[Federal Register Volume 62, Number 101 (Tuesday, May 27, 1997)]
[Rules and Regulations]
[Pages 28634-28638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13751]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH107-1a; KY94-9717a; FRL-5830-5]


Clean Air Act Promulgation of Extension of Attainment Date for 
Ozone Nonattainment Area; Ohio; Kentucky

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: USEPA is extending the attainment date for the Cincinnati-
Hamilton interstate moderate ozone nonattainment area from November 15, 
1996 to November 15, 1997. This extension is based in part on monitored 
air quality readings for the national ambient air quality standard 
(NAAQS) for ozone during 1996. Accordingly, USEPA is revising the table 
in the Code of Federal Regulations concerning ozone attainment dates in 
this area. In this action, USEPA is approving the States' request 
through a ``direct final'' rulemaking; the rationale for this approval 
is set forth below. Elsewhere in this Federal Register, USEPA is 
proposing approval and soliciting comment on this action; if adverse 
comments are received, USEPA will withdraw the direct final rulemaking 
and address the comments received in a new final rule; otherwise no 
further rulemaking will occur on this attainment date extension 
request.

DATES: This rule becomes effective July 28, 1997 unless substantive 
adverse comments not previously addressed by the State or USEPA are 
received by June 26, 1997. If the effective date is delayed, timely 
notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to Joseph M. LeVasseur at the USEPA 
Region 4 address listed below or to J. Elmer Bortzer, Chief, Regulation 
Development Section, Air Programs Branch (AR-18J), Region 5 at the 
address listed below. Copies of the material submitted by the Kentucky 
Natural Resources and Environmental Protection Cabinet (KNREPC) may be 
examined during normal business hours at the following locations:

Environmental Protection Agency, Atlanta Federal Center, Region 4 Air 
Planning Branch, 61 Forsyth Street S.W., Atlanta, Georgia 30303-3104.
Natural Resources and Environmental Protection Cabinet, 803 Schenkel 
Lane, Frankfort, Kentucky 40601.

    Copies of the materials submitted by the Ohio Environmental 
Protection Agency (OEPA) may be examined during normal business hours 
at the following locations:

Regulation Development Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois, 60604.

OEPA, Division of Air Pollution Control, 1800 Watermark Drive, 
Columbus, OH 43215.

FOR FURTHER INFORMATION CONTACT: Randolph O. Cano at (312) 886-6036 or 
Joseph M. LeVasseur at (404) 562-9035.

SUPPLEMENTARY INFORMATION:

Request for Attainment Date Extension for the Cincinnati-Hamilton 
Metropolitan Moderate Ozone Nonattainment Area

    On November 7, 1996, OEPA requested a one-year attainment date 
extension for the Ohio portion of the Cincinnati-Hamilton moderate 
ozone nonattainment area which consists of Hamilton, Butler, Clermont 
and Warren Counties in Ohio. Similarly, on November 15, 1996 KNREPC 
requested a one-year attainment date extension for the Kentucky portion 
of the Cincinnati-Hamilton moderate ozone nonattainment area which 
consists of Kenton, Boone and Campbell Counties. Since this area was 
classified as a moderate ozone nonattainment area, the statutory ozone 
attainment date, as prescribed by section 181(a) of the Clean Air Act 
(CAA), is November 15, 1996. The submittals request that the attainment 
date be extended to November 15, 1997.

CAA Requirements and USEPA Actions Concerning Designation and 
Classification

    Section 107(d)(4) of the CAA requires the States and USEPA to 
designate areas as attainment, nonattainment, or unclassifiable for 
ozone as well as other pollutants for which national ambient air 
quality standards (NAAQS) have been set. Section 181(a)(1) requires 
that ozone nonattainment areas be classified as marginal, moderate, 
serious, severe,

[[Page 28635]]

or extreme, depending on their air quality. In a series of Federal 
Register documents, USEPA completed this process by designating and 
classifying all areas of the country for ozone. See, e.g., 56 FR 58694 
(Nov. 6, 1991); 57 FR 56762 (Nov. 30, 1992).
    Areas designated nonattainment for ozone are required to meet 
attainment dates specified under the CAA. The Cincinnati-Hamilton ozone 
nonattainment area was designated nonattainment and classified moderate 
for ozone pursuant to 56 FR 58694 (Nov. 6, 1991). By this 
classification, its attainment date became November 15, 1996. A 
discussion of the attainment dates is found in 57 FR 13498 (April 16, 
1992) (the General Preamble).

