[Federal Register Volume 71, Number 105 (Thursday, June 1, 2006)]
[Rules and Regulations]
[Pages 31097-31100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5013]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2006-0052; FRL-8177-8]


Approval and Promulgation of Maintenance Plan Revisions; Ohio: 
Carbon Monoxide Maintenance Plan Updates; Limited Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving an 
October 20, 2005, request from Ohio for a State Implementation Plan 
(SIP) revision of the Cuyahoga County carbon monoxide (CO) maintenance 
plan. The CO maintenance plan revision is an update to the current 
approved maintenance plan and continues to demonstrate maintenance of 
the CO National Ambient Air Quality Standard (NAAQS) for an additional 
10 years. The maintenance plan revision is submitted as a limited 
maintenance plan for the Cuyahoga County, Ohio carbon monoxide area.

DATES: This rule is effective on July 31, 2006, unless EPA receives 
adverse written comments by July 3, 2006. If EPA receives adverse 
comments, EPA will publish a timely withdrawal of the rule in the 
Federal Register and inform the public that the rule will not take 
effect at that time.

ADDRESSES: Submit comments, identified by Docket ID No. EPA-R05-OAR-
2006-0052 by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (312) 886-5824.
     Mail: John M. Mooney, Chief, Criteria Pollutant Section, 
(AR-18J), Air Programs Branch, Air and Radiation Division, U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
     Hand delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, (AR-18J), Air Programs Branch, Air and Radiation Division, 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, 18th floor, Chicago, Illinois 60604.
    Such deliveries are only accepted during the Regional Office's 
normal hours of operation. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2006-0052. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional instructions on submitting 
comments, go to Section I of the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is

[[Page 31098]]

not publicly available, e.g., CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically in 
http://www.regulations.gov or in hard copy at Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We 
recommend that you telephone Patricia Morris, Environmental Scientist, 
at (312) 353-8656 before visiting the Region 5 office.

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

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What Should I Consider as I Prepare My Comments for EPA?
II. What Is the Background of This SIP?
III. What Is a Limited Maintenance Plan?
IV. What Does This Mean for Transportation Conformity?
V. What Action Is EPA Taking Today?
VI. Statutory and Executive Order Reviews

I. What Should I Consider as I Prepare My Comments for EPA?

    A. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What Is the Background of This SIP?

    On October 20, 2005, the Ohio Environmental Protection Agency 
(OEPA), submitted the final public hearing documentation for a SIP 
revision request for the Cuyahoga County, Ohio carbon monoxide area. 
The revision consists of a second follow-on ten year carbon monoxide 
maintenance plan, and a request for a limited CO maintenance plan 
designation. A public hearing was held on March 10, 2005, in Cleveland, 
Ohio and a transcript from the public hearing was submitted.
    In 1991, EPA designated Cuyahoga County, Ohio as a CO nonattainment 
area (see 56 FR 56694 November 6, 1991). The State of Ohio developed 
state implementation plans to control CO emissions through a number of 
federally mandated control programs, as well as State initiated control 
programs. These control measures resulted in the attainment of the 
NAAQS for carbon monoxide in Cuyahoga County, Ohio. The area was 
redesignated to attainment effective March 7, 1994, (59 FR 5332).
    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
The plan must demonstrate continued attainment of the applicable NAAQS 
for at least ten years after the EPA Administrator approves a 
redesignation to attainment. Eight years after the redesignation, the 
state must submit a revised maintenance plan which demonstrates 
attainment for the ten years following the initial ten-year period. The 
SIP submittal has been submitted by Ohio to meet the second maintenance 
plan requirement of the CAA. This second maintenance plan supplements, 
and does not replace, the original approved maintenance plan. The 
commitments in the approved maintenance plan continue to apply for the 
second 10 year timeframe.
    Ohio originally submitted the emissions projections and SIP 
revision request on December 24, 2003. However, the state did not 
conduct a public hearing on the proposed SIP revision at that time. The 
EPA wrote a letter to Ohio dated January 28, 2004, noting that the 
public hearing requirements needed to be met. Ohio has now conducted 
the appropriate public hearing and has submitted the public hearing 
materials with the SIP revision request.

