[Federal Register Volume 70, Number 118 (Tuesday, June 21, 2005)]
[Rules and Regulations]
[Pages 35946-35966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12016]



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Part IV





Environmental Protection Agency





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40 CFR Parts 52 and 81



Approval and Promulgation of State Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes in Ohio; Final Rule

  Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[R05-OAR-2005-OH-0004; FRL-7925-3]


Approval and Promulgation of State Implementation Plans and 
Designation of Areas for Air Quality Planning Purposes in Ohio; 
Redesignation of Cincinnati to Attainment of the 1-Hour Ozone Standard 
and Approval of Ozone Maintenance Plan; Approval of Volatile Organic 
Compound Emissions Control Regulations; and Approval of Motor Vehicle 
Emissions Budgets

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a request from the State of Ohio, submitted 
in draft on March 10, 2005 and in final on May 20, 2005, to redesignate 
the Cincinnati area (Butler, Clermont, Hamilton, and Warren Counties) 
from nonattainment to attainment for the 1-hour ozone National Ambient 
Air Quality Standard (NAAQS). In conjunction with this approval, EPA is 
approving the State's plan for maintaining the 1-hour ozone NAAQS in 
the Cincinnati area through 2015 as a revision to the Ohio State 
Implementation Plan (SIP). EPA is approving Volatile Organic Compound 
(VOC) emission control regulations for various source categories, thus 
completing Ohio's obligation to adopt Reasonably Available Control 
Technology (RACT) regulations for the Cincinnati area. EPA is approving 
periodic VOC and Oxides of Nitrogen (NOx) emission 
inventories for the Cincinnati area. EPA finds as adequate and is 
approving the 2015 VOC and NOx Motor Vehicle Emission 
Budgets (MVEBs) for the Cincinnati area as contained in the Cincinnati 
area ozone maintenance plan.
    EPA is not, at this time, taking action on Ohio's demonstrations 
that termination of the vehicle Inspection and Maintenance (I/M) 
programs in the Cincinnati and Dayton areas will not interfere with the 
attainment and maintenance of the 1-hour ozone NAAQS in these areas, 
and is not taking action on the State's requests for conversion of the 
vehicle I/M programs in these areas to contingency measures in the 1-
hour ozone maintenance plans. The State did not submit a demonstration 
of non-interference with the 8-hour ozone or fine particulate 
(PM2.5) standards, or with any other applicable requirements 
of the Clean Air Act (CAA). Such actions, however, may be considered in 
subsequent rulemakings.

DATES: This rule is effective on June 14, 2005, except 40 CFR 52.1870 
which is effective on July 21, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) Docket ID No. R05-OAR-2005-OH-0004. All 
documents in the docket are listed in the RME index at http://docket.epa.gov/rmepub/, once in the system, select ``quick search,'' 
then key in the appropriate RME Docket identification number. 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. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in RME or in hard copy at 
the Environmental Protection Agency, Region 5, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. We 
recommend that you telephone Edward Doty, Environmental Scientist, at 
(312) 886-6057 before visiting the Region 5 office. This facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist, 
Criteria Pollutant Section, Air Programs Branch (AR-18J), EPA Region 5, 
77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6057, 
[email protected].

SUPPLEMENTARY INFORMATION: In the following, whenever ``we,'' ``us,'' 
or ``our'' are used, we mean the United States Environmental Protection 
Agency.

Table of Contents

I. What Is The Background for This Rule?
II. What Actions Are We Taking and When Are They Effective?
    A. Finding of Continued Attainment for Cincinnati
    B. Redesignation of the Cincinnati Area to Attainment of the 1-
Hour Ozone NAAQS
    C. Approval of Ohio's Ozone Maintenance Plan for the Cincinnati 
Area
    D. Approval and Finding of Adequacy of VOC and NOX 
Motor Vehicle Emission Budgets for the Cincinnati Area
    E. Approval of VOC Emission Control Regulations for Various 
Sources in the Cincinnati Area and Approval of Negative Declarations 
for Some VOC Source Categories
    F. Approval of Periodic Emission Inventories for the Cincinnati 
Area
    G. Termination of the Vehicle Inspection and Maintenance 
Programs in the Cincinnati and Dayton Areas
    H. Effective Date of These Actions
III. Why Are We Taking These Actions?
IV. What Are the Effects of These Actions?
V. What Comments Did We Receive and What Are Our Responses?
    A. Comments Related to Ohio's VOC RACT Regulations
    B. Comments Related to the Termination of the Vehicle Inspection 
and Maintenance Programs in the Cincinnati and Dayton Areas
    C. Comments Received After the Close of the Comment Period
VI. Did Ohio Adopt All of the Volatile Organic Compound Emission 
Control Regulations Needed To Comply With the Reasonably Available 
Control Technology Requirements of the Clean Air Act?
    A. Source Categories Not Requiring New VOC Regulations
    B. Source Categories for Which VOC RACT Regulations Have Been 
Proposed and Adopted
VII. Statutory and Executive Order Review

I. What Is The Background for This Rule?

    In accordance with section 107(d) of the Clean Air Act (CAA) as 
amended in 1977, EPA designated all counties in the Cincinnati-Hamilton 
area (the Ohio portion of this area includes Butler, Clermont, 
Hamilton, and Warren Counties, and the Kentucky portion of this area 
includes Boone, Campbell, and Kenton Counties) as an ozone 
nonattainment area for the 1-hour ozone NAAQS 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, EPA designated the 
Cincinnati-Hamilton area as a moderate ozone nonattainment area based 
on monitored violations of the 1-hour ozone NAAQS recorded during the 
1987-1989 period.
    From 1996 through 1998, air quality monitors in Ohio and Kentucky 
in the vicinity of the Cincinnati-Hamilton area recorded three years of 
complete, quality-assured ambient ozone data that did not violate the 
1-hour ozone NAAQS.\1\ Thus, the area met the air quality requirement 
\2\ for redesignation to attainment of the 1-hour ozone NAAQS. This 
area has continued to

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monitor attainment of the 1-hour ozone NAAQS from 1996 through the 
present.
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    \1\ The 1-hour ozone NAAQS is violated when the annual average 
expected number of daily peak 1-hour ozone concentrations equaling 
or exceeding 0.125 parts per million (ppm) (125 parts per billion 
(ppb)) is 1.05 or greater over a three-year period at any monitoring 
site in the area of interest.
    \2\ Section 107(d)(3)(E) of the CAA specifies five criteria for 
redesignation to attainment of the NAAQS, of which acceptable air 
quality is only one of the criteria. See 70 FR 19898 for a complete 
listing of all five criteria.
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    In 1999, the Ohio Environmental Protection Agency (Ohio EPA) and 
the Commonwealth of Kentucky Natural Resources and Environmental 
Protection Cabinet (Cabinet) submitted separate requests for the 
redesignation of the State-specific portions of the Cincinnati-Hamilton 
area to attainment of the 1-hour ozone NAAQS. On January 24, 2000 (65 
FR 3630), EPA proposed approval of the Ohio and Kentucky ozone 
redesignation requests. EPA issued a final rulemaking (65 FR 37879) on 
June 19, 2000, effective July 5, 2000, determining that the Cincinnati-
Hamilton area had attained the 1-hour ozone NAAQS and approving the 
Ohio and Kentucky ozone redesignation requests, the States' plans for 
maintaining the 1-hour ozone NAAQS, and their NOX emission 
control exemption requests (NOX control waiver requests).
    On August 17, 2000, two Ohio residents and the Ohio chapter of the 
Sierra Club petitioned the United States Court of Appeals for the 6th 
Circuit (Court) for review of EPA's final rule on the States' ozone 
redesignation requests for the Cincinnati-Hamilton area. The 
petitioners urged the Court to find that the EPA had erred in a number 
of respects in approving the redesignation requests. In its September 
11, 2001 decision, the Court upheld EPA's actions with respect to all 
requirements for redesignation that related to Kentucky. The Court also 
rejected the majority of the petitioners' challenges with respect to 
EPA's approval of the Ohio redesignation request, with the sole 
exception of EPA's finding that it could approve Ohio's redesignation 
request before Ohio had fully adopted all of the VOC emission control 
rules needed to comply with the RACT requirements of part D, subpart 2 
of the CAA. The Court concluded that EPA exceeded its discretion by 
determining that Ohio did not need to fully adopt all of the VOC RACT 
rules required by the CAA as a prerequisite for EPA's approval of 
Ohio's ozone redesignation request for the Cincinnati area. The Court 
thus vacated EPA's action in redesignating the Cincinnati-Hamilton area 
to attainment of the 1-hour ozone NAAQS and ``remanded for further 
proceedings consistent with this opinion.'' See Wall v. EPA (265 F.3d 
436, 6th Circuit 2001).
    On February 12, 2002 (67 FR 6411), in a direct final rule, the EPA 
took action to reinstate a designation of attainment of the 1-hour 
ozone NAAQS for the Kentucky portion of the Cincinnati-Hamilton area. A 
submittal of a negative comment, however, resulted in the withdrawal of 
this rule on April 8, 2002 (67 FR 16646). The reinstatement of the 
attainment designation for the Kentucky portion of the Cincinnati-
Hamilton area was subsequently completed through promulgation of a 
final rule responding to comments on July 31, 2002 (67 FR 49600).
    On March 12, 2002 (67 FR 11041), through a technical amendment to 
its June 19, 2000 final rule, the EPA revised the ozone designation of 
the Ohio portion of the Cincinnati-Hamilton area to nonattainment of 
the 1-hour ozone NAAQS with a classification of moderate nonattainment. 
This technical amendment became effective on April 11, 2002.
    On April 30, 2004 (69 FR 23858), the Cincinnati area was designated 
as nonattainment for the 8-hour ozone NAAQS and classified as a subpart 
1 (subpart 1 of the CAA) or ``Basic'' area. This designation became 
effective on June 15, 2004. Please note, however, that today's final 
action primarily deals with the designation of this area for the 1-hour 
ozone NAAQS and not for the 8-hour ozone NAAQS.
    On March 10, 2005, the Ohio EPA submitted a new ozone redesignation 
request and ozone maintenance plan, in draft, for the Cincinnati area. 
This submittal also included draft VOC emission control rules that Ohio 
was preparing to adopt to comply with the RACT requirements of the CAA. 
The submittal requested the EPA to parallel process \3\ the ozone 
redesignation request, ozone maintenance plan, and VOC emission control 
rules, and noted that the State had scheduled a public hearing to 
address the submittal items.
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    \3\ A state request for parallel processing is used when the 
state has not completed adoption of a SIP revision request, but 
anticipates doing so prior to EPA's completion of final rulemaking 
for the requested SIP revision. Parallel processing of a state's 
draft SIP revision request can only lead to a final EPA rulemaking 
(without additional proposed rulemaking by the EPA) if the state's 
final, adopted SIP revision request is essentially the same as the 
initial drafted SIP revision request or is modified in a manner 
requested by the EPA and noted in EPA's parallel processing proposed 
rule.
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    On April 4, 2005, the Ohio EPA submitted additional information, 
including a negative declaration to avoid RACT for plastic parts 
coating, and demonstrations showing that terminating the vehicle 
inspection and maintenance (vehicle I/M) programs in the Cincinnati and 
Dayton areas will not interfere with the attainment and maintenance of 
the 1-hour ozone NAAQS in these areas. Consequently, the Ohio EPA 
proposed to revise the SIP and the ozone maintenance plans for these 
areas to move the vehicle I/M programs from the active portion of the 
SIP to the contingency measure portions of the area-specific 
maintenance plans. This submittal revised the ozone maintenance 
demonstrations for these areas and revised mobile source emission 
budgets to reflect the changes in mobile source VOC and NOX 
emissions that will result when the I/M programs are terminated. 
Finally, this submittal included a committal from the State to complete 
and submit analyses in compliance with section 110(l) of the CAA to 
demonstrate that terminating the vehicle I/M programs will not 
interfere with the attainment of any NAAQS and with compliance with 
requirements of the CAA.
    On April 15, 2005, EPA published a proposed rule (70 FR 19895), 
proposing to: (1) Find that the Cincinnati-Hamilton area has continued 
to attain the 1-hour ozone NAAQS and to approve Ohio's request for the 
redesignation of the Cincinnati area to attainment of the 1-hour ozone 
NAAQS; (2) approve Ohio's ozone maintenance plan for the Cincinnati 
area; (3) approve certain VOC emission control regulations as meeting 
the RACT requirements of the CAA; (4) approve periodic emission 
inventories for the Cincinnati area; and (5) notify the public that the 
mobile source VOC and NOX emission estimates projected 
through 2015 in the Cincinnati area maintenance plan are approvable and 
adequate for conformity purposes. In addition, we proposed to find that 
Ohio has demonstrated that termination of the vehicle I/M programs in 
the Cincinnati and Dayton areas will not interfere with the attainment 
and maintenance of the 1-hour ozone NAAQS in these areas. This proposed 
rule established a 30-day public comment period.
    This rule is EPA's final action on the April 15, 2005 proposed rule 
as it relates to attainment and maintenance of the 1-hour ozone NAAQS 
in the Cincinnati area. Since the final, State-adopted SIP revision 
request is substantially the same as that submitted for parallel 
processing by the EPA and contains only significant revisions as 
requested by the EPA and noted in our April 15, 2005 proposed rule, we 
will not publish an additional proposed rule on this State submittal. 
EPA is, however, not taking final action on certain portions of the 
April 15, 2005 proposed rule as noted below.

II. What Actions Are We Taking and When Are They Effective?

    After consideration of the comments received in response to the 
April 15, 2005 proposed rule, as described in section V below, and the 
State's final,

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adopted SIP revisions and supporting material (reviewed in draft form 
in the April 15, 2005 proposed rule), we are taking the following 
actions:

A. Finding of Continued Attainment for Cincinnati

    In its June 19, 2000 rulemaking, EPA issued a final rule 
determining that the Cincinnati-Hamilton area had attained the 1-hour 
ozone NAAQS (65 FR 37879). While the Court, in Wall v. EPA, vacated 
EPA's action redesignating the area to attainment, it did not vacate 
EPA's determination of attainment for the area. Therefore, the 
determination of attainment remains intact and in effect. 67 FR 49600 
(July 31, 2002). As a result of this determination of attainment, EPA 
also determined that certain attainment demonstration requirements, 
along with certain other related requirements of part D of title I of 
the CAA are not applicable to the area. In its April 15, 2005 proposal, 
EPA proposed to find that the Cincinnati-Hamilton area has continued to 
attain the 1-hour NAAQS. 70 FR 19899, 19901. In this notice we are 
finalizing this finding. In addition, since the Cincinnati-Hamilton 
area continues to attain the 1-hour ozone NAAQS, we note that a 
NOX emission control waiver pursuant to section 182(f) of 
the CAA, approved on July 13, 1995 (60 FR 36060) and extended on June 
19, 2000 (65 FR 37879), continues in the Cincinnati area.
    The State must continue to operate an appropriate monitoring 
network, in accordance with 40 CFR part 58, to verify the attainment 
status of the area. The air quality data relied on to determine that 
the area is attaining the ozone NAAQS must be consistent with 40 CFR 
part 58 requirements and other relevant EPA guidance and recorded in 
EPA's Aerometric Information Retrieval System (AIRS).
    EPA has reviewed the ambient air monitoring data for ozone for the 
Cincinnati-Hamilton area from the 2002 to 2004 ozone seasons (for the 
Cincinnati-Hamilton area, the ozone season is April 1 through October 
31 of each year, when the highest 1-hour ozone concentrations are 
typically recorded). On the basis of this review, EPA has determined 
that the area has continued to attain the 1-hour ozone NAAQS during the 
2002-2004 period. Therefore, the State of Ohio is not required to 
submit an ozone attainment demonstration, Reasonably Available Control 
Measures (RACM) regulations, a Reasonable Further Progress (RFP) plan, 
and a section 172(c)(9) contingency measure plan, nor does it need any 
other measures (other measures mandated by the CAA) to attain the 1-
hour ozone NAAQS in the Cincinnati-Hamilton area.

