[Federal Register Volume 65, Number 238 (Monday, December 11, 2000)]
[Rules and Regulations]
[Pages 77308-77318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31329]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH-138-2; FRL-6914-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is redesignating Cuyahoga and Jefferson Counties, Ohio, to 
attainment for particulate matter nominally 10 microns in aerodynamic 
diameter and smaller (PM10). EPA is also approving Ohio's plan for 
maintaining air quality at levels below the applicable air quality 
standards.
    EPA proposed these actions on July 10, 2000. One commenter 
submitted numerous comments, generally taking the position that the 
criteria for redesignation to attainment given in Clean Air Act section 
107(d)(3)(E) are not met. EPA has reviewed these comments and, for the 
reasons set forth below, continues to believe that the redesignation 
criteria have been met and that these areas may be redesignated and 
their maintenance plans approved.
    The Steubenville area includes portions of Brooke County, West 
Virginia, as well as Jefferson County, Ohio. For administrative 
convenience EPA is taking action only on the Ohio portion of this area. 
Nevertheless, the action reflects 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. In the future, if 
the standard is violated in either portion of the area, such that 
redesignation back to nonattainment is warranted, EPA will propose to 
reinstate nonattainment status for the entire area.

EFFECTIVE DATE: This action will be effective on January 10, 2001.

ADDRESSES: Copies of the Ohio's submittals and other information are 
available for inspection during normal business hours at the following 
address: (We recommend that you telephone John Summerhays at (312) 886-
6067, before visiting the Region 5 Office) United States Environmental 
Protection Agency, Region 5, Air Programs Branch (AR-18J), Regulation 
Development Section, 77 West Jackson Boulevard, Chicago, Illinois 
60604.

FOR FURTHER INFORMATION CONTACT: John Summerhays, 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) 886-6067, 
([email protected]).

SUPPLEMENTARY INFORMATION: The terms ``we,'' ``us,'' and ``our'' in 
this notice signify EPA. This notice is organized as follows:

Table of Contents

I. What actions did EPA propose, and why?
II. What comments did EPA receive and what are our responses?
III. What actions is EPA taking, and why?
IV. Administrative requirements.
    A. Executive Order 12866
    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

[[Page 77309]]

    J. Petitions for Judicial Review

I. What Actions Did EPA Propose, and Why?

    On July 10, 2000, EPA published rulemaking 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. (See 65 FR 43212.) This proposal was based on 
a request from the State of Ohio submitted in preliminary form on May 
22, 2000. This action pertains to the PM10 standards 
promulgated in 1987 at 40 CFR 50.6, for which designations are 
published at 40 CFR 81. This action does not pertain to the 
PM10 standards promulgated in 1997 at 40 CFR 50.7, which 
have been vacated by the District of Columbia Circuit Court of Appeals 
and for which no designations have been published.
    Ohio's maintenance plan relies predominantly on the emissions 
limits already included in its State Implementation Plan (SIP) that 
have been shown to limit emissions from the significant sources in 
these areas sufficiently to assure attainment. The attainment plan 
addresses maximum allowable emissions, so the plan provides for 
continued attainment even if source production rates grow to maximum 
capacity. Ohio's maintenance plan supplements this with evidence of 
declining impacts from other, unregulated sources, which contribute to 
the background concentration included in the attainment demonstration. 
Specifically, Ohio cited population declines in the two counties, which 
will lead to reduced emissions from consumer activities, and federal 
regulations requiring reduced emissions from diesel engines. Ohio 
further cited emission regulations which will reduce emissions below 
attainment levels at the coke batteries found in the two areas. EPA 
proposed to conclude on the basis of these plan elements that these 
counties can be expected to continue attaining the applicable 
PM10 standards for the requisite 10 years.
    EPA reviewed Ohio's redesignation request on the basis of five 
criteria given in section 107(d)(3)(E) of the Clean Air Act. The first 
criterion is attainment of the air quality standards. All monitors have 
annual average concentrations below the annual standard. The 24-hour 
standard is met if the expected frequency of values above 150 
g/m3 is 1.0 day per year or less. All the monitors 
in the Steubenville area and most of the monitors in Cuyahoga County 
have recorded no recent exceedances of this air quality standard. These 
monitors clearly indicate attainment of these standards. Two monitors 
in Cleveland have recorded values above 150 g/m3, 
requiring analysis of expected exceedances at these locations 
consistent with the provisions of Appendix K of 40 CFR 50. EPA found a 
sufficiently low expected frequency of exceedances to propose to 
conclude that these locations, like the rest of Cuyahoga County, are 
attaining the standards.
    The second criterion is that EPA has fully approved the necessary 
air quality control plans. EPA has previously concluded that relevant 
requirements were met, as stated in rulemakings published on May 27, 
1994, at 59 FR 27464, and June 12, 1996, at 61 FR 29662, supplementing 
earlier rulemakings. In acting on redesignation requests, EPA has 
consistently interpreted section 107(d)(3) as permitting the Agency to 
rely on prior approvals of SIP provisions when reviewing redesignation 
requests. See Memorandum from John Calcagni, Director of the Air 
Quality Management Division dated September 4, 1992. For a recent 
discussion of redesignation requirements see 65 FR 37879 (June 19, 
2000) (redesignation to attainment for ozone of the Cincinnati-Hamilton 
moderate ozone nonattainment area).
    The third criterion for redesignation is that attainment be 
attributable to permanent and enforceable emission reductions. EPA 
found that permanent and enforceable emission limits have yielded 
permanent emission reductions that satisfied this criterion at numerous 
facilities in the two counties. The fourth criterion is that EPA has 
approved a maintenance plan that assures continued attainment. As 
discussed above, EPA proposed to approve Ohio's maintenance plan. Final 
approval of this plan, which is part of today's action, completes the 
satisfaction of this criterion. The fifth criterion is that the State 
be found to have met applicable requirements of section 110 and Part D 
of the Clean Air Act. Based on various rulemakings, starting with 
rulemaking of April 15, 1974 (39 FR 13539) up to and including EPA's 
rulemaking of June 12, 1996 (61 FR 29662), EPA finds that the State met 
these requirements. In summary, EPA proposed to find that Ohio had met 
all five criteria for redesignation for PM 10 in Cuyahoga 
and Jefferson Counties, and so EPA proposed to redesignate these 
counties to attainment.

