[Federal Register Volume 74, Number 112 (Friday, June 12, 2009)]
[Proposed Rules]
[Pages 27957-27972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13853]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2009-0221; FRL-8917-9]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Ohio; Redesignation of the 
Cleveland-Akron-Lorain Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing several related actions affecting the 
Cleveland-Akron-Lorain, Ohio 8-hour ozone nonattainment area. EPA is 
proposing to make a determination under the Clean Air Act (CAA) that 
the Cleveland-Akron-Lorain nonattainment area has attained the 8-hour 
ozone National Ambient Air Quality Standard (NAAQS). The Cleveland-
Akron-Lorain area includes Ashtabula, Cuyahoga, Geauga, Lake, Lorain, 
Medina, Portage, and Summit Counties. This determination is based on 
quality-assured ambient air quality monitoring data for the 2006-2008 
ozone seasons that demonstrate that the 8-hour ozone NAAQS has been 
attained in the area. EPA is also proposing to approve, as a revision 
to the Ohio State Implementation Plan (SIP), the State's plan for 
maintaining the 8-hour ozone NAAQS through 2020 in the area. EPA is 
proposing to approve a request from the State of Ohio to redesignate 
the Cleveland-Akron-Lorain area to attainment of the 8-hour ozone 
NAAQS. The Ohio Environmental Protection Agency (Ohio EPA) submitted 
this request on March 17, 2009, and supplemented it on April 24, 2009.
    EPA is proposing to approve the 2002 base year emissions inventory 
for the Cleveland-Akron-Lorain area as meeting the requirements of the 
CAA. If EPA's determination that the area has attained the standard is 
made final, under the provisions of EPA's ozone implementation rule, 
the requirement to submit certain planning SIPS related to attainment, 
including attainment demonstration requirements (the reasonably 
available control measure (RACM) requirement, the reasonable further 
progress (RFP) and attainment demonstration requirements, and the 
requirement for contingency measures) are not applicable to the area as 
long as it continues to attain the NAAQS and would cease to apply upon 
redesignation. EPA is proposing to approve Ohio's 15 percent (15%) Rate 
of Progress (ROP) plan as meeting the requirements of the CAA for the 
1-hour ozone standard. EPA is also proposing to approve a waiver, for 
the Cleveland-Akron-Lorain area, from the oxides of nitrogen 
(NOX) requirements of section

[[Page 27958]]

182(f) of the CAA. Finally, EPA finds adequate and is proposing to 
approve the State's 2012 and 2020 Motor Vehicle Emission Budgets 
(MVEBs) for the Cleveland-Akron-Lorain area.

DATES: Comments must be received on or before July 13, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0221, by one of the following methods:
    I. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    II. E-mail: [email protected].
    III. Fax: (312) 886-2551.
    IV. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    V. Hand delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, 18th floor, 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-
2009-0221. 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'' 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 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 this document, ``What Should I Consider as 
I Prepare My Comments for EPA?''
    Docket: All documents in the docket are listed in the http://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 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: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

Table of Contents

I. What Should I Consider as I Prepare My Comments for EPA?
II. What Action Is EPA Proposing To Take?
III. What Is the Background for These Actions?
    A. What Is the General Background Information?
    B. What Are the Impacts of the December 22, 2006, and June 8, 
2007, United States Court of Appeals Decisions Regarding EPA's Phase 
1 Implementation Rule?
IV. What Are the Criteria for Redesignation?
V. What Is the Effect of These Actions?
VI. What Is EPA's Analysis of the Request?
    A. Attainment Determination and Redesignation
    B. Adequacy of Ohio's MVEBs
    C. 2002 Base Year Emissions Inventory
    D. 15% ROP Plan
    E. Section 182(f) NOX Exemption
VII. What Action Is EPA Taking?
VIII. Statutory and Executive Order Reviews

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

    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--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 Action Is EPA Proposing To Take?

    EPA is proposing to take several related actions. EPA is proposing 
to make a determination that the Cleveland-Akron-Lorain nonattainment 
area has attained the 8-hour ozone standard and that this area has met 
the requirements for redesignation under section 107(d)(3)(E) of the 
CAA. EPA is thus proposing to approve Ohio's request to change the 
legal designation of the Cleveland-Akron-Lorain area from nonattainment 
to attainment for the 8-hour ozone NAAQS. EPA is also proposing to 
approve Ohio's maintenance plan SIP revision for Cleveland-Akron-Lorain 
(such approval being one of the CAA criteria for redesignation to 
attainment status). The maintenance plan is designed to keep the 
Cleveland-Akron-Lorain area in attainment of the ozone NAAQS through 
2020. EPA is proposing to approve the 2002 base year emissions 
inventory for the Cleveland-Akron-Lorain area as meeting the 
requirements of section 182(a)(1) of the CAA. EPA is proposing to 
approve a waiver from the requirement for NOX reasonably 
available control technology (RACT) rules in the Cleveland-Akron-Lorain 
area. EPA is also proposing to approve

[[Page 27959]]

Ohio's 15% ROP plan as meeting the requirements of section 182(b)(1) of 
the CAA for the 1-hour ozone standard. Additionally, if EPA's proposal 
to determine that the area has attained the 1997 8-hour NAAQS is 
finalized, pursuant to the provisions of 40 CFR 51.918, the requirement 
to submit certain planning SIPs related to attainment (the RACM 
requirement of section 172(c)(1) of the CAA, the RFP and attainment 
demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) 
of the CAA, and the requirement for contingency measures of section 
172(c)(9) of the CAA) are not applicable to the area as long as it 
continues to attain the NAAQS. (These requirements would cease to apply 
upon redesignation.) Finally, EPA is proposing to approve the newly 
established 2012 and 2020 MVEBs for the Cleveland-Akron-Lorain area. 
The adequacy comment period for the MVEBs began on February 18, 2009, 
with EPA's posting of the availability of the submittal on EPA's 
Adequacy Web site (at http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm). The adequacy comment period for these MVEBs ended on 
March 20, 2009. EPA did not receive any requests for this submittal, or 
adverse comments on this submittal during the adequacy comment period. 
In a letter dated March 20, 2009, EPA informed Ohio EPA that we had 
found the 2012 and 2020 MVEBs to be adequate for use in transportation 
conformity analyses. Please see section VII.B. of this rulemaking, 
``Adequacy of Ohio's MVEBs,'' for further explanation on this process. 
Therefore, we find adequate, and are proposing to approve, the State's 
2012 and 2020 MVEBs for transportation conformity purposes.

III. What Is the Background for These Actions?

A. What Is the General Background Information?

    Ground-level ozone is not emitted directly by sources. Rather, 
emissions of NOX and volatile organic compounds (VOCs) react 
in the presence of sunlight to form ground-level ozone. NOX 
and VOCs are referred to as precursors of ozone.
    The CAA establishes a process for air quality management through 
the NAAQS. Before promulgation of the 8-hour standard, the ozone NAAQS 
was based on a 1-hour standard. On November 6, 1991 (56 FR 56693 and 
56813), the Cleveland-Akron-Lorain area was designated as a moderate 
nonattainment area under the 1-hour ozone NAAQS. The area was 
subsequently redesignated to attainment of the 1-hour standard on May 
7, 1996 (61 FR 20454). At the time EPA revoked the 1-hour ozone NAAQS, 
on June 15, 2005, the Cleveland-Akron-Lorain area was designated as 
attainment under the 1-hour ozone NAAQS.
    On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone 
standard of 0.08 parts per million parts (ppm). On April 30, 2004 (69 
FR 23857), EPA published a final rule designating and classifying areas 
under the 8-hour ozone NAAQS. These designations and classifications 
became effective June 15, 2004. EPA designated as nonattainment any 
area that was violating the 8-hour ozone NAAQS based on the three most 
recent years of air quality data, 2001-2003.
    The CAA contains two sets of provisions, subpart 1 and subpart 2, 
that address planning and control requirements for nonattainment areas. 
(Both are found in Title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 contains general requirements for 
nonattainment areas for any pollutant, including ozone, governed by a 
NAAQS. Subpart 2 provides more specific requirements for ozone 
nonattainment areas.
    Under EPA's implementation rule for the 1997 8-hour ozone standard, 
(69 FR 23951 (April 30, 2004)), an area was classified under subpart 2 
based on its 8-hour ozone design value (i.e. the three-year average 
annual fourth-highest daily maximum 8-hour average ozone 
concentration), if it had a 1-hour design value at the time of 
designation at or above 0.121 ppm (the lowest 1-hour design value in 
Table 1 of subpart 2) (69 FR 23954). All other areas were covered under 
subpart 1, based upon their 8-hour design values (69 FR 23958). The 
Cleveland-Akron-Lorain area was designated as a subpart 2, 8-hour ozone 
moderate nonattainment area by EPA on April 30, 2004 (69 FR 23857, 
23926-23927) based on air quality monitoring data from 2001-2003 (69 FR 
23860).
    40 CFR 50.10 and 40 CFR part 50, Appendix I provide that the 8-hour 
ozone standard is attained when the three-year average of the annual 
fourth-highest daily maximum 8-hour average ozone concentration is less 
than or equal to 0.08 ppm, when rounded. The data completeness 
requirement is met when the average percent of days with valid ambient 
monitoring data is greater than 90 percent, and no single year has less 
than 75 percent data completeness. See 40 CFR part 50, Appendix I, 
2.3(d).
    On March 17, 2009, Ohio EPA requested that EPA redesignate the 
Cleveland-Akron-Lorain area to attainment for the 8-hour ozone 
standard. The State supplemented the submittal on April 24, 2009. The 
redesignation request included three years of complete, quality-assured 
data for the period of 2006 through 2008, indicating the 8-hour NAAQS 
for ozone, as promulgated in 1997, had been attained for the Cleveland-
Akron-Lorain area. Under the CAA, nonattainment areas may be 
redesignated to attainment if sufficient complete, quality-assured data 
are available for the Administrator to determine that the area has 
attained the standard, and the area meets the other CAA redesignation 
requirements in section 107(d)(3)(E).
    On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour 
ozone standard of 0.075. EPA has not yet promulgated area designations 
for this standard. While both the 1997 and 2008 8-hour ozone standards 
are currently in place, the actions addressed in this proposed 
rulemaking relate only to the 1997 8-hour ozone standard.

B. What Are the Impacts of the December 22, 2006, and June 8, 2007, 
United States Court of Appeals Decisions Regarding EPA's Phase 1 
Implementation Rule?