III. What Is a Limited Maintenance Plan?

    EPA detailed the limited maintenance plan approach in a memorandum 
entitled ``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, Group Leader, Integrated 
Policy and Strategies Group, Office of Air Quality Planning and 
Standards (OAQPS), dated October 6, 1995. Pursuant to this approach, 
EPA will consider the maintenance demonstration satisfied for ``not 
classified'' areas if the monitoring data show the design value is at 
or below, 7.65 parts per million (ppm), or 85 percent of the level of 
the 8-hour CO NAAQS. The design value must be based on eight 
consecutive quarters of data. For such areas, there is no requirement 
to project emissions of air quality over the maintenance period. EPA 
believes that if the area begins the maintenance period at, or below, 
85 percent of the CO 8 hour NAAQS, then the applicability of Prevention 
of Significant Deterioration (PSD) requirements, the control measures 
already in the SIP, and Federal measures, should provide adequate 
assurance of maintenance over the 10-year maintenance period.
    In addition, the design value for the area must continue to be at 
or below 7.65 ppm until the time of final EPA action.
    Current 2005 and 2006 8-hour CO design values for the Cuyahoga 
County area meet the requirements for a limited maintenance plan. The 8 
hour values from the Airdata reports were examined for Cuyahoga County 
and have not exceeded the 7.65 ppm level for the time frame of 2001 to 
2005. Because Cuyahoga County is an attainment/unclassifiable area and 
meets the monitored CO levels, the area qualifies

[[Page 31099]]

for the limited maintenance plan option. The Ohio EPA will continue to 
maintain a continuous CO monitoring network, meeting the requirements 
of 40 CFR Part 58, that provides adequate coverage to verify continued 
compliance with the CO NAAQS.

IV. What Does This Mean for Transportation Conformity?

    Section 176(c) of the CAA defines transportation conformity as 
conformity to the SIP's purpose of eliminating or reducing the severity 
and number of violations of the NAAQS and achieving expeditious 
attainment of such standards. The CAA further defines transportation 
conformity to mean that no Federal transportation activity will: (1) 
Cause or contribute to any new violation of any standard in any area; 
(2) increase the frequency or severity of any existing violation of any 
standard in any area; or (3) delay timely attainment of any standard or 
any required interim emission reductions or other milestones in any 
area. The Federal Transportation Conformity Rule, 40 CFR part 93 
subpart A, sets forth the criteria and procedures for demonstrating and 
assuring conformity of transportation plans, programs and projects 
which are developed, funded or approved by the U.S. Department of 
Transportation, and by metropolitan planning organizations or other 
recipients of funds under title 23 U.S.C. or the Federal Transit Laws 
(49 U.S.C. chapter 53). The transportation conformity rule applies 
within all nonattainment and maintenance areas. As prescribed by the 
transportation conformity rule, once an area has an applicable State 
Implementation Plan with motor vehicle emissions budgets, the expected 
emissions from planned transportation activities must be consistent 
with (''conform to'') such established budgets for that area.
    In the case of the Cuyahoga County, Ohio, CO limited maintenance 
plan area, however, the emissions budgets may be treated as essentially 
not constraining for the length of the second maintenance period as 
long as the area continues to meet the limited maintenance criteria. 
There is no reason to expect that this area will experience so much 
growth in that period that a violation of the CO NAAQS would result. 
The OEPA submittal includes projections of point, area, and mobile 
source emissions out to the year 2015. During this timeframe, CO 
emissions are projected to decrease from 248,801 tons per year in 2002 
to 154,102 tons per year in 2015. The on-road mobile source emissions 
are estimated at 219,912 tons per year in 2002 and are expected to 
decrease to 120,267 tons per year in 2015. In other words, emissions 
from on-road transportation sources need not be capped for the 
maintenance period because, based on the available data, it is 
unreasonable to believe that emissions from such sources would increase 
to a level that would threaten the air quality in this area for the 
duration of this maintenance plan. Therefore, for the limited 
maintenance plan CO maintenance area, all Federal actions that require 
conformity determinations under the transportation conformity rule are 
considered to satisfy the regional emissions analysis and ``budget 
test'' requirements in 40 CFR 93.118 of the rule.
    Since limited maintenance plan areas are still maintenance areas, 
however, transportation conformity determinations are still required 
for transportation plans, programs and projects. Specifically, for such 
determinations, transportation plans, transportation improvement 
programs and projects must still demonstrate that they are fiscally 
constrained (40 CFR part 108) and must meet the criteria for 
consultation and Transportation Control Measure (TCM) implementation in 
the conformity rule (40 CFR 93.112 and 40 CFR 93.113, respectively). In 
addition, projects in limited maintenance areas will still be required 
to meet the criteria for CO hot spot analyses to satisfy ``project 
level'' conformity determinations (40 CFR 93.116 and 40 CFR 93.123) 
which must incorporate the latest planning assumptions and models that 
are available. All aspects of transportation conformity (with the 
exception of satisfying the emissions budget test) will still be 
required.
    If one of the carbon monoxide attainment areas monitors carbon 
monoxide concentrations at or above the limited maintenance eligibility 
criteria of 7.65 parts per million then that maintenance area would no 
longer qualify for a limited maintenance plan and would revert to a 
full maintenance plan. In this event, the limited maintenance plan 
would remain applicable for conformity purposes only until the full 
maintenance plan is submitted and EPA has found its motor vehicle 
emissions budgets adequate for conformity purposes or EPA approves the 
full maintenance plan SIP revision.

