 
increases in emissions of VOC and NOX. As stated in the Federal 
Register notice (60 FR 21456), USEPA will address transport of ozone 
precursors to downwind areas under section 110 of the Clean Air Act 
based on a domain-wide modeling analysis. Should this or other studies 
provide a sufficient scientific basis for taking action in the future, 
the USEPA will take appropriate action notwithstanding the 
redesignation of the Toledo area to attainment for ozone.
    (5) Comment: The USEPA should delay rulemaking on this and all 
other ozone redesignation requests pending a re-evaluation of the 
current ozone standard to determine if public health is adequately 
protected. Recent studies indicate that health impacts occur at lower 
levels of ozone than the current ozone standard.
    (5) Response: The USEPA is currently in the process of reevaluating 
the ozone NAAQS and expects to make a final decision in mid-1997. Until 
any change is made, however, the USEPA is bound to implement the 
provisions of the Act as they relate to the current standard, including 
those relating to designations and redesignation. Moreover, as 
previously noted under section 107(d)(3)(D) USEPA has 18 months in 
which to act on a redesignation request and has no authority to delay 
rulemaking until the entire evaluation of the ozone NAAQS is complete.
    (6) Comment: Ozone levels exceeded 0.124 parts per million (ppm) at 
the Yondota Avenue monitor in 1991, 1993, and 1994. From these 
occurrences, and the absence of mandated forceful control measures post 
1994, it is very difficult to have the expectation that the Yondota 
station will remain in attainment.
    (6) Response: Exceedances of the ozone standard did occur at the 
Yondota monitor in 1991, 1993 and 1994, but did not cause a violation 
of the ozone standard. The control measures approved into the State's 
Implementation Plan will remain in place to ensure that the ozone 
standard is maintained. Ohio's maintenance demonstration shows that 
future emission levels will remain below levels associated with 
attainment. Continued maintenance of the ozone NAAQS will be determined 
by continued ambient monitoring. If a violation does occur at the 
Yondota monitor after the redesignation is approved, Stage II and I/M 
will be implemented. In addition, the area will be subject to the PSD 
program, FMVECP, and other measures.
    (7) Comment: Environment Canada commented that air quality needs to 
be managed in a regional context and evaluated over a long term period 
that takes meteorological variations into consideration. Environment 
Canada is disappointed that current USEPA policy does not reflect this 
opinion. Environment Canada believes that the ground level ozone 
standards in effect in the United States allow such high levels of 
ozone and ozone precursors to flow into Canada as to make it 
practically impossible for Canada to reach its ground level ozone 
objective of 82 parts per billion. Another commentor asserted that 
USEPA failed to consider adverse impacts of transport of ozone and 
ozone precursors to the Province of Ontario, Detroit, the Northeastern 
United States and the Lake Michigan Basin. USEPA has failed to obtain a 
legally enforceable commitment from the State of Ohio to cooperate in 
developing a strategy to reduce the documented problem of ozone 
transport throughout Eastern North America. Another commentor stated 
that the air quality problem is not being solved, it is being moved off 
to other downwind states. This breaks the spirit of the Clean Air Act.
    (7) Response: The USEPA would like to note that the governments of 
the United States and Canada are in the process of developing a joint 
study of the transboundary ozone phenomena under the U.S.-Canada Air 
Quality Agreement. It is envisioned that this regional ozone study will 
provide the scientific information necessary to understand what 
contributes to ozone levels in the region, as well as what control 
measures would contribute to reductions in ozone levels. Should this or 
other studies provide a sufficient scientific basis for taking action 
in the future, the USEPA will take an appropriate course of action. The 
USEPA may take appropriate action notwithstanding the redesignation of 
the Toledo area. Therefore, the USEPA does not believe that the 
contentions regarding transboundary impact provide a basis for delaying 
action at this time on this redesignation or disapproving the 
redesignation. This is particularly true since approval of the 
redesignation is not expected to result in an increase in ozone 
precursor emissions and is not expected to adversely affect air quality 


[[Page 39118]]
in Canada. In fact, a decrease in both VOC and NOX emissions from 
the Toledo area is expected over the 10-year maintenance period. It 
should also be noted that redesignation does not allow States to 
automatically remove control programs which have contributed to an 
area's attainment of a U.S. National Ambient Air Quality Standard for 
any pollutant. As discussed previously, the USEPA's general policy is 
that a State may not relax the adopted and implemented SIP for an area 
upon the area's redesignation to attainment unless an appropriate 
demonstration,1 based on computer modeling, is approved by the 
USEPA. In this case, no previously implemented control strategies are 
being relaxed as part of this redesignation.