1. Summary of Court Decision
    On December 22, 2006, in South Coast Air Quality Management Dist. 
v. EPA, 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). 472 F.3d 882 (D.C. Cir. 2006). On June 
8, 2007, in response to several petitions for rehearing, the D.C. 
Circuit Court clarified that the Phase 1 Rule was vacated only with 
regard to those parts of the rule that had been successfully 
challenged. Id., Docket No. 04 1201. Therefore, several provisions of 
the Phase 1 Rule remain effective: 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. The June 8, 2007, decision also 
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, 2007, decision reaffirmed the December 22, 2006, decision that EPA 
had improperly failed to retain four

[[Page 27960]]

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 Act, on the 
contingency of an area not making reasonable further progress toward 
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, 2007, 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.
    This section sets forth EPA's views on the potential effect of the 
Court's rulings on this proposed redesignation action. For the reasons 
set forth below, EPA does not believe that the Court's rulings alter 
any requirements relevant to this redesignation action so as to 
preclude redesignation or prevent EPA from proposing or ultimately 
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.
2. Requirements Under the 8-Hour Standard
    With respect to the 8-hour standard, the Cleveland-Akron-Lorain 
area is classified under subpart 2. The June 8, 2007, opinion clarifies 
that the Court did not vacate the Phase 1 Rule's provisions with 
respect to classifications for areas under subpart 2. The Court's 
decision therefore upholds EPA's classifications for those areas 
classified under subpart 2 for the 8-hour ozone standard.
3. Requirements Under the 1-Hour Standard
    With respect to the 1-hour standard requirements, the Cleveland-
Akron-Lorain area was an Attainment area subject to a CAA section 175A 
maintenance plan under the 1-hour standard. The Court's decisions do 
not impact redesignation requests for these types of areas, except to 
the extent that the Court, in its June 8, 2007, decision, clarified 
that for those areas with 1-hour motor vehicle emissions budgets in 
their maintenance plans, anti-backsliding requires 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.
    With respect to the three other anti-backsliding provisions for the 
1-hour standard that the Court found were not properly retained, the 
Cleveland-Akron-Lorain area is an attainment area subject to a 
maintenance plan for the 1-hour standard, and the NSR, contingency 
measures (pursuant to section 172(c)(9) or 182(c)(9)), and fee 
provision requirements no longer apply to an area that has been 
redesignated to attainment of the 1-hour standard.
    Thus the decision in South Coast should not alter requirements that 
would preclude EPA from proposing or finalizing the redesignation of 
this area.

IV. What Are the Criteria for Redesignation?

    The CAA provides the requirements for redesignating a nonattainment 
area 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); (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 SIP and applicable 
Federal air pollutant control regulations and other permanent and 
enforceable reductions; (4) the Administrator has fully approved a 
maintenance plan for the area as meeting the requirements of section 
175A; and, (5) the State containing such area has met all requirements 
applicable to the area under section 110 and part D.
    EPA provided guidance on redesignation in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990 on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). EPA has provided further guidance on processing 
redesignation requests in the following documents:

    ``Ozone and Carbon Monoxide Design Value Calculations,'' 
Memorandum from William G. Laxton, Director Technical Support 
Division, June 18, 1990;
    ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G. T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
    ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
    ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992;
    ``State Implementation Plan (SIP) Actions Submitted in Response 
to Clean Air Act (ACT) Deadlines,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division, October 28, 1992;
    ``Technical Support Documents (TSD's) for Redesignation Ozone 
and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G. 
T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 
1993;
    ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) 
On or After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993;
    ``Use of Actual Emissions in Maintenance Demonstrations for 
Ozone and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, 
Acting Director, Air Quality Management Division, to Air Division 
Directors, Regions 1-10, November 30, 1993.
    ``Part D New Source Review (part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994; and
    ``Reasonable Further Progress, Attainment Demonstration, and 
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard,'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 
10, 1995.

V. What Is the Effect of These Actions?

    Approval of the redesignation request would change the official 
designation of the area for the 8-hour ozone NAAQS found at 40 CFR part 
81. It would also incorporate into the Ohio SIP a plan for maintaining 
the 8-hour ozone NAAQS through 2020. The maintenance plan includes 
contingency measures to remedy future violations of the 8-hour NAAQS. 
It also establishes MVEBs of 46.64 and 31.48 tons per day (tpd) VOC and 
95.89 and 42.75 tpd NOX for the years 2012 and 2020, 
respectively.

[[Page 27961]]

VI. What Is EPA's Analysis of the Request?

A. Attainment Determination and Redesignation

    EPA is proposing to make a determination that the Cleveland-Akron-
Lorain area has attained the 8-hour ozone standard and that the area 
has met all other applicable section 107(d)(3)(E) redesignation 
criteria. The basis for EPA's determination is as follows:
1. The Area Has Attained the 8-Hour Ozone NAAQS (Section 
107(d)(3)(E)(i))
    EPA is proposing to make a determination that the Cleveland-Akron-
Lorain area has attained the 8-hour ozone NAAQS. For ozone, an area may 
be considered to be attaining the 8-hour ozone NAAQS if there are no 
violations, as determined in accordance with 40 CFR 50.10 and part 50, 
Appendix I, based on three complete, consecutive calendar years of 
quality-assured air quality monitoring data. To attain this standard, 
the three-year average of the fourth-highest daily maximum 8-hour 
average ozone concentrations measured at each monitor within an area 
over each year must not exceed 0.08 ppm. Based on the rounding 
convention described in 40 CFR part 50, Appendix I, the standard is 
attained if the design value is 0.084 ppm or below. The data must be 
collected and quality-assured in accordance with 40 CFR part 58, and 
recorded in the Aerometric Information Retrieval System (AIRS). The 
monitors generally should have remained at the same location for the 
duration of the monitoring period required for demonstrating 
attainment.
    Ohio EPA submitted ozone monitoring data for the 2006 to 2008 ozone 
seasons. Ohio EPA quality-assured the ambient monitoring data in 
accordance with 40 CFR 58.10, and recorded it in the AIRS database, 
thus making the data publicly available. The data meet the completeness 
criteria in 40 CFR Part 50, Appendix I, which requires a minimum 
completeness of 75 percent annually and 90 percent over each three year 
period. Monitoring data is presented in Table 1 below.

   Table 1--Annual 4th High Daily Maximum 8-Hour Ozone Concentration and Three Year Averages of 4th High Daily
                                       Maximum 8-Hour Ozone Concentrations
----------------------------------------------------------------------------------------------------------------
                                                                                                      2006-2008
               County                         Monitor          2006  4th    2007  4th    2008  4th     average
                                                              high  (ppm)  high  (ppm)  high  (ppm)     (ppm)
----------------------------------------------------------------------------------------------------------------
Ashtabula...........................  Conneaut 39-007-1001..        0.086        0.092        0.075        0.084
Cuyahoga............................  Cleveland 39-035-0034.        0.074        0.080        0.081        0.078
                                      Berea 39-035-0064.....        0.068        0.083        0.072        0.074
                                      Mayfield 39-035-5002..        0.081        0.080        0.083        0.081
Geauga..............................  Cleveland 39-055-0004.        0.070        0.068        0.082        0.073
Lake................................  Eastlake 39-085-0003..        0.083        0.074        0.078        0.078
                                      Painsville 39-085-3002        0.075        0.079        0.076        0.076
Lorain..............................  Sheffield 39-093-0018.        0.069        0.078        0.075        0.074
Medina..............................  Cleveland 39-103-0003.        0.073        0.069        0.075        0.072
Portage.............................  Akron 39-133-1001.....        0.070        0.084        0.069        0.074
Summit..............................  Akron 39-153-0020.....        0.077        0.090        0.080        0.082
----------------------------------------------------------------------------------------------------------------

    In addition, as discussed below with respect to the maintenance 
plan, Ohio EPA has committed to continue to operate an EPA-approved 
monitoring network as necessary to demonstrate ongoing compliance with 
the NAAQS. Ohio EPA commits to continue monitoring ozone at the sites 
indicated in Table 1. Ohio EPA also commits to consult with EPA prior 
to making changes to the existing monitoring network, should changes 
become necessary in the future. Ohio EPA remains obligated to continue 
to quality assure monitoring data in accordance with 40 CFR part 58 and 
enter all data into the Air Quality System in accordance with Federal 
guidelines. In summary, EPA believes that the data submitted by Ohio 
provide an adequate demonstration that the Cleveland-Akron-Lorain area 
has attained the 8-hour ozone NAAQS, and currently available data show 
that the area continues to attain the standard. Should the area violate 
the standard before the redesignation is finalized, EPA will not go 
forward with the redesignation.
2. The Area Has Met All Applicable Requirements Under Section 110 and 
Part D; and the Area Has a Fully Approved SIP Under Section 110(k) 
(Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
    We have determined that Ohio has met all currently applicable SIP 
requirements for purposes of redesignation for the Cleveland-Akron-
Lorain area under section 110 of the CAA (general SIP requirements). We 
have also determined that the Ohio SIP meets all SIP requirements 
currently applicable for purposes of redesignation under part D of 
Title I of the CAA (requirements specific to subpart 1 nonattainment 
areas), in accordance with section 107(d)(3)(E)(v). In addition, with 
the exception of the base year emissions inventory, certain VOC RACT 
regulations, and the section 182(f) NOX exemption, we have 
determined that the Ohio SIP is fully approved with respect to all 
applicable requirements for purposes of redesignation, in accordance 
with section 107(d)(3)(E)(ii). As discussed below, in this action EPA 
is proposing to approve Ohio's 2002 base year emissions inventory and 
NOX RACT waiver. In a separate action, EPA is proposing to 
approve Ohio's VOC RACT submittal.
    In making these determinations, we have ascertained what SIP 
requirements are applicable to the area for purposes of redesignation, 
and have determined that the portions of the SIP meeting these 
requirements are fully approved under section 110(k) of the CAA. As 
discussed more fully below, SIPs must be fully approved only with 
respect to currently applicable requirements of the CAA.
    The September 4, 1992, Calcagni memorandum (see ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992) describes EPA's interpretation of section 
107(d)(3)(E) of the CAA. Under this interpretation, a State and the 
area it wishes to redesignate must meet the relevant CAA requirements 
that are due prior to the State's submittal of a complete redesignation 
request for the area. See

[[Page 27962]]

also the September 17, 1993, Michael Shapiro memorandum and 60 FR 
12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, 
Michigan to attainment of the 1-hour ozone NAAQS). Applicable 
requirements of the CAA that come due subsequent to the State's 
submittal of a complete request remain applicable until a redesignation 
to attainment is approved, but are not required as a prerequisite to 
redesignation. See section 175A(c) of the CAA. Sierra Club v. EPA, 375 
F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) 
(redesignation of the St. Louis/East St. Louis area to attainment of 
the 1-hour ozone NAAQS).
    Since EPA is proposing here to determine that the area has attained 
the 1997 8-hour ozone standard, under 40 CFR 51.918, if that 
determination is finalized, the requirements to submit certain planning 
SIPs related to attainment, including attainment demonstration 
requirements (the RACM requirement of section 172(c)(1) of the CAA, the 
RFP and attainment demonstration requirements of sections 172(c)(2) and 
(6) and 182(b)(1) of the CAA, and the requirement for contingency 
measures of section 172(c)(9) of the CAA) would not be applicable to 
the area as long as it continues to attain the NAAQS and would cease to 
apply upon redesignation. In addition, in the context of 
redesignations, EPA has interpreted requirements related to attainment 
as not applicable for purposes of redesignation. For example, in the 
General Preamble EPA stated that:

[t]he section 172(c)(9) requirements are directed at ensuring RFP 
and attainment by the applicable date. These requirements no longer 
apply when an area has attained the standard and is eligible for 
redesignation. Furthermore, section 175A for maintenance plans * * * 
provides specific requirements for contingency measures that 
effectively supersede the requirements of section 172(c)(9) for 
these areas. ``General Preamble for the Interpretation of Title I of 
the Clean Air Act Amendments of 1990,'' (General Preamble) 57 FR 
13498, 13564 (April 16, 1992).

