[Federal Register Volume 65, Number 118 (Monday, June 19, 2000)]
[Rules and Regulations]
[Pages 37879-37900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15294]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH-132-2; KY-116-2; KY-84-2; FRL-6717-1]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Ohio and Kentucky

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: We are determining that the Cincinnati-Hamilton moderate ozone 
nonattainment area (Cincinnati-Hamilton area) has attained the 1-hour 
ozone National Ambient Air Quality Standard (NAAQS) by its extended 
attainment date. The Cincinnati-Hamilton area includes the Ohio 
Counties of Hamilton, Butler, Clermont, and Warren and the Kentucky 
Counties of Boone, Campbell, and Kenton. This determination is based on 
three years of complete, quality-assured, ambient air monitoring data 
for the 1996 to 1998 ozone seasons that demonstrate that the ozone 
NAAQS has been attained in the area, as well as the most recent 3-year 
period of data from 1997-1999, which shows the area is continuing to 
attain. On the basis of this determination, EPA is also determining 
that certain attainment demonstration requirements, along with certain 
other related requirements of Part D of Title 1 of the Clean Air Act 
(CAA), are not applicable to the Cincinnati-Hamilton area.
    We are also approving an exemption for the Cincinnati-Hamilton area 
from the nitrogen oxides (NOX) requirements as provided for 
in section 182(f) of the CAA. Section 182(f) establishes NOX 
requirements for ozone nonattainment areas. However, it also provides, 
in subsection 182(f)(1)(A), that these requirements shall not apply to 
an area if the Administrator determines that additional NOX 
reductions would not contribute to attainment of the ozone NAAQS in 
that area. Because the Cincinnati-Hamilton area is currently attaining 
the ozone NAAQS without benefit of additional NOX 
reductions, we are granting the area a NOX exemption. As a 
result, the Cincinnati-Hamilton area will no longer be subject to the 
section 182(f) NOX requirements; however, all NOX 
controls previously approved for the area by EPA must continue to be 
implemented.
    We are also approving the State of Ohio Environmental Protection 
Agency's (OEPA) and the Commonwealth of Kentucky Natural Resources and 
Environmental Protection Cabinet's (Cabinet) requests to redesignate 
the Cincinnati-Hamilton area to attainment of the 1-hour ozone NAAQS. 
The original redesignation request from OEPA, dated June 28, 1999, was 
received on July 2, 1999, and completed on December 22, 1999. The 
Cabinet's redesignation request to EPA was dated October 29, 1999. In 
approving these redesignation requests, EPA is also approving, as 
revisions to the Ohio and Kentucky State Implementation Plans, the 
States' plans for maintaining the 1-hour ozone standard for the next 10 
years.

EFFECTIVE DATE: This action will be effective on July 5, 2000.

ADDRESSES: Copies of the OEPA's and the Cabinet's submittals and other 
information are available for inspection during normal business hours 
at the following locations. Interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day. The reference file numbers are 
OH-132, KY-116 and KY-84.

United States Environmental Protection Agency, Region 5, Air Programs 
Branch (AR-18J), Regulation Development Section, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
United States Environmental Protection Agency, Region 4, Air Planning 
Branch, Regulatory Planning Section, 61 Forsyth Street SW, Atlanta, 
Georgia 30303.

FOR FURTHER INFORMATION CONTACT:

William Jones, Environmental Scientist, United States Environmental 
Protection Agency, Region 5, Air Programs Branch (AR-18J), Regulation 
Development Section, 77 West Jackson Boulevard, Chicago, Illinois 
60604, (312) 886-6058, ([email protected]).
Allison Humphris, Environmental Scientist, United States Environmental 
Protection Agency, Region 4, Air Planning Branch, Regulatory Planning 
Section, 61 Forsyth Street SW, Atlanta, Georgia 30303, (404) 562-9030, 
([email protected]).

Table of Contents

I. What is the background for these actions?
II. What comments did we receive and what are our responses?
III. What actions are we taking?
IV. Why are we taking these actions?
V. What are the effects of these actions?
VI. Approving SIP Revisions in Audit Law States.
VII. Administrative requirements.
    A. Executive Order 12866

[[Page 37880]]

    B. Executive Order 13045
    C. Executive Order 13084
    D. Executive Order 13132
    E. Executive Order 12898
    F. Regulatory Flexibility
    G. Unfunded Mandates
    H. Submission to Congress and the Comptroller General
    I. National Technology Transfer and Advancement Act
    J. Other
    K. Petitions for Judicial Review

    Whenever ``we,'' ``us,'' or ``our'' are used we mean EPA.

I. What Is the Background for These Actions?

    See proposed rulemaking published January 24, 2000 (65 FR 3630). On 
March 17, 2000 (65 FR 14510), EPA reopened the public comment period 
until March 24, 2000.
    Prior to the January 24, 2000 proposal to redesignate the area, EPA 
approved two 1-year extensions of the area's attainment date (62 FR 
61241, November 17, 1997; 63 FR 14673, March 26, 1998) making its new 
attainment date November 15, 1998. The area attained the 1-hour 
standard by its extended attainment date (November 15, 1998).

II. What Comments Did We Receive and What Are Our Responses?

    Comments in support of the rulemaking action are not summarized 
below. The adverse comments and EPA responses to them are provided 
below.
    Comment 1: The Ohio Chapter of the Sierra Club requested a 30-day 
extension, beyond February 23, 2000, of the public comment period due 
to the proposal's alleged technical complexity and the unavailability 
of their Conservation Chair during the last week of the comment period.
    Response 1: EPA reopened the comment period until March 24, 2000. 
See 65 FR 14510, dated March 17, 2000.
    Comment 2: The commenter believes that the air quality protections 
provided by designation of the area as nonattainment are needed to 
address continued adverse health effects from poor air quality. EPA has 
adopted a more stringent air quality standard based on an 8-hour 
average rather than 1-hour average ozone concentrations. The 8-hour 
average standards have been ``suspended'' by the Circuit Court of 
Appeals of the District of Columbia. The court stated that it accepted 
EPA's findings that tighter standards were needed to protect public 
health. The commenter claims that an important factor in the litigation 
is that even the 8-hour standard is insufficient to protect public 
health with an adequate margin of safety. Thus, the commenter implies 
that attainment of the 1-hour ozone standard is insufficient to protect 
public health.
    The commenter does not analyze air quality in relation to the 1-
hour standard, the 8-hour standard, or any other criteria. Instead, as 
evidence of poor air quality, the commenter cites analyses by the 
Natural Resources Defense Council. The comments highlight the deaths 
attributable to inhalation of particulate matter. The comments also 
reference Cincinnati Health Department estimates of `` `about 5000 
sublethal cases per year' of temporary respiratory problems due to 
ozone levels.'' The commenter concludes that ``lifting restrictions 
imposed by nonattainment status would violate the spirit if not the 
letter of the Act by increasing the exposure of the public to [unsafe 
levels].''
    Response 2: EPA continues to believe that implementation of the 8-
hour average ozone standard it adopted in 1997 would provide a more 
appropriate level of protection against ozone's adverse impacts. EPA is 
pursuing Supreme Court review of the Circuit Court's ruling, American 
Trucking Assoc. v. EPA, 175 F.3d 1027, modified on rehearing 193 F.3d 4 
(D.C. Cir. 1999), with hopes of being able to apply the full legal 
authority of the Clean Air Act to mandate attainment of the revised 
standard. EPA does not believe that the Cincinnati-Hamilton area's 
status with respect to the 8-hour standard is relevant to the issues in 
this rulemaking, as this rulemaking concerns a redesignation under the 
1-hour standard, not a designation made under the 8-hour standard, for 
which designations have yet to be made.
    Comment 3: The commenters note the impact of poor air quality in 
Hamilton County (the county containing the City of Cincinnati) on the 
African-American community, and request that EPA ``consider the racial, 
ethnic and economic composition of local communities in relation to 
volatile organic compound (VOC) emissions, ozone formation, and ozone 
accumulation.'' The commenters allege that redesignating the area as 
attainment would violate President Clinton's Executive Order 12898.
    Response 3: The commenters imply that the area is not meeting the 
standard for ozone. EPA's rulemaking action here determines not only 
that the Cincinnati-Hamilton area is attaining the 1-hour standard for 
ozone, but that its State Implementation Plan and maintenance plan 
provide for attainment and maintenance of the standard throughout the 
area.
    The commenters assert that African-American and low-income 
residents in the center-city are exposed to higher ozone levels than 
other residents. The air quality data for the entire Cincinnati-
Hamilton area, however, reflects levels below the ozone NAAQS. Further, 
commenters' Appendix 1 indicates that ``ozone monitors in the north and 
northwest suburbs have traditionally measured the highest ozone 
levels'', whereas the monitors near the communities referenced by the 
commenters have measured comparatively lower levels of ozone.
    We therefore find that the rulemaking at issue here is consistent 
with Executive Order 12898 and does not impose any disproportionately 
high and adverse human health or environmental effects on minority and 
low-income populations.

    Comment 4: The commenters allege that the State Implementation Plan 
(SIP) is inadequate in addressing population and economic growth 
impacts in this region.
    Response 4: The maintenance plan adequately takes into account 
growth and population impacts on emissions in the Cincinnati-Hamilton 
area. Both Ohio's and Kentucky's emissions projections for point 
sources use Bureau of Economic Analysis (BEA) industrial employment 
projection data broken down by Standard Industrial Classification (SIC) 
to ``grow'' the point source emissions into the future.
    The average annual growth rates used to project point sources in 
the Ohio portion of the area were between -0.05 and 2.8 percent. The 
emissions projections for area sources are grown using BEA industrial 
employment data broken down by SIC for some area source categories. 
Other area source categories are projected using projected population 
data for the area. The growth rates used for area source projections 
were around zero to just over one percent per year.
    In Kentucky, the growth rates for point sources were around a half 
percent decrease to around a four percent increase in growth per year. 
The ranges for area sources in Kentucky were from around zero to around 
three percent per year.
    The mobile source emissions projections were made by the Ohio-
Kentucky-Indiana Metropolitan Council of Governments (OKI), which is 
the local metropolitan planning organization. They used a travel demand 
model, and MOBILE5a-H (EPA's mobile source emissions factor model), 
along with post-processing programs to calculate emissions for the

[[Page 37881]]

area. The OKI travel demand model uses demographic and land use data 
for each of 1003 Traffic Analysis Zones and capacity and free-flow 
speed characteristics for each roadway segment in the transportation 
network to produce a ``loaded'' highway network with forecasted traffic 
volumes with revised speeds (based on specified speed/capacity 
relationships). Complete sets of population, household and employment 
forecasts were prepared for 2010 based on the 1990 Census and 
projections from the Ohio Department of Development and Kentucky State 
Data Center. The modeling process used to develop this 2010 emissions 
data was calibrated using the latest demographic and land use data 
available. The transportation network used in this analysis includes 
the existing highway and transit network plus all capacity-related 
highway projects included in OKI's financially-constrained 2020 
Metropolitan Transportation Plan as amended in June 1999. The emissions 
projections in the area do take into consideration growth and changes 
in population.
    A comparison was made of the change in volatile organic compound 
and nitrogen oxides emissions in the maintenance plan for the 
Cincinnati-Hamilton area versus the statewide emissions estimates used 
in the Tier 2 rulemaking. ``Data Summaries of Base and Future Year Mass 
and Modeling Inventories for the Tier 2 Final Rulemaking, Detailed 
Report,'' EPA420-R-99-003, September 1999. In the maintenance plan the 
area-wide VOC emissions decreased 11% between 1996 and 2005.\1\ This 
compares to statewide emissions decreases of 25% and 13% between 1996 
and 2007 for Ohio and Kentucky, respectively. In the maintenance plan 
the area-wide NOX emissions decreased 8% between 1996 and 
2005. This compares to statewide emissions decreases of 47% and 45% 
between 1996 and 2007 for Ohio and Kentucky, respectively.
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    \1\ Area-wide emissions projections for 2007 were not available 
for the maintenance plan.
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    The statewide NOX emissions were projected lower in the 
EPA report mainly due to projected emissions reductions required by EPA 
rules affecting Electric Generating Units. If the reductions from 
Electric Generating Units were not included in the statewide 
projections then the statewide NOX emissions reductions 
would be around 10% and 6% for Ohio and Kentucky, respectively. This 
projection without crediting Electric Generating Units reductions 
compares well with the estimates in the maintenance plans. The 
maintenance plans did not include the Electric Generating Units 
reductions in projections of future emissions. Overall, this shows that 
the states' estimates of future NOX emissions in the 
maintenance plan are higher than what would be expected to occur due to 
population and economic growth.
    This rough comparison indicates that the maintenance plans do not 
underestimate the affects of population and economic growth. The 
maintenance plans' estimates of future emissions more than adequately 
account for any future population or economic growth in the Cincinnati-
Hamilton area. The states' estimates of future growth provide a margin 
of safety, are appropriate, reasonable and meet EPA standards for 
maintenance plans.
    Comment 5: The commenter is concerned that the state of Ohio is 
inadequately enforcing the Clean Air Act. The commenter indicates that 
it has identified some indications that Ohio is failing in 
implementation and enforcement of the SIP. For example, the commenter 
states that the air quality monitor in Middletown has demonstrated that 
air quality standards for ozone have been exceeded. AK Steel of 
Middletown is the fourth largest emitter of VOCs (9006.2 tons per year) 
in Ohio according to an EPA analysis of data accumulated between 1990 
and 1995. The commenter claims, however, that EPA sector facility 
indexing project data shows that for all of 1997 and for the first two 
quarters of 1998, the most recent quarters on the database, AK Steel 
was out of compliance with SIP and National Emission Standards for 
Hazardous Air Pollutants requirements. The commenter states that no 
penalties, enforcement actions, or schedules of compliance are listed 
in the database and that there have been no news releases by Ohio EPA 
announcing any recent enforcement actions. A similar situation is 
alleged to have occurred with the local power plant, Cinergy Beckjord, 
which the commenter assumes to be one of the larger emitters in the 
region. The commenter asserts that the facility is now being sued by 
EPA for apparently skirting the CAA for many years despite supervision 
by the State of Ohio. The commenter objects to EPA's acceptance of 
Ohio's SIP as protective of the 1-hour ozone NAAQS given alleged lax or 
ineffective monitoring and enforcement of Hamilton County's largest 
polluters by state authorities and their designates.
    Another commenter argues that the maintenance plan is also not 
approvable because it lacks enforcement programs and commitments of 
resources as required by the Clean Air Act. 42 U.S.C. 7410(a)(2)(E). 
The commenter claims that EPA simply assumes that the various measures 
relied on for future emission reductions will continue to be 
implemented. Without explicit commitments of legal authority and 
resources to implement all of those measures, the commenter argues that 
the maintenance plan is not approvable.
    Response 5: Regardless of any alleged implementation issues, the 
area is attaining the 1-hour ozone standard. In fact, the entire state 
of Ohio is now in attainment for ozone. The commenter noted that the 
ozone monitor in Middletown has recorded exceedances of the NAAQS. The 
monitoring data for the area show that during the 1997-1999 time 
period, an exceedance occurred once in 1997 and once in 1999. This 
averages out to 0.67 expected exceedances during the 1997-1999 time 
period. This is below 1.0 and shows that the monitor is monitoring 
attainment of the 1-hour ozone standard.
    The CAA requires the area to have a fully approved SIP and to have 
met all of the applicable requirements of the CAA. The area's SIP 
satisfies these requirements as described in EPA's proposed rulemaking 
published on January 24, 2000 (65 FR 3630). The measures that Ohio is 
relying on to maintain the 1-hour ozone standard have been approved 
into the SIP and are state and federally enforceable. See references to 
approved SIP in the January 24, 2000 proposed rulemaking. The state 
must continue to implement these measures as provided for in the 
federally approved SIP.
    Ohio has committed to select and implement the maintenance plan 
contingency measures within 12 months of a violation of the 1-hour 
ozone standard. See April 14, 1995 letter from Donald Schregardus, OEPA 
to David Kee, EPA, for further information. The commenter provided no 
evidence that the maintenance plan fails to satisfy section 
110(a)(2)(E). The CAA does not require a separate level of enforcement 
for a maintenance plan as a prerequisite to redesignation. The 
enforcement program approved for and applicable to the SIP as a whole 
also applies to the maintenance plan.
    Redesignation to attainment for ozone does not suspend the 
implementation of the existing VOC Reasonably Available Control 
Technology (RACT) rules for the sources in the area. These rules will 
continue to be in place to provide for maintenance of the 1-hour ozone 
standard.
    In 1980, EPA approved the Ohio ozone SIP as meeting all of the 
requirements of section 110, which