B. Redesignation of the Cincinnati Area to Attainment of the 1-Hour 
Ozone NAAQS

    As just explained, EPA has determined that the entire Cincinnati-
Hamilton area has attained the 1-hour ozone standard. In this final 
rule, EPA is taking action on Ohio's request to redesignate the Ohio 
portion (the Cincinnati area) of the Cincinnati-Hamilton area to 
attainment of the 1-hour ozone NAAQS. As noted above, on February 12, 
2002 (67 FR 6411), EPA reinstated its approval of a redesignation to 
attainment of the 1-hour NAAQS for the Kentucky portion of the 
Cincinnati-Hamilton area. Also as noted above, on remand from the 
Court, Wall v. EPA, 265 F.3d 436 (6th Cir. 2001), on March 12, 2002 (67 
FR 11041), EPA reinstated a designation of nonattainment of the 1-hour 
ozone NAAQS for the Ohio portion of the Cincinnati-Hamilton area. Thus, 
only the Ohio portion of the Cincinnati-Hamilton area was left with a 
designation of nonattainment for the 1-hour ozone NAAQS in this area. 
Thus, this final rule only affects the Ohio portion of the Cincinnati-
Hamilton area.
    EPA is approving the request from the State of Ohio to redesignate 
the Cincinnati area to attainment of the 1-hour ozone NAAQS. With our 
approval of Ohio's VOC RACT rules, as discussed below, the Cincinnati 
area has complied with all CAA criteria for redesignation to attainment 
of the NAAQS, as set forth in section III below.

C. Approval of Ohio's Ozone Maintenance Plan for the Cincinnati Area

    EPA is approving Ohio's plan for maintaining the 1-hour ozone NAAQS 
in the Cincinnati area through 2015 as a revision to the Ohio SIP. The 
adopted maintenance plan contains triggering mechanisms and contingency 
measures designed to promptly correct a violation of the 1-hour ozone 
NAAQS that occurs after redesignation of the Cincinnati area to 
attainment of the NAAQS. Section 175A of the CAA requires that a 
maintenance plan include such contingency measures as EPA deems 
necessary to assure that the State will promptly correct a violation of 
the NAAQS that occurs after redesignation.
    The VOC contingency measures listed in the adopted maintenance plan 
are the following: \4\
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    \4\ Note that the contingency plan adopted by the State also 
includes VOC RACT for sources covered by new control technology 
guidelines issued in response to the 1990 CAA amendments. This 
contingency measure has become moot because the State has adopted 
such RACT rules and is in the process implementing these 
regulations.
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    1. Lower Reid Vapor Pressure (RVP) gasoline; \5\
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    \5\ Prior to implementing lower RVP gasoline requirements, the 
State of Ohio would have to be granted a waiver to address 
preemption requirements under section 211(c)(4)(C) of the CAA.
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    2. Reformulated gasoline;
    3. Broader geographic coverage of existing regulations;
    4. Application of RACT to smaller existing sources;
    5. Implementation of one or more transportation control measures 
sufficient to achieve at least a 0.5 percent reduction in area wide VOC 
emissions;
    6. Alternative fuel programs for fleet vehicle operations;
    7. Controls on consumer products consistent with those adopted 
elsewhere in the United States;
    8. VOC offsets for new or modified major sources;
    9. VOC offsets for new or modified minor sources;
    10. Increased ratio of VOC offsets required for new sources; and
    11. Requirements of VOC controls on new minor sources.
    Ohio also requested that the vehicle I/M program, known as E-Check 
in Ohio, be converted to a contingency measure in the maintenance plan. 
However, Ohio offered EPA the option of first approving a maintenance 
plan in which E-Check remains an active measure and later approving a 
revision to the maintenance plan to convert E-Check to a contingency 
measure. For reasons described below, EPA is approving a maintenance 
plan in which the projected emission estimates take no credit for the 
operation of E-Check, even though E-Check would remain an active 
measure in the SIP.
    Consideration and selection of one or more of the contingency 
measures will take place in the event that it is verified that the 1-
hour ozone NAAQS is violated after the redesignation of the Cincinnati 
area to attainment of the NAAQS. The selected contingency measure(s) 
will be implemented within 12 months, after verification of a NAAQS 
violation. If the NAAQS continues to be violated after the 
implementation of the VOC contingency control measure, NOX 
RACT will be adopted and implemented. As noted above, the list of 
contingency measures is made up entirely of VOC emission control 
measures. Ohio's first preference for the selection of an emissions 
control measure as a contingency measure is to pursue a VOC emissions 
reduction

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measure. The State wants to pursue NOX RACT as an 
additional, contingency emissions control measure only if the 
implementation of the VOC emissions control measure fails to prevent 
additional violations of the 1-hour ozone NAAQS.
    The maintenance plan estimates emissions 10 years into the future 
from the anticipated year of the redesignation as required by section 
175A of the CAA. These emission estimates are for point, area, and 
mobile sources in the Ohio portion of the Cincinnati-Hamilton area. The 
emissions estimates demonstrate continued maintenance of the 1-hour 
ozone standard through 2015. The latest information was used to project 
these emissions. The mobile source emissions estimates were developed 
using the MOBILE6 model. As noted above, the mobile source emission 
estimates do not include the emission reductions resulting from the 
continued implementation of the E-Check program. The maintenance plan 
demonstrates that the 1-hour standard can be maintained without taking 
credit for the E-Check program. The State continues to implement the E-
Check program in the Cincinnati area in compliance with the current 
SIP, but anticipates it will submit a request for its future 
termination and retention as a contingency measure. In this request, 
the State will demonstrate that termination of the E-Check program will 
not interfere with the attainment of any NAAQS and with compliance with 
any requirement of the CAA. In addition, the State will demonstrate 
compliance with 40 CFR 51.372(c).
    Despite the fact that Ohio is continuing with the implementation of 
the E-Check program, we believe we can approve the ozone maintenance 
plan even though Ohio has not taken credit for the emissions reductions 
resulting from the E-Check program in the maintenance demonstration. 
Ohio's approach provides a conservative demonstration that shows that 
maintenance of the 1-hour ozone standard will occur in the Cincinnati 
area even if the E-Check program is terminated.

D. Approval and Finding of Adequacy of VOC and NOX Motor 
Vehicle Emission Budgets for the Cincinnati Area

    EPA finds as adequate and approves the 2015 Motor Vehicle Emission 
Budgets (MVEBs) of 26.2 tons per day for VOC and 39.5 tons per day for 
NOX for the Ohio portion of the Cincinnati-Hamilton area in 
the State-adopted maintenance plan. These MVEBs are subarea budgets for 
the Ohio portion of the Cincinnati-Hamilton area and will be used for 
future transportation conformity determinations.
    Although these budgets do not include emissions reductions from the 
E-Check program, the emissions estimates continue to decline from 
current estimates (from 1996 and 2005 levels, see Tables 4 and 5 in our 
April 15, 2005 proposed rule, 70 FR 19911) and demonstrate that the 1-
hour ozone standard will be maintained. These MVEBs have been through 
the appropriate public involvement and comment period requirements 
without receiving adverse comment. The budgets meet the adequacy 
criteria, 40 CFR 93.118(e)(4), and are approvable as part of the 1-hour 
ozone maintenance plan. These budgets set a tighter limit (the budgets 
are lower) than the current 2010 Cincinnati area emissions budgets, 
which are currently being used for transportation conformity purposes. 
The current 2010 budgets are: 37.9 tons per day of VOC and 62.3 tons 
per day of NOX. The approved 2015 budgets will replace the 
current 2010 budgets, as detailed in our April 15, 2005 proposed rule, 
upon the effective date of this rule so that the maintenance plan, as 
approved, will extend 10 years past the redesignation date as required 
by section 175A of the CAA. The newer budgets, which are being approved 
as part of the 1-hour maintenance plan, are consistent with the goals 
of section 110(l) of the CAA because they set a tighter cap on mobile 
source VOC and NOX emissions for transportation conformity 
purposes, thereby limiting growth in mobile source emissions allowed in 
the transportation plan.
    Subsequent to the effective date of this rule, the State of Ohio 
and local planning agencies in the Cincinnati area will have to use the 
2015 emissions budgets in all transportation conformity analyses and 
demonstrations.

E. Approval of VOC Emission Control Regulations for Various Sources in 
the Cincinnati Area and Approval of Negative Declarations for Some VOC 
Source Categories

    As noted below, EPA is approving VOC emission control regulations 
that the State has adopted for the following source categories: (1) 
Bakeries; (2) batch chemical operations; (3) industrial wastewater; (4) 
synthetic organic chemical manufacturing industry reactor and 
distillation units; and (5) wood furniture manufacturing as meeting the 
VOC RACT requirements of the CAA. EPA is also approving negative 
declarations (determinations that there are no applicable sources in 
the Cincinnati area requiring the implementation of RACT emission 
control measures) for the following source categories: (1) Industrial 
cleaning solvents; (2) shipbuilding and ship repair industry; (3) 
automobile refinishing; (4) aerospace manufacturing and rework 
facilities; (5) volatile organic liquid storage tanks; (6) lithographic 
printing; and (7) plastic parts coating. These adopted VOC RACT rules 
and negative declarations complete Ohio's obligations to meet the VOC 
RACT requirements of the CAA.

F. Approval of Periodic Emission Inventories for the Cincinnati Area

    EPA approves Ohio's emission inventories for 1996, 1999, and 2002 
documented in Ohio's July 2, 1999, December 22, 1999, March 8, 2005, 
and April 4, 2005 submittals, as meeting the requirements for such 
periodic emission inventories contained in section 182(a)(3)(A) of the 
CAA.

G. Termination of the Vehicle Inspection and Maintenance Programs in 
the Cincinnati and Dayton Areas

    As noted above, EPA is approving Ohio's maintenance plan for the 
Cincinnati area as demonstrating that the area will maintain the 1-hour 
ozone standard even without taking credit for emissions reductions due 
to the E-Check program. This, however, does not mean that EPA is 
approving the termination of the E-Check program in this area. As 
explained in detail below, in response to public comments on our April 
15, 2005 proposed rule, EPA is not taking action on the conversion of 
E-Check to contingency measures in the Cincinnati and Dayton areas 
until the State has submitted, and EPA has approved certain 
demonstrations and other information in compliance with 40 CFR 
51.372(c) and section 110(l) of the CAA.
    In our April 15, 2005 proposed rule at 70 FR 19912, we requested 
the State of Ohio to project VOC and NOX emissions for the 
Dayton area through 2015 to demonstrate that attainment of the 1-hour 
NAAQS could be maintained without the emissions reductions resulting 
from the E-Check program. In response to our request, the Ohio EPA has 
provided projected emissions data demonstrating that the 1-hour ozone 
NAAQS can be maintained through 2015 even if the E-Check program is 
terminated in the Dayton area. As noted here, however, we are not 
taking action on the conversion of the E-Check program to a contingency 
measure in the Dayton 1-hour ozone maintenance plan at this time. 
Further, we are not discussing the details of Ohio's projected VOC and 
NOX emissions in this final action. We are deferring this

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discussion until we review Ohio's section 110(l) demonstrations of non-
interference with attainment of other NAAQS and with compliance with 
the requirements of the CAA for this area. Through that future 
rulemaking, the public will be given an opportunity to review and 
comment on Ohio's new emission projections for 2010 and 2015.

H. Effective Date of These Actions

    EPA finds that there is good cause for this redesignation to 
attainment and approval of the ozone maintenance plan, motor vehicle 
emission budgets for the Cincinnati area, and periodic emissions 
inventories as revisions to the SIP to become effective on June 14, 
2005 after signature and transmittal of a rule report, including a copy 
of the rule, to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States in accordance with the 
Congressional Review Act, 5 U.S.C. 801 et seq. This is because a 
delayed effective date is unnecessary due to the nature of a 
redesignation to attainment, which confirms monitored attainment of the 
NAAQS over a number of years and relieves the area from certain CAA 
requirements that otherwise would apply to it. The immediate effective 
date for this action is authorized under both 5 U.S.C. 553(d)(1), which 
provides that a rulemaking action may become effective less than 30 
days after publication if the rule ``grants or recognizes an exemption 
or relieves a restriction'' and 5 U.S.C. 553(d)(3), which allows an 
effective date less than 30 days after publication ``as otherwise 
provided by the agency for good cause found and published with the 
rule.'' With respect to its approval of the VOC emissions control 
regulations for various source categories, these rules are effective 30 
days after publication in the Federal Register.

III. Why Are We Taking These Actions?

    EPA has determined that the Cincinnati-Hamilton area has continued 
to attain the 1-hour ozone standard. EPA has determined that the State 
of Ohio has adopted all VOC RACT rules required by the CAA, for all 
source categories covered by Control Techniques Guidelines (CTGs), with 
the exception of source categories lacking applicable sources in the 
Cincinnati area and addressed through negative declarations, and for 
all major non-CTG sources for the Cincinnati area. Finally, EPA has 
determined that the State of Ohio has demonstrated that all other 
criteria for the redesignation of the Cincinnati area from 
nonattainment to attainment of the 1-hour ozone NAAQS have been met. 
EPA is fully approving a maintenance plan meeting the requirements of 
sections 175A and 107(d) of the CAA.
    In the April 15, 2005 proposed rule at 70 FR 19898, EPA described 
the applicable criteria for redesignation to attainment. Specifically, 
section 107(d)(3)(E) allows for redesignation provided that: (1) The 
Administrator determines that the area has attained the applicable 
NAAQS; (2) the Administrator has fully approved the applicable 
implementation plan for the area under section 110(k) of the CAA; (3) 
The Administrator determines that the improvement in air quality is due 
to permanent and enforceable reductions in emissions resulting from 
implementation of the applicable state implementation plan, applicable 
Federal air pollution control regulations, and other permanent and 
enforceable emission reductions; (4) the Administrator has fully 
approved a maintenance plan for the area as meeting the requirements of 
section 175A of the CAA; and, (5) the State containing such area has 
met all requirements applicable to the area under section 110 and part 
D of the CAA.
    EPA has determined that the Cincinnati-Hamilton area has continued 
to attain the applicable NAAQS. EPA is fully approving the applicable 
implementation plan for the Cincinnati area under section 110(k) of the 
CAA. EPA has determined that the improvement in air quality in the 
Cincinnati-Hamilton area is due to permanent and enforceable emission 
reductions resulting from implementation of the applicable 
implementation plan and applicable Federal air pollution control 
regulations. EPA is fully approving a maintenance plan for the 
Cincinnati area as meeting the requirements of section 175A of the CAA. 
EPA is approving VOC RACT rules completing Ohio's VOC RACT rule 
adoption requirements under the CAA. EPA is approving periodic emission 
inventories for the Cincinnati area, meeting the CAA requirements for 
such emission inventory updates. Finally, EPA concludes that Ohio has 
met all requirements applicable to the Cincinnati area for purposes of 
redesignation to attainment of the 1-hour ozone NAAQS under section 110 
and part D of the CAA.
    By finding that the maintenance plan provides for maintenance of 
the 1-hour ozone NAAQS through 2015, EPA is hereby finding adequate and 
approving the 2015 VOC and NOX MVEBs contained within the 
maintenance plan. The MVEB for VOC in the Cincinnati area is 26.2 tons 
per day. The MVEB for NOX in the Cincinnati area is 39.5 
tons per day.
    The rationale for these findings and actions are as stated in this 
rulemaking and in the April 15, 2005 proposed rule, found at 70 FR 
19895.
    In our April 15, 2005 proposed rule, we proposed to approve the 
redesignation of the Cincinnati area and to approve Ohio's new VOC 
emission control regulations through parallel processing. Our proposed 
rulemaking was completed during the same period that Ohio itself was 
completing its adoption of the maintenance plan for the Cincinnati area 
and of needed VOC emission control regulations. This parallel 
processing was done at Ohio's request to expedite rulemaking on Ohio's 
redesignation and SIP revision requests. Such parallel rulemaking can 
only be completed through final rulemaking without additional proposed 
rulemaking if Ohio makes a final submittal of adopted plans and VOC 
emission control regulations that do not significantly differ from the 
versions described and reviewed by the EPA in its proposed rulemaking 
(including, where applicable, prospective revisions described and 
requested by EPA in the proposed rulemaking). The State has in fact 
here provided a final submittal that matches the draft submittal 
described and reviewed in the notice of proposed rulemaking, except 
that the final submittal includes the revisions to RACT rules that EPA 
described as necessary in its notice of proposed rulemaking. Therefore, 
we believe that the public has had suitable opportunity to comment on 
the substance of our April 15, 2005 proposed rule and today's final 
rule, and that EPA may properly proceed with final action on the 
State's submittal.