See also Calcagni memorandum at 6 (``The requirements for reasonable 
further progress and other measures needed for attainment will not 
apply for redesignations because they only have meaning for areas not 
attaining the standard.'').
a. The Cleveland-Akron-Lorain Area Has Met All Applicable Requirements 
Under Section 110 and Part D of the CAA for Purposes of Redesignation
i. Section 110 General SIP Requirements
    Section 110(a) of Title I of the CAA contains the general 
requirements for a SIP. Section 110(a)(2) provides that the 
implementation plan submitted by a State must have been adopted by the 
State after reasonable public notice and hearing, and that, among other 
things, it includes enforceable emission limitations and other control 
measures, means or techniques necessary to meet the requirements of the 
CAA; provides for establishment and operation of appropriate devices, 
methods, systems and procedures necessary to monitor ambient air 
quality; provides for implementation of a source permit program to 
regulate the modification and construction of any stationary source 
within the areas covered by the plan; includes provisions for the 
implementation of part C, Prevention of Significant Deterioration (PSD) 
and part D, NSR permit programs; includes criteria for stationary 
source emission control measures, monitoring, and reporting; includes 
provisions for air quality modeling; and provides for public and local 
agency participation in planning and emission control rule development.
    Section 110(a)(2)(D) of the CAA requires that SIPs contain measures 
to prevent sources in a State from significantly contributing to air 
quality problems in another State. To implement this provision, EPA has 
required certain States to establish programs to address transport of 
air pollutants (NOX SIP Call \1\ and Clean Air Interstate 
Rule (CAIR) (70 FR 25162, May 12 2005)). However, the section 
110(a)(2)(D) requirements for a State are not linked with a particular 
nonattainment area's designation and classification. EPA believes that 
the requirements linked with a particular nonattainment area's 
designation and classification are the relevant measures to evaluate in 
reviewing a redesignation request. The transport SIP submittal 
requirements, where applicable, continue to apply to a State regardless 
of the designation of any one particular area in the State. Thus, we 
believe that these requirements should not be construed to be 
applicable requirements for purposes of redesignation.
---------------------------------------------------------------------------

    \1\ On October 27, 1998 (63 FR 57356), EPA issued a 
NOX SIP call requiring the District of Columbia and 22 
States to reduce emissions of NOX in order to reduce the 
transport of ozone and ozone precursors. In compliance with EPA's 
NOX SIP call, Ohio EPA has developed rules governing the 
control of NOX emissions from Electric Generating Units 
(EGUs), major non-EGU industrial boilers, and major cement kilns. 
EPA approved Ohio's rules as fulfilling Phase I of the 
NOX SIP Call on August 5, 2003 (68 FR 46089) and June 27, 
2005 (70 FR 36845). EPA approved Ohio's rules as meeting Phase II of 
the NOX SIP call on February 4, 2008 (73 FR 6427).
---------------------------------------------------------------------------

    Further, we believe that the other section 110 elements described 
above that are not connected with nonattainment plan submissions and 
not linked with an area's attainment status are also not applicable 
requirements for purposes of redesignation. A State remains subject to 
these requirements after an area is redesignated to attainment. We 
conclude that only the section 110 and part D requirements which are 
linked with a particular area's designation and classification are the 
relevant measures which we may consider in evaluating a redesignation 
request. This approach is consistent with EPA's existing policy on 
applicability of conformity and oxygenated fuels requirements for 
redesignation purposes, as well as with section 184 ozone transport 
requirements. See Reading, Pennsylvania, proposed and final rulemakings 
(61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); 
Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 
1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 
1995). See also the discussion on this issue in the Cincinnati, Ohio 
ozone redesignation (65 FR 37890, June 19, 2000), and in the 
Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, October 19, 
2001).
    We have reviewed Ohio's SIP and have concluded that it meets the 
general SIP requirements under section 110 of the CAA, to the extent 
those requirements are applicable for purposes of redesignation. EPA 
has previously approved provisions of the Ohio SIP addressing section 
110 elements under the 1-hour ozone standard (40 CFR 52.1870). Further, 
in submittals dated December 5, 2007, and September 19, 2008, Ohio 
confirmed that the State continues to meet the section 110 requirements 
for the 8-hour ozone standard. EPA has not yet taken rulemaking action 
on these submittals; however, such approval is not necessary for 
redesignation.
ii. Part D Requirements
    EPA has determined that, with the approval of the base year 
emissions inventory and the NOX waiver, discussed in section 
VII.C. of this rulemaking, and the VOC RACT submittal, discussed below 
under the heading ``Subpart 2 Section 182(a) and (b) Requirements,'' 
the Ohio SIP will

[[Page 27963]]

meet the SIP requirements applicable for purposes of redesignation 
under part D of the CAA for the Cleveland-Akron-Lorain area. Under part 
D of the CAA, an area's classification determines the requirements to 
which it will be subject. Subpart 1 of part D, found in sections 172-
176 of the CAA, sets forth the basic nonattainment requirements 
applicable to all nonattainment areas. Subpart 2 of part D, which 
includes section 182 of the CAA, establishes additional specific 
requirements depending on the area's nonattainment classification.
    The Cleveland-Akron-Lorain area was classified as a moderate area 
under subpart 2; therefore the State must meet both the applicable 
requirements of subpart 1 and subpart 2 of part D. The applicable 
subpart 1 requirements are contained in sections 172(c)(1)-(9) and in 
section 176. The subpart 2 requirements applicable to the Cleveland-
Akron-Lorain area are contained in sections 182(a) and (b) (marginal 
and moderate nonattainment area requirements).
    Subpart 1 Section 172 Requirements.
    For purposes of evaluating this redesignation request, the 
applicable section 172 SIP requirements for the Cleveland-Akron-Lorain 
area are contained in sections 172(c)(1)-(9). A thorough discussion of 
the requirements contained in section 172 can be found in the General 
Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
    Section 172(c)(1) requires the plans for all nonattainment areas to 
provide for the implementation of all RACM as expeditiously as 
practicable. The EPA interprets this requirement to impose a duty on 
all nonattainment areas to consider all available control measures and 
to adopt and implement such measures as are reasonably available for 
implementation in the area as components of the areas attainment 
demonstration. Because attainment has been reached, no additional 
measures are needed to provide for attainment.
    The RFP requirement under section 172(c)(2) is defined as progress 
that must be made toward attainment. This requirement is not relevant 
because the Cleveland-Akron-Lorain area has demonstrated monitored 
attainment of the ozone NAAQS (General Preamble, 57 FR 13564). In 
addition, because the Cleveland-Akron-Lorain area has attained the 
ozone NAAQS and is no longer subject to an RFP requirement, the section 
172(c)(9) contingency measures are not applicable.
    Section 172(c)(3) requires submission and approval of a 
comprehensive, accurate and current inventory of actual emissions. This 
requirement was superseded by the inventory requirement in section 
182(a)(1).
    Section 172(c)(4) requires the identification and quantification of 
allowable emissions for major new and modified stationary sources to be 
allowed in an area, and section 172(c)(5) requires source permits for 
the construction and operation of new and modified major stationary 
sources anywhere in the nonattainment area. EPA has determined that, 
since PSD requirements will apply after redesignation, areas being 
redesignated need not comply with the requirement that a NSR program be 
approved prior to redesignation, provided that the area demonstrates 
maintenance of the NAAQS without part D NSR. A more detailed rationale 
for this view is described in a memorandum from Mary Nichols, Assistant 
Administrator for Air and Radiation, dated October 14, 1994, entitled, 
``Part D New Source Review Requirements for Areas Requesting 
Redesignation to Attainment.'' Ohio has demonstrated that the 
Cleveland-Akron-Lorain area will be able to maintain the standard 
without part D NSR in effect; therefore, EPA concludes that the State 
need not have a fully approved part D NSR program prior to approval of 
the redesignation request. The State's PSD program will become 
effective in the Cleveland-Akron-Lorain area upon redesignation to 
attainment. See rulemakings for Detroit, Michigan (60 FR 12467-12468, 
March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, 
May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and 
Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
    Section 172(c)(6) requires the SIP to contain control measures 
necessary to provide for attainment of the standard. Because attainment 
has been reached, no additional measures are needed to provide for 
attainment.
    Section 172(c)(7) requires the SIP to meet the applicable 
provisions of section 110(a)(2). As noted above, we believe the Ohio 
SIP meets the requirements of section 110(a)(2) for purposes of 
redesignation.
    Subpart 1 Section 176 Conformity Requirements.
    Section 176(c) of the CAA requires States to establish criteria and 
procedures to ensure that Federally-supported or funded activities, 
including highway projects, conform to the air quality planning goals 
in the applicable SIPs. The requirement to determine conformity applies 
to transportation plans, programs and projects developed, funded or 
approved under Title 23 of the U.S. Code and the Federal Transit Act 
(transportation conformity) as well as to all other Federally-supported 
or funded projects (general conformity). State conformity revisions 
must be consistent with Federal conformity regulations relating to 
consultation, enforcement, and enforceability, which EPA promulgated 
pursuant to CAA requirements.
    EPA believes that it is reasonable to interpret the conformity SIP 
requirements as not applying for purposes of evaluating the 
redesignation request under section 107(d) for two reasons. First, the 
requirement to submit SIP revisions to comply with the conformity 
provisions of the CAA continues to apply to areas after redesignation 
to attainment since such areas would be subject to a section 175A 
maintenance plan. Second, EPA's Federal conformity rules require the 
performance of conformity analyses in the absence of Federally-approved 
State rules. Therefore, because areas are subject to the conformity 
requirements regardless of whether they are redesignated to attainment 
and, because they must implement conformity under Federal rules if 
State rules are not yet approved, EPA believes it is reasonable to view 
these requirements as not applying for purposes of evaluating a 
redesignation request. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), 
upholding this interpretation. See also 60 FR 62748, 62749-62750 (Dec. 
7, 1995) (Tampa, Florida).
    EPA approved Ohio's general and transportation conformity SIPs on 
March 11, 1996 (61 FR 9646), and May 30, 2000 (65 FR 34395), 
respectively. Ohio has submitted onroad motor vehicle budgets for the 
Cleveland-Akron-Lorain area of 46.64 and 31.48 tpd VOC and 95.89 and 
42.75 tpd NOX for the years 2012 and 2020, respectively. The 
area must use the MVEBs from the maintenance plan in any conformity 
determination that is effective on or after the effective date of the 
maintenance plan approval.
    Subpart 2 Section 182(a) and (b) Requirements.
    As set forth in the September 4, 1992, and September 17, 1993, EPA 
guidance memoranda referenced in section IV of this action, ``What Are 
the Criteria for Redesignation?,'' only those requirements which came 
due prior to Ohio's submittal of a request to designate the Cleveland-
Akron-Lorain area must be fully approved into the SIP before or at the 
time EPA approves the redesignation of the area to attainment. These 
requirements are discussed below.
    Base Year Emissions Inventory. Section 182(a)(1) requires the