    \1\Such a demonstration must show that removal of a control 
program will not interfere with maintenance of the ozone NAAQS and 
would entail submittal of an attainment modeling demonstration with 
the USEPA's current Guideline on Air Quality Models. Also, see 
memorandum from Gerald A. Emison, April 6, 1987, entitled Ozone 
Redesignation Policy, and memorandum from Michael H. Shapiro, 
September 17, 1993, entitled State Implementation Plan (SIP) 
Requirements for Submitting Requests for Redesignation to Attainment 
of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality 
Standards (NAAQS) on or after November 15, 1992.
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    (8) Comment: The maintenance demonstration overestimates reductions 
in VOC and NOX emissions, especially for the latter which relies 
heavily on NOX emission reductions obtained from modifications at 
the British Petroleum refinery and underestimated economic, population 
and VMT growth projections. VMT growth projections fail to consider the 
ensuing sprawl caused by the development of a corridor from northeast 
to southern Ohio. USEPA reliance on assurances from the State of Ohio 
that VOC and NOX emissions in the Toledo area will decrease 35 
percent and 38 percent, respectively, from attainment levels by 2005, 
is speculative and suspect given continued urban growth and sprawl 
along major transportation corridors.
    (8) Response: The methodology used to project emissions followed 
USEPA guidance. Point source emissions were projected by accounting for 
known changes to sources for each year between 1990 and 2005 and 
applying a growth factor based on manufacturing employment data 
provided by the Bureau of Economic Analysis, United States Department 
of Commerce, to derive inventories for all ensuing years. Manufacturing 
employment is expected to remain relatively constant. The NOX 
emission reductions which would result from compliance with Title IV 
NOX requirements are reasonable. Population projections were 
obtained from using data from the Ohio Data Users Center (ODUC). ODUC 
takes into account past trends, the age of the population, economic 
cycles, and other factors in estimating the future population of the 
area. Ohio used the Highway Performance Modeling System which uses 
actual traffic counts to obtain 1990 levels of VMT. This model was 
developed by the Federal Highway Administration and is an acceptable 
model for estimating VMT. To project levels of VMT, Ohio used the Long 
Range Transportation Planning Program which considered the future 
transportation network. The methodology used to project mobile source 
emissions was reasonable and should not underpredict growth.
    While the overall VMT are expected to increase, this growth will be 
offset by the FMVECP which will be providing emissions reductions in 
the area through the production of cleaner automobiles. In addition 
this area is still subject to the transportation conformity 
requirements and must show that the expected transportation projects in 
the area will conform to the ozone SIP for the area. This will help to 
ensure that growth in VMT will not increase emissions to a point where 
the ozone standard could be violated. In addition, Ohio has committed 
to submit an emissions inventory every three years to USEPA. If the 
total of point, area, and mobile VOC emissions exceed 95 percent of 
1990 levels, Ohio has committed to implement either Stage II or I/M or 
both. Mobile source inventories will incorporate new VMT estimates.
    (9) Comment: Ohio has not made the necessary commitments to ensure 
the prompt implementation and operation of the contingency plan in the 
event of a violation. It is unlikely that Stage II would be re-
implemented given that the Director of the Ohio Environmental 
Protection Agency (OEPA) suspended Stage II on September 17, 1993.
    (9) Response: The State provided a schedule in their contingency 
plan for implementing Stage II and an automobile inspection and 
maintenance program. This schedule was provided in the direct final 
rule published on May 2, 1995. The Director of the OEPA also committed 
in the SIP submittal to implementing the contingency plan for the area 
in the event of a violation in the area. As the compliance deadlines 
for Stage II begin as early as 6 months after a violation and I/M 
testing is to commence within 18 months of a violation, the contingency 
measures satisfy the statutory criteria section of section 175A.
    (10) Comment: Ohio's failure to implement a part D New Source 
Review program for Toledo, Ohio cannot be excused by the memorandum 
from Mary Nichols entitled, ``Part D New Source Review (part D NSR) 
Requirements for Areas Requesting Redesignation to Attainment''. The 
USEPA cannot waive statutory requirements of the Clean Air Act when 
such waivers frustrate the purpose of the Clean Air Act which is to 
provide clean air, not convenient loopholes for state responsibilities 
under the Clean Air Act.
    (10) Response: The USEPA believes that its decision not to insist 
on a fully-approved NSR program as a pre-requisite to redesignation is 
justifiable as an exercise of the Agency's general authority to 
establish de minimis exceptions to statutory requirements. See Alabama 
Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under 
Alabama Power Co. v. Costle, the USEPA has the authority to establish 
de minimis exceptions to statutory requirements where the application 
of the statutory requirements would be of trivial or no value 
environmentally.
    In this context, the issue presented is whether the USEPA has the 
authority to establish an exception to the requirements of section 
107(d)(3)(E) that the USEPA have fully-approved a SIP meeting all of 
the requirements applicable to the area under section 110 and part D of 
title I of the Act. Plainly, the NSR provisions of section 110 and part 
D are requirements that were applicable to the Ohio area seeking 
redesignation at the time of the submission of the request for 
redesignation. Thus, on its face, section 107(d)(3)(E) would seem to 
require that the State have submitted and the USEPA have fully-approved 
a part D NSR program meeting the requirements of the Act before the 
areas could be redesignated to attainment.
    Under the USEPA's de minimis authority, however, the Agency may 
establish an exception to an otherwise plain statutory requirement if 
its fulfillment would be of little or no environmental value. In this 
context, it is necessary to determine what would be achieved by 
insisting that there be a fully-approved part D NSR program in place 
prior to the redesignation of the Toledo area. For the following 
reasons, the USEPA believes that requiring the adoption and full-
approval of a part D NSR program prior to redesignation would not be of 
significant environmental value in this case.
    Ohio has demonstrated that maintenance of the ozone NAAQS will 
occur even if the emission reductions expected to result from the part 
D NSR 