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

    EPA received comments from one commenter, the Earthjustice Legal 
Defense Fund, representing the Ohio Chapter of the Sierra Club. These 
comments are organized according to the five criteria for redesignation 
listed above. The following comment summaries and EPA responses are 
organized accordingly.

1. Attainment

    Comment: The commenter cites EPA's Air Information Retrieval System 
(AIRS) database as showing that one of the monitoring sites, at East 
14th Street and Orange Avenue in Cleveland, ``had 6 expected 
exceedances of the 24 hour PM 10 standard in 1999. Moreover, 
AIRS data shows that the same monitor has recorded 6 expected 
exceedances so far in the year 2000.'' The commenter states that the 
total of 12 expected exceedances at this site means that the area has 
not attained the standard.
    The commenter further states that ``EPA seeks to discount the 6 
expected exceedances in 1999 at [the above site] by citing data from 
other monitors that did not exceed the standard that year.'' The 
commenter states that disregarding violations based on data at other 
sites is not authorized in Appendix K, and EPA may not use guidance 
documents to amend Appendix K to grant itself this authority.
    Response: The commenter summarizes air quality at the East 14th 
Street site by reporting a statistic from a summary of air quality data 
that EPA provides on the internet. By its nature, this summary 
statistic is derived by an oversimplified approach, and thus 
inaccurately reflects what the data show. This statistic in this 
context is derived by automated, default procedures that cannot make 
the case-by-case judgments involved in assessing attainment status for 
regulatory purposes. For example, the statistic that the commenter 
cites does not reflect judgments that must be made by EPA, such as 
whether to exempt the site from expected exceedance adjustments 
pursuant to Appendix K section 3.1(f) and 40 CFR 58.13. A more 
appropriate evaluation of the 1999 data at this site is presented in 
the notice of proposed rulemaking. This evaluation indicates that only 
approximately one exceedance is expected at that location. A similar 
evaluation of the 2000 data at this site, as described further below, 
also indicates approximately one exceedance is expected. Based on these 
data, EPA is determining that the 3-year average number of expected 
exceedances at this site is less than the 1.0 level, and thus the site 
is in attainment consistent with section 2.1 of Appendix K.
    It is also apparent that the commenter may have misunderstood the 
discussion in the proposal relating to the

[[Page 77310]]

