[Federal Register Volume 73, Number 143 (Thursday, July 24, 2008)]
[Proposed Rules]
[Pages 43180-43186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16987]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1100; FRL-8697-2]


Approval and Promulgation of Implementation Plans; Ohio; Removal 
of Vehicle Inspection and Maintenance Programs for Cincinnati and 
Dayton

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation plan (SIP) 
revision submitted by the State of Ohio to allow the State to 
discontinue the vehicle inspection and maintenance (I/M) program in the 
Cincinnati-Hamilton and Dayton-Springfield areas, also known as the E-
Check program. The revision specifically requests that the E-Check 
program regulations be moved from the active control measures portion 
of the SIP to the contingency measures portion of the Cincinnati-
Hamilton and Dayton-Springfield ozone maintenance plans. The Ohio 
Environmental Protection Agency (Ohio EPA) submitted this request on 
April 4, 2005, and supplemented it on May 20, 2005, February 14, 2006, 
May 9, 2006, October 6, 2006, and February 19, 2008. EPA is proposing 
to approve Ohio's request because the State has demonstrated that 
discontinuing the I/M program in the Cincinnati-Hamilton and Dayton-
Springfield areas will not interfere with the attainment and 
maintenance of the 8-hour ozone National Ambient Air Quality Standard 
(NAAQS) and the fine particulate NAAQS or with the attainment and 
maintenance of other air quality standards.

DATES: Comments must be received on or before August 25, 2008.

ADDRESSES: Submit comments, identified by Docket ID No. EPA-R05-OAR-
2007-1100, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (312) 353-6960.
    4. Mail: John Mooney, Chief, Criteria Pollutant Section, (AR-18J), 
U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.
    5. Hand Delivery: John Mooney, Chief, Criteria Pollutant Section, 
(AR-18J), U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted 
during the Regional Office normal hours of operation, and special 
arrangements should be made for deliveries of boxed information. The 
Regional Office 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-
2007-1100. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the

[[Page 43181]]

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 
www.regulations.gov index. Although listed in the index, some 
information is 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 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 legal holidays. We 
recommend that you telephone Francisco J. Acevedo at (312) 886-6061 
before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Francisco J. Acevedo, Environmental 
Protection Specialist, Criteria Pollutant Section, Air Programs Branch 
(AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6052.

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?
    A. Submitting CBI
    B. Tips for Preparing Your Comments
II. What Are EPA's Proposed Actions?
III. What Changes to the Ohio SIP Have Been Submitted To Support the 
Removal of the I/M Programs in the Cincinnati-Hamilton and Dayton-
Springfield Areas?
IV. What Criteria Apply to Ohio's Request?
V. Has Ohio Met the Criteria for Converting the I/M Programs in the 
Cincinnati-Hamilton and Dayton-Springfield Areas to Contingency 
Measures?
VI. What Are Our Conclusions Concerning the Removal of I/M Programs 
in the Cincinnati-Hamilton and Dayton-Springfield Areas?
VII. 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 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 Are EPA's Proposed Actions?

    EPA is proposing to approve a SIP revision submitted by the State 
of Ohio to modify the SIP such that the vehicle inspection and 
maintenance (I/M) program in the Cincinnati-Hamilton and Dayton-
Springfield areas, also known as the E-Check program, is no longer an 
active program in these areas and is instead a contingency measure in 
these areas' maintenance plans.

III. What Changes to the Ohio SIP Have Been Submitted To Support the 
Removal of the I/M Programs in the Cincinnati-Hamilton and Dayton-
Springfield Areas?

