[Federal Register Volume 72, Number 155 (Monday, August 13, 2007)]
[Rules and Regulations]
[Pages 45169-45172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15604]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2006-0956; FRL-8452-3]


Determination of Attainment, Approval and Promulgation of 
Implementation Plans and Designation of Areas for Air Quality Planning 
Purposes; Ohio; Redesignation of the Dayton-Springfield 8-Hour Ozone 
Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Ohio Environmental Protection Agency (Ohio EPA) submitted 
a request on November 6, 2006, and supplemented it on November 29, 
2006, December 4, 2006, December 13, 2006, January 11, 2007, March 9, 
2007, March 27, 2007, and May 31, 2007, for redesignation of the 
Dayton-Springfield, Ohio area (Clark, Greene, Miami, and Montgomery 
Counties) to attainment for the 8-hour ozone standard. On June 20, 
2007, EPA proposed to approve this submission. EPA provided a 30-day 
review and comment period. The comment period closed on July 20, 2007. 
EPA received one comment in favor of redesignation from the Dayton area 
Regional Air Pollution Control Agency. Today, EPA is approving Ohio's 
request and the associated plan for continuing to attain the standard. 
As part of this action, EPA is making a determination that the Dayton-
Springfield area has attained the 8-hour ozone National Ambient Air 
Quality Standard (NAAQS). This determination is based on three years of 
complete, quality-assured ambient air quality monitoring data for the 
2004-2006 ozone seasons that demonstrate that the 8-hour ozone NAAQS 
has been attained in the area. Preliminary 2007 air quality data show 
that the area continues to attain the 8-hour ozone standard. EPA is 
approving the maintenance plan for this area and is redesignating the 
area to attainment. Finally, EPA is approving, for purposes of 
transportation conformity, the motor vehicle emission budgets (MVEBs) 
for the years 2005 and 2018.

DATES: This final rule is effective on August 13, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2006-0956. All documents in the docket are listed on 
the http://www.regulations.gov web site. 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 through http://www.regulations.gov or in hard copy at 
the 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 Federal holidays. We recommend that you telephone Kathleen 
D'Agostino, Environmental Engineer, at (312) 886-1767 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-1767, 
[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 Comments Did We Receive on the Proposed Action?
III. What Are Our Final Actions?
IV. Statutory and Executive Order Review

I. What Is the Background for This Rule?

    The background for today's action is discussed in detail in EPA's 
June 20, 2007, proposal (72 FR 33937). In that rulemaking, we noted 
that, under EPA regulations at 40 CFR part 50, the 8-hour ozone 
standard is attained when the 3-year average of the annual fourth-
highest daily maximum 8-hour average ozone concentrations is less than 
or equal to 0.08 ppm. (See 69 FR 23857 (April 30, 2004) for further 
information). The data completeness requirement is met when the average 
percent of days with valid ambient monitoring data is greater than 90%, 
and no single year has less than 75% data completeness, as determined 
in accordance with Appendix I of part 50.
    Under the Clean Air Act (CAA), EPA may redesignate nonattainment 
areas to attainment if sufficient complete, quality-assured data are 
available to determine that the area has attained the standard and that 
it meets the other CAA redesignation requirements in section 
107(d)(3)(E).
    The Ohio EPA submitted a request on November 6, 2006 and 
supplemented it on November 29, 2006, December 4, 2006, December 13, 
2006, January 11, 2007, March 9, 2007, March 27, 2007, and May 31, 
2007, for redesignation of the Dayton-Springfield area (Clark, Greene, 
Miami, and Montgomery Counties) to attainment for the 8-hour ozone 
standard. The request included three years of complete, quality-assured 
data for the period of 2004 through 2006, indicating the 8-hour NAAQS 
for ozone had been achieved. The June 20, 2007 proposed rule provides a 
detailed discussion of how Ohio met this and other CAA requirements.
    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air 
Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). On June 
8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No. 
04-1201, in response to several petitions for rehearing, the DC Circuit 
clarified that the Phase 1 Rule was vacated only with regard to those 
parts of the rule that had been successfully challenged. Therefore, the 
Phase 1 Rule provisions related to classifications for areas currently 
classified under subpart 2 of Title I, part D of the CAA as 8-hour 
nonattainment areas, the 8-hour attainment dates, and the timing for 
emissions reductions needed for attainment of the 8-hour ozone NAAQS, 
remain effective. The June 8 decision left intact the Court's rejection 
of EPA's reasons for implementing the 8-hour standard in certain 
nonattainment areas under subpart 1 in lieu of subpart 2. By limiting 
the vacatur, the Court let stand EPA's revocation of the 1-hour 
standard and those anti-backsliding provisions of the Phase 1 Rule that 
had not been successfully challenged. The June 8 decision reaffirmed 
the December 22, 2006, decision that EPA had improperly failed to 
retain four measures required for 1-hour nonattainment areas under the 
anti-backsliding provisions of the regulations: (1) Nonattainment area 
New Source Review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) Section 185 penalty fees for 1-hour 
severe or extreme nonattainment areas; (3) measures to be implemented 
pursuant to section 172(c)(9) or 182(c)(9) of the CAA, contingent on an 
area not making reasonable further progress toward

[[Page 45170]]

attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; 
and (4) certain transportation conformity requirements for certain 
types of federal actions. The June 8 decision clarified that the 
Court's reference to conformity requirements was limited to requiring 
the continued use of 1-hour motor vehicle emissions budgets until 8-
hour budgets were available for 8-hour conformity determinations.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation, and do not 
prevent EPA from finalizing this redesignation. EPA believes that the 
Court's December 22, 2006, and June 8, 2007, decisions impose no 
impediment to moving forward with redesignation of this area to 
attainment, because even in light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
requests.
    With respect to the requirement for transportation conformity under 
the 1-hour standard, the Court in its June 8 decision clarified that 
for those areas with 1-hour motor vehicle emissions budgets in their 
maintenance plans, anti-backsliding requires only that those 1-hour 
budgets must be used for 8-hour conformity determinations until 
replaced by 8-hour budgets. To meet this requirement, conformity 
determinations in such areas must comply with the applicable 
requirements of EPA's conformity regulations at 40 CFR part 93.