IV. What Are the Effects of These Actions?

    EPA concludes that the Cincinnati area has continued to attain the 
1-hour ozone NAAQS, and, thus, the ozone attainment demonstration, RFP 
plan, and certain other related requirements of part D of title I of 
the CAA, including the section 172(c)(9) contingency measure 
requirements (measures needed to mitigate a state's failure to achieve 
reasonable further progress toward, and attainment of a NAAQS), the 
section 182 attainment demonstration and rate of progress requirements, 
and the section 182(j) multi-state attainment demonstration 
requirements continue to be inapplicable to the Cincinnati area.
    Approval of the Ohio redesignation request changes the official 
designation

[[Page 35951]]

for the 1-hour ozone NAAQS found at 40 CFR part 81 for the Ohio portion 
of the Cincinnati-Hamilton area from nonattainment to attainment. It 
also incorporates into the Ohio SIP a plan for maintaining the 1-hour 
ozone NAAQS through 2015. The maintenance plan includes contingency 
measures to remedy any future violations of the 1-hour ozone NAAQS, and 
includes VOC and NOX MVEBs for 2015 for the Cincinnati area.
    As noted above, Ohio has submitted projected VOC and NOX 
emissions for 2015 to revise the Dayton area 1-hour ozone maintenance 
plan. We are not taking action on these projected emissions in this 
final rule, but will address them in a future rulemaking when we 
address Ohio's section 110(l) demonstrations showing that terminating 
the E-Check program in the Dayton area will not interfere with the 
attainment of any NAAQS and with compliance with the requirements of 
the CAA. This future rulemaking will establish revised MVEBs for the 
Dayton area, and will provide for public comment on the new MVEBs.
    EPA's final Phase 1 rule to implement the 8-hour ozone NAAQS (69 FR 
23951, April 30, 2004) provided that the 1-hour ozone standard would be 
revoked for an area one year after the effective date of the area's 
designation for the 8-hour ozone NAAQS (June 15, 2004). 40 CFR 50.9(b). 
The Phase 1 rule also provided that an area's attainment status for the 
1-hour ozone standard, as of the area's date of designation for the 8-
hour ozone standard, establishes the 1-hour emissions control 
obligations that must remain in place for purposes of preventing anti-
backsliding. 40 CFR 51.905. For purposes of the anti-backsliding 
provisions of the Phase 1 rule, the Cincinnati area remains a 1-hour 
nonattainment/8-hour nonattainment area subject to the requirements of 
40 CFR 51.905(a)(1).
    Today's action to approve VOC RACT rules incorporates these rules 
into the Ohio SIP and makes the rules federally enforceable.
    Today's action does not affect the status of the E-Check program in 
either the Cincinnati or Dayton areas. This program remains an active 
measure in the Ohio SIP for these areas, and Ohio is continuing to 
implement this program. As discussed below, before Ohio can convert E-
Check to a contingency measure for either area, Ohio has to modify its 
legislation to assure that the State has provided for legislative 
authority to restart E-Check on a contingency basis in compliance with 
40 CFR 51.372(c). As noted in the proposed rulemaking, EPA also expects 
Ohio to provide replacement measures or otherwise demonstrate non-
interference to assure that a discontinuation of E-Check would not 
interfere with attainment of any NAAQS, including the 8-hour ozone and 
PM2.5 standards, or interfere with meeting other 
requirements of the CAA, as mandated under section 110(l) of the CAA. 
EPA must complete rulemaking finding that 40 CFR 51.372(c) and section 
110(l) of the CAA have been satisfied before Ohio discontinues the E-
Check program and converts E-Check to contingency measures in the ozone 
maintenance plans for the Cincinnati and Dayton areas.

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

    We received four letters commenting on the April 15, 2005 proposed 
rule. All four of the letters contained comments critical of various 
portions of our proposed rule. The first letter was sent by the 
American Lung Association (ALA) on April 6, 2005. ALA, in conjunction 
with the Natural Resources Defense Council, sent additional comments on 
April 25, 2005. ALA, in conjunction with the American Lung Association 
of Ohio, the Ohio Environmental Council, Earthjustice, and the Natural 
Resources Defense Council, sent more extensive comments on May 16, 
2005. Earthjustice also sent comments on May 16, 2005. A summary of the 
comments and EPA's responses to them are provided below.

A. Comments Related to Ohio's VOC RACT Regulations

    Earthjustice is critical of EPA's approval of Ohio's negative 
declarations for certain VOC source types for RACT purposes and EPA's 
conclusion that Ohio has met all of the VOC RACT requirements of the 
CAA for the Cincinnati area.
    Comment 1: The plain language of 182(b)(2)(A) mandates that each 
moderate area SIP shall require implementation of RACT for each 
category of VOC sources covered by a CTG document issued between 
November 15, 1990 and the date of attainment. The State's duty to adopt 
these RACT provisions is not waived merely because no individual 
sources are big enough to trigger the RACT control requirements.
    Response 1: Ohio EPA submitted negative declarations for seven 
source categories. Of these seven categories, Shipbuilding and Ship 
Repair Operations and Aerospace Manufacturing and Rework facilities are 
covered by a post-1990 CTG (subject to CAA section 182(b)(2)(A)) and 
each CTG contains specific applicability cutoffs. The remaining 5 
categories of sources are considered ``non-CTG'' source categories 
subject to section 182(b)(2)(C) of the CAA, and a RACT rule would be 
required for any of these source categories if any source within the 
source category has greater than 100 tons VOC per year of potential 
non-CTG emissions (either by itself or combined with other non-CTG 
sources at a facility) and is not subject to federally enforceable 
operating and/or production restrictions limiting the facility to less 
than 100 tons per year of non-CTG VOC emissions. Non-CTG emissions 
include emissions from source categories for which there is not a CTG 
document, and also include unregulated emissions from source categories 
covered by a CTG category. Potential emissions or potential to emit 
(PTE) represents the emissions from a source if it were at maximum 
production and operating 8,760 hours per year (i.e., 24 hours/day, 7 
days/week), essentially a physical emissions ceiling.
    We disagree with the commenter that section 182(b)(2)(A) requires 
the State to adopt RACT rules where there are no sources in the area 
that have the potential to emit VOC above the cut-off levels specified 
in the relevant CTGs. Section 182(b)(2)(A) requires the State to adopt 
RACT rules for ``[e]ach category of VOC sources in the area covered by 
a CTG document issued by the Administrator between the date of 
enactment of the Clean Air Act Amendments of 1990 and the date of 
attainment.'' Thus, a State must adopt RACT rules for categories of 
sources ``covered by a CTG document.'' Each CTG document establishes a 
source cut-off for applicability of RACT. Sources with emissions at or 
above the cut-off are ``covered by the CTG document,'' and sources that 
are below the cut-off are not ``covered by the CTG document.'' Thus, 
where a state can demonstrate that there are no sources in an area that 
meet the requirements for RACT as set forth in a specific CTG, then the 
State is not required under section 182(b)(2)(A) to adopt a RACT rule 
for that category of sources. \6\ This

[[Page 35952]]

interpretation of the Act by EPA is long-standing and was in fact set 
forth in the April 16, 1992, General Preamble for the implementation of 
title I of the CAA of 1990. In that notice, we stated: ``All States 
should submit negative declarations for those source categories for 
which they are not adopting CTG-based regulations (because they have no 
sources above the CTG recommended threshold)* * *'' (57 FR 13512, April 
16, 1992).
---------------------------------------------------------------------------

    \6\ Although the commenter does not specifically reference 
sections 182(b)(2)(B) and (C), these provisions are subject to the 
same interpretation. Subsection (B) uses the same phrasing as 
subsection (A)--requiring RACT for sources ``covered by any [pre-
1990] CTG.'' Subsection (C), when read in conjunction with the 
opening paragraph of section 182(b)(2), requires RACT rules for 
major stationary sources in the area that are not covered by a CTG. 
Thus, RACT rules are not needed for sources that do not meet the 
definition of a ``major stationary source,'' which is 100 tpy for 
the Cincinnati area, which is a 1-hour moderate ozone nonattainment 
area.
---------------------------------------------------------------------------

    For the reasons provided elsewhere in this notice, we believe that 
Ohio EPA has thoroughly documented that there are, in fact, no sources 
in the Cincinnati ozone nonattainment area that are above the 
applicability cutoff and thus the State was not required to submit RACT 
rules for those two CTG categories.
    Comment 2: Neither the State nor EPA have documented that all 
sources within each of the seven categories do in fact have potential 
to emit at levels below the relevant thresholds (aside from those 
sources that are subject to enforceable emission caps). Aside from 
those sources that are subject to enforceable emission caps that keep 
them below the threshold, the State has not explained how it calculated 
or estimated potential to emit at all of the relevant sources. For 
example, for Industrial Cleaning Solvents, the State's negative 
declaration consists of a letter with a table showing emission figures 
for each company but does not explain how the emission figures were 
derived. An entry of 184.65 tons of VOC emissions for coatings was 
difficult to reconcile with the state's assertion that no facilities 
with Industrial Cleaning Solvent operations have combined non-CTG PTE 
of 100 Tons per year or more.
    Response 2: The State has fully documented that there are no 
sources in each of the seven source categories with potential emissions 
above the applicable cut-off levels. In the negative declaration for 
each source-category, the State first explained how it searched the 
area for any sources that potentially could be subject to the relevant 
CTG or to non-CTG RACT. Once the State developed the list of sources 
potentially subject to RACT, it then evaluated the individual sources 
to determine whether the sources had potential emissions above the 
applicable cut-off. If a source had a federally-enforceable permit 
limiting emissions below the cut-off (i.e., an ``emissions cap''), the 
State did not need to analyze the source further. For the remaining 
sources, the State analyzed whether the potential emissions of the 
sources were above the cut-off level. There were two methods for 
performing this analysis. First, the State could use the results of 
test methods--where the emissions of a specific source are derived 
based on a test of actual emissions from the facility. Where the State 
used this method of analysis, the test methods in OAC rule 3745-21-10, 
which have been approved by EPA, were used. Second, where test data are 
unavailable, EPA has established emission calculation procedures based 
upon the source characteristics. For source categories involving 
evaporative emissions, such as cleaning solvents, potential emissions 
are based on determining the weight of volatile organic material that 
would be used with the source operating at maximum capacity. This is 
the most direct way of estimating emissions.
    During the State hearing process, the State made available for 
public comment the detailed information about (1) how it determined 
whether there were sources potentially subject to RACT in each 
category; (2) which of those sources had federally enforceable permit 
limits ``capping'' their emissions below the applicable cut-off; (3) 
the potential emissions for sources that do not have their emissions 
capped; and (4) the source-specific calculations for each source (the 
Hamilton County Department of Environmental Services (HAMCO--a local 
air agency) maintains files which document the emissions of the sources 
listed in the tables attached to the negative declaration letters). The 
State submitted items (1), (2) and (3) as part of the SIP revision, and 
that information was available during the comment period on this rule. 
In addition, in response to questions from EPA, the State submitted: 
(1) In a May 2, 2003 email by HAMCO, additional information regarding 
how the State calculated industrial cleaning solvent emissions and 
examples of those calculations; and, (2) in a January 9, 2003, letter 
from HAMCO, the State provided example calculations for a storage tank 
at the Valvoline Oil Company terminal.
    The following summarizes the more detailed information that was 
available to the public for each of the seven categories for which 
negative declarations were documented by the Ohio EPA:
    (1) The applicability cutoff for industrial cleaning solvents is a 
PTE of 100 tons VOC per year, and Ohio EPA has documented that all of 
the industrial cleaning solvent sources have less than 50 tons VOC per 
year of potential emissions;
    (2) Ohio EPA has adequately documented that there are no ship 
building and repair facilities;
    (3) The applicability cutoff for auto refinishing is 100 tons VOC 
per year, and Ohio EPA has documented that all of the auto refinishing 
facilities have potential emissions of less than 25 tons VOC per year 
or have a federally-enforceable Permit to Install (PTIs) limiting 
emissions to less than 25 tons VOC per year;
    (4) The applicability cutoff for aerospace manufacturing and rework 
facilities is a PTE of 25 tons VOC per year, and Ohio EPA has 
documented that all such sources have potential emissions below this 
cutoff or have a federally-enforceable PTI restricting emissions to 
less than 25 TPY;
    (5) The applicability cutoff for VOL storage tanks is 100 tons VOC 
per year, and Ohio EPA has documented that all VOL storage tanks (a) 
are already subject to an existing RACT rule or are below RACT control 
requirement cutoffs; (b) have a federally-enforceable PTI limiting 
actual VOC emissions to below 100 tons per year; or, (c) have a 
potential to emit less than this cut-off;
    (6) The applicability cut-off for offset lithographic printing is 
100 tons VOC per year. Ohio EPA has documented all such sources have 
potential emissions below this cut-off or have a federally-enforceable 
PTI restricting emissions to less than 100 TPY; and,
    (7) The applicability cut-off for automotive plastic parts coating 
is 100 tons VOC per year. Ohio EPA has documented all such sources have 
potential emissions below this cut-off or have a federally-enforceable 
PTI restricting emissions to less than 100 TPY.
    The commenter raises a specific concern with respect to a table in 
the negative declaration for the Industrial Cleaning Solvents source 
category. The commenter claims that because the source cut-off for RACT 
is 100 tpy, the commenter does not understand why the 184.65 tons of 
VOC emissions for coatings does not subject the source to RACT. As 
stated on the referenced table, the 184.65 tpy emission is for 
coatings. These emissions are not part of the cleanup solvent 
emissions,\7\ and, because these emissions are already subject to RACT 
under the EPA-approved State coating rule in OAC rule 3745-21-09, they 
are not non-CTG emissions. Thus, for purposes of whether the source is 
a major source for the industrial cleaning solvents category, those 
emissions are not considered.
---------------------------------------------------------------------------

    \7\ Coatings are materials, such as paint, that are used to coat 
another surface. Solvents are frequently used at coating facilities 
to clean the coating material from the instruments and other 
surfaces that were not intended to be coated.
---------------------------------------------------------------------------

    Comment 3: The negative declarations are substantially out of date, 
e.g. July

[[Page 35953]]

