ENVIRONMENTAL PROTECTION AGENCY (EPA)
40 CFR Parts 52 and 81
Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes: State of Ohio
60 FR 21456
DATE: Tuesday, May 2, 1995
SUMMARY: USEPA is approving, through "direct final" procedure, a redesignation request and maintenance plan for the Toledo, Ohio area (Lucas and Wood Counties) as a revision to Ohio's State Implementation Plan (SIP) for ozone. The revision is based on a request from the State of Ohio to redesignate this area from a moderate nonattainment area to an attainment area for ozone, and to approve the maintenance plan for the area. The State has met the requirements for redesignation contained in the Clean Air Act (the Act), as amended in 1990. The redesignation request is based on ambient monitoring data that show no violations of the ozone National Ambient Air Quality Standard (NAAQS) during the three-year period from 1990 through 1992. In the proposed rules section of this Federal Register, USEPA is proposing approval of and soliciting public comment on this requested redesignation and SIP revision. If adverse comments are received on this direct final rule, USEPA will withdraw this final rule and address these comments in a final rule based on the related proposed rule which is being published in the proposed rules section of this Federal Register.
DATES: This action will be effective on July 3, 1995 unless adverse or critical comments are received by June 1, 1995. If the effective date is delayed, timely notice will be published in the Federal Register.
ADDRESSES: Copies of the SIP revision and USEPA's analysis are available for inspection at the following address: (It is recommended that you telephone Angela Lee at (312) 353-5142 before visiting the Region 5 Office.) United States Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
A copy of this SIP revision is available for inspection at the following location: Office of Air and Radiation Docket and Information Center, Room M1500, United States Environmental Protection Agency, 401 M Street SW., Washington, DC 20460, (202) 260-7548.
Written comments can be mailed to: William MacDowell, Chief, Regulation Development Section, Air Enforcement Branch (AE-17J), United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois, 60604.
FOR FURTHER INFORMATION CONTACT: Angela Lee, Regulation Development Section, Air Enforcement Branch (AE-17J), United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-5142.
SUPPLEMENTARY INFORMATION: On September 17, 1993, Ohio submitted a redesignation request and section 175A maintenance plan for Lucas and Wood Counties. The USEPA reviewed these submittals against the redesignation criteria set forth by section 107(d)(3)(E) of the Act, which are discussed in a September 4, 1992, memorandum from the Director of the Air Quality Management Division, Office of Air Quality Planning and Standards, to Directors of Regional Air Divisions entitled, "Procedures for Processing Requests to Redesignate Areas to Attainment" (Calcagni Memorandum). A second memorandum dated September 17, 1993, signed by Michael Shapiro, Acting Assistant Administrator for Air and Radiation, entitled, "State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide NAAQS on or after November 15, 1992" was also used to evaluate Ohio's request. An analysis of these submittals is contained in a Technical Support Document (TSD), dated December 9, 1994, and an addendum to this TSD dated March 7, 1995.
The 1977 Act required areas that were designated nonattainment to develop SIPs with sufficient control measures to expeditiously attain and maintain the standard. For Ohio, Lucas and Wood Counties were designated nonattainment for ozone, see 43 FR 8962 (March 3, 1978), 43 FR 45993 (October 5, 1978), and 40 CFR Part 81.
After enactment of the amended Act on November 15, 1990, the nonattainment designation of the Toledo area continued by operation of law according to section 107(d)(1)(C)(i) of the Act; furthermore, it was classified by operation of law as moderate for ozone pursuant to section 181(a)(1) (56 FR 56694, November 6, 1991), codified at 40 CFR 81.336.
More recently, the Toledo area has ambient monitoring data that show no violations of the ozone NAAQS, during the period from 1990 through 1992. The area, therefore, became eligible for redesignation from nonattainment to attainment consistent with the amended Act. On September 17, 1993, Ohio requested redesignation of the area to attainment with respect to the ozone NAAQS. To ensure continued attainment of the ozone standard, Ohio submitted an ozone maintenance SIP for the Toledo area with the redesignation request. On November 1, 1993, Ohio held a public hearing on the maintenance plan and redesignation request.
II. Evaluation Criteria
The 1990 Amendments revised section 107(d)(3)(E) to provide five specific requirements that an area must meet in order to be redesignated from nonattainment to attainment.