    Ohio EPA submitted a revision to the Cincinnati-Hamilton and 
Dayton-Springfield portions of the Ohio SIP on April 4, 2005. This 
revision requested that the Ohio I/M programs in the Cincinnati-
Hamilton and Dayton-Springfield areas be moved from the active control 
measures portion of the SIP to the contingency measures portion of the 
Cincinnati-Hamilton 1-Hour Ozone Maintenance Plan and the Dayton-
Springfield 8-Hour Ozone Maintenance Plan.
    The Cincinnati-Hamilton and Dayton-Springfield areas were required 
to implement ``basic'' I/M programs under section 182(b)(4) of the Act 
because they were originally designated as moderate 1-hour ozone 
nonattainment areas. In order to maximize nitrogen oxides 
(NOX), volatile organic compound (VOC) and carbon monoxide 
(CO) emissions reductions from the I/M program, Ohio EPA chose to 
implement an ``enhanced'' program in those areas and incorporated an 
on-board diagnostic (OBD) component into the programs. EPA fully 
approved Ohio's I/M programs on April 4, 1995 (60 FR 16989). The E-
Check programs began operation on January 2, 1996, to meet 
nonattainment area requirements for the ozone NAAQS effective at the 
time.\1\ As noted in other portions of this action, both the 
Cincinnati-Hamilton and Dayton-Springfield areas have been redesignated 
to attainment for the 1-hour ozone standard and the Dayton-Springfield 
area has also been redesignated to attainment for the .08 ppm 8-hour 
ozone standard. The Cincinnati-Hamilton and Dayton-Springfield areas 
have approved maintenance plans for the 1-hour standard and the Dayton 
area has an approved maintenance plan for the .08 ppm 8-hour standard. 
Both of these maintenance plans show how the areas plan to maintain the 
standard without the need of emission reductions from E-Check.
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    \1\ Although the E-Check program began on January 1, 1996, there 
was a vehicle I/M program operating in the Cincinnati-Hamilton area 
prior to that date, and prior to November 15, 1990.
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    The Cincinnati ozone nonattainment area also includes three 
counties (Boone, Campbell, and Kenton Counties) in Northern Kentucky. 
The discontinuation of the I/M program in these Kentucky counties was 
approved on October 4, 2005, at 70 FR 57750.

[[Page 43182]]

IV. What Criteria Apply to Ohio's Request?

    Areas designated nonattainment for the ozone NAAQS and classified 
``moderate'' are required by the Clean Air Act to implement vehicle I/
M. See CAA section 182(b)(4).\2\ These areas are no longer designated 
nonattainment for the 1-hour ozone standard. While Cincinnati-Hamilton 
is designated nonattainment for the .08 ppm 8-hour standard, it is not 
classified for that standard.\3\ Thus, these areas are not currently 
subject to the I/M requirement based on their current nonattainment 
classifications under the CAA and the state may move them to the 
contingency measures portion of the SIP,\4\ provided the state can 
satisfy the anti-backsliding requirements of the CAA (sections 110(l) 
and 193) and EPA's ozone implementation rule, 40 CFR 51.905.
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    \2\ Certain areas classified ``marginal'' are also required to 
implement I/M. See CAA section 182(a)(2)(B).
    \3\ Cincinnati-Hamilton was classified ``basic'' ( i.e., subject 
to subpart 1) for the .08 ppm 8-hour standard but that 
classification was vacated by a decision of the Court of Appeals for 
the D.C. Circuit. See South Coast Air Quality Management Dist. v. 
EPA, 472 F.3d 882 (D.C. Cir. 2006). EPA recently promulgated a .075 
ppm 8-hour standard but no designations for that standard have been 
made.
    \4\ As discussed below, the measures must be retained as 
contingency measures because CAA section 175A requires that the 
contingency measures portion of the SIP include a requirement that 
the State will implement all measures that were part of the active 
SIP at the time the area was redesignated to attainment.
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    CAA section 110(l) provides:

    Each revision to an implementation plan submitted by a State 
under this Act shall be adopted by such State after reasonable 
notice and public hearing. The Administrator shall not approve a 
revision to a plan if the revision would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress (as defined in section 171), or any other applicable 
requirement of this Act.

    In the absence of an attainment demonstration, to demonstrate no 
interference with any applicable NAAQS or requirement of the Clean Air 
Act under section 110(l), EPA believes it is appropriate to allow 
States to substitute equivalent emissions reductions to compensate for 
the control measure being moved from the active portion of the SIP to 
the contingency measure portion of the SIP, as long as actual emissions 
in the air are not increased.
    ``Equivalent'' emissions reductions mean reductions which are equal 
to or greater than those reductions achieved by the control measure to 
be removed from the active portion of the SIP. To show the compensating 
emissions reductions are equivalent, modeling or adequate justification 
must be provided. (EPA memorandum from John Calcagni, Director, Air 
Quality Management Division, to the Air Directors in EPA Regions 1-10, 
September 4, 1992, pages 10 and 13.) As stated in the notice proposing 
approval to remove I/M from the active measures of the Northern 
Kentucky SIP (70 FR 17029, 17033), the compensating, equivalent 
reductions must represent actual, new emissions reductions achieved in 
a contemporaneous time frame to the termination of the existing SIP 
control measure, in order to preserve the status quo level of emissions 
in the air. In addition to being contemporaneous, the equivalent 
emissions reductions must also be permanent, enforceable, quantifiable, 
and surplus to be approved into the SIP.
    Section 193 of the Act provides in part that:

    No control requirement in effect, or required to be adopted by 
an order, settlement agreement, or plan in effect before the date of 
the enactment of the Clean Air Act Amendments of 1990 in any area 
which is a nonattainment area for any air pollutant may be modified 
after such enactment in any manner unless the modification insures 
equivalent or greater emission reductions of such air pollutant.

    In addition, EPA adopted anti-backsliding requirements as part of 
the implementation rule for the .08 ppm 8-hour ozone standard. See 40 
CFR 51.905. For areas, such as these, that were required under the Act 
to implement basic I/M, EPA applies the provisions of the 
implementation rule in concert with the provisions of 40 CFR 51.372(c).
    The provisions of 40 CFR 51.372(c) allow certain areas seeking 
redesignation to submit only the authority for an I/M program (together 
with certain commitments), rather than an implemented program, in 
satisfaction of the applicable I/M requirements. Under these I/M rule 
provisions, a basic I/M area (i.e., was required to adopt a basic I/M 
program) which has been redesignated to attainment for the 1-hour ozone 
NAAQS can convert the I/M program to a contingency measure as part of 
the area's 1-hour ozone maintenance plan, notwithstanding the anti-
backsliding provisions in EPA's 8-hour ozone implementation rule 
published April 30, 2004 (69 FR 23858). A basic I/M area which is 
designated nonattainment for the 8-hour ozone NAAQS, yet not required 
to have an I/M program based on its 8-hour ozone classification, 
continues to have the option to move its I/M program to a contingency 
measure pursuant to the provisions of 40 CFR 51.372(c), provided the 8-
hour ozone nonattainment area can demonstrate that doing so will not 
interfere with its ability to comply with any NAAQS or any other 
applicable Clean Air Act requirement pursuant to section 110(l) of the 
Act. For further details on the application of 8-hour ozone anti-
backsliding provisions to basic I/M programs in 1-hour ozone 
maintenance areas, please refer to the May 12, 2004, EPA Memorandum 
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 the Air Program Managers, entitled ``1-Hour Ozone 
Maintenance Plans Containing Basic I/M Programs.'' A copy of this 
memorandum may be obtained at http://www.epa.gov/ttn/oarpg/t1pgm.html 
under the file date ``5-12-04.''

V. Has Ohio Met the Criteria for Converting the I/M Programs in the 
Cincinnati-Hamilton and Dayton-Springfield Areas to Contingency 
Measures?

    Both the Cincinnati-Hamilton area and the Dayton-Springfield area 
have been redesignated to attainment with respect to the 1-hour ozone 
NAAQS. The Cincinnati-Hamilton area was redesignated to attainment of 
the 1-hour ozone NAAQS on June 21, 2005 (70 FR 35946). The Dayton-
Springfield area was redesignated to attainment of the 1-hour ozone 
NAAQS on May 5, 1995 (60 FR 22289). On August 13, 2007 (72 FR 45169), 
EPA approved the redesignation of the Dayton-Springfield area to 
attainment with respect to the 8-hour ozone NAAQS. EPA approved 
maintenance plans for each of these areas in connection with these 
redesignations. These approved maintenance plans show that control 
measures in place in these areas are sufficient for overall emissions 
to remain beneath the attainment level of emissions until the end of 
the maintenance period. In both cases, the conformity budget in the 
maintenance plans reflects mobile source emissions without E-Check, and 
the maintenance plans demonstrate that the applicable standard will 
continue to be met without E-Check. 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 satisfy section 110(l). With 
such a demonstration of noninterference with attainment or other 
applicable requirements, control