[[Page 37882]]

included section 110(a)(2)(F), the predecessor of current section 
110(a)(2)(E). See 40 CFR 52.1873. EPA has consistently interpreted 
section 107(d)(3) as permitting the Agency to rely on prior approvals 
of SIP provisions when reviewing redesignation requests. A memorandum 
to its Regional Offices from John Calcagni, Director of the Air Quality 
Management Division, dated September 4, 1992, (Calcagni Memorandum) 
describes procedures that EPA regions should use to evaluate requests 
to redesignate areas to attainment status. The memo states:
    ``An area cannot be redesignated if a required element of its plan 
is the subject of a disapproval * * *. However, this does not mean that 
earlier issues with regard to the SIP will be reopened. Regions should 
not reconsider those things that have already been approved and for 
which the Clean Air Act Amendments did not alter what is required.''
    EPA does not need to reconsider the issue of whether the Ohio SIP 
meets section 110(a)(2)(E) requirements prior to redesignation. 
Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984 (6th 
Cir. 1998).
    Even if violations subsequently occur, this does not conclusively 
establish that state enforcement is so inadequate as to make the state 
enforcement program deficient under the Clean Air Act. EPA has not yet 
made such a finding, and even if the area is redesignated, EPA retains 
authority to make a finding of failure to implement under section 
173(b) of the Clean Air Act or to require a SIP revision under section 
110(a)(2)(H) if it concludes that state implementation and enforcement 
is deficient. The State would thus remain subject to EPA authority to 
improve its enforcement even after the area is redesignated. For 
purposes of redesignation, the area has a fully approved SIP.
    In addition, EPA notes that in response to petitions filed by the 
commenter and others (also referred to in Comment 16), EPA is currently 
conducting a comprehensive review of the programs cited in those 
petitions as amended and supplemented. Any implementation deficiencies 
EPA finds in this review will be addressed and corrected in contexts 
apart from the redesignation procedure that is the subject of this 
rulemaking. See also Responses 16 and 24. EPA also recently advised the 
state of Ohio that, ``as amended by the Ohio Legislature and 
interpreted by Ohio's Attorney General, Ohio's Audit Privilege and 
Immunity Law should not present a barrier to continued authorization of 
federal environmental programs in Ohio.'' Letter dated June 18, 1999 
from Steven A. Herman, Assistant Administrator to Betty D. Montgomery, 
Attorney General, State of Ohio, and Christopher Jones, Director, OEPA.

    Comment 6: The commenter claims that the legal requirements for 
redesignation have not been met. The prerequisites for redesignating a 
nonattainment area to attainment are set forth in section 107(d)(3)(E) 
of the CAA, 42 U.S.C. 7407(d)(3)(E). Section 107(d)(3)(E)(i) of the CAA 
prohibits a redesignation to attainment unless EPA determines that the 
area has attained the ozone NAAQS. The commenter states that although 
EPA's Aerometric Information Retrieval System (AIRS) data does not show 
NAAQS violations in 1996-1998, EPA has not determined that the area has 
attained the standard, nor can it do so.
    In its recent rulemaking adopting Tier 2 Motor Vehicle Emission 
Standards, EPA listed the Cincinnati-Hamilton area as ``certain or 
highly likely to require additional emission reductions in order to 
attain and maintain the 1-hour ozone NAAQS.'' 65 FR 6698, 6710 
(February 10, 2000). The commenter alleges that EPA cannot determine 
that this area has attained the standard when it has explicitly found 
that the area requires additional emission reductions to attain and 
maintain the NAAQS. Further, the commenter states that EPA has not 
shown that emission reductions from the Tier 2 motor vehicle and 
gasoline sulfur standards will be substantial enough, or occur soon 
enough, to produce timely attainment and maintenance.
    EPA's own projections, the commenter argues, undermine any claim 
that the recent absence of violations is due to permanent and 
enforceable emission reductions.
    According to the commenter, moreover, any emissions benefits 
attributed to the Tier 2 standards and gasoline sulfur requirements 
must be offset by reductions that EPA's projections assumed would occur 
from the NOX SIP call and other measures that cannot yet be 
credited because they are not enforceable as things stand now, and that 
EPA cannot approve the maintenance demonstration without first 
conducting new modeling to account for the foregoing concerns. 
Furthermore, any such modeling (or reanalysis of existing data) must be 
subject to full public notice and comment before final EPA action on 
the redesignation proposal.
    Response 6: The Cincinnati-Hamilton area has monitored attainment 
of the 1-hour ozone standard for both the 1996-1998 and 1997-1999 time 
periods. The area is well monitored. There are 10 ozone monitors in 
operation throughout the seven county area. This monitoring clearly 
demonstrates that the air quality in the area has improved and that the 
area is attaining the 1-hour ozone standard. Also, see discussion for 
Table 3 in response below summarizing the air quality data from 1987 to 
1999. The fact that attainment has lasted over a four-year period is 
strong evidence that it is attributable to emission reductions and not 
merely favorable meteorology.
    Any emissions and ozone modeling system used to predict future 
ozone involves approximations and uncertainties at each stage: 
historical emission inventory estimation, growth and control 
projection, transport modeling, and photochemical modeling. Model 
predictions are best treated as indicators of risk, rather than as 
absolute forecasts. In the Tier 2 rulemaking, we used a regional ozone 
modeling system to predict ozone in many cities, as part of an 
interpretative process to characterize the risk that there would be 
nonattainment in a large and geographically broad number of areas. 
While ozone predictions and the characterization of the risk of 
nonattainment in individual areas was a step toward reaching a 
conclusion about risks across the group of areas, that characterization 
was not an Agency finding of violations for any specific area.
    In the Tier 2 rulemaking, no area was characterized as being highly 
likely to require more emission reductions for attainment and 
maintenance unless the ozone modeling predicted a future exceedance and 
actual air quality data indicated nonattainment between 1995 and 1998. 
An area with monitored attainment in 1995 to 1998 was at worst 
characterized as having a moderate risk of future nonattainment, and 
only if it came within 10 percent of having a NAAQS violation in the 
1995 to 1998 period. At the time, we used 1995-1998 (two three-year 
periods), so the Cincinnati-Hamilton area was included in the list of 
areas highly likely to need more reductions. The Tier 2 modeling did 
not have available to it the 1999 air quality data which shows that the 
area is continuing to attain the ozone standard. With the 1999 data, 
application of the same method would result in it being characterized 
as having only a moderate risk of needing additional emission 
reductions to avoid nonattainment sometime in the 2007 to 2030 period. 
A moderate risk of nonattainment is not inconsistent with EPA approval 
of the maintenance plan.

[[Page 37883]]

    In the Tier 2 method, we also deferred to local attainment 
demonstration and weight of evidence conclusions wherever they existed 
and indicated attainment by 2007, moving even areas with both predicted 
2007 exceedances and actual 1995-1998 violations to a ``significant 
risk'' list in those cases where we had proposed approval of an 
attainment demonstration, based on weight of evidence considerations, 
without requiring additional emission reductions. In the case of the 
Cincinnati-Hamilton area, there is no local modeling or weight of 
evidence analysis indicating future attainment, but there is data 
showing attainment now, and emission inventory projections that show 
that total NOX and VOC emissions decline between 1996 and 
2007. Actual local data showing attainment over four years, combined 
with a downward trend in total emissions, is an even stronger basis for 
not relying completely on the Tier 2 ozone modeling.
    With respect to maintenance of the 1-hour ozone standard, the Tier 
2 modeling showed a downward trend in ozone from 1996 to 2007 in the 
Cincinnati-Hamilton area, even without Tier 2 reductions. The Tier 2 
reductions are the type of additional reductions that will help ensure 
maintenance for the next 10 years.

    Comment 7: Pursuant to section 107(d)(3)(E)(ii) of the Clean Air 
Act, EPA cannot redesignate an area to attainment unless EPA ``has 
fully approved the applicable implementation plan for the area.'' The 
commenter contends that EPA has yet to fully approve the applicable 
implementation plan for the Cincinnati-Hamilton area. The commenter 
maintains that among other things, EPA has yet to fully approve the 
moderate area ozone SIP for this area and has also failed to fully 
approve the following specific SIP elements required by the Clean Air 
Act:
    A. Attainment demonstration: The Clean Air Act requires the 
moderate area SIP submittal to include an attainment demonstration 
based on photochemical grid modeling or other analytical method 
determined by EPA to be at least as effective. 42 U.S.C. 7502(c)(1), 
(c)(6), 7511a(b)(1), 7511a(j). EPA has not approved an attainment 
demonstration for this area as required by the CAA.
    B. All Reasonably Available Control Measures (RACM): EPA has not 
approved a demonstration that the SIP provides for implementation of 
all reasonably available control measures as expeditiously as 
practicable. 42 U.S.C. 7502(c)(1). The commenter argues that EPA has no 
authority to waive this requirement, which applies in addition to the 
requirement to demonstrate timely attainment.
    C. RACT: The Clean Air Act requires the SIP to mandate Reasonably 
Available Control Technology for all VOC sources within the 
nonattainment area, including all sources covered by Control Technique 
Guideline (CTG) documents. 42 U.S.C. 7502(c)(1), 7511a(b)(2). EPA has 
not fully approved the SIP as meeting this requirement, and concedes 
that the requirement has not been met with respect to the Ohio portion 
of the nonattainment area. 65 FR 3636. The commenter argues that EPA is 
without authority to waive this explicit requirement for SIPs, and 
cannot deem it to be met by the state's commitment to adopt such 
measures in the future if needed as maintenance plan contingency 
measures. The CAA makes clear that RACT (including, specifically, RACT 
specified in Control Technique Guidelines (CTGs)) is a minimum level of 
control technology that must be included in all moderate area SIPs. It 
is not an optional control strategy that can be deferred until 
``needed'' for attainment or maintenance. For these reasons, the 
commenter challenges the legal validity of EPA's prior guidance 
suggesting that unimplemented and ``unneeded'' RACT might be moved to 
an area's maintenance plan as a contingency measure.
    Further, the commenter declares, even the prior guidance requires 
that RACT be fully adopted, submitted, and approved by EPA before 
redesignation: it does not allow a state to defer adoption of RACT 
requirements. The commenter contends that EPA's justification for 
making an exception to the requirement for full adoption here is 
irrational and meritless. The fact that the RACT rules are supposedly 
not needed for attainment and maintenance is a factor that was assumed 
in the original guidance as well, otherwise there would have been no 
basis for even considering the idea of allowing deferred 
implementation.
    Equally irrelevant, says the commenter, is EPA's claim that greater 
emission reductions can be achieved by other contingency measures in 
the area's maintenance plan. The commenter argues that EPA was aware of 
this possibility as well at the time of its prior guidance, and that 
the purpose of requiring full adoption prior to redesignation was to 
provide assurance that this mandatory level of control already required 
in almost all other ozone nonattainment areas would no longer be 
deferred where additional emission reductions were clearly needed, and 
would be subject to immediate implementation (rather than requiring 
potentially years of state rulemaking and EPA reviews). As it is, Ohio 
has not committed to ever adopt the full range of mandated VOC RACT, 
only to consider it as one contingency measure option in the 
maintenance plan.
    Response 7: The Cincinnati-Hamilton area has satisfied all 
applicable ozone requirements and has a fully approved ozone SIP. In 
acting on a redesignation request, EPA may rely on any prior SIP 
approvals plus any additional approvals it may perform in conjunction 
with acting on the redesignation. EPA is fully approving any remaining 
portions of the SIP that must be approved prior to redesignation in 
conjunction with this action. Therefore, the Ohio SIP is fully 
approved. See ``Procedures for Processing Requests to Redesignate Areas 
to Attainment,'' John Calcagni, Director, Air Quality Management 
Division, September 4, 1992, page 3. The Calcagni memorandum allows for 
approval of SIP elements and redesignation to occur simultaneously, and 
EPA has frequently taken this approach in its redesignation actions.
    In response to comment 7A on the attainment demonstration, an 
attainment demonstration is not required under EPA's attainment 
determination policy. EPA has explained at length in other actions its 
rationale for the reasonableness of that interpretation of the Clean 
Air Act and incorporates those explanations by reference here. See, for 
example, 61 FR 20458 (Cleveland-Akron-Lorain, Ohio)(May 7, 1996); 60 FR 
36723 (July 18, 1995)(Salt Lake and Davis Counties, Utah); 60 FR 37366 
(July 20, 1995), 61 FR 31832-33 (June 21, 1996)(Grand Rapids, MI).
    EPA also reiterates its position set forth in the proposed 
rulemaking. Subpart 2 of part D of Title I of the CAA contains various 
air quality planning and SIP submission requirements for ozone 
nonattainment areas. EPA believes it is reasonable to interpret 
provisions regarding Reasonable Further Progress (RFP) and attainment 
demonstrations, along with certain other related provisions, so as not 
to require SIP submissions if an ozone nonattainment area subject to 
those requirements is monitoring attainment of the ozone standard 
(i.e., attainment of the NAAQS demonstrated with three consecutive 
years of complete, quality-assured, air quality monitoring data). EPA 
has interpreted the general provisions of subpart 1 of part D of Title 
I (sections 171 and 172) so as not to require the submission of SIP 
revisions

