[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20457-20473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11133]
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[[Page 20458]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[OH92-1 & OH79-3; FRL-5458-8]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Ohio
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: The USEPA is determining that the Cleveland-Akron-Lorain (CAL)
ozone nonattainment area (which includes the Counties of Ashtabula,
Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit) has
attained the public health-based National Ambient Air Quality Standard
(NAAQS) for ozone. This determination is based upon three years of
complete, quality-assured, ambient air monitoring data for the 1993 to
1995 ozone seasons that demonstrate that the ozone NAAQS has been
attained in each of these areas. On the basis of this determination,
USEPA is also determining that certain reasonable-further-progress
(RFP) and attainment demonstration requirements, along with certain
other related requirements, of Part D of Title 1 of the Clean Air Act
(CAA) are not applicable to the Cleveland-Akron-Lorain area.
In another part of this rulemaking, the USEPA is approving the Ohio
Environmental Protection Agency (OEPA) request to revise the official
designation of the Cleveland-Akron-Lorain (CAL) area as an area that is
meeting the ozone air quality standard. The USEPA is also approving the
CAL area maintenance plan as a revision to Ohio's State Implementation
Plan (SIP) for ozone. The purpose of the maintenance plan is to provide
for continued good ozone air quality levels in the area over the next
10 years.
EFFECTIVE DATE: This final rule is effective on May 7, 1996.
ADDRESSES: Copies of the determination of attainment, redesignation
requests, public comments on the rulemaking, and other materials
relating to this rulemaking are available for inspection at the
following address: (It is recommended that you telephone William Jones
at (312) 886-6058, before visiting the Region 5 Office.) United States
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard (AR-18J), Chicago, Illinois 60604.
FOR FURTHER INFORMATION ON THIS ACTION CONTACT: William Jones, Air
Programs Branch, Regulation Development Section (AR-18J), United States
Environmental Protection Agency, Region 5, Chicago, Illinois 60604,
(312) 886-6058.
SUPPLEMENTARY INFORMATION:
Determination of Attainment
I. Background
Subpart 2 of Part D of Title I of the CAA contains various air
quality planning and state implementation plan (SIP) submission
requirements for ozone nonattainment areas. The USEPA believes it is
reasonable to interpret provisions regarding RFP and attainment
demonstrations, along with certain other related provisions, so as not
to require SIP submissions if an ozone nonattainment area subject to
those requirements is monitoring attainment of the ozone standard
(i.e., attainment of the NAAQS demonstrated with three consecutive
years of complete, quality-assured, air quality monitoring data). As
described below, USEPA has previously interpreted the general
provisions of subpart 1 of part D of Title I (sections 171 and 172) so
as not to require the submission of SIP revisions concerning RFP,
attainment demonstrations, or contingency measures. As explained in a
memorandum from John S. Seitz, Director, Office of Air Quality Planning
and Standards, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard,'' dated May
10, 1995, USEPA believes it is appropriate to interpret the more
specific RFP, attainment demonstration and related provisions of
subpart 2 in the same manner.
First, with respect to RFP, section 171(1) of the CAA states that,
for purposes of part D of Title I, RFP ``means such annual incremental
reductions in emissions of the relevant air pollutant as are required
by this part or may reasonably be required by the Administrator for the
purpose of ensuring attainment of the applicable NAAQS by the
applicable date.'' Thus, whether dealing with the general RFP
requirement of section 172(c)(2), or the more specific RFP requirements
of subpart 2 for classified ozone nonattainment areas (such as the 15
percent plan requirement of section 182(b)(1)), the stated purpose of
RFP is to ensure attainment by the applicable attainment date.1 If
an area has in fact attained the standard, the stated purpose of the
RFP requirement will have already been fulfilled and USEPA does not
believe that the area need submit revisions providing for the further
emission reductions described in the RFP provisions of section
182(b)(1).
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\1\ USEPA notes that paragraph (1) of subsection 182(b) is
entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and
that subparagraph (B) of paragraph 182(c)(2) is entitled
``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it
clear that both the 15 percent plan requirement of section 182(b)(1)
and the 3 percent per year requirement of section 182(c)(2) are
specific varieties of RFP requirements.
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The USEPA notes that it took this view with respect to the general
RFP requirement of section 172(c)(2) in the General Preamble for the
Interpretation of Title I of the Clean Air Act Amendments of 1990 (57
FR 13498 (April 16, 1992)), and it is now extending that interpretation
to the specific provisions of subpart 2. In the General Preamble, USEPA
stated, in the context of a discussion of the requirements applicable
to the evaluation of requests to redesignate nonattainment areas to
attainment, that the ``requirements for RFP will not apply in
evaluating a request for redesignation to attainment since, at a
minimum, the air quality data for the area must show that the area has
already attained. Showing that the State will make RFP towards
attainment will, therefore, have no meaning at that point.'' (See 57 FR
at 13564) 2
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\2\ See also ``Procedures for Processing Requests to Redesignate
Areas to Attainment,'' from John Calcagni, Director, Air Quality
Management Division, to Regional Air Division Directors, September
4, 1992, at page 6 (stating that the ``requirements for reasonable
further progress * * * will not apply for redesignations because
they only have meaning for areas not attaining the standard'')
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
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Second, with respect to the attainment demonstration requirements
of Section 182(b)(1), an analogous rationale leads to the same result.
Section 182(b)(1) requires that the plan provide for ``such specific
annual reductions in emissions * * * as necessary to attain the
national primary ambient air quality standard by the attainment date
applicable under this Act.'' As with the RFP requirements, if an area
has in fact monitored attainment of the standard, USEPA believes there
is no need for an area to make a further submission containing
additional measures to achieve attainment. This is also consistent with
the interpretation of certain section 172(c) requirements provided by
USEPA in the General Preamble to Title I. As USEPA stated in the
Preamble, no other measures to provide for attainment would be needed
by areas seeking redesignation to attainment since ``attainment will
have been reached.'' (57 FR at 13564; see also September 1992 Calcagni
memorandum
[[Page 20459]]
at page 6). Upon attainment of the NAAQS, the focus of state planning
efforts shifts to the maintenance of the NAAQS and the development of a
maintenance plan under Section 175A.
Similar reasoning applies to other related provisions of subpart 2.
The first of these are the contingency measure requirements of section
172(c)(9) of the Act. The USEPA has previously interpreted the
contingency measure requirement of section 172(c)(9) as no longer being
applicable once an area has attained the standard since those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' (57 FR at 13564; see also September 1992
Calcagni memorandum at page 6).
The State must continue to operate an appropriate air quality
monitoring network, in accordance with 40 CFR part 58, to verify the
attainment status of the area. The air quality data relied upon to
determine that the area is attaining the ozone standard must be
consistent with 40 CFR part 58 requirements and other relevant USEPA
guidance and recorded in USEPA's--Aerometric Information Retrieval
System (AIRS).
The determinations made in this notice do not shield an area from
future USEPA action to require emissions reductions from sources in the
area where there is evidence, such as photochemical grid modeling,
showing that emissions from sources in the area contribute
significantly to nonattainment in, or interfere with maintenance by,
any other States with respect to the NAAQS (see section 110(a)(2)(D)).
The USEPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of
the Act to require such emission reductions if necessary and
appropriate to deal with transport situations.
Analysis of Air Quality Data
The USEPA has reviewed the ambient air monitoring data for ozone
(consistent with the requirements contained in 40 CFR part 58 and
recorded in AIRS) for the Cleveland-Akron-Lorain ozone nonattainment
area in Ohio from the 1992 through 1995 ozone seasons. The following
ozone exceedances were recorded for the period from 1993 to 1995 (and
the average number of expected exceedances for this three-year period
is also presented):
Cleveland-Akron-Lorain: Medina County, 6364 Deerview Lane (1994)--
0.127 parts per million (ppm); average expected exceedances: 0.3.
Cuyahoga County, 891 E. 152 St. (1993)--0.126 ppm, (1994) 0.127 ppm and
0.125 ppm; average expected exceedances: 1.0. Data for 1995 shows no
new exceedances of the ozone NAAQS were monitored in the Cleveland-
Akron-Lorain area.
On the basis of this review, USEPA determines that the area has
attained the ozone standard during the 1993-95 period, which is the
most recent three-year time period of air quality monitoring data, and
therefore are not required to submit a 15% emissions reduction plan,
attainment demonstration, and a section 172(c)(9) contingency measure
plan. See the June 29, 1995, proposed rulemaking published in the
Federal Register at 60 FR 31433.
Public Comment/USEPA Response
These are the comments and responses that relate to the
determination of attainment for the Cleveland-Akron-Lorain area.
Comments that were received in support of the determination are not
summarized below; only the adverse comments are summarized and
responses are provided to these comments. No further action will be
taken on the determination of attainment for the Dayton and Toledo
areas since those areas have already been redesignated to attainment.
In a later part of this rulemaking comments and responses are provided
on the ozone redesignation request for the CAL area. Because of the
potential for overlap of comments received on the issue of the
determination of attainment and the redesignation, USEPA hereby
incorporates by reference the responses contained in the section below
on redesignation to the extent that they bear on the issues involved in
the determination of attainment, and vice versa. To the extent that
comments can be construed to bear on both rulemaking actions, responses
should be construed to pertain to both.
(1) Comment: The determination action has been inappropriately
segregated from the section 110(a)(2)(D) petition submitted by the
State of New York which requested the Federal government to assess the
implementation plans of upwind states to determine their contribution
to nonattainment in the State of New York. Regional Oxidant Modeling
indicates that areas to the west of the State of New York, including
the State of Ohio, contribute to violations of the ozone NAAQS in the
northeast United States, including the State of New York. Therefore
these areas should continue to meet the statutory reasonable further
progress requirements set forth in the Clean Air Act, at least until
the State of New York's section 110(a)(2)(D) request has been acted on.