V. What Action Is EPA Taking Today?

    EPA is approving a SIP revision request submitted by the State of 
Ohio. This SIP revision meets the requirement for a second 10 year 
maintenance plan for Cuyahoga County, Ohio. The SIP revision 
supplements the current approved CO maintenance plan and establishes a 
limited maintenance plan with an unlimited budget for regional motor 
vehicle emissions for the Cuyahoga County, Ohio CO maintenance area.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the state plan in the event that 
relevant adverse written comments are filed. This rule will be 
effective July 31, 2006 without further notice unless we receive 
relevant adverse written comments by July 31, 2006. If we receive such 
comments, we will withdraw this action before the effective date by 
publishing a subsequent document that will withdraw the final action. 
All public comments received will then be addressed in a subsequent 
final rule based on the proposed action. The EPA will not institute a 
second comment period. Any parties interested in commenting on this 
action should do so at this time. If we do not receive any comments, 
this action will be effective July 31, 2006.

VI. 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 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.).

[[Page 31100]]

Unfunded Mandates Reform Act

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

Executive Order 13175 Consultation and Coordination With Indian Tribal 
Governments

    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (59 
FR 22951, 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. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 31, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations.

    Dated: May 19, 2006.
Norman Niedergang,
Acting Regional Administrator, Region 5.

0
For the reasons stated in the preamble, part 52, chapter I, of title 40 
of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

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

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

Subpart KK--Ohio

0
2. Section 52.1887 is amended by adding paragraph (e) to read as 
follows:


Sec.  52.1887  Control strategy: Carbon monoxide.

* * * * *
    (e) Approval--On October 20, 2005, Ohio submitted a State 
Implementation Plan (SIP) revision of the Cuyahoga County carbon 
monoxide (CO) maintenance plan. The CO maintenance plan revision is an 
update to the current approved maintenance plan and continues to 
demonstrate maintenance of the CO National Ambient Air Quality Standard 
(NAAQS) for an additional 10 years. The maintenance plan revision is 
submitted as a limited maintenance plan for the Cuyahoga County, Ohio 
carbon monoxide area and provides an unlimited motor vehicle emissions 
budget as long as the ambient CO levels remain below the 7.65 parts per 
million design value specified as the criterion for the limited 
maintenance plan.

[FR Doc. 06-5013 Filed 5-31-06; 8:45 am]
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