[[Page 37884]]

concerning RFP, attainment demonstrations, or section 172(c)(9) 
contingency measures. As explained in a memorandum from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, entitled 
``Reasonable Further Progress, Attainment Demonstration, and Related 
Requirements for Ozone Nonattainment Areas Meeting the Ozone National 
Ambient Air Quality Standard,'' dated May 10, 1995, EPA believes it is 
appropriate to interpret the more specific attainment demonstration and 
related provisions of subpart 2 in the same manner. (See Sierra Club v. 
EPA, 99 F.3d 1551 (10th Cir. 1996))
    The attainment demonstration requirements of section 182(b)(1) are 
that the plan provide for ``such specific annual reductions in 
emissions * * * as necessary to attain the national primary ambient air 
quality standard by the attainment date applicable under the CAA.'' If 
an area has in fact monitored attainment of the relevant NAAQS, EPA 
believes there is no need for an area to make a further submission 
containing additional measures to achieve attainment. This is also 
consistent with the interpretation of certain section 172(c) 
requirements provided by EPA in the General Preamble to Title I. As EPA 
stated in the Preamble, no other measures to provide for attainment 
would be needed by areas seeking redesignation to attainment since 
``attainment will have been reached'' (57 FR 13564). Upon attainment of 
the NAAQS, the focus of state planning efforts shifts to the 
maintenance of the NAAQS and the development of a maintenance plan 
under section 175A.
    Similar reasoning applies to other related provisions of subpart 2. 
The first of these are the contingency measure requirements of section 
172(c)(9) of the CAA. EPA has previously interpreted the contingency 
measure requirement of section 172(c)(9) as no longer being applicable 
once an area has attained the standard since those ``contingency 
measures are directed at ensuring RFP and attainment by the applicable 
date'' (57 FR 13564).
    The state must continue to operate an appropriate air quality 
monitoring network, in accordance with 40 CFR part 58, to verify the 
attainment status of the area. The air quality data relied upon to 
determine that the area is attaining the ozone standard must be 
consistent with 40 CFR part 58 requirements and other relevant EPA 
guidance and recorded in EPA's AIRS.
    EPA has reviewed the ambient air monitoring data for ozone 
(consistent with the requirements contained in 40 CFR part 58 and 
recorded in EPA's AIRS) for the Cincinnati-Hamilton moderate ozone 
nonattainment area from the 1996 through 1998 ozone seasons. This data 
is summarized in Table 3. Monitoring data for 1999 show the area 
continues to attain the 1-hour ozone NAAQS. On the basis of this 
review, EPA determines that the area has attained the 1-hour ozone 
standard during the 1996-98 period, as well as the 1997-1999 period 
(the most recent three-year time period of air quality monitoring 
data), and therefore is not required to submit an attainment 
demonstration and a section 172(c)(9) contingency measure plan and does 
not need any other measures to attain the 1-hour ozone standard.
    In response to comments 7 B and C, no additional RACM controls 
beyond what are already required in the SIP are necessary for 
redesignation to attainment. The General Preamble (57 FR 13560, (April 
16, 1992)) explains that section 172(c)(1) requires the plans for all 
nonattainment areas to provide for the implementation of RACM as 
expeditiously as practicable. EPA interprets this requirement to impose 
a duty on all nonattainment areas to consider all available control 
measures and to adopt and implement such measures as are reasonably 
available for implementation in the area's attainment demonstration. 
Because attainment is reached no additional measures are needed to 
provide for attainment.
    The suspension of the attainment demonstration requirements 
pursuant to our determination of attainment includes the section 
172(c)(1) RACM requirements as well. The General Preamble treats the 
RACM requirements as a ``component'' of an area's attainment 
demonstration. See reference above. Thus, the suspension of the 
attainment demonstration requirement pursuant to our determination of 
attainment applies to the RACM requirement, since it is a component of 
the attainment demonstration.
    As discussed in the proposed rulemaking, Ohio has completed 
adoption of stationary source RACT requirements for the Cincinnati-
Hamilton moderate ozone nonattainment area. EPA has approved these RACT 
regulations in prior rulemakings. See rulemakings for Ohio dated April 
25, 1996 (61 FR 18255), September 7, 1994 (59 FR 46182) and October 23, 
1995 (60 FR 54308). The requirement for RACT based on new CTGs in Ohio 
is satisfied by the listing of new CTGs in the maintenance plan as 
contingency measures. See discussion in EPA's proposed rulemaking on 
this action. EPA's rationale has been explained at length in the Grand 
Rapids, Michigan redesignation actions of proposed and final 
rulemakings dated April 2, 1996 (61 FR 14522), June 21, 1996 (61 FR 
31833-31834, 31843-31847), and is incorporated by reference here.
    Ohio has demonstrated that the Cincinnati-Hamilton area does not 
require the new CTG RACT rules for either attainment or maintenance. If 
EPA were to require the State to fully adopt these rules prior to 
redesignation, the State would still be entitled to have the rules 
become a part of the contingency measures in the maintenance plan upon 
approval of the redesignation. EPA's policy allows that even those 
measures which have been adopted may be moved into the area's 
maintenance plan as contingency measures if they are not yet 
implemented and not necessary for maintenance of the standard. 
September 17, 1993 Memorandum from Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation, entitled, ``SIP Requirements for 
Areas Submitting Requests for Redesignation to Attainment'', Detroit 
redesignation with respect to Stage I (March 7, 1995, 60 FR 12459).
    Consequently, requiring full adoption prior to redesignation would 
not lead to implementation of the measures, and would not impose a 
minimum level of technology as the commenter suggests. The only 
difference between the commenter's approach and EPA's is that EPA, as 
in the case of Grand Rapids, is permitting Ohio to place a commitment 
to adopt measures, rather than fully adopted measures, in its 
maintenance plan. This approach is fully consistent with EPA's 
longstanding practice, set forth in the September 1992 Calcagni 
memorandum, that in general, contingency measures need not be fully 
adopted. EPA believes that this approach is also consistent with the 
requirements of the CAA.
    EPA has previously addressed the issue of whether Clean Air Act 
requirements, such as RACT, must be implemented after an area has been 
redesignated, and whether EPA's longstanding policy of allowing states 
to convert mandatory control measures to contingency measures is 
authorized. See, for example, redesignation of Detroit dated March 7, 
1995 (60 FR 12459, 12470). The CAA contains many requirements that 
States must adopt certain measures, including RACT, specifically for 
nonattainment areas. Those requirements do not by their own terms 
continue to apply to an area after it has been redesignated to 
attainment.
    Moreover, nothing in section 175A itself suggests that these 
requirements must continue to be met in redesig-

[[Page 37885]]

nated areas. Section 175A(d) is specifically and clearly applicable to 
contingency provisions and their inclusion in a section 175A 
maintenance plan. Section 175A(d) establishes that SIP revisions 
submitted under section 175A must contain contingency provisions, as 
may be necessary, to assure that the state will promptly correct any 
violation of the ozone NAAQS that occurs after redesignation to 
attainment. It further requires that these contingency provisions 
include a requirement for the state to implement all measures with 
respect to the control of ozone precursor emissions that were in the 
nonattainment SIP before the area was redesignated. This provision 
clearly demonstrates that section 175A(d) contemplates that there may 
be unimplemented control measures in the SIP prior to redesignation 
that will be shifted into the maintenance plan as contingency measures. 
Nothing in section 175A suggests that the measures that may be shifted 
into the contingency plan do not include programs mandated by the Act 
when the area was designated nonattainment. As section 175A(a) requires 
that measures be adopted and implemented to ensure maintenance, it 
indicates that measures may not be converted to contingency provisions 
unless the State demonstrates that the standard will be maintained in 
the absence of the implementation of such measures. Ohio has shown that 
it can maintain the standard without the unimplemented measures. Thus 
EPA believes that its policy with respect to allowing measures to be 
placed into the contingency plan meets the requirements of the Act.

    Comment 8: The commenter asserts that EPA has not determined that 
the motor vehicle emissions budget for the Cincinnati-Hamilton area SIP 
is adequate for attainment (and maintenance), and states that the CAA 
and EPA rules and guidance preclude EPA from approving an attainment 
demonstration SIP unless the SIP includes a motor vehicle emissions 
budget that EPA determines to be adequate.
    Response 8: The commenter is correct that EPA rules and guidance 
preclude the final approval of an attainment demonstration, maintenance 
plan or other control strategy SIP before the mobile source emission 
budget in the plan meets the adequacy criteria in the transportation 
conformity rule. EPA posted the Ohio maintenance plan SIP to EPA's 
adequacy web site on January 7, 2000 and the Kentucky maintenance plan 
SIP to the adequacy web site on November 29, 1999.
    The adequacy web site at www.epa.gov/oms/transp/conform/adequacy.htm is available to the public to allow notice and comment on 
the adequacy of mobile source emission budgets in submitted control 
strategy SIPs. The comment period on the maintenance plan SIPs has 
closed without receipt of any negative comments. Letters of adequacy 
have been issued and will be posted on the web site. EPA found the 
mobile source emission budgets adequate on April 27, 2000, and May 24, 
2000, for Ohio and Kentucky respectively.
    As a general matter, it should be noted that EPA also proposes and 
approves transportation conformity budgets through the regular Federal 
Register notice and comment process. The public therefore has several 
opportunities to comment on the approvability of mobile source emission 
budgets: First, at the state level during the state public comment 
period on the SIP; second at the federal level during the adequacy 
posting of the submitted SIP; and third during the Federal Register 
proposed approval of the SIP with mobile source budgets. In some cases, 
the proposed approval and the adequacy posting may occur at the same 
time or concurrently. The adequacy and approvability of the mobile 
source budget is evaluated during this time frame and before the final 
approval of the control strategy SIP with approved budgets.
    The public should note, however, that not all submitted SIP budgets 
will be posted on the adequacy web site and go though the adequacy 
process, although all budgets must meet the adequacy criteria in the 
transportation conformity rule before being approved. The adequacy 
process is available so that budgets can be found adequate and be used 
for conformity purposes before the SIP is approved.
    If a control strategy SIP with a budget has already been approved 
for an area and a new SIP with a new budget is submitted that covers 
the same requirements and time frame as the approved SIP, then the new 
SIP would not be posted for adequacy because the new submitted budget 
could not replace the approved budget without full Federal Register 
notice and comment. For example, when Ohio wants to allocate the safety 
margin in a maintenance plan to the mobile source emissions budget in 
the current maintenance plan, the new maintenance plan budget would not 
need to be posted to the adequacy web site because an approved 
maintenance plan budget would already be in place. The new SIP 
submittal with the new budget does, however, go through full notice and 
comment rulemaking before the budget can be used for transportation 
conformity.

    Comment 9: The commenter argues that the SIP does not include 
conformity procedures as required by the CAA, and that EPA has no 
authority whatsoever to waive this mandatory requirement for SIPs. The 
commenter contends that the CAA allows redesignation to attainment only 
where EPA has fully approved the implementation plan and only where the 
state ``has met all requirements applicable to the area'' under section 
110 and part D.
    Response 9: The State of Ohio and the State of Kentucky have met 
the statutory requirement for submitting approvable general conformity 
procedures. EPA approved the Ohio general conformity rules effective on 
May 10, 1996 (61 FR 9644). EPA approved the Kentucky general conformity 
rules effective on July 27, 1998 (63 FR 40044).
    Section 176(c) provides that state conformity revisions must be 
consistent with Federal conformity regulations that the CAA requires 
EPA to promulgate. The Federal general conformity regulations were 
finalized on November 30, 1993, and the Federal transportation 
conformity regulations were finalized on November 24, 1993. The Federal 
general conformity regulations have remained the same since that time, 
but the Federal transportation conformity regulations have been amended 
several times since 1993.
    EPA conditionally approved the Ohio transportation conformity rules 
on May 16, 1996 (61 FR 24702). Ohio met the condition of the approval 
by submitting rule changes within the specified one year time frame. 
The Federal transportation conformity regulations were amended on 
August 15, 1997 (40 CFR parts 51 and 93 Transportation Conformity Rule 
Amendments: Flexibility and Streamlining). Ohio submitted new 
transportation conformity rules on October 6, 1999, in response to the 
1997 changes to the Federal transportation conformity regulations. 
However, the Ohio rules will need to be revised again due to the March 
2, 1999 court decision (Environmental Defense Fund v. Environmental 
Protection Agency, U.S. Court of Appeals District of Columbia Circuit, 
No. 97-1637) which rescinded several sections of the Federal 
transportation conformity rule and asked EPA to revise several sections 
of the Federal rule. Kentucky submitted transportation conformity rules 
in 1994,

[[Page 37886]]

