[Federal Register Volume 67, Number 48 (Tuesday, March 12, 2002)]
[Rules and Regulations]
[Pages 11041-11043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5865]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 81

[OH132-4; FRL-7155-2]


Designation of Areas for Air Quality Planning Purposes; Ohio; 
Technical Amendment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; technical amendment.

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SUMMARY: The Cincinnati-Hamilton moderate ozone nonattainment area 
(Cincinnati-Hamilton area) was redesignated to attainment on June 19, 
2000. The Cincinnati-Hamilton area includes the Ohio Counties of 
Hamilton, Butler, Clermont, and Warren and the Kentucky Counties of 
Boone, Campbell, and Kenton. On September 11, 2001, the United States 
Court of Appeals for the 6th Circuit (Court) vacated EPA's 
redesignation of the Cincinnati-Hamilton area, after concluding that 
EPA erred in one respect that pertained solely to the Ohio portion of 
the area. Therefore, pursuant to the Court's decision, EPA is making a 
technical amendment to the listing of the Ohio portion of the 
Cincinnati-Hamilton area to reflect the designation of Hamilton, 
Butler, Clermont, and Warren Counties, Ohio as nonattainment for ozone, 
with a classification of moderate nonattainment, effective as of July 
5, 2000, the effective date of EPA's June 19, 2000 rulemaking. The 
status of the Kentucky portion of the Cincinnati-Hamilton area has been 
addressed in a separate rulemaking action.

DATES: This technical amendment is effective on April 11, 2002.

FOR FURTHER INFORMATION CONTACT: Mary Portanova, Environmental 
Engineer, EPA Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois, 60604; (312) 353-5954, 
([email protected]).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Are We Taking?
II. What is the background for this action?
III. What is the effect of this action?
IV. Administrative requirements.

I. What Action Are We Taking?

    In this technical amendment, EPA is amending 40 CFR 81.336 to 
designate the Ohio portion of the Cincinnati-Hamilton area as 
nonattainment for ozone, with a classification of moderate 
nonattainment. EPA is making this amendment in response to the 
September 11, 2001 Court decision in Wall v. EPA, 265 F.3d 426 (6th 
Cir. 2001) which vacated EPA's June 19, 2000 (65 FR 37879) 
redesignation of the Cincinnati-Hamilton area to attainment and 
remanded to EPA for further proceedings consistent with the Court's 
opinion.

II. What Is the Background for This Action?

    Under section 107(d) of the Clean Air Act (CAA) as amended in 1977, 
the Cincinnati metropolitan area was designated as an ozone 
nonattainment area in March 1978 (43 FR 8962). On November 6, 1991 (56 
FR 56694), pursuant to section 107(d)(4)(A) of the CAA as amended in 
1990, the Cincinnati-Hamilton area was reaffirmed as nonattainment and 
classified as moderate, due to monitored violations of the National 
Ambient Air Quality Standard (NAAQS) for ozone that occurred during the 
1987-1989 time frame.
    For the 1996-1998 ozone seasons, Kentucky and Ohio recorded three 
years of complete, quality-assured, ambient air monitoring data for the 
Cincinnati-Hamilton area that demonstrated attainment with the 1-hour 
ozone NAAQS, making the area eligible for redesignation. Quality-
assured ozone monitoring data for the 1999 and 2000 ozone seasons, and 
preliminary ozone monitoring data for the 2001 ozone season, show that 
the area continues to attain the 1-hour ozone NAAQS.
    Kentucky and Ohio submitted separate requests to redesignate the 
Cincinnati-Hamilton area from nonattainment to attainment for the 1-
hour ozone NAAQS in 1999. On January 24, 2000 (65 FR 3630) EPA proposed 
to approve the redesignation requests. This rulemaking also proposed to 
determine that the Cincinnati-Hamilton area had attained the 1-hour 
ozone NAAQS by its extended attainment date, and proposed to approve an 
exemption for the area from nitrogen oxides (NOX) 
requirements as provided for in section 182(f) of the CAA. After taking 
and considering public comments, EPA issued a final rulemaking (65 FR 
37879, June 19, 2000), effective July 5, 2000, which determined that 
the Cincinnati-Hamilton area had attained the 1-hour ozone NAAQS, and 
approved Kentucky's and Ohio's requests for the area's redesignation to 
attainment and their plans for maintaining the 1-hour ozone NAAQS. This 
final rulemaking action revised 40 CFR 81.336 to list the Cincinnati-
Hamilton area as attainment for ozone.
    On August 17, 2000, two Ohio residents and the Ohio chapter of the 
Sierra Club petitioned the United States Court of Appeals for the Sixth 
Circuit (Court) for review of EPA's redesignation of the Cincinnati-
Hamilton area. On September 11, 2001, the Court concluded that EPA 
erred only on one element that pertained solely to the Ohio portion of 
the Cincinnati-Hamilton area. The Court thus upheld EPA's actions, with 
the sole exception of EPA's finding that it could approve Ohio's 
redesignation request before Ohio had fully adopted all of the 
Reasonably Available Control Technology (RACT) rules of Part D, Subpart 
2 of the Clean Air Act. The Court vacated EPA's action in redesignating 
the Cincinnati-Hamilton area and remanded to EPA for further 
proceedings. See Wall v. EPA, (265 F.3d 426, 6th Circuit 2001). EPA is 
therefore amending 40 CFR 81.336 to reflect the Court's decision.

