[Federal Register Volume 65, Number 132 (Monday, July 10, 2000)]
[Proposed Rules]
[Pages 42312-42316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17192]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH 103-1b; FRL-6731-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a maintenance plan and 
redesignation of Cuyahoga and Jefferson Counties, Ohio, to attainment 
for particulate matter, specifically for particles known as 
PM10.

[[Page 42313]]

Ohio requested this action on May 22, 2000. In proposing this action, 
EPA proposes to conclude that these areas are meeting the standard and 
have plans for assuring continued attainment. Although for 
administrative convenience EPA is only proposing action on the Ohio 
portion of the Steubenville area, this action reflects a review of air 
quality for the entire area and Ohio's fulfillment of its portion of an 
area-wide attainment plan that it developed jointly with West Virginia. 
EPA anticipates receiving and rulemaking in the near future on a 
similar request from West Virginia for redesignation of its portion of 
the Steubenville area.
    This action reflects parallel processing of Ohio's request. Ohio 
has proposed to request redesignation of the above two counties. Ohio 
held a hearing on its proposed request on June 12, 2000, and 
anticipates making a final request for redesignation shortly 
thereafter. Since Ohio's final redesignation request will likely be 
similar to its proposed request, EPA is proposing approval action on 
Ohio's request. If the final request differs significantly from the 
proposed request, EPA will repropose action on the request. Otherwise, 
EPA anticipates proceeding directly to final action.

DATES: Written comments on this proposed rule must arrive on or before 
August 9, 2000.

ADDRESSES: Send comments to: J. Elmer Bortzer, Chief, Regulation 
Development Section, Air Programs Branch (AR-18J), United States 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    Copies of the State's submittal are available for inspection at the 
following address: (We recommend that you telephone John Summerhays at 
(312) 886-6067, before visiting the Region 5 Office.)

U.S. Environmental Protection Agency, Region 5, Air and Radiation 
Division (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Regulation 
Development Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6067.

SUPPLEMENTARY INFORMATION: This supplemental information section is 
organized as follows:

I. Review of Redesignation Request
    1. What criteria is EPA using?
    2. Are the areas attaining the standards?
    3. Has EPA fully approved the plans?
    4. Is attainment due to permanent emission reductions?
    5. Does the maintenance plan assure continued attainment?
    6. Has the State met Section 110 and Part D?
II. Proposed Rulemaking Action
III. Administrative Requirements
    A. Executive Order 12866
    B. Executive Order 13045
    C. Executive Order 13084
    D. Executive Order 13132
    E. Regulatory Flexibility
    F. Unfunded Mandates

I. Review of Redesignation Request

1. What Criteria Is EPA Using?

    Ohio's letter of May 22, 2000, requests rulemaking on redesignation 
of Cuyahoga and Jefferson Counties from nonattainment to attainment for 
PM10. The central criteria for redesignations from 
nonattainment to attainment are in section 107(d)(3)(E) of the Clean 
Air Act. EPA may not promulgate such a redesignation unless: (A) the 
area has attained the applicable NAAQS, (B) the area has a fully 
approved SIP under section 110(k) of the Act, (C) EPA has determined 
that the improvement in air quality in the area is due to permanent and 
enforceable emission reductions, (D) EPA has determined that the 
maintenance plan for the area has met all of the requirements of 
section 175A of the Act, and (E) the state has met all requirements 
applicable to the area under section 110 and part D of the Act.
    EPA has issued a variety of relevant guidance. The most relevant 
guidance on redesignations is given in a September 4, 1992, memorandum 
issued by the Director of EPA's Office of Air Quality Planning and 
Standards. Guidance relevant to the evaluation of monitoring data is 
given in Appendix K of Title 40 Code of Federal Regulations Part 50 (40 
CFR 50). Guidance relevant to maintenance plan review is included in 
the September 4, 1992, memorandum.