but EPA has not acted upon the rules and the rules must be revised to 
be consistent with the amendments and court rulings.
    EPA believes it is reasonable to interpret the conformity 
requirements as not applying for purposes of evaluating the 
redesignation request under section 107(d). The rationale for this is 
based on a combination of two factors. First, the requirement to submit 
SIP revisions to comply with the conformity provisions of the Clean Air 
Act continues to apply to areas after redesignation to attainment, 
since such areas would be subject to a Section 175A maintenance plan. 
Second, EPA's Federal conformity rules require the performance of 
conformity analyses in the absence of federally approved state rules. 
Therefore, because areas are subject to the conformity requirements 
regardless of whether they are redesignated to attainment and must 
implement conformity under Federal rules if state rules are not yet 
approved, EPA believes it is reasonable to view these requirements as 
not applying for purposes of evaluating a redesignation request. See, 
for example Grand Rapids redesignation at 61 FR 31835-31836 (June 21, 
1996).
    EPA has explained its rationale and applied this interpretation in 
numerous redesignation actions. See, Tampa, Florida and Cleveland-
Akron-Lorain redesignations 60 FR 52748 (December 7, 1995), and 61 FR 
20458 (May 7, 1996), respectively. Consequently, EPA may approve the 
ozone redesignation request for the Cincinnati-Hamilton area 
notwithstanding the lack of a fully approved conformity SIP.
    Comment 10: The commenter asserts that neither the states nor EPA 
have shown that air quality improvements are due to permanent and 
enforceable emission reductions, as required by 42 U.S.C. 
7407(d)(3)(E)(iii). The commenter takes issue with the finding that 
this criteria is met because the states have adopted measures that have 
produced some emission reductions. The commenter believes EPA has not 
demonstrated that these reductions are responsible for the area's 
improved air quality or the absence of violations, claiming that the 
only way to reliably make such a showing would be through photochemical 
grid modeling. No such modeling is presented or discussed in this 
proposal.
    The commenter states that given the complex chemistry and 
meteorology of ozone formation, the combination of NOx and 
VOC emission reductions that might be attributable to the cited 
measures could just as easily lead to increases in ozone 
concentrations. The lack of violations in 1996-1998, the commenter 
states, could just as well be due to weather patterns or changes in 
transport of ozone precursors. Without modeling to determine the actual 
impact of adopted and enforceable controls, the commenter finds EPA's 
claim to be speculative.
    Response 10: We disagree with the commenter. We believe that 
photochemical grid modeling is not necessary to show that the 
improvement in air quality is due to permanent and enforceable 
emissions reductions. Our policy does not specify that photochemical 
grid modeling must be done in ozone nonattainment areas to meet this 
requirement. See General Preamble for the Interpretation of Title I of 
the CAA Amendments of 1990, 57 FR 13496 (April 16, 1992), supplemented 
at 57 FR 18070 (April 28, 1992); ``Procedures for Processing Requests 
to Redesignate Areas to Attainment,'' John Calcagni, Director, Air 
Quality Management Division, September 4, 1992; ``State Implementation 
Plan (SIP) Requirements for Areas Submitting Requests for Redesignation 
to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient 
Air Quality Standards (NAAQS) on or after November 15, 1992,'' Michael 
H. Shapiro, Acting Assistant Administrator for Air and Radiation, 
September 17, 1993; and ``Use of Actual Emissions in Maintenance 
Demonstrations for Ozone and CO Nonattainment Areas,'' D. Kent Berry, 
Acting Director, Air Quality Management Division, November 30, 1993.
    Our policy allows an area to meet this requirement by showing how 
its ozone precursor emissions changed due to permanent and enforceable 
emissions reductions from when the area was not monitoring attainment 
of the 1-hour ozone NAAQS to when it reached attainment.
    Reductions in ozone precursor (volatile organic compounds and 
nitrogen oxides) emissions have brought many areas across the country 
into attainment. EPA has approved many ozone redesignations showing 
decreases in ozone precursor emissions resulting in attainment of the 
ozone standard. See redesignations for Charleston (59 FR 30326, June 
13, 1994; 59 FR 45985, September 6, 1994), Greenbrier County (60 FR 
39857, August 4, 1995), Parkersburg (59 FR 29977, June 10, 1994; 59 FR 
45978, September 6, 1994), Jacksonville/Duval County (60 FR 41, January 
3, 1995), Miami/Southeast Florida (60 FR 10325, February 24, 1995), 
Tampa (60 FR 62748, December 7, 1995), Lexington (60 FR 47089, 
September 11, 1995), Owensboro (58 FR 47391, September 9, 1993), 
Indianapolis (59 FR 35044, July 8, 1994; 59 FR 54391, October 31, 
1994), South Bend-Elkhart (59 FR 35044, July 8, 1994; 59 FR 54391, 
October 31, 1994), Evansville (62 FR 12137, March 14, 1997; 62 FR 
64725, December 9, 1997), Canton (61 FR 3319, January 31, 1996), 
Youngstown-Warren (61 FR 3319, January 31, 1996), Cleveland-Akron-
Lorain (60 FR 31433, June 15, 1995; 61 FR 20458, May 7, 1996), Clinton 
County (60 FR 22337, May 5, 1995; 61 FR 11560, March 21, 1996), 
Columbus (61 FR 3591, February 1, 1996, Kewaunee County (61 FR 29508, 
June 11, 1996; 61 FR 43668, August 26, 1996), Walworth County (61 FR 
28541, June 5, 1996; 61 FR 43668, August 26, 1996), Point Coupee Parish 
(61 FR 37833, July 22, 1996; 62 FR 648, January 6, 1997), and Monterey 
Bay (62 FR 2597, January 7, 1997). Most of the areas that have been 
redesignated to attainment for the 1-hour ozone standard have continued 
to attain it. Areas that are not maintaining the 1-hour ozone standard 
have a maintenance plan to bring them back into attainment.
    Reductions in ozone precursor emissions have been shown in 
photochemical grid modeling to reduce ambient ozone concentrations in 
areas across the country. Between 1990 and 1996 area-wide VOC and 
NOX emissions in the Cincinnati-Hamilton area decreased by 
18% and 6%, respectively. These emissions reductions are due to the 
Federal Motor Vehicle Emissions Control Program, fleet turnover of 
automobiles, implementation of Stage II vapor recovery program, 
implementation of VOC RACT, Federal requirements for lower Reid vapor 
pressure gasoline, use of reformulated gasoline in Kentucky, ceased 
operation and improved technology at facilities in Kentucky, and 
partial implementation of vehicle emission testing (E-Check) in Ohio.
    Additional programs have been implemented in Kentucky since the 
1996 attainment year. These programs include Stage II vapor recovery, 
vehicle emission testing program, and increased rule effectiveness of 
Stage I vapor control. Additional Federal rules such as architectural 
coatings, traffic paints, auto body refinishing, and commercial/
consumer products rules have become effective.
    Between 1990 and 1999 area-wide VOC and NOX emissions 
decreased by 24% and 9%, respectively. Ozone air quality monitoring 
data show that the

[[Page 37887]]

design value \2\ changed from 0.157 parts per million (during the 1987-
1989 time period) to 0.124 parts per million (during the 1996-1998 time 
period). This shows that reductions in ozone concentrations correspond 
to the reduction in ozone precursors emissions in the area.
---------------------------------------------------------------------------

    \2\ The design value is typically the fourth highest ozone 
concentration recorded at a monitor over a three year period. This 
value is calculated for each monitor and the highest value is the 
design value for the area.
---------------------------------------------------------------------------

    The commenter claims that the combination of NOX and VOC 
emissions reductions could just as easily have led to increases in 
ozone. This claim is shown to not be true by the actual monitoring data 
collected in the area showing that ambient ozone concentrations have 
dropped when this combination of ozone precursor reductions occurred. 
In other metropolitan areas, different levels of VOC and NOX 
reductions have also resulted in attainment. See areas listed above in 
first part of this response. The Cincinnati-Hamilton area's decrease in 
ozone levels is consistent with what other areas have experienced. The 
commenter has not provided data showing that decreases in ozone 
precursor emissions have led to higher levels of ozone.
    The commenter claims that the lack of violations during 1996-1998 
could just as well be due to weather patterns or changes in transport 
of ozone precursors, but does not supply any evidence to support this 
conclusion. We use a three year period of air quality to account for 
changes in weather conditions. Weather conditions have a substantial 
effect on ozone concentrations, both in terms of increasing ozone and 
decreasing ozone. However, this effect is not controllable and EPA uses 
a three year average to account for changes in meteorology. In the case 
of the Cincinnati-Hamilton area, the fact that the 1997-1999 time 
period also shows that the area continues to be in attainment of the 
ozone standard increases our confidence that weather is not a 
controlling factor in the area's attainment.
    Indeed, weather data from the National Oceanic and Atmospheric 
Administration shows that during the period at issue, weather 
conditions were not unusually favorable toward low ozone concentrations 
in the Cincinnati-Hamilton area. This data is summarized in Tables 1 
and 2.

  Table 1. Ranked Temperature for May to September Periods Versus 1895-
                         1998 Long-Term Average
------------------------------------------------------------------------
                                                Temperature  Temperature
                                                  rank for     rank for
                     Year                         northern    southwest
                                                  Kentucky       Ohio
------------------------------------------------------------------------
1987..........................................           96           94
1988..........................................           62           80
1989..........................................           13           18
1993..........................................           52           58
1994..........................................           20           28
1995..........................................           67           64
1996..........................................           36           35
1997..........................................            8            6
1998..........................................           85           88
1999..........................................           78           83
------------------------------------------------------------------------


  Table 2. Composite Temperature Anomalies for May to September Periods
                        Versus 1950-1995 Average
------------------------------------------------------------------------
                                                Temperature  Temperature
                                                anomaly for  anomaly for
    Three-year period of May-September data       northern    southwest
                                                  Kentucky       Ohio
------------------------------------------------------------------------
1987-1989.....................................         0.72         0.49
1993-1995.....................................         0.21        -0.02
1995-1997.....................................        -0.30        -0.81
1996-1998.....................................        -0.02        -0.56
1997-1999.....................................         0.64         0.07
------------------------------------------------------------------------

    Table 1 shows the rank of the average temperatures over the May to 
September period for certain years compared to data from 1895 to 1998. 
A rank of 104 is given to the hottest year and a rank of 1 is given to 
the coolest year. Table 2 shows how the average temperature (in degrees 
Fahrenheit) over three year periods compared to a long-term average of 
temperature. This shows that for the 1996-1998 time period, average 
temperatures in Kentucky were close to the long-term average and Ohio's 
temperatures were only half a degree below average. The 1996-1998 
period had slightly warmer average temperatures than the 1995-1997 time 
period and slightly cooler average temperatures than the 1993-1995 time 
period. During the 1995-1997 and 1993-1995 time periods, monitoring 
data show that the area was in violation of the 1-hour ozone standard. 
During the 1997-1999 time period, temperatures averaged about a half 
degree above average in Kentucky and were average in Ohio. Ozone 
monitoring data for this time period show that the area was in 
attainment of the 1-hour ozone standard. These temperatures are 
comparable to the average during the 1987-1989 time period used to 
classify the area as a moderate ozone nonattainment area under the 
Clean Air Act.
    Table 1 shows how the temperature rankings have varied from year to 
year. Note that 1998 and 1999 are ranked higher than 1995, when the 
area last experienced two exceedances at a monitor during a single 
year.
    This data shows that the weather conditions were not unusually 
favorable towards lower levels of ozone, and that the area has 
continued to attain the 1-hour standard even with weather that was 
slightly warmer than average and comparable to when the area was 
originally classified as moderate nonattainment. The combination of 
this analysis of the meteorological conditions in conjunction with the 
existence of permanent and enforceable emission reductions demonstrates 
that the improvement in air quality is due to permanent and enforceable 
emission reductions.
    In light of this information, EPA believes it is reasonable not to 
require photochemical grid modeling. Three-year averaging addresses 
variations in meteorological conditions, and the commenter has 
presented no evidence that the three year attainment period was 
unusually favorable. We have looked at the weather and determined that 
it was not unusually favorable. It is important to note that, 
redesignation is not intended as an absolute guarantee that the area 
will never monitor future violations. This is what maintenance plan 
contingency measures are designed to address and correct.
    Comment 11: The commenter contends that the plan does not 
demonstrate maintenance for ten years as required by sections 
107(d)(3)(E)(iv) and 175A of the Clean Air Act. EPA proposes to find 
maintenance not on the basis of modeling, as required by the CAA, but 
on the presumption that the area will always be in attainment if 
emissions remain at or below estimated 1996 levels. The commenter 
states that such a presumption is not rationally supportable. The area 
violated the NAAQS in the 1995-1997 period. Therefore, the commenter 
reasons, holding emissions to 1996 levels does not assure attainment.
    The commenter avers that, even assuming the emission reductions 
predicted by the states for 1999 and subsequent years, there is no 
technical analysis in the record demonstrating that those emission 
levels will assure maintenance. Such a demonstration requires 
photochemical grid modeling that accounts for the kinds of weather 
conditions and transport impacts experienced on appropriately chosen 
design days. See 65 FR 6711 (rejecting

[[Page 37888]]

use of rollback analysis for making attainment and nonattainment 
predictions). According to the commenter, until EPA approves such a 
modeling demonstration, it cannot approve the maintenance plan.
    The commenter argues that the history of this nonattainment area 
shows that EPA cannot rationally assume that emission levels correlate 
with ozone levels in a linear or consistent fashion; the area did not 
violate the ozone NAAQS in the 1992-94 period, but did subsequently 
violate the NAAQS when VOC emissions were supposedly lower.
    Response 11: We believe that the monitoring shows that the current 
level of emissions is adequate to keep the area in attainment. Table 3 
summarizes the number of exceedances at each monitor in the area from 
1987 through 1999. This Table shows the number of expected exceedances 
for each monitor for each year. A monitor has to measure more than 1.0 
average expected exceedances over a three year period to cause a 
violation of the 1-hour ozone standard.\3\ See 40 CFR 50.9 and Appendix 
H. The Table shows that the number of exceedances have decreased from 
what was monitored in the late 1980's. The violation monitored during 
the 1995-1997 time period was just slightly above the ozone standard 
and significant reductions in emissions have occurred to bring this 
level down to attainment. Likewise, emissions have decreased from the 
1992-1994 time period, increasing the likelihood that the area will 
maintain the 1-hour ozone standard.
---------------------------------------------------------------------------

    \3\ Expected exceedances take into actual monitored exceedances 
and account for days where there is missing data or the data was 
invalidated.
---------------------------------------------------------------------------

    Since 1996 all of the monitors in operation recorded 1.0 exceedance 
or less each year. This averages out to less than 1.0 exceedance on 
average per year. This is clearly not a violation of the 1-hour ozone 
standard. The last time a monitor recorded more than 1.0 exceedance was 
in 1995, when two exceedances were recorded at two of the monitoring 
sites in the area. The number of monitored exceedances has decreased as 
the amount of emissions has decreased.

                   Table 3.--1-Hour Ozone NAAQS Expected Exceedances in the Cincinnati-Hamilton, Ohio-Kentucky Area From 1987 to 1999.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   Site/County                      87      88      89      90      91      92      93      94      95      96      97      98      99
--------------------------------------------------------------------------------------------------------------------------------------------------------
Middletown/Butler...............................     0.0     6.5     0.0     2.0     0.0     0.0     1.0     0.0     2.0     1.0     1.0     0.0     1.0
Hamilton/Butler.................................     0.0     4.1     0.0     0.0     0.0     0.0     1.0     0.0     1.0     0.0     0.0     0.0     1.0
389 Main St./Clermont...........................     2.0    10.4     0.0     0.0     0.0     0.0     0.0  ......  ......  ......  ......  ......  ......
4430 SR 222/Clermont............................  ......  ......  ......  ......  ......  ......  ......     1.0     1.0     0.0     0.0     1.0     1.0
11590 Grooms Road/Hamilton......................     2.0     5.0     1.0     1.0     4.0     0.0     0.0     0.0     0.0     0.0     1.0     1.0     0.0
6950 Ripple Road/Hamilton.......................     2.0     0.0     0.0     1.0     1.1     0.0     0.0     0.0     1.0     0.0     0.0     0.0     0.0
Cincinnati (0019)/Hamilton......................     3.0     5.0     1.2     0.0  ......  ......  ......  ......  ......  ......  ......  ......  ......
Cincinnati (0037)/Hamilton......................  ......  ......  ......     0.0     0.0     0.0     0.0     0.0     1.0     0.0     0.0     0.0  ......
Cincinnati (0040)/Hamilton......................  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......     0.0
Lebanon (416 S. East St.)/Warren................     2.0     8.2     0.0     4.0     3.0     0.0     0.0     2.0     2.0     0.0  ......  ......  ......
Warren..........................................  ......  ......  ......  ......  ......  ......  ......  ......  ......  ......     1.0     1.0     0.0
Boone...........................................     0.0     2.1     0.0     0.0     0.0     0.0     0.0     0.0     0.0     0.0     0.0     0.0     0.0
Campbell........................................     2.0     7.0     1.1     0.0     0.0     0.0     1.0     0.0     0.0     1.0     0.0     0.0     0.0
Kenton..........................................     2.0    14.1     0.0     0.0     0.0     0.0     0.0     0.0     1.0     1.0     0.0     1.0     0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The area has monitored attainment for both the 1996-1998 and 1997-
1999 time periods. This shows that the current level of emissions is 
adequate to keep the area in attainment during weather conditions as in 
past years associated with higher levels of ozone. In addition, the CAA 
does not presume that the area will always be in attainment. The CAA 
provides that if the area were to violate the 1-hour ozone standard, 
then the contingency measures in the maintenance plan would be 
triggered. This would reduce the ozone precursor emissions and bring 
the area back into attainment.
    Our policy allows areas to prepare an attainment emissions 
inventory corresponding to when the area monitored attainment. It also 
allows areas to project maintenance by showing that future emissions 
will stay below the attainment emissions inventory.\4\ The attainment 
inventory estimates 1996 emissions, which is within the 1996-1998 time 
period of attainment. Emissions are projected to remain below this 
level for the next 10 years.
---------------------------------------------------------------------------

    \4\ See ``Use of Actual Emissions in Maintenance Demonstrations 
for Ozone and CO Nonattainment Areas,'' D. Kent Berry, Acting 
Director, Air Quality Management Division, November 30, 1993.
---------------------------------------------------------------------------