historically worst-case site that adjoins the East 14th Street site. 
Contrary to the assertion in the comment, EPA is not using data from 
other monitors to discount a violation at the East 14th Street site. 
Instead, EPA is assessing whether a violation in fact occurred at the 
East 14th Street site.
    The East 14th Street site has two instruments--a high volume 
sampler, taking samples once every six days, and an instrument that 
takes continuous concentration readings. The high volume sampler 
recorded an exceedance of the 24-hour PM10 standard at this 
site in 1999 (as well as an exceedance in 2000). EPA's evaluation of 
these high volume sampler data appropriately considers data from the 
collocated continuous instrument as well as data from another nearby 
location. Specifically, EPA is using the additional data to evaluate 
the likelihood of exceedances on the other five out of six days on 
which the high volume sampler did not take measurements.
    One element of EPA's evaluation is based on Appendix K section 
3.1(f), for which EPA must consider whether everyday sampling has been 
conducted in accordance with 40 CFR 58.13. In 40 CFR 58.13, as it 
applies to sampling for this PM10 standard, EPA calls for 
everyday sampling at the area of maximum concentration. Accordingly, 
the notice of proposed rulemaking describes an assessment in which the 
application of Appendix K section 3.1(f) to the East 14th Street site 
is contingent on daily sampling at a nearby, maximum concentration 
site. As discussed in the notice of proposed rulemaking, application of 
Appendix K section 3.1(f) contingent on daily sampling at the East 14th 
Street site yields the same result. Both methods lead to treating the 
measured exceedance as one expected exceedance, which leads to a 
finding that the standard is being attained.
    When EPA promulgated Appendix K, it was concerned, in part, about 
how to appropriately interpret data from monitors taking measurements 
one day out of six days when they measure just one exceedance. EPA 
recognized that the occasional measurement of one exceedance by such 
monitors often does not signify that five other exceedances would be 
expected to occur on the unmonitored days. Therefore, section 3.1(f) of 
Appendix K provides that an adjustment, that entails treating one 
exceedance as reflecting six (or more) expected exceedances (which is 
otherwise required to account for missing or incomplete data), need not 
be done if complete daily, representative sampling is performed and 
related conditions are met. If complete daily, representative sampling 
then shows few or no exceedances, this would validate the view that the 
exceedance measured during one-in-six-day sampling is better 
interpreted as reflecting one rather than six (or more) expected 
exceedances. (Conversely, if daily sampling indicates frequent 
exceedances, EPA would have a more solid basis for concluding that the 
site is not attaining.)
    The monitoring at the East 14th Street site poses unique 
circumstances not directly addressed in Appendix K. Appendix K does not 
specify how to interpret data from two instruments which measure air 
quality at the same location. EPA has issued guidance explaining how to 
assess expected exceedances for both instruments in such cases. 
However, neither Appendix K nor EPA's guidance specifies how to conduct 
this assessment in cases where the sampling frequencies of the two 
instruments differ.
    The history of Appendix K helps clarify why it does not directly 
address the situation found at the East 14th Street site. Appendix K 
was promulgated in 1987, at a time when reliable continuous instruments 
for measuring particulate matter concentrations were not available. 
Since high volume sampling and filter collection and analysis on a 
daily basis is resource intensive, EPA encouraged States to conduct 
sampling once every six days at numerous sites, with only a small 
number of critical sites sampling on a daily basis. When it encouraged 
this approach, EPA did not intend that any sampler measuring once every 
six days that happened to record an exceedance would automatically be 
treated as showing nonattainment, which is the approach reflected in 
the commenter's interpretation of the air quality data summary posted 
on the internet. EPA intended instead that such sampling sites be 
identified as critical sites warranting the dedication of resources 
necessary to conduct daily sampling, in order to determine whether the 
exceedance recurs with a frequency of more than once per year.
    In promulgating Appendix K, EPA did not anticipate the possibility 
that States might simultaneously operate one sampler on a once in six 
days basis and operate a second sampler at the same site on a daily 
basis. Even today, sites with instruments measuring air quality once 
every six days almost never have a collocated instrument simultaneously 
taking daily or continuous measurements. Therefore, the one-in-six-day 
data are ordinarily the only basis on which to estimate the likelihood 
that exceedances would have been observed on the other five days. In 
such cases, if the site does not meet the criteria in section 3.1(f) of 
Appendix K that qualifies it to be exempt from expected exceedance 
adjustment, then EPA would view the five unmonitored days as days with 
missing data. Under Appendix K, for such cases, EPA takes a protective 
approach by assuming that the likelihood of exceedances for those five 
out of six days equals the likelihood of exceedances for the one in six 
days with actual observations. (See section 3.1(a).)
    In the case of the East 14th Street site, the continuous instrument 
provides extensive data with potential to help EPA evaluate the 
likelihood that the high volume sampler would have recorded exceedances 
on the five out of six days it was not sampling. EPA therefore examined 
whether the continuous instrument data would reliably indicate whether 
the high volume sampler would have recorded an exceedance.
    EPA compared 24-hour averages from the two instruments for days in 
1998 to 2000 when both instruments had valid data. Then EPA developed 
what is known as a ``best fit'' equation, which attempts to describe, 
as accurately as possible, the relationship between same-day readings 
of the two instruments. On average, the high volume sampler reading 
equaled 1.05 times the continuous instrument reading plus 0.2 
micrograms per cubic meter (g/m3), with a variance 
(r2) of 0.78. In no case did the high volume sampler record 
any value more than 27 g/m3 higher than the 
continuous instrument. Thus, from a sampling perspective, readings from 
the two instruments would be considered quite similar.
    Consequently, EPA concluded that data from the continuous 
instrument is reliable for use in assessing expected exceedances for 
the high volume sampler. Specifically, given the excellent agreement 
between the measurements produced by the two instruments, EPA believes 
the days with continuous instrument measurements but no high volume 
sampler measurements should be treated as days with valid data 
indicating high volume sampler concentrations. That is, consistent with 
the provisions of Appendix K, the best assessment of expected 
exceedances under these circumstances would be to consider all days 
with data from either instrument as days with valid data, and to treat 
as days with missing data only those days in which neither the high 
volume sampler nor the continuous instrument was operating. For 
purposes of this assessment, a day with only continuous

[[Page 77311]]