(1) Response: The issue of transported emissions is not relevant to
this rulemaking action. The purpose of the requirements of section
182(b)(1) concerning reasonable further progress and attainment
demonstration and the contingency measure requirements of section
172(c)(9) as they apply to CAL is not to address emissions from that
area that may cause or contribute to air quality problems in downwind
areas. The purpose of those requirements as they apply to CAL is to
achieve attainment of the standard in that area. The issue of
transported emissions is dealt with by other provisions of the Act,
provisions that are not the subject of this rulemaking action. USEPA
has authority, and the state has an obligation, under section
110(a)(2)(A) (in the case of intrastate areas) and section 110(a)(2)(D)
(in the case of interstate areas), to address transported emissions
from upwind areas that significantly contribute to air quality problems
in downwind areas. The determination being made in this rulemaking is
that, as CAL has attained the ozone standard, certain additional Act
requirements whose purpose is to achieve attainment in the area do not
apply to them. That determination does not mean that the area might not
have to achieve additional reductions pursuant to other provisions of
the Act if it is determined in the future that such reductions are
necessary to deal with transport from the CAL area to downwind areas.
Currently, the issue of transported ozone and ozone precursors is
being addressed by the Ozone Transport Assessment Group (OTAG) which is
composed of Industry, Environmental Groups, Federal Government, State
Governments (including the State of Ohio), and Local Governments from
the Midwest and Eastern Regions. OTAG is performing ozone modeling to
determine how ozone transport can be addressed on a regional basis.
After this assessment is completed, The United States Environmental
Protection Agency (USEPA) anticipates using its authority under
sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to require emissions
reductions where appropriate based on this assessment and any other
relevant information.
(2) Comment: The determination of attainment fails to meet the
purpose, intent and spirit of the Clean Air Act by not protecting and
enhancing the quality of the Nation's air resources so as to promote
the public health and welfare and the productive capacity of its
population. The ozone standard has been shown to be inadequate to
protect public health. The American Lung
[[Page 20460]]
Association has provided ample evidence and new studies continue to
confirm this. It is very clear to many people living here that the air
is polluted and adversely affecting people's health. Furthermore, no
one has demonstrated that the bad air and high pollution levels in
Ohio's nonattainment areas are not adversely affecting the health of
those downwind.
(2) Response: The determination of attainment is based on ozone
monitoring data collected in the Cleveland-Akron-Lorain area. These
data continue to show that the area has attained the standard. In a
separate part of this rulemaking the ozone redesignation request is
discussed. This request contains a maintenance plan which will provide
for continued maintenance of the standard into the future. The
maintenance plan is unaffected by the determination of attainment that
finds that the 15% plan, attainment demonstration, and section
172(c)(9) contingency measures are no longer required.
USEPA is also reviewing the current ozone standard to see whether
it should be revised in order to better protect the public health.
Until the current NAAQS is revised, the current NAAQS of .12 parts per
million is the appropriate standard against which to assess plans and
measure attainment.
(3) Comment: The piecemeal approach which USEPA is taking to ozone
attainment and redesignation is promoting backsliding and encouraging
doing the least possible to protect public health and actually clean up
the air. A holistic approach to solving environmental problems is
always needed. This is no exception. Reviewing emissions inventories in
one rulemaking, NOX in another, the SIP in another, Reasonable
Further Progress in another, transportation modeling in another, etc.
is a methodology which effectively puts blinders on and prevents
complete analysis of interdependence aspects. Furthermore this
piecemeal approach is an out-of-sequence, illogical process.
USEPA must first determine if attainment has been reached in
accordance with the Clean Air Act's redesignation criteria given in
section 107. Without ascertaining that attainment has actually been
reached it is premature to alleviate the requirements for further
controls or Reasonable Further Progress. It appears that USEPA is only
applying the first redesignation requirement that the area has attained
the NAAQS and ignoring the other requirements for redesignation and
proceeding to relax the standards.
(3) Response: Nothing requires that all of the SIP revisions
submitted by the State be reviewed together. The CAA has differing
submittal dates for the SIPs and requires USEPA to act on each within a
specific time period of its submittal. This would probably not allow
adequate time for USEPA to process all of the submittals at once, given
that some of the submittals were submitted years apart from each other.
Where possible USEPA has sought to consolidate responses to submittals
but the CAA is not always conducive to this approach. The determination
of attainment is not the same as a redesignation to attainment, and
therefore the requirements of section 107, which apply to
redesignations to attainment are not applicable. See also the response
to comments below. The determination of attainment is only based on the
area's ozone monitoring data. USEPA has decided to address the
determination of attainment and the State's ozone redesignation request
for Cleveland-Akron-Lorain together in this Federal Register action.
This rulemaking does not circumvent the redesignation requirements. See
the discussion in the redesignation rulemaking, below, and in USEPA's
Responses to Comments in its Determination of Attainment of Ozone
Standard for Salt Lake and Davis Counties, Utah 60 FR 36723 (July 18,
1995). USEPA in this portion of the rulemaking, its determination of
attainment, is simply making a factual determination that since CAL is
attaining the standard, certain provisions of the CAA, whose express
purpose is to achieve attainment of the standard, do not require SIP
revisions. In the redesignation portion of this rulemaking, USEPA
explains its basis for concluding that CAL has met the requirements of
section 107 for redesignation to attainment.
With respect to the determination of attainment, USEPA set forth in
the June 29, 1995 notices on CAL its basis for interpreting certain CAA
requirements as inapplicable to an area that is attaining the ozone
standard.
This interpretation is consistent with USEPA's General Preamble for
the Implementation of Title I of the Clean Air Act Amendments of 1990
(``General Preamble''), 57 FR 13,498 (April 16, 1992), which directly
addressed requirements for redesignations. Id. at 13,561-64. USEPA
interpreted the general reasonable further progress requirement and
contingency measures as not applying to redesignation requests because
an area must have attained the standard before it could be redesignated
to attainment, making reasonable further progress and contingency
measures, unnecessary.
USEPA's May 10 memorandum set forth USEPA's interpretation of the
requirements of CAA sections 172(c)(9) and 182(b)(1)(A), with respect
to ozone nonattainment areas that have achieved the ozone NAAQS. USEPA
explained that because the purpose of those requirements has already
been fulfilled for areas that have attained the standard, the
requirements do not apply to those areas for as long as they stay in
attainment. It further explained that this interpretation is consistent
with USEPA's interpretation of the general reasonable further progress
requirements and section 172(c)(9) contingency measure requirements
with respect to redesignation requests as set forth in its General
Preamble, and with related USEPA guidance on the procedures to be used
when USEPA is processing redesignation requests.
USEPA has concluded that Congress included the 15 percent plan as a
specification of ``reasonable further progress''. Section 182(b)(1) is
entitled ``Plan provisions for reasonable further progress.'' The
heading's reference to ``reasonable further progress'' indicates
Congress' overall intent in enacting the provision. The term
``reasonable further progress'' is defined as ``such annual incremental
reductions in emissions of the relevant air pollutant as are required
by this part or may reasonably be required by (USEPA) for the purpose
of ensuring attainment of the applicable (NAAQS) by the applicable
date.'' 42 U.S.C. section 7501(l). This definition applies for ``the
purposes of * * * part'' D of Title I of the CAA, which includes
section 182(b). Id. Thus, the term ``reasonable further progress''
requires only such reductions in emissions as are necessary to attain
the NAAQS by the attainment date and no more. 42 U.S.C. section
7501(l). Accordingly, USEPA has interpreted section 182(b)(1)(A)(I)
consistent with the statutory definition of ``reasonable further
progress'' and with section 182(b)(1)(A)(I)'s express purpose of
assuring progress to bring violating areas into attainment. If an area
has in fact attained the standard, the stated purpose of the RFP
requirement will have already been fulfilled and USEPA does not believe
that the area need submit revisions providing for the further emissions
reductions described in section 182(b)(1).
The legislative history expressly supports USEPA's interpretation
of section 182(b)(1)(A)(I). In describing the 15 percent plan, the
House Report stated:
[[Page 20461]]
The emissions reductions called for in this subsection * * *
provide a concrete translation of how much an area must do to
achieve ``reasonable further progress'' toward attainment of the
standards, as required in section 172 and defined in section 171.
Areas that fail, as determined by USEPA, to achieve reasonable
further progress are in violation of the Act.
H.R. Rep. no. 490, 101st Cong., 2d Sess., pt. 1 (1990) at 236. Thus,
Congress contemplated that the requirements of section 182(b)(1)(A)(I)
were simply a specification of the more general reasonable further
progress requirements of the Act, with the same goals and definition.
Moreover, USEPA's interpretation of the requirements of section
182(b)(1)(A)(I) is consistent with its interpretation of the general
reasonable further progress requirements of CAA section 172.
USEPA has also determined that section 172 (c)(9), 42 U.S.C.
section 7502(c)(9) does not require a contingency measures plan for an
area such as CAL, which has attained the standard. The contingency
measures plan is required for an area which ``fails to make reasonable
further progress, or to attain the (NAAQS) by the attainment date * *
*'' 42 U.S.C. section 7502(c)(9). If, as USEPA has determined with
respect to CAL, an area has already attained the standard, then by
definition such an area is not one to which contingency measures apply.
There simply is no failure to attain or make progress for which
additional measures need be contingent. However, as with section
182(b)(1)(A)(I), USEPA interprets section 172(c)(9)'s requirements to
be applicable to areas that lapse back into violation prior to
redesignation, and which therefore need additional progress toward
attainment. Moreover, USEPA's interpretation of 172(c)(9) is consistent
with its interpretation of these requirements in the context of
redesignation requests. 57 FR 13564. USEPA's interpretation also
vindicates the policy objective of reducing the burden on states and
sources of adopting and implementing additional control measures that
are not necessary to attain the standard.