[[Page 39119]]
program do not occur. Ohio assumed that NSR would not apply after 
redesignation to attainment, and therefore, assumed source growth 
factors based on projected growth in the economy and in the area's 
population. (It should be noted that the growth factors assumed may be 
overestimates under PSD, which would restrain source growth through the 
application of best available control techniques.) Thus, contrary to 
the assertion of the commentor, Ohio has demonstrated that there is no 
need to retain the part D NSR as an operative program in the SIP during 
the maintenance period in order to provide for continued maintenance of 
the NAAQS. (If this demonstration had not been made, NSR would have had 
to have been retained in the SIP as an operative program since it would 
have been needed to maintain the ozone standard.)
    The other purpose that requiring the full-approval of a part D NSR 
program might serve would be to ensure that NSR would become a 
contingency provision in the maintenance plan required for these areas 
by section 107(d)(3)(E)(iv) and 175A(d). These provisions require that, 
for an area to be redesignated to attainment, it must receive full 
approval of a maintenance plan containing ``such contingency provisions 
as the Administrator deems necessary to assure that the State will 
promptly correct any violation of the standard which occurs after the 
redesignation of the area as an attainment area. Such provisions shall 
include a requirement that the State will implement all measures with 
respect to the control of the air pollutant concerned which were 
contained in the SIP for the area before redesignation of the area as 
an attainment area.'' Based on this language, it is apparent that 
whether an approved NSR program must be included as a contingency 
provision depends on whether it is a ``measure'' for the control of the 
pertinent air pollutants.
    As the USEPA noted in the proposal regarding this redesignation 
request, the term ``measure'' is not defined in section 175A(d) and 
Congress utilized that term differently in different provisions of the 
Act with respect to the PSD and NSR permitting programs. For example, 
in section 110(a)(2)(A), Congress required that SIPs to include 
``enforceable emission limitations and other control measures, means, 
or techniques * * * as may be necessary or appropriate to meet the 
applicable requirements of the Act.'' In section 110(a)(2)(C), Congress 
required that SIPs include ``a program to provide for the enforcement 
of the measures described in subparagraph (A), and regulation of the 
modification and construction of any stationary source within the areas 
covered by the plan as necessary to assure that NAAQS are achieved, 
including a permit program as required in parts C and D.'' (Emphasis 
added.) If the term measures as used in section 110(a)(2) (A) and (C) 
had been intended to include PSD and NSR there would have been no point 
to requiring that SIPs include both measures and preconstruction review 
under parts C and D (PSD or NSR). Unless ``measures'' referred to 
something other than preconstruction review under parts C and D, the 
reference to preconstruction review programs in section 110(a)(2)(C) 
would be rendered mere surplusage. Thus, in section 110(a)(2) (A) and 
(C), it is apparent that Congress distinguished ``measures'' from 
preconstruction review. On the other hand, in other provisions of the 
Act, such as section 161, Congress appeared to include PSD within the 
scope of the term ``measures.''
    The USEPA believes that the fact that Congress used the undefined 
term ``measure'' differently in different sections of the Act is 
germane to this issue. This indicates that the term is susceptible to 
more than one interpretation and that the USEPA has the discretion to 
interpret it in a reasonable manner in the context of section 175A. 
Inasmuch as Congress itself has used the term in a manner that excluded 
PSD and NSR from its scope, the USEPA believes it is reasonable to 
interpret ``measure,'' as used in section 175A(d), not to include NSR. 
That this is a reasonable interpretation is further supported by the 
fact that PSD, a program that is the corollary of part D NSR for 
attainment areas, goes into effect in lieu of part D NSR.2 This 
distinguishes NSR from other required programs under the Act, such as 
inspection and maintenance and Reasonably Available Control Technology 
programs, which have no corollary for attainment areas. Moreover, the 
USEPA believes that those other required programs are clearly within 
the scope of the term ``measure.''