    Holding emissions at or below the level of the attainment inventory 
is adequate to reasonably assure continued maintenance of the 1-hour 
ozone standard. Reductions in ozone precursor emissions have been shown 
in photochemical grid modeling to reduce ambient ozone concentrations 
in areas across the country. Photochemical grid modeling is not needed 
to show that the area has attained or will maintain the standard. The 
air quality will be maintained by keeping below the attainment 
emissions level, continuing to monitor ozone levels, and having 
maintenance plan contingency measures available. Reductions in ozone 
precursor emissions have brought many areas across the country into 
attainment.
    Many of the ozone areas for which EPA has approved ozone 
redesignations have used an emissions inventory approach to demonstrate 
maintenance. The majority of areas have continued to maintain the 1-
hour ozone standard using that approach. See redesignations cited in 
Response 10. Emissions inventories can be used to project maintenance 
of the 1-hour ozone standard. As previously stated, if the attainment 
level of emissions is not adequate to protect against a violation and 
the area monitors a violation, then the contingency measures in the 
maintenance plan would be triggered to bring the area back into 
attainment. There are ozone monitors located in the Cincinnati-Hamilton 
area to ensure that the area's air quality remains below the level set 
by the 1-hour ozone standard.
    The comment that EPA should not assume that ``emission levels 
correlate with ozone levels in some sort of linear

[[Page 37889]]

or consistent fashion'' is in effect a recommendation that future 
maintenance be tested assuming meteorological conditions that are more 
conducive to ozone formation than the conditions that have prevailed in 
1996 to 1999. No other factor is known to introduce an inconsistency 
between ozone and emissions. The commenter protests that the area has 
not submitted a maintenance demonstration based on ozone modeling, and 
implicitly urges that the modeling assume 1995-type conditions, or 
worse.\5\ However, if a prospective maintenance demonstration were 
performed with an ozone photochemical model following EPA guidance, the 
modeling would be allowed to use episode days from the 1996-1998 
period, not 1995. It is highly likely, if not certain, that the outcome 
would be a conclusion that attainment will be preserved through the 
required 10-year period. EPA believes this modeling guidance is 
reasonable and appropriate.
---------------------------------------------------------------------------

    \5\ Table 1 shows that the average temperature conditions in the 
area were worse in 1998 and 1999 than in 1995.
---------------------------------------------------------------------------

    Comment 12: EPA has not fully approved the Stage II vapor recovery 
program in the Ohio portion of the nonattainment area. EPA partially 
disapproved the program because it can be suspended at the discretion 
of the Ohio EPA Director without obtaining EPA approval. 59 FR 52911 
(October 20, 1994). The commenter contends that because of this 
discretionary suspension provision, EPA cannot credit any emissions 
reductions to the Ohio Stage II program, either with respect to the 
attainment demonstration or the maintenance demonstration.
    Response 12: EPA does not agree with the conclusion of the comment. 
EPA can give credit for the emissions reductions because the Stage II 
program has been implemented in all areas where it was required in the 
state, including the Cincinnati-Hamilton area. EPA partially approved 
the Ohio Stage II plan because it contained all of the required 
criteria for an approvable Stage II plan. Furthermore, because EPA 
approved the program into the state SIP, EPA has the authority to 
enforce the program provisions, if necessary.
    The director's discretion provision, which states that the OEPA 
Director may suspend the program at will, was disapproved by EPA. EPA's 
initial concern regarding this provision was over the potential for the 
OEPA Director to not implement any one or all phases of the program 
without first seeking EPA approval. The Ohio EPA Director, however, has 
not chosen to suspend the Stage II program in the Cincinnati-Hamilton 
area. EPA has also established through discussions with OEPA 
enforcement staff that the Stage II program is in operation in the Ohio 
portion of the Cincinnati-Hamilton area and has been for a number of 
years.
    EPA has reviewed the state's efforts to implement the Stage II 
program in detail at 62 FR 61241 (November 17, 1997). We believe that 
Ohio understands the need for VOC emission reductions from all source 
categories and has implemented the Stage II program along with other 
VOC reduction measures to meet not only the spirit but also the letter 
of the ozone attainment plan. Since this measure is part of the 
Federally approved SIP and is being implemented, it is providing 
creditable emissions reductions contributing to attainment.
    The Memorandum entitled, ``State Implementation Plan Requirements 
for Areas Submitting Requests for Redesignation to Attainment of the 
Ozone and Carbon Monoxide (CO) NAAQS on or after November 15, 1992,'' 
Michael Shapiro, Acting Assistant Administrator for Air and Radiation, 
dated October 14, 1994, states:
    ``Stage II vapor recovery remains an applicable requirement for 
moderate ozone nonattainment areas until EPA promulgates on-board vapor 
recovery regulations. Section 202(a)(6) of the Act provides that once 
onboard regulations are promulgated, the Stage II regulations required 
under section 182(b)(3) are no longer applicable for moderate ozone 
nonattainment areas. Therefore, final redesignation for a moderate 
nonattainment area that occurs after EPA's onboard regulations are 
promulgated does not have to include a Stage II SIP control program.''
    On October 20, 1994, EPA partially approved and partially 
disapproved Ohio's SIP revision for implementation of the Stage II 
program (59 FR 52911). As stated in that rulemaking action, with the 
exception of paragraph 3745-21-09(DDD)(5), EPA considers Ohio's Stage 
II program to fully satisfy the criteria set forth in the EPA guidance 
document for such programs entitled, ``Enforcement Guidance for Stage 
II Vehicle Refueling Control Programs.'' EPA promulgated onboard rules 
on April 6, 1994 (59 FR 16292); therefore, pursuant to section 
202(a)(6) of the CAA, Stage II is no longer required, and a fully 
approved program is not a prerequisite for redesignation. However, the 
state has opted to include reductions in VOCs from the Stage II program 
as part of its maintenance plan. Only those Stage II provisions 
previously approved by EPA are part of the Cincinnati-Hamilton area 
maintenance plan. See also similar determinations by EPA in the 
redesignations of Cleveland (60 FR 31433, June 15, 1995; and 61 FR 
20458, May 7, 1996) and Dayton (60 FR 22289, May 5, 1995).
    Comment 13: The commenter argues that under 42 U.S.C. 
7410(a)(2)(D)(i) the SIP must include provisions to prohibit emissions 
that will contribute significantly to nonattainment in, or interfere 
with maintenance by, any other state. The commenter asserts that EPA 
has specifically determined that emissions from Ohio contribute 
significantly to ozone nonattainment in downwind states, and has issued 
a SIP call to require additional NOX controls in the Ohio 
SIP to address this problem. Ohio has not yet adopted the required SIP 
provisions. The commenter claims that EPA seeks to gloss over this 
failure by noting that the NOX SIP call has been stayed by 
the D.C. Circuit. The commenter complains that EPA has proposed to 
allow various Ozone Transport Region States to claim credit for SIP 
call reductions, notwithstanding the stay. In the Washington, D.C. 
area, for example, the commenter asserts that EPA is proposing to 
approve an attainment demonstration that relies heavily on ozone 
reductions that will follow from compliance with the NOX SIP 
call. The commenter argues that in that context, EPA discounted the 
significance of the court ordered stay, asserting that the SIP call 
rule was still on the books, and therefore must be given credence. 64 
FR 70460, 70464, 70464-70465 (1999). The commenter states that EPA 
cannot rationally allow downwind states to claim credit for SIP call 
reductions, while allowing upwind states to avoid adoption of measures 
required for such reductions.
    Response 13: For a number of independent reasons, we view 
submissions under the NOX SIP call as not being applicable 
requirements for purposes of evaluating a redesignation request. First, 
because the NOX SIP call has been stayed, submissions under 
it were not due at the time the redesignation requests were submitted. 
Established EPA policy holds that when evaluating a redesignation 
request, EPA does not consider whether the state has met requirements 
that come due after submittal of a complete redesignation request. See 
page 4 of the Calcagni Memorandum. This ground alone would be 
dispositive. EPA also believes that even if the revisions under the 
NOX SIP call were due prior to the redesignation requests, 
other grounds support considering these revisions to not be applicable 
requirements.

[[Page 37890]]

    The requirement to submit revisions under the NOX SIP 
call continues to apply to areas after redesignation to attainment. 
Therefore, the state remains obligated to submit these revisions even 
after redesignation, and would risk sanctions for failure to do so. 
While redesignation of an area to attainment enables the area to avoid 
further compliance with the requirements of section 110 and part D that 
are linked with an area's nonattainment status, the NOX SIP 
call requirements apply to both nonattainment and maintenance 
(attainment) areas. The NOX SIP call submissions are 
required not to address air quality in the designated Cincinnati-
Hamilton ozone nonattainment area, but to reduce emissions affecting 
downwind areas. They are not requirements linked with a particular 
nonattainment area's designation and classification.
    The requirements linked with a particular area's designation and 
classification are the requirements that EPA believes are the relevant 
measures to evaluate in reviewing a redesignation request. Thus, even 
if it had been due prior to the filing of the redesignation request, 
the NOX SIP call submission requirement could be construed 
not to be an applicable requirement for purposes of redesignation. This 
policy is consistent with EPA's existing redesignation policies 
regarding conformity and oxygenated fuels requirements, as well as with 
section 184 ozone transport requirements. See Reading, Pennsylvania 
proposed and final rulemakings, 6l FR 53174-53176 (October 10, 1996), 
62 FR 24826 (May 7, 1997); Cleveland-Akron-Lorain, Ohio final 
rulemaking 61 FR 20458 (May 7, 1996); and Tampa, Florida final 
rulemaking at 60 FR 62748, 62741 (December 7, 1995).

    Comment 14: The commenter states that the CAA explicitly requires 
the SIP to include a preconstruction permit program for new major 
sources and modifications within the nonattainment area (NSR program). 
42 U.S.C. 7410(a)(2)(C), 7502(c)(4)&(5), 7503, 7511, 7511(a)(2)(C), and 
(b)(5). EPA has not fully approved an NSR program for the Ohio portion 
of the nonattainment area. According to the commenter, this is not an 
optional program that EPA can simply waive if not ``needed'' for 
attainment. The Clean Air Act sets out the NSR mandate as an explicit 
SIP requirement, in addition to the requirement for demonstrating 
timely attainment.
    Response 14: EPA believes that the Cincinnati-Hamilton area may be 
redesignated to attainment notwithstanding the lack of a fully-approved 
NSR program meeting the requirements of the 1990 Clean Air Act 
amendments. This view has been set forth by EPA in a memorandum from 
Mary Nichols, Assistant Administrator for Air and Radiation, dated 
October 14, 1994, entitled ``Part D New Source Review (part D NSR) 
Requirements for Areas Requesting Redesignation to Attainment.'' Also, 
see Grand Rapids, Michigan redesignation (61 FR 31834-31837, June 21, 
1996). This policy has also been applied in redesignations of 
Youngstown-Warren, Columbus, Canton, Cleveland-Akron-Lorain, Dayton-
Springfield, Toledo, Preble County, Columbiana County, and Clinton 
County, Ohio, as well as Detroit, Michigan.
    EPA believes that its decision not to insist on a fully approved 
NSR program as a prerequisite to redesignation is justifiable as an 
exercise of the Agency's general authority to establish de minimis 
exceptions to statutory requirements. See Alabama Power Co. v. Costle, 
636 F.2d 323, 360-61 (D.C. Cir. 1979). Under Alabama Power Co. v. 
Costle, EPA has the authority to establish de minimis exceptions to 
statutory requirements where the application of the statutory 
requirements would be of trivial or no value environmentally. In this 
context, the issue presented is whether EPA has the authority to 
establish an exception to the requirements of section 107(d)(3)(E) that 
EPA must fully approve a SIP meeting all of the requirements applicable 
to an area under section 110 and part D of title I of the Clean Air Act 
before redesignating the area. Plainly, the NSR provisions of section 
110 and part D are requirements that were applicable to the Cincinnati-
Hamilton area at the time of the submission of the request for 
redesignation. Thus, on its face, section 107(d)(3)(E) would seem to 
require that the State submit and EPA fully approve a part D NSR 
program meeting the requirements of the Clean Air Act before an area 
could be redesignated to attainment. Under EPA's de minimis authority, 
however, the agency may establish an exception to an otherwise plain 
statutory requirement if its fulfillment would be of little or no 
environmental value. Therefore, it is necessary to determine what would 
be achieved by insisting that there be a fully-approved part D NSR 
program in place prior to the redesignation of the Cincinnati-Hamilton 
area.
    For the following reasons, EPA believes that requiring the adoption 
and full approval of a part D NSR program prior to redesignation would 
not be of significant environmental value in this case. Ohio assumed 
that NSR would not apply after redesignation to attainment, and 
therefore, assumed source growth factors based on projected growth in 
the economy and in the area's population. Ohio has demonstrated that 
maintenance of the ozone NAAQS will occur even if the emission 
reductions expected to result from the part D NSR program do not occur. 
The emission projections made by Ohio to demonstrate maintenance of the 
NAAQS considered growth in point source emissions (along with growth 
for other source categories) premised on the assumption that the 
Prevention of Significant Deterioration (PSD) program, rather than the 
part D NSR, would be in effect during the maintenance period. (It 
should be noted that the growth factors assumed may even be 
overestimates under PSD, which would restrain source growth through the 
application of best available control technology.) Under NSR, 
significant point source emissions growth would not occur. Thus, 
contrary to the assertion of the commenter, Ohio has demonstrated that 
there is no need to retain the part D NSR as an operative program in 
the SIP during the maintenance period in order to provide for continued 
maintenance of the NAAQS. (If this demonstration had not been made, NSR 
would have had to have been retained in the SIP as an operative program 
since it would have been needed to maintain the ozone standard.)
    The other purpose that requiring the full approval of a part D NSR 
program might serve is to ensure that NSR would become a contingency 
provision in the maintenance plan required for these areas by section 
107(d)(3)(E)(iv) and 175A(d). These provisions require that for an area 
to be redesignated to attainment, it must receive full approval of a 
maintenance plan containing ``such contingency provisions as the 
Administrator deems necessary to assure that the State will promptly 
correct any violation of the standard which occurs after the 
redesignation of the area as an attainment area. Such provisions shall 
include a requirement that the State will implement all measures with 
respect to the control of the air pollutant concerned which were 
contained in the SIP for the area before redesignation of the area as 
an attainment area.'' Based on this language, it is apparent that 
whether an approved NSR program must be included as a contingency 
provision depends on whether it is a ``measure'' for the control of the 
pertinent air pollutants.
    The term ``measure'' is not defined in section 175A(d) and Congress 
utilized