[[Page 27964]]

submission of a base year emissions inventory. As part of Ohio's 
redesignation request for the Cleveland-Akron-Lorain area, the State 
submitted a 2002 base year emissions inventory. As discussed below, EPA 
is proposing to approve the 2002 base year inventory that Ohio 
submitted with the redesignation request as meeting the section 
182(a)(1) emissions inventory requirement.
    Emissions Statements. EPA approved Ohio's emission statement SIP, 
as required by section 182(a)(3)(B), on October 13, 1994 (59 FR 51863).
    Reasonable Further Progress and Attainment Demonstration. On June 
15, 2007, and February 22, 2008, Ohio EPA submitted an attainment 
demonstration and reasonable further progress plans for the Cleveland-
Akron-Lorain area as required by section 182(b)(1) of the CAA. In this 
submittal, Ohio EPA requested that EPA act on the 15% ROP plan that was 
originally submitted by Ohio to meet section 182(b)(1) requirements 
under the 1-hour ozone standard. Because attainment has been reached, 
section 182(b)(1) requirements are no longer considered to be 
applicable as long as the area continues to attain the standard. 
Nevertheless, as discussed below, EPA is proposing to approve Ohio's 
15% ROP plan as meeting the requirements of section 182(b)(1) of the 
CAA for the 1-hour ozone standard.
    VOC RACT Requirements. Section 182(b)(2) requires States with 
moderate nonattainment areas to implement RACT under section 172(c)(1) 
with respect to each of the following: (1) All sources covered by a 
Control Technology Guideline (CTG) document issued between November 15, 
1990, and the date of attainment; (2) all sources covered by a CTG 
issued prior to November 15, 1990; and, (3) all other major non-CTG 
stationary sources. As required under the 1-hour ozone standard, Ohio 
submitted VOC RACT rules covering the second and third categories. The 
EPA approved these VOC RACT rules on April 25, 1996 (61 FR 18255), 
September 7, 1994 (59 FR 46182), and October 23, 1995 (60 FR 54308). 
With respect to the first category, EPA issued CTGs for five source 
categories in September 2006 and three additional source categories in 
September 2007. Areas classified as moderate and above were required to 
submit VOC RACT for the source categories covered by these CTGs, by 
September 2007, and September 2008, respectively. Ohio submitted a SIP 
revision to address these CTGs on March 23, 2009. On May 7, 2009 (74 FR 
21295), EPA proposed to approve Ohio's RACT submittal. Full approval of 
Ohio's RACT submittal is a prerequisite for approval of the 
redesignation of the Cleveland-Akron-Lorain area to attainment.
    NOX RACT. Section 182(f) establishes NOX requirements 
for ozone nonattainment areas. However, it provides that these 
requirements do not apply to an area if the Administrator determines 
that NOX reductions would not contribute to attainment. As 
discussed in section VI.E. below, we are proposing such a determination 
for the Cleveland-Akron-Lorain nonattainment area as requested by the 
State of Ohio. If the NOX waiver is approved as a final 
rule, the State of Ohio need have fully approved NOX control 
measures under section 182(f) for the Cleveland-Akron-Lorain area to be 
redesignated to attainment.
    Stage II Vapor Recovery. Section 182(b)(3) requires States to 
submit Stage II rules no later than November 15, 1992. The EPA 
partially approved and partially disapproved Ohio's SIP revision for 
implementation of Stage II on October 20, 1994 (59 FR 52911). As stated 
in that rulemaking action, with the exception of paragraph 3745-21-09 
(DDD)(5), EPA considers Ohio's Stage II program to fully satisfy the 
criteria set forth in the September 17, 1993, EPA guidance document for 
such programs entitled ``Enforcement Guidance for Stage II Vehicle 
Refueling Control Programs.'' Furthermore, the September 17, 1993, 
guidance memorandum states that once onboard vapor recovery regulations 
are promulgated, the requirement for Stage II regulations no longer 
applies to moderate ozone nonattainment areas. The EPA promulgated 
onboard vapor recovery rules in February 1994. Therefore, pursuant to 
section 202(a)(6) of the CAA, Stage II regulations are no longer 
required.
    Vehicle Inspection and Maintenance (I/M). The EPA's final I/M 
regulations in 40 CFR part 85 require the States to submit a fully 
adopted I/M program by November 15, 1993. EPA approved Ohio's enhanced 
I/M program (E-Check), on April 4, 1995 (60 FR 16989) and January 6, 
1997 (62 FR 646).
    Thus, as discussed above, with approval of the base year inventory, 
the section 182(f) NOX exemption, and Ohio's VOC RACT 
submittal, the Cleveland-Akron-Lorain area will satisfy the 
requirements applicable for purposes of redesignation under section 110 
and part D of the CAA.
    b. The Cleveland-Akron-Lorain Area Has a Fully Approved Applicable 
SIP for Purposes of Redesignation Under Section 110(k) of the CAA.
    If EPA finalizes approvals of the base year emissions inventory, 
Ohio's VOC RACT submittal, and the section 182(f) NOX 
exemption, EPA will have fully approved the Ohio SIP for the Cleveland-
Akron-Lorain area under section 110(k) of the CAA for all requirements 
applicable for purposes of redesignation. EPA may rely on prior SIP 
approvals in approving a redesignation request (See page three of the 
September 4, 1992, John Calcagni memorandum; Southwestern Pennsylvania 
Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall 
v. EPA, 265 F.3d 426 (6th Cir. 2001)) plus any additional measures it 
may approve in conjunction with a redesignation action. See 68 FR 
25413, 25426 (May 12, 2003). Since the passage of the CAA of 1970, Ohio 
has adopted and submitted, and EPA has fully approved, provisions 
addressing the various required SIP elements applicable to the 
Cleveland-Akron-Lorain area under the 1-hour ozone standard. In this 
action, EPA is proposing to approve Ohio's 2002 base year emissions 
inventory for the Cleveland-Akron-Lorain area as meeting the 
requirement of section 182(a)(1) of the CAA. EPA is also proposing to 
approve Ohio's NOX waiver for the Cleveland-Akron-Lorain 
area. In a separate action, EPA is proposing to approve Ohio's VOC RACT 
submission. No Cleveland-Akron-Lorain area SIP provisions are currently 
disapproved, conditionally approved, or partially approved.
3. The Improvement in Air Quality Is Due to Permanent and Enforceable 
Reductions in Emissions Resulting From Implementation of the SIP and 
Applicable Federal Air Pollution Control Regulations and Other 
Permanent and Enforceable Reductions (Section 107(d)(3)(E)(iii))
    EPA finds that Ohio has demonstrated that the observed air quality 
improvement in the Cleveland-Akron-Lorain area is due to permanent and 
enforceable reductions in emissions resulting from implementation of 
the SIP, Federal measures, and other State-adopted measures.
    In making this demonstration, the State has calculated the change 
in emissions between 2002 and 2006. Ohio used the 2002 nonattainment 
area base year emissions inventory required under section 182(a)(1) of 
the CAA as the nonattainment inventory for redesignation purposes. The 
State developed an attainment inventory for 2006, one of the years the 
Cleveland-Akron-Lorain area monitored attainment. The reduction in 
emissions

[[Page 27965]]

and the corresponding improvement in air quality over this time period 
can be attributed to a number of regulatory control measures that 
Cleveland-Akron-Lorain and upwind areas have implemented in recent 
years.
    a. Permanent and Enforceable Controls Implemented.
    The following is a discussion of permanent and enforceable measures 
that have been implemented in the areas:
    i. VOC Controls. Ohio adopted rules to limit VOC emissions from 
portable fuel containers and consumer and commercial products.
    ii. Automobile Inspection and Maintenance (I/M) program. Ohio 
operates an enhanced automobile inspection and maintenance program in 
the Cleveland-Akron-Lorain area.
    iii. Stationary Source NOX Rules. Ohio EPA developed rules 
governing the control of NOX emissions from Electric 
Generating Units (EGUs), major non-EGU industrial boilers, and major 
cement kilns. EPA approved Ohio's rules as fulfilling Phase I of the 
NOX SIP Call on August 5, 2003 (68 FR 46089,) and June 27, 
2005 (70 FR 36845), and as fulfilling Phase II of the SIP call on 
February 4, 2008 (73 FR 6427). Beginning in 2004, this rule accounts 
for approximately a 31 percent reduction in statewide NOX 
emissions.
    iv. Federal Emission Control Measures. Reductions in VOC and 
NOX emissions have occurred Statewide and in upwind areas as 
a result of Federal emission control measures, with additional emission 
reductions expected to occur in the future. Federal emission control 
measures include: The National Low Emission Vehicle (NLEV) program, 
Tier 2 emission standards for vehicles, gasoline sulfur limits, low 
sulfur diesel fuel standards, and heavy-duty diesel engine standards. 
In addition, on June 29, 2004 (69 FR 38958), EPA issued the Clean Air 
Non-road Diesel Rule, which phases in Tier 4 emissions standards over 
the 2008-2015 time period.
    v. Control Measures in Upwind Areas. On October 27, 1998 (63 FR 
57356), EPA issued a NOX SIP call requiring the District of 
Columbia and 22 States to reduce emissions of NOX. The 
reduction in NOX emissions has resulted in lower 
concentrations of transported ozone entering the Cleveland-Akron-Lorain 
area. Emission reductions resulting from regulations developed in 
response to the NOX SIP call are permanent and enforceable.
    b. Emission Reductions.
    Ohio is using the 2002 base year inventory developed pursuant to 
section 182(a)(1) of the CAA as the nonattainment inventory. In 
developing the 2002 base year inventory, Ohio EPA provided point and 
area source inventories to the Lake Michigan Air Directors Consortium 
(LADCO). The main purpose of LADCO is to provide technical assessments 
for and assistance to its member States on problems of air quality. 
LADCO's primary geographic focus is the area encompassed by its member 
States (Illinois, Indiana, Michigan, Ohio and Wisconsin) and any areas 
which affect air quality in its member States. LADCO processed these 
inventories through the Emission Modeling System (EMS) to generate 
summer weekday emissions for VOC and NOX. The processed 
modeling inventories were used for the base year inventory. The point 
source data provided to LADCO is a combination of EPA's EGU inventory 
and source-specific data reported to Ohio EPA for non-EGU sources. Area 
source emissions were estimated by Ohio EPA using published Emission 
Inventory Improvement Program methodologies or methodologies shared by 
other States. Ohio EPA documented the methodology used for each area 
source category. Nonroad mobile emissions were generated for LADCO 
using EPA's National Mobile Inventory Model (NMIM), with the following 
exceptions: recreational motorboat populations and spatial surrogates 
were updated; emissions estimates were developed for commercial marine 
vessels, aircraft, and railroads (MAR), three nonroad categories not 
included in NMIM; and, onroad mobile emissions were calculated using 
the MOBILE6.2 emissions model.
    Ohio is using 2006 for the attainment year inventory. Ohio EPA 
developed a 2005 base year inventory, in conjunction with LADCO, using 
the methodology described above for base year 2002. With the exception 
of the onroad mobile sector, Ohio EPA used growth factors provided by 
LADCO to project this inventory to 2006. Onroad mobile emissions were 
calculated for 2006 using the MOBILE6.2 emissions model.
    Using the inventories described above, Ohio's submittal documents 
changes in VOC and NOX emissions from 2002 to 2006 for the 
Cleveland-Akron-Lorain area. Emissions data are shown in Tables 3 
through 5 below.