(4) Comment: The number of ``close calls'' and the use of voluntary
measures to reduce ozone raises real questions about the overall air
quality. Modeling would answer some of these questions and give a truer
picture of what the air is really like. Some initial analysis of the
weather patterns in 1995 indicates that they may be similar to 1988, a
supposedly ``unusually hot, dry summer'' when numerous exceedances were
recorded. In fact, the weather in Ohio in 1988 or thus far in 1995 is
not all that unusual. Even higher temperature have been recorded. It
can be expected that there will be more exceedances, unless there are
reductions in ozone precursor emissions.
USEPA policy (September 4, 1992, procedures for processing requests
to redesignate areas to attainment, from John Calcagni) states that
data from the monitors be from areas of highest concentration and that
modeling may be necessary to determine the representativeness of the
monitor data.
(4) Response: While voluntary measures were used in Cleveland
during the summer of 1995 to involve the community in keeping their air
clean, the Ohio Environmental Protection Agency (OEPA) did not claim
that this measure was responsible for the Cleveland area attaining the
NAAQS. Ohio's request claimed that the improvement in air quality was
due to permanent and enforceable measures, namely the Federal Motor
Vehicle Emissions Control Program and the Federal fuel volatility
requirements that reduced the emissions from gasoline. In addition, the
basic automobile inspection and maintenance program, required as a part
of the carbon monoxide SIP, would also have provided volatile organic
compound (VOC), and oxide of nitrogen (NOx) emissions reductions in the
area, as a side benefit. These measures resulted in the area's VOC
emissions decreasing by about 14 percent from 1990 to 1994, enabling
the area to reach attainment of the ozone NAAQS.
USEPA policy on the determination of attainment is provided in a
May 10, 1995, memorandum from John S. Seitz, Director of the Office of
Air Quality Planning and Standards. This memorandum sets forth USEPA's
interpretation of certain requirements of subpart 2 of part D of title
I of the Clean Air Act as they relate to ozone nonattainment areas that
are meeting the ozone NAAQS. The USEPA believes it is reasonable to
interpret provisions regarding RFP and attainment demonstrations, along
with the related requirements, so as not to require SIP submissions if
an ozone nonattainment area 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). The USEPA has previously interpreted the
general provisions of subpart 1 of part D of title I (section 171 and
172) so as not to require the submissions of SIP revisions concerning
RFP, attainment demonstrations, or contingency measures, and USEPA
believes it is appropriate to interpret the ozone-specific provisions
of subpart 2 in the same manner. This is further discussed under
section I covering the background on the determination of attainment.
The determination of attainment is based only on ozone monitoring
data for the area. The data for at least the last four years show that
the area has achieved attainment. We believe that the monitoring data
is adequate and representative of the area and that modeling is not
necessary to show attainment. These data show that the area is in
attainment and the monitoring data for 1995 show that no exceedances
were monitored in the entire Cleveland-Akron-Lorain area. This shows
that the provisions related to submitting a SIP revision to bring an
area into attainment of the ozone NAAQS, such as the attainment
demonstration, RFP, and contingency measures requirements are not
necessary since the area is already in attainment of the ozone NAAQS.
The weather in 1995 was more conducive toward forming ozone in many
parts of the Country. Even though this was the case no exceedances were
monitored at any of the monitors in the CAL area showing that the area
has reduced its emissions to a level that has brought the CAL area into
attainment of the ozone NAAQS.
(5) Comment: The Southwestern Pennsylvania Growth Alliance (Growth
Alliance) is concerned that the redesignation of the Cleveland-Akron-
Lorain area could adversely affect both the economy and air quality in
southwestern Pennsylvania, and it feels that action on the applications
from these regions should be suspended until a more comprehensive
national solution to interstate transport of ozone and ozone precursors
is developed and implemented. The Growth Alliance believes that
Southwestern Pennsylvania is being unfairly disadvantaged compared to
neighboring states by the requirements created by the Clean Air Act, by
USEPA, and by the Northeast Ozone Transport Commission.
(5) Response: USEPA's proposed action to determine that the
Cleveland-Akron-Lorain area has reached attainment and that it is not
necessary for it to have an attainment demonstration, 15% rate of
reduction plan, and a contingency plan is different from redesignating
the Cleveland-Akron-Lorain area as an attainment area for ozone. In
order for USEPA to make a determination concerning the 15% plan and
other requirements, it is only necessary to show that the area has
attained the ozone standard through
[[Page 20462]]
monitoring data. In order to be redesignated from nonattainment to
attainment the area must meet the five redesignation requirements of
section 107 of the CAA. One of the five redesignation requirements is
that the area have met all of the SIP requirements applicable to the
area. A determination of attainment renders some of those requirements
as inapplicable, based on the area attaining the standard, but the area
would still have to meet the remaining applicable SIP requirements
before it could satisfy part of the requirements for redesignation. The
ozone redesignation request for Cleveland-Akron-Lorain is being
addressed in a separate part of this same Federal Register action. A
discussion of the comments and responses received on the redesignation
is given in that part of this action. In order for the CAL area to be
redesignated from nonattainment to attainment it would have to meet all
of the applicable redesignation requirements. If an area meets the
criteria for redesignation nothing in the CAA suggests that
redesignations should be delayed. Any issue regarding transport of
ozone and its precursors can and is expected to be dealt with through
the Ozone Transport and Assessment Group (OTAG) and USEPA's authority
under section 110 (a)(2)(A) and (a)(2)(D) of the Act. See also Response
to comment 2.
Determination Conclusion
The USEPA has determined that the Cleveland-Akron-Lorain (which
includes the Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain,
Medina, Portage and Summit) has attained the ozone standard and
continues to attain the standard at this time.
As a consequence of this determination that the Cleveland-Akron-
Lorain ozone nonattainment area has attained the ozone standard, the
requirements of section 182(b)(1) concerning the submission of the 15
percent plan and ozone attainment demonstration and the requirements of
section 172(c)(9) concerning contingency measures are not applicable to
the Cleveland-Akron-Lorain area. Additionally since this determination
is occurring simultaneously with the ozone redesignation to attainment,
the determination will not be revoked in the event of a violation.
Rather, in the event of a violation, the contingency measures in the
approved maintenance plan would be triggered by a violation.
Ozone Redesignation Request
I. Background
On November 14, 1994, the OEPA submitted to the USEPA a request for
redesignation to attainment for ozone for the CAL area of Lorain,
Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit and Portage.
Additional information on the State public hearing and response to
comments was submitted to USEPA on February 22, 1995. The redesignation
requests were supported by technical information demonstrating that the
requirements of section 107(d)(3)(E) of the Clean Air Act Amendments
(CAAA) were met. On June 15, 1995, a notice was published in the
Federal Register (60 FR 31433) which proposed approval of the
redesignation requests to attainment for ozone and the maintenance
plans for the Ohio CAL moderate ozone nonattainment area counties.
II. Summary of Proposed Rulemaking
The proposed rulemaking detailed how the State submittal fulfilled
the redesignation requirements of the CAAA. Specifically, section
107(d)(3)(E) provides for redesignation if: (i) The Administrator
determines that the area has attained the National Ambient Air Quality
Standards (NAAQS); (ii) The Administrator has fully approved the
applicable implementation plan for the area under section 110(k); (iii)
The Administrator determines that the improvement in air quality is due
to permanent and enforceable reductions in emissions resulting from
implementation of the applicable implementation plan and applicable
Federal air pollutant control regulations and other permanent and
enforceable reductions; (iv) The Administrator has fully approved a
maintenance plan for the area as meeting the requirements of section
175(A); and (v) the State containing such area has met all requirements
applicable to the area under section 110 and Part D.
Included in the State submittal was a maintenance plan. A component
of the maintenance plan is the maintenance demonstration which shows
that the level of emissions projected out 10 years will not exceed the
attainment year inventory. The proposed rulemaking presented summary
tables of Volatile Organic Compounds (VOC) emissions, and NOX
emissions projections for the CAL area counties. The OEPA has revised
the base year and projected year inventories numbers in response to
comments made by Region 5. The VOC and NOX point source emissions
projections for the year 2000 were estimated by USEPA based on an
average growth rate for the 1996 to 2006 period. These estimates show
that the total emissions in the area are expected to remain below the
attainment level of emissions. In addition, the NOX point source
emission projections do not account for emission reductions due to the
Title IV Acid Rain requirements of the CAA, which would further reduce
NOX emissions in the area. The changes did not affect the State's
ability to demonstrate maintenance. The revised tables are presented
below.
Summary of VOC Emissions
[Tons/day]
----------------------------------------------------------------------------------------------------------------
1996 2000 2006
1990 base 1993 attain projected projected projected
----------------------------------------------------------------------------------------------------------------
Point.......................................... 82.22 75.75 78.55 82.44 88.63
Area........................................... 201.05 201.37 201.45 201.63 200.86
Mobile......................................... 248.4 181.4 131.2 78.4 48.8
Totals......................................... 531.7 458.5 411.2 362.5 338.3
----------------------------------------------------------------------------------------------------------------
Summary of NOX Emissions
[Tons/day]
----------------------------------------------------------------------------------------------------------------
1996 2000 2006
1990 base 1993 attain projected projected projected
----------------------------------------------------------------------------------------------------------------
Point.......................................... 245.59 254.61 263.91 277.05 298.00
[[Page 20463]]
Area........................................... 80.46 80.56 80.51 80.61 80.18
Mobile......................................... 176.6 159.9 142.2 95.5 75.4
Totals......................................... 502.6 495.1 486.6 453.2 453.6
----------------------------------------------------------------------------------------------------------------
Additionally, the VOC and NOX emissions projected for the year
2006 in the above tables are considered emission budgets for purposes
of transportation conformity.