1. The area must have attained the applicable NAAQS.
2. The area has met all applicable requirements under section 110 and part D of the Act.
3. The area has a fully approved SIP under section 110(d) of the Act.
4. The air quality improvement must be permanent and enforceable.
5. The area must have a fully approved maintenance plan pursuant to section 175A of the Act.
Each of these requirements are addressed below.
A. Section 107(d)(3)(E)(i). The Administrator determines that the area has attained the National Ambient Air Quality Standard (NAAQS). For ozone, an area is considered in attainment of the NAAQS if there are no violations, as determined in accordance with 40 CFR 50.9, based on quality assured monitoring data for three complete, consecutive calendar years. A violation of the NAAQS occurs when the annual average number of expected exceedances is greater than 1.0 at any site in the area at issue. An exceedance occurs when the maximum hourly ozone concentration exceeds 0.124 ppm. The data should be collected and quality-assured in accordance with 40 CFR Part 58, and recorded in the Aerometric Information Retrieval System (AIRS) in order for it to be available to the public for review. The monitors should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.
Ohio submitted ozone monitoring data recorded in the Lucas and Wood Counties Metropolitan Area (LWCMA) during the years 1984 through August 31, 1993. No violations were monitored for the three-year period 1990 through 1992 upon which the redesignation request was based. Furthermore, no violations have been monitored since then. Monitored exceedances (one-hour averaged) of 0.127 ppm in 1991, 0.126 ppm in 1993, and 0.142 ppm occurred at the Yondota Avenue monitor in 1994. An exceedance of 0.136 ppm occurred at the Friendship Park monitor in 1993. The USEPA used data stored in AIRS to determine the annual average expected exceedances for the years 1990, 1991, 1992, 1993, and 1994. Since the annual average expected exceedances for each monitor during these years is less than 1.0, Lucas and Wood Counties are considered to have attained the standard.
B. Section 107(d)(3)(E)(iii). The Administrator determines that the improvement in air quality is due to permanent and enforceable measures. Ohio estimated emission reductions from a nonattainment year (1988) to an attainment year (1990), and found that emission reductions from federally mandated control on fuel volatility and new automobiles reduced volatile organic compound (VOC) emissions by 25,843 lbs/day. In 1989, fuel volatility was restricted to 10.5 pounds per square inch (psi) in the Toledo area. Currently, the fuel volatility standard is 9.0 psi. This standard was established in 1992. The USEPA considers the emissions reductions from the Federal Motor Vehicle Control Program (FMVCP) and Federal volatility standards to be permanent and enforceable and to have contributed to the improvement in air quality.
Controls placed on a wastewater ditch which was used to transport wastewater from the British Petroleum (BP) refinery to a wastewater treatment system also provided VOC emissions reductions during this period. This wastewater ditch, which measured about 3600 feet in length and an average of about 10 feet in width, is referred to as the "oily ditch." Prior to 1990, this "oily ditch" was uncontrolled and was one of the largest single sources of VOCs in the LWCMA with emissions of 19,802 lbs/summer day. The USEPA reviewed the methodology used to calculate these emissions and agrees with the amount of emissions estimated from this source. A major portion of the open ditch was converted to a hard pipe to minimize VOC emissions. Ohio estimates that the enclosure of 3000 feet of the "oily ditch" which was completed on March 15, 1990, resulted in an emission reduction of 11,225 lbs/summer day of VOCs. Since the USEPA is approving the Director's Findings and Orders requiring this control into the SIP as part of the maintenance plan, the emission reductions from the enclosure of the "oily ditch" at the BP Toledo Refinery are considered permanent and enforceable and to have contributed to the improvement in air quality.
C. Section 107(d)(3)(E)(iv). The Area must have a fully approved maintenance plan meeting the requirements of Section 175A. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The maintenance plan is a SIP revision which provides for maintenance of the relevant NAAQS in the area for at least 10 years after redesignation. The Calcagni Memorandum provides further guidance on the required content of a maintenance plan.
An ozone maintenance plan should address the following five areas: the attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment and a contingency plan. The attainment emissions inventory identifies the emissions level in the area which is sufficient to attain the ozone NAAQS, and includes emissions during the time period which had no monitored violations. Maintenance is demonstrated by showing that future emissions will not exceed the level established by the attainment inventory. Provisions for continued operation of an appropriate air quality monitoring network are to be included in the maintenance plan. The State must show how it will track and verify the progress of the maintenance plan. Finally, the maintenance plan must include contingency measures which ensure prompt correction of any violation of the ozone standard.