2003 for lithographic printing and October 2003 for aerospace.
    Response 3: The negative declarations are not substantially out of 
date. States must first develop SIP revisions, which are then submitted 
and which EPA must process through rulemaking. Section 110 of the CAA 
provides for up to 18 months for EPA to process a SIP revision. Thus, 
it is not unusual for EPA to be acting on a SIP that has components 
that were adopted and submitted by the State one or two years before 
EPA takes final action on the submission. Furthermore, the rate of 
industrial growth during the past two years is not expected to have 
added any sources above the applicability cutoff for any of the seven 
negative declaration categories.
    As explained by HAMCO, any permit application for the construction 
or modification of a source subsequent to its applicable negative 
declaration letter would have been reviewed by HAMCO and identified if 
its potential to emit or allowable emissions exceeded the RACT 
applicability cutoff for that category. No such permit applications 
were identified by HAMCO since the negative declaration letters were 
submitted by Ohio EPA.
    Furthermore, the commenter did not identify any specific facilities 
in any of the seven negative declaration categories that, subsequent to 
the State's negative declaration letter, have VOC emissions above the 
RACT applicability cutoff.
    Comment 4: Even if the State's estimates of current potential to 
emit were credible, they would not support waiver of RACT requirements 
where the State does not and cannot claim that PTE will be capped at 
current levels. Except for sources with PTE restrictions, sources below 
the RACT applicability cutoffs could increase their emissions above the 
threshold in the future.
    Response 4: As provided in Response 1, above, we believe that 
section 182(b)(2) of the CAA requires that the State adopt RACT rules 
for source categories where there are sources that currently meet the 
applicability threshold for imposition of RACT. In addition, we note, 
as further explained below, that the State has assured EPA that it 
would require RACT-level controls through its permitting process for 
any new source that would have the potential to emit above the 
applicability cut-off or for any existing source that was modified such 
that potential emissions exceeded the applicability cutoff.
    As discussed previously, certain sources in the seven negative 
declaration categories are subject to a source-specific federally 
enforceable permit to install, that limits emissions to below the 
appropriate RACT applicability cutoff for its source category. Any 
change in a permit to install resulting in an increase in emissions 
would be subject to EPA and public review and would require RACT level 
controls if the revised limit exceeds the RACT applicability cutoff.
    Other sources in the seven negative declaration categories have 
permits with allowable emissions below each source's applicability 
cutoff. As stated by HAMCO, if a facility increases its emissions above 
its present allowable emissions level, the definition of modification 
in OAC rule 3745-31-01(PPP) would be triggered. By triggering the 
modification definition, the facility would have to apply for a permit 
to install which requires implementation of best available technology. 
In order to satisfy the requirement of best available technology, Ohio 
EPA would require any facility in one of the seven negative declaration 
categories to meet RACT.
    The remaining sources are exempted by the de minimis levels in OAC 
3745-15-05 and/or exempted from the requirement to obtain a permit to 
install and regulatory requirements in OAC 3745-31-03. The de minimis 
levels are below the RACT applicability cutoffs for all source 
categories. Similarly, any source that increased its emissions above 
the de minimis level would need a permit that would be reviewed by 
HAMCO to determine whether it exceeded a RACT applicability cutoff and, 
if so, the source would be required to comply with best available 
technology by complying with RACT limits.
    Comment 5: EPA's proposed waiver of RACT requirements for 
Cincinnati conflicts with the Agency's anti-backsliding rules for 
implementing the 8-hour ozone standard. The anti-backsliding rules 
expressly list RACT among the applicable requirements that cannot be 
relaxed in 8-hour nonattainment areas, where the same area was 
obligated (due to its 1-hour nonattainment status) to adopt and 
implement RACT at the time of 8-hour designation. The Cincinnati area 
is plainly covered by these provisions with respect to RACT. EPA's 
redesignation proposal would allow the State to waive RACT requirements 
that plainly applied to the area as of its 8-hour designation. Existing 
sources could increase their potential to emit in the future above the 
applicability cutoff, in which case the Act and EPA's anti-backsliding 
rules expect that the source be subject to the CTG control 
requirements.
    Response 5: Section 51.905(a)(1)(i) merely states that the area 
remains subject to the obligation to adopt and implement the applicable 
requirements in section 51.900(f), including RACT, after revocation of 
the 1-hour NAAQS. Therefore, this anti-backsliding provision does not 
add any new control requirements. Under the anti-backsliding 
provisions, if a negative declaration is adequate to meet an area's 
obligation for the 1-hour NAAQS, then the anti-backsliding provisions 
are satisfied. For the reasons provided elsewhere in this notice, we 
have concluded that the State has met the RACT obligation that applied 
for purposes of its 1-hour nonattainment designation and moderate 
classification.

B. Comments Related to The Termination of the Vehicle Inspection and 
Maintenance Programs in the Cincinnati and Dayton Areas

    ALA, et al., submitted extensive comments on our proposal to 
approve the conversion of the vehicle I/M program in the Cincinnati 
area from an active element of the 1-hour ozone SIP to a contingency 
measure in the 1-hour ozone maintenance plan for this area. The comment 
letters also included comments dealing with the termination of the I/M 
programs in the Cincinnati and Dayton areas and the section 110(l) 
demonstrations needed to support these program terminations. Although 
we are not at this time approving termination of the vehicle I/M 
program in either Cincinnati or Dayton for the reasons explained 
further below, these comments are addressed here.
    The summary of comments and responses below also includes comments 
made by the ALA on April 6, 2005, and by the ALA and the Natural 
Resources Defense Council on April 25, 2005. In general, these comments 
are subsumed in the more extensive comments of ALA, et al., dated May 
16, 2005.
    Comment 6: Ohio has not met the criteria that would allow the 
Cincinnati area to be redesignated to attainment of the 1-hour ozone 
standard because, among other things:
    (a) Ohio does not have legal authority to implement an I/M program 
after December 2005; and
    (b) Ohio has not made the required demonstration that removal of 
the I/M program in Cincinnati will not interfere with attainment of the 
8-hour ozone and fine particulates (PM2.5) standards. Ohio 
has made no attempt to make the necessary showing, promising only that

[[Page 35954]]

it will do so, without specifics of any sort.
    Response 6: EPA believes that Ohio has met the necessary criteria 
to allow the Cincinnati area to be redesignated to attainment of the 1-
hour ozone NAAQS. Specifically, section 107(d)(3)(E) of the CAA allows 
for redesignation provided that: (1) The Administrator determines that 
the area has attained the applicable NAAQS; (2) the Administrator has 
fully approved the applicable implementation plan for the area under 
section 110(k) of the CAA; (3) the Administrator determines that the 
improvement in air quality is due to permanent and enforceable 
reductions in emissions resulting from implementation of the applicable 
state implementation plan, applicable Federal air pollution control 
regulations, and other permanent and enforceable emission reductions; 
(4) the Administrator has fully approved a maintenance plan for the 
area as meeting the requirements of section 175A of the CAA; and, (5) 
the State containing such area has met all requirements applicable to 
the area under section 110 and part D of the CAA. As discussed above, 
and in more detail in our April 15, 2004 proposed rule (70 FR 19900), 
we believe that Ohio has met all of these requirements.
    EPA does not believe that Ohio's lack of legal authority to 
implement a vehicle I/M program after 2005 or the lack of a non-
interference demonstration with the attainment of the 8-hour ozone and 
PM2.5 NAAQS has any impact on EPA's ability to approve 
Cincinnati's redesignation request. An implemented vehicle I/M program 
is currently required by the approved SIP and, should Ohio terminate 
the vehicle I/M program without the submittal and EPA approval of a SIP 
revision, it would be in violation of the SIP. Furthermore, the actions 
EPA is taking today are not dependent on Ohio demonstrating that 
removal of the vehicle I/M program in Cincinnati will not interfere 
with the attainment of the 8-hour ozone and fine particulate standard.
    EPA has determined that Ohio's current vehicle I/M authority does 
not satisfy the requirements set forth in 40 CFR 51.372(c) authorizing 
the conversion of Ohio's E-Check program in the Cincinnati and Dayton 
areas to a contingency measure.
    EPA believes that a basic I/M area which is designated 
nonattainment for the 8-hour ozone NAAQS, and which is not required to 
have a vehicle I/M program based on its 8-hour ozone designation, and 
which has been redesignated to attainment for the 1-hour ozone NAAQS 
continues to have the option to move its vehicle I/M program to a 
contingency measure under 40 CFR 51.372(c) as long as the 8-hour 
nonattainment area can demonstrate that doing so will not interfere 
with its ability to comply with any affected NAAQS or any other 
applicable CAA requirement pursuant to section 110(l) of the Act. This 
issue is discussed in more detail in subsequent responses.
    In order to satisfy the requirements outlined in 40 CFR 51.372(c), 
the State's submittal must contain the legal authority to implement a 
basic vehicle I/M program (or enhanced if the State chooses to opt-up) 
that allows the adoption of implementing regulations without requiring 
further legislation. This authority must continue for the full term of 
the maintenance plan.
    Based on EPA's determination regarding legal authority, EPA is not 
approving conversion of Ohio's E-Check program in the Cincinnati and 
Dayton areas to contingency measures in the maintenance plans for these 
areas in today's final action. EPA also reiterates, as noted in the 
proposal, that satisfactory compliance with section 110(l) relating to 
non-interference must be completed before the E-Check program can be 
terminated. Until Ohio makes the required demonstrations with respect 
to legal authority under 40 CFR 51.372(c) and non-interference under 
section 110(l) and EPA approves the conversion of the vehicle I/M 
program to contingency measures in the Cincinnati and Dayton 1-hour 
ozone maintenance plans, an implemented vehicle I/M program will remain 
as an applicable requirement in the SIP for these two areas. EPA fully 
approved Ohio's vehicle I/M program as a revision to the ozone SIP on 
April 4, 1995 (60 FR 16989).
    Today's action does not approve the discontinuation of the vehicle 
I/M program in either the Cincinnati or Dayton area. The State has not 
fully met its demonstration obligations under section 110(l) of the 
CAA, and Ohio must continue to operate the vehicle I/M program in the 
Cincinnati and Dayton areas until all obligations are addressed. 
However, the fact that such a demonstration has not been submitted is 
not germane to today's action regarding satisfaction of requirements 
relative to redesignation under the 1-hour ozone standard.
    EPA believes that Ohio has met the necessary criteria to allow the 
Cincinnati area to be redesignated to attainment of the 1-hour ozone 
NAAQS. In addition, EPA believes that Ohio has made a successful 
demonstration showing continued maintenance of the 1-hour NAAQS. EPA is 
proceeding with final approval of the redesignation of the Ohio portion 
of the Cincinnati-Hamilton area and the area's maintenance plan with 
projected emissions not taking credit for the vehicle I/M program even 
though the SIP provides for continued implementation of the vehicle I/M 
program in the Cincinnati area.
    Comment 7: The need for expeditious attainment of a NAAQS is the 
central principle of title I of the CAA. Cincinnati and Dayton continue 
to have serious air quality problems, as evidenced by their 
nonattainment status for the 8-hour ozone and PM2.5 
standards. EPA promulgated the 8-hour ozone standard because the 1-hour 
ozone standard was insufficient to protect public health. The EPA 
committed through its anti-backsliding policy that the transition 
between the 1-hour ozone standard and the 8-hour ozone standard would 
not lead to compromises in air quality. That is, however, what EPA's 
proposal would do.
    The anti-backsliding provisions applicable to the transition from 
the 1-hour ozone standard to the 8-hour ozone standard prohibit removal 
of the vehicle I/M programs for the Cincinnati and Dayton areas. The 
provisions provide that the requirements that apply to an 8-hour ozone 
nonattainment area are the requirements that applied under the 1-hour 
ozone standard at the time the areas were designated to nonattainment 
of the 8-hour ozone standard. Both Cincinnati and Dayton were 
designated to nonattainment of the 8-hour ozone standard on April 15, 
2004, when vehicle I/M was still required for both areas. Vehicle I/M 
must continue to be implemented in these areas until these areas come 
into attainment with the 8-hour ozone standard.
    Response 7: Although this comment is not specific about which 
action proposed by the EPA in the April 15, 2005 proposed rule is of 
concern, it is assumed here that the commenter is referring to EPA's 
discussion concerning the termination of the vehicle I/M (E-Check) 
programs in the Cincinnati and Dayton areas. See 70 FR 19910.
    On April 30, 2004 (69 FR 23996), the EPA promulgated revisions to 
40 CFR part 51 subpart X to establish provisions for implementation of 
the 8-hour ozone NAAQS. Included in these provisions were sections 
51.900(f), the definition of ``Applicable requirements,'' and 51.905, 
which establishes provisions for the transition between the 1-hour 
ozone NAAQS and the 8-hour ozone NAAQS, including specifying which 
requirements that applied to an area for

[[Page 35955]]

the 1-hour ozone NAAQS remain in place after EPA revokes the 1-hour 
standard (expected to occur for the Cincinnati and Dayton areas on June 
15, 2005). The latter section is subdivided depending on the attainment 
status of an area for both ozone NAAQS (1-hour and 8-hour) on the date 
when the 8-hour ozone designations became effective (June 15, 2004). 
Since the Cincinnati area was designated as a nonattainment area for 
the 1-hour ozone NAAQS when the 8-hour ozone nonattainment designation 
became effective, subsection (a)(1) of section 51.905 applies to the 
Cincinnati area. Since the Dayton area was a maintenance area for the 
1-hour ozone NAAQS on June 15, 2004 and is an 8-hour ozone 
nonattainment area, the transition requirements for this area are 
covered by subsection 51.905(a)(2). Both of these rule subsections 
require these areas to continue to implement all of the applicable 
requirements specified in 51.900(f) that applied to the areas based on 
their 1-hour ozone status as of June 15, 2004. Vehicle I/M is one of 
the listed applicable requirements and both the Cincinnati area and the 
Dayton area were subject to this requirement on June 15, 2004.
    The preamble to the anti-backsliding rule made it clear that any 
applicable requirement that was retained would apply in the same manner 
as it applied for purposes of the 1-hour standard. We specifically 
noted the example of an enhanced vehicle I/M program and stated that, 
while an area classified as serious nonattainment for the 1-hour 
standard would need to retain an enhanced I/M program, it could modify 
such a program consistent with our enhanced I/M regulations. 69 FR 
23972.
    On May 12, 2004, the EPA issued a policy memorandum (``1-Hour Ozone 
Maintenance Plans Containing Basic I/M Programs,'' from Tom Helms, 
Group Leader, Ozone Policy and Strategies Group, Office of Air Quality 
Planning and Standards, and Leila H. Cook, Group Leader, State Measures 
and Conformity Group, Office of Transportation and Air Quality, to Air 
Program Managers) (hereafter referred to as the Helms-Cook memorandum) 
clarifying how our basic I/M regulations applied for purposes of an 
area that was being or had been redesignated to attainment of the 1-
hour ozone NAAQS. This memorandum notes that, for 1-hour ozone 
maintenance areas, special provisions regarding vehicle I/M that were 
published by the EPA on January 5, 1995 (60 FR 1735) continue to define 
the applicable vehicle I/M program. For a 1-hour ozone maintenance area 
subject only to basic vehicle I/M, 40 CFR 51.372(c) provides a 
mechanism for a State to convert a basic vehicle I/M program to a 
contingency measure in the area's maintenance plan. For areas 
designated as nonattainment for the 8-hour ozone NAAQS, application of 
this provision is limited to areas with 8-hour ozone classifications 
that do not trigger the I/M requirement, and this provision only 
applies to areas that were required to adopt basic I/M programs (to 
areas that were classified as moderate or marginal nonattainment under 
the 1-hour ozone NAAQS) and not thus required to have an enhanced 
vehicle I/M program. However, a marginal nonattainment area that opted 
to implement an enhanced vehicle I/M programs can also convert the 
vehicle I/M programs to contingency measures in the 1-hour ozone 
maintenance plans provided they continue to show maintenance of the 1-
hour ozone standard. Finally, the Helms-Cook memorandum notes that, to 
convert a vehicle I/M program to a contingency measure under the 1-hour 
maintenance plan, the State must also demonstrate that such conversion 
will not interfere with the area's ability to comply with any affected 
NAAQS or any other applicable CAA requirement in order to comply with 
section 110(l) of the CAA.
    Under section 110(l) of the CAA, Ohio must demonstrate that 
conversion of the vehicle I/M programs in the Cincinnati and Dayton 
areas to contingency measures in the 1-hour ozone maintenance plans in 
these areas will not interfere with attainment of any NAAQS or with 
compliance with any other CAA requirements, most notably with 
attainment of the 8-hour ozone NAAQS and PM2.5 NAAQS. Until 
Ohio makes the required demonstrations and EPA approves the conversion 
of the vehicle I/M programs to contingency measures in the Cincinnati 
and Dayton 1-hour ozone maintenance plans, the SIP will still require 
implementation of the vehicle I/M program in these areas. As such, at 
this time, no adverse air quality impacts are expected to occur in 
these areas through this process. Thus, the commenters' concerns about 
adverse impacts on air quality relating to the new standards will be 
addressed in future rulemakings should Ohio provide the necessary 
demonstrations.
    Comment 8: Besides ozone reduction benefits, I/M benefits air 
quality for other pollutants, for example, benzene, formaldehyde, 1,3-
butadiene, and fine particulates, PM2.5. It would be short-
sighted to eliminate the I/M programs.
    Response 8: As noted above, we agree that vehicle I/M remains an 
applicable requirement, but we believe that it is consistent with our 
anti-backsliding rule and the vehicle I/M rule to allow a maintenance 
area to move a basic I/M program to the contingency portion of the SIP 
if certain conditions are met. Before we can approve the conversion of 
the vehicle I/M programs to 1-hour ozone contingency measures in the 
Cincinnati and Dayton maintenance plans, Ohio must demonstrate that the 
conversion will not interfere with compliance with all of the 
requirements of the CAA. This demonstration must include a 
demonstration of non-interference with the CAA requirements related to 
air toxics as well as to attainment of all of the NAAQS.
    As noted elsewhere in this final rulemaking, Ohio has not made the 
requisite section 110(l) demonstration. Therefore, we are not approving 
a conversion of the vehicle I/M programs to contingency measures nor 
termination of such programs for the Cincinnati and Dayton areas in 
this final rulemaking.
    Comment 9: In its haste to redesignate the Cincinnati area to 
attainment of the 1-hour ozone standard, the EPA has seemed to have 
missed the essential points: That the ozone redesignation, however 
speedy, does not pave the way for ending the vehicle I/M programs; and, 
that its proposal stands to set Cincinnati and Dayton back on efforts 
to improve air quality.
    Response 9: EPA agrees with the commenter that the redesignation of 
the Cincinnati area to attainment of the 1-hour ozone NAAQS, by itself, 
does not meet the requirements for approving the conversion of the 
vehicle I/M program in the Cincinnati area to a contingency measure in 
the maintenance plan for this area. As noted elsewhere in this final 
rulemaking, Ohio must meet other requirements before EPA can approve 
such a conversion. It is noted, however, that the redesignation of the 
Cincinnati area to attainment of the 1-hour ozone NAAQS does allow Ohio 
to meet one of the crucial requirements for such a conversion as 
detailed here.
    Redesignation of the Cincinnati area to attainment of the 1-hour 
ozone NAAQS makes the Cincinnati area an area for which the approach in 
40 CFR 51.372(c) is available. However, 40 CFR 51.372(c) provides that 
additional elements must first be met, including:
    (1) Legal authority to implement a basic vehicle I/M program 
(enhanced if the State chooses to opt-up) without requiring further 
legislation;
    (2) A request to place the vehicle I/M program/plan into the 
contingency measures portion of the maintenance plan upon 
redesignation; and
    (3) A contingency measure consisting of a commitment by the 
Governor or the Governor's designee to adopt or

