[Federal Register Volume 63, Number 58 (Thursday, March 26, 1998)]
[Rules and Regulations]
[Pages 14623-14626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7760]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH107a; KY101-9809a; FRL-5985-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is extending the attainment date for the Cincinnati-
Hamilton interstate moderate ozone nonattainment area from November 15, 
1997 to November 15, 1998. This extension is based in part on monitored 
air quality readings for the national ambient air quality standard 
(NAAQS) for ozone during 1997. Accordingly, EPA is revising the table 
in the Code of Federal Regulations concerning ozone attainment dates in 
this area. In this action, EPA is approving the States' request through 
``direct final'' rulemaking; the rationale for this approval is set 
forth below. Elsewhere in this Federal Register, EPA is proposing 
approval and soliciting comment on this action; should EPA receive such 
comment, it will publish an action informing the public that this rule 
did not take effect; otherwise no further rulemaking will occur on this 
SIP revision request.

DATES: This final rule is effective May 26, 1998 unless substantive 
written adverse comments not previously addressed by the State or EPA 
are received by April 27, 1998. If the effective date is delayed, 
timely notification will be published in the Federal Register.

ADDRESSES: Written comments may be mailed to Joseph M. LeVasseur at the 
EPA 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, 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, 77 West Jackson Boulevard, Chicago, 
Illinois, 60604.
OEPA, Division of Air Pollution Control, 1800 Watermark Drive, 
Columbus, OH 43215.

FOR FURTHER INFORMATION CONTACT: Joseph M. LeVasseur at the EPA Region 
4 address listed above or Randolph O. Cano at the Region 5 address 
listed above. (It is recommended that you contact Joseph M. LeVasseur 
at (404) 562-9035 before visiting the Region 4 office.) (It is 
recommended that you contact Randolph O. Cano at (312) 886-6036 before 
visiting the Region 5 office.)

SUPPLEMENTARY INFORMATION:

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

    On November 14, 1997, 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 January 7, 1998 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), was November 15, 1996. On November 17, 1997 (62 FR 61241, and 
see 63 FR 6664) EPA extended the attainment date to November 15, 1997. 
The submittals request that the attainment date be extended to November 
15, 1998.

CAA Requirements and EPA Actions Concerning Designation and 
Classification

    Section 107(d)(4) of the CAA requires the States and EPA 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, or extreme, depending on their air quality. In a 
series of Federal Register documents, EPA 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); 59 FR 
18967 (April 21, 1994).
    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 EPA 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, EPA determines attainment status on the 
basis of the average number of expected 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

[[Page 14624]]

attainment date, the area must be reclassified upwards.
    However, CAA section 181(a)(5) provides an exemption from these 
bump up requirements. Under this exemption, EPA 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 1 
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.
    EPA 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 EPA-approved SIP for 
the area have been complied with, and,
    (3) the area has no more than one measured exceedance of the NAAQS 
during the year that includes the attainment date (or the subsequent 
year, if a second one-year extension is requested).
    On November 17, 1997 (62 FR 61241), EPA granted the Ohio and 
Kentucky requests to extend the attainment date for the Cincinnati 
Hamilton Interstate moderate ozone nonattainment area from November 15, 
1996 to November 15, 1997. The November 17, 1997 approval was based in 
part on monitored air quality readings for the national air quality 
standard for 1996.
    Ohio's second ozone attainment date extension was supported by 
monitored air quality readings during 1997.
    A review of the actual ambient air quality ozone data from the EPA 
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 1995 to 1997. At one of these monitors, 
Middletown OH, the number of expected exceedances was 2.0 for 1995, 1.0 
for 1996 and 1.0 for 1997. 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 the three year 
period. Thus the area did not meet the November 15, 1997 attainment 
date.
    Kentucky provided no discussion of monitoring data in its January 
7, 1998 request. However, in its November 14, 1997 request, Ohio 
indicated that Ohio and Kentucky had satisfied the compliance date 
extension criteria in as much as no monitors in the Cincinnati-Hamilton 
area monitored more than one exceedance each during 1997. The 1997 
monitoring data has been quality controlled and quality assured as has 
been the data for 1995 and 1996. These data have been summarized in 
Table 1. The monitoring data for the Oxford, Ohio site located in 
Butler County is not provided in the list. Currently, quality assured 
data is not available for this site for 1997.
    An examination of the data indicate that three of the ten monitors, 
currently in operation, recorded one exceedance each during 1997. EPA 
has determined that the requirements for a second one-year extension of 
the attainment date have been fulfilled as follows:

                    Table 1.--Cincinnati-Hamilton Monitored Exceedances and Violation 1995-97                   
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                                                                                     Kentucky                   
                                                                 -----------------------------------------------
                                                                                     Campbell                   
                                                                   Boone County       County       Kenton County
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1995............................................................               0               0             1.0
1996............................................................               0             1.0             1.0
1997............................................................               0               0               0
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                                                                                                   Ohio                                                 
                                                 -------------------------------------------------------------------------------------------------------
                                                        Butler County                  Hamilton County                         Warren County            
                                                 -------------------------------------------------------------------------------------------------------
                                                    Hamilton    Middletown   Grooms Rd    Ripple Rd    Cincinnati    Lebanon      Cook Rd    Clermont Co
1995............................................          1.0          2.0            0          1.0          1.0          2.0        (\1\)          1.0
1996............................................            0          1.0            0            0            0            0        (\1\)            0
1997............................................            0          1.0          1.0            0            0        (\1\)          1.0            0
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\1\ No data is available for this site during this year.                                                                                                

    (1) Ohio and Kentucky have formally submitted the attainment date 
extension requests.
    (2) Ohio and Kentucky are currently implementing the EPA-approved 
SIPs.
    (3) A review of actual ozone ambient air quality data for the 
Cincinnati-Hamilton Interstate area indicates that the area has 
monitored no more than one exceedance of the NAAQS at any monitor 
during 1997.
    Therefore, EPA approves the Ohio and Kentucky second one-year 
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 EPA'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 EPA's 
approval of Ohio's attainment date extension request.

EPA Action

    EPA is approving the second one-year attainment date extension 
requests for the Cincinnati-Hamilton moderate

[[Page 14625]]

ozone nonattainment area from November 15, 1997 to November 15, 1998 
without prior proposal because EPA views this as a noncontroversial 
amendment and anticipates no adverse comments. However, in a separate 
document in this Federal Register publication, the EPA is proposing to 
approve this part 52 and part 81 action should written adverse or 
critical comments be filed.
    This rule will become effective without further notice unless EPA 
receives relevant adverse written comment on the parallel proposed rule 
(published in the proposed rules section of this Federal Register) by 
April 27, 1998. Should EPA receive such comments, it will publish a 
final rule informing the public that this rule did not take effect. Any 
party 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 May 26, 1998.
    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

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

B. Regulatory Flexibility Act

    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.
    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. EPA 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 
signed into law on March 22, 1995, EPA 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 governments in the aggregate; or to private sector, of $100 
million or more. Under section 205, EPA 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 EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    EPA 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. Audit Privilege and Immunity Law

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Ohio's audit 
privilege and immunity law (sections 3745.70-3745.73 of the Ohio 
Revised Code ). The EPA will be reviewing the effect of the Ohio audit 
privilege and immunity law on various Ohio environmental programs, 
including those under the CAA. The EPA will take appropriate action(s), 
if any, after thorough analysis and opportunity for Ohio to state and 
explain its views and positions on the issues raised by the law. The 
action taken herein does not express or imply any viewpoint on the 
question of whether there are legal deficiencies in this or any Ohio 
CAA program resulting from the effect of the audit privilege and 
immunity law. As a consequence of the review process, the regulations 
subject to the action taken herein may be disapproved, Federal approval 
for the CAA program under which they are implemented may be withdrawn, 
or other appropriate action may be taken, as necessary.

E. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to the publication of the rule in the Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

F. 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 May 26, 1998. 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: February 27, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
    Dated: March 16, 1998.
David A. Ullrich,
Acting 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 et seq.

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


Sec. 52.930  Control strategy: Ozone.

* * * * *
    (f) Kentucky's January 7, 1998, request for a one-year attainment 
date extension for the Kentucky portion of the Cincinnati-Hamilton 
metropolitan

[[Page 14626]]

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, 1998.
    3. Section 52.1885 is amended by adding paragraph (cc) to read as 
follows:


Sec. 52.1885  Control strategy: Ozone.

* * * * *
    (cc) Ohio's November 14, 1997, 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, 
1998.

PART 81--[AMENDED]

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

    Authority: 42 U.S.C. 7401 et seq.

    2. In Sec. 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                  
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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, 1998.                                                                                                      

* * * * *
    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.

* * * * *

                                                                       Ohio--Ozone                                                                      
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                                                                Designation                                           Classification                    
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type                  
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                   *                  *                  *                  *                  *                  *                  *                  
Cincinnati-Hamilton Area:                                                                                                                               
    Butler County.......................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
    Clermont County.....................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
    Hamilton County.....................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
    Warren 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, 1998.                                                                                                      

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[FR Doc. 98-7760 Filed 3-25-98; 8:45 am]
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