    \2\The U.S. EPA is not suggesting that NSR and PSD are 
equivalent, but merely that they are the same type of program. The 
PSD program is a requirement in attainment areas and designed to 
allow new source permitting, yet contains adequate provisions to 
protect the NAAQS. If any information including preconstruction 
monitoring, indicates that an area is not continuing to meet the 
NAAQS after redesignation to attainment, 40 CFR part 51 appendix S 
(Interpretive Offset Rule) or a 40 CFR 51.165(b) program would 
apply. The USEPA believes that in any area that is designated or 
redesignated as attainment under section 107, but experiences 
violations of the NAAQS, these provisions should be interpreted as 
requiring major new or modified sources to obtain VOC emission 
offsets of at least a 1:1 ratio, and as presuming that 1:1 NOX 
offsets are necessary. See October 14, 1994 memorandum from Mary 
Nichols entitled Part D New Source Review (part D NSR) Requirements 
for Areas Requesting Redesignation to Attainment.
---------------------------------------------------------------------------

    The USEPA's logic in treating part D NSR in this manner does not 
mean that other applicable part D requirements, including those that 
have been previously met and previously relied upon in demonstrating 
attainment, could be eliminated without an analysis demonstrating that 
maintenance would be protected. As noted above, Ohio has demonstrated 
that maintenance would be protected with PSD requirements in effect, 
rather than those of part D NSR. Thus, the USEPA is not permitting part 
D NSR to be removed without a demonstration that maintenance of the 
standard will be achieved. Moreover, the USEPA has not amended its 
policy with respect to the conversion of other SIP elements to 
contingency provisions, which provides that they may be converted to 
contingency provisions only upon a showing that maintenance will be 
achieved without them being in effect. Finally, as noted above, the 
USEPA believes that the NSR requirement differs from other 
requirements, and does not believe that the rationale for the NSR 
exception extends to other required programs.
    The position taken in this action is consistent with the USEPA's 
current national policy. That policy permits redesignation to proceed 
without otherwise required NSR programs having been fully approved and 
converted to contingency provisions provided that the area 
demonstrates, as has been done in this case, that maintenance will be 
achieved with the application of PSD rather than part D NSR.
    (11) Comment: Permitting Toledo, Ohio to defer adoption and 
implementation of I/M according to the revised USEPA I/M Program 
Requirements Rule published on January 5, 1995, at 60 FR 1735 
frustrates meaningful control of vehicle emissions.
    (11) Response: While the revised I/M rule (60 FR 1735) allows the 
I/M program to be placed in the contingency plan, there are still 
ongoing emission reductions in the area due to the FMVECP. The 
maintenance demonstration shows that the mobile source emissions are 
expected to decrease from 102,560 pounds of volatile organic compounds 
per day in 1996 to 57,412 pounds per day in 2005. The mobile source 
emissions of oxides of nitrogen are expected to decrease from 65,128 
pounds per day in 1996 to 49,374 pounds per day in 2005. These 