[[Page 43183]]

programs may be discontinued and removed from the SIP. However, section 
175A(d) of the Act requires that contingency measures in the 
maintenance plan include all measures in the SIP for the area before 
that area was redesignated to attainment. Since the E-Check program was 
in the SIP prior to redesignation to attainment for ozone, the E-Check 
program must be included in the contingency portion of the ozone 
maintenance plan as required by section 175A(d). As part of its 
submittal, Ohio EPA provided a demonstration showing continued 
maintenance of the 1-hour ozone standard without taking credit for 
reductions from the Cincinnati-Hamilton E-Check program, and continued 
maintenance of the 1-hour and 8-hour ozone standards without taking 
credit for reductions from the Dayton-Springfield E-Check program.
    As discussed above, EPA interprets its regulations as allowing 
basic I/M areas such as these to have the option to move an I/M program 
to a contingency measure pursuant to 40 CFR 51.372(c), provided that 
moving I/M to contingency measures will not interfere with the area's 
ability to comply with any NAAQS or any other applicable CAA 
requirement (including section 193). Under 40 CFR 51.372(c), an area is 
required to include in its submittal, with a request to place the I/M 
program into the contingency measures: (1) Legal authority to implement 
a basic I/M program; (2) a commitment by the Governor of the State, of 
the Governor's designee, to adopt or consider adopting regulations to 
implement an I/M program to correct a violation of the ozone or carbon 
monoxide standard, in accordance with the maintenance plan; and (3) a 
contingency commitment that includes an enforceable schedule, with 
appropriate milestones, for adoption and implementation of an I/M 
program.
    In the State's supplemental submittal of February 19, 2008, Ohio 
EPA states that Ohio has retained the necessary legal authority to 
implement I/M under Ohio Revised Code 3704.14(E). EPA examined the 
applicable Ohio statutory language and concurs with Ohio's finding that 
the State has the necessary legal authority to implement I/M if it 
becomes necessary under the Clean Air Act to implement I/M as a 
contingency measure. In addition, the State's supplemental submittal 
includes a commitment by Ohio EPA to consider the adoption of E-Check 
as a corrective measure should an ambient 1-hour ozone design value 
trigger a contingency measure in the Cincinnati-Hamilton and Dayton-
Springfield areas, and the required program was determined by the State 
to be an I/M program. The submittal also contains an I/M implementation 
schedule in the event that I/M is selected by the State as a corrective 
measure as required by 40 CFR 51.372(c).
    Section 110(l) of the Clean Air Act dictates that EPA ``shall not 
approve a revision of a plan if the revision would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress * * * or any other applicable requirement''. The 
discontinuation of E-Check will allow greater emissions of volatile 
organic compounds (VOC) and nitrogen oxides (NOX) from 
certain sources than would continuation of the programs. As discussed 
above, EPA interprets section 110(l) to require a demonstration that 
the discontinuation of E-Check would not interfere with timely 
attainment or with meeting other applicable requirements, and areas may 
satisfy this requirement by adopting emissions reductions which are 
equal to or greater than the emissions increases, as well as being 
contemporaneous, permanent, enforceable, quantifiable, and surplus.
    In this case, the most significant relevant requirement is timely 
attainment of the ozone air quality standard. Ohio has adopted several 
measures that achieve equivalent, contemporaneous, permanent, 
enforceable, quantifiable and surplus reductions to assure that the 
discontinuation of E-Check, which occurred starting January 1, 2006, 
will not interfere with timely attainment of the ozone air quality 
standard. The emission reductions from Ohio's replacement measures that 
are discussed in more detail below have been made permanent through 
Ohio's rulemaking process. All the replacement measures are currently 
in effect and establish obligatory requirements applicable to affected 
groups. The emission reductions are enforceable by the State of Ohio as 
of the State effective date of these regulations and they are all 
Federally enforceable by EPA since all the replacement measures have 
been approved into the Ohio SIP. In addition, the emission reductions 
from the State's replacement measures are considered surplus because 
they go beyond the reductions previously required in the Ohio SIP. 
While ``contemporaneous'' is not explicitly defined in the Clean Air 
Act, a reasonable interpretation is that the compensating, equivalent 
emissions reductions should be in place within one year (prior to or 
following) the cessation of the substituted control measure. Toward 
that end, Ohio adopted various measures to reduce VOC emissions by the 
start of the 2006 ozone season, including a rule requiring use of lower 
emitting solvents in cold cleaner degreasers, a rule requiring the use 
of more efficient paint application techniques for auto refinishing, 
and a rule requiring that portable fuel containers be designed for less 
volatilization and fuel spillage. EPA approved these rules on March 30, 
2007, at 72 FR 15045.
    In addition, Ohio adopted a rule requiring use of low volatility 
gasoline in the Cincinnati-Hamilton and Dayton-Springfield areas 
beginning on June 1, 2006. However, in response to a lawsuit 
challenging the rule, as well as a survey conducted by EPA of gasoline 
suppliers in the Cincinnati and Dayton areas determining that there was 
not enough low volatility gasoline to supply the areas during the 2006 
ozone season, Ohio adopted amended rules to modify the implementation 
date for the required use of low volatility gasoline to be one year 
after the approval by EPA of a fuel waiver under CAA section 
211(c)(4)(C). Since low volatility gasoline was no longer able to be 
implemented in 2006, Ohio adopted a further rule to provide the 
necessary reductions in 2006. This further rule retired 240 allowances 
from the new source set aside for the ``NOX SIP Call'' 
trading program, creating a surplus reduction for ozone season 2006 of 
240 tons of NOX emissions. Implementation of low volatility 
gasoline was delayed further by enactment of the Energy Policy Act of 
2005, which imposed new requirements on the EPA's approval of state 
fuel programs. EPA approved Ohio's low vapor pressure gasoline rule on 
May 25, 2007, at 72 FR 29269. Thus, given Ohio's adoption of a one year 
delay between approval and implementation, low RVP gasoline was 
implemented starting at the beginning of the 2008 ozone season.
    Ohio's supplemental submittal of February 19, 2008, summarizes its 
estimates of the emission increases resulting from discontinuing E-
Check, and of the emission reductions from the various replacement 
measures that they have adopted. Ohio provided separate estimates for 
Cincinnati-Hamilton and for Dayton-Springfield, and addressed both VOC 
and NOX. Ohio provided these estimates for 2006.
    For the Cincinnati-Hamilton area, Ohio estimated that the 
discontinuation of E-Check would result in an increase of 5.2 tons per 
day of VOC emissions and 4.4 tons per day of NOX emissions. 
Based on modeling using MOBILE6 (EPA's mobile source emission factor 
model), Ohio estimated that the use of low volatility gasoline would 
reduce VOC emissions by 4.60 tons per day and