[[Page 35956]]

consider adopting regulations to implement a vehicle I/M program to 
correct a violation of the ozone standard (or carbon monoxide standard 
[not applicable for the Cincinnati area]) or other air quality problem 
in accordance with the provisions of the maintenance plan. Although 40 
CFR 51.372(c) refers to redesignation requests and maintenance plans 
for areas that are currently designated as nonattainment areas for 
ozone (in nonattainment of the 1-hour ozone NAAQS), we believe that 40 
CFR 51.372(c) also applies to 1-hour ozone maintenance areas, where the 
State chooses to revise the ozone maintenance plan to include vehicle 
I/M as a contingency measure.
    As noted in the Helms-Cook memorandum, the anti-backsliding 
provisions of 40 CFR 51.905 do not modify the basic vehicle I/M 
program. Thus, the requirements and application of 40 CFR 51.372(c) 
remain in place and available to areas that meet the criteria of that 
rule and also meet the requirements of section 110(l) of the CAA, 
demonstrating that converting the vehicle I/M program to a contingency 
measure will not interfere with the attainment of all affected NAAQS 
and requirements of the CAA.
    The State of Ohio has not complied with the requirements of 40 CFR 
51.372(c) in that the State has not demonstrated that it has the legal 
authority to restart a vehicle I/M program in the Cincinnati area (and 
in the Dayton area) without additional legislation. In addition, the 
State has not made a demonstration under section 110(l) of the CAA that 
the conversion of the vehicle I/M program in the Cincinnati area (and 
in the Dayton area) to a contingency measure will not interfere with 
attainment of the affected NAAQS or with compliance with other 
requirements of the CAA. Therefore, we cannot approve, at this time, 
the State's request to make vehicle I/M a contingency measure in the 
Cincinnati area 1-hour ozone maintenance plan. In addition, we cannot 
approve the State's request to make vehicle I/M a contingency measure 
in the Dayton area 1-hour ozone maintenance plan for the same reason.
    Comment 10: The State of Ohio does not have legal authority to 
implement a vehicle I/M program after December 2005. 40 CFR 51.372(c), 
with respect to redesignation requests, provides:

    Any nonattainment area that EPA determines would otherwise 
qualify for redesignation from nonattainment to attainment shall 
receive full approval of a State Implementation Plan (SIP) submittal 
under Sections 182(a)(2)(B) or 182(b)(4) if the submittal contains 
the following elements:
    (1) Legal authority to implement a basic I/M program * * * as 
required by this subpart. The legislative authority for an I/M 
program shall allow the adoption of implementing regulations without 
requiring further legislation.

    Ohio legislation, in ORC Ann. (Ohio Revised Code Annotated) section 
3704.143(C) provides that:

    Notwithstanding * * * [sections of the Revised Code] that 
require[s] emissions inspections to be conducted * * * upon the 
expiration or termination of all contracts that are in existence on 
September 5, 2001, the director of environmental protection shall 
terminate all motor vehicle inspection and maintenance programs in 
this state and shall not implement a new motor vehicle inspection 
and maintenance program unless this section is repealed and such a 
program is authorized by the general assembly.

    The State has noted, through a press release, that the vehicle I/M 
programs in the Cincinnati and Dayton areas will expire on December 31, 
2005. In addition, in a letter to the EPA, dated April 4, 2005, the 
Ohio EPA acknowledges that:

    Under 3704-14(b), Ohio EPA retains the legislative authority to 
conduct an automobile inspection maintenance program in moderate 
nonattainment areas as part of the attainment or maintenance 
demonstration as well as the contingency portion of the maintenance 
plan. It must be understood, though, the specifics of restarting the 
program should a contingency arise, would involve negotiating a new 
operator contract and obtaining approval from the legislature to 
execute that contract.

    This indicates that the Ohio EPA acknowledges that the State would 
need new legislative authority to restart the I/m program.
    Response 10: As discussed above, EPA has determined that Ohio's 
current vehicle I/M authority does not satisfy the requirements set 
forth in 40 CFR 51.372(c) with respect to redesignation requests.
    Based in part on EPA's determination regarding legal authority, EPA 
is not taking action on the conversion of Ohio's E-Check program in the 
Cincinnati and Dayton areas to contingency measures in this final rule.
    In order to satisfy the requirements outlined in 40 CFR 51.372(c), 
the State will, in part, need to demonstrate that the State has 
sufficient legal authority to implement a vehicle I/M program that 
allows the adoption of implementing regulations without requiring 
further legislation. Until Ohio makes the required demonstrations and 
EPA approves the conversion of the vehicle I/M program to contingency 
measures in the Cincinnati and Dayton 1-hour ozone maintenance plans, 
vehicle I/M will remain as an applicable requirement in the SIP for 
these two areas.
    Comment 11: The State has not made the required demonstration that 
removal of the I/M program in Cincinnati will not interfere with 
attainment of the 8-hour ozone and PM2.5 standards. EPA 
acknowledges this in the April 15, 2005 proposed rule. The non-
interference demonstration is also required for the purposes of the 
redesignation of the Cincinnati area to attainment.
    Section 107(d)(3)(E) of the CAA provides:

    The Administrator may not promulgate a redesignation of a 
nonattainment area * * * to attainment unless * * *
    (ii) The Administrator has fully approved the applicable 
implementation [plan] for the area under section 7410(k) [i.e., 
section 110(k)] of this title * * * and
    (v) The State containing such area has met all requirements 
applicable to the area under section 7410 [i.e., section 110] of 
this title * * *.

    The State has met neither of these requirements. EPA has not 
approved a revised SIP, nor could it without a showing of legal 
authority for an I/M program, which the State cannot make following the 
termination of the program. And, as EPA's proposal concedes, the State 
has not met all applicable requirements under section 110, which 
includes the demonstration required under section 110(l) that removing 
the I/M programs for Cincinnati and Dayton will not interfere with the 
8-hour ozone and PM2.5 standards.
    It is difficult to see how the EPA can argue that either of the 
section 107(d(3)(E) requirements have been met in light of the fact 
that the SIP revision does not qualify for approval on a conditional 
basis. EPA acknowledges that the State has done no more than promise to 
complete the required demonstration without specifics of any sort. The 
Court of Appeals for the District of Columbia Circuit has admonished 
EPA at least twice for conditionally approving SIP revisions that 
contain nothing more than a mere promise to take appropriate but 
unidentified measures in the future. Sierra Club v. EPA, 356 F.3d 296, 
303 (DC Cir. 2004), slip opinion at 10, citing NRDC v. EPA, 22 F.3d 
1125 (DC Cir. 1994).
    Response 11: As we have discussed elsewhere in this final rule, we 
agree with the commenter that Ohio has not made the demonstration that 
conversion of the vehicle I/M programs in the Cincinnati and Dayton 
areas to contingency measures in the maintenance plans will not 
interfere with the attainment of the 8-hour ozone,

[[Page 35957]]

PM2.5, or any other applicable NAAQS in these areas. 
Therefore, we are not approving these conversions in this final rule.
    We disagree with the commenter that this fact leads to the 
conclusion that Ohio has not met the necessary requirements for 
redesignation of the Cincinnati area to attainment of the 1-hour ozone 
NAAQS. As we noted in our April 15, 2004 proposed rule, at 70 FR 19900, 
Ohio has a fully approved SIP under section 110(k) of the CAA, and Ohio 
has met all applicable requirements under section 110 and part D of the 
CAA, including a fully approved vehicle I/M SIP (60 FR 16989, April 4, 
1995). Our discussion in the proposed rulemaking thoroughly documents 
how Ohio has complied with these requirements. Therefore, we are 
approving the ozone redesignation request for the Cincinnati area in 
this final rule. EPA is not conditionally approving this redesignation 
nor the maintenance plan. We are fully approving these SIP revisions, 
with vehicle I/M remaining as an implemented requirement of the 
approved SIP.
    With regard to the vehicle I/M program in the Cincinnati area, this 
remains an applicable requirement for this area under Ohio's SIP. We 
will not approve conversion of the vehicle I/M program to a contingency 
measure until Ohio has made all required demonstrations discussed in 
this final rule and we have approved the State's demonstrations of non-
interference in subsequent rulemaking. Should Ohio fail to make these 
demonstrations, vehicle I/M will remain a fully enforceable requirement 
of the SIP.
    Comment 12: The anti-backsliding provisions applicable to the 
transition from the 1-hour to the 8-hour ozone standard prohibit 
removal of vehicle I/M programs for the Cincinnati and Dayton areas. 
EPA proposes to terminate the vehicle I/M programs for the Cincinnati 
and Dayton areas and to retain I/M only as contingency measures in the 
maintenance plans for these areas. This is not acceptable for the 
following reasons even if the Cincinnati area is redesignated as an 
attainment area for the 1-hour ozone standard:
    (1) The anti-backsliding provisions, 40 CFR 51.900(f) and 51.905, 
are absolutely unambiguous, and provide that the requirements that 
apply to an 8-hour nonattainment area are the requirements that applied 
under the 1-hour standard at the time of designation for the 8-hour 
ozone standard. At the time the Cincinnati and Dayton areas were 
designated as nonattainment for the 8-hour ozone standard, these areas 
were under the requirement to continue implementation of vehicle I/M 
programs;
    (2) EPA argues that 40 CFR 51.372(c) creates an exception to the 
anti-backsliding provisions for I/M purposes. All that 40 CFR 51.372(c) 
does is to allow a nonattainment area to become eligible for 
redesignation if the area's SIP contains certain provisions (including 
legal authority) for I/M. This provision has no bearing on the anti-
backsliding issue in question. Redesignation of the Cincinnati area to 
attainment now has no bearing on the issue because the only date that 
counts for anti-backsliding purposes is the date of designation for the 
8-hour ozone standard; and
    (3) Even if there were some legal justification for removing the 
vehicle I/M programs for the Cincinnati and Dayton areas, Ohio would be 
required to have the legal authority to trigger the programs should the 
need arrive. The State does not have such legal authority.
    Response 12: Since we are not approving the conversion of vehicle 
I/M to a contingency measure, these issues are not relevant here. 
However, for the reasons we have discussed above, we believe that our 
anti-backsliding rule does not modify the basic I/M regulations nor the 
availability of the approach under 40 CFR 51.372(c).
    Comment 13: The anti-backsliding provisions applicable to the 
transition from the 1-hour ozone standard to the 8-hour ozone standard 
are absolutely clear that it would be illegal to remove the I/M 
programs for the Cincinnati and Dayton areas. The anti-backsliding 
provisions applicable to the transition from the 1-hour ozone standard 
to the 8-hour ozone standard are 40 CFR 51.900(f) and 51.905.
    Section 51.900(f) provides that 12 separately enumerated 
requirements are ``applicable requirements'' for an area if they 
applied to the area under the 1-hour standard at the time of the area's 
designation for the 8-hour ozone standard. Vehicle I/M is one of the 12 
enumerated applicable requirements. When the Cincinnati area was 
designated as an 8-hour ozone nonattainment area, vehicle I/M was an 
applicable requirement for this area.
    40 CFR 51.905 provides:

    (a)(1) 8-Hour NAAQS Nonattainment/1-Hour Nonattainment. The 
following requirements apply to an area designated nonattainment for 
the 8-hour NAAQS and designated nonattainment for the 1-hour NAAQS 
at the time of designation for the 8-hour NAAQS for that area.
    (i) The area remains subject to the obligation to adopt and 
implement the applicable requirements as defined in section 
51.900(f), except as provided in paragraph (a)(1)(iii) of this 
section, and except as provided in paragraph (b) this section.

    Paragraph (a)(1)(iii) is not relevant to this issue. Paragraph (b) 
provides:

    A State remains subject to the obligations under paragraphs 
(a)(1)(i) and (a)(2) of this section until the area attains the 8-
hour NAAQS. After the area attains the 8-hour NAAQS, the State may 
request such obligations be shifted to contingency measures * * *.