                              Table 3--Cleveland-Akron-Lorain Area VOC and NOX Emissions for Nonattainment Year 2002 (TPD)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Point               Area               Nonroad             Onroad               Total
                                                     ---------------------------------------------------------------------------------------------------
                                                         VOC       NOX       VOC       NOX       VOC       NOX       VOC       NOX       VOC       NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ashtabula...........................................      5.58     11.46      3.31      0.51      9.77      8.99      5.78      9.60     24.44     30.56
Cuyahoga............................................      2.19     10.76     46.90      5.90     39.95     40.28     43.68     90.55    132.72    147.49
Geauga..............................................      0.00      0.00      8.26      0.44      3.98      2.07      3.62      6.80     15.86      9.31
Lake................................................      0.49     72.36      9.01      0.97     13.35      8.27      8.20     17.65     31.05     99.25
Lorain..............................................      2.44     58.68     11.96      0.77     13.46     13.60      9.54     20.33     37.40     93.38
Medina..............................................      0.20      0.08      6.18      0.76      3.96      4.02      7.58     16.31     17.92     21.17
Portage.............................................      0.61      0.00      6.45      0.77      5.10      5.68      6.61     14.56     18.77     21.01
Summit..............................................      1.13      3.64     18.61      2.37      9.15     11.53     24.48     50.37     53.37     67.91
                                                     ---------------------------------------------------------------------------------------------------
    Total...........................................     12.64    156.98    110.68     12.49     98.72     94.44    109.49    226.17    331.53    490.08
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                  Table 4--Cleveland-Akron-Lorain VOC and NOX Emissions for Attainment Year 2006 (TPD)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Point               Area               Nonroad             Onroad               Total
                                                     ---------------------------------------------------------------------------------------------------
                                                         VOC       NOX       VOC       NOX       VOC       NOX       VOC       NOX       VOC       NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ashtabula...........................................      0.94      4.52      5.89      0.85      9.19      8.71      4.00      7.01     20.02     21.09
Cuyahoga............................................      3.68     13.56     44.14     13.83     40.62     36.61     27.64     64.40    116.08    128.40
Geauga..............................................      0.00      0.00      9.96      1.01      4.87      2.58      2.41      5.06     17.24      8.65

[[Page 27966]]

 
Lake................................................      0.82     37.48      9.06      2.30     11.13      8.99      5.33     13.00     26.34     61.77
Lorain..............................................      3.18     27.31     11.45      2.66     13.03     12.84      6.17     14.88     33.83     57.69
Medina..............................................      0.79      0.26      7.40      1.57      5.29      5.02      5.05     12.32     18.53     19.17
Portage.............................................      0.95      0.22      6.19      1.52      7.49      6.25      4.30     10.79     18.93     18.78
Summit..............................................      1.27      3.23     18.17      5.51     12.36     11.33     14.18     34.28     45.98     54.35
                                                     ---------------------------------------------------------------------------------------------------
    Total...........................................     11.63     86.58     92.32     29.25     57.67     92.33     69.08    161.74    296.95    369.90
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                 Table 5--Comparison of Cleveland-Akron-Lorain 2002 and 2006 VOC and NOX Emissions (TPD)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                VOC                                             NOX
                                                         -----------------------------------------------------------------------------------------------
                                                                                            Net change                                      Net change
                                                               2002            2006         (2002-2006)        2002            2006         (2002-2006)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point...................................................           12.64           11.63           -1.01          156.98           86.58          -70.40
Area....................................................          110.68           92.32          -18.36           12.49           29.25           16.76
Nonroad.................................................           98.72           57.67          -41.05           94.44           92.33           -2.11
Onroad..................................................          109.49           69.08          -40.41          226.17          161.74          -64.43
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................          331.53          296.95          -34.58          490.08          369.90         -120.18
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 5 shows that the Cleveland-Akron-Lorain area reduced VOC 
emissions by 34.58 tpd and NOX emissions by 120.18 tpd 
between 2002 and 2006. Based on the information summarized above, Ohio 
has adequately demonstrated that the improvement in air quality is due 
to permanent and enforceable emissions reductions.
4. The Area Has a Fully Approved Maintenance Plan Pursuant to Section 
175a of the CAA (Section 107(d)(3)(E)(iv))
    In conjunction with its request to redesignate the Cleveland-Akron-
Lorain nonattainment area to attainment status, Ohio submitted a SIP 
revision to provide for the maintenance of the 8-hour ozone NAAQS in 
the area through 2020.
    a. What Is Required in a Maintenance Plan?
    Section 175A of the CAA sets forth the required elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. Under section 175A, the plan must demonstrate continued 
attainment of the applicable NAAQS for at least ten years after the 
Administrator approves a redesignation to attainment. Eight years after 
the redesignation, the State must submit a revised maintenance plan 
which demonstrates that attainment will continue to be maintained for 
ten years following the initial ten-year maintenance period. To address 
the possibility of future NAAQS violations, the maintenance plan must 
contain contingency measures with a schedule for implementation as EPA 
deems necessary to assure prompt correction of any future 8-hour ozone 
violations.
    The September 4, 1992, John Calcagni memorandum provides additional 
guidance on the content of a maintenance plan. The memorandum clarifies 
that an ozone maintenance plan should address the following items: The 
attainment VOC and NOX emissions inventories, a maintenance 
demonstration showing maintenance for the ten years of the maintenance 
period, a commitment to maintain the existing monitoring network, 
factors and procedures to be used for verification of continued 
attainment of the NAAQS, and a contingency plan to prevent or correct 
future violations of the NAAQS.
    b. Attainment Inventory.
    The Ohio EPA developed an emissions inventory for 2006, one of the 
years Ohio used to demonstrate monitored attainment of the 8-hour 
NAAQS, as described above. The attainment level of emissions is 
summarized in Table 4, above.
    c. Demonstration of Maintenance.
    Along with the redesignation request, Ohio submitted a revision to 
the 8-hour ozone SIP to include a maintenance plan for the Cleveland-
Akron-Lorain area, in compliance with section 175A of the CAA. This 
demonstration shows maintenance of the 8-hour ozone standard through 
2020 by assuring that current and future emissions of VOC and 
NOX for the Cleveland-Akron-Lorain area remain at or below 
attainment year emission levels. A maintenance demonstration need not 
be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), 
Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 
53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 
12, 2003).
    Ohio is using emissions inventories for the years 2012 and 2020 to 
demonstrate maintenance. Onroad emissions for 2012 and 2020 were 
calculated using the MOBILE6.2 emissions model. Emissions estimates for 
the remaining source categories were based on future year inventories 
developed by LADCO for the years 2012 and 2018. With the exception of 
MAR, nonroad emissions for these years were estimated using NMIM. MAR 
emissions were derived by applying growth and control factors to the 
2005 inventory. Area source and point source emissions were derived by 
applying growth and control factors to the 2005 inventory. EGU 
emissions estimates assume no credit for implementation of CAIR in the 
area. To derive 2020 emissions estimates, Ohio EPA applied LADCO growth 
factors to the 2018 LADCO inventory.
    Ohio is in the process of revising its State rules for its Best 
Available Technology (BAT) minor source permitting program. As 
discussed above, a State can demonstrate maintenance of the standard by 
showing that future emissions of VOC and NOX for the area 
remain at or below attainment year emission levels. Ohio EPA's 
emissions projections for this maintenance plan assume no emissions 
benefits from implementation of the

[[Page 27967]]

BAT program. The LADCO growth factors used to project future emissions 
were developed using techniques consistent among the LADCO States and 
assume implementation of no minor source permitting programs for any 
State, including Ohio. The emission projections show that Ohio EPA does 
not expect emissions in the Cleveland-Akron-Lorain area to exceed the 
level of the 2006 attainment year inventory during the maintenance 
period. Ohio's maintenance plan demonstrates that the area can maintain 
the standard through 2020 applying standard growth factors and without 
the BAT program. EPA believes that Ohio has provided adequate 
demonstration of maintenance, and that any changes to the BAT program 
should not impact the Cleveland-Akron-Lorain area's ability to attain 
or maintain the 1997 8-hour ozone NAAQS. Therefore, the issues 
associated with the BAT program are not being considered for purposes 
of this redesignation. Nothing in this rule or redesignation is 
intended to affect the SIP approvability or non-approvability of any 
revised Ohio BAT rules, and EPA will evaluate the approvability of such 
rules when Ohio submits them. Emissions data are shown in Table 6 
below.