III. What Is the Effect of This Action?

    This technical amendment amends the listing in 40 CFR 81.336 to 
indicate that Hamilton, Butler, Clermont, and Warren Counties, Ohio are 
designated as nonattainment for ozone, with a classification of 
moderate nonattainment. This technical amendment has no impact on the 
official designation of the Kentucky Counties of Boone, Campbell, and 
Kenton, as identified in 40 CFR 81.318. The attainment status of the 
Kentucky portion of the Cincinnati-Hamilton area has been addressed in 
a separate rulemaking action.
    The other EPA actions taken in the June 19, 2000, redesignation 
rulemaking for the Cincinnati-Hamilton area which were upheld by the 
Court are unaffected by this amendment. EPA's approvals of Kentucky's 
and Ohio's maintenance plans have remained in place, since the Court 
upheld our approval of these plans. Similarly, EPA's determination of 
attainment for the area has remained in place. Thus the requirements of 
section 172(c)(1), 182(b)(1) and 182(j) concerning the submission of 
the ozone attainment demonstration and the

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requirements of section 172(c)(9) concerning contingency measures for 
reasonable further progress (RFP) or attainment continue to remain 
inapplicable to the area. Since the NOX exemption was not 
affected by the Court's ruling, the area also remains exempt from 
section 182(f) NOX requirements for moderate ozone 
nonattainment areas.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
is taken pursuant to a decision of the United States Court of Appeals 
for the Sixth Circuit and merely reflects the Court's action in 
reinstating the area's previous designation, an action that affects the 
attainment status of a geographical area. Under these circumstances, 
correcting the listing for the designation of the area as nonattainment 
under section 107(d)(3)(E) of the CAA does not impose any new 
requirements on sources, including small entities. Accordingly, the 
Administrator certifies that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
merely reflects the Court's decision, reinstating a prior existing 
designation, it does not impose any additional enforceable duty beyond 
that previously required and it does not contain any unfunded mandate 
or significantly or uniquely affect small governments, as described in 
the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action corrects the listing of the 
area's nonattainment designation, pursuant to court decision. It does 
not impose any new requirements on sources, or allow a state to avoid 
adopting or implementing other requirements. Nor does it alter the 
relationship or the distribution of power and responsibilities 
established in the CAA. Thus, the requirements of section 6 of the 
Executive Order do not apply to this action. This action also is not 
subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant.
    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).

List of Subjects In 40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

    Dated: February 28, 2002.
Norman Niedergang,
Acting Regional Administrator, Region 5.

    Chapter I, title 40 of the Code of Federal Regulations are amended 
as follows:

PART 81--[AMENDED]

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

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

    2. In Sec. 81.336, the ``Ohio-Ozone (1-Hour Standard)'' table is 
amended by revising the entry for the ``Cincinnati-Hamilton Area'' to 
read as follows:


Sec. 81.336  Ohio.

* * * * *

                                          Ohio--Ozone (1-Hour Standard)
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                                                     Designation                        Classification
            Designated Area             ------------------------------------------------------------------------
                                           Date              Type               Date              Type
-------------------------------------------\1\----------------------------------\1\-----------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Cincinnati-Hamilton Area:
    Butler County......................  .......  Nonattainment.............  .......  Moderate.\2\
    Clermont County....................  .......  Nonattainment.............  .......  Moderate.\2\
    Hamilton County....................  .......  Nonattainment.............  .......  Moderate.\2\
    Warren County......................  .......  Nonattainment.............  .......  Moderate.\2\
 
*                  *                  *                  *                  *                  *
                                                        *
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\1\ This date is November 15, 1990, unless otherwise noted.
\2\ Attainment date extended to November 15, 1997.


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[FR Doc. 02-5865 Filed 3-12-02; 8:45 am]
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