The proposal stated that final approval of the CAL moderate
nonattainment area counties was contingent upon final approval of VOC
reasonably available control technology (RACT) rules, the 1990 Base-
year inventory, the section 182(f) NOX waiver request, the
182(b)(1) reasonable further progress plan (15% plan), the 182(b)(4)
inspection and maintenance plan, the attainment demonstration, and the
172(c)(9) contingency measures. All of these requirements have either
been met through full approval of state submittals or have been
determined in this rulemaking to be no longer applicable. The final
approval of most of the VOC RACT rules were published on March 23, 1995
(60 FR 15235), and became effective on May 22, 1995. Final approval of
RACT rules for major stationary sources not specifically covered by a
USEPA Control Technique Guideline for RACT became effective on October
31, 1995, in a letter notice action from Regional Administrator Adamkus
to the individual companies. A formal announcement of this was made in
the Federal Register. The Base-year inventories were approved on
December 7, 1995 (60 FR 62737) and effective on January 8, 1996. The
NOX waiver request was approved on July 13, 1995 (60 FR 36051) and
became effective on August 14, 1995. The I/M plan was approved on April
4, 1995 (60 FR 16989) and became effective on June 3, 1995.
A May 10, 1995, memorandum from John S. Seitz, Director, Office of
Air Quality Planning and Standards, entitled ``Reasonable Further
Progress, Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard'', states that upon a determination made by USEPA that an area
has attained the NAAQS for ozone, that area need not submit SIP
revisions concerning reasonable further progress (15%) plan, 182(b)(1)
attainment demonstrations, and 172(c)(9) contingency measures for as
long as the area continues to meet the standard. Such a determination
is made for the CAL area in a separate part of this rulemaking.
Consequently, final approval of the redesignation request for the CAL
counties of Lorain, Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit,
and Portage is no longer dependent upon approval of the 15% plan,
attainment demonstration, or section 172(c)(9) contingency measures.
Public Comment/USEPA Response
In response to the request for written comments on the proposed
rulemaking, USEPA received about 50 comment letters. Letters were
received from concerned citizens, environmental groups, and industry.
Over 30 of these letters were adverse comments on the propose
rulemaking. The remaining comments were in support of the proposed
rule. The following summarizes the adverse comments received and
responds to them. The comments in support of the rule are not
summarized below, but are available for public review in USEPA's
docket. In an earlier part of this rulemaking comments and responses
are provided on the determination of attainment for the CAL area. To
the extent that any comments under the determination section also apply
to the ozone redesignation action for the CAL area they are also
incorporated into the comments/responses under this section covering
the ozone redesignation action for the CAL area.
(1) Comment: Many of the commenters are opposed to the
redesignation of the Cleveland-Akron-Lorain area to attainment on the
grounds that they believe that more stringent emission control
requirements and sanctions are needed to avoid unsafe pollution levels.
These commenters believe that the benefits of health and environmental
improvements to be achieved through stricter standards outweigh the
increased costs of emission controls on industry and on the public.
Several commenters state that the ozone standard itself should be
tightened, expressing concerns over long term health impacts, impacts
on children and the elderly, and impacts on smog levels still visible
in the area.
(1) Response: The NAAQS were established to protect the public's
health and welfare with an adequate margin of safety. Although
additional reductions in VOCs may provide further health improvements,
it is noted that the issue here is attainment of the ozone standard.
The State of Ohio has met the requirements for the redesignation of the
Cleveland-Akron-Lorain area to attainment of the ozone standard,
including attainment of the ozone NAAQS. It is not clear that further
reduction in ozone levels will provide significant health improvements.
With regard to a revised ozone standard, it should be noted that
the USEPA along with States and science advisors, is the process of
reconsidering the ozone standard. If the ozone standard is revised a
number of ozone attainment and nonattainment areas may be affected. A
redesignation of Cleveland-Akron-Lorain to attainment at this time will
not prevent this area from being redesignated to nonattainment if it is
subsequently found to be in violation of a revised ozone standard.
Until the NAAQS is revised, however, the 0.12 ppm NAAQS for ozone is
the only appropriate standard against which to judge attainment.
(2) Comment: People in the Cleveland-Akron-Lorain area suffer from
sinus problems, and increased occurrence of asthma and other life-
threatening respiratory illnesses that are directly attributable to air
pollution. The air is often oppressive and really unbreathable,
especially in the kind of hot, humid weather that the area has
experienced this summer. Infants and the elderly are affected by the
higher tolerance of ozone levels now in force. We see people who become
ill from polluted air whenever the ozone level rises. The current ozone
standard is not health based. We want to breathe cleaner air. We are
opposed to the redesignation of Cleveland-Akron-Lorain because of the
asthma epidemic and increasing number of asthma deaths. The
pervasiveness of the health threat posed far outweighs the inhibition
of industrial expansion and limits on smokestack pollution.
[[Page 20464]]
(2) Response: The current ozone standard is a health based
standard. It was recently reviewed and reaffirmed, see 58 FR 13008
(March 9, 1995). However, the ozone NAAQS is currently being reviewed
to see if the standard should be changed and what the new standard
would be, see 59 FR 5164 (February 3, 1994). A staff report was
recently released that discusses this review of the ozone NAAQS. But
unless and until the ozone NAAQS is changed - it remains the standard
to use for comparison against ozone monitoring data in the area. Those
data indicates attainment of the ozone standard.
(3) Comment: In Cleveland-Akron-Lorain the air smells. There are
also foul odors coming from factories during the early morning hours
that are waking us up and making us nauseated.
(3) Response: At the Federal level the Clean Air Act (CAA) does not
provide specific requirements for companies to control odors. Odor is
not an issue pertinent to the ozone standard or the attainment of that
standard. We have, however, made our enforcement group aware of these
complaints to see what can be done. Further, existing facilities must
continue to operate existing air pollution control equipment in
accordance with applicable rules, regulations and permits, and sources
that are problematic in terms of posing a nuisance to area residents
may be referred to the State and local environmental enforcement staff
for investigation.
(4) Comment: Several commenters expressed concern that trucks and
buses pollute the air by blowing out black smoke and that cleaning up
emissions from cars is not sufficient.
(4) Response: The USEPA agrees that cleaning up emissions from cars
is not enough. Trucks and buses also produce significant pollution. The
USEPA has set stringent standards for new heavy duty diesel engines
beginning with the 1988 model year, with additional improvements to be
made with the 1991 and 1994 model year engines. The black smoke from
diesel trucks and buses is particulate matter which is a visible air
pollutant. Trucks and buses also contribute to ozone air pollution
because they produce hydrocarbons and NOX. The NOX emission
standard has been tightened from 10.7 grams per brake horsepower per
hour (g/bhp-hr) in 1985 to 6.0 in 1988 and 5.0 in 1991. The hydrocarbon
emission rate for diesel engines is set at 1.3 g/bhp-hr. Particulate
emission standards have been tightened from 0.60 g/bhp-hr in 1988 to
0.10 g/bhp-hr in 1994 for all new heavy duty engines. As the older
trucks and buses are replaced by the newer, cleaner engines the
pollution from these vehicles will be significantly reduced.
In October 1993, the USEPA required the use of a cleaner diesel
fuel throughout the country. Diesel fuel used in on-highway compression
ignition engines contains less sulphur than earlier fuels. Lower
sulphur reduces the amount of indirect particulate and improves the
operation of new diesel engines using particulate trap oxidizers to
control direct particulate emissions. It is estimated that the use of
low-sulphur diesel fuel reduces direct and indirect particulate by
approximately 28 percent from the baseline fuel. Air quality impacts of
fuel controls are projected to reduce particulate by 2.3 to 8.3
micrograms per cubic meter and sulphur dioxide by 7 to 16 micrograms
per cubic meter in a metropolitan area the size of Cleveland-Akron-
Lorain.
The State of Ohio will implement its inspection and maintenance (I/
M) program beginning in 1996. The authorizing State legislation for the
I/M program requires the testing of diesel powered vehicles up to
10,000 pounds for opacity (smoke). Buses are also required to meet
emission standards for smoke, hydrocarbons and carbon monoxide.
The reductions in hydrocarbon, and NOX emissions from trucks
and buses will contribute to maintaining the ozone standard and
protecting the public's health. Particulate issues are separate from
ozone issues and are not relevant for consideration here. While the
standards for particulate emissions will greatly reduce the amount of
smoke emitted from trucks and busses, it is not expected to have a
significant effect on ozone levels and as a result is not pertinent to
an ozone redesignation request.
(5) Comment: Several commenters have expressed confusion over the
relationship between the proposed redesignation and the protection of
the ``ozone layer.'' One commenter in particular requests that the
USEPA explain the ``whole ozone picture.''
(5) Response: At the very outset of this response, it must be noted
that ``ozone'' referred to in the proposed redesignation is chemically
identical to the ``ozone'' referred to in the term ``ozone layer.'' In
both situations ozone refers to a gas composed of molecules with three
oxygen atoms each.
In the case of the ``ozone layer'', one is referring to the layer
of the Earth's stratosphere where ozone is found in relatively high
concentrations. Ozone in this layer is formed through the reaction of
oxygen molecules (two oxygen atoms each) and high energy
electromagnetic radiation from the Sun. Oxygen atoms are freed when
oxygen molecules are impacted by the high energy radiation. Some of
these freed oxygen atoms combine with oxygen molecules to form ozone
molecules. Within this layer of the atmosphere, ozone is a significant
absorber of high energy ultraviolet radiation from the Sun. If this
ultraviolet radiation reached the surface of the earth in sufficient
intensity, significant, undesirable biological damage could result to
surface organisms. Concerns over potential damage to the protective
ozone layer has led to efforts to reduce the emissions of gasses which
are believed to directly or indirectly eliminate ozone molecules.
In the case of the proposed of Cleveland-Akron-Lorain, one is
dealing with ozone found in the lowest levels of the atmosphere. At
this level of the atmosphere, high ozone levels are not typically found
(natural processes can lead to peak ozone levels of 0.04 to 0.06 parts
per million, well below the ozone standard of 0.12 parts per million).
