Federal Register, Volume 63 Issue 58 (Thursday, March 26, 1998)

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