[Federal Register Volume 69, Number 138 (Tuesday, July 20, 2004)]
[Rules and Regulations]
[Pages 43319-43322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16333]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R05-OAR-2004-OH-0001; FRL-7789-2]


Approval and Promulgation of Maintenance Plan Revisions; Ohio

AGENCY: Environmental Protection Agency (EPA)

ACTION: Direct final rule.

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SUMMARY: The EPA is approving Ohio's submittal of a revision to the 
Ohio portion of the Cincinnati 1-Hour ozone maintenance plan. Ohio held 
a public hearing on the submittal on March 30, 2004. This maintenance 
plan revision establishes a new transportation conformity motor vehicle 
emissions budget (MVEB) for the year 2010. EPA is approving the 
allocation of a portion of the safety margin for oxides of nitrogen 
(NOX) to the area's 2010 MVEB for transportation conformity 
purposes. This allocation will still maintain the total emissions for 
the area at or below the attainment level required by the 
transportation conformity regulations. The transportation conformity 
budget for volatile organic compounds will remain the same as 
previously approved in the maintenance plan. EPA is not at this time 
addressing any request to redesignate the Ohio portion of the 
Cincinnati area to attainment for the 1-Hour ozone National Ambient Air 
Quality Standard (NAAQS). The rationale for the approval and other 
information are provided in this rulemaking action.

DATES: This ``direct final'' rule is effective on September 20, 2004, 
unless EPA receives adverse written comments by August 19, 2004. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the rule in the Federal Register and inform the public that the rule 
will not take effect.

ADDRESSES: Submit comments, identified by Docket ID No. R05-OAR-2004-
OH-0001 by one of the following methods: Federal eRulemaking Portal: 
http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    E-mail: [email protected].
    Fax: (312) 886-5824.
    Mail: You may send written comments to: J. Elmer Bortzer, Chief, 
Air Programs Branch, (AR-18J), Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    Hand delivery: Deliver your comments to: J. Elmer Bortzer, Chief, 
Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 
60604.
    Such deliveries are only accepted during the Regional Office's 
normal hours of operation. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. R05-OAR-1994-
OH-0001. EPA's policy is that all comments received will be included in 
the public docket without change, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov, or 
e-mail. The federal regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses. For 
additional instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of the related proposed rule which is 
published in the Proposed Rules section of this Federal Register.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Publicly available docket materials are available either 
electronically in EDOCKET or in hard copy at Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. (We recommend that you telephone 
Patricia Morris, Environmental Scientist, at (312) 353-8656 before 
visiting the Region 5 office.) This Facility is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Patricia Morris, Environmental 
Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, 
(312)353-8656. [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of this document and other related 
information?
    C. How and to whom do I submit comments?
II. Background
    A. When did Ohio hold a public hearing and officially submit the 
revision request?
    B. What change is Ohio requesting?
III. Transportation Conformity Budgets
    A. What are transportation conformity budgets?
    B. What is a safety margin?
    C. How does this action change the maintenance plan?
    D. What are subarea budgets?
    E. Why is this request approvable?
IV. Statutory and Executive Order Review

I. General Information

A. Does This Action Apply to Me?

    This action is rulemaking on a non-regulatory planning document 
intended to ensure the maintenance of air quality in the Cincinnati 
Area.

[[Page 43320]]

B. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an electronic public 
rulemaking file available for inspection on EDOCKET and a hard copy 
file which is available for inspection at the Regional Office. EPA has 
established an official public rulemaking file for this action under 
Docket ID No. R05-OAR-2004-OH-0001. The official public file consists 
of the documents specifically referenced in this action, any public 
comments received, and other information related to this action. 
Although a part of the official docket, the public rulemaking file does 
not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The official 
public rulemaking file is the collection of materials that is available 
for public viewing at the Air Programs Branch, Air and Radiation 
Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 
60604. EPA requests that if at all possible, you contact the person 
listed in the For Further Information Contact section to schedule your 
inspection. The Regional Office's official hours of business are Monday 
through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.
    2. Electronic Access. You may access this Federal Register document 
electronically through the regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking Region 5 Air Docket ``R05-OAR-
2004-OH-0001'' in the subject line on the first page of your comment. 
Please ensure that your comments are submitted within the specified 
comment period. Comments received after the close of the comment period 
will be marked ``late.'' EPA is not required to consider these late 
comments.
    For detailed instructions on submitting public comments and on what 
to consider as you prepare your comments see the ADDRESSES section and 
the section I General Information of the SUPPLEMENTARY INFORMATION 
section of the related proposed rule which is published in the Proposed 
Rules section of this Federal Register.