1. Attainment Inventory
The State has developed an adequate attainment emission inventory for 1990 that identifies the level of emissions in the Toledo area sufficient to attain the ozone NAAQS. The 1990 attainment inventory was based on the comprehensive inventories of VOC and nitrogen oxides (NOx) emissions from area, stationary, and mobile sources for 1990. The 1990 base year emission inventory represents 1990 average summer day actual emissions for the Toledo area and was prepared in accordance with USEPA guidance. USEPA's TSD prepared for the 1990 base year emission inventory SIP revision contains a detailed analysis of this inventory. The USEPA approved this inventory as satisfying the requirements of section 182(a)(1) for an emissions inventory on March 22, 1995 (60 FR 15053).
2. Maintenance Demonstration
To demonstrate continued attainment, Ohio projected point, area, and mobile source emissions from the year 1990 to the year 2005. These projections show that the level of emissions established by the attainment inventory will not be exceeded during the maintenance period, 1990-2005. Table 1 lists the emissions for the year 1990 and projected emissions for the year 2005. Total point, mobile, and area emissions are expected to be lower in 2005 than total emissions in the 1990 attainment inventory.
Table 1.--Maintenance Demonstration Source category 1990 1996 2000 2005 VOC Emissions (pounds per day) Point 120,154 78,978 78,611 77,742 Mobile (on-road) 132,659 102,560 82,494 57,412 Area 74,502 74,693 75,119 75,209 Total 327,315 256,231 236,224 210,363 NOx Emissions (pounds per day) Point 147,943 146,793 80,294 81,376 Mobile (on-road) 75,630 65,128 58,126 49,374 Area 20,522 20,547 20,563 20,584 Total 244,095 232,468 158,983 151,334
3. Emission projections
Point source emissions were projected by accounting for known changes to sources for each year between 1990 and 2005, and applying a growth factor based on manufacturing employment data provided by the Bureau of Economic Analysis, United States Department of Commerce, to derive inventories for all ensuing years. The stationary source emission projections incorporate existing control measures. The known stationary source emission reductions came from the British Petroleum (BP) Refinery reductions documented in annual Reasonable Further Progress Reports, and stationary source shutdowns.
Some of the emission reductions from the BP refinery during the maintenance period result from controls included in Ohio's non-control technology guideline (non-CTG) Reasonably Available Control Technology (RACT) rules, Ohio Administrative Code 3745-21-09(UU) and 3745-21-04(c)(55). Additional VOC reductions at the BP Refinery result from the conversion of two cooling towers to non-VOC emitting processes and the removal of the Crude Vacuum blow down drum. Emission reductions from source shutdowns can be considered permanent and enforceable to the extent that those shutdowns have been reflected in the SIP and all applicable permits have been modified accordingly. Once the maintenance plan is approved into the SIP, these emission reductions will be provided for by the SIP. Consequently, resumption of operation of these sources would be treated as operation of a new source and would be subject to preconstruction review under Part C of the Prevention of Significant Deterioration (PSD) program. The net reduction in VOC emissions at the BP refinery during the maintenance period is estimated to be 40,582 lbs/day.
Stationary source emissions of nitrogen oxides (NOx) are projected to decline from 1990 levels. This reduction is caused by shutdowns of utility units, "low-NOx burner" requirements of Title IV of the Clean Air Act, and declining growth in stationary sources. In 1992, Toledo Edison permanently retired all units at its Acme Generating Station other than Unit 16. The operating permits for the retired units have been surrendered, making the resulting emission reductions permanent and enforceable. These shutdowns reduced 1990 levels of NOx emission by 15,403 lbs/day. A negative growth factor of 2.3 percent based on manufacturing employment from 1990 and 2005, reduces NOx emissions by 973 lbs/day.
Mobile source emissions were projected by forecasting vehicle miles travelled (VMT) for the year 2005. This was done by considering the future highway networks and forecasts of socio-economic data. Growth parameters for the year 2005 were developed from the travel forecasting modeling programs and VMTs from the transportation modeling growth factors and 1990 Highway Performance Modeling System data.
Area source emissions were projected using growth factors consistent with Table III.3 in USEPA's guidance document entitled "Procedures for Preparing Emissions Projections," dated July 1991.