Man-made (anthropogenic) emissions of volatile organic compounds,
oxides of nitrogen, and other gases, in the presence of sunlight and
relatively warm temperatures, can lead to ozone formation of
considerably higher concentrations. This chemical formation process
involves hundreds of chemical reactions and differs significantly from
the process that forms ozone in the stratosphere. There is no
significant exchange of ozone between the lower atmosphere, where high
ozone levels are undesirable, and the stratosphere, where high ozone
levels are desirable for the protection of life on earth.
Ozone concentrations in excess of the ozone standard are shown,
based on numerous health studies and correlation of health data and
monitored ozone concentrations, to be damaging to human health,
particularly causing problems with the human respiratory system. For
this reason, ozone has been listed as a primary pollutant with a
defined health-based standard.
(6) Comment: The air quality in Cleveland-Akron-Lorain is lousy and
there has been no improvement in the quality of our air. If anything, I
would say things are worse.
(6) Response: With respect to ozone levels in the CAL, the air
quality has improved significantly since the late 1980's. During 1988
there were a number of monitored readings above .150 parts per million
in the area. During the last four years the highest concentration
monitored was .127 ppm. CAL achieved attainment of the ozone standard
at the end of 1994, by monitoring attainment of the ozone NAAQS during
the three previous years
[[Page 20465]]
(which are 1992, 1993, and 1994). The area continued to attain the
standard since that time.
Section 107(d)(3)(E)(iii) requires that, for the USEPA to approve a
redesignation, it must determine that the improvement in air quality is
due to permanent and enforceable reductions in emissions. The September
Calcagni memorandum, at page 4, clarifies this requirement by stating
that ``[a]ttainment resulting from temporary reductions in emission
rates (e.g., reduced production or shutdown due to temporary adverse
economic conditions) or unusually favorable meteorology would not
qualify as an air quality improvement due to permanent and enforceable
emission reductions.'' As discussed in the June 15, 1995 Federal
Register proposed rulemaking, the State of Ohio demonstrated that
permanent and enforceable emission reductions are responsible for the
recent improvement in air quality. This demonstration was accomplished
through an estimate of the reductions (from 1990 to 1993) of VOC
achieved through Federal measures such as the Federal Motor Vehicle
Emissions Control Program (FMVECP) and fuel volatility rules
implemented from 1990-1993, as suggested by the September Calcagni
memorandum.
Volatile Organic Compound (VOC) emissions are one of the precursors
that help to form ozone. The total emission reductions achieved from
1990 to 1993 were 65 tons of VOC per day. This is a 14 percent
reduction in VOCs, which corresponds to the drop in ozone
concentrations in the area. These emission reductions were primarily
the result of the FMVECP, Automobile Inspection and Maintenance
program, and Gasoline Reid Vapor Pressure (RVP) reductions from 10.5
pounds per square inch (psi) in 1989, to 9.0 psi in 1992. The VOC
emissions are expected to continue to decrease in the future due to the
Federal Motor Vehicle Emissions Control Program, Stage II vapor
recovery program, and the Enhanced Automobile Inspection and
Maintenance Program. The NOX emissions are also expected to
decrease in the future due to the Federal Motor Vehicle Emissions
Control Program and the Enhanced Automobile Inspection and Maintenance
Program.
(7) Comment: I am sure you are being bombarded with requests to
change the designation to attainment, on the grounds that the region
will be hurt economically if this is not done. To me, such arguments
ignore two fundamental points. First, there is not evidence that
stricter environmental regulations hurt the economy. A clean
environment does not mean less jobs, it can mean more jobs. In fact,
there is evidence that indicates the opposite. Second, even if this is
true, we would be selling our health, and the health of our world and
our children, for economic benefit. This does not seem a good trade.
There is entirely too much emphasis on business economic considerations
over health considerations. The cost to industry may be high, but what
about the cost to pay for increased health problems? Air pollution
results in hundreds of thousands of dollars worth of asthma illnesses
and deaths each week. This should be spent on pollution controls
instead.
It would be reprehensible if the agency charged with the protection
of health and the environment capitulated to vested, self-serving
interests that place the almighty dollar ahead of human health and
welfare. The redesignation request should not be approved.
(7) Response: The approval of the ozone redesignation request for
Cleveland-Akron-Lorain is based on the area meeting the five
requirements of section 107 of the CAA. It is not based on economic
grounds. The first of the five requirements of section 107 is that the
area has attained the National Ambient Air Quality Standard for ozone,
which it has. The NAAQS for ozone is set at a level designed to protect
the public's health and monitoring data show that the area is meeting
the standard.
(8) Comment: One commenter, although not expressing opposition to
the proposed redesignation, does express opposition to the approach
used in the Cleveland-Akron-Lorain area of trying to get the public to
reduce emissions only during critical high ozone potential periods. The
commenter favors a permanent curtailment of emissions so that people
with related health risks, such as asthma, will not have to seek the
shelter of air-conditioned places during such periods.
(8) Response: It is agreed that, where possible, permanent emission
controls should be implemented to minimize ozone levels and to attain
the ozone standard. It should be recognized that many permanent
emission controls, such as reasonably available control technology,
transportation control measures, and vehicle inspection/maintenance,
have been implemented in the Cleveland-Akron-Lorain area. The
maintenance plan takes into account that these emission controls will
be maintained despite the redesignation of the area as an area in
attainment of the ozone standard. The permanent and enforceable
emissions reductions are discussed under comment number six, and in
comment 4 in the determination of attainment section.
(9) Comment: A number of commenters believed the air monitoring in
the area was inadequate. Several concerns were noted: Commenters stated
that there is presently insufficient monitoring both in terms of what
is monitored and the number of monitoring stations (specifically, a
lack of ozone monitoring in Geauga County was cited by several
commenters).
(9) Response: The requirements for ambient air quality monitoring
are detailed in 40 CFR part 58. The federal requirements include: The
use of approved air monitoring equipment; quality assurance of
monitoring data; appropriate network design; operating schedule; and
siting of individual monitors. In determining attainment or
nonattainment status of an area for the NAAQS for ozone, only air
monitors sampling for ozone are relevant. Monitoring for precursors of
ozone (such as VOCS and NOX) can be beneficial in
understanding ozone formation. For determining the air quality
concentrations of ozone in an area and determining attainment of the
ozone standard, ambient ozone monitors are considered.
The Cleveland-Akron-Lorain ozone monitoring network consists of ten
ambient ozone monitors: three in Cuyahoga County, two in Lake County,
and one each in Ashtabula, Lorain, Medina, Portage and Summit Counties.
The monitoring network is reviewed by the USEPA. The individual
monitoring sites meet the federal monitoring requirements. The
commenters are correct in noting that Geauga County is downwind of the
urban area and in a location that would be expected to receive high
ozone concentrations. However, the USEPA believes that decisions on the
air quality can be made with the current network because the monitors
cover an adequate geographic area to be representative of the
nonattainment area. Ozone monitors are located in every county that is
contiguous to Geauga County. All of these monitors are in attainment of
the ozone NAAQS, including Lake County which is also downwind of the
main urban area and would be expected to have similar air quality to
Geauga County. Based on this USEPA believes that Geauga County is also
in attainment of the ozone NAAQS.
(10) Comment: One commenter believed that the original readings
that brought about the ``bad rating'' were taken in an industrial area
surrounded by freeways inundated with Cleveland Browns fans. The
commenter believed
[[Page 20466]]
the monitoring readings to be unrepresentative.
(10) Response: The highest ozone readings are not typically found
in industrial areas or near freeways. Industries and traffic produce
hydrocarbons (also called volatile organic compounds) and NOX
pollution that react in the presence of sunlight to form ozone. This
reaction takes place over a period of several hours and thus the
highest ozone concentrations are typically found 20 to 40 miles in the
downwind direction. The USEPA considers all valid, quality assured
monitoring data in the area in assessing the air quality. The moderate
ozone nonattainment designation was based on 3 years of ozone
monitoring data (1987-1989) and was based on the fourth highest reading
(.157 the design value) at the monitoring site in Akron, Ohio. Other
ozone monitoring sites in the area also had ozone concentrations in the
range of a moderate classification. For example, the site at Jefferson
Elementary School in Eastlake, Ohio had a design value of .152 for the
1987-1989 time period. The ozone monitoring data now shows an
improvement in air quality that demonstrates attainment of the health
based ozone standard. All air monitoring data is available to the
public from the national USEPA Aerometric Information and Retrieval
System (AIRS) data bank.
(11) Comment: The fact that this region did not adopt reformulated,
less ozone-producing gasoline with fewer VOC's for summertime use
clearly demonstrates the lack of commitment to clean air.
(11) Response: While the Cleveland-Akron-Lorain area was not
required to adopted reformulated gasoline in order to be redesignated,
they did choose an Enhanced Automobile Inspection and Maintenance
program (I/M) as a maintenance measure to be implemented in the area.
This program was chosen as the most cost effective program that the
area could use for maintaining the standard while still providing room
for growth in the area.
(12) Comment: Several commenters expressed dissatisfaction with the
inspection and maintenance program for automobiles. Some were concerned
about gaps in the I/M program that reduced the effectiveness. One
commenter suggested other pollution reduction measures. A commenter
believed that the vehicle inspection and maintenance program was not
effective. The commenter believed that the I/M funds would be better
spent on enforcing the speed limit, getting rid of high polluting
vehicles, doing more on ``Ozone Action Days'' or making these
mandatory, and giving incentives for sharing rides. One commenter was
against the more stringent I/M program.