II. What Comments Did We Receive on the Proposed Action?

    EPA provided a 30-day review and comment period. The comment period 
closed on July 20, 2007. We received one comment in favor of 
redesignation from the Dayton area Regional Air Pollution Control 
Agency.

III. What Are Our Final Actions?

    EPA is taking several related actions for the Dayton-Springfield 
area. First, EPA is making a determination that the Dayton-Springfield 
area has attained the 8-hour ozone standard. EPA is also approving the 
State's request to change the legal designation of the Dayton-
Springfield area from nonattainment to attainment of the 8-hour ozone 
NAAQS. Further, EPA is approving Ohio's maintenance plan SIP revision 
for the Dayton-Springfield area (such approval being one of the CAA 
criteria for redesignation to attainment status). Finally, for the 
Dayton Springfield area, EPA is approving 2005 MVEBs of 29.19 tpd of 
Volatile Organic Compounds (VOC) and 63.88 tpd of Oxides of Nitrogen 
(NOX) and 2018 MVEBs of 14.73 tpd of VOCs and 21.42 tpd of 
NOX.
    In accordance with 5 U.S.C. 553(d), EPA finds that there is good 
cause for these actions to become effective immediately upon 
publication. This is because a delayed effective date is unnecessary 
due to the nature of a redesignation to attainment, which relieves the 
area from certain CAA requirements that would otherwise apply to it. 
The immediate effective date for this action is authorized under both 5 
U.S.C. 553(d)(1), which provides that rulemaking actions may become 
effective less than 30 days after publication if the rule ``grants or 
recognizes an exemption or relieves a restriction,'' and section 
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.'' The purpose of the 30-day waiting period 
prescribed in 553(d) is to give affected parties a reasonable time to 
adjust their behavior and prepare before the final rule takes effect. 
Today's rule, however, does not create any new regulatory requirements 
such that affected parties would need time to prepare before the rule 
takes effect. Rather, today's rule relieves the State of planning 
requirements for these 8-hour ozone nonattainment areas. For these 
reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these 
actions to become effective on the date of publication of these 
actions.

IV. Statutory and Executive Order Review

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. Redesignation of an area to attainment under 
section 107(d)(3)(E) of the Clean Air Act does not impose any new 
requirements on small entities. Redesignation is an action that affects 
the status of a geographical area and does not impose any new 
regulatory requirements on sources. Accordingly, the Administrator 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 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). Redesignation is an action that merely affects the status of 
a geographical area, and does not impose any new requirements on 
sources, or allows a state to avoid adopting or implementing additional 
requirements, and does not alter the relationship or distribution of 
power and responsibilities established in the Clean Air Act.

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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. Redesignation is an 
action that affects the status of a geographical area but does not 
impose any new requirements on sources. Thus, the requirements of 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply.

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. 
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 October 12, 2007. 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 force its requirements. (See Section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Volatile 
organic compounds.

40 CFR Part 81

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

    Dated: August 1, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

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

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

Subpart 1885--Ohio

0
2. Section 52.1885 is amended by adding paragraph (ff)(7) to read as 
follows:


Sec.  52.1885  Control strategy: Ozone.

* * * * *
    (ff) * * *
    (7) The Dayton-Springfield area which includes Clark, Greene, 
Miami, and Montgomery Counties, as submitted on November 6, 2006, and 
supplemented on November 29, 2006, December 4, 2006, December 13, 2006, 
January 11, 2007, March 9, 2007, March 27, 2007, and May 31, 2007. The 
maintenance plan for this area establishes Motor Vehicle Emissions 
Budgets (MVEB) for 2005 and 2018. The 2005 MVEBs are 29.19 tpd of VOC 
and 63.88 tpd of NOX. The 2018 MVEBs are 14.73 tpd of VOCs 
and 21.42 tpd of NOX.

PART 81--[AMENDED]

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

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


0
4. Section 81.336 is amended by revising the entry for Dayton-
Springfield, Ohio area: Clark, Greene, Miami, and Montgomery Counties 
in the table entitled ``Ohio--Ozone (8-Hour Standard)'' to read as 
follows:


Sec.  81.336  Ohio.

                                                              Ohio--Ozone (8-Hour Standard)
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                                                        Designation \a\                                             Classification
         Designated area         -----------------------------------------------------------------------------------------------------------------------
                                            Date \1\                        Type                        Date \1\                        Type
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                                                                      * * * * * * *
Dayton-Springfield, OH:
    Clark County................  August 13, 2007               Attainment.
    Greene County...............
    Miami County................
    Montgomery County...........
 
                                                                      * * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.


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 [FR Doc. E7-15604 Filed 8-10-07; 8:45 am]
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