4. Emissions Budgets
The emissions budget to be used for determining the conformity status of transportation plans and transportation improvement plans is 29.85 tons VOC/day and 24.69 tons NOx/day. On November 28, 1994, the USEPA received a request from Ohio to add 1.142 tons VOC/day of the "safety margin" to the year 2005 VOC emissions (28.71 tons/day) for purposes of conformity. This is provided for by section 51.456(b) of the conformity rule (58 FR 62188). (The safety margin is the difference between the attainment inventory level of mobile source emissions from the projected levels of mobile source emissions in the out year (i.e. 2005) of the maintenance plan.) The USEPA is approving this submittal as part of the maintenance plan.
5. Contingency Plan
Ohio has committed to adopt and implement various contingency measures following various triggering events. The contingency plan is summarized in Table 3. If three exceedances at one monitor occur in the same year, Stage II Vapor Recovery (Stage II) would be implemented. Stage II and the vehicle inspection and maintenance (I/M) program would be implemented after a violation has been monitored. If a violation occurred after both Stage II and the I/M program have been implemented, NOx RACT would be adopted and implemented. If an emissions inventory meeting the requirements of USEPA guidance shows that total area-wide VOC emissions exceed 95 percent of the 1990 emissions inventory, then either one or both Stage II and the I/M program would be implemented. The implementation schedules for each contingency measure are detailed in Table 4. If more violations were to occur, Ohio has committed to identify and develop the legislative authority to implement additional contingency measures.
Ohio has the legislative authority to implement the I/M program in Toledo. Ohio's Stage II rule allows for the implementation of Stage II as part of a maintenance and/or a contingency plan. The Director of the Ohio Environmental Protection Agency (OEPA) issued a Director's Findings and Orders on September 17, 1993, suspending Stage II in the Toledo area. This suspension will continue until there are three monitored exceedances of the ozone standard in one year or a violation of the ozone standard is monitored. On October 20, 1994, the USEPA partially approved and partially disapproved Ohio's SIP revision for implementation of Stage II (58 FR 52911). As stated in that rulemaking action, with the exception of paragraph 3745-21-09 (DDD)(5), USEPA considers Ohio's Stage II program to fully satisfy the criteria set forth in the USEPA guidance document for such programs entitled "Enforcement Guidance for Stage II Vehicle Refueling Control Programs." Ohio has adopted NOx RACT rules for the Toledo area. The Director of OEPA has suspended the NOx RACT rules in the Toledo area until a violation is monitored after the implementation of I/M and Stage II.
Table 3.--Contingency Plan Trigger Control measure 3 exceedances of ozone Stage II. standard in one year Violation Stage II and I/M. Violation after NOX RACT. implementation of Stage II and I/M VOC emissions greater than Stage II and/or I/M. 95% of the 1990 level of VOC emissions Table 4.--Contingency Plan Schedule for Adoption and Implementation Activity Completion time after triggering event Stage II Vapor Recovery Identify and verify third excursion in one year or 1 month. violation of ozone standard Initiate compliance schedules contained in Ohio 2 months. Administrative Code (OAC) 3745-21-04 Source demonstration of compliance or submittal of 3 months. schedules to achieve compliance Achieve final compliance of non-independent facilities 6 months. for which construction commenced after 11/15/90 Achieve final compliance of non-independent facilities 12 months. greater than 100,000 gallons per month Achieve final compliance of all other non-independent 24 months. facilities Achieve final compliance of 33 of facilities owned by 12 months. each marketer Achieve final compliance of 66 of facilities owned by 24 months. each marketer Achieve final compliance of 100 of facilities owned 36 months. by each marketer Activity Time after triggering event Vehicle Inspection and Maintenance Identify and verify violation of the ozone standard. 1 month. Begin revisions to the Request for Proposals for centralized portion of program based on existing legislative authority Begin drafting rules for contingency centralized I/M 1 month. program, procedures and guidelines Release Request for Proposals for centralized 2 months. contractor File draft program rules with Legislative Service 3 months. Commission Public hearing on new program rules 4 months and 15 days. Rules approved by Joint Committee on Agency Rule 4 months and 30 Review days. Request for Proposal responses for centralized 4 months and 30 contract due days. Begin evaluation of Request for Proposal responses 5 months. Award centralized contract for each zone. 6 months and fifteen days. Program rules become effective 6 months and 30 days. Begin drafting Request for Proposal for Ohio 7 months. Environmental Protection Agency (BAR90) approved analyzer certification, if necessary. Begin drafting Request for Proposal for inspector 7 months. certification training in the Toledo metropolitan area Release Request for Proposal for analyzer 8 months. certification services Release Request for Proposal for inspector 8 months. certification training Proposals for analyzer certification services due 9 months and 15 days. Proposals for inspector certification training due 9 months and 15 days. Begin evaluation of proposals for analyzer 9 months and 16 certification services days. Begin evaluation of proposals for inspector 9 months and 16 certification training days. Award contract for analyzer certification services 10 months. Award contract for inspector certification training 10 months. Begin licensing process for reinspection stations. 