[[Page 43184]]

would reduce NOX emissions by 0.19 tons per day. Ohio 
estimated that its regulation on cold solvent degreasing would reduce 
VOC emissions by 2.57 tons per day, and Ohio estimated that its 
regulation on auto refinishing would reduce VOC emissions by 0.44 tons 
per day.
    Ohio's rule retiring 240 allowances from the ``NOX SIP 
Call'' trading program serves to create a surplus reduction of 240 tons 
of NOX. As set forth in the rulemaking approving the 
retirement of the allowances [73 FR 8197], EPA believes that these 
reductions can be associated with a portion of the substantial emission 
reductions that have occurred in the Cincinnati-Hamilton and Dayton-
Springfield areas. (The remainder of the reductions would be attributed 
to the NOX SIP Call.)
    The measures Ohio adopted do not fully compensate for the increase 
in NOX emissions expected to result from discontinuation of 
E-Check. On the other hand, the adopted measures provide VOC emission 
reductions that more than compensate for the expected increase 
attributable to the discontinuation of E-Check. Ohio seeks for EPA to 
find that the extra VOC reductions will compensate for the effect on 
ozone levels of the otherwise uncompensated portion of the increase in 
NOX emissions expected to result from the discontinuation of 
E-Check.
    EPA addresses the relationship between VOC and NOX 
emissions in its guidance on reasonable further progress. This guidance 
provides for states to assume, as an approximation, that equivalent 
percent changes in the area's inventory for the respective pollutant 
would yield an equivalent change in ozone levels; e.g., decreasing area 
NOX emissions by 3 percent would have the same effect as 
decreasing area VOC emissions by 3 percent. Stated another way, if an 
area has twice as many tons of NOX emissions as of VOC 
emissions, then 2 tons of NOX emissions would be assumed to 
have the same effect on ozone as 1 ton of VOC emissions. Ohio applied 
this approach to assess whether the reductions in VOC emissions are 
sufficient to compensate not only for the VOC emissions increase from 
discontinuing E-Check but also for the otherwise uncompensated portion 
of the NOX emissions increase from discontinuing E-Check.
    According to Ohio's emission estimates, the number of tons of 
NOX emissions in the Cincinnati-Hamilton area is 1.96 times 
the number of tons of VOC emissions in the area. As noted above, the 
NOX emission increase expected to result from 
discontinuation of E-Check in the Cincinnati-Hamilton area is 4.4 tons 
per day. Ohio estimated that low volatility gasoline will compensate 
for 0.19 tons per day. The remaining 4.21 tons per day of 
NOX emissions may be estimated to be equivalent to 2.15 tons 
per day of VOC. Thus, for this approach to substitution, for the 
Cincinnati-Hamilton area, Ohio would need to provide 5.2 tons per day 
of VOC emission reduction to compensate for the VOC emissions impact of 
discontinuing E-Check and 2.15 tons per day of VOC emission to 
compensate for the otherwise uncompensated portion of the 
NOX emission impact of discontinuing E-Check, for a total of 
7.35 tons per day. The total reductions that Ohio's measures provide 
are 7.61 tons per day. Thus, Ohio has demonstrated that it has provided 
emission reductions that with respect to ozone have more than 
compensated for the emission increases expected to result from the 
discontinuation of E-Check.
    Ohio provided emission estimates for 2006. EPA believes that 2006 
represents a worst case scenario. As the vehicle fleet becomes cleaner 
over time, the impact of discontinuing E-Check will decline. On the 
other hand, the emission reductions that Ohio's measures provide can be 
expected to remain relatively constant and even to increase gradually 