                                Table 6--Cleveland-Akron-Lorain Area VOC and NOX Emissions for 2006, 2012 and 2020 (TPD)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          VOC                                                 NOX
                                                 -------------------------------------------------------------------------------------------------------
                                                                                   Net        Net                                      Net        Net
                                                    2006      2012      2020      change     change     2006      2012      2020      change     change
                                                                                2006-2012  2006-2020                                2006-2012  2006-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point...........................................     11.63     12.90     15.01       1.27       3.38     86.58     73.19     71.79     -13.39     -14.79
Area............................................    112.26     96.18     92.63     -16.08     -19,63     29,25     29.58     29.71       0.33       0.46
Nonroad.........................................    103.98     77.12     76.99     -26.86     -26.99     92.33     69.65     44.06     -22.68     -48.27
Onroad..........................................     69.08     40.56     27.38     -28.52     -41.70    161.74     83.36     37.66     -78.38    -124.08
                                                 -------------------------------------------------------------------------------------------------------
    Total.......................................    296.95    226.76    212.01     -70.19     -84.94    369.90    255.78    183.22    -114.12    -186.68
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The emission projections show that Ohio EPA does not expect 
emissions in the Cleveland-Akron-Lorain area to exceed the level of the 
2006 attainment year inventory during the maintenance period. In the 
Cleveland-Akron-Lorain area, Ohio EPA projects that VOC and 
NOX emissions will decrease by 84.94 tpd and 186.68 tpd, 
respectively, between 2006 and 2020.
    In addition, LADCO performed a regional modeling analysis to 
address the effect of the recent court decision vacating CAIR. This 
analysis is documented in LADCO's ``Regional Air Quality Analyses for 
Ozone, PM2.5, and Regional Haze: Final Technical Support Document 
(Supplement), September 12, 2008.'' LADCO produced a base year 
inventory for 2005 and future year inventories for 2009, 2012, and 
2018. To estimate future EGU NOX emissions without 
implementation of CAIR, LADCO projected 2007 EGU NOX 
emissions for all States in the modeling domain based on Energy 
Information Administration growth rates by State (North American 
Electric Reliability Corporation (NERC) region) and fuel type for the 
years 2009, 2012 and 2018. The assumed 2007-2018 growth rates were 8.8% 
for Illinois, Iowa, Missouri and Wisconsin; 13.5% for Indiana, 
Kentucky, Michigan and Ohio; and 15.1% for Minnesota. Emissions were 
adjusted by applying legally enforceable controls, e.g., consent decree 
or rule. EGU NOX emissions projections for the States of 
Illinois, Indiana, Michigan, Ohio, and Wisconsin are shown below in 
Table 7. The emission projections used for the modeling analysis do not 
account for certain relevant factors such as allowance trading and 
potential changes in operation of existing control devices. The 
NOX projections indicate that, due to the NOX SIP 
call, certain State rules, consent decrees resulting from enforcement 
cases, and ongoing implementation of a number of mobile source rules, 
EGU NOX is not expected to increase in Ohio or any of the 
States in the immediate region, and overall NOX emissions in 
Ohio and the nearby region are expected to decrease substantially 
between 2005 and 2020.\2\ Total NOX emissions projections 
are shown in Table 8, below.
---------------------------------------------------------------------------

    \2\ There is more uncertainty about the use of SO2 
allowances and future projections for SO2 emissions; 
thus, further review and discussion will be needed regarding the 
appropriateness of using these emission projections for future PM2.5 
SIP approvals and redesignation requests.

  Table 7--EGU NOX Emissions for the States of Illinois, Indiana, Michigan, Ohio and Wisconsin (TPD) for 2007,
                                              2009, 2012, and 2018
----------------------------------------------------------------------------------------------------------------
                                                    2007             2009             2012             2018
----------------------------------------------------------------------------------------------------------------
EGU.........................................           1,582            1,552            1,516            1,524
----------------------------------------------------------------------------------------------------------------


  Table 8--Total NOX Emissions for the States of Illinois, Indiana, Michigan, Ohio and Wisconsin (TPD) for the
                                        Years 2005, 2009, 2012, and 2018
----------------------------------------------------------------------------------------------------------------
                                                    2005             2009             2012             2018
----------------------------------------------------------------------------------------------------------------
Total NOX...................................           8,260            6,778            6,076            4,759
----------------------------------------------------------------------------------------------------------------

    Given that 2007 is one of the years Ohio used to demonstrate 
monitored attainment of the 8-hour NAAQS, Table 7 shows that EGU 
NOX emissions will remain below attainment levels through 
2018. If the rate of emissions increase

[[Page 27968]]

between 2012 and 2018 continues through 2020, EGU NOX 
emissions would still remain below attainment levels in 2020. 
Furthermore, as shown in Table 8, total NOX emissions 
clearly continue to decrease substantially throughout the maintenance 
period.
    Ozone modeling performed by LADCO using this emissions data 
supports the conclusion that the Cleveland-Akron-Lorain area will 
maintain the standard throughout the maintenance period. Peak modeled 
ozone levels in the area for 2009, 2012 and 2018 are 0.084 ppm, 0.081 
ppm, and 0.078 ppm, respectively. These projected ozone levels were 
modeled applying only legally enforceable controls; e.g., consent 
decrees, rules, the NOX SIP call, Federal motor vehicle 
control programs (FMVCP), etc. Because these programs will remain in 
place, emission levels, and therefore ozone levels, would not be 
expected to increase significantly between 2018 and 2020. Given that 
projected emissions and modeled ozone levels continue to decrease 
substantially through 2018, it is reasonable to infer that a 2020 
modeling run would also show levels well below the 1997 8-hour ozone 
standard.
    As part of its maintenance plan, the State elected to include a 
``safety margin'' for the area. A ``safety margin'' is the difference 
between the attainment level of emissions (from all sources) and the 
projected level of emissions (from all sources) in the maintenance plan 
which continues to demonstrate attainment of the standard. The 
attainment level of emissions is the level of emissions during one of 
the years in which the area met the NAAQS. The Cleveland-Akron-Lorain 
area attained the 8-hour ozone NAAQS during the 2006-2008 time period. 
Ohio used 2006 as the attainment level of emissions for the area. In 
the maintenance plan, Ohio EPA projected emission levels for 2020. For 
the Cleveland-Akron-Lorain area, the emissions from point, area, 
nonroad, and mobile sources in 2006 equaled 296.85 tpd of VOC. Ohio EPA 
projected VOC emissions for the year 2020 to be 212.01 tpd of VOC. The 
SIP submission demonstrates that the Cleveland-Akron-Lorain area will 
continue to maintain the standard with emissions at this level. The 
safety margin for VOC is calculated to be the difference between these 
amounts or, in this case, 84.946 tpd of VOC for 2020. By this same 
method, 186.68 tpd (i.e., 369.90 tpd less 183.22 tpd) is the safety 
margin for NOX for 2020. The safety margin, or a portion 
thereof, can be allocated to any of the source categories, as long as 
the total attainment level of emissions is maintained.
    d. Monitoring Network.
    Ohio currently operates eleven ozone monitors in the Cleveland-
Akron-Lorain area. Ohio EPA has committed to continue to operate these 
ozone monitors. Further, Ohio EPA commits to consult with EPA prior to 
making changes to the existing monitoring network, should changes 
become necessary in the future. Ohio EPA remains obligated to continue 
to quality assure monitoring data in accordance with 40 CFR part 58 and 
enter all data into the Air Quality System in accordance with Federal 
guidelines.
    e. Verification of Continued Attainment.
    Continued attainment of the ozone NAAQS in the Cleveland-Akron-
Lorain area depends, in part, on the State's efforts toward tracking 
indicators of continued attainment during the maintenance period. 
Ohio's plan for verifying continued attainment of the 8-hour standard 
in the Cleveland-Akron-Lorain area consists of plans to continue 
ambient ozone monitoring in accordance with the requirements of 40 CFR 
part 58. Ohio EPA will also continue to develop and submit periodic 
emission inventories as required by the Federal Consolidated Emissions 
Reporting Rule (67 FR 39602, June 10, 2002) to track future levels of 
emissions.
    f. Contingency Plan.
    The contingency plan provisions are designed to promptly correct or 
prevent a violation of the NAAQS that might occur after redesignation 
of an area to attainment. 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 maintenance plan should 
identify the contingency measures to be adopted, a schedule and 
procedure for adoption and implementation of the contingency measures, 
and a time limit for action by the State. The State should also 
identify specific indicators to be used to determine when the 
contingency measures need to be adopted and implemented. The 
maintenance plan must include a requirement that the State will 
implement all measures with respect to control of the pollutant(s) that 
were contained in the SIP before redesignation of the area to 
attainment. See section 175A(d) of the CAA.
    As required by section 175A of the CAA, Ohio has adopted a 
contingency plan for the Cleveland-Akron-Lorain area to address 
possible future ozone air quality problems. The contingency plan 
adopted by Ohio has two levels of response, depending on whether a 
violation of the 8-hour ozone standard is only threatened (warning 
level response) or has occurred (action level response).
    A warning level response will be triggered when an annual fourth 
high monitored value of 0.088 ppm or higher is monitored within the 
maintenance area. A warning level response will consist of Ohio EPA 
conducting a study to determine whether the ozone value indicates a 
trend toward higher ozone values or whether emissions appear to be 
increasing. The study will evaluate whether the trend, if any, is 
likely to continue and, if so, the control measures necessary to 
reverse the trend. The study will consider ease and timing of 
implementation as well as economic and social impacts. Implementation 
of necessary controls in response to a warning level response trigger 
will take place within 12 months from the conclusion of the most recent 
ozone season.
    An action level response will be triggered when a two-year average 
fourth high value of 0.085 ppm is monitored within the maintenance 
area. A violation of the standard (a three-year average of the annual 
fourth-highest daily maximum 8-hour average ozone concentration of 
0.085 ppm or greater) also triggers an action level response. When an 
action level response is triggered, Ohio EPA will determine what 
additional control measures are needed to assure future attainment of 
the ozone standard. Control measures selected will be implemented 
within 18 months from the close of the ozone season that prompted the 
action level. Ohio EPA will also consider if significant new 
regulations not currently included as part of the maintenance 
provisions will be implemented in a timely manner and would thus 
constitute a response.
    Ohio EPA included the following list of potential contingency 
measures in the maintenance plan:
    i. Lower Reid vapor pressure gasoline program;
    ii. Tighten RACT on existing sources covered by CTGs issued in 
response to the 1990 CAA;
    iii. One or more transportation control measures sufficient to 
achieve at least half a percent reduction in actual area wide VOC 
emissions;
    iv. Alternative fuel and diesel retrofit programs for fleet vehicle 
operations;
    v. Require VOC or NOX emission offsets for new and 
modified major sources;

[[Page 27969]]

    vi. Require VOC or NOX emission offsets for new and 
modified minor sources;
    vii. Increase the ratio of emission offsets required for new 
sources;
    viii. Require VOC or NOX controls on new minor sources 
(less than 100 tpy); and
    ix. Adopt NOX RACT for existing combustion sources.
    g. Provisions for Future Updates of the Ozone Maintenance Plan.
    As required by section 175A(b) of the CAA, Ohio commits to submit 
to the EPA an updated ozone maintenance plan eight years after 
redesignation of the Cleveland-Akron-Lorain area to cover an additional 
ten-year period beyond the initial ten-year maintenance period. As 
required by section 175(A) of the CAA, Ohio has committed to retain the 
VOC and NOX control measures contained in the SIP prior to 
redesignation.
    EPA has concluded that the maintenance plan adequately addresses 
the five basic components of a maintenance plan: Attainment inventory, 
maintenance demonstration, monitoring network, verification of 
continued attainment, and a contingency plan. The maintenance plan SIP 
revision submitted by Ohio for the Cleveland-Akron-Lorain area meets 
the requirements of section 175A of the CAA.