instrument data is considered by EPA as having a value below the 
standard only if the maximum difference in instrument readings added to 
the continuous instrument value indicates a high volume sampler value 
below the level of the standard.
    EPA described its assessment of the 1999 data in its notice of 
proposed rulemaking. Briefly, the high volume sampler recorded an 
exceedance during the first quarter. This first quarter included 14 
days with high volume sampler values and 74 additional days with only 
continuous instrument values. Two days had no value from either 
instrument and, under Appendix K, should be considered days with 
missing data. The 14 days with high volume sampler values included one 
day with a measured exceedance and 13 days with values below the 
standard. For the 74 additional days with only continuous instrument 
values, the highest such value was 75 g/m3. This 
continuous instrument value leads to a best estimated peak value for 
the high volume sampler of 79 g/m3 (using the best 
fit equation), and leads to a worst case peak estimate of 102 
g/m3 (applying the maximum difference in instrument 
values). Based on the explanation above, the data from all of these 74 
days will be treated by EPA as valid data. In total, then, for the high 
volume sampler in the first quarter of 1999, one day had an exceedance, 
87 days have concentrations that are well below the standard of 150 
g/m3, and two days are lacking data. According to 
Appendix K, the proposed rulemaking therefore calculated an estimate of 
expected exceedances to be 1 + 
(2 * 1/88) or 1.02. Since no exceedances were measured at the site in 
any other quarter of 1999 or in 1998 or 1997, the total expected 
exceedances for 1999 is 1.02, and the three-year average of expected 
exceedances is 0.3.
    A second unique feature of the situation at the East 14th Street 
site is the occurrence of a second exceedance measured by the 
instrument sampling once in six days. In ordinary circumstances, i.e., 
in the absence of collocated daily sampling data, EPA assumes that the 
first measured exceedance often reflects only about one expected 
exceedance, but EPA would generally assume that a second exceedance 
measured by a one-in-six day sampler represents multiple expected 
exceedances. However, EPA does not need to rely on such assumptions at 
the East 14th Street site, since in this case EPA has a wealth of 
actual data with which to assess the likelihood of exceedances at the 
site.
    EPA therefore estimated expected exceedances for 2000 according to 
the same method it used to evaluate the 1999 data. An exceedance was 
observed by the high volume sampler in the first quarter of 2000. The 
high volume sampler provided values for 15 of the 91 days. The 
continuous sampler provided valid data for an additional 73 days. The 
highest 24-hour average for these 73 days was 84 g/
m3, suggesting a best estimated peak high volume sampler 
value of 88 g/m3 and a worst case estimated high 
volume sampler value of 111 g/m3. Three days have 
missing values. These data indicate that only 1 out of 88 days with 
valid data had an exceedance. Consequently, expected exceedances for 
the quarter are estimated at 1 + (3 * \1/88\) or 1.03. The second 
quarter had no observed exceedances. Thus, the available data for 2000 
at this site indicate 1.03 expected exceedances.
    Appendix K does not provide for us to include a half year's worth 
of data results in calculating the three year average of expected 
exceedances. Thus, consideration of data for the first half of 2000 by 
necessity involves projecting likely air quality in the second half of 
2000. EPA examined data at the East 14th Street site to judge the most 
plausible such projection. In the past, the East 14th Street site has 
not been prone to observe exceedances in the second half of the year. 
In the 7\1/2\ year history at this site, all three days with recorded 
exceedances have been in March. Therefore, EPA has good reason to 
anticipate that no further exceedances will be measured at this site in 
2000. Assuming no further exceedances for the remainder of 2000 is 
equivalent to using data from a previous July to December period, for 
example constructing an assessment for 1998 to 2000 by using data from 
the second half of 1997 as a surrogate for projected data for the 
second half of 2000. This suggests a total of 1.03 expected exceedances 
for 2000. This result, in combination with the 1.02 expected 
exceedances for 1999 and zero expected exceedances for 1998, indicates 
a 3-year average of 0.7 expected exceedances.
    The above presents EPA's evaluation of the frequency with which the 
high volume sampler at the East 14th Street site would have recorded 
exceedances had it been operating every day. One may do a similar 
evaluation for the continuous instrument at this site. This continuous 
instrument recorded no exceedances from the day it began operating in 
April 1998 to the present. This instrument was not operating on March 
31, 1999, when the high volume sampler recorded an exceedance, but the 
high volume sampler data for that date suggest treating that day as a 
day the continuous instrument would be expected to have had an 
exceedance. Considering missing data according to Appendix K, this 
suggests 1.02 expected exceedances for the first quarter of 1999. While 
data are not available for a proper 3-year average of expected 
exceedances, the data that are available clearly suggest an average of 
less than 1.0 expected exceedances for this instrument. Thus, both 
instruments at the East 14th Street site indicate that this site is 
attaining the standard.
    The commenter provided no rationale for using the computer-
generated statistic he cited rather than applying the judgments and 
procedures described in the notice of proposed rulemaking, even though 
the two methods clearly give different results. For reasons given here 
and in the notice of proposed rulemaking, EPA believes that the 
evaluation described here is more consistent with applicable PM 
10 regulations and reflects more reasoned judgments about 
the air quality at the site in question. EPA is determining on the 
basis of this evaluation that this site, like the remainder of Cuyahoga 
County, is attaining the standard.

2. Fully Approved SIP

    Comment: The second prerequisite for redesignation to attainment is 
that EPA has fully approved the applicable SIP for the area. The 
commenter states that this prerequisite has not been met because EPA 
has not fully approved either the state's new source review (NSR) 
programs or the motor vehicle emission budget for these areas. With 
respect to NSR, the commenter states that this program is ``not an 
optional program that the state and EPA can simply waive based on 
claims that it is not `needed' for attainment.'' With respect to 
conformity, the commenter cites Section 176(c) of the Clean Air Act and 
states that the absence of a motor vehicle emissions budget and 
conformity procedures means that EPA has not met all SIP requirements 
applicable to the area.
    Response: EPA continues to believe that it has fully approved the 
applicable SIP for Cuyahoga and Jefferson Counties. For the 
requirements added in the Clean Air Act Amendments of 1990, in Subpart 
4 of Part D of the Clean Air Act, EPA approved Ohio's attainment 
demonstration and other related plan elements on June 12, 1996, at 61 
FR 29662. EPA has published several earlier rulemakings approving 
Ohio's SIP as meeting the various requirements enacted earlier.

[[Page 77312]]

    With respect to NSR, EPA believes that Cuyahoga and Jefferson 
Counties 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 Cincinnati-Hamilton redesignation (65 FR 37879, June 19, 2000) and 
Grand Rapids, Michigan redesignation (61 FR 31834-31837, June 21, 
1996). This policy has also been applied in ozone 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 Cuyahoga and 
Jefferson Counties 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 Cuyahoga and Jefferson 
Counties.
    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. When an area is redesignated to 
attainment, a new source must satisfy prevention of significant 
deterioration (PSD) requirements rather than nonattainment new source 
review. PSD requires that new sources demonstrate that their 
construction will not increase ambient concentrations significantly and 
will not result in concentrations above the air quality standard. This 
may be compared to requirements under nonattainment area new source 
review for new sources to secure emission reductions to offset their 
new emissions. EPA believes that there would be trivial if any 
environmental value of applying nonattainment new source requirements 
in Cuyahoga and Jefferson Counties rather than PSD requirements.
    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 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