    Therefore, Cincinnati is required to retain its I/M program until 
it comes into attainment with the 8-hour ozone standard, when the State 
can request that I/M become a contingency measure.
    Unlike Cincinnati, Dayton was a maintenance area for the 1-hour 
ozone standard when this area was designated as an 8-hour ozone 
nonattainment area. At that time, Ohio's SIP required Dayton to 
maintain a basic I/M program.
    40 CFR 51.905 further provides:

    (a)(2) An area designated nonattainment for the 8-hour NAAQS 
that is a maintenance area for the 1-hour NAAQS at the time of 
designation for the 8-hour NAAQS for that area remains subject to 
the obligation to implement the applicable requirements as defined 
in section 51.900(f) to the extent such obligations are required by 
the approved SIP, except as provided in paragraph (b) of this 
section. Applicable measures in the SIP must continue to be 
implemented; however, if these measures were shifted to contingency 
measures prior to designation for the 8-hour NAAQS for the area, 
they may remain as contingency measures * * *.
    Therefore, the conclusion for Dayton is almost the same as for 
Cincinnati. The Dayton area is also required to retain its I/M program 
until it comes into attainment with the 8-hour ozone standard.
    Response 13: Our anti-backsliding rule retains the obligations that 
applied to the area under the CAA, not as the commenter implies, the 
obligations contained in the SIP. The preamble to the final anti-
backsliding rule specifically noted that a state may modify its SIP 
consistent withy the existing relevant regulations. See 69 FR 23972. 40 
CFR 372(c) is part of our existing basic vehicle I/M rule, and it 
remains in place. We interpret this provision to mean that Ohio may 
revise the Cincinnati and Dayton ozone maintenance plans to convert the 
vehicle I/M programs in these areas to contingency measures in the 
ozone maintenance plans provided that Ohio meets the requirements of 40 
CFR 51.372(c) and section 110(l) of the CAA. We are, however, at this 
time not approving the conversion of the vehicle I/M programs to 
contingency measures in the Cincinnati and Dayton areas

[[Page 35958]]

because the State has not made the requisite demonstrations in 
compliance with section 110(l) of the CAA and with 40 CFR 51.372(c).
    Comment 14: Allowing Ohio to drop I/M while the Cincinnati and 
Dayton areas remain in nonattainment with the 8-hour ozone standard 
conflicts with section 172(e) of the CAA, which requires that EPA rules 
``provide for controls which are not less stringent than the controls 
applicable to areas designated nonattainment'' for ozone before 
adoption of the 8-hour standard. Allowing states to drop I/M while 
areas remain in 8-hour nonattainment further conflicts with the stated 
rationale and intent underlying EPA's anti-backsliding rule.
    Response 14: Section 172(e) of the CAA does not apply where EPA has 
promulgated a more stringent NAAQS, as EPA did when it promulgated the 
8-hour ozone NAAQS. As discussed above, since EPA is not approving a 
conversion of the vehicle I/M program to a contingency measure, this 
comment is not relevant for this final action. Additionally, for the 
reasons provided above, EPA believes 40 CFR 51.372(c) remains available 
under the anti-backsliding rules in 40 CFR 51.905. Furthermore, EPA did 
look to section 172(e) when establishing the anti-backsliding 
regulations. These regulations require that areas remain subject to 
their 1-hour ozone nonattainment control obligations once that standard 
no longer applies and thus retain controls at the same level of 
stringency that they applied for purposes of the 1-hour NAAQS. In this 
case that level of control includes the provisions of 40 CFR 51.372(c).
    Comment 15: The EPA understands the preamble to the anti-
backsliding provisions as reflecting the view that, if a SIP could have 
been modified to remove a measure for the purposes of the 1-hour ozone 
NAAQS, it may be removed for 8-hour nonattainment purposes. This 
understanding of the preamble cannot contradict the language of the 
anti-backsliding provisions for at least three reasons:
    (1) The language of the anti-backsliding regulations is 
unambiguous, leaving no room for a directly conflicting interpretation 
in the preamble;
    (2) The language of the preamble itself is ambiguous; and,
    (3) Portions of the preamble are, in fact, entirely consistent with 
the language of the anti-backsliding regulations; in other words, while 
the regulations themselves are unambiguous, the preamble is internally 
consistent.
    Response 15: Since we are not approving the conversion of vehicle 
I/M to a contingency measure, these issues are not relevant here. 
However, we disagree with the commenter. The preamble to the Phase 1 
implementation rule was our contemporaneous interpretation of the Phase 
1 regulations. It clearly states that areas remain subject to the 1-
hour obligations in the same manner it was subject to that obligation 
for the 1-hour standard. See 69 FR 23972. As an example, the preamble 
specifically noted that an area subject to an enhanced I/M program 
could modify its SIP consistent with our enhanced I/M regulations. 
Similarly, as here, an area subject to basic I/M can modify its SIP 
consistent with our basic I/M regulations, which include 40 CFR 
51.372(c).
    The Helms-Cook memorandum explains how 40 CFR 51.372(c) continues 
to apply in light of the anti-backsliding rules and would allow Ohio to 
demonstrate that I/M in the Cincinnati and Dayton areas may be 
converted to contingency measures in the Cincinnati and Dayton ozone 
maintenance plans. As noted elsewhere in this final rule, Ohio must 
make a number of demonstrations in compliance with 40 CFR 51.372(c) and 
section 110(1) of the CAA to successfully support these conversions and 
receive EPA approval.
    Comment 16: 40 CFR 51.372(c) does not create an exception to the 
anti-backsliding provisions for vehicle I/M. EPA has concluded that 40 
CFR 51.372(c), adopted nine years before the adoption of the anti-
backsliding provisions, creates an exception to the anti-backsliding 
provisions for I/M. There is nothing in 40 CFR 51.372(c) to suggest 
this interpretation. 40 CFR 51.372(c) provides:

    Redesignation requests. Any nonattainment area that EPA 
determines would otherwise qualify for redesignation from 
nonattainment to attainment shall receive full approval of a State 
Implementation Plan (SIP) submittal under Sections 182(a)(2)(B) or 
182(b)(4) if the submittal contains the following elements * * *.

    The ``following elements'' refer to a variety of provisions for an 
I/M program, including the necessity of legal authority.
    EPA can redesignate a nonattainment area to an attainment area if 
the SIP makes certain provisions for I/M. This is irrelevant to the 
anti-backsliding issue at hand. What counts for anti-backsliding 
purposes in the context of the transition from the 1-hour ozone 
standard to the 8-hour ozone standard is the area's I/M obligations at 
the time of the 8-hour ozone nonattainment designation. The Cincinnati 
and Dayton areas were obligated to continue the implementation of 
vehicle I/M when these areas were designated to nonattainment for the 
8-hour ozone standard. Therefore, these areas remain obligated to 
implement vehicle I/M programs, even if the Cincinnati area is 
redesignated to attainment of the 1-hour ozone standard.
    Response 16: Since we are not approving the conversion of vehicle 
I/M to a contingency measure, these issues are not relevant here. 
However, although we agree with the commenter that 40 CFR 51.372(c) 
does not create an ``exception'' to the anti-backsliding rules, we 
disagree that the anti-backsliding provisions do not allow Cincinnati 
and Dayton to take advantage of this provision. As provided in previous 
responses, our anti-backsliding rules kept in place our current 
regulations for I/M (and the other ``applicable requirements'' under 40 
CFR 51.900(f)) and that includes 40 CFR 51.372(c). Under the anti-
backsliding rules both Cincinnati and Dayton remain subject to the 
basic I/M requirement and can meet that requirement in any way 
acceptable under our basic I/M regulations.
    Comment 17: Ohio does not have the necessary legal authority to 
maintain vehicle I/M as a contingency measure in Ohio's maintenance 
plan for the Cincinnati and Dayton areas. Ohio needs such legal 
authority to trigger the implementation of I/M if needed as a 
contingency measure in these areas. Such legal authority is a 
prerequisite to the redesignation of the Cincinnati area. It is also a 
requirement for anti-backsliding purposes, for both the Cincinnati and 
Dayton areas. Section 175 of the CAA provides as well:

    Such [contingency] 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 State 
implementation plan for the area before redesignation of the area as 
an attainment area.

    Ohio does not have the necessary legal authority to maintain I/M as 
a contingency measure for the Cincinnati and Dayton areas.
    Response 17: As discussed above, EPA agrees with the comment that 
Ohio does not have sufficient legal authority to implement a vehicle I/
M program in the Cincinnati and Dayton areas after December 2005 
without further legislative action. EPA has determined that Ohio's 
current vehicle I/M authority does not satisfy the requirements set 
forth in 40 CFR

[[Page 35959]]

51.372(c) with respect to redesignation requests. Based on EPA's 
determination regarding legal authority, EPA is not taking action on 
conversion of Ohio's E-Check program in the Cincinnati and Dayton areas 
to contingency measures in this final rule.
    For the reasons provided in earlier responses to comments, we 
believe that Ohio meets the anti-backsliding requirements for 
Cincinnati and Dayton so long as its SIP meets our basic I/M 
regulations. Because we are not approving I/M as a contingency measure, 
the language quoted from section 175A(d) regarding contingency measures 
is not relevant here.
    Comment 18: EPA may not approve a SIP revision eliminating the I/M 
programs in Cincinnati and Dayton until Ohio demonstrates that the 
revision would not interfere with 8-hour ozone and PM2.5 
attainment. Ohio has failed to make the required showing that removing 
the I/M programs from the SIP will not interfere with attainment of the 
8-hour ozone and PM2.5 standards. Both the Cincinnati and 
Dayton areas have been designated as nonattainment for both standards.
    Response 18: As we have discussed elsewhere in this final rule, we 
agree with the commenter that Ohio has not made the demonstration that 
conversion of the vehicle I/M programs in the Cincinnati and Dayton 
areas to contingency measures in the maintenance plans will not 
interfere with the attainment of the 8-hour ozone and PM2.5 
NAAQS in these areas. Therefore, we are not taking action on these 
conversions in this final rule.
    With regard to the vehicle I/M program in the Cincinnati area, the 
State of Ohio remains obligated to implement the vehicle I/M program 
for this area as required in the approved SIP. We will not approve 
conversion of the I/M program to a contingency measure until Ohio has 
made all applicable demonstrations discussed in this final rule. If the 
State makes such a submission, we will undertake subsequent notice and 
comment rulemaking.
    Comment 19: EPA has re-written the law as it applies to non-
interference and, in so doing, has used the transition from the 1-hour 
ozone standard to the 8-hour ozone standard as a basis for weakening 
air quality standards. In the proposed rule, 70 FR 19911, EPA says in 
its proposal for Cincinnati and Dayton:

    In accordance with the Act and EPA redesignation guidance * * * 
states are free to adjust control strategies in the maintenance plan 
as long as they can demonstrate that overall emissions remain below 
the attainment level of emissions.

    In its proposed rule entitled ``Approval and Promulgation of 
Implementation Plans for Kentucky: Inspection and Maintenance Program 
Removal for Jefferson County, KY; Source Specific Nitrogen Oxides 
Emission Rate for Kosmos Cement Kiln,'' 70 FR 53, January 3, 2005, the 
EPA explains:

    [A] strict interpretation of the requirement in section 110(l) 
of the Act would allow EPA to approve a SIP revision removing a SIP 
requirement only after determining based on a completed attainment 
demonstration that it would not interfere with applicable 
requirements concerning attainment and reasonable further progress.

    EPA continues with the observation that the strict interpretation 
would prevent changes to SIP control measures before areas are required 
to submit attainment demonstrations for the new NAAQS, at a time when 
it is unknown what suite of control measures are needed for a given 
area to attain these standards. EPA concludes that states should be 
allowed to substitute equivalent emission reductions to compensate for 
the control measure being removed as long as the actual emissions in 
the area are not increased, 70 FR 57.
    This line of reasoning is unlawful and arbitrary for a number of 
reasons. First, the construction that EPA characterizes as ``strict'' 
is in fact the only one that is consistent with both the plain language 
of the statute and common sense. Second, the fact that a plain reading 
of section 110(l) of the CAA prevents removal of a SIP requirement 
prior to a complete attainment demonstration is the very reason for the 
existence of both anti-backsliding and non-interference requirements. 
Third, EPA's reference to changes in the SIP when the exact control 
measures that will be required to attain the new NAAQS are unknown is a 
point well taken. It is unlawful, arbitrary, and capricious to 
eliminate effective control measures from the SIP when the State has 
not shown that these measures will not be needed for timely progress 
toward and timely attainment of the new standards. The State has not 
shown that control measures apart from I/M are available to meet all of 
the emission reductions that will be required. Finally, the EPA 
proposal for Ohio refers to ``EPA redesignation guidance,'' as does the 
Helms/Cook memo referenced in the anti-backsliding context:

    EPA is currently developing guidance on what areas need to 
include in a section 110(l) demonstration of non-interference.

    The redesignation guidance has not yet been published. Thus, states 
with 8-hour and PM2.5 nonattainment areas are being allowed 
to remove effective control programs from their SIPs, which were 
required for the purposes of the 1-hour standard, at a time when the 
guidance applicable to attainment of the new standards has not been 
provided.
    The 8-hour ozone standard was promulgated because the 1-hour ozone 
standard is insufficiently protective of human health. The transition 
between these standards should not provide an opportunity to weaken air 
quality standards.
    Response 19: EPA is the Agency responsible for implementing the CAA 
and is accorded deference in interpreting ambiguous provisions of the 
CAA when it does so through notice and comment rulemaking. Through the 
April 15, 2005, proposed rule (70 FR 19895), EPA sought public comment 
on its current interpretation of section 110(l) of the CAA. EPA has 
evaluated the comments and continues to believe its interpretation to 
be reasonable. Section 110(l) of the CAA requires the State to 
demonstrate that the removal of an emissions control measure from the 
SIP will not interfere with the attainment of any NAAQS or with 
compliance with any other requirement of the CAA. EPA believes the 
appropriate interpretation of this section would allow states to 
substitute equivalent (or greater) emission reductions to compensate 
for the removal of emission control measures from the SIPs. As long as 
actual emissions in the air are not increased, EPA believes that 
equivalent (or greater) emissions reductions would be acceptable to 
demonstrate non-interference because ambient air quality levels will 
not change. EPA does not believe that areas must wait to produce a 
complete attainment demonstration (or be required to produce one when 
not otherwise required based on the area's classification) to make any 
revisions to the SIP, provided the status quo air quality is preserved 
(emissions will not be allowed to increase in an area through the 
removal of an emissions control from the SIP). EPA believes such an 
approach will not interfere with an area's ability to develop a timely 
attainment demonstration. A state seeking to remove an emission control 
requirement from the SIP would not be granted an extension for 
attainment of NAAQS as a result of such an action. Although EPA 
believes this interpretation to be reasonable, we are not taking final 
action invoking the use of this interpretation in this final action 
because, as noted elsewhere in this final

[[Page 35960]]

rulemaking, we are not acting on a section 110(l) demonstration of non-
interference at this time.

