[Federal Register Volume 62, Number 93 (Wednesday, May 14, 1997)]
[Rules and Regulations]
[Pages 26396-26399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12633]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH104-1a; FRL-5822-5]


Approval and Promulgation of Implementation Plans; Ohio Ozone 
Maintenance Plan

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA approves a revision submitted on July 9, 1996, and 
January 31, 1997, to the ozone maintenance plans for the Dayton-
Springfield Area (Miami, Montgomery, Clark, and Greene Counties), 
Toledo Area (Lucas and Wood Counties), Canton Area (Stark County), Ohio 
portion of the Youngstown-Warren-Sharon Area (Mahoning and Trumbull 
Counties), Columbus Area (Franklin, Delaware, and Licking Counties), 
Cleveland-Akron-Lorain Area (Ashtabula, Cuyahoga, Lake, Lorain, Medina, 
Summit, Portage, and Geauga Counties), Preble County, Jefferson County, 
Columbiana and Clinton Counties.
    The revision is based on a request from the State of Ohio to revise 
the Federally approved maintenance plan for these areas to provide the 
State and the affected areas with greater flexibility in choosing an 
appropriate ozone contingency measure for each area in the event such a 
measure is needed. This action approves the State's request as a 
common-sense approach to protecting air quality in Ohio.
    In the proposed rule section of this Federal Register, USEPA is 
proposing approval of this revision, and is now soliciting public 
comments on this action. If adverse comments are received on this 
direct final rule, USEPA will withdraw this final rule and address 
these comments in a subsequent final rule based on the proposed rule.

EFFECTIVE DATES: This final rule will become effective on July 14, 1997 
unless adverse or critical comments are received by June 13, 1997. If 
the effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer, 
Chief, Regulation Development Section, Air Programs Branch (AR-18J), 
United States Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    Copies of the requested maintenance plan revision, and other 
materials

[[Page 26397]]

relating to this rulemaking are available for public inspection during 
normal business hours at the following address: United States 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard (AR-18J), Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Environmental 
Protection Specialist, at (312) 886-6084.

SUPPLEMENTARY INFORMATION:

I. Background

    During 1993 and 1994, the State of Ohio made a number of submittals 
of maintenance plans for areas which have been redesignated to 
attainment for ozone. All of these plans contained contingency 
provisions which are required as part of Section 175A(d) of the Clean 
Air Act (CAA) Amendments. These contingency provisions were addressed 
in detail in the Federal Registers approving the State 
submittals.1
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    \1\ The redesignation request approvals and the accompanying 
discussion of contingency provisions are found in 60 FR 7453 dated 
February 8, 1995, 60 FR 22289 dated May 5, 1995, 60 FR 39115 dated 
August 1, 1995, 61 FR 3319 dated January 31, 1996, 61 FR 3591 dated 
February 1, 1996, 61 FR 11560 dated March 31, 1996, and 61 FR 20458 
dated May 7, 1996. The original State submittals and the USEPA's 
analyses of each of the submittals are maintained in the docket in 
the Air and Radiation Division in Chicago.
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    On July 9, 1996, the State submitted a request to revise the 
contingency measure portion of the maintenance plans contained in the 
approved redesignations for the various counties. The State requested 
the revision because of concern that the currently approved provisions 
may not meet the future needs when circumstances regarding controls or 
technology have changed. The State cited the example of the Stage II 
vapor control program (one of the approved contingency measures) which 
becomes less cost-effective out into the future as the automobile fleet 
turns over with corresponding installation of improved on-board vapor 
control technology. While the Stage II control measure was effective at 
the time of implementation, and continues to be at this time; by the 
year 2010 a significant portion of the automobile fleet will have on-
board controls which are expected to serve the same function 
(controlling gasoline vapors during refueling) as the Stage II 
requirement. Therefore, the State believes that it is important to 
retain a degree of flexibility in selecting the appropriate volatile 
organic compound (VOC) control technology for the circumstances which 
exist at such time as additional controls become necessary.
    The State of Ohio submitted the following language as a substitute 
for the previously approved contingency plans for all of the areas 
listed in this document:

    The maintenance plan contingency measures to be considered will 
be chosen from the following list or an unspecified emission control 
measure deemed appropriate, based upon a consideration of cost 
effectiveness, VOC reduction potential, economic and social factors, 
as the contingency measure for each of these areas.
    a. Lower Reid Vapor Pressure (RVP) for gasoline;
    b. Reformulated gasoline program;
    c. Application of Reasonably Available Control Technology (RACT) 
on sources covered by new control technology guidelines;
    d. VOC offsets for new or modified major sources;
    e. Automobile Inspection and Maintenance (I/M); and,
    f. Trip reduction programs, including but not limited to 
employer-based transportation management programs, area-wide 
rideshare programs, work schedule changes and telecommuting.
    The decision on which program is to be implemented would be made 
and executed within 12 months after a determination that a violation 
has been monitored after all VOC emission reduction programs 
contained in the State implementation plan have been implemented.
    Reasonably available controls for sources of oxides of nitrogen 
(NOx RACT) would be a secondary contingency to be implemented after 
a violation occurs after the VOC contingency measure has been fully 
implemented. This contingency would only apply in those redesignated 
areas formerly designated moderate non-attainment (the Toledo, 
Dayton and Cleveland-Akron-Lorain Metropolitan areas).

    Each of the areas to which this revision applies have approved 
maintenance plans which include contingency measures. In this revision 
the State is broadening the number of measures from which the State or 
planning agency may choose in order to resolve violations of the ozone 
ambient air quality standard. For every one of the State's maintenance 
areas, this revision increases the number of measures from which to 
choose. Certain of these measures have been addressed in the 
contingency plan portion of previous State maintenance plan submittals 
which have been approved by USEPA, as noted in footnote number 1.

II. Contingency Plan Requirements

    Section 175A of the CAA requires that a maintenance plan include 
contingency provisions, as necessary, to promptly correct any violation 
of the national ambient air quality standards that occurs after the 
redesignation of the area.2 These contingency measures do 
not have to be fully adopted at the time of redesignation. However, the 
contingency plan is considered to be an enforceable part of the State 
implementation plan (SIP) and should ensure that the contingency 
measures are adopted expeditiously once they are triggered by a 
specific event. The contingency plan should identify the measures to be 
adopted and include a trigger mechanism and a schedule for adoption and 
implementation.
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    \2\ Guidance for contingency measures is found in the memoranda 
``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' G.T. Helms, Chief, Ozone/Carbon Monoxide Programs 
Branch, June 1, 1992; and ``Procedures for Processing Requests to 
Redesignate Areas to Attainment,'' John Calcagni, Director, Air 
Quality Management Division, September 4, 1992.
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    Back-up measures are required for areas which selected low-RVP as 
the contingency measure in the maintenance plan. However, USEPA has 
approved contingency measures which do not commit to specific back-up 
programs. (The Indianapolis redesignation 59 FR 54391, dated October 
31, 1994, contained a maintenance plan measure which did not commit to 
specific programs. The USEPA agreed with Indiana that circumstances may 
change significantly over time for a select group of back-up measures, 
thereby rendering the measure(s) less useful or implementable). For 
example, the selection of a basic I/M program as a back-up measure 
today would render a certain amount of VOC reduction from the current 
fleet of autos. However, the use of basic I/M in the future would not 
yield the reductions from a fleet of high tech automobiles because the 
basic program is not sophisticated enough to identify emission failures 
in new technology cars.