B. Adequacy of Ohio's MVEBs

1. How Are MVEBs Developed and What Are the MVEBs for the Cleveland-
Akron-Lorain Area?
    Under the CAA, States are required to submit, at various times, 
control strategy SIP revisions and ozone maintenance plans for ozone 
nonattainment areas and for areas seeking redesignations to attainment 
of the ozone standard. These emission control strategy SIP revisions 
(e.g., reasonable further progress SIP and attainment demonstration SIP 
revisions) and ozone maintenance plans create MVEBs based on onroad 
mobile source emissions for criteria pollutants and/or their precursors 
to address pollution from cars and trucks. The MVEBs are the portions 
of the total allowable emissions that are allocated to highway and 
transit vehicle use that, together with emissions from other sources in 
the area, will provide for attainment or maintenance.
    Under 40 CFR part 93, a MVEB for an area seeking a redesignation to 
attainment is established for the last year of the maintenance plan. 
The MVEB serves as a ceiling on emissions from an area's planned 
transportation system. The MVEB concept is further explained in the 
preamble to the November 24, 1993, transportation conformity rule (58 
FR 62188). The preamble also describes how to establish the MVEB in the 
SIP and how to revise the MVEB if needed.
    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the SIP that addresses emissions from cars 
and trucks. Conformity to the SIP means that transportation activities 
will not cause new air quality violations, worsen existing air quality 
violations, or delay timely attainment of the NAAQS. If a 
transportation plan does not conform, most new transportation projects 
that would expand the capacity of roadways cannot go forward. 
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and 
procedures for demonstrating and assuring conformity of such 
transportation activities to a SIP.
    When reviewing SIP revisions containing MVEBs, including attainment 
strategies, rate-of-progress plans, and maintenance plans, EPA must 
affirmatively find that the MVEBs are ``adequate'' for use in 
determining transportation conformity. Once EPA affirmatively finds the 
submitted MVEBs to be adequate for transportation conformity purposes, 
the MVEBs are used by State and Federal agencies in determining whether 
proposed transportation projects conform to the SIP as required by 
section 176(c) of the CAA. EPA's substantive criteria for determining 
the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining adequacy of a MVEB consists of three 
basic steps: (1) Providing public notification of a SIP submission; (2) 
providing the public the opportunity to comment on the MVEB during a 
public comment period; and (3) EPA's finding of adequacy. The process 
of determining the adequacy of submitted SIP MVEBs was initially 
outlined in EPA's May 14, 1999, guidance, ``Conformity Guidance on 
Implementation of March 2, 1999, Conformity Court Decision.'' This 
guidance was codified in the Transportation Conformity Rule Amendments 
for the ``New 8-Hour Ozone and PM 2.5 National Ambient Air Quality 
Standards and Miscellaneous Revisions for Existing Areas; 
Transportation Conformity Rule Amendments--Response to Court Decision 
and Additional Rule Change,'' published on July 1, 2004 (69 FR 40004). 
EPA follows this guidance and rulemaking in making its adequacy 
determinations.
    The Cleveland-Akron-Lorain area's maintenance plan contains new VOC 
and NOX MVEBs for the years 2012 and 2020. The availability 
of the SIP submission with these 2012 and 2020 MVEBs was announced for 
public comment on EPA's Adequacy Web site on February 18, 2009 at: 
http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA 
public comment period on adequacy of the 2012 and 2020 MVEBs for the 
Cleveland-Akron-Lorain area closed on March 20, 2009. No requests for 
this submittal or adverse comments on the submittal were received 
during the adequacy comment period. In a letter dated March 30, 2009, 
EPA informed Ohio EPA that we had found the 2012 and 2020 MVEBs to be 
adequate for use in transportation conformity analyses.
    EPA, through this rulemaking, is proposing to approve the MVEBs for 
use to determine transportation conformity in the Cleveland-Akron-
Lorain area because EPA has determined that the area can maintain 
attainment of the 8-hour ozone NAAQS for the relevant maintenance 
period with mobile source emissions at the levels of the MVEBs. Ohio 
EPA has determined the 2012 MVEBs for the Cleveland-Akron-Lorain area 
to be 46.64 tpd for VOC and 95.89 tpd for NOX. Ohio EPA has 
determined the 2020 MVEBs for the area to be 31.48 tpd for VOC and 
42.75 tpd for NOX. These MVEBs are consistent with the 
onroad mobile source VOC and NOX emissions projected by Ohio 
EPA for 2012 and 2020, as summarized in Table 6 above. Ohio has 
demonstrated that the Cleveland-Akron-Lorain area can maintain the 8-
hour ozone NAAQS with mobile source emissions of 46.64 tpd and 31.48 
tpd of VOC and 95.89 tpd and 42.75 tpd of NOX in 2012 and 
2020, respectively, since emissions will remain under attainment year 
emission levels.
2. What Is a Safety Margin?
    A ``safety margin'' is the difference between the attainment level 
of emissions (from all sources) and the projected level of emissions 
(from all sources) in the maintenance plan. As noted in Table 6, the 
Cleveland-Akron-Lorain area emissions are projected to have safety 
margins of 70.19 tpd for VOC and 114.12 tpd for NOX in 2012 
(the difference between the attainment year, 2006, emissions and the 
projected 2012 emissions for all sources in the Cleveland-Akron-Lorain 
area). For 2020, the Cleveland-Akron-Lorain area emissions are 
projected to have safety margins of 84.94 tpd for VOC and 186.68 tpd 
for NOX. Even if emissions reached the full level of the 
safety

[[Page 27970]]

margin, the counties would still demonstrate maintenance since emission 
levels would equal those in the attainment year.
    The MVEBs requested by Ohio EPA contain safety margins for mobile 
sources smaller than the allowable safety margins reflected in the 
total emissions for the Cleveland-Akron-Lorain area. The State is not 
requesting allocation of the entire available safety margins reflected 
in the demonstration of maintenance. Therefore, even though the State 
is requesting MVEBs that exceed the projected onroad mobile source 
emissions for 2012 and 2020 contained in the demonstration of 
maintenance, the increase in onroad mobile source emissions that can be 
considered for transportation conformity purposes is well within the 
safety margins of the ozone maintenance demonstration. Further, once 
allocated to mobile sources, these safety margins will not be available 
for use by other sources.

C. 2002 Base Year Emissions Inventory

    As discussed above, section 182(a)(1) of the CAA requires areas 
classified as marginal and above to submit a base year emissions 
inventory. As part of Ohio's redesignation request for the Cleveland-
Akron-Lorain area, the State submitted a 2002 base year emissions 
inventory. This inventory is discussed above and summarized in Table 3. 
EPA is proposing to approve this 2002 base year inventory as meeting 
the section 182(a)(1) emissions inventory requirement.

D. 15% ROP Plan

    On June 15, 2007, and February 22, 2008, Ohio EPA submitted an 
attainment demonstration and reasonable further progress plans for the 
Cleveland-Akron-Lorain area as required by section 182(b)(1) of the 
CAA. In those submittals, Ohio EPA requested that EPA act on the 15% 
ROP plan that was originally submitted by Ohio to meet section 
182(b)(1) requirements under the 1-hour ozone standard. The 1-hour 
ozone 15% ROP plan was originally submitted on March 14, 1994, and 
supplemented on June 9, 1995. Because the area subsequently attained 
the 1-hour ozone standard, EPA redesignated the area on May 7, 1996 and 
did not take action on the 15% ROP plan.
    As discussed in greater detail below, EPA has evaluated Ohio's 15% 
ROP plan and has found it to be consistent with section 182(b)(1) of 
the CAA and EPA policy documents. Therefore, we are proposing to 
approve Ohio's 15% plan as meeting the 182(b)(1) requirements for the 
Cleveland-Akron-Lorain area under the 1-hour ozone standard. Approval 
of Ohio's 1-hour ozone 15% ROP plan is not required for purposes of the 
8-hour redesignation. However, because the plan meets the requirements 
of the CAA and may be helpful in future implementation of ozone 
standards, we are acting on the State's request to approve this plan.
1. Review Criteria
    Section 182(b)(1) of the CAA requires that the ROP plan provide for 
a 15% reduction from baseline VOC emissions in the ozone nonattainment 
area, accounting for any growth in emissions after 1990. This emission 
reduction must be achieved within six years after the date of the 
enactment of the 1990 Clean Air Act revisions (by November 15, 1996).
    The CAA defines the baseline emissions to be the total amount of 
actual VOC emissions from all anthropogenic sources in the area during 
the calendar year of 1990, excluding emissions that would be eliminated 
under Federal Motor Vehicle Control Program (FMVCP) measures 
promulgated by the EPA by January 1, 1990, and any gasoline Reid Vapor 
Pressure (RVP) regulations promulgated by EPA by November 15, 1990, or 
required to be promulgated under section 211 of the CAA.
    Section 182(b)(1) of the CAA allows emission reductions to be 
creditable except for the RVP and FMVCP emission reductions mentioned 
above, any emission reductions from measures resulting from EPA-
required corrections to motor vehicle Inspection and Maintenance (I/M) 
programs required to be submitted immediately after enactment of the 
1990 Clean Air Act revisions, and emission reductions resulting from 
EPA-required corrections to the State VOC RACT rules that were required 
by section 182(a)(2)(A) of the CAA concerning RACT fix-up requirements. 
In general, VOC emission reductions are creditable toward the ROP 
emission reduction requirement to the extent that they have actually 
occurred, as of six years after November 15, 1990, resulting from the 
implementation of measures required under the applicable implementation 
plan, rules promulgated by the Administrator (EPA), or a permit issued 
under Title V of the CAA.
2. Review of the 15% VOC-Only ROP Plan for the Cleveland-Akron-Lorain, 
OH 1-Hour Ozone Nonattainment Area
    a. Calculation of the Adjusted Base Year Inventory.
    The CAA specifies the emission baseline from which the 15% VOC-only 
reduction is calculated. This baseline value is termed the 1990 
adjusted base year inventory. Section 182(b)(1)(D) of the CAA excludes 
from the baseline the emissions that would be eliminated by FMVCP 
regulations promulgated by January 1, 1990, and RVP regulations (55 FR 
23666, June 11, 1990) promulgated by EPA prior to November 15, 1990.
    The adjusted base year inventory is determined by starting with the 
1990 base year emission inventory, and then removing all biogenic 
emissions as well as emissions from sources located outside of the 
designated nonattainment boundary. (The 1990 base year emissions 
inventory was submitted to the EPA on March 14, 1994, at the same time 
that the 15% VOC-only ROP plan was submitted for the Cleveland-Akron-
Lorain, OH 1-hour ozone nonattainment area.) The resulting inventory is 
termed the 1990 ROP base year inventory. The 1990 ROP base year 
inventory is then adjusted by removing the expected FMVCP and RVP 
reductions to derive the adjusted base year inventory. These 
calculations are summarized in Table 7, below, and result in an 
adjusted base year inventory of 366.97 tpd VOC.
    b. Required VOC Emission Reductions.
    The 1990 adjusted base year inventory is multiplied by 0.15 to 
calculate 15% of the adjusted base year emissions. Therefore, to meet 
the ROP requirement, Ohio's plan must provide for at least a 55.05 tpd 
reduction in VOC emissions (366.97 tpd VOC multiplied by 0.15), in 
addition to the reduction needed to offset growth.
    As noted above, under section 182(b)(1)(D) of the CAA, the 
following reductions are not creditable toward the ROP reductions: (1) 
FMVCP regulations promulgated by January 1, 1990; (2) RVP regulations 
promulgated by EPA before enactment of the 1990 Clean Air Act 
Amendments; (3) certain corrections to VOC RACT rules and; (4) 
corrections to basic automobile I/M programs. Thus, the total expected 
reductions are comprised of the reductions necessary to meet the ROP 
requirement and the expected emissions reductions from the four 
noncreditable programs. The total expected emissions reductions are 
171.87 tpd VOC (55.05 tpd + 109.06 tpd FMVCP & RVP reductions + 7.76 
tpd RACT & I/M corrections reductions).
    The amount of reduction necessary to meet the contingency plan 
requirement is 3% of the adjusted base year inventory. Therefore, to 
meet the contingency requirement, the State's plan must provide for at 
least 11.01 tpd