D. Comments Received After the Close of the Comment Period

    On June 9, 2005, a commenter submitted late comments. 
Notwithstanding the facts that the comments were submitted more than 
three weeks after the close of the comment period and that EPA is not 
obligated to take into account or respond to such late comments, EPA is 
responding to the comments in this notice.
    Comment 20: The commenter contends that EPA may not redesignate the 
Cincinnati area as attainment because Ohio did not prove that its 
maintenance plan for the Cincinnati area will not interfere with 
attainment of the 8-hour ozone standard and because ``the nature of 
non-interference, which requires states to prove a negative, means that 
not only was Ohio required to demonstrate that the control measures in 
its SIP would not interfere with attainment of the PM2.5 and 
8-hour ozone standards, but also that additional control measures are 
not necessary to prevent interference with attainment of the 
PM2.5 and 8-hour ozone standards.''
    Response 20: EPA believes that the commenter misunderstands the 
nature of section 110(l). The commenter appears to contend that, even 
though the maintenance plan for Cincinnati does not relax any existing 
control measures, the State must somehow demonstrate that additional 
control measures are not necessary to prevent interference with 
attainment of the PM2.5 and 8-hour ozone standards. EPA does 
not believe that approving a maintenance plan containing existing 
control measures that the State has demonstrated will provide emission 
reductions sufficient to maintain the 1-hour ozone standard can in any 
way interfere with Ohio's obligations under the PM2.5 and 8-
hour ozone standards for Cincinnati. EPA is not approving any 
relaxation of the existing control measures so emissions of VOC and 
NOX will not increase as a consequence of this action. 
Morevoer, Ohio will still have to meet whatever obligations it may have 
regarding the implementation of the new standards and determining that 
existing control measures will provide for maintenance of the 1-hour 
standard does not impair nor interfere with the state's obligations 
regarding the new standards. EPA does not believe that section 110(l) 
transforms this redesignation action into an obligation for the state 
to comply with its SIP obligations for the new standards earlier than 
otherwise required, which is the implication of the assertion that this 
action cannot proceed without a demonstration that additional control 
measures are not necessary to prevent interference with attainment of 
the PM2.5 and 8-hour ozone standards. Moreover, the 
commenter does not present any evidence or even assert that there is 
anything about any of the control measures contained in the maintenance 
plan that would somehow interfere with PM2.5, 8-hour ozone 
attainment, or other requirements. EPA does not believe that approval 
of this maintenance plan would interfere with the 8-hour ozone or 
PM2.5 attainment or other obligations applicable to the 
Cincinnati area. As Cincinnati's ability to implement those standards 
would be the same if this redesignation were not occurring, approval of 
the maintenance plan cannot interfere with the requirements applicable 
for those standards.
    Comment 21: The commenter also asserts that the redesignation may 
not occur because Ohio has not met the section 110(a)(2)(D) requirement 
concerning interstate transport. It cites EPA's recent finding of 
failure to submit regarding the section 110(a)(2)(D) requirement.
    Response 21: EPA's recent finding concerning section 110(a)(2)(D) 
concerned SIPs for the 8-hour ozone and PM2.5 standards. It 
did not concern the 1-hour ozone standard, the standard pertinent for 
this redesignation to attainment for the 1-hour ozone standard. 
Consequently, EPA's recent finding is simply irrelevant for the 
standard at issue in this redesignation. (EPA notes that Ohio has 
complied with section 110(a)(2)(D) for the 1-hour ozone standard by 
virtue of having received EPA approval of its SIP to address the 
NOX SIP Call. See 68 FR 46089 (August 5, 2003))
    Furthermore, even if the recent finding of failure to submit a 
section 110(a)(2)(D) SIP had been for a pertinent standard, it would 
still not prevent redesignation of the area. EPA has repeatedly 
interpreted such SIP requirements as not being applicable requirements 
for purposes of a redesignation since the states remain obligated to 
make such submissions even after redesignation to attainment, i.e., 
they remain applicable requirements notwithstanding the redesignation. 
See 65 FR37879, 37890 (June 19, 2000) (Cincinnati redesignation), 66 FR 
53097, 53099 (October 19, 2001) (Pittsburgh redesignation), 68 FR 
25418, 25426-27 (May 12, 2003) (St. Louis redesignation).
    Comment 22: The same commenter also contends that EPA may not 
redesignate the Cincinnati area as attainment since the State has 
failed to meet all applicable part D requirements ``because Ohio does 
not have legal authority for the I/M program until it is no longer 
necessary.'' The commenter contends that EPA requires that states have 
legal ``authority for I/M program operation until such time as it is no 
longer necessary (i.e., until a Section 175 maintenance plan without an 
I/M program is approved by EPA).'' 40 CFR 51.372(a)(6). According to 
the commenter, this requirement is not met since the legislative 
authorization for the I/M program expires at the end of 2005 while Ohio 
is currently required to have legislative authority passed the end of 
2005.
    Response 22: EPA believes that it may approve the redesignation at 
this time because Ohio has a fully approved I/M program for the 
Cincinnati area with legal authority. As noted previously, the existing 
federally enforceable SIP includes a fully approved I/M program. Should 
Ohio fail to reauthorize this program or otherwise terminate the 
program prior to receiving EPA approval of a subsequent SIP revision 
that satisfies section 110(l) then Ohio would be in violation of the 
federally approved SIP and subject to potential enforcement and 
sanctions. Furthermore, since the new maintenance plan for Cincinnati 
demonstrates that the area can maintain the 1-hour ozone standard for 
the requisite 10 years without the I/M program, even though the I/M 
program currently remains an enforceable part of the Ohio SIP EPA is in 
fact today approving a section 175 maintenance demonstration without an 
I/M program. Therefore, EPA believes that the legislative authority of 
the current I/M program is in fact sufficient to support the 
maintenance plan, although as previously noted it is not sufficient to 
satisfy 40 CFR 51.372(c). Thus, although EPA concludes that it could 
not at this time approve termination of the I/M program nor conversion 
of the I/M program to a contingency measure, EPA believes that it can 
approve the maintenance plan and redesignation of the area consistent 
with the requirements of section 175 and 40 CFR 51.372(a)(6).

VI. Did Ohio Adopt All Of the Volatile Organic Compound Emission 
Control Regulations Needed To Comply With the Reasonably Available 
Control Technology Requirements of the Clean Air Act?

    Since the Cincinnati area is nonattainment for the 1-hour ozone

[[Page 35961]]

NAAQS, Ohio is required to ensure that all major VOC sources and all 
VOC sources that meet the applicability criteria in any of EPA's 
Control Technique Guideline (CTG) documents in the Cincinnati area are 
subject to RACT regulations. In prior SIP approval actions, EPA 
approved into the SIP Ohio's VOC RACT regulations covering all pre-1990 
CTG categories and ``non-CTG'' RACT for most categories of major VOC 
sources. Today, EPA is acting on RACT rules and negative declarations 
for the remaining CTG categories and for remaining non-CTG RACT 
sources.
    To qualify for a redesignation of the Cincinnati area to attainment 
of the 1-hour ozone NAAQS, Ohio was required to fully comply with the 
RACT requirement of section 182(b)(2) of the CAA. An analysis of how 
this RACT requirement is satisfied for these additional source 
categories (source categories in addition to those covered by VOC 
emission control regulations that had been previously approved into the 
SIP) is presented on a category-by-category basis below.
    New VOC RACT regulations were required for any facilities exceeding 
the applicability criteria specified in the Synthetic Organic Chemical 
Manufacturing Industry (SOCMI) Reactor/Distillation, Wood Furniture 
Manufacturing, Ship Building and Ship Repair and Aerospace 
Manufacturing CTG documents. For the other source categories (i.e., 
non-CTG categories including bakeries), VOC RACT regulations were 
required if a facility in the Cincinnati area has the potential to emit 
greater than 100 tons VOC per year of non-CTG VOC emissions. A facility 
is not subject to RACT if it is subject to federally enforceable 
operating and/or production restrictions limiting the facility 
emissions to a level below the applicable cutoff (e.g., for non-CTG 
RACT to less than 100 tons per year of non-CTG emissions).

A. Source Categories Not Requiring New VOC Regulations

    The following VOC source categories do not require any additional 
regulations because there are no sources in the Cincinnati area that 
exceed the CTG or non-CTG applicability criteria; there are no major 
sources in the category; and/or any such sources are subject to 
federally enforceable operating and/or production restrictions limiting 
the facility's VOC emissions to less than the applicable cutoff. Non-
CTG emissions include emissions from source categories for which there 
is not a CTG document and also unregulated emissions from source 
categories covered by a CTG category. PTE emissions are the emissions 
at maximum production levels and 8760 hours per year and represent the 
maximum emissions that can occur without a modification.
1. Industrial Cleaning Solvents
    On May 23, 2003, the Ohio EPA submitted to EPA a Negative 
Declaration letter for Industrial Cleaning Solvents, which adequately 
documented that there are no sources in this category in the Ohio 
portion of the Cincinnati-Hamilton area with non-CTG potential 
emissions of equal to or greater than 100 tons VOC/year.
    Ohio EPA made a thorough search to ensure that it considered all 
sources with solvent clean-up emissions. This included looking at the 
Standard Industrial Classification (SIC) Manual, the local Yellow 
Pages, a database associated with the Ohio EPA permitting system, as 
well as information from several trade associations and web sites. 
Based on that review, 122 facilities were identified that are normally 
associated with solvent clean-up emissions. None of these facilities 
were found to have solvent clean-up potential VOC emissions of over 50 
Tons Per Year (TPY), and there are no facilities with solvent cleaning 
operations that have combined non-CTG potential VOC emissions of 100 
TPY or more. EPA reviewed the negative declaration submitted by the 
State and concluded that Ohio EPA has adequately documented that there 
are no major non-CTG sources with potential emissions of 100 TPY or 
more and, therefore, there are no sources in this category in the 
Cincinnati area with emissions that are subject to RACT for this source 
category.
2. Shipbuilding and Ship Repair Industry
    On May 23, 2003, the Ohio EPA submitted to EPA a Negative 
Declaration letter for the Ship Building and Ship Repair Industry which 
adequately documented that there are no sources for this CTG category 
in the Ohio portion of the Cincinnati-Hamilton area.
    Ohio EPA made a thorough search to determine whether any ship 
building or ship repair facilities were located within the Cincinnati 
area. This included reviewing the Ohio EPA air pollution control 
permitting system, contacting the local office of the United States 
Coast Guard, reviewing ship building trade association information 
identified on the web and, in addition, the Harris Directory, which 
provides SIC information for more than 800,000 companies across the 
country, was investigated for those categories related to ship building 
and repair. None of the above sources of information resulted in the 
identification of any ship building and repair facilities. In addition, 
staff from the Hamilton County Department of Environmental Services 
confirmed that there are no military or commercial ship building and 
repair operations along the Ohio River, the only plausible location for 
such operations in the ozone nonattainment area. EPA reviewed the 
negative declaration and concludes that Ohio EPA has adequately 
documented that there are no ship building and repair facilities 
located in the Ohio portion of the Cincinnati-Hamilton area.
3. Automobile Refinishing
    On May 23, 2003 the Ohio EPA submitted to EPA a Negative 
Declaration letter for Automobile Refinishing which adequately 
documented that there are no automobile refinishing major sources (also 
referred to as auto body shops)in the Ohio portion of the Cincinnati-
Hamilton area with non-CTG potential VOC emissions of equal to or 
greater than 100 tons/year.
    In order to determine whether there were any major automobile 
refinishing sources within the Cincinnati area, Ohio EPA searched the 
SIC Code Manual for automobile refinishing in conjunction with the 
Harris Directory, the local and business to business Yellow Pages for 
automobile refinishing companies, the Ohio EPA permitting system, and 
Ohio EPA's Small Business Assistance Program. After reviewing all of 
the above sources of information, 142 automobile refinishing facilities 
were identified. Of the 142 facilities, 103 are each subject to a 
federally enforceable Permit to Install which limits VOC emissions to 
less than 25 tons/year. A review of each of the remaining 39 facilities 
established that the potential VOC emissions from each of them was less 
than 25 tons VOC/year. EPA reviewed the negative declaration and 
concludes that Ohio EPA has adequately documented that there are no 
automobile refinishing facilities with potential emissions of 100 TPY 
or more and, therefore, there are no such facilities for which a RACT 
rule is required.
4. Aerospace Manufacturing and Rework Facilities
    On October 14, 2003, the Ohio EPA submitted to EPA a Negative 
Declaration letter for Aerospace Manufacturing and Rework Facilities 
which adequately documented that there are no major sources (sources 
with potential emissions equal to or greater than 25

[[Page 35962]]

tons VOC/year for this source category) in the Cincinnati area.
    Ohio EPA made a thorough search to determine what aerospace 
manufacturing and/or rework facilities were located within the 
Cincinnati area. Ohio EPA searched the Ohio EPA permitting system, the 
local and business Yellow Pages for aerospace manufacturing and rework 
facilities, they utilized the web and found a number of trade 
associations, and used the Harris Directory, which provides SIC 
information for more than 800,000 companies across the country.
    After reviewing all of the above sources of information, Ohio EPA 
identified 22 facilities in the Cincinnati area that are generally 
associated with aerospace manufacturing and rework operations. These 22 
facilities are listed in a table attached to the October 14, 2003, 
letter. In reviewing the status of those 22 facilities, it was 
determined that 14 facilities do not have aerospace manufacturing or 
rework operations. Two facilities, CTL Aerospace and Gayston 
Corporation have federally enforceable Permits to Install which limit 
the allowable VOC emissions to less than 25 TPY for each facility. One 
facility has shut down all coating operations. The individual files 
were reviewed for the remaining 5 facilities and it was determined that 
the potential VOC emissions for operations subject to the CTG were less 
than 25 TPY at each of the facilities. EPA reviewed the negative 
declaration submitted by the State and concludes Ohio EPA has 
adequately documented that there are no aerospace manufacturing and 
rework operations located in the Ohio portion of the Cincinnati-
Hamilton area with potential emissions that exceed the applicability 
criteria for this CTG category and therefore there are no such 
facilities for which a RACT regulation is needed.
5. Volatile Organic Liquid Storage Tanks
    On January 27, 2004, the Ohio EPA submitted to EPA a Negative 
Declaration letter for volatile organic liquid (VOL) storage tanks, 
which adequately documented that there are no sources in this category 
in the Ohio portion of the Cincinnati-Hamilton area with potential non-
CTG emissions of 100 TPY that are not already subject to RACT level 
controls on their VOL storage tanks. Ohio EPA performed the following 
searches to identify all VOL storage tanks in the Cincinnati ozone 
nonattainment area. Ohio EPA checked the Harris Directory for those 
SICs which may have VOL storage tanks. They also checked the local 
Yellow and business Yellow Pages for petroleum, oils and solvent 
storage facilities, their permitting system for storage tanks and on 
the web, information was obtained from several trade associations.
    Ohio EPA identified 151 facilities in the four county Cincinnati 
area with a total of 1363 storage tanks of various sizes, that 
contained materials having a wide range of vapor pressures. Only VOL 
storage tanks with a capacity of greater than 40,000 gallons and 
storing material with a vapor pressure greater than 0.5 pounds per 
square inch absolute (psia) are subject to RACT controls. Of those 151 
facilities, only 12 were potentially subject to RACT because total 
potential non-CTG emissions from the facility were above 100 TPY. 
However, 7 of those facilities have no storage tanks with a capacity 
greater than 40,000 gallons and storing a material with a vapor 
pressure greater than 0.5 pounds psia. Thus, those facilities had no 
tanks required to have RACT-level controls. As documented in Ohio EPA's 
January 27, 2004 letter, one facility is subject to a federally 
enforceable Permit to Install limiting facility emissions to less than 
100 tons per year. At the remaining four facilities, the storage tanks 
over 40,000 gallons and with a vapor pressure greater than 0.5 pounds 
psia are subject to either existing petroleum liquid RACT control 
requirements or National Emission Standards for Hazardous Air Pollutant 
(NESHAP) regulations with control requirements that are at least as 
stringent as RACT. EPA reviewed the negative declaration submitted by 
the State and concludes Ohio EPA has adequately documented that, except 
for the four adequately controlled facilities described above, there 
are no major non-CTG sources with potential emissions of 100 TPY or 
more and VOL storage tanks over 40,000 gallons and with a vapor 
pressure greater than 0.5 pounds psia. Therefore, there are no VOL 
storage tanks in the Cincinnati-Hamilton area for which a RACT 
regulation is necessary.
6. Lithographic Printing
    On July 31, 2003, the Ohio EPA submitted to EPA a Negative 
Declaration letter for Lithographic Printing, which adequately 
documented that there are no major lithographic printing sources 
(sources with potential emissions equal to or greater than 100 tons per 
year for this source category) in the Cincinnati area.
    Ohio EPA made a thorough search to determine what lithographic 
printing facilities were located in the Cincinnati area. Ohio EPA 
searched their permitting system, the local and business Yellow Pages 
for Lithographic printing, utilized the web and reviewed trade 
association information, used the Small Business Assistance program, 
and also used the Harris Directory, which provides SIC information for 
more than 800,000 companies.
    After reviewing the above sources of information, Ohio EPA 
determined that there are seven facilities which perform web offset 
lithographic printing. The potential to emit for three of these 
facilities is less than 12 tons of VOC per year. The other four 
facilities have federally enforceable Permits to Install limiting 
emissions to less than 100 tons per year for each facility. EPA 
reviewed the negative declaration submitted by the State and concludes 
that Ohio EPA has adequately documented that there are no lithographic 
printing facilities in the Cincinnati area for which a RACT regulation 
is needed.
7. Plastic Parts Coating
    On March 31, 2005, the Ohio EPA submitted to EPA a Negative 
Declaration letter for the coating of Automotive Plastic Parts, which 
adequately documented that there are no major automotive plastic parts 
coating sources (sources with potential VOC emissions equal to or 
greater than 100 tons per year for this source category) in the 
Cincinnati area.
    Ohio EPA made a thorough search to determine what automotive 
plastic parts coating facilities were located in the Cincinnati area. 
Ohio EPA searched their permitting system, the local and business 
Yellow Pages for automotive plastic parts coating, utilized the web and 
reviewed trade association information, used the small business 
assistance program, and also used the Harris Directory which provides 
SIC information on more than 800,000 companies.
    After reviewing the above sources of information, Ohio EPA 
determined that there are three facilities which coat automotive 
plastic parts in the Cincinnati area. The potential to emit for one of 
these facilities is less than 10 tons VOC per year, and the other two 
automotive plastic parts coating facilities have federally enforceable 
Permits to Install limiting emissions to less than 100 tons per year 
for each facility. EPA reviewed the negative declaration submitted by 
the State and concludes that Ohio EPA has adequately documented that 
there are no automotive plastic parts coating facilities with potential 
emissions of 100 TPY or more in the Cincinnati area. Therefore, there 
are no automotive plastic parts coating facilities for which a RACT 
rule is required.