[[Page 77313]]

a 40 CFR 51.165(b) program would apply.
    With respect to conformity, the requirements cited by the commenter 
do not apply to PM10 in these areas. As stated in EPA's 
conformity regulations, at 40 CFR 93.102(b), the conformity 
requirements apply in ``nonattainment and maintenance areas for 
transportation-related criteria pollutants'' [emphasis added}. Within 
that section of the conformity regulations, 40 CFR 93.102(b)(2)(iii) 
specifies that conformity requirements apply ``in PM10 areas 
[only] if the EPA Regional Administrator or the director of the State 
air agency has made a finding that transportation-related precursor 
emissions within the nonattainment area are a significant contributor 
to the PM10 nonattainment problem and has so notified the 
MPO and DOT, or if the applicable implementation plan (or 
implementation plan submission established a budget for such emissions 
as part of the reasonable further progress, attainment or maintenance 
strategy.''
    Transportation-related emissions do not contribute significantly to 
PM10 concentrations in Cuyahoga and Jefferson Counties. 
Stationary sources are the predominant contributors to high 
concentrations in these areas. The attainment demonstration that EPA 
approved for these areas on June 12, 1996, at 61 FR 29662, documents 
this finding, and documents that mobile sources contribute only a few 
micrograms per cubic meter to airborne concentrations, i.e. only a few 
percent of the air quality standards. EPA and the Ohio Environmental 
Protection Agency agreed during the 1994 conformity consultation 
process that transportation sources are insignificant contributors to 
the nonattainment problem in Cuyahoga County and the Steubenville area. 
As appropriate, the SIP does not establish a budget for these 
emissions. EPA approved conformity rules for Ohio on May 16, 1996 (61 
FR 24702) and May 30, 2000 (65 FR 34395). In accordance with applicable 
EPA regulations, conformity requirements under the state's rules do not 
apply to PM10 in Cuyahoga or Jefferson Counties. Rules 
establishing such requirements and approval of an emissions budget are 
not prerequisites for full SIP approval or redesignation.
    Furthermore, EPA believes it is reasonable to interpret the 
conformity requirements as not applying for purposes of evaluating a 
redesignation request under section 107(d). The rationale for this 
interpretation has been set forth in a number of notices redesignating 
areas to attainment for ozone. See, for example, the Cincinnati-
Hamilton redesignation at 65 FR 37879 (June 19, 2000), the Grand Rapids 
redesignation at 61 FR 31835-31836 (June 21, 1996), and the Cleveland-
Akron-Lorain redesignation at 61 FR 20458 (May 7, 1996).

3. Permanent and Enforceable Reductions

    Comment: The commenter believes that Section 107(d)(3)(E)(iii) 
requires that EPA or the State conduct modeling to demonstrate that air 
quality improvements are attributable to permanent and enforceable 
emission reductions rather than weather patterns, reduction in 
production, or other factors.
    Response: When Ohio developed its attainment plan, it began by 
modeling existing emissions, to identify where existing air quality was 
problematic. This modeling identified problems consistent with the 
nonattainment problems identified at that time by monitoring. Ohio then 
conducted numerous model runs to assess alternative control strategies. 
The final modeling analysis demonstrated that the permanent and 
enforceable emission reductions which were added as requirements in the 
attainment plan regulations were sufficient to bring PM10 
concentrations down to attainment levels. Since this modeling reflected 
emissions at allowable levels assuming full capacity plant operations, 
attainment is not dependent on reduced production or other transient 
factors. While EPA does not concede that modeling must be done to 
demonstrate that air quality improvements are due to permanent and 
enforceable reductions, in this case the type of modeling requested by 
the commenter was in fact done. This modeling demonstrated that the air 
quality improvement is due to permanent and enforceable reductions.

4. Maintenance

    Due to the length and variety of comments on Ohio's maintenance 
plan, these comments are addressed in three parts.
    Comment: The commenter states that Ohio has failed to submit a SIP 
revision that provides for maintenance. The commenter observes that 
Ohio ``has merely submitted a letter asserting that the standard will 
be maintained. There is no SIP revision comprising the maintenance 
plan, and no commitment to implement or continue control strategies 
necessary for maintenance.'' The commenter further believes that 
``neither the state nor EPA has demonstrated that the standard will in 
fact be maintained for [the necessary] ten years''.
    The commenter acknowledges that ``EPA presumes'' that declining 
population, cleaner new vehicles, and recent regulations on coke oven 
emissions will maintain the standards by keeping emissions at or below 
levels found in the SIP to assure attainment. However, the commenter 
states that Cuyahoga County ``violated the [air quality standards] in 
1995, again in 1999, and again in 2000,'' demonstrating that ``holding 
emissions to those assumed in the attainment plan most certainly does 
not assure attainment.'' The commenter believes that the above 
``indicators'' have not been shown to be good indicators of regional 
emissions, and observes that ``other factors--e.g., increased 
production, construction of new pollution sources, increased per capita 
vehicle ownership--[may] cause emissions to rise.'' The commenter cites 
EPA rules as requiring modeling to demonstrate maintenance, ``rather 
than the intuitive approach proposed here,'' and states that without 
``such a modeling demonstration, [EPA] cannot approve maintenance 
demonstrations for these areas.''
    Response: A maintenance plan must provide sufficient assurances 
that attainment of the air quality standard will continue for at least 
10 years after the area is redesignated to attainment. A maintenance 
plan is not required to add to the set of enforceable emission 
limitations in the SIP. If the State can show that the air quality 
standard will be maintained without any additional measures beyond 
those that are already part of the SIP, then the maintenance plan need 
not add any additional measures. Also, if the maintenance plan relies 
in part on a previously submitted attainment demonstration, then the 
State need not resubmit that attainment demonstration.
    Ohio's maintenance plan is in fact based on its previously 
submitted attainment demonstration, which EPA approved on June 12, 
1996, at 61 FR 29662. This analysis assesses the sum of the impacts of 
significant industrial sources at their maximum allowable emissions 
plus other, background sources at actual emission levels. Ohio 
demonstrated that the sum of these impacts is concentrations below the 
standard.
    Emissions from the significant sources will be maintained at or 
below maximum allowable levels. Therefore, Ohio can demonstrate 
maintenance simply by demonstrating that background impacts will remain 
at or below current levels.