[[Page 37891]]

that term differently in different provisions of the Clean Air Act with 
respect to the PSD and NSR permitting programs. For example, in section 
110(a)(2)(A), Congress requires that SIPs include ``enforceable 
emission limitations and other control measures, means, or techniques * 
* * as may be necessary or appropriate to meet the applicable 
requirements of the Act.'' In section 110(a)(2)(C), Congress requires 
that SIPs include ``a program to provide for the enforcement of the 
measures described in subparagraph (A), and regulation of the 
modification and construction of any stationary source within the areas 
covered by the plan as necessary to assure that NAAQS are achieved, 
including a permit program as required in parts C and D.'' If the term 
``measures'' as used in section 110 (a)(2)(A) and (c) had been intended 
to include PSD and NSR there would have been no point to requiring that 
SIPs include both measures and preconstruction review under parts C and 
D (PSD or NSR). Unless ``measures'' referred to something other than 
preconstruction review under parts C and D, the reference to 
preconstruction review programs in section 110(a)(2)(C) would be 
rendered mere surplusage. Thus, in section 110(a)(2) (A) and (C), it is 
apparent that Congress distinguished ``measures'' from preconstruction 
review. On the other hand, in other provisions of the Clean Air Act, 
such as section 161, Congress appeared to include PSD within the scope 
of the term ``measures.''
    EPA believes that the fact that Congress used the undefined term 
``measure'' differently in different sections of the Clean Air Act is 
germane. This indicates that the term is susceptible to more than one 
interpretation and that EPA has the discretion to interpret it in a 
reasonable manner in the context of section 175A. Inasmuch as Congress 
itself has used the term in a manner that excluded PSD and NSR from its 
scope, EPA believes it is reasonable to interpret ``measure,'' as used 
in section 175A(d), not to include NSR. That this is a reasonable 
interpretation is further supported by the fact that PSD, a program 
that is the corollary of part D NSR for attainment areas, goes into 
effect in lieu of part D NSR when an area is redesignated to 
attainment. This distinguishes NSR from other required programs under 
the Clean Air Act, such as inspection and maintenance programs, which 
have no corollary for attainment areas. Moreover, EPA believes that 
those other required programs are clearly within the scope of the term 
``measure.''
    EPA is not suggesting that NSR and PSD are equivalent, but merely 
that they are the same type of program. The PSD program is a 
requirement in attainment areas and is designed to allow new source 
permitting, yet contains adequate provisions to protect the NAAQS. If 
any information, including preconstruction monitoring, indicates that 
an area is not continuing to meet the NAAQS after redesignation to 
attainment, the requirements of 40 CFR part 51, appendix S 
(Interpretive Offset Rule) or a 40 CFR 51.165(b) program would apply.
    EPA believes that in any area that is designated or redesignated as 
attainment under section 107, but experiences violations of the NAAQS, 
these provisions should be interpreted as requiring major new or 
modified sources to obtain VOC emission offsets of at least a 1:1 
ratio, as presumptive that 1:1 NOX offsets are necessary. 
See October 14, 1994 memorandum from Mary Nichols entitled, ``Part D 
New Source Review (part D NSR) Requirements for Areas Requesting 
Redesignation to Attainment.'' In addition, permits to install cannot 
be issued under the PSD program unless the applicant can demonstrate 
that the increased emissions from the new or modified source will not 
result in a violation of the NAAQS.
    EPA's logic in treating part D NSR in this manner does not mean 
that other applicable part D requirements, including those that have 
been previously met and previously relied upon in demonstrating 
attainment, could be eliminated without an analysis demonstrating that 
maintenance would be protected. As noted above, Ohio has demonstrated 
that maintenance would be protected with PSD in effect, rather than 
part D NSR. Thus, EPA is not permitting part D NSR to be removed 
without a demonstration that maintenance of the standard will be 
achieved.
    The position taken in this action is consistent with EPA's current 
national redesignation policy. This policy permits redesignation to 
proceed without otherwise required NSR programs having been fully 
approved and converted to contingency provisions, provided that the 
area demonstrates, as has been done in this case, that maintenance will 
be achieved with the application of PSD rather than part D NSR.

    Comment 15: A commenter states that EPA cannot lawfully or 
rationally grant a NOX waiver to the Kentucky portion of the 
nonattainment area because EPA has not determined that NOX 
reductions are unnecessary throughout the entire nonattainment area; 
and EPA has in fact proposed to approve NOX RACT as a 
contingency measure in the Ohio portion of the nonattainment area; and 
EPA has determined that additional NOX reductions are needed 
in Ohio to prevent ozone violations in downwind states. The commenter 
asserts that EPA's approval of a NOX waiver under these 
circumstances, and its failure to require NOX RACT 
regionwide, is irrational and violates the CAA.
    Response 15: We disagree with the commenter. EPA has determined 
that additional NOX reductions are unnecessary throughout 
the entire nonattainment area as both the Kentucky and Ohio portions 
have three years of quality-assured ozone monitoring data indicating 
attainment. Based on this data, the area has demonstrated in accordance 
with section 182(f)(1)(A) that additional reductions of NOX 
will not contribute to attainment of the 1-hour ozone standard. 
Consequently, EPA is approving NOX RACT waivers for both the 
Ohio and Kentucky portions of the Cincinnati-Hamilton nonattainment 
area.
    The area's contingency plan focuses initially on implementation of 
VOC precursor controls in the event of control inadequacies. Moreover, 
the redesignation proposal specifically states that, although 
NOX RACT is listed in the Ohio portion of the contingency 
plan, such measures will be implemented only ``if a violation of the 
ozone NAAQS is recorded in the Cincinnati[-Hamilton] Moderate 
Nonattainment Area after implementation of the selected VOC control 
measures'' in the contingency plan.
    The CAA requires EPA to view NOX waivers in a narrow 
manner. In general, section 182(f) provides that waivers must be 
granted if states show that reducing NOX within a 
nonattainment area would not contribute to attainment of the ozone 
NAAQS within the same nonattainment area. Only the role of local 
NOX emissions on local attainment of the ozone standard is 
considered in nonattainment areas outside an ozone transport region. 
The role of NOX in regional attainment is addressed 
separately under section 110(a)(2)(D) of the Clean Air Act, which 
prohibits one state from significantly polluting another state's 
downwind areas.
    Comment 16: The commenter questions the accuracy, completeness and 
appropriateness of Ohio's emissions inventory. See 1997 citizen Audit 
report of the area's compliance with the ozone standard. The commenter 
finds that the

[[Page 37892]]

use of ``previous emissions estimates'' to project emissions ten years 
into the future for the purpose of showing ``Maintenance Projections'' 
for the SIP to be highly questionable, claiming that there is no 
demonstration that the VOC and NOX are stable or are being 
reduced.
    The commenter states that they have compared emission inventory 
data in a number of Title V applications and draft OEPA permits (to the 
extent they have been made available), expecting those applications and 
permits to provide the most current VOC and NOX data.
    The commenter claims to have found large discrepancies between past 
emission data and current Title V permit to operate applications. For 
example, Celotex is identified as a major source for VOCs in Ohio EPA's 
Statement for Basis for Title V Permit. The commenter says that the 
Title V permit to operate indicates VOCs totaling over 100 tons per 
year, with no controls, but that the emission inventories used for past 
SIPs list at most just over 10 tons per year. The commenter states that 
there are no VOC controls on this facility. If past inventories are 
correct, then this facility is or will be emitting significantly more 
VOCs, which will affect ozone formation. If past inventories didn't 
include all the VOCs (and reviews of the files indicate this is the 
case) then the commenter believes the conformity budget is inaccurate.
    The Formica facility is another example cited by the commenter, who 
states that this facility's Title V application estimated maximum 
emission rate for two coaters is over 3000 tons per year each. The 
emission inventories have varied from a high of 264 tons for one unit 
and a low of 11.87 for the other. The commenter contends that the Ohio 
EPA's local air agency has been having the facility redo stack tests 
``to show compliance'' but hasn't done so for the past two years.
    The commenter claims to have found similar discrepancies at other 
facilities, like Morton International and Cincinnati Specialties, and 
that some facilities do not have all their permits. The commenter 
complains that facilities are being allowed to repeat stack tests over 
and over or are not being required to retest at capacity, because they 
aren't running at capacity. The commenter believes that the Title V 
program is years behind schedule and many non-Title V permits have 
expired or are being held as ``non-priorities''.
    The commenter overall finds a lack of an effective permitting and 
enforcement program which would assure the accuracy of the data used in 
the SIP, and thus assure compliance that the 1-hour standard can be met 
in future years. For more information on permit and enforcement 
failures, the commenter refers to the Sierra Club, OPIRG, Ohio Citizen 
Action and Rivers Unlimited petitions, supplemental petitions, reports 
and documentation submitted to EPA to revoke Ohio's authority to 
implement the Clean Air Act and other environmental laws.
    The commenter contends that new source review for modifications is 
not being done, and new source permitting has not been done properly 
for utilities. The commenter also claims to find that major 
modifications have been made at Cincinnati Specialties and Celotex 
without undergoing NSR. The commenter claims that this issue needs to 
be systematically reviewed at Ohio EPA before considering a SIP or 
redesignation request adequate.
    Response 16: We reviewed the 1990 base year emissions inventory for 
Ohio that was used to develop the emissions projections and approved it 
in a rulemaking dated December 7, 1995 (60 FR 62737). This inventory 
was thoroughly reviewed and deemed adequate after an opportunity for 
public comment. The point source emissions were based on permit 
information available at that time. Emissions from individual point 
sources can vary from year to year due to shutdowns, changes in 
production and other factors. In addition, the emissions inventory was 
prepared to estimate what a typical summer day's emissions were during 
1990 instead of showing what the maximum emissions were that a source 
could potentially emit during that summer. This is more representative 
of what is actually occurring than using the maximum potential 
emissions. Emissions inventory projections were made following EPA 
guidance for projecting emissions inventories. This guidance allows 
areas to project their actual emissions based on projected changes in 
industrial employment. This is a reasonable factor to use to project 
future emissions for a large number of sources.
    In any event, the ozone SIP for the Cincinnati-Hamilton area has 
been fully approved. The Title V permitting program is not an 
applicable SIP requirement and there is no requirement for EPA to 
evaluate and reassess individual permits for enforceable emission 
limits prior to redesignation of the area. The redesignation criteria 
do not include reviewing permitting programs and enforcement programs 
to ascertain whether or not any implementation deficiencies exist. Any 
failures that may be occurring are not undermining attainment, and any 
deficiencies that are confirmed can be addressed and corrected in other 
contexts. The maintenance plan is also designed to assure that 
attainment of the standard will be preserved.
    As noted in EPA's Response to Comment 5, EPA in response to the 
petitions cited by the commenter, is currently conducting a 
comprehensive review of the implementation issues raised by the 
petitions. Any implementation deficiencies that EPA finds as a result 
of this review will be addressed and corrected in other contexts 
unrelated to the redesignation procedure that is the subject of this 
rulemaking. The issues relating to alleged standard-setting, permit and 
enforcement failures raised by commenters are not required to be 
resolved in the context of a redesignation action. Also see Response 
14.
    Comment 17: The commenter notes that Stage II Vapor Recovery is 
assumed to be in place to demonstrate conformity for the metropolitan 
planning organization's Transportation Improvement Program (TIP) for 
the approval and funding of highway projects. The commenter states that 
Ohio EPA's local air agency has stated in the past that they check 
Stage II Vapor Recovery systems when installed, but when citizens 
complained about leaking and broken hoses, the air agency would not 
investigate, saying that they had checked compliance when the systems 
were installed. The commenter alleges that the failure to effectively 
enforce Stage II and subsequently suspend Stage II, invalidates the TIP 
conformity analysis and makes it more likely that the region will 
exceed the ozone standard.
    The commenter declares that transportation conformity analysis does 
not include induced travel and exempted projects which were in the 
``pipeline'' prior to the 1991 Intermodal Surface Transportation 
Efficiency Act (ISTEA) legislation. Now that such projects as the 
Butler Regional Highway are coming online, the transportation sector 
will be increasing its emissions.
    Response 17: See Response 12. Transportation Plans must conform 
with the SIP requirements before they can be found adequate. Conformity 
of transportation plans is not a requirement for redesignation of an 
area from nonattainment to attainment, and thus these comments are not 
germane to this rule. Conformity requirements will continue to apply to 
the Cincinnati-Hamilton area once it is redesignated to attainment 
subject to the requirement to have a maintenance plan.

[[Page 37893]]

    Comment 18: The commenter argues that redesignation would mislead 
the public into thinking that Cincinnati's air does not pose a serious 
health risk. The commenter states that in May 1997, EPA issued ``A 
Special Alert for People with Asthma and Other Respiratory Problems in 
the Greater Cincinnati/Northern Kentucky Metropolitan Area.'' EPA warns 
that negative health effects are ``of concern to everyone who works, 
plays or spends time outdoors, even the healthiest people.'' The 
commenter claims that there is no reason to believe that the air 
quality is any safer now than it was two years ago.
    The commenter claims that in 1999 there were three violations of 
the 1-hour standard and 77 violations of the new 8-hour standard, 
according to Hamilton County Department of Environmental Services (as 
of September 12, 1999). The commenter contends that smog alerts were 
also issued for 27 days, including one eight-consecutive-day period 
from June 6 to 13; and two five-consecutive-day periods from July 16 to 
20 and July 22 to 26. All together, the commenter contends, this 
represents nearly one third of the summer when it was unsafe for people 
to breathe the air.
    The CAA requires the SIPs to make RFP. The term `` `reasonable 
further progress' '' means such annual incremental reductions in 
emissions of the relevant air pollutant as are required by this part or 
may reasonably be required by the Administrator for the purpose of 
ensuring attainment of the applicable national ambient air quality 
standard by the applicable date.' The commenter states that 13 
exceedances of the standard show that the RFP plan was not adequate and 
still isn't adequate.
    The commenter says that Ohio should be undertaking the measures 
outlined in the contingency plan since the area has not yet achieved 
the standard.
    According to the commenter, continued efforts are needed to meet 
the 1-hour standard and that standard must be met before redesignation. 
In July 1997, EPA revised the NAAQS for ozone. The commenter states 
that EPA is currently phasing out and replacing the 1-hour ozone 
standard with the new eight-hour standard to protect against longer 
exposure periods. The 1-hour standard will be revoked when an area has 
achieved three consecutive years of air quality data meeting the 1-hour 
standard. Further, the commenter argues, EPA states that an area meets 
the ozone NAAQS if there is not more than one day per year when the 
highest hourly value exceeds the threshold. The commenter claims that 
EPA's policy refers to the ``standard'' not the technical issues of a 
violation being three exceedances of the standard.
    Response 18: We disagree with the commenter. As shown above in 
Table 3 (Response 11), air quality monitors show that the area is 
attaining the 1-hour ozone standard. Ozone alerts were called in the 
area to alert the public to take steps to reduce air pollution when the 
area was either monitoring high levels of ozone or had the potential to 
start monitoring high levels of ozone. Calling an ozone alert does not 
necessarily mean that the standard was exceeded on a particular day. 
The summary of monitoring data in Response 11 shows that the number of 
monitored exceedances was much lower than the number of alerts called. 
The air quality is measured by ozone monitors and the data collected is 
compared to the level of the ozone standard. See 40 CFR 50.9 and 
Appendix H. The number of ozone alerts called is not a part of this 
determination. Also, see Responses 2, 11, 19 and 20.
    The RFP plan was approved as adequate. See 63 FR 4188 (January 28, 
1998) and 63 FR 67586 (December 8, 1998). Emissions reductions provided 
by this plan have helped the area to attain the 1-hour ozone standard.
    Comment 19: The commenter believes that EPA should not take any 
action on the redesignation until the federal courts resolve the 
current legal questions surrounding the new standard. In any event, the 
commenter states, EPA and the health community recognize that the old 
standard is unsafe. While the commenter agrees that EPA's 
interpretation of the letter of the law may qualify the area to be in 
attainment based on the old standard, it believes that this ruling 
would distort the spirit and purpose of the law.
    Response 19: EPA's action to redesignate the Cincinnati-Hamilton 
area to attainment under the 1-hour standard is not affected by the 8-
hour standard or any legal questions surrounding the status of the 8-
hour standard. EPA currently has a legal obligation under the Clean Air 
Act to act on redesignation requests. See section 107(d)(3)(D) 
(``Within 18 months of receipt of a complete State redesignation 
submittal, the Administrator shall approve or deny such 
redesignation.''). See also Response 2 above.
    Comment 20: The commenter maintains that the Cincinnati-Hamilton 
area continues to exceed the 1-hour ozone standard. In 1999, the 
commenter states, the standard has been exceeded three times, in 1998 
four times, in 1997 three times and in 1996 three times. The commenter 
alleges that the standard has been exceeded 10 times in the three years 
being evaluated under this request, and that it has been exceeded three 
times since the three years being used for the purpose of showing 
attainment.
    The commenter contends that the region was supposed to attain the 
standard in 1996, yet three years later the standard is still being 
exceeded. The commenter believes that reclassifying the area as a 
serious nonattainment area would result in significant and valid steps 
to actually reduce ozone precursors. The commenter alleges that 
continued failure to meet the standard three years after the required 
date shows that further steps must be taken.