2. Are the Areas Attaining the Standards?

    At issue in this rulemaking are designations promulgated on 
November 6, 1991, based on the PM10 standards as given in 40 
CFR 50.6. EPA also set newer standards for PM10 as well as 
new standards for PM2.5, promulgated on July 18, 1997, and 
codified at 40 CFR 50.7. EPA expected to promulgate designations for 
the newer PM10 standards and rescind the designations for 
the older PM10 standards, but the Circuit Court of Appeals 
for the District of Columbia has vacated the newer PM10 
standards. While this court decision is under appeal, Ohio has 
requested that the still extant designations for Cuyahoga and Jefferson 
Counties for the older PM10 standards be changed from 
nonattainment to attainment.
    The September 4, 1992 guidance recommends evaluating three years of 
representative monitoring data. Ohio monitors PM10 
concentrations at numerous locations in Cuyahoga and Jefferson 
Counties, including locations expected to observe the highest 
concentrations in these counties. Detailed results of this monitoring 
are available in EPA's Air Information Retrieval System (AIRS) and on 
the internet at http://www.epa.gov/airsdata/monsum.htm. Ohio's 
submittal summarizes this air quality data and analyzes the expected 
likelihood of exceeding the air quality standards.
    For Cuyahoga County, Ohio's submittal includes information from 
eight monitoring sites, six of which are located in the central part of 
Cleveland where emissions are highest and the highest concentrations 
are expected. Ohio provided data for the most recent three years, i.e., 
1997 to 1999. All sites recorded annual average concentrations below 
the annual average standard in all three years. Six of these eight 
sites also recorded no exceedances of the 24-hour standard. Two sites 
in central Cleveland recorded exceedances and must be analyzed with 
respect to expected exceedances.
    The monitoring site in Cuyahoga that has been most likely to exceed 
air quality standards is site number 39-035-0013, at 2785 Broadway. 
During 1997 to 1999, this site recorded concentrations above the 24-
hour average standard of 150 g/m\3\ on two days--once in 1998 
and once in 1999. Therefore, Ohio analyzed expected exceedances for 
this site in accordance with Appendix K of 40 CFR 50. Appendix K 
provides procedures for estimating a probability number of exceedances 
expected for days without valid monitoring data. These procedures 
generally assume that the probability of an exceedance on days without 
valid monitoring data equals the probability of an exceedance among 
days with valid data for the same calendar quarter. For the 2785 
Broadway site, for 1998, the monitor recorded 1 exceedance among the 86 
days during the second quarter with valid data. Therefore, the 5 days 
during that quarter without valid data were estimated to have an 
additional (5  x  \1/86\) or .06 expected exceedances, for a total of 
1.06 expected exceedances. For 1999, this monitor recorded 1 exceedance 
during the 85 days of the first quarter with valid data, so the 
remaining 5 days were estimated to have (5  x  \1/85\) or .06 expected 
exceedances, for a total of 1.06 expected exceedances. The three year 
average at

[[Page 42314]]