[[Page 77314]]

    Maintenance planning for PM10 differs from maintenance 
planning for ozone in this respect. Attainment plans for 
PM10 for areas like Cuyahoga and Jefferson Counties must 
demonstrate that attainment will occur even if sources emit their 
maximum allowable amount. As a result, attainment and maintenance do 
not depend on maintaining preexisting levels of production by 
facilities in the area. Since the modeled industrial sources in the 
area are the principal contributors to high PM10 levels in 
these counties, the maintenance plan will consist principally of the 
limits on these industrial sources provided in the attainment plan. The 
only remaining question pertains to future background concentrations. 
If the State can demonstrate that background concentrations will 
decline over the next ten years, then the maintenance demonstration 
will consist of that demonstration in conjunction with the previously 
approved attainment demonstration, and the maintenance plan's control 
measures will consist of the control measures in the attainment plan.
    Ozone maintenance plans are different because ozone attainment 
plans address actual production levels. This means first that ozone 
maintenance plans must project any increases or decreases in future 
production. Such projections must consider all significant source 
types, and cannot be restricted to addressing background contributors. 
Thus, maintenance plans for PM10 for areas like Cuyahoga and 
Jefferson County are considerably less complicated and have much less 
potential to require additional controls than maintenance plans for 
ozone.
    The commenter expressed concern that the ``indicators'' that Ohio 
cites are not indicative of regional PM10 emissions. In 
fact, Ohio should not be seeking to indicate trends in regional 
emissions. Ohio is properly relying on existing SIP limits to address 
the most significant regional emissions, and focusing its additional 
trend analyses on sources affecting ``background'' concentrations. Ohio 
need not address increased production at important industrial 
facilities, because all increases up to maximum production are already 
accommodated in the attainment/maintenance demonstration. Ohio need not 
address construction of new pollution sources, because PSD regulations 
require any significant new source to demonstrate that its emissions 
will not cause violations of the standards. Ohio needs to address 
increased vehicle ownership, but only as part of an assessment of 
trends in background concentrations.
    Despite the relative insignificance of motor vehicle emissions, EPA 
has examined detailed assessments pertinent to motor vehicle emissions 
in Cuyahoga County. Ohio submitted extensive detail on current and 
projected traffic volumes in the Cleveland area as part of its 
maintenance plan for this area for ozone. Between 1996 and 2010, 
traffic volumes are projected to increase by less than one percent per 
year. Most of this growth is occurring in the outer counties of the 
area; Cuyahoga County traffic is projected to grow by less than \1/3\ 
percent per year. Meanwhile, emissions per vehicle are declining as a 
result of previous regulations plus the tighter fuel and emission 
standards of the Tier 2 rules discussed below. Between now and 2010, 
emissions per vehicle are expected to decline an average of 2.5 percent 
per year, not including the significant emission reductions that will 
result from the Tier 2 rules. The net projected effect is a significant 
decline in motor vehicle emissions in Cuyahoga County over the next ten 
years. Similar information indicates a less than one percent traffic 
growth rate in the Steubenville area as well, so this area too will 
likely witness declining motor vehicle emissions.
    EPA believes that Ohio has addressed important elements of the 
background concentrations. EPA believes that the net reduction in motor 
vehicle emissions plus the reduction in other emissions associated with 
population will yield a net decline in background concentrations. 
According to the attainment demonstration that EPA has approved, these 
background concentrations in combination with maximum allowable impacts 
from significant sources add up to concentrations below the standard. 
Consequently, EPA believes that Ohio's maintenance plan provides for 
maintenance of the PM10 standards.
    Ohio does not explicitly address whether maintenance is assured for 
10 years. However, Ohio's approved attainment demonstration shows that 
the standard will be maintained, principally due to permanent emission 
limits on significant sources, so long as background emissions remain 
at or below current levels. Ohio provided evidence that background 
emissions will remain at or below current levels throughout the next 10 
years. Consequently, EPA is satisfied that Ohio has assured maintenance 
for the requisite 10 years.
    Comment: The commenter cites results of an EPA analysis conducted 
in conjunction with adoption of Tier 2 motor vehicle emission 
standards, discussed in the Federal Register of February 10, 2000 (65 
FR 6698 and 6719). The commenter states that ``EPA identified Cuyahoga 
County as an area with a 'significant risk of failing to attain and 
maintain the PM10 [air quality standards] without further reductions in 
emissions.''' The commenter acknowledges future reductions from the 
Tier 2 standards but states that ``EPA has not shown that these 
reductions will be sufficient or will occur soon enough to prevent 
NAAQS violations'' throughout the next 10 years.
    Response: In preparation for adopting its Tier 2 motor vehicle 
emission standards, EPA attempted a national analysis of prospective 
attainment with and without these standards. EPA identified eight areas 
as areas of ``high risk of failing to attain or maintain the 
PM10 NAAQS''. These areas had monitored violations in 1996 
to 1998 and were projected to have continued violations in 2030 without 
the Tier 2 standards. These areas were all in California or neighboring 
States. EPA then identified five additional counties, including 
Cuyahoga County, as having a risk of future violations of the 
PM10 NAAQS. These counties were defined as attaining the 
NAAQS based on 1996 to 1998 data but projected to violate the standards 
in 2030 in the absence of Tier 2 regulations. The rulemaking cited by 
the commenter states, ``There is a substantial risk that at least some 
of [these latter five counties] would fail to maintain without further 
emission reductions. The emission reductions from the Tier 2/Gasoline 
Sulfur program will help to keep them in 40 attainment.'' EPA in fact 
adopted the Tier 2 regulations, so projections of possible future 
nonattainment without these regulations are irrelevant. Contrary to the 
commenter's statements, EPA's analysis for the relevant scenario (with 
Tier 2 standards) shows continued maintenance. In addition, a 
projection that vehicle emissions without Tier 2 standards could reach 
levels sufficient to help cause violations by 2030 does not necessarily 
mean that violations would occur by 2010, the timeframe that is germane 
here. In any case, the Tier 2 rulemaking notes that ``[a]fter reviewing 
public comments on our presentation of these modeling results, [EPA] 
concluded that [its analysis is] suitable for estimating PM 
concentration reductions for economic benefits estimation, [but] it is 
not a tool we can use with high confidence for predicting that 
individual areas that are now in