    Response 20: We evaluate attainment of the 1-hour ozone standard by 
comparing the data at each individual monitor to the 1-hour ozone 
standard. This data is summarized in Response 11. Table 3 shows that 
the total number of exceedances measured at each individual monitor 
averages less than 1.0 over the 1996-1998 and 1997-1999 time periods. 
EPA's interpretation of the 1-hour ozone standard, long embodied in its 
regulations, allows a monitor in the area to exceed the standard as 
long as it does not average more than 1.0 per year over a three year 
period. See 40 CFR 50.9 and Appendix H for EPA's interpretation of the 
1-hour ozone standard. This shows that the area has attained the 
standard.
    The commenter has erroneously combined the data from several 
monitors in order to imply that the area is not attaining the 1-hour 
ozone standard. This is inconsistent with EPA's long-standing 
regulations concerning the definition of compliance and how we 
interpret the 1-hour ozone standard. See also Response to Comment 21.
    Comment 21: The commenter states that a strict reading of the CAA 
(section 181(a)(5)(B)) requires that not more than 1 exceedance of the 
national ambient air quality standard level for ozone may have occurred 
in the area in the year preceding the extension year (for extensions of 
the deadline). The Cincinnati-Hamilton area, the commenter states, has 
far more than one exceedance per year.
    The commenter contends that it is now three years after the 
deadline for achieving the standard, and that the region is now well 
overdue for ``Reclassification Upon Failure to Attain.'' The CAA 
requires that ``Within 6 months following the applicable attainment 
date (including any extension thereof) for an ozone nonattainment area, 
the Administrator shall determine, based on the area's

[[Page 37894]]

design value (as of the attainment date), whether the area attained the 
standard by that date. Except for any Severe or Extreme Area, any area 
that the Administrator finds has not attained the standard by that date 
shall be reclassified by operation of law in accordance with table 1 of 
subsection (a) to the higher of--(i) the next higher classification for 
the area, or (ii) the classification applicable to the area's design 
value as determined at the time of the notice required under 
subparagraph (b).''
    Response 21: We disagree with the commenter. Section 181(a)(5)(B) 
of the CAA governs what an area has to meet in order to receive an 
attainment date extension. This area has met this part of the CAA and 
has been given an extension of the attainment date twice. See final 
rule (62 FR 61241, November 17, 1997), effective December 17, 1997; and 
direct final rule (63 FR 14623, March 26, 1998), effective May 26, 
1998. These two consecutive extensions extended the attainment date to 
November 15, 1998. The area attained the standard by this new deadline. 
Also see air quality summary in Response 11. The area was not 
reclassified to a higher classification since it qualified for an 
extension of the attainment date, having attained the 1-hour ozone 
standard by the deadline set by the applicable extension. In this 
rulemaking EPA is making this determination of attainment by the 
applicable attainment date, and the area is not subject to 
reclassification.
    Comment 22: The commenter alleges that the large number of 
exceedances of the eight-hour standard are another indication that the 
regional ozone levels must be reduced. The plan for reduction should be 
put in place now, not just to meet regulatory deadlines but to protect 
public health.
    Response 22: The 8-hour ozone standard is not the subject of this 
rulemaking. The Cincinnati-Hamilton area is being evaluated only with 
reference to the 1-hour ozone standard. See Response 2 and Response 19.
    Comment 23: The commenter contends that the SIP relied on voluntary 
actions such as those proposed by the Regional Ozone Coalition and 
funded by Congestion Mitigation and Air Quality Improvement program 
(CMAQ) (under ISTEA) funds, and that the voluntary actions fail to meet 
the CAA requirements of being permanent and enforceable. Furthermore, 
the commenter expresses the fear that the region will no longer qualify 
for CMAQ funds if it is redesignated, and that the region will no 
longer have access to funds which have been used since 1996 to reduce 
the vehicle component of ozone precursors, including reduced bus fares. 
The reduced bus fares have been effective in increasing ridership and 
would likely need to continue unless such funding comes from another 
source. The commenter says it has no indication that these funds have 
been replaced or will come from other sources.
    Response 23: We disagree with the commenter. The voluntary actions 
were not used to meet the requirement that the improvement in air 
quality was due to permanent and enforceable measures. Permanent and 
enforceable measures listed in the proposed rulemaking, such as the 
Federal Motor Vehicle Emissions Control Program, have provided the 
emissions reductions that have brought the area into attainment. The 
CAA does not prohibit areas from using voluntary measures to further 
reduce air pollution.
    The State of Ohio receives CMAQ funding from the United States 
Department of Transportation for all of the ozone and carbon monoxide 
nonattainment and maintenance areas in Ohio. The CMAQ funds are 
allocated to the states based on the allocation formula in the 
Transportation Equity Act for the 21st century passed by Congress 
during 1998. The Cincinnati-Hamilton area currently receives CMAQ 
funding based on its status as a moderate ozone nonattainment area.
    In general, the CMAQ funding allocation for a state is dependent on 
the number and size of the ozone and carbon monoxide nonattainment and 
maintenance areas in the State. The allocation does change slightly 
when an area goes from an ozone nonattainment area to an ozone 
maintenance area. Ozone maintenance areas are eligible for CMAQ 
funding. The allocation of funding to the State for a maintenance area 
is factored at a slightly lower level than for a nonattainment area; 
however, the funding is still significant. Changing the status of the 
area to an attainment area with a maintenance plan does not eliminate 
CMAQ funding. EPA believes that the CMAQ funds available to Ohio for 
the Cincinnati-Hamilton area will be sufficient to continue to support 
many of the existing air quality projects that are currently being 
funded.
    Comment 24: The commenter opposes the redesignation because, as the 
commenter states, most of the permits the commenter has reviewed do not 
have enforceable limits. The commenter believes most ``compliance'' is 
determined by calculations based on unverified data, and that 
facilities are not required to perform stack tests to show compliance 
with VOC limits. (It refers to files on Cincinnati Specialties for 
example.) The commenter points out that the CAA states ``Such plan 
provisions shall include enforceable emission limitations.''
    Response 24: EPA approved enforceable limits into the SIP for 
Cincinnati Specialties located at 501 Murray Road, Cincinnati, Ohio. 
See 61 FR 18256, dated April 25, 1996. The rule containing these 
emissions limits is found at SIP section 3745-21-09(YY). These limits 
apply to Cincinnati Specialties.
    The ozone SIP for the Cincinnati-Hamilton area has been fully 
approved, and there are no criteria requiring EPA to evaluate and 
assess Title V permit programs or review individual permits for 
enforceable emission limits prior to redesignation of the area. The SIP 
approval and redesignation criteria do not include evaluating 
permitting programs to ascertain whether or not any deficiencies exist. 
Whatever failures may be occurring are not undermining attainment, and 
any deficiencies that are confirmed can be addressed and corrected in 
other contexts, including a finding of failure to implement under 
section 173(b) of the CAA or requiring a SIP revision under section 
110(a)(2)(H) of the CAA. The maintenance plan is also designed to 
assure that attainment will be preserved.
    Also see Responses 5, 14, and 16.
    Comment 25: What is the NAAQS? What is the ``one-hour ozone 
standard''?
    Response 25: Air quality standards--known as National Ambient Air 
Quality Standards (NAAQS)--set national standards for acceptable 
concentrations of specific pollutants in outdoor air that threaten 
public health and the environment across broad regions of the country 
and are emitted in relatively large quantities by a variety of sources. 
EPA has established air quality standards for six pollutants or classes 
of pollutants, including ground level ozone. The 1-hour ozone standard 
is set at an ambient concentration of 0.12 parts per million and is 
averaged over a 1-hour time period.
    Ozone monitors in the Cincinnati-Hamilton area are in operation 
from late spring to early fall, the period of highest ozone 
concentrations. These monitors continuously sample and analyze the air 
for ozone. This data is averaged for each hour during the day and 
compared to the NAAQS. For further information see 65 FR 3633-3634.
    Comment 26: Is this redesignation to a better or worse level?
    Response 26: Redesignating an area from nonattainment to attainment 
changes its official listing to indicate that the area has better air 
quality which is meeting the relevant NAAQS.

[[Page 37895]]

    Comment 27: Why is EPA ``determining that certain attainment 
demonstration requirements, along with certain other related 
requirements of part D of Title 1 of the Clean Air Act not applicable 
to the Cincinnati-Hamilton area''? Also, 65 FR 3632 of the proposed 
rule states that, ``EPA has interpreted the general provisions of 
subpart 1 of part D of Title 1 (sections 171 and 172) so as not to 
require the submission of SIP revisions concerning RFP, attainment 
demonstrations, or contingency measures.''
    Response 27: These measures were intended to bring an area into 
attainment of the NAAQS. EPA has interpreted certain of these 
requirements as no longer being applicable in the Cincinnati-Hamilton 
area since it is in fact monitoring attainment of the 1-hour ozone 
NAAQS. See proposed rulemaking at 65 FR 3630. Also, see May 10, 1995 
memorandum from John S. Seitz, Director, Office of Air Quality Planning 
and Standards, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone National Ambient Air Quality Standard,'' and Response 
7, above, in this rulemaking.
    Comment 28: Page 3636 of the proposed rulemaking states that ``EPA 
believes, however, that in the context of the particular circumstances 
of this redesignation, it is permissible to depart from that policy and 
instead accept a commitment to implement these RACT rules as 
contingency measures in the maintenance plan rather than require full 
adoption and approval of the rules prior to approval of the 
redesignation.'' Why do this and what exactly are these particular 
circumstances?
    Response 28: The proposed rule at 65 FR 3636-3637 contains a 
discussion of the reasoning and circumstances. Also, see Response 7, 
above, in this rulemaking.
    Comment 29: The 15 percent plan was mentioned on page 3636 of the 
proposed rulemaking. Why would reductions of only 15 percent be 
required in the area?
    Response 29: Section 182(b)(1) of the Clean Air Act specifically 
requires a 15% reduction for areas classified as moderate and above. 
These reductions helped to bring the area into attainment. Additional 
reductions are not now needed to reach attainment of the 1-hour ozone 
standard since the area is attaining the 1-hour ozone standard. Also, 
see Response to Comment 27 in this rulemaking.
    Comment 30: How exactly does the Administrator determine that 
NOX reductions would not contribute to attainment?
    Response 30: For the Cincinnati-Hamilton area this determination is 
based on air quality monitoring data showing that the area is already 
attaining the 1-hour ozone standard, and therefore it does not need any 
additional NOX reductions to attain the 1-hour ozone 
standard. Also, see discussion and responses elsewhere in this 
rulemaking.

III. What Actions Are We Taking?

    We are determining that the Cincinnati-Hamilton moderate ozone 
nonattainment area has attained the NAAQS for ozone by its (extended) 
attainment date. The Cincinnati-Hamilton area includes the Ohio 
Counties of Hamilton, Butler, Clermont, and Warren and the Kentucky 
Counties of Boone, Campbell, and Kenton. On the basis of this 
determination, EPA is also determining that certain attainment 
demonstration requirements (section 172(c)(1)), along with certain 
other related requirements, of part D of Title 1 of the CAA, 
specifically the section 172(c)(9) contingency measure requirement, the 
section 182(b)(1) attainment demonstration requirement and the 182(j) 
multi-state attainment demonstration requirement are not applicable to 
the Cincinnati-Hamilton area.
    We are approving an exemption from the NOX requirement 
as provided for in section 182(f) for the Cincinnati-Hamilton area.
    We are approving the redesignation of the Cincinnati-Hamilton area 
to attainment of the 1-hour ozone standard and we are approving the 
section 175A maintenance plans as revisions to the Ohio and Kentucky 
SIPs. The States of Ohio and Kentucky have satisfied all of the 
necessary requirements of the Act.

IV. Why Are We Taking These Actions?

    We are making a determination that the area has attained the 1-hour 
ozone standard by its (extended) attainment date and has continued to 
be in attainment since that time. EPA is basing this determination upon 
three years of complete, quality-assured, ambient air monitoring data 
for the 1996-1998 ozone seasons that demonstrate that the ozone NAAQS 
has been attained in the entire Cincinnati-Hamilton area. EPA also is 
determining that based on the most recent 3 years of data from 1997-
1999, the area has continued to attain the standard. EPA believes it is 
reasonable to interpret provisions regarding attainment demonstrations, 
along with certain other related provisions, so as not to require SIP 
submissions, if an ozone nonattainment area subject to those 
requirements is monitoring attainment of the ozone standard (i.e., 
attainment of the NAAQS is demonstrated with three consecutive years of 
complete, quality assured, air quality monitoring data). See May 10, 
1995, memorandum from John Seitz (referenced in Response 27) and Sierra 
Club v. EPA, 99 F.3d 1551 (10th Cir. 1996).
    Section 182(f) establishes NOX requirements for ozone 
nonattainment areas which require adoption and implementation of 
control measures for major stationary sources of NOX similar 
to those which apply to major stationary sources of VOCs. One of the 
control requirements applicable to major stationary sources of VOCs is 
RACT. Therefore, pursuant to section 182(f) of the CAA, RACT is a 
requirement that is also applicable to major stationary sources of 
NOX in an ozone nonattainment area. However, subsection 
182(f)(1)(A) further provides that these requirements shall not apply 
to a nonattainment area outside an ozone transport region if the 
Administrator determines that additional NOX reductions 
would not contribute to attainment of the ozone NAAQS in that area. 
Under EPA guidance, a request for an exemption from the NOX 
requirements may be based upon the most recent three years of 
monitoring data.
    An EPA memorandum from John S. Seitz, Director, Office of Air 
Quality Planning and Standards, dated February 8, 1995, entitled 
``Section 182(f) Nitrogen Oxides (NOX) Exemptions-Revised 
Process Criteria,'' decouples the section 182(f) exemptions from 
NOX transport issues. The memorandum states that for an area 
that did not implement section 182(f) NOX requirements, but 
did attain the ozone standard as demonstrated by ambient air monitoring 
data (consistent with 40 CFR part 58 and recorded in EPA's AIRS), it is 
apparent that the additional NOX reductions required by 
section 182(f) would not contribute to attainment of the ozone NAAQS in 
that area.
    Because the Cincinnati-Hamilton area is currently demonstrating 
compliance with the ozone NAAQS based on three years of complete, 
quality-assured, ambient monitoring data, EPA is exempting the area 
from the section 182(f) NOX requirements. As discussed in 
detail above, EPA is also determining that the Cincinnati-Hamilton area 
has attained the 1-hour ozone NAAQS. Ambient air monitoring data for 
the 1996 to 1998 ozone seasons demonstrate that the ozone NAAQS has 
been attained in the area. In addition, 1999

[[Page 37896]]

ambient air monitoring data show that the area continues to attain the 
standard. Because the Cincinnati-Hamilton area has attained the ozone 
NAAQS, without benefit of additional NOX reductions, EPA has 
determined that this exemption request satisfies the NOX 
waiver test set forth in subsection 182(f)(1)(A).
    We are approving the maintenance plan as a revision to the SIP 
because it meets the requirements of section 175A and 107(d). We are 
also redesignating the area because three years of ambient air 
monitoring data demonstrate that the ozone NAAQS has been attained, the 
area has continued in attainment, and the area has satisfied the other 
requirements for redesignation.