this site is therefore 0.7 expected exceedances. Since the 24-hour 
standard is met when the average number of expected exceedances of 150 
g/m\3\ is 1.0 or less, this indicates attainment of this 
standard.
    The other monitoring site with a measured exceedance is site number 
39-035-0060, at East 14th Street and Orange Avenue. This site has two 
operating instruments: a high volume sampler which collects samples 
once every six days, and a continuous instrument which operates every 
day. This site is 1 kilometer from the 2785 Broadway site.
    One exceedance of 150 g/m\3\ was recorded at the 14th and 
Orange site in 1997 to 1999, recorded by the high volume sampler in the 
first quarter of 1999. Appendix K and related guidance authorizes an 
exemption from the missing data adjustment if daily sampling is 
initiated at the site or daily sampling occurs at another site in the 
area that is a worst concentration site. The 2785 Broadway site makes 
daily readings and is a nearby worst concentration site, having 
concentrations similar to those at the 14th and Orange site but being 
somewhat more prone to observe exceedances. Indeed, on the day that the 
14th and Orange site observed an exceedance, the 2785 Broadway site 
observed an exceedance as well. Therefore, a missing data adjustment 
need not be done for the 1999 exceedance at this site. Instead, EPA 
evaluates the 14th and Orange site as having 1.0 expected exceedance in 
1999, zero expected exceedances for 1997 and 1998, and thus a three 
year average of 0.3 expected exceedances.
    Further justification for exempting the 14th and Orange site from 
evaluation of expected exceedances for days lacking high volume sampler 
data is the availability of daily concentration measurements by another 
instrument at the same site. Data from this other instrument support 
EPA's belief that the likelihood of measured exceedances at this 
location is low and that the percentage of high volume samples found to 
exceed the standard (one day among 14 samples for the first quarter of 
1999) overstates the actual likelihood of exceedances at this location.
    The two instruments at this site use different methods, but both 
methods give valid indication of whether an exceedance of the standard 
has occurred. Conceptually, one could evaluate the data from the two 
instruments on a day-by-day basis to assess the number of days that are 
above or below the standard at this location and the number of days for 
which the air quality there is unknown. Of the 90 days in the first 
quarter of 1999, 74 days had only continuous sampler data, 13 days had 
both high volume sampler data and continuous sampler data, 1 day had 
only high volume sampler data, and 2 days had no data. For the 74 days 
with only continuous sampler data, all days were below the level of the 
standard; in fact, all days had concentrations below 80 g/
m\3\. Similarly, for the 13 days with both continuous sampler and high 
volume sampler data, both instruments showed concentrations that in all 
cases were below 60 g/m\3\. The one day with only high volume 
sampler data showed a concentration above the standard (at 233 
g/m\3\). That is, the 88 days with data from either or both 
instruments included one day that exceeded the standard and 87 days in 
which one or both instruments indicated were below the standard. This 
suggests that the location had one day with a known exceedance and 2 
days without data which could be estimated to have a 1 in 88 likelihood 
of exceeding the standard. When considered in combination with the two 
years with no measured exceedances, this further supports the view that 
the standard was attained at this location.
    For the Steubenville area, the assessment must address air quality 
in the West Virginia as well as the Ohio portion of the area. Although 
this rulemaking only addresses the Ohio portion of the area, the first 
requirement is that the entire area meet the air quality standard. 
Therefore, the analysis of Steubenville area air quality addressed the 
one monitor in Follansbee, West Virginia, as well as the five 
monitoring locations in Jefferson County, Ohio. Monitors at all six 
locations have recorded no 24-hour average values above 150 g/
m\3\ and no annual average values above 50 g/m\3\ since 1990. 
Although the record has a significant data gap in the third and fourth 
quarters of 1997, complete data for 1994 to 1996 as well as for 1998 
and 1999 show attainment. The data that are available for 1997 also 
show no exceedances, so these data are consistent with the conclusion 
based on the other years' data that this area has been attaining the 
standard.
    Beginning in 1998, Ohio has taken less frequent samples at some 
sites. EPA concurred with this change, concluding on the basis of prior 
data that the reduced sampling frequency would provide sufficient data 
to evaluate the area's attainment status. EPA believes the data are 
adequate to conclude that all portions of the Steubenville area are 
attaining both the 24-hour and the annual average standards.
    In summary, Cuyahoga County has recorded no recent exceedances of 
the annual standard, no exceedances of the 24-hour standard at six of 
eight sites, and below the acceptable 1.0 expected exceedances of the 
24-hour standard at the other two sites. The Steubenville area has 
recorded no recent exceedances of either PM10 air quality 
standard. Therefore, both areas are attaining both of the applicable 
PM10 air quality standards.

3. Has EPA Fully Approved the Plans?

    EPA approved most of Ohio's particulate matter regulations on May 
27, 1994, at 59 FR 27464. This rulemaking approved numerous statewide 
regulations as well as rules for Cuyahoga and Jefferson Counties. 
Nevertheless, EPA concluded that Ohio had not satisfied selected 
requirements. Ohio provided a supplemental submittal to EPA on November 
3, 1995. On June 12, 1996, at 61 FR 29662, EPA concluded that Ohio had 
satisfied all requirements for both Cuyahoga and Jefferson Counties. 
Although EPA is not rulemaking on redesignation of the West Virginia 
portion of the Steubenville area, EPA approved the companion plan for 
West Virginia's portion of the area on November 15, 1996, at 61 FR 
58481. Ohio's and West Virginia's plans were developed jointly and 
include the same attainment strategy. Thus, with respect to 
redesignation of the Ohio portion of the Steubenville area, EPA has 
approved Ohio's portion of a collectively accepted and approved plan 
for assuring attainment in this area.

4. Is Attainment Due to Permanent Emission Reductions?

    Ohio's plan requires permanent emission reductions at a wide range 
of facilities. The emission reductions include installation of air 
pollution control equipment to capture and control particulate matter 
that was previously emitted. The reductions also include required 
efforts to reduce emissions from plant roadways and storage piles. 
These reductions have led to these counties now attaining the 
standards.