III. The Ohio Maintenance Plan

    The Director of Ohio EPA, in a letter to USEPA dated July 9, 1996, 
requested a revision to the ozone maintenance plans for a number of 
maintenance areas and maintenance counties. This request was followed 
up with a letter dated January 31, 1997, containing additional 
information completing the request. Based on a comment from the Mid-
Ohio Regional Planning Commission, a minor change to the July 9, 1996, 
submittal was made and subsequently submitted as final in the Ohio EPA 
Director's January 31, 1997, letter to the USEPA. This change allows 
contingency measure decision makers to include the implementation of an 
automobile inspection and maintenance program as a contingency measure 
for all areas

[[Page 26398]]

required to implement an air quality maintenance plan. The original 
July 9, 1996, submittal allowed only the Toledo area (consisting of 
Wood and Lucas counties) to implement I/M. This change allows I/M, in 
addition to other measures, to be made available for all counties which 
select I/M as a contingency measure.
    Maintenance plans for ozone in Ohio have been approved for the 
Cleveland/Akron/Lorain area consisting of Cuyahoga, Lake, Lorain, 
Medina, Summit, Portage, Geauga and Ashtabula counties; and the Canton 
area consisting of Stark county; and, the Youngstown area consisting of 
Mahoning and Trumbull counties; and, the Dayton area consisting of 
Montgomery, Greene, Miami and Clark counties; the Columbus area 
consisting of Franklin, Delaware and Licking counties; and, the 
counties of Preble, Jefferson, Columbiana, and Clinton. The Ohio 
contingency measures were required as part of the redesignation to 
attainment for ozone and are part of these maintenance plans submitted 
by the State for the various nonattainment areas which were 
redesignated to attainment for ozone. The listing of areas is found in 
40 CFR part 52.1885(b). Each of the maintenance plans included one or 
more contingency measures to be implemented in the event a violation of 
the ozone standard was recorded. The revision approved here revises the 
maintenance plan to include a list of measures from which to choose for 
each of the various areas. This action allows more flexibility in 
determining an appropriate emission reduction measure, or mix of 
measures, should additional controls become necessary. Air quality 
managers in these areas are not required to select all of the measures 
listed, but are expected to select the appropriate measure or measures 
which at the time of decision are expected to reduce the emissions of 
VOC and return the area to attainment of the ozone standard.
    Ohio has chosen the use of low-RVP gasoline and reformulated 
gasoline as two of a variety of possible automobile fuel contingency 
measures from which to choose to reduce the emissions of VOC. The State 
has indicated that additional measures would be available as back-ups 
in the event the USEPA does not allow the use of low-RVP gasoline. 
However these back-ups would be selected based on future circumstances, 
not present expectations of such measures.
    This is consistent with USEPA policy regarding approval of low-RVP 
fuel controls under section 175A of the Clean Air Act.3 
Also, under this policy, USEPA approved the maintenance plan for Preble 
County, Ohio, on September 21, 1994 (59 FR 48395) which identified low-
RVP without requiring a necessity finding at the time of approval of 
the plan. The finding of necessity would be made at the time the 
trigger event occurs, and at that time, the State must commit to adopt 
a back-up measure in the event the USEPA does not agree with the 
State's submittal of a study to demonstrate that low-RVP gasoline is 
necessary.
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    \3\ See memorandum ``Requirements for Reduced RVP in State 
Maintenance Plans,'' from Michael Horowitz, Office of General 
Counsel, USEPA, to William L. MacDowell, Air and Radiation Division, 
Region 5, USEPA, November 8, 1993.
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    The State will be required to submit an implementation plan 
revision adopting State fuel control and request a waiver from federal 
preemption. The waiver request must indicate the quantity of VOC 
reductions needed to attain the standard, identify and quantify other 
control measures, provide background information giving the reason why 
non-fuel measures are not practicable, and show that these non-fuel 
measures are not sufficient to achieve timely attainment.

IV. Final Action

    The USEPA is publishing this action without prior proposal because 
USEPA views this action as a noncontroversial revision and anticipates 
no adverse comments. However, USEPA is publishing a separate document 
in this Federal Register publication, which constitutes a ``proposed 
approval'' of the requested SIP revision and clarifies that the 
rulemaking will not be deemed final if timely adverse or critical 
comments are filed. The ``direct final'' approval shall be effective on 
July 14, 1997, unless USEPA receives adverse or critical comments 
(which have not been previously addressed) by June 13, 1997.
    If USEPA receives such comments adverse to or critical of the 
approval discussed above, USEPA will withdraw this approval before its 
effective date, and publish a subsequent Federal Register document 
which withdraws this final action. Public comments received will then 
be addressed in a subsequent rule.
    Any parties interested in commenting on this action should do so at 
this time. If no such comments are received, USEPA hereby advises the 
public that this action will be effective on July 14, 1997.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