CAA Requirements and USEPA Actions Concerning Meeting the Attainment 
Date

    Section 181(b)(2)(A) requires the Administrator, within six months 
of the attainment date, to determine whether ozone nonattainment areas 
attained the NAAQS. For ozone, USEPA determines attainment status on 
the basis of the expected number of exceedances of the NAAQS over the 
most recent three-year period. See General Preamble, 57 FR 13506. In 
the case of moderate ozone nonattainment areas, the three-year period 
is 1994-1996. CAA section 181(b)(2)(A) further states that, for areas 
classified as marginal, moderate, or serious, if the Administrator 
determines that the area did not attain the standard by its attainment 
date, the area must be reclassified upward.
    A review of the actual ambient air quality ozone data from the 
USEPA Aerometric Information Retrieval System (AIRS), shows that a 
number of air quality monitors located in the Cincinnati-Hamilton ozone 
nonattainment area recorded exceedances of the NAAQS for ozone during 
the three year period from 1994 to 1996. At one of these monitors, 
Warren County, OH, the number of expected exceedances was 2.0 per year, 
for 1994 and 1995. Because these exceedances averaged more than 1.0 
over the three year period, they constitute a violation of the ozone 
NAAQS for the Cincinnati-Hamilton area during this three-year period. 
Thus, the area did not meet the November 15, 1996 attainment date.
    However, CAA section 181(a)(5) provides an exemption from these 
bump up requirements. Under this exemption, USEPA may grant up to two, 
one-year extensions of the attainment date under specified conditions:
    Upon application by any State, the Administrator may extend for one 
additional year (hereinafter referred to as the ``Extension Year'') the 
date specified in table 1 of paragraph (1) of this subsection if--
    (A) The State has complied with all requirements and commitments 
pertaining to the area in the applicable implementation plan, and
    (B) No more than one exceedance of the national ambient air quality 
standard level for ozone has occurred in the area in the year preceding 
the Extension Year.
    No more than two one-year extensions may be issued for a single 
nonattainment area.
    The USEPA interprets this provision to authorize the granting of a 
one-year extension under the following minimum conditions:
    (1) The State requests a one-year extension,
    (2) all requirements and commitments in the USEPA-approved SIP for 
the area have been complied with, and
    (3) the area has no more than one measured exceedance of the NAAQS 
at each monitor in the area during the year that includes the 
attainment date (or the subsequent year, if a second one-year extension 
is requested).

      Table 1.--Exceedances of the Ozone Air Quality Standard in the Cincinnati-Hamilton Area 1994 to 1996      
----------------------------------------------------------------------------------------------------------------
                                                                                  Exceedances        Expected   
                 Site                            County/state            Year       measured       exceedances  
----------------------------------------------------------------------------------------------------------------
Oxford \1\............................  Butler, OH....................    1994               0              0.0 
Middletown............................  Butler, OH....................    1994               0              0.0 
Middletown............................  Butler, OH....................    1995               2              2.0 
Middletown............................  Butler, OH....................    1996               1              1.0 
Hamilton..............................  Butler, OH....................    1994               0              0.0 
Hamilton..............................  Butler, OH....................    1995               1              1.0 
Hamilton..............................  Butler, OH....................    1996               0              0.0 
4430 SR 222...........................  Clermont, OH..................    1994               1              1.0 
4430 SR 222...........................  Clermont, OH..................    1995               1              1.0 
4430 SR 222...........................  Clermont, OH..................    1996               0              0.0 
11590 Grooms Rd.......................  Hamilton, OH..................    1994               0              0.0 
11590 Grooms Rd.......................  Hamilton, OH..................    1995               0              0.0 
11590 Grooms Rd.......................  Hamilton, OH..................    1996               0              0.0 
6950 Ripple Road......................  Hamilton, OH..................    1994               0              0.0 
6950 Ripple Road......................  Hamilton, OH..................    1995               1              1.0 
6950 Ripple Road......................  Hamilton, OH..................    1996               0              0.0 
Cincinnati............................  Hamilton, OH..................    1994               0              0.0 
Cincinnati............................  Hamilton, OH..................    1995               1              1.0 
Cincinnati............................  Hamilton, OH..................    1996               0              0.0 
Lebanon...............................  Warren, OH....................    1994               2              2.0 
Lebanon...............................  Warren, OH....................    1995               2              2.0 
Lebanon...............................  Warren, OH....................    1996               0              0.0 
KY 338................................  Boone, KY.....................    1994               0              0.0 
KY 338................................  Boone, KY.....................    1995               0              0.0 
KY 338................................  Boone, KY.....................    1996               0              0.0 
Dayton................................  Campbell,KY...................    1994               0              0.0 
Dayton................................  Campbell, KY..................    1995               0              0.0 
Dayton................................  Campbell, KY..................    1996               1              1.0 
Covington.............................  Kenton, KY....................    1994               0              0.0 
Covington.............................  Kenton, KY....................    1995               1              1.0 
Covington.............................  Kenton, KY....................    1996               1             1.0  
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\1\ This site was shutdown after 1994, so no data are available for 1995 and 1996.                              