(12) Response: The I/M program for automobiles is a very cost-
effective program for reducing pollution. Studies show that a small
percentage of vehicles are producing a large portion of the pollution
in a metropolitan area. Automobiles that are not well-maintained or
that have pollution control equipment that has been disabled emit air
pollution that can increase ozone concentrations. The I/M program will
identify these automobiles and require repairs. Compared to other forms
of pollution control, the I/M program is a low-cost alternative. The
enhanced I/M program is estimated to cost between $500 to $900 dollars
per ton of VOC pollution reduced. This compares to a cost of
approximately $5,000 per ton for a basic program, $5,000 to $10,000
dollars per ton of VOC reduced for additional stationary source
controls beyond the current RACT required in the Cleveland-Akron-Lorain
area. The USEPA agrees that an effective I/M program is important. The
enhanced I/M program adopted by Ohio and which began in January 1996,
is the best and most cost effective testing program recommended by the
USEPA.
An additional feature of the State's enhanced I/M program, designed
to improve repair-effectiveness, is the requirement that automobile
technicians become certified to repair vehicles which fail the test.
The auto technician training program requires technicians to undergo a
training program to ensure they are able to perform repairs on current
new-technology vehicles and vehicles of the future. Technicians and
repair facilities will be graded on the effectiveness of repairs and
this information will be available to the public in order to make
informed decisions on where to take their vehicle for repairs. This
technician training and certification program began implementation in
October 1995, and is being supervised by the OEPA.
(13) Comment: A commenter expresses the concern that control of
emissions from aircraft as they travel over the area (and over the
United States in general) have not been given enough consideration. The
commenter believes aircraft emissions must be considered along with
emissions from industries and automobiles in the control of air
pollution.
(13) Response: It should be noted that States, under the
requirements of section 182(a)(1) of the Clean Air Act, have included
aircraft emissions in a base year emissions inventory for each ozone
nonattainment area. These aircraft emissions were projected to the 10-
year maintenance period in Ohio's maintenance plan for the Cleveland-
Akron-Lorain area, and were shown, along with emissions from other
sources, to not cause a projected violation of the ozone standard.
(14) Comment: A number of commenters were concerned that the
redesignation would affect transportation choices and transportation
planning and would contribute to more pollution. Concerns were
expressed about: The need for more bike paths, the need for improved
public transit, the need to discourage driving. Specific concern was
expressed about express lanes on I-271 which would impact the
environment. Another commenter had concerns about a subway being
dropped from the transportation planning, a lack of bicycle facilities,
more interchanges and freeways and new lane additions. There was
concern about a tollway from Toledo to Portsmouth instead of light rail
that would be upwind of the populated current nonattainment areas and
would add pollution to the areas. The commenter wanted pollution
prevention through better transportation choices.
(14) Response: The redesignation to attainment does not negate the
need for the area to make smart transportation choices. The
transportation conformity requirements still apply to the area as a
maintenance area. The area will need to demonstrate that emissions are
not exceeding the mobile source emission budget in the maintenance
plan. The Northeast Ohio Area wide Coordinating Agency (NOACA) is the
local metropolitan planning organization for the Cleveland-Akron-Lorain
area and performs the conformity analysis on the transportation plan.
Conformity to the emission budget is designed to prevent the area from
increasing mobile source emissions to the point where the air quality
standards are exceeded. Conformity will also provide assurance that a
project will not be done if it would cause or contribute to a violation
of the ozone NAAQS in the CAL area.
The commenters are correct in noting that transportation measures
such as improvements in bicycle paths and facilities and improved
public transit will contribute to better air quality by reducing the
number of automobiles and the number of vehicle miles of travel. The
commenters are also correct in their concerns about increasing freeway
capacity and tollways, as these types of projects will encourage
additional vehicular traffic. The USEPA believes that the conformity
requirements will allow the area to make local decisions
[[Page 20467]]
on transportation planning while assuring that mobile source emissions
will not increase. Increases to the mobile source budget are only
allowed if there is an excess in the total projected emissions for the
area.
Projects such as tollways that are built in the maintenance area
would also be subject to conformity. Tollways that are in attainment
areas are not currently required to meet any conformity tests. It is
possible that projects of this type could affect air quality downwind;
however, the USEPA believes that the cleaner vehicle standards will
contribute to preventing degradation of the air. See also the response
to comment 18.
(15) Comment: Over Lake Erie there is a gray and yellow mass of
pollution. There is also a trail of smoke that rises from the smoke
stacks of the East Lake Electric Power plant, and the trucks and buses
are also emitting smoke. When I am at a high point on a hill looking
down at downtown Cleveland, I can barely see the buildings. It's as if
they are behind a cloud of dirt, smoke, and other pollution. We need to
change this.
(15) Response: USEPA has a variety of programs addressing the
commenter's concerns. The ``trail of smoke'' from the East Lake power
plant is particulate matter, which is regulated both by limits on the
mass of particulate matter and by limits on the opacity of the plume.
Smoke from trucks and buses is being limited by new emissions standards
that have been made achievable by new limitations on the sulfur content
of diesel fuel. USEPA is updating its visibility regulations to reduce
the impairment of visibility due to air pollution. Nevertheless, USEPA
evaluates attainment of the air quality standards based on quantitative
measurements of air pollutant concentration. Since these measurements
indicate that the ozone standard is being attained, USEPA must conclude
that this criterion for redesignation is satisfied.
(16) Comment: Several commenters are opposed to the redesignation
because they believe it will lead to less USEPA oversight of existing
emission control regulations and, therefore, to increased air
pollution.
(16) Response: All volatile organic compound emission control
regulations in place at the time of the redesignation of the Cleveland-
Akron-Lorain area will remain in place unless it is ultimately shown
through photochemical dispersion modeling that such control measures
are not necessary for continued attainment of the ozone standard. These
regulations will continue to be enforced by the State and will remain
federally enforceable.
(17) Comment: One commenter asserted that section 107(d)(e)(E)(v)
requires that a state meet all applicable requirements under section
110 and Part D. While claiming that Cleveland satisfies all 172(c)
requirements, USEPA acknowledges that some components have not yet
completed regulatory review. 60 FR 31437.
(17) Response: All applicable components, including those were
referred to in the proposal as pending regulatory review, have now
completed regulatory review. The Clean Air Act requires that the
Cleveland-Akron-Lorain area meet all applicable requirements before the
area is redesignated. USEPA approved the 1990 base year emissions
inventory in a final rulemaking published on December 7, 1995 (60 FR
62737). The remaining VOC RACT rules for the area were approved in
letter notice rulemakings dated October 31, 1995 and announced in the
Federal Register. In a separate part of this final rulemaking USEPA
determined that the 15% plan and contingency measures requirements are
no longer applicable to the Cleveland-Akron-Lorain area. USEPA's
rational for this action is contained in the rulemakings dated August
25, 1995 (60 FR 44277), June 29, 1995 (60 FR 33742, and 60 FR 33781),
and this final rulemaking. As a result of these actions the Cleveland-
Akron-Lorain area has met all of the fully approved SIP requirements.
These requirements were met before USEPA published this final
rulemaking taking action on the redesignation requests.
In response to the comment on the protection of the public health.
The public's health is protected as evidenced by the monitoring data
collected in the area. The data show that the air quality levels are
meeting the NAAQS for ozone. These standards were set to protect the
public health and welfare.
(18) Comment: By this proposed approval, USEPA claims the
redesignation request relieves Ohio from submitting SIP revisions
providing transportation and general conformity criteria guidance.
(18) Response: USEPA in this notice does not relieve Ohio from
conformity requirements. Rather, USEPA has determined that those
requirements will continue to apply after the area is redesignated, and
therefore need not be fulfilled as a condition of redesignation.
Section 176(c) of the Act requires States to revise their SIPs to
establish criteria and procedures to ensure that Federal actions,
before they are taken, conform to the air quality planning goals in the
applicable SIP. The requirement to determine conformity applies to
transportation plans, programs and projects developed, funded or
approved under Title 23 U.S.C. or the Federal Transit Act
(``transportation conformity''), as well as to all other Federal
actions (``general conformity''). Section 176 further provides that the
conformity revisions to be submitted by the States must be consistent
with Federal conformity regulations that the Act required the USEPA to
promulgate. Congress provided for the State revisions to be submitted
one year after the date of promulgation of final USEPA conformity
regulations.
The USEPA promulgated final transportation conformity regulations
on November 24, 1993 (58 FR 62188), and general conformity regulations
on November 30, 1993 (58 FR 63214). These conformity rules require that
States adopt both transportation and general conformity provisions in
the SIP for areas designated nonattainment or subject to a maintenance
plan approved under section 175A of the Act. Pursuant to 40 CFR 51.396
of the transportation conformity rule and 40 CFR 51.851 of the general
conformity rule, the State of Ohio is required to submit a SIP revision
containing transportation conformity criteria and procedures consistent
with those established in the Federal rule by November 25, 1994, and
November 30, 1994, respectively. Ohio submitted transportation and
general conformity SIP revisions on August 17, 1995. The USEPA has not
yet approved the transportation conformity rules as part of the SIP.
Final rulemaking on the general conformity rules is expected soon.
The USEPA believes it is reasonable to interpret the conformity
requirements as not being applicable requirements for purposes of
evaluating the redesignation request under section 107(d). The
rationale for this is based on a combination of two factors. First, the
requirement to submit SIP revisions to comply with the conformity
provisions of the Act continue to apply to areas after redesignation to
attainment, since such areas would be subject to a section 175A
maintenance plan. Therefore, the State remains obligated to adopt the
transportation and general conformity rules even after redesignation
and would risk sanctions for failure to do so. While redesignation of
an area to attainment enables the area to avoid further compliance with
most requirements of section 110 and part D, since those requirements
are linked to the nonattainment status of an area, the conformity
requirements apply to both
[[Page 20468]]
nonattainment and maintenance areas. Second, USEPA's federal conformity
rules require the performance of conformity analyses in the absence of
state-adopted rules. Therefore, a delay in adopting State rules does
not relieve an area from the obligation to implement conformity
requirements.