5. Does the Maintenance Plan Assure Continued Attainment?

    Ohio's maintenance plans for Cuyahoga County and the Steubenville 
area consist mainly of the emission limits in the attainment plan noted 
above that EPA approved in 1996. That plan included an inventory of 
maximum allowable emissions from the most significant sources of 
particulate matter emissions in these areas, and demonstrated that the 
areas would

[[Page 42315]]

achieve and maintain attainment even if the sources operated at maximum 
capacity. The only remaining issue is whether background impacts from 
sources that lack such limits, such as diesel vehicles and home 
heating, will increase sufficiently to cause violations of the air 
quality standard.
    Ohio provided census information indicating a declining population 
in Cuyahoga and Jefferson Counties. This indicates that the minor 
source types not regulated in Ohio's rules will likely have declining 
emissions. Ohio also notes the expected decline in diesel emissions as 
cleaner new vehicles required by EPA regulations come to replace 
dirtier older vehicles. These declines can be expected to continue 
throughout the 10 years that must be included in maintenance plans. 
Ohio also noted that coke oven emissions have declined and will remain 
below SIP levels due to EPA regulations requiring maximum achievable 
control technology. Therefore, EPA concludes that Ohio's maintenance 
plan provides adequate assurance that the particulate matter standards 
will continue to be attained in Cuyahoga County and the Steubenville 
area.
    Maintenance plans must include contingency measures in case the 
areas have problems staying below the air quality standards. Ohio has 
contingency measures in conjunction with its attainment plan that EPA 
approved on May 6, 1996, at 61 FR 20142. These measures have air 
quality triggers that are independent of attainment status, so they are 
also valid contingency measures for maintenance purposes.
    Maintenance plans further must include commitments to continued air 
quality monitoring and to submittal of a reassessment of maintenance in 
8 years. Ohio's monitoring plan is part of its SIP and must continue to 
be implemented to continue to satisfy section 110 of the Clean Air Act. 
Ohio's maintenance plan is in most respects a permanent maintenance 
plan, but EPA expects Ohio to reassess its maintenance plan in 8 years 
if the relevant standard is still in effect at that time.

6. Has the State Met Section 110 and Part D?

    The rulemaking on Ohio's particulate matter plan cited above, 
published on June 12, 1996, at 61 FR 29662, concludes that Ohio has met 
the requirements of Section 110 and Part D with respect to particulate 
matter planning in Cuyahoga and Jefferson Counties.

II. Proposed Rulemaking Action

    Cuyahoga and Jefferson Counties in Ohio are currently designated 
nonattainment for the PM10 standards given at 40 CFR 50.6. 
EPA proposes to approve Ohio's maintenance plan for these areas.
    Clean Air Act section 107(d)(3)(E) identifies five prerequisites 
for redesignation of areas from nonattainment to attainment. EPA 
proposes to conclude that these criteria are met with respect to 
PM10 in Cuyahoga and Jefferson Counties. Therefore, EPA 
proposes to redesignate these two counties to attainment for 
PM10.
    For the Steubenville area, EPA is today proposing action only on 
the Ohio portion of this area. This approach is for administrative 
convenience and in no way signifies any splitting of the area into 
separate air quality planning areas. EPA's action today reflects a 
review of the air quality for the full Steubenville area as well as 
Ohio's fulfillment of its portion of an attainment plan that Ohio and 
West Virginia jointly developed. This administrative approach is the 
same as the administrative approach used in rulemaking on the 
attainment plan, in which separate Ohio versus West Virginia rulemaking 
was based on fulfillment by each State of its share of a jointly 
developed area-wide plan. EPA has not yet received a redesignation 
request for the West Virginia portion of the Steubenville area. EPA 
anticipates receiving and rulemaking on such a request in the near 
future. In the future, if the standard is violated in either portion of 
the area, such that redesignation back to nonattainment is warranted, 
EPA will reinstate nonattainment status for the entire area.

III. 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 proposed 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

[[Page 42316]]

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. 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.
    The action being proposed 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 proposes to approve a change that the State 
requested in the attainment status of two areas, 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. 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.
    The action being proposed will not have a significant impact on a 
substantial number of small entities because redesignations under 
section 107 of the Clean Air Act do not create any new requirements. 
Therefore, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

F. 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 proposed 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 proposes to 
approve a change in the attainment status of two areas, and imposes no 
new requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: June 28, 2000.
Norman Niedergang,
Regional Administrator, Region 5.
[FR Doc. 00-17192 Filed 7-7-00; 8:45 am]
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