V. What Are the Effects of These Actions?

    These actions determine that the area attained the 1-hour ozone 
standard by its (extended) attainment date (November 15, 1998) and that 
the requirements of section 172(c)(1), 182(b)(1) and 182(j) concerning 
the submission of the ozone attainment demonstration and the 
requirements of section 172(c)(9) concerning contingency measures for 
reasonable further progress (RFP) or attainment are not applicable to 
the area. This final action also exempts the area from section 182(f) 
NOX requirements for moderate ozone nonattainment areas. 
However, all NOX controls previously approved for the area 
by EPA must continue to be implemented. No additional NOX 
measures are required for purposes of attaining the 1-hour standard.
    The redesignation changes the official designation of the Ohio 
Counties of Butler, Warren, Clermont, and Hamilton and the Kentucky 
Counties of Boone, Campbell, and Kenton from nonattainment to 
attainment for the 1-hour ozone standard. It also approves as a SIP 
revision and puts into place plans for maintaining the 1-hour ozone 
standard for the next 10 years. These plans include contingency 
measures to correct any future violations of the 1-hour ozone standard.
    The 1-hour ozone standard mobile source budgets for the Ohio 
portion of the area for the purposes of transportation conformity are 
now 37.9 tons per summer day VOC and 52.3 tons per summer day 
NOX for the year 2010. The mobile source budgets for the 
purposes of transportation conformity for the Kentucky portion of the 
area are now 5.83 tons per summer day VOC and 15.13 tons per summer day 
NOX for the year 2010.

VI. Approving SIP Revisions in Audit Law States

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Kentucky's audit 
privilege and penalty immunity law Kentucky--``KRS 224.01-040'' or its 
impact upon any approved provision in the SIP, including the revision 
at issue here. The action taken herein does not express or imply any 
viewpoint on the question of whether there are legal deficiencies in 
this or any other Clean Air Act program resulting from the effect of 
Kentucky's audit privilege and immunity law. A state audit privilege 
and immunity law can affect only state enforcement and cannot have any 
impact on Federal enforcement authorities. EPA may at any time invoke 
its authority under the Clean Air Act, including, for example, sections 
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions 
of the state plan, independently of any state enforcement effort. In 
addition, citizen enforcement under section 304 of the Clean Air Act is 
likewise unaffected by a state audit privilege or immunity law.

VII. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866; and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments, or EPA consults 
with those governments.
    If EPA complies by consulting, Executive Order 13084 requires EPA 
to provide to the Office of Management and Budget, in a separately 
identified section of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

D. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation.

[[Page 37897]]

EPA also may not issue a regulation that has federalism implications 
and that preempts state law unless the Agency consults with State and 
local officials early in the process of developing the proposed 
regulation.
    This rule will not have substantial direct effects on the states, 
on the relationship between the national government and the states, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely affects the status of a geographical area, does not impose any 
new requirements on sources, or allows a state to avoid adopting or 
implementing other requirements, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. Thus, the requirements of section 6 of the Executive Order do 
not apply to this rule.

E. Executive Order 12898

    Executive Order 12898 (59 FR 7629, February 16, 1994) instructs EPA 
to address, as appropriate, disproportionately high and adverse health 
or environmental effects on minority and low-income populations. As set 
forth in its response to Comment 3, above, EPA has found that this 
rulemaking is consistent with Executive Order 12898 and does not impose 
any disproportionately high and adverse human health or environmental 
effects on minority and low-income populations.

F. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply approve requirements that the state is already 
imposing. In addition, approval of NOX exemption requests 
and determination of attainment do not create any new requirements, but 
instead allow the states to avoid the imposition of the indicated 
requirements. Redesignation of an area to attainment under section 
107(d)(3)(E) of the Clean Air Act does not impose any new requirements 
on small entities. Redesignation is an action that affects the status 
of a geographical area and does not impose any new regulatory 
requirements on sources. Therefore, because the Federal SIP approval 
does not create any new requirements, I certify that this action will 
not have a significant economic impact on a substantial number of small 
entities. Moreover, due to the nature of the Federal-State relationship 
under the Clean Air Act, preparation of flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The Clean Air Act forbids EPA to base its actions concerning 
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 
255-66 (1976); 42 U.S.C. 7410(a)(2).

G. Unfunded Mandates

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), 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 
the 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 approves pre-
existing requirements under state or local law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

H. Submission to Congress and the Comptroller General

    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 publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective July 5, 2000.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, and in the absence of a prior existing requirement for 
the state to use voluntary consensus standards (VCS), EPA has no 
authority to disapprove a SIP submission for failure to use VCS. It 
would thus be inconsistent with applicable law for EPA, when it reviews 
a SIP submission, to use VCS in place of a SIP submission that 
otherwise satisfies the provisions of the Clean Air Act. Redesignation 
is an action that affects the status of a geographical area but does 
not impose any new requirements on sources. Thus, the requirements of 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply.

J. Other

    EPA finds that there is good cause for this determination of 
attainment, NOX exemption, and redesignation to attainment 
and SIP revision to become effective 15 days after publication because 
a 30-day delayed effective date is unnecessary due to the nature of 
these actions, which relieve the area from certain Clean Air Act 
requirements that would otherwise apply to it. The 15-day effective 
date for this redesignation and other related actions is authorized 
under both 5 U.S.C. 553(d)(l), which provides that rulemaking actions 
may become effective less than 30 days after publication if the rule 
``grants or recognizes an exemption or relieves a restriction'' and 
section 553(d)(3), which allows an effective date less than

[[Page 37898]]

30 days after publication ``as otherwise provided by the agency for 
good cause found and published with the rule.''
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to any SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and regulatory requirements.
    Ozone SIPs are designed to satisfy the requirements of part D of 
the Act and provide for attainment and maintenance of the ozone NAAQS. 
This final redesignation should not be interpreted as authorizing the 
State to delete, alter, or rescind any of the VOC or NOX 
emission limitations and restrictions contained in the approved ozone 
SIP. Changes to ozone SIP VOC regulations rendering them less stringent 
than those contained in the EPA approved plan cannot be made unless a 
revised plan for attainment and maintenance is submitted to and 
approved by EPA. Unauthorized relaxations, deletions, and changes could 
result in both a finding of nonimplementation (section 173(b) of the 
Act) and in a SIP deficiency call made pursuant to section 110(a)(2)(H) 
of the Act.

K. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 18, 2000. 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

40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen oxides, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

40 CFR Part 81

    Environmental protection, Air pollution control.

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

    Dated: May 26, 2000.
Francis X. Lyons,
Regional Administrator, Region 5.
    Dated: June 5, 2000.
John H. Hankinson, Jr.,
Regional Administrator, Region 4.

    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 et seq.

Subpart S--Kentucky

    2. Section 52.920 is amended by adding a new entry to the table in 
paragrpah (e) in numerical order to read as follows:


Sec. 52.920  Identification of plan.

* * * * *
    (e) EPA-approved nonregulatory provisions.

                                                     EPA-Approved Kentucky Nonregulatory Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
              Appendix                      Title/subject          State effective date     EPA approval date            Federal Register notice
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
           *                  *                  *                  *                  *                  *                  *
20.................................  Northern Kentucky Ozone        ....................  July 5, 2000.........  [Insert FR page citation]
                                      Maintenance Plan.
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Section 52.930 is amended by adding paragraphs (g), (h), and (i) 
to read as follows:


Sec. 52.930  Control strategy ozone.

* * * * *
    (g) The redesignation request submitted by the Commonwealth of 
Kentucky, on October 29, 1999, for the Kentucky portion of the 
Cincinnati-Hamilton moderate interstate ozone nonattainment area from 
nonattainment to attainment was approved on July 5, 2000. The mobile 
source budgets for the Kentucky portion of the area for the purposes of 
transportation conformity are now 5.83 tons per summer day of volatile 
organic compounds and 15.13 tons per summer day of nitrogen oxides for 
the year 2010.
    (h) Determination--EPA is determining that as of July 5, 2000, the 
Kentucky portion of the Cincinnati-Hamilton ozone nonattainment area 
(which includes the Counties of Boone, Kenton, and Campbell) has 
attained the 1-hour ozone standard and that the attainment 
demonstration requirements of section 182(b)(1), 182(j), and 172(c)(1), 
along with the section 172(c)(9) contingency measure requirements, do 
not apply to the area.
    (i) Approval--EPA is approving an exemption from the requirements 
contained in section 182(f) of the Clean Air Act. This approval exempts 
Boone, Kenton, and Campbell counties in Kentucky from the 
NOX related general conformity provisions; nonattainment NSR 
for new sources and modifications that are major for NOX; 
NOX RACT; and the requirement for a demonstration of 
compliance with the enhanced I/M performance standard for 
NOX.

    4. Section 52.937 is amended by adding paragraph (b) to read as 
follows:


Sec. 52.937  Review of new sources and modifications.

* * * * *
    (b) Approval--EPA is approving the section 182(f) oxides of 
nitrogen (NOX) reasonably available control technology 
(RACT) exemption for the Kentucky portion of the Cincinnati-Hamilton 
ozone (O3) moderate nonattainment area. This approval 
exempts this area from implementing NOX RACT on major 
sources of NOX.

Subpart KK--Ohio

    5. Section 52.1885 is amended by revising paragraph (x) and adding 
paragraph (a)(14), (b)(11), (dd) and (ee) to read as follows:


Sec. 52.1885  Control strategy: Ozone.

    (a) * * *
    (14) Approval--EPA is approving the ozone maintenance plan for the 
Ohio portion of the Cincinnati-Hamilton area

[[Page 37899]]

that was received by EPA on July 2, 1999, and completed on December 22, 
1999. The mobile source budgets for the Ohio portion of the area for 
the purposes of transportation conformity are now 37.9 tons per summer 
day of volatile organic compounds and 52.3 tons per summer day of 
nitrogen oxides for the year 2010.
    (b) * * *
    (11) Butler, Clermont, Hamilton, and Warren Counties.
* * * * *
    (x) Approval--EPA is approving requests submitted by the State of 
Ohio on March 18, November 1, and November 15, 1994, for exemption from 
the requirements contained in section 182(f) of the Clean Air Act. This 
approval exempts the following counties in Ohio from the NOX 
related general and transportation conformity provisions; nonattainment 
area NSR for new sources and modifications that are major for 
NOX: Clinton, Columbiana, Delaware, Franklin, Jefferson, 
Licking, Mahoning, Preble, Stark, and Trumbull. This approval also 
exempts the following counties in Ohio from the NOX related 
general and transportation conformity provisions; nonattainment area 
NSR for new sources and modifications that are major for 
NOX; NOX RACT; and a demonstration of compliance 
with the enhanced I/M performance standard for NOX: 
Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage, and Summit.
* * * * *
    (dd) Determination--EPA is determining that, as of July 5, 2000, 
the Ohio portion of Cincinnati-Hamilton ozone nonattainment area (which 
includes the Counties of Butler, Clermont, Hamilton and Warren) has 
attained the 1-hour ozone standard and that the attainment 
demonstration requirements of section 182(b)(1), 182(j), and 172(c)(1), 
along with the section 172(c)(9) contingency measure requirements, do 
not apply to the area.
    (ee) Approval--EPA is approving an exemption from the requirements 
contained in section 182(f) of the Clean Air Act. This approval exempts 
Butler, Clermont, Hamilton, and Warren counties in Ohio from the 
NOX related general conformity provisions; the nitrogen 
oxides nonattainment NSR for new sources and modifications that are 
major for NOX; NOX RACT; and a demonstration of 
compliance with the enhanced automobile inspection and maintenance 
performance standard for NOX.
* * * * *

    6. Section 52.1879 is amended by revising paragraph (e) and adding 
paragraph (g) to read as follows:


Sec. 52.1879  Review of new sources and modifications.

* * * * *
    (e) Approval--EPA is approving requests submitted by the State of 
Ohio on March 18, November 1, and November 15, 1994, for exemption from 
the requirements contained in section 182(f) of the Clean Air Act. This 
approval exempts the following counties in Ohio from the NOX 
related general and transportation conformity provisions and 
nonattainment area NSR for new sources and modifications that are major 
for NOX: Clinton, Columbiana, Delaware, Franklin, Jefferson, 
Licking, Mahoning, Preble, Stark, and Trumbull. This approval also 
exempts the following counties in Ohio from the NOX related 
general conformity provisions; nonattainment area NSR for new sources 
and modifications that are major for NOX; NOX 
RACT; and a demonstration of compliance with the enhanced I/M 
performance standard for NOX: Ashtabula, Cuyahoga, Geauga, 
Lake, Lorain, Medina, Portage, and Summit.
* * * * *
    (g) Approval--EPA is approving an exemption from the requirements 
contained in section 182(f) of the Clean Air Act. This approval exempts 
Butler, Clermont, Hamilton, and Warren counties in Ohio from 
nonattainment NSR for new sources and modifications that are major for 
NOX.
* * * * *

PART 81--[AMENDED]

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

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


    2. Section 81.336 is amended by revising the ozone table entry for 
the Cincinnati-Hamilton Area to read as follows:


Sec. 81.336  Ohio.

* * * * *

                                                                       Ohio--Ozone
                                                                    [1-hour standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
Cincinnati-Hamilton Area:
    Butler County.......................      6/19/00  Attainment...............................
    Clermont County.....................      6/19/00  Attainment...............................
    Hamilton County.....................      6/19/00  Attainment...............................
    Warren County.......................      6/19/00  Attainment...............................
 
                  *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990 unless otherwise noted.

* * * * *

    3. Section 81.318 is amended by revising the ozone table entry for 
the Cincinnati-Hamilton Area to read as follows:


Sec. 81.318  Kentucky

* * * * *

[[Page 37900]]



                                                                       Ohio--Ozone
                                                                    [1-hour standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cincinnati-Hamilton Area:
    Boone County........................      6/19/00  Attainment...............................
    Campbell County.....................      6/19/00  Attainment...............................
    Kenton County.......................      6/19/00  Attainment...............................
 
                  *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990 unless otherwise noted.

* * * * *
[FR Doc. 00-15294 Filed 6-16-00; 8:45 am]
BILLING CODE 6560-50-P