[[Page 77315]]

attainment will become nonattainment in the future.'' Thus the most 
relevant analysis is Ohio's attainment modeling and maintenance plan 
information, which considers local data on the significance of motor 
vehicle emissions and on the population (and thus the number of 
drivers). This information, like the Tier 2 analysis, supports EPA's 
conclusion that Cuyahoga County will maintain the PM10 NAAQS 
over the next ten years.
    Comment: The commenter objects that what EPA calls a maintenance 
plan ``lacks enforcement programs and commitments of resources'' as 
well as ``legal authority.'' In addition, the commenter states that 
PM10 motor vehicle emissions budget is ``required not only 
for purposes of the attainment plan, but also for a maintenance plan as 
well.'' Finally, the commenter states that ``the state lacks adequate 
contingency plans for maintenance'' pursuant to Section 175A(d). The 
commenter acknowledges that Ohio has contingency measures ``designed to 
produce limited annual progress toward attainment in the event of a 
shortfall,'' but the commenter believes that these measures fail to 
meet a different requirement applicable to maintenance plans ``to 
assure that the State will promptly correct any violation of the 
standard.''
    Response: The requirements under Section 110(a)(2)(E) that the 
commenter cites were addressed in general by Ohio in its initial SIP, 
submitted on January 31, 1972, and ultimately approved on April 15, 
1974 (39 FR 13539). EPA's conclusion in that rulemaking remains valid, 
that Ohio's enforcement program, commitment of resources, and legal 
authority are adequate and assure that measures in the SIP (including 
maintenance plan measures) will be implemented. See Calcagni Memorandum 
cited above and Southwestern Pennsylvania Growth Alliance v. Browner, 
144 F.3d 984 (6th Cir. 1998). See also discussion in Cincinnati-
Hamilton redesignation notice at 65 FR 37882. If EPA were to find that 
SIP measures were not being implemented, for lack of the above or for 
any other reason, the process leading to sanctions under Section 
179(a)(4) would commence.
    A response above clarifies that motor vehicle emission budgets are 
not required for PM10 in areas where motor vehicles do not 
contribute significantly to PM10 nonattainment. Thus, 
neither the attainment plans nor the maintenance plans for Cuyahoga and 
Jefferson Counties need to have a motor vehicle emissions budget.
    The commenter acknowledges that the Ohio SIP includes contingency 
measures. These measures, approved on May 6, 1996 (61 FR 20142), are 
triggered on the basis of air quality monitoring data irrespective of 
attainment status. That is, these measures are valid maintenance plan 
contingency measures because they take effect if violations recur for 
any reason after redesignation of the areas to attainment. The question 
of interest here, then, is whether these contingency measures are 
adequate to satisfy Section 175A(d).
    The commenter's quote from Section 175A(d) omits a key qualifier 
that invokes EPA's judgment in assessing contingency measure adequacy 
for maintenance plan purposes. The full sentence in Section 175A(d) 
reads: ``Each plan revision submitted under this section shall contain 
such contingency provisions as the Administrator deems necessary 
[emphasis added] 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.'' Section 175A(d) does not dictate that the 
maintenance plan contingency measures be sufficient by themselves to 
correct any violation of the standard. Instead, these measures need 
only be sufficient in EPA's judgment to help assure that the State will 
promptly correct any future violation.
    A variety of sources emit PM10, so nonattainment can 
occur for a variety of reasons. EPA cannot reasonably expect 
maintenance plan contingency measures by themselves to address all 
possible future violations. Instead, EPA must judge the contingency 
measures in the context of the types of future violations that it views 
as most likely and in the context of other factors which help assure 
that the State will correct any future violations.
    Additional factors that help assure prompt correction of any future 
PM10 violation in Cuyahoga County or the Steubenville area 
include provisions in Ohio's regulations that allow the State to impose 
additional source controls if violations occur and provisions in the 
Clean Air Act Section 110(h) (provisions for SIP Calls). EPA is 
satisfied that the contingency measures that are included in Ohio's 
maintenance plan for Cuyahoga and Jefferson Counties, in combination 
with other factors, assure that Ohio will promptly correct any future 
violations in these areas.