Because areas are subject to the conformity requirements regardless
of whether they are redesignated to attainment and must implement
conformity under Federal rules if State rules are not yet adopted, the
USEPA believes it is reasonable to view these requirements as not being
applicable requirements for purposes of evaluating a redesignation
request.
For the reasons just discussed, the USEPA believes that the ozone
redesignation request for the CAL area may be approved notwithstanding
the lack of fully approved State transportation and general conformity
rules. This policy was also exercised in the Tampa, Florida ozone
redesignation finalized on December 7, 1995 (60 FR 62748).
(19) Comments: A commenter argued that the submission is defective
under section 107(d)(3) because of the absence of a complete and fully
approved implementation plan. The commenter asserted that USEPA cannot
excuse Ohio's failure to submit required SIP revisions coming due after
the November 15, 1994 filing of the redesignation request. The
commenter complained that USEPA in its proposal was illegally
attempting to rectify gaps by waiving applicability of necessary SIP
requirements, including the requirements of 15 percent RFP, attainment
demonstration, and contingency measures. Under section
107(d)(3)(E)(ii), a nonattainment area may be redesignated only after
USEPA has fully approved the applicable implementation plan for the
area under section 110(k).
Under the APA, the Administrator may not suspend applicability of
SIP requirements except by redesignation pursuant to 107(d)(e)(E). This
can be done only if USEPA has fully approved the SIP under 110(k). See
107(d)(3)(E)(iii). Congress allotted USEPA no discretion in determining
what constitutes the applicable plan, but directed it to look at
section 110(k), which does not give the Administrator authority to
decide what constitutes the ``applicable requirements of this Act.''
Under section 107(d), the Administrator can only grant a request to
redesignate to attainment if the state has met all applicable
requirements under section 110 and Part D, and after the state has
adopted a complete implementation plan.
(19) Response: USEPA has not suspended or granted the CAL an
exemption from any applicable requirements. Rather, USEPA has
interpreted the requirements of section l82(b)(1)(A)(i) and l72 (c)(9)
as not being applicable once an area has attained the standard, as long
as it continues to do so. This is not a waiver of requirements that by
their terms clearly apply; it is a determination that certain
requirements are written so as to be operative only if the area is not
attaining the standard.
The May 10 Policy was clear about the consequences of the policy
for redesignations. First, it made plain that a determination of
attainment is not tantamount to a redesignation of an area to
attainment. Attainment is only one of the criteria set forth in
107(d)(3)(E). To be redesignated, the State must satisfy all of the
criteria of 107(d)(3)(E), including the requirement of a demonstration
that the improvement in the area's air quality is due to permanent and
enforceable reductions, and the requirements that the area have a
fully-approved SIP which meets all of the applicable section 110 and
part D requirements, and a fully approved maintenance plan.
Upon a determination of attainment, however, the 182(b)(1)(A)(i)
requirements of RFP and attainment plans, and the 172(c)(9) requirement
of contingency plans are no longer considered applicable requirements
under section 107(d)(3)(E). They would no longer be included among
those measures whose approval is part of the requirement of having a
fully approved SIP.
A commenter contended that, by relying upon its determination of
attainment, USEPA is avoiding the redesignation requirements of 107(d).
This is not the case. What USEPA has done is make a determination that
since the area is attaining the standard, which is a factual
determination, certain provisions of the CAA, whose express purpose is
to achieve attainment of the standard, do not require SIP revisions to
be made by the State for so long as the area continues to attain the
standard. This has long been USEPA's policy with respect to the section
172(c)(9) contingency measures and section 172(c)(2) RFP requirement.
See general preamble at 57 FR 13498. USEPA has also made determinations
regarding section 182(f) NOx waivers at or before the redesignation of
an area and therefore not required NOx RACT submissions to approve such
redesignations. See the Bay Area redesignation at 59 FR 49361.
USEPA disagrees with the commentor's analysis of the language and
structure of the CAA. USEPA's statutory analysis was explained in
detail in the June 8, 1995 direct final rule and in the May 10, 1995
memorandum from John Seitz. USEPA further elaborated upon this
analysis, and responded to many of the concerns raised by the
plaintiffs, in its final determination of attainment of Ozone Standard
for Salt Lake and Davis Counties, Utah, and Determination Regarding
Applicability of Certain Reasonable Further Progress and Attainment
Demonstration Requirements. See 60 FR 36,723 (July 18, 1995). To the
extent here pertinent, such portions of that notice, including the
responses to comments, are incorporated herein by reference.
Thus, USEPA disagrees with the commentors' view that USEPA is not
complying with all the redesignation requirements of 107(d)(3)(E). The
area has a fully approved plan for and has met all applicable
requirements. USEPA has interpreted SIP submission requirements of
section 182(b)(1) regarding reasonable further progress and attainment
demonstration plans, and of section 172(c)(9) regarding contingency
measures to be implemented in the event an area fails to make
reasonable further progress or attain the standard by the attainment
date, not to apply for so long as the area continues to attain the
standard. Since they are not applicable, fulfillment of these
requirements is not necessary to meet the redesignation criteria of
107(d)(3)(E).
The commenter challenges USEPA's authority to determine certain SIP
requirements inapplicable, and then bootstraps that argument to
complain that since CAL has not met these requirements, the
redesignation request only partially fulfills 107(d)(E)(v). The
commenter argues that this is because the state has not met all
``applicable'' requirements under section 110 and Part D; but the
requirements it points to are the very ones that USEPA has determined
are inapplicable.
USEPA rejects this kind of circular argument. Since USEPA has
determined that the statute does not require certain submissions so
long as the area is in attainment, those inapplicable requirements
cannot serve as the basis for concluding that the redesignation request
is defective. Under the criteria of section 107(d)(E)(3) itself, a
state need only meet all applicable requirements, and have a fully
approved plan that contains all required elements. Thus USEPA's
interpretation is fully consistent with the criteria of section
[[Page 20469]]
107(d)(3). Since USEPA has determined that the 15%, attainment
demonstration, and contingency plan requirements are not applicable to
CAL, and has found the SIP to be fully approvable without them, the CAL
area has fairly met the criteria of section 107(d)(3). Certainly USEPA,
after determining that these requirements are inapplicable, could not
in good faith conclude that the redesignation request is defective
because it fails to meet them.
Thus USEPA concludes that, where it has made a determination of
attainment that results in the suspension of requirements, it may rely
on that determination and its consequences in considering the
approvability of a redesignation request.
For the reasons stated above and elsewhere in this Notice, in the
June 29, 1995 Federal Register notices (60 FR 3372, 33781), in the May
10, 1995 memorandum, and in the 60 FR 36,723 (July 18, 1995) Utah
notice, USEPA does not believe that the rulemaking violates any section
of the CAA, nor does it circumvent the redesignation requirements under
section 107(d)(3)(E).
(20) Comment: Citizens Commissions for Clean Air in the Lake
Michigan Area stated that USEPA's action is not a reasonable
interpretation of USEPA's nondiscretionary mandate ``to protect and
enhance the quality of the Nation's air resources so as to promote the
public health and welfare and the productive capacity of its
population[.]}. section 101(b)(1).
(20) Response: The USEPA disagrees with the commentor's statement
that its action violates section 101(b)(1). Section 101(b)(1) does not
establish a nondiscretionary duty; it is a statement of purpose--a
purpose that USEPA is not disregarding in this action. the area has
attained the primary ozone standard, a standard designed to protect
public health with an adequate margin of safety. (see section
109(b)(1)). USEPA's action does not relax any of the requirements that
have led to the attainment of the standard. Rather, its action has the
effect of suspending requirements, for additional pollution reductions,
above and beyond those that have resulted in the attainment of the
health-based standard.
(21) Comment: A commentor asserts that USEPA's action violates the
Administrative Procedure Act and the CAA through its reliance on
unpublished memoranda of John Calcagni and John Seitz and the General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990, 57 FR l3498 (April 16, 1992). According to the
commentor, reliance on those documents is inappropriate and illegal
since those documents were issued without opportunity for notice and
comment and are not enforceable regulations.
(21) Response: USEPA's reference to and reliance on those
documents, all of which are either published or publicly available and
a part of the record of this rulemaking, is in no way illegal under
provisions of either the CAA or the Administrative Procedures Act. (The
commentor cited no specific provisions of either act). USEPA agrees
that such documents do not establish enforceable regulations; they do
not purport to be anything but guidance. That is precisely why USEPA
has performed this rulemaking--a notice-and-comment rulemaking to take
comment on its statutory interpretations and factual determinations in
order to make a binding and enforceable determination regarding the CAL
area. The June 29, 1995 Federal Register notice referred to USEPA's
prior policy memoranda not as binding the Agency to adopt the
interpretations being proposed therein, but rather as a useful
description of the rationale underlying those proposed interpretations.
USEPA has explained the legal and factual basis for its rulemaking in
the June 29, 1995 Federal Register notice and afforded the public a
full opportunity to comment on USEPA's proposed interpretation and
determination fully consistent with the applicable procedural
requirements of the Administrative Procedures Act. (The procedural
requirements of section 307(d) of the CAA do not apply to this
rulemaking since it is not among the rulemakings listed in section
307(d)(1).)
(22) Comment: USEPA claims that, in accordance with the October
1994 Nichols memorandum, ``that areas being redesignated need not
comply with the requirement that a NSR program be approved prior to
redesignation so [long] as they have an approved Prevention of
Significant Deterioration (PSD) SIP or delegated PSD authority.'' 60 FR
at 31439. USEPA apparently believes it can replace NSR with PSD, but
the CAA does not grant the Administrator such discretion.
(22) Response: The USEPA believes that the CAL area may be
redesignated to attainment notwithstanding the lack of a fully-approved
NSR program meeting the requirements of the 1990 Act amendments and the
absence of such an NSR program from the contingency plan. This view,
while a departure from past policy, has been set forth by the USEPA as
its new policy in a memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation, dated October 14, 1994, entitled
Part D New Source Review (part D NSR) Requirements for Areas Requesting
Redesignation to Attainment.