II. Background

A. When Did Ohio Hold a Public Hearing and Officially Submit the 
Revision Request?

    Ohio held a public hearing on the State Implementation Plan (SIP) 
revision request on March 30, 2004, in Cincinnati, Ohio. The formal 
comment period extended until April 2, 2004, to allow a full 30 days 
for public comment. No adverse comments were received. Ohio submitted 
transcripts of the public hearing and copies of the announcement of the 
30 day public comment period to EPA. Ohio sent a letter dated March 15, 
2004, which requested that EPA initiate review of the existing data and 
proceed to parallel process the request. The official submittal with 
all documentation including transcripts of the hearing were submitted 
in a letter dated April 19, 2004. Only one comment was received and 
that comment was in support of the revision request.

B. What Change Is Ohio Requesting?

    Ohio is requesting a change to the transportation conformity budget 
in the approved 1-Hour ozone maintenance plan for Cincinnati. The 
Cincinnati-Hamilton ozone nonattainment/maintenance area is a bi-state 
area. The Ohio Counties include Hamilton, Butler, Clermont and Warren 
and the Kentucky Counties include Boone, Campbell and Kenton. The 
currently approved maintenance plan was approved by EPA on June 19, 
2000, (65 FR 37879-37900). In the June 19, 2000, notice, EPA approved 
the maintenance plan and also a redesignation request to redesignate 
the Cincinnati area to attainment/maintenance for the 1-Hour ozone 
standard. The redesignation was challenged and subsequently vacated; 
however, the maintenance plan approval was upheld.
    In this submittal, Ohio is requesting a change to the 
transportation conformity budget. The approved maintenance plan has a 
``safety margin'' of emissions which can be allocated to the MVEB. The 
requested change only changes the NOX budget for 
transportation conformity.

III. Transportation Conformity Budgets

A. What Are Transportation Conformity Budgets?

    A transportation conformity budget is the projected level of 
controlled emissions from the transportation sector (mobile sources) 
that is estimated in the State Implementation Plan (SIP). The SIP 
controls emissions through regulations, for example, on fuels and 
exhaust levels for cars. The emissions budget concept is further 
explained in the preamble to the November 24, 1993, transportation 
conformity rule (58 FR 62188). The preamble also describes how to 
establish the MVEB in the SIP and how to revise the emissions budget. 
The transportation conformity rule allows the MVEB to be changed as 
long as the total level of emissions from all sources remains below the 
attainment level.

B. What Is a Safety Margin?

    A ``safety margin'' is the difference between the attainment level 
of emissions (from all sources) and the projected level of emissions 
(from all sources) in the maintenance plan. The attainment level of 
emissions is the level of emissions during one of the years in which 
the area met the air quality health standard. For example: Cincinnati 
first attained the one hour ozone standard during the 1996-1999 time 
period. The State uses 1996 as the attainment level of emissions for 
the Cincinnati area. The emissions from point, area and mobile sources 
in 1996 equaled 212.7 tons per day of VOC and 411.2 tons per day of 
NOX. The Ohio Environmental Protection Agency projected 
emissions out to the year 2010 and projected a total of 195.9 tons per 
day of VOC and 363.7 tons per day of NOX from all sources in 
the Ohio portion of the Cincinnati area. The safety margin for the Ohio 
portion of the Cincinnati area is calculated to be the difference 
between these amounts or 16.8 tons per day of VOC and 46.5 tons

[[Page 43321]]

per day of NOX. Detailed information on the estimated 
emissions from each source category is summarized in the proposed 
approval of the maintenance plan at 65 FR 3638 published on January 24, 
2000. Ohio has requested to allocate 10 tons per day of the 
NOX safety margin to the mobile source emission budgets for 
NOX. With the added safety margin in the motor vehicle 
emission estimate for 2010 the total NOX emissions for the 
area continue to be below the 1996 attainment year. Ohio is not asking 
to use the entire safety margin in the maintenance plan. Even with the 
allocation of 10 tons per day of NOX to mobile sources, it 
leaves the area with 36.5 tons per day NOX safety margin.
    The emissions are projected to maintain the area's air quality 
consistent with the air quality health standard. The safety margin 
credit can be allocated to the transportation sector. The total 
emission level, even with this allocation will be below the attainment 
level or safety level and thus is acceptable. The safety margin is the 
extra safety points that can be allocated as long as the total level is 
maintained.