III. What Actions Is EPA Taking, and Why?

    EPA is redesignating Cuyahoga and Jefferson Counties in Ohio to 
attainment for PM10 and is approving Ohio's PM10 
maintenance plan for these counties. The redesignation action reflects 
EPA's judgment of Ohio's request, focusing on the five criteria given 
in Clean Air Act Section 107(d)(3)(E) for redesignations from 
nonattainment to attainment.
    The first criterion is that the areas are in fact attaining the 
standards. The standards in question are the PM10 standards 
given in 40 CFR 50.6, promulgated in 1987. Although EPA promulgated new 
standards for PM10 into 40 CFR 50.7, these new standards 
have been vacated by the District of Columbia Circuit Court of Appeals, 
no designations have been promulgated for these new standards, and this 
rule addresses only the older standards.
    No concentrations exceeding the applicable standards have been 
recorded in Jefferson County or in most of Cuyahoga County. Exceedances 
occurred at two sites in Cleveland. One site was found to have 2 
exceedances of the 24-hour standard over 3 years, which was found to 
translate to 0.7 expected exceedances per year. EPA proposed this 
finding, no commenter challenged this finding, and EPA now concludes 
that the standard is being attained at this site. A second site 
observed 1 exceedance of the 24-hour standard in 1997 to 1999, which 
was found to translate to 0.3 expected exceedances per year. A 
commenter challenged this view, noting that EPA's AIRS database 
indicates 6 expected exceedances in 1999 as well as 6 expected 
exceedances in 2000. As discussed above in response to comments, EPA 
finds that the more sophisticated methods of data interpretation 
described in the proposed rulemaking give a better assessment of 
expected exceedances at this site. These methods indicate that the site 
had approximately one expected exceedance for 1999. A similar 
assessment of the data so far in 2000 also indicate approximately one 
expected exceedance. While it is problematic to average in data for 
only half of 2000, these data support a conclusion that expected 
exceedances averaged over 3 years is less than 1.0. Consequently, EPA 
finds that these two sites, as well as the rest of Cuyahoga County, are 
attaining the applicable PM10 standards.
    As noted in the proposed rulemaking, Jefferson County is part of a 
two-state area that also includes a portion of Brooke County, West 
Virginia. Satisfaction of the attainment criterion requires that air 
quality throughout this two-state Steubenville area be attaining the 
standards. The West Virginia portion of this area has one monitor, 
which has shown no recent

[[Page 77316]]

exceedances. Thus, this criterion is met because the entire 
Steubenville area is attaining the standards.
    The second criterion is that EPA has fully approved the applicable 
implementation plan for the areas. The most recent approval, including 
approval of Ohio's attainment demonstrations, was published on June 12, 
1996, at 61 FR 29662. Other applicable plan elements were approved on 
prior occasions. EPA does not require full approval of new source 
review rules or conformity as a prerequisite for redesignation, and, 
moreover, the conformity regulations do not apply to these areas for 
PM10. While approval of the SIP for the West Virginia 
portion of the Steubenville area was published separately, both SIPs 
have been approved on the basis of the same, jointly developed 
attainment strategy.
    The third criterion is that the air quality improvement be due to 
permanent and enforceable reductions. EPA finds that air quality has 
significantly improved as a result of emission reductions that limits 
in the SIP make permanent and enforceable.
    The fourth criterion is that EPA has fully approved a maintenance 
plan. This rule approves Ohio's maintenance plan for Cuyahoga and 
Jefferson Counties. Ohio held a public hearing on its maintenance plan 
and otherwise satisfied the procedural requirements for adopting and 
submitting this plan. The most important part of this plan is the 
continuation of SIP emission limits on major industrial sources which 
have been shown by modeling to assure attainment even if the sources 
operate at maximum capacity. Additional factors will assure that the 
remaining, background concentrations will remain at attainment levels, 
including ongoing plus forthcoming mobile source control requirements 
as well as population declines in the two areas. Although a commenter 
expressed numerous concerns about Ohio's maintenance plans, the review 
of those concerns discussed in the previous section lead EPA to 
conclude that the maintenance plans fully meet applicable requirements. 
With today's approval of Ohio's maintenance plans, the fourth criterion 
for redesignation of the two counties is satisfied.
    The fifth criterion for redesignation is that the State has met all 
requirements under Section 110 and Part D of the Clean Air Act that 
apply to the areas. This criterion is similar to the second criterion, 
and EPA finds that Ohio has met all relevant requirements.
    For the Steubenville area, EPA is taking action today 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. EPA has received no redesignation 
request for the West Virginia portion of the Steubenville area. EPA 
anticipates receiving and rulemaking on such a request in the near 
future. If in the future 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.

IV. 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 that may have disproportionate effects on children.

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. 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

[[Page 77317]]

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. 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, 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 
requlatory 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 January 10, 2001.

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. 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 February 9, 2001. 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).)
    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.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Particulate 
matter, Reporting and recordkeeping requirements.

[[Page 77318]]

40 CFR Part 81

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

    Dated: November 29, 2000.
Elissa Speizman,
Acting Regional Administrator, Region 5.

    Chapter I, 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 KK--Ohio

    2. Section 52.1880 is amended by removing and reserving paragraph 
(d) and adding paragraph (j) to read as follows:


Sec. 52.1880  Control strategy: Particulate matter.

    (j) Approval--EPA is approving the PM10 maintenance plan for 
Cuyahoga and Jefferson Counties that Ohio submitted on May 22, 2000, 
and July 13, 2000.

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 table ``Ohio--PM-10'' 
to read as follows:


Sec. 81.336  Ohio.

* * * * *

                                                   Ohio--PM-10
----------------------------------------------------------------------------------------------------------------
                                                           Designation                       Classification
             Designated Area             -----------------------------------------------------------------------
                                              Date                   Type                   Date         Type
----------------------------------------------------------------------------------------------------------------
Cuyahoga County.........................      1/10/01  Attainment.....................
Jefferson County
    The area bounded by Market Street         1/10/01  Attainment.....................
     (State Route 43) from the West
     Virginia/Ohio border west to Sunset
     Blvd. (U.S. Route 22), Sunset Blvd.
     west to the Steubenville Township/
     Cross Creek Township boundary, the
     Township boundary south to the
     Steubenville Corporation limit, the
     corporation boundary east to State
     Route 7, State Route 7 South to the
     Steubenville Township/Wells
     Township boundary, the Township
     boundary Unclassifiable east to the
     West Virginia/Ohio border, and
     North on the border to Market
     Street
Rest of State...........................     11/15/90  Unclassifiable.................
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 00-31329 Filed 12-8-00; 8:45 am]
BILLING CODE 6560-50-U