The USEPA believes that its decision not to insist on a fully-
approved NSR program as a prerequisite 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, it 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 CAL 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 National
Ambient Air Quality Standards (NAAQS) will occur even if the emission
reductions expected to result from the part D NSR program do not occur.
The emission projections made by Ohio to demonstrate maintenance of the
NAAQS considered growth in point source emissions (along with growth
for other source categories) and were premised on the assumption that
the Prevention of Significant Deterioration (PSD) program, rather than
the part D NSR, would be in effect, during the
[[Page 20470]]
maintenance period. Under NSR, significant point source emissions
growth would not occur. Michigan 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 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. 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.3 This distinguishes
NSR from other required programs under the Act, such as inspection and
maintenance and Reasonably Available Control Technology (RACT)
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.'' 4
---------------------------------------------------------------------------
\3\ The USEPA 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.
\4\ The USEPA also notes that in the case of the Cleveland, Ohio
area, all permits to install for major volatile organic compound
(VOC) emission sources and major VOC emission source modifications
issued by the State in the moderate ozone nonattainment areas since
November 15, 1992 have complied with the 1.15 to 1.0 VOC emissions
offset ratio. In addition, permits to install cannot be issued under
the Prevention of Significant Deterioration (PSD) program unless the
applicant can demonstrate that the increased emissions from the new
or modified source will not result in a violation of the NAAQS.
---------------------------------------------------------------------------
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 in effect, rather than
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 is 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.
As the USEPA has recently changed its policy, 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.
(23) Comment: A violation does not occur until the third
``exceedance'', this is deceptive and doesn't help people get
information that the air is polluted. Even though .124 ppm is above the
``standard'' of 0.12 ppm; because of rounding that terrible air
wouldn't even be counted as an exceedances or violation.
[[Page 20471]]
Cleveland-Akron-Lorain's ozone monitors are not on all year. We
should be monitoring year-round. We get unusual weather in northeast
Ohio. We've had temperatures in the 80's during every month when we are
not required by law to monitor. If we had a violation during these
months (we have had extreme haze then and lots of emergency room visits
from respiratory patients), we have no way of knowing, so these days
don't count, either. I am against the redesignation of Cleveland-Akron-
Lorain for these reasons.
(23) Response: Published guidance (Guideline for the Interpretation
of Ozone Air Quality Standards, January 1979, EPA-450/4-79-003), which
is part of the ozone standard by reference in 40 CFR part 50, appendix
H, notes that the stated level of the standard is determined by
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),
and therefore, 0.125 ppm is the smallest three-decimal concentration
value in excess of the level of the standard that is considered an
exceedance.
Since ozone levels decrease significantly in the colder parts of
the year in many areas, ozone is required to be monitored at monitors
only during the ``ozone season'' which is listed in Appendix D to 40
CFR part 58 for Ohio as April through October. This seasonal definition
was initially set in 1986 based on temperature data. Months where the
monthly mean daily maximum temperature is less than 55 degrees
Fahrenheit were generally excluded from the season. In Cleveland-Akron-
Lorain, this occurs from November through March. In different areas of
the country where months are cooler than 55 degrees Fahrenheit, ozone
concentrations greater than .08 ppm are unlikely to occur. In addition
actual ozone monitoring data for the Cleveland-Akron-Lorain area
collected from 1987 though 1994 for the months of April and October
show only three recorded concentrations above .100 parts per million.
The highest monitored concentration was .109 parts per million during
October 1992. The ozone NAAQS of .12 ppm was not exceeded in the
Cleveland-Akron-Lorain area for the months of April and October from
1987 though 1994. Given the generally lower temperatures of the other
winter months compared to April and October, it is expected that these
months would not have monitored an exceedance of the ozone NAAQS.
(24) Comment: A commenter was concerned that because of the
redesignation to attainment the area would become exempt from
congestion mitigation and air quality (CMAQ) funds which local transit
agencies relied on for new buses and expanded service thus increasing
air pollution.
(24) Response: The federal CMAQ program is designed to give
additional money for air quality nonattainment areas to use on
transportation projects that will improve the air quality and bring the
area into attainment of the air quality standards. The United States
Department of Transportation (USDOT) revised their CMAQ guidance on
July 13, 1995, to allow redesignated areas to have a 2 year transition
period to insure continuity in CMAQ funding for projects which are
programmed in the first 2 years of the transportation improvement
program at the time the area is redesignated to attainment. Although
Cleveland-Akron-Lorain will lose the additional CMAQ funds after the 2-
year transitional period, the projects already programmed for funding
will now be able to continue implementation. Air pollution is not
expected to increase because the stricter standards for new cleaner
cars, trucks and buses will help to decrease pollutant emissions. The
USEPA believes the air pollution emissions will thus continue to
decrease or at least maintain the levels that have brought the area
into attainment.
(25) Comment: The 15% plan approved for Greater Cleveland-Akron-
Lorain fell short of the required reduction because the area did not
choose to do reformulated gasoline. The area has not met this
requirement and should not be redesignated.
(25) Response: USEPA determined that, based on USEPA's
determination of attainment, the requirement for a 15% reduction in
volatile organic emissions in the area is no longer applicable. See the
final action also contained in this final rulemaking. Since this is no
longer an applicable requirement, the area is not required to meet it
before the CAL area can be redesignated. The 15% reduction plan that
was submitted for the CAL area did not rely on reformulated gasoline to
achieve the emissions reduction.
(26) Comment: Several commenters believed there was a potential
conflict of interest when the same entity (i.e. the City of Cleveland)
does the monitoring and also applies for redesignation.
(26) Response: The ambient air data collected by State and local
agencies are required to meet very specific quality assurance measures
that are detailed in 40 CFR 58.10 and appendix A. The USEPA Quality
Assurance manual gives more detailed guidance on operation of ambient
air monitors. The USEPA audits the State and local agencies on a
regular basis to ascertain that the appropriate quality assurance
measures are being implemented. In the case of the Cleveland local
agency, the State air agency (Ohio Environmental Protection Agency) is
responsible for conducting accuracy audits on the air monitoring
equipment being operated by the Cleveland local agency. In addition,
the USEPA conducts audits of the air monitoring network. Precision and
Accuracy audits are reported on a regular basis to the USEPA and
recorded in the national AIRS data bank. This information is available
to the public. This oversight ensures the quality of the data relied
upon for redesignation.
III. Rulemaking Action
On June 29, 1995, USEPA proposed to determine that the 15% plan,
attainment demonstration, and contingency measures plan for the
Cleveland-Akron-Lorain area are no longer applicable requirements,
since the area has attained the ozone NAAQS. The USEPA received several
comments pertaining to the proposed rulemaking. These comments were
considered and responses are detailed in the above section of the
rulemaking on the determination of attainment. USEPA believes that the
determination of attainment is still warranted and is taking final
action to determine that the requirements for a 15% emissions reduction
plan, attainment demonstration, and contingency measures plan are not
applicable at this time.
On June 15, 1995, USEPA proposed to approve the OEPA request for
redesignation to attainment and the maintenance plan for ozone for the
CAL moderate nonattainment area counties of Lorain, Cuyahoga, Lake,
Ashtabula, Geauga, Medina, Summit, and Portage. The USEPA received
about 50 comment letters pertaining to the proposed rulemaking. The
comments were considered and responses are detailed in the above
section of the rulemaking on the ozone redesignation request. The USEPA
believes that the redesignation requirements of Section 107(d) are
satisfied and is taking final action to approve the requests for
redesignation to attainment and the maintenance plan for the CAL
counties of Lorain, Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit,
and Portage.
IV. Boilerplate Regulatory Language
USEPA finds that there is good cause for this redesignation, SIP
revision, and
[[Page 20472]]
determination of attainment to become effective immediately upon
publication because a delayed effective date is unnecessary due to the
nature of a redesignation to attainment, determination of attainment,
which exempts the areas from certain Clean Air Act requirements that
would other wise 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, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) 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 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.
Redesignation of an area to attainment under section 107(d)(3)(E)
of the CAA 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.
SIP approvals under section 110 and subchapter I, Part D of the CAA
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 any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids USEPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2).
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,
USEPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to State,
local, or tribal governments in the aggregate.
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, USEPA'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 of $100
million or more to 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 July 8, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Air pollution control, Nitrogen Oxides, Ozone, Volatile organic
compounds.
40 CFR Part 81
Air pollution control.
Dated: April 4, 1996.
Valdas V. Adamkus,
Regional Administrator.
Chapter I, Title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1885 is amended by adding paragraphs (b)(10) and (w)
to read as follows:
Sec. 52.1885 Control Strategy: Ozone.
* * * * *
(b) * * *
(9) Lorain, Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit, and
Portage Counties.
* * * * *
(w) Determination--USEPA is determining that, as of May 7, 1996,
the Cleveland-Akron-Lorain ozone nonattainment area (which includes the
Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage
and Summit) have attained the ozone standard and that the reasonable
further progress and attainment demonstration requirements of section
182(b)(1) and related requirements of section 172(c)(9) of the Clean
Air Act do not apply to the area.
* * * * *
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES--
OHIO
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In Sec. 81.336 the ozone table is amended by revising the entry
for the Cleveland-Akron-Lorain Area to read as follows:
[[Page 20473]]
Sec. 81.336 Ohio.
* * * * *
Ohio--Ozone
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -----------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Cleveland-Akron-Lorain Area....... May 7, 1996.......... Attainment...........
Ashtabula County
Cuyahoga County
Geauga County
Lake County
Lorain County
Medina County
Portage County
Summit County
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990 unless otherwise noted.
* * * * *
[FR Doc. 96-11133 Filed 5-6-96; 8:45 am]
BILLING CODE 6560-50-P