[[Page 39120]]
are significant reductions and are expected to ensure that the area 
maintains the ozone standard. Thus, deferral of the I/M program does 
not frustrate meaningful control of vehicle emissions.
    (12) Comment: One commentor stated that Toledo illegally obtained a 
waiver from NOX conformity requirements under a section 182(f) 
submittal, and because of it NOX conformity requirements should be 
incorporated into Toledo's maintenance plan. The commentor notes that a 
NOX waiver for conformity purposes can only be issued under 
section 182(b)(1)(A). Also, not requiring Toledo, Ohio to submit 
general and transportation conformity SIP revisions with the 
redesignation request removes any incentive for Toledo, Ohio to adopt 
procedures for preventing emissions from transportation and federal 
construction projects contributing to ozone pollution levels. Another 
commentor stated that land use and transportation controls under the 
Clean Air Act will not be taken, resulting in increased pollution, if 
these requirements are changed.
    (12) Response: Ohio is currently developing transportation and 
conformity SIP revisions. The USEPA expects to receive these submittals 
this summer. Maintenance areas are subject to the transportation and 
general conformity rules and therefore, must submit the SIP revisions 
required by these rules. The approval of these submissions was not 
required for the approval of the redesignation request because the 
redesignation request was submitted before the transportation and 
general conformity SIPs were due and were, therefore, not applicable 
requirements for purposes of evaluating this redesignation. Upon 
redesignation, the transportation conformity rule requires that a 
regional emission analyses of proposed transportation plans and 
programs for the Toledo area demonstrate that emissions from the future 
transportation system are below the motor vehicle emission budget 
established in the maintenance plan and lower than 1990 levels. The 
general conformity rule will also apply to the Toledo area after 
redesignation.
    With respect to conformity, USEPA's conformity rules34 
currently provide a NOX waiver from certain requirements if an 
area receives a section 182(f) exemption. Under the transportation 
conformity rule, a NOX waiver relieves an area only of the 
requirement to meet the ``build/no build'' and ``less-than-1990-
baseline'' tests. In a notice published in the June 17, 1994 Federal 
Register (59 FR 31238, 31241), entitled ``Conformity; General Preamble 
for Exemption From Nitrogen Oxides Provisions,'' USEPA reiterated its 
view that in order to conform, nonattainment and maintenance areas must 
demonstrate that the transportation plan and transportation improvement 
program (TIP) are consistent with the motor vehicle emissions budget 
for NOX even where a conformity NOX waiver has been granted. 
Due to a drafting error, that view is not reflected in the current 
published transportation conformity rules. USEPA is in the process of 
amending the conformity rule to remedy the problem.

    \3\``Criteria and Procedures for Determining Conformity to State 
or Federal Implementation Plans of Transportation Plans, Programs, 
and Projects Funded or Approved under Title 23 U.S.C. of the Federal 
Transit Act,'' November 24, 1993 (58 FR 62188).
    \4\``Determining Conformity of General Federal Actions to State 
or Federal Implementation Plans; Final Rule,'' November 30, 1993 (58 
FR 63214).
---------------------------------------------------------------------------

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

[[Page 39121]]
Agency has determined that NOX reductions would not be beneficial, 
and to rely, in doing so, on the NOX exemption tests provided in 
section 182(f) for the reasons given below.
    The basic approach of the Act is that NOX reductions should 
apply when beneficial to an area's attainment goals, and should not 
apply when unhelpful or counterproductive. Section 182(f) reflects this 
approach but also includes specific substantive tests which provide a 
basis for USEPA to determine when NOX requirements should not 
apply. Whether under section 182(b)(1) or section 182(f), where USEPA 
has determined that NOX reductions will not benefit attainment or 
would be counterproductive in an area, USEPA believes it would be 
unreasonable to insist on NOX reductions for purposes of meeting 
RFP or other milestone requirements. Moreover, there is no substantive 
difference between the technical analysis required to make an 
assessment of NOX impacts on attainment in a particular area 
whether undertaken with respect to mobile source or stationary source 
NOX emissions. Consequently, USEPA believes that granting relief 
from the NOX conformity requirements of section 176(c)(1) under 
section 182(f) in these cases is appropriate.