[[Page 28636]]

    In both extension requests Ohio and Kentucky indicated that they 
satisfied the attainment date extension criteria in as much as no 
monitors in the Cincinnati-Hamilton area monitored more than one 
exceedance each during 1996. The 1996 monitoring data has been quality 
controlled and quality assured, as has been the data for 1994 and 1995. 
These data are summarized in Table 1. An examination of the data 
indicates that three of the ten monitors recorded one exceedance each 
during 1996.
    Both Ohio and Kentucky certified that they are implementing the 
ozone State Implementation Plans (SIPs) for the area. USEPA conducted a 
review of the ozone SIPs, as contained in 40 CFR part 52 and USEPA's 
electronic version of the SIP, and believes that the states are 
implementing the USEPA approved ozone SIPs. Additionally, USEPA has not 
made a finding of failure to implement the SIPs for the area. This 
supports the States' certification that the area is implementing its 
SIPs.
    Ohio is implementing the requirements of the approved Ozone SIP. 
Regarding implementation of the vehicle inspection and maintenance (I/
M) program, Ohio enacted legislation authorizing the I/M program and 
adopted regulations for the operation of the program. The USEPA 
approved the program on April 4, 1995 (See 60 FR 16989). The State of 
Ohio awarded a contract for program operations, and on January 2, 1996, 
Ohio began testing vehicles in the Cincinnati area. The enactment of 
legislation, adoption of regulations, and the capital investment in 
structures and equipment to perform testing meets the implementation 
test. While the Cincinnati program has been suspended due to program 
performance problems, Ohio is in compliance with CAA implementation 
requirements. The Ohio Stage II vapor recovery program is fully 
implemented in the Cincinnati area. The State is also collecting 
emissions statements from sources in the area. The State is 
implementing its SIP for conformity. Also, the area is implementing its 
approved SIP which includes a program for controlling volatile organic 
compound (VOC) emissions from stationary sources. This includes the 
Non-Control Technique Guideline Reasonably Available Control Technique 
requirements approved within the past several years for the following 
plants in the Ohio portion of the area: Steelcraft Manufacturing Co, 
Chevron USA Inc, International Paper Co, Morton Thiokol, Armco Steel 
Co, Formica Corp, PMC Specialties Group, Hilton Davis Co, Monsanto Co, 
and Proctor and Gamble.
    Kentucky is implementing the requirements of its approved ozone SIP 
for the Cincinnati-Hamilton interstate area. The Kentucky portion of 
the area is implementing its program for controlling oxides of nitrogen 
(NOx) and VOC emissions from stationary sources.
    USEPA has determined that the requirements for a one-year extension 
of the attainment date have been fulfilled as follows:
    (1) Ohio and Kentucky have formally submitted the attainment date 
extension requests.
    (2) Ohio and Kentucky are currently in the process of implementing 
the USEPA-approved SIPs.
    (3) A review of actual ozone ambient air quality data for the 
Cincinnati-Hamilton area indicates that the area has monitored no more 
than one exceedance of the NAAQS at any monitor during 1996.
    Therefore, USEPA approves the Ohio and Kentucky attainment date 
extension requests for the Cincinnati-Hamilton ozone nonattainment 
area. As a result, the Kentucky Control Strategy for Ozone which is 
codified at 40 CFR 52.930 and the Ohio Control Strategy for Ozone which 
is codified at 40 CFR 52.1885 are being amended to record these 
attainment date extensions. The chart in 40 CFR 81.318 entitled 
``Kentucky-Ozone'' is being modified to reflect USEPA's approval of 
Kentucky's attainment date extension request. The chart in 40 CFR 
81.336 entitled ``Ohio-Ozone'' is also being modified to reflect 
USEPA's approval of Ohio's attainment date extension request.