C. How Does This Action Change the Maintenance Plan?

    This action changes the budget for mobile sources. The maintenance 
plan is designed to provide for future growth while still maintaining 
the ozone air quality standard. Growth in industries, population, and 
traffic is offset with reductions from cleaner cars and other emission 
reduction programs. Through the maintenance plan the State and local 
agencies can manage and maintain air quality while providing for 
growth.
    In the submittal, Ohio requested to allocate a portion of the 
NOX safely margin to the 2010 MVEB. The VOC MVEB will remain 
the same as approved and only the NOX budget is requested to 
change. The NOX MVEB will change from 52.3 tons of 
NOX to 62.3 tons of NOX. This budget would be the 
constraining number for mobile sources and transportation conformity. 
The Transportation Plan and Transportation Improvement Program for 
Cincinnati will need to be below the MVEB to demonstrate conformity. 
These requirements are detailed in the transportation conformity 
regulations which were approved as part of the Ohio SIP on May 16, 1996 
(61 FR 24702) and approved as amended in a Federal Register notice 
dated May 30, 2000 (65 FR 34395).

D. What Are Subarea Budgets?

    Ohio is submitting these budgets as subarea budgets which are only 
applicable to the Ohio portion of the Cincinnati area. Subarea budgets 
will allow conformity to be determined for Ohio and Kentucky 
separately. Kentucky currently has approved 2010 mobile source budgets. 
In separate actions, both States (Ohio and Kentucky) are formally 
electing to use subarea budgets per 40 CFR 93.124(d) for the purpose of 
determining transportation conformity in the areas within their 
individual state. Subarea budgets will still require the Cincinnati 
area to conduct transportation conformity for the entire area (both 
Ohio and Kentucky portions). However, subarea budgets will allow 
transportation projects in each State to be implemented if and only if 
the budget test is met for that particular State.

E. Why Is the Request Approvable?

    The emissions from point, area and mobile sources in 1996 equaled 
212.7 tons per day of VOC and 411.2 tons per day of NOX. 
This is the level of emissions which allow attainment of the one hour 
ozone standard. The Ohio Environmental Protection Agency projected 
emissions out to the year 2010 and projected a total of 195.9 tons per 
day of VOC and 363.7 tons per day of NOX from all sources in 
the Ohio portion of the Cincinnati area. The allocation of the safety 
margin will keep the total emissions below the attainment level. Thus, 
the emissions are projected to maintain the area's air quality 
consistent with the air quality health standard. After review of the 
SIP revision request, EPA finds that the allocation of the 10 tons per 
day from the safety margin to the 2010 NOX MVEB for the 
Cincinnati Ohio area is approvable because the new MVEB for 
NOX will maintain the total emissions at or below the 
attainment year inventory level as required by the transportation 
conformity regulations.

IV. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    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.

Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    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).

Regulatory Flexibility Act

    This action merely approves state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. 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.).

Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    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).

Executive Order 13132: Federalism

    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 merely approves a state rule implementing a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule 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.

[[Page 43322]]

National Technology Transfer Advancement Act

    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, 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. 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.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 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. 
section 804(2).
    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 September 20, 2004. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Volatile organic compounds, Ozone.

    Dated: July 8, 2004.
Norman Niedergang,
Acting Regional Administrator, Region 5.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart KK--Ohio

0
2. Section 52.1885 is amended by adding paragraph (b)(12) to read as 
follows:


Sec.  52.1885  Control strategy: Ozone.

* * * * *
    (b) * * *
    (12) Approval--On April 19, 2004, Ohio submitted a revision to the 
ozone maintenance plan for the Cincinnati, Ohio area. The revision 
consists of allocating a portion of the area's NOX safety 
margin to the transportation conformity motor vehicle emissions budget. 
The motor vehicle emissions budget for NOX for the 
Cincinnati, Ohio area is now 62.7 tons per day for the year 2010. This 
approval only changes the NOX transportation conformity 
emission budget for Cincinnati, Ohio.
* * * * *
[FR Doc. 04-16333 Filed 7-19-04; 8:45 am]
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