III. Final Rulemaking Action

    The USEPA approves the redesignation of the Toledo, Ohio ozone area 
to attainment and the section 175A maintenance plan as a revision to 
the Ohio SIP. The State of Ohio has satisfied all of the necessary 
requirements of the Act.
    USEPA finds that there is good cause for this redesignation to 
become effective immediately upon publication because a delayed 
effective date is unnecessary due to the nature of a redesignation to 
attainment, which exempts the area from certain Clean Air Act 
requirements that would otherwise apply to it. The immediate effective 
date for this redesignation is authorized under both 5 U.S.C 553(d)(1), 
which provides that rulemaking actions may become effective less than 
30 days after publication if the rule ``grants or recognizes an 
exemption or relieves a restriction'' and section 553(d)(3), which 
allows an effective date less than 30 days after publication ``as 
otherwise provided by the agency for good cause found and published 
with the rule.''
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from Executive Order 12866 review.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, USEPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    The SIP approvals under section 100 and subchapter I, part D, of 
the Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP-approval does not impose any new requirements, I certify 
that it does not have a significant impact on small entities affected. 
Moreover, due to the nature of the Federal-State relationship under the 
Act, preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Act forbids USEPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976).
    Redesignation of an area to attainment under section 107(d)(3)(E) 
of the Clean Air Act does not impose any new requirements on small 
entities. Redesignation is an action that affects the status of a 
geographical area and does not impose any regulatory requirements on 
sources. The Administrator certifies that the approval of the 
redesignation request will not affect a substantial number of small 
entities.
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 2, 1995. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2)).
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, 
USEPA must undertake various actions in association with proposed or 
final rules that include a Federal mandate that may result in estimated 
costs of $100 million or more to the private sector, or to State, 
local, or tribal governments in the aggregate.
    Through submission of the state implementation plan or plan 
revisions approved in this action, the State and any affected local or 
tribal governments have elected to adopt the program provided for under 
section 175A of the Clean Air Act. The rules and commitments being 
proposed for approval in this action may bind State, local and tribal 
governments to perform certain actions and also may ultimately lead to 
the private sector being required to perform certain duties. To the 
extent that the rules and commitments being proposed for approval by 
this action will impose or lead to the imposition of any mandate upon 
the State, local or tribal governments either as the owner or operator 
of a source or as a regulator, or would impose or lead to the 
imposition of any mandate upon the private sector, EPA's action will 
impose no new requirements; such sources are already subject to these 
requirements under State law. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, result 
from this action. The USEPA has also determined that this action does 
not include a mandate that may result in estimated costs or $100 
million or more to State, local, or tribal governments in the aggregate 
or to the private sector.
List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Motor vehicle 
pollution, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

40 CFR Part 81

    Air pollution control, Environmental protection, National parks, 
and Wilderness areas.


[[Page 39122]]

    Dated: July 5, 1995.
David A. Ullrich,
Acting Regional Administrator.

    Title 40 of the Code of Federal Regulations, chapter I, parts 52 
and 81, are amended as follows:

PART 52--[AMENDED]

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

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

    2. Section 52.1870 is amended by adding a new paragraph (c)(105) to 
read as follows:


Sec. 52.1870  Identification of plan.

* * * * *
    (c) * * *
    (105) On September 17, 1993, the Ohio Environmental Protection 
Agency requested the redesignation of Lucas and Wood Counties to 
attainment of the National Ambient Air Quality Standard for ozone. To 
meet the redesignation criteria set forth by section 107(d)(3)(E) (iii) 
and (iv), Ohio credited emissions reductions from the enclosure of the 
``oily ditch'' at the British Petroleum Refinery in Oregon, Ohio. The 
USEPA is approving the Director's Finding and Order which requires the 
enclosure of the ``oily ditch'' into the SIP for Lucas and Wood 
Counties.
    (i) Incorporation by reference.
    (A) letter dated June 2, 1994, from Donald R. Schregardus, 
Director, Ohio Environmental Protection Agency, to Valdas Adamkus, 
Regional Administrator, USEPA, Region 5, and one enclosure which is the 
revised Director's Final Findings and Orders in the matter of BP Oil 
company, Toledo Refinery, 4001 Cedar Point Road, Oregon, Ohio, Fugitive 
Emissions from the Refinery Waste Water System ``Oily Ditch'', 
effective June 2, 1994.
    3. Section 52.1885 is amended by adding paragraph (b)(5) to read as 
follows:


Sec. 52.1885  Control Strategy: Ozone.

* * * * *
    (b) * * *
    (5) Lucas and Wood Counties.
* * * * *

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

    2. Section 81.336 is amended by revising the entry in the ozone 
table for Toledo to read as follows:


Sec. 81.336  Ohio.

* * * * *

                                                   Ohio-Ozone                                                   
----------------------------------------------------------------------------------------------------------------
                                        Designation                                 Classification              
   Designated area    ------------------------------------------------------------------------------------------
                              Date\1\                  Type                 Date\1\                 Type        
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Toledo area:                                                                                                    
    Lucas County.....  August 1, 1995.......  Attainment...........                                             
    Wood County......  August 1, 1995.......  Attainment...........                                             
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------
*        *        *        *        *                                                                           
\1\This date is November 15, 1990, unless otherwise noted.                                                      


[FR Doc. 95-18510 Filed 7-31-95; 8:45 am]
BILLING CODE 6560-50-P