as source growth occurs. Therefore, EPA concludes that the combination 
of discontinuing E-Check and use of low volatility gasoline and the 
other control measures Ohio adopted will result in total emissions 
levels which will not interfere with attainment of the ozone standard.
    Ohio found similar results for the Dayton-Springfield area. Ohio 
estimated that the discontinuation of E-Check in the Dayton-Springfield 
area would increase VOC emissions by 1.89 tons per day and 
NOX emissions by 1.7 tons per day. Ohio estimated that use 
of low volatility gasoline would reduce Dayton-Springfield area 
emissions of VOC by 4.20 tons per day and of NOX by 0.20 
tons per day. Ohio estimated that its rule regarding cold solvent 
degreasing would reduce Dayton-Springfield area VOC emissions by 1.75 
tons per day, and Ohio estimated that its rule regarding auto 
refinishing would reduce Dayton-Springfield area VOC emissions by 0.30 
tons per day. Thus the measures adopted by Ohio provide for a total of 
6.25 tons per day of VOC emission decrease and 0.20 tons per day of 
NOX emission decrease.
    According to Ohio's emissions estimates, the number of tons of 
NOX emitted in the Dayton-Springfield area is 0.62 times the 
number of tons of VOC emitted in the area. Thus, 1.5 tons per day of 
NOX emissions (1.7 minus 0.2) would be considered equivalent 
to 2.43 tons per day of VOC. Thus, under Ohio's approach, the total 
necessary VOC emission reduction in the Dayton-Springfield area would 
be 1.89 plus 2.43 or 4.32 tons per day. Ohio provides substantially 
more reduction than this target. Thus, for the Dayton-Springfield area, 
like for the Cincinnati-Hamilton area, Ohio has provided sufficient 
compensating emission reductions for EPA to conclude that the 
discontinuation of E-Check in combination with the various measures 
Ohio has adopted will not interfere with attainment of the ozone 
standard.
    In addition, on August 13, 2007, at 72 FR 45169, EPA concluded that 
Dayton-Springfield is meeting the .08 ppm ozone air quality standard 
and redesignated this area to attainment for that standard. The 
maintenance plan for this area shows that the area will continue to 
attain the standard even with the discontinuation of E-Check. This 
provides further support for the argument that discontinuing E-Check 
will not interfere with attainment of the ozone standard in the Dayton-
Springfield area.
    EPA must also consider whether the discontinuation of E-Check would 
interfere with timely attainment of the fine particulate matter 
(PM2.5) air quality standard. Ohio addressed 
PM2.5 by providing modeling evidence that the Cincinnati and 
Dayton areas will achieve timely attainment of the PM2.5 
standards. The modeling uses the Comprehensive Air Model with 
Extensions (CAMX) and simulates emissions and 
PM2.5 concentrations across much of the Eastern United 
States. Model simulations were performed for a base year of 2005 and a 
projection year of 2009. The base year simulations were performed to 
assess model performance, i.e., to assess whether the model provides 
adequately accurate and unbiased estimates of the concentrations of the 
various PM2.5 components. The projection year simulations 
provided information on the reductions in concentrations of the various 
PM2.5 components that can be expected to result from various 
anticipated emission reductions. Concentration estimates for 2009 were 
then derived by using the model results in a relative sense, 
determining a 2009 concentration for each PM2.5 component by 
multiplying the base year concentration times the ratio of the model 
estimates for 2009 versus for the base year, and then summing these 
2009 component concentration estimates to