[[Page 35963]]

B. Source Categories for Which VOC RACT Regulations Have Been Proposed 
and Adopted

    On March 8, 2005, Ohio EPA requested that EPA parallel process VOC 
regulations for five source categories that are discussed below. 
Parallel processing includes proposing action (by EPA) on draft rules 
submitted by the State with EPA's final rulemaking taking place 
subsequent to the State rules being finally adopted. Subsequent to 
submittal of their draft rules on March 8, 2005, Ohio EPA agreed to 
make some revisions to their rules, at EPA's request, so that they are 
consistent with EPA VOC RACT requirements and, therefore, approvable. 
Ohio's final rules incorporate these (and no other substantive) changes 
and represent RACT. The following discussion of the five VOC rules that 
EPA is approving includes a discussion of the changes made by Ohio EPA.
    The RACT rules for these five categories were adopted by Ohio on 
May 16, 2005 and became effective on May 27, 2005.
1. Bakeries
    On March 8, 2005, Ohio EPA submitted draft rule 3745-21-12 
``Control of Volatile Organic Compound Emissions from Commercial Bakery 
Oven Facilities'' and the accompanying definitions in 37-45-21-01(U). 
This draft rule applies to any commercial bakery oven facility in the 
Cincinnati ozone nonattainment area with a potential VOC emissions 
equal to or greater than 100 tons per year. Each bakery oven subject to 
these control requirements must install and operate a VOC emission 
control system with an overall control efficiency of at least 95 
percent by weight. A bakery oven is exempted from the control 
requirements of this rule if, as established by the recordkeeping 
requirements in this rule, it has annual VOC emissions of less than 
25.0 tons and average daily VOC emissions of less than 192 pounds. This 
is consistent with the exemption levels that were approved by EPA in 
the Maricopa County (Arizona) bakery rule. This rule contains a 
calculation procedure to determine uncontrolled potential to emit, a 
requirement to achieve compliance within 12 months, as well as 
compliance testing requirements, monitoring and inspection 
requirements, and recordkeeping and reporting requirements. At EPA's 
request, Ohio EPA deleted the last sentence in the draft definition of 
``Commercial bakery oven facility'' which improperly exempts 
establishments that produce bakery products primarily for direct sale 
on the premises to household consumers and that utilize only batch 
bakery ovens. This adopted rule, with the revised definition, is 
consistent with RACT and is, therefore, being approved.
2. Batch Processes
    On March 8, 2005, Ohio EPA submitted draft rule 3745-21-14 
``Control of Volatile Organic Compound Emissions from Process Vents in 
Batch Operations'' and the accompanying definitions in 3745-21-01(W). 
This draft rule applies to any batch process train for a variety of 
chemical manufacturing operations at facilities in the Cincinnati area 
with over 100 tons per year of potential VOC emissions. A batch 
operation is a non-continuous operation in which chemicals are added to 
the process in discrete intervals as opposed to on a continuous basis. 
A batch process train is a collection of equipment (e.g., reactors, 
filters, distillation columns, extractors, crystallizers, blend tanks, 
neutralizer tanks, digesters, surge tanks and product separators) 
configured to produce a specific product or intermediate by a batch 
operation.
    Exempted from the VOC control requirements of this rule are any 
unit operation with uncontrolled annual VOC emissions of less than 500 
pounds per year and any batch process train containing process vents 
that have, in the aggregate, uncontrolled total annual mass emissions 
of less than 30,000 pounds per year.
    For those process vents of batch process trains and unit operations 
within batch process trains subject to the control requirements of this 
rule, compliance can be achieved by: (1) Reducing uncontrolled VOC 
emissions by an overall efficiency of at least 90 percent, or to 20 
parts per million volume, per batch cycle; (2) using a boiler or 
process heater to comply with the above by requiring that the vent 
stream be introduced into the flame zone of the boiler or process 
heater; or (3) using a flare, provided that it meets Ohio's approved 
flare requirements in 3745-21-09(DD)(10)(d). In addition, suitable 
recordkeeping, reporting, and test methods have been included.
    Compliance with these control requirements is required within 12 
months of the effective date of this rule. In order to eliminate 
ambiguity in 3714-21-14(A)(4), which deals with compliance deadlines, 
Ohio EPA eliminated (at EPA's request) the last sentence in 3714-21-
14(A)(4) and added ``1990'' after baseline year in order to specify the 
year after which actual emissions could not have exceeded 100 tons per 
year of VOC to make the source eligible for avoiding applicability to 
the batch rule by restricting emissions to less than 100 tons VOC per 
year through federally enforceable operating restrictions.
    This adopted batch rule is consistent with EPA VOC RACT guidance 
and is, therefore, being approved.
3. Industrial Wastewater
    On March 8, 2005, Ohio EPA submitted draft rule 3745-21-16 
``Control of Volatile Organic Compound Emissions from Industrial 
Wastewater'' and the accompanying definitions in 3745-21-01(Y). This 
draft rule applies to facilities in the Cincinnati area with the 
potential to emit over 100 tons VOC per year and that have operations 
in one of several industrial categories, such as organic chemicals, 
pesticides and pharmaceutical manufacturing, and that generate process 
wastewater.
    The proposed industrial wastewater rule contains the following 
control requirements: Each individual drain system shall be covered 
and, if vented, be routed through a closed vent system to an emissions 
control device, or each drain shall be equipped with water seal 
controls or a tightly fitting cap or plug; each surface impoundment 
that receives, manages or treats an affected VOC wastewater stream must 
be equipped with a cover and a closed-vent system which routes the VOC 
vapors to an emissions control device or the surface impoundment must 
be equipped with a floating flexible membrane cover; each oil-water 
separator shall be equipped with a fixed roof and a closed vent system 
that routes the vapors to an emissions control device or a floating 
roof; each portable container must be covered; each wastewater tank 
shall have a fixed roof and a closed-vent system that routes the VOC 
vapors to a control device, a fixed roof and an internal floating roof, 
or an external floating roof; and each treatment process must meet the 
applicable requirements described above along with other requirements, 
such as venting the gases from the treatment process to an emissions 
control device designed and operated to reduce wastewater VOC emissions 
by 90%. There is also an alternative control option requiring EPA 
approval.
    There are inspection and monitoring requirements, a list of 
approved test methods, recordkeeping requirements, and a requirement 
that compliance be achieved within 12 months from the effective date of 
the rule.
    At EPA's request, Ohio EPA made the following agreed upon changes 
to its draft rule: It revised the definition of

[[Page 35964]]

``Affected VOC'' in 3745-21-01(Y)(3) to ``means VOC with a Henry's Law 
Constant greater than * * *,'' because VOCs with a higher Henry's Law 
Constant have a greater potential to be emitted; in order to eliminate 
ambiguity in 3745-21-16(A)(4) it deleted the last sentence in this 
section; Ohio EPA added ``1990'' before ``baseline year'' (for the 
reason described in the prior section); and deleted the phrase ``or 
(D)(8)''from 3745-21-16(D)(1), as (D)(8) is a control option for 
treatment processes and was not intended to be an alternative to the 
control requirements in (D)(3) through (D)(7). The adopted rule is 
consistent with RACT and is being approved.
4. SOCMI Reactors/Distillation Units
    On March 8, 2005, Ohio EPA submitted draft rule 3745-21-13 
``Control of Volatile Organic Compound Emissions from Reactors and 
Distillation Units Employed in SOCMI Chemical Production'' and the 
accompanying definitions in 3745-21-01(V). This rule applies to any 
reactor or distillation unit within a process unit that produces a 
SOCMI chemical and that is located in the Cincinnati area. Any reactor 
or distillation unit in a process unit with a design capacity of less 
than 1,100 tons per year of chemicals produced is (consistent with the 
CTG) exempt from the control requirements of this rule. This rule also 
exempts any reactor or distillation unit that is regulated by either of 
two of Ohio's existing VOC RACT rules or three new source performance 
standards, each of which have federally enforceable control 
requirements that are at least as stringent as the control requirements 
for this SOCMI rule. Each process vent is classified according to 
characteristics of the process vent stream (VOC concentration, flow 
rate, and the total resource effectiveness (TRE))prior to a control 
device. The TRE is a cost-effectiveness tool established by EPA to 
determine if the annual cost of controlling a gas stream is reasonable 
based on the emission reduction that can be achieved by a combustion-
type emissions control device.
    One of the following controls is required for those process vents 
for which control is required: Discharge to a properly operating flare; 
discharge to the flame zone of a boiler or process heater with a heat 
input capacity of over 150 million BTU per hour; discharge to a boiler 
or process heater as the primary fuel or with the primary fuel; 
discharge to a control device that reduces VOC emissions by at least 98 
percent or emits VOC at a concentration less than 20 ppmv; achieve and 
maintain a TRE index value greater than 1.0 (for which no additional 
control is warranted); or discharge to an existing combustion device 
with a 90 percent emission reduction efficiency.
    Compliance is required within 12 months of the effective date of 
the rule. This rule also includes compliance testing, TRE determination 
testing and monitoring requirements, as well as recordkeeping and 
reporting requirements.
    At EPA's request, Ohio EPA revised 3714-21-13(A)(2) and added a new 
(A)(3) that specifies that sources exempt from the requirements of the 
SOCMI rule because they are subject to another rule must be subject to 
the limits of such other rule. Ohio EPA also deleted (F)(1)(f), which 
allows emission reduction credit for a recovery device that is part of 
the process.
    With the revisions made by Ohio EPA this adopted rule is consistent 
with EPA RACT guidance and is being approved.
5. Wood Furniture Manufacturing
    On March 8, 2005, Ohio EPA submitted draft rule 3745-21-15 
``Control of Volatile Organic Compound Emissions from Wood Furniture 
Manufacturing Operations'' and the accompanying definitions in 3745-21-
01(X). This draft rule applies to any facility that has wood furniture 
manufacturing operations with a potential to emit 25 tons VOC per year 
and is located in the Cincinnati area.
    The five compliance options for wood finishing operations are: (1) 
A VOC content limit of 0.8 pound VOC per pound of solids for topcoats 
only; (2) VOC content limits for topcoats and sealers, wherein topcoats 
are subject to 1.8 pounds VOC per gallon of solids or 2.0 pounds VOC 
per gallon of solids for an acid-cured alkyd amino conversion topcoat, 
and sealers are subject to 1.9 pounds VOC per gallon of solids or 2.3 
pounds VOC per gallon of solids for an acid-cured alkyd amino sealer; 
(3) a VOC emission control system for topcoats and/or sealers that is 
equivalent to the VOC content limits of the above options; (4) daily 
VOC emissions limits for topcoats; and (5) daily VOC emissions limit 
for topcoats, sealers, and other finishing materials. The compliance 
options associated with daily VOC emissions are based on a daily 
summation of actual VOC emissions not exceeding 90 percent of the daily 
summation of VOC emissions allowed under compliance options (1) or (2). 
This rule also allows 30-day averaging for dip coaters.
    This rule also requires a work practice implementation plan that 
develops environmentally desirable work practices including: An 
operator training course; a leak inspection and maintenance plan; a 
cleaning and washoff accounting system, spray booth cleaning 
restrictions; storage requirements for coatings; coating application 
requirements; line cleaning and spray gun cleaning procedures; and 
emission control practices from washoff operations.
    This rule also includes compliance testing and monitoring 
requirements for a VOC emission control system, as well as 
recordkeeping and reporting requirements. Compliance is required 12 
months after the effective date of this rule. Ohio EPA revised its 
viscosity provisions, as was previously agreed between the State and 
EPA, so that viscosity cannot, by itself, be used to establish the VOC 
content for dip coaters. This rule is consistent with VOC RACT 
requirements and is being approved.

VII. 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

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' 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

[[Page 35965]]

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.

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. 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. By June 14, 2005, EPA will submit a report containing 
these rules and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States. 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).
    Under Section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 22, 2005. 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 Parts 52 and 81

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: June 10, 2005.
Norman Niedergang,
Acting Regional Administrator, Region 5.

0
For the reasons stated in the preamble, parts 52 and 81, chapter I, 
title 40 of the Code of Federal Regulations are 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 52.1870 is amended by adding paragraph (c)(133) to read as 
follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *
    (133) On May 20, 2005, the Ohio Environmental Protection Agency 
submitted volatile organic compound (VOC) regulations for five source 
categories in the Cincinnati ozone nonattainment area. These 
regulations complete the requirement that all VOC reasonably available 
control technology (RACT) regulations, for which there are eligible 
sources, have been approved by EPA into the SIP for the Cincinnati 
ozone nonattainment area.
    (i) Incorporation by Reference. The following sections of the Ohio 
Administrative Code (OAC) are incorporated by reference.
    (A) OAC rule 3745-21-01(U), (definitions for commercial bakery oven 
facilities), effective May 27, 2005.
    (B) OAC rule 3745-21-01(V), (definitions for reactors and 
distillation units employed in SOCMI chemical production), effective 
May 27, 2005.
    (C) OAC rule 3745-21-01(W), (definitions for batch operations), 
effective May 27, 2005.
    (D) OAC rule 3745-21-01(X), (definitions for wood furniture 
manufacturing operations), effective May 27, 2005.
    (E) OAC rule 3745-21-01(Y), (definitions for industrial 
wastewater), effective May 27, 2005.
    (F) OAC rule 3745-21-12: ``Control of Volatile Organic Compound 
Emissions from Commercial Bakery Oven Facilities'', effective May 27, 
2005.
    (G) OAC rule 3745-21-13: ``Control of Volatile Organic Compound 
Emissions from Reactors and Distillation Units Employed in SOCMI 
Chemical Production'', effective May 27, 2005.
    (H) OAC rule 3745-21-14: ``Control of Volatile Organic Compound 
Emissions from Process Vents in Batch Operations'', effective May 27, 
2005.
    (I) OAC rule 3745-21-15: ``Control of Volatile Organic Compound 
Emissions from Wood Furniture Manufacturing Operations'', effective May 
27, 2005.
    (J) OAC rule 3745-21-16: ``Control of Volatile Organic Compound 
Emissions from Industrial Wastewater'', effective May 27, 2005.
* * * * *

0
2. Section 52.1885 is amended by revising paragraph (a)(14) to read as 
follows:


Sec.  52.1885  Control strategy: Ozone.

    (a) * * *
    (14) Approval-EPA is approving the 1-hour ozone maintenance plan 
for the Ohio portion of the Cincinnati-Hamilton area submitted by Ohio 
on May 20,

[[Page 35966]]

2005. The approved maintenance plan establishes 2015 mobile source 
budgets for the Ohio portion of the area (Butler, Clermont, Hamilton, 
and Warren Counties) for the purposes of transportation conformity. 
These budgets are 26.2 tons per day for volatile organic compounds and 
39.5 tons per day for nitrogen oxides for the year 2015.
* * * * *

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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


0
2. Section 81.336 is amended by revising the 1-hour ozone table entry 
for the Cincinnati-Hamilton Area to read as follows:


Sec.  81.336  Ohio.

* * * * *

                                                              Ohio--Ozone (1-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                              Date                        Type                        Date                        Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Cincinnati-Hamilton Area:                  06/14/2005  Attainment...............................
    Butler County.......................
    Clermont County.....................
    Hamilton County.....................
    Warren County.......................
 
                                                                      * * * * * * *
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[FR Doc. 05-12016 Filed 6-20-05; 8:45 am]
BILLING CODE 6560-50-P