[[Page 27971]]

reduction in VOC emissions (366.97 tpd VOC multiplied by 0.03). The 
1996 target level of VOC emissions is 304.16 tpd, the 1990 ROP base 
year inventory minus the total expected emission reductions (476.03 
tpd-171.87 tpd).
    c. Projected Emission Inventory.
    Emission projections are needed to determine if the ROP 
requirements in the CAA are met. Growth factors are not included in the 
calculations of the 1990 adjusted base year inventory or the 1996 
target level of emissions. Growth factors are needed, however, to 
project emissions to 1996 for the ROP demonstration as part of the ROP 
plan.
    Ohio calculated point source emissions growth based on earnings 
data obtained from the Bureau of Economic Analysis. Area source 
emissions were projected based on population, industrial employment, 
and State gasoline consumption growth. For mobile source emissions, a 
travel demand model was run to estimate 1996 VMT. Total 1996 VOC 
emissions including growth were estimated to be 373.00 tpd.
    d. Total VOC Emission Reductions Necessary To Meet the 15% VOC-Only 
ROP Requirement.
    The required VOC emissions reduction to meet the 15% ROP 
requirements is 68.84 tpd. This is the difference between the projected 
1996 emissions with growth and no additional controls, and the 1996 
target level of emissions (373.00 tpd VOC-304.16 tpd VOC).
    Provided in Table 9 is a summary of the results of the emissions 
calculations used to determine the required 15% VOC-only ROP plan 
reductions.

  Table 9--Summary of Calculations Used To Determine the VOC Reductions
 Needed by 1996 for the Cleveland-Akron-Lorain Area To Meet the 15% VOC-
                     Only ROP Reduction Requirement
------------------------------------------------------------------------
                                                           VOC emissions
                                                               (tpd)
------------------------------------------------------------------------
1990 Base Year Emissions Inventory......................          681.00
1990 ROP Base Year Emissions Inventory (nonattainment             476.03
 area anthropogenic only)...............................
Noncreditable Emission Reductions from FMVCP and RVP....          109.06
1990 Adjusted Base Year Inventory (1990 ROP Base Year             366.97
 Inventory minus RVP and FMVCP).........................
15% of Adjusted Base Year Emissions.....................           55.05
Noncreditable Emission Reductions from Corrections to               7.76
 VOC RACT Rules and the Basic I/M Program...............
Total Expected Emission Reductions by 1996 (FMVCP & RVP           171.87
 + 15% + RACT & I/M corrections)........................
1996 Target Level of Emissions (1990 ROP Base Year                304.16
 Inventory minus total expected emission reductions by
 1996)..................................................
Estimated 1996 Emissions (Anthropogenic), including               373.00
 growth.................................................
Required Reductions by 1996 to Meet the 15% ROP                    68.84
 Requirements (Estimated 1996 emissions minus 1996
 target level of emissions).............................
3% Contingency Plan Reduction...........................           11.01
------------------------------------------------------------------------

    e. Control Measures.
    The control measures adopted by Ohio to achieve a 69.77 tpd 
reduction in VOC emissions are listed in Table 10, below. The table 
does not include any Federal measures used to reduce the mobile source 
emissions. These reductions are already accounted for in the MOBILE5a 
emissions model that, in combination with the projected VMT for the 
area, was used to estimate the future emissions for the area.

 Table 10--Summary of Control Measures Selected by the State To Achieve
   the 15% VOC-Only ROP Reductions for the Cleveland-Akron-Lorain Area
------------------------------------------------------------------------
                                                          VOC  emissions
            Control measure used to meet ROP                reductions
                                                               (tpd)
------------------------------------------------------------------------
Stage II gasoline vapor recovery........................            8.43
Enhanced I/M............................................           37.92
NESHAP..................................................            3.42
Enforcement cases.......................................            9.79
Architectural coatings..................................            6.7
Removal of 100 ton per year cutoff......................            0.69
Transportation control measures.........................            2.82
                                                         ---------------
    Total Emission Reductions...........................           69.77
------------------------------------------------------------------------
Contingency Emissions Reduction (lower RVP fuel)........           13.03
------------------------------------------------------------------------

    Overall, Ohio's ROP plan provides for a 69.77 tpd VOC emissions 
reduction, which meets the ROP requirements. The contingency plan 
provides for the necessary 3% emission reduction.

E. Section 182(f) NOX Exemption

    Section 182(f) establishes NOX emission control 
requirements for ozone nonattainment areas. It provides that these 
emission control requirements, however, do not apply to an area if the 
Administrator determines that NOX emission reductions would 
not contribute to attainment of the ozone standard. EPA's January 2005 
document, ``Guidance on Limiting Nitrogen Oxides Requirements Related 
to 8-Hour Ozone Implementation,'' provides guidance for demonstrating 
that further NOX reduction in an ozone nonattainment area 
will not contribute to ozone attainment. The guidance provides that 
three consecutive years of monitoring data showing attainment of

[[Page 27972]]

the standard without implementation of section 182(f) NOX 
provisions is adequate to demonstrate that ``additional reductions of 
oxides of nitrogen would not contribute to attainment * * *.'' CAA 
section 182(f)(1)(A). As described in the guidance document, approval 
of this type of NOX exemption is contingent on continued 
monitored attainment of the standard.
    On March 17, 2009, Ohio submitted a request for a waiver from the 
section 182(f) NOX requirements for the Cleveland-Akron-
Lorain area based on monitoring data for the years 2006-2008 showing 
attainment of the 8-hour ozone standard in the area. Based on these 
data, EPA is proposing to approve Ohio's request for an exemption from 
the section 182(f) NOX requirements in the Cleveland-Akron-
Lorain area. Upon final approval of the NOX waiver, the Ohio 
EPA will not be required to adopt and implement NOX emission 
control regulations pursuant section 182(f) for Cleveland-Akron-Lorain 
area to qualify for redesignation. The waiver request notwithstanding, 
Ohio EPA submitted NOX RACT rules to EPA on January 3, 2008, 
and has included NOX RACT in the list of contingency 
measures in the maintenance plan for the area.
    Furthermore, as discussed in section III.A. of this rule, EPA 
promulgated a tightened ozone standard on March 27, 2008. Ohio has 
recommended that the Cleveland-Akron-Lorain area be designated 
nonattainment for this standard. Although EPA is proposing to determine 
that NOX reductions would not contribute to attainment of 
the 1997 ozone standard because the area already attains that standard, 
EPA believes that NOX reductions may contribute to 
attainment of the 2008 standards. Indeed, while EPA proposes that Ohio 
need not adopt NOX RACT rules as a prerequisite for 
redesignation with respect to the 1997 standards, it would not prevent 
EPA in the future from determining that NOX RACT rules 
should be required in this area with respect to the 2008 standards.

VII. What Action Is EPA Taking?

    EPA is proposing to make a determination that the Cleveland-Akron-
Lorain area has attained the 8-hour ozone NAAQS. EPA is also proposing 
to approve the maintenance plan SIP revision for the Cleveland-Akron-
Lorain area. EPA's proposed approval of the maintenance plan is based 
on Ohio's demonstration that the plan meets the requirements of section 
175A of the CAA, as described more fully above. After evaluating Ohio's 
redesignation request, EPA has determined that it meets the 
redesignation criteria set forth in section 107(d)(3)(E) of the CAA. 
Therefore, EPA is proposing to approve the redesignation of the 
Cleveland-Akron-Lorain area from nonattainment to attainment for the 8-
hour ozone NAAQS. The final approval of this redesignation request 
would change the official designation for the Cleveland-Akron-Lorain 
area from nonattainment to attainment for the 8-hour ozone standard. 
EPA is also proposing to approve the 2002 base year emissions inventory 
for the Cleveland-Akron-Lorain area as meeting the requirements of 
section 182(a)(1) of the CAA. EPA is proposing to approve a waiver from 
the section 182(f) NOX emission control requirements in the 
Cleveland-Akron-Lorain area. EPA is also proposing to approve Ohio's 
15% ROP plan as meeting the requirements of section 182(b)(1) of the 
CAA for the 1-hour ozone standard. If EPA's determination of attainment 
is finalized, pursuant to 40 CFR 51.918, certain SIP planning 
requirements related to attainment (the RACM requirement of section 
172(c)(1) of the CAA, the RFP and attainment demonstration requirements 
of sections 172(c)(2) and (6) and 182(b)(1) of the CAA, and the 
requirement for contingency measures of section 172(c)(9) of the CAA) 
are not applicable to the area as long as it continues to attain the 
NAAQS. (These requirements would cease to apply upon redesignation.) 
Finally, EPA is proposing to approve the newly-established 2012 and 
2020 MVEBs for the Cleveland-Akron-Lorain area.

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. 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

40 CFR Part 52

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

40 CFR Part 81

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

    Dated: June 4, 2009.
Walter W. Kovalick, Jr.,
Acting Regional Administrator, Region 5.
[FR Doc. E9-13853 Filed 6-11-09; 8:45 am]
BILLING CODE 6560-50-P