Administrative Requirements

A. Executive Order 12866

    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 D. Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the Act 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP 
approval does not impose any new requirements, the Administrator 
certifies that it does not have a significant impact on any small 
entities affected. Moreover, due to the nature of the Federal-State 
relationship under the Act, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of the 
State action. The Clean Air Act forbids EPA to base its actions 
concerning SIPs on such grounds. Union Electric Co. v. EPA., 427 U.S. 
246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must undertake various actions 
in association with any proposed or final rule that includes a Federal 
mandate that may result in estimated costs to state, local, or tribal 
governments in the aggregate; or to the private sector, of $100 million 
or more. This Federal action approves pre-existing requirements under 
state or

[[Page 26399]]

local law, and imposes no new requirements. Accordingly, no additional 
costs to state, local, or tribal governments, or the private sector, 
result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a major rule as defined by 5 U.S.C. 
804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 14, 1997. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See Section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Volatile organic compounds.

    Dated: April 23, 1997.
Valdas V. Adamkus,
Regional Administrator.

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

PART 52--[AMENDED]

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

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

Subpart KK--Ohio

    2. Section 52.1885 is amended by adding paragraph (a)(5) to read as 
follows:


Sec. 52.1885  Control strategy: Ozone.

    (a) * * *
    (5) On July 9, 1996, and on January 31, 1997, the Ohio 
Environmental Protection Agency submitted a revision to the State's 
maintenance plan for ozone. This revision affects the contingency 
measures contained in the maintenance plan for a number of counties 
throughout the State. (These areas include: in the Dayton area, 
Montgomery, Greene, Miami, and Clark Counties, in the Toledo area, 
Lucas and Wood Counties, the Canton area, Stark County, the Youngstown 
area, Mahoning and Trumbull Counties, the Columbus area, Franklin, 
Delaware, and Licking Counties, the Cleveland/Akron/Lorain area, 
Cuyahoga, Lake, Lorain, Medina, Summit, Portage, Geauga and Ashtabula 
Counties, and also Preble, Jefferson, Columbiana, and Clinton Counties. 
It provides for greater flexibility in selecting the appropriate 
control technology for the circumstances which exist at that point in 
the future if additional controls become necessary. The State of Ohio 
identified the following language as a substitute for the previously 
approved contingency plans for all of the areas listed in the ozone 
maintenance plan (see 40 CFR 52.1885(b)):
    (i) The maintenance plan contingency measures to be considered will 
be chosen from the following list or an unspecified emission control 
measure deemed appropriate, based upon a consideration of cost 
effectiveness, VOC reduction potential, economic and social factors, as 
the contingency measure for each of these areas:
    (A) Lower Reid Vapor Pressure for gasoline;
    (B) Reformulated gasoline program;
    (C) Application of Reasonably Available Control Technology (RACT) 
on sources covered by new control technology guidelines;
    (D) VOC offsets for new or modified major sources;
    (E) Automobile Inspection and Maintenance; and,
    (F) Trip reduction programs, including but not limited to employer-
based transportation management programs, area-wide rideshare programs, 
work schedule changes and telecommuting.
    (ii) The decision on which program is to be implemented would be 
made and executed within 12 months after a determination that a 
violation has been monitored after all VOC emission reduction programs 
contained in the State implementation plan have been implemented.
    (iii) Reasonably available controls for sources of oxides of 
nitrogen (NOX RACT) would be a secondary contingency to be 
implemented after a violation occurs after the VOC contingency measure 
has been fully implemented. This contingency would only apply in those 
redesignated areas formerly designated moderate non-attainment (the 
Toledo, Dayton and Cleveland/Akron/Lorain Metropolitan areas).
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[FR Doc. 97-12633 Filed 5-13-97; 8:45 am]
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