[[Page 43185]]

obtain a total projected 2009 PM2.5 concentration.
    The baseline concentrations used in the modeling reflect data from 
2003 to 2007. In accordance with recommendations in EPA's modeling 
guidance (``Guidance on the Use of Models and Other Analyses for 
Demonstrating Attainment of Air Quality Goals for Ozone, 
PM2.5, and Regional Haze''), quarterly mean concentrations 
of PM2.5 were determined by first averaging concentrations 
for 2003 to 2005, 2004 to 2005, and 2005 to 2007, and then averaging 
these three three-year averages. The analysis also used measurements of 
various species in order to determine the composition of the 
PM2.5 for each of the four seasons of the year. The 
components addressed include ammonium sulfate, ammonium nitrate, 
organic particles, elemental carbon, other inorganic particulate 
matter, and particle bound water. The analysis of composition includes 
adjustments of the species measurements so as better to reflect the 
quantity of the species that would be captured by the Federal Reference 
Method (FRM). As two examples, the nitrate measurements were adjusted 
to reflect volatilization of nitrates off FRM monitors, and the 
measurements of the carbon portion of organic particles were adjusted 
to add the non-carbon components of these particles. These seasonal 
compositions were then applied to the quarterly weighted average 
PM2.5 component concentrations to derive quarterly weighted 
average component concentrations.
    The next step in the analysis was to use modeling to determine the 
degree to which concentrations are expected to be reduced between the 
baseline period and 2009. For each quarter for each PM2.5 
component, for each monitoring location, a relative response factor was 
computed, representing the ratio of the 2009 model estimate to the base 
year model estimate.
    The final step in the analysis was to multiply the relative 
response factor for each component times that component's weighted 
average baseline concentration. This multiplication yields an estimate 
of the concentration of the component in 2009. The sum of these 
projected component concentrations represents the estimated 2009 
concentration of PM2.5. An estimated 2009 PM2.5 
concentration of 15.0 micrograms per cubic meter ([mu]g/m\3\) 
represents a projection of attainment by that date.
    In the Cincinnati area, the monitors with the highest average 
concentrations of PM2.5 are at the St. Bernard site in 
Hamilton County (site number 39-061-8001) and at the Middletown site in 
Butler County (site number 39-017-0003). The baseline, 5-year weighted 
average PM2.5 concentrations at these sites were 17.6 and 
16.2 [mu]g/m\3\, respectively. The projected 2009 PM2.5 
concentrations at these sites were 14.7 and 13.5 [mu]g/m\3\, 
respectively. In the Dayton area, the monitor with the highest average 
concentration is at 215 East Third Street (site number 39-113-0032). 
For this site, the baseline average concentration was 15.5 [mu]g/m\3\, 
and the projected 2009 concentration was 13.2 [mu]g/m\3\. Projected 
concentrations at other sites in these areas were lower. Thus, Ohio has 
projected that both areas will attain the standard by 2009, which would 
be timely (since the area was designated in 2005).
    This modeling analysis was based on an emissions inventory that 
reflected no operation of E-Check in the Cincinnati and Dayton areas. 
Consequently, the modeling indicates that these areas will attain the 
standard by 2009 notwithstanding the discontinuation of E-Check in 
these areas. EPA believes, based on Ohio's modeling analysis, that 
discontinuation of E-Check in these areas will not interfere with 
timely attainment of the PM2.5 standard in these areas.
    EPA also notes that for the reasons stated in EPA's rulemaking 
concerning I/M for the Kentucky counties that are part of the 
Cincinnati-Hamilton nonattainment area for ozone and PM2.5, 
the measures providing equivalent emissions reductions, described in 
detail above for ozone, should also provide equivalent emission 
reductions for PM2.5. See 70 FR 17029, 17035 (April 4, 2005) 
(EPA's proposed approval of request to move I/M from the active 
measures to contingency measures of the Northern Kentucky SIP).
    Ohio was required, pursuant to Sections 172(b) and 172(c) of the 
Clean Air Act, to submit a plan by April 2008 that provides for timely 
attainment of the PM2.5 standard. EPA expects that Ohio will 
make a separate submittal to address this requirement. Although EPA 
expects that submittal to include a modeling analysis that is very 
similar to the modeling discussed here, EPA expects that the future 
submittal will provide weight-of-evidence analyses to assess whether 
other types of evidence corroborate these modeling results. EPA also 
expects that Ohio will hold a public hearing to obtain any public 
comments on this modeling. Therefore, EPA is not rulemaking here on 
whether Ohio has satisfied the requirement for a plan providing for 
timely attainment. Today's action uses these modeling results only to 
address the issue of whether discontinuation of E-Check will interfere 
with timely attainment of the PM2.5 standards.
    EPA believes that discontinuation of E-Check will clearly not 
interfere with Ohio meeting other Clean Air Act requirements. 
Discontinuation of E-Check will not cause any increase in emissions of 
sulfur dioxide or lead, and any impact on emissions of carbon monoxide 
is expected to be relatively small. Furthermore, the concentrations of 
these pollutants and for nitrogen dioxide in the Cincinnati and Dayton 
areas are less than half of the applicable air quality standards. 
Therefore, discontinuation of E-Check will not interfere with 
attainment of any of these air quality standards. The rationale for 
finding noninterference with timely attainment also supports finding 
that the revisions will not interfere with achievement of reasonable 
further progress toward attainment. Other requirements such as for 
reasonably available control technology are not affected by whether E-
Check is in place. Therefore, EPA believes that the combination of 
actions requested by Ohio, including discontinuation of E-Check and 
adoption of control measures such as reducing gasoline volatility, will 
not interfere with Ohio meeting applicable requirements.
    Section 193 of the Act applies to the removal of the I/M program in 
the Cincinnati-Hamilton nonattainment area. For the reasons described 
above, however, EPA believes that Ohio has adopted equivalent, 
offsetting reductions which satisfy section 193.