USEPA Action

    USEPA is approving the attainment date extension requests for the 
Cincinnati-Hamilton moderate ozone nonattainment area from November 15, 
1996 to November 15, 1997 without prior proposal because the Agency 
views this as a noncontroversial amendment and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, USEPA is proposing to approve this part 52 and part 81 
action should adverse or critical comments be filed. This action will 
be effective July 28, 1997 unless, by June 26, 1997 adverse or critical 
comments are received.
    If USEPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. USEPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective on July 28, 1997.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

Administrative Requirements

A. Executive Order (E.O.) 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrators 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 E.O. 12866 review.

B. Regulatory Flexibility Act

    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.
    Extension of an area's attainment date under the CAA does not 
impose any new requirements on small entities. Extension of an 
attainment date is an action that affects a geographical area and does 
not impose any regulatory requirements on sources. USEPA certifies that 
the approval of the attainment date extension will not affect a 
substantial number of small entities.

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, USEPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal

[[Page 28637]]

governments in the aggregate; or to private sector, of $100 million or 
more. Under Section 205, USEPA must select the most cost-effective and 
least burdensome alternative that achieves the objectives of the rule 
and is consistent with statutory requirements. Section 203 requires 
USEPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    USEPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, USEPA 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 this 
Federal Register. This rule is not a ``major rule'' as defined by 
section 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 28, 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 to grant Ohio and Kentucky an extension to attain the ozone 
NAAQS in the Cincinnati-Hamilton ozone nonattainment area as defined in 
40 CFR 81.318 and 40 CFR 81.336 may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Ozone.

40 CFR Part 81

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

    Dated: May 16, 1997.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    Dated: May 16, 1997.
Valdas V. Adamkus,
Regional Administrator, Region 5.

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

PART 52--[AMENDED]

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

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

Subpart S--Kentucky

    2. Section 52.930 is amended by adding paragraph (d) to read as 
follows:


Sec. 52.930  Control strategy: Ozone.

* * * * *
    (d) Kentucky's November 15, 1996, request for a one-year attainment 
date extension for the Kentucky portion of the Cincinnati-Hamilton 
metropolitan moderate ozone nonattainment area which consists of 
Kenton, Boone, and Campbell Counties is approved. The date for 
attaining the ozone standard in these counties is November 15, 1997.

Subpart KK--Ohio

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


Sec. 52.1885  Control strategy: Ozone.

* * * * *
    (bb) Ohio's November 7, 1996, request for a one-year attainment 
date extension for the Ohio portion of the Cincinnati-Hamilton 
metropolitan moderate ozone nonattainment area which consists of 
Hamilton, Butler, Clermont and Warren Counties is approved. The date 
for attaining the ozone standard in these counties is November 15, 
1997.

PART 81--[AMENDED]

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

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

    2. In Section 81.318, the ``Kentucky--Ozone'' table is amended by 
revising the entry for the ``Cincinnati-Hamilton Area'' to read as 
follows:


Sec. 81.318  Kentucky.

* * * * *

                                                                     Kentucky--Ozone                                                                    
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                                                                Designation                                           Classification                    
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cincinnati-Hamilton Area:                                                                                                                               
Boone County............................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
Campbell County.........................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
Kenton County...........................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
                                                                                                                                                        
                  *                  *                  *                  *                  *                  *                  *                   
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\1\ This date is November 15, 1990, unless otherwise noted.                                                                                             
\2\ Attainment date extended to November 15, 1997.                                                                                                      

* * * * *
    3. In Section 81.336, the ``Ohio--Ozone'' table is amended by 
revising the entry for the ``Cincinnati-Hamilton Area'' to read as 
follows:


Sec. 81.336  Ohio.

* * * * *

[[Page 28638]]



                                                                       Ohio--Ozone                                                                      
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                                                                Designation                                           Classification                    
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Cincinnati-Hamilton Area:                                                                                                                               
Butler County...........................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
Clermont County.........................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
Hamilton County.........................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
Warren County...........................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
                                                                                                                                                        
                  *                  *                  *                  *                  *                  *                  *                   
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.                                                                                             
\2\ Attainment date extended to November 15, 1997.                                                                                                      

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[FR Doc. 97-13751 Filed 5-23-97; 8:45 am]
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