VI. What Are Our Conclusions Concerning the Removal of I/M Programs in 
the Cincinnati-Hamilton and Dayton-Springfield Areas?

    We are proposing to find that the State has demonstrated that 
eliminating the I/M programs in the Cincinnati-Hamilton and Dayton-
Springfield areas will not interfere with the attainment and 
maintenance of the ozone NAAQS and the fine particulate NAAQS and with 
the attainment and maintenance of other air quality standards and 
requirements of the CAA. We are proposing further to approve Ohio's 
request to modify the SIP such that I/M is no longer an active program 
in these areas and is instead a contingency measure in these areas' 
maintenance plans.
    As noted above, the Cincinnati area is currently designated 
nonattainment for ozone but is not classified. Pursuant to a decision 
of the Court of Appeals for the District of Columbia Circuit in the

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case of South Coast Air Quality Management Dist. v. EPA (472 F.3d 882 
(D.C. Cir. 2006)), EPA will be reevaluating the classification of ozone 
nonattainment areas that were formerly classified as ``basic'' (i.e. 
under subpart 1) for the .08 ppm standard. One possible outcome could 
be the reestablishment of a requirement for I/M for the Cincinnati 
area.\5\ However, for the reasons stated above, EPA believes that Ohio 
has satisfied currently applicable criteria for discontinuing I/M in 
the Cincinnati and Dayton areas.
---------------------------------------------------------------------------

    \5\ Because the Dayton area is designated attainment for the 
0.08 ppm 8-hour ozone standard, EPA's future classification rule for 
that standard would not aply to that area.
---------------------------------------------------------------------------

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Ozone, Particulate matter, Volatile 
organic compounds.

    Dated: July 16, 2008.
Walter W. Kovalick Jr,
Acting Regional Administrator, Region 5.
[FR Doc. E8-16987 Filed 7-23-08; 8:45 am]
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