11 months. State will require Ohio Certified BAR90 (or better) equipment, on-line real-time systems, and ASE certified mechanics New analyzer specifications issued, if necessary. 12 months. Begin certifying four-gas analyzers Inspector certification begins 14 months. Begin final licensing of reinspection stations 15 months. Initiate PR program including media blitz 16 months. Initiate motorist notification mailings 16 months and 15 days. Begin limited voluntary inspections at centralized 17 months. test stations. Allow first month motorist to receive valid test. Reinspection stations begin to perform retests Begin mandatory testing at centralized test stations 18 months. Activity Completion time after triggering event Identify and verify violation following implementation 1 month. of OAC 3745-21-09 and automobile inspection and maintenance Source demonstration of compliance or submittal of 3 months. schedule to achieve compliance Achieve compliance with requirements of OAC 3745-14-03 18 months. or request extension
6. Tracking Maintenance
The State plans to track monitored levels of ozone. Emissions inventories will be prepared every 3 years beginning with the year 1993. The point source inventory will be updated annually with facility and permit data. OEPA will update emissions estimates from the BP refinery wastewater system on an annual basis. The mobile source inventory will be updated annually with new VMT estimates and revised mobile emissions models if appropriate. Area source inventories will be updated annually using new census data. The OEPA will submit annual progress reports to USEPA which will include available emissions data and a comparison of projected and actual emissions. The Toledo Division of Pollution Control has committed to continue operating and maintaining the four existing ozone monitors in a manner consistent with Federal and State monitoring guidelines.
The USEPA has determined that the maintenance plan for Lucas and Wood Counties meets the requirements set forth by the CAA.
D. Section 107(d)(3)(E)(v). The Area must have met all applicable requirements under Section 110 and Part D. Section 107(d)(3)(E) requires that, for an area to be redesignated, an area must have met all applicable requirements under section 110 and Part D. The USEPA interprets section 107(d)(3)(E)(v) to mean that for a redesignation to be approved, the State must have met all requirements that applied to the subject area prior to or at the time of the submission of a complete redesignation request. Requirements of the Act that come due subsequently continue to be applicable to the area at those later dates (see section 175A(c)) and, if the redesignation of the area is disapproved, the State remains obligated to fulfill those requirements.
1. Section 110 Requirements
General SIP elements are delineated in section 110(a)(2) of Title I, Part A. These requirements include but are not limited to submittal of a SIP that has been adopted by the State after reasonable notice and public hearing, provisions for establishment and operation of appropriate apparatus, methods, systems and procedures necessary to monitor ambient air quality, implementation of a permit program, provisions for Part C (PSD) and D (NSR) permit programs, criteria for stationary source emission control measures, monitoring, and reporting, provisions for modeling, and provisions for public and local agency participation. For purposes of redesignation, the Ohio SIP was reviewed to ensure that all requirements under the amended Act were satisfied. Although section 110 was amended in 1990, the Toledo area SIP meets the requirements of the amended section 110(a)(2). A number of the requirements did not change in substance and, therefore, USEPA believes that the pre-1990 amendment SIP meets those requirements. As to those requirements that were amended in 1990, many are duplicative of other requirements in the Act and USEPA has determined that the Toledo SIP is consistent with the requirements of section 110 of the amended Act.
2. Part D Requirements
Before the Toledo area may be redesignated to attainment, it must have fulfilled the applicable requirements of part D. Under part D, an area's classification determines the requirements to which it is subject. Subpart 1 of part D sets forth the basic nonattainment requirements applicable to all nonattainment areas. Subpart 2 of part D establishes additional requirements for nonattainment areas classified under Table 1 of section 181(a). As described in the General Preamble for the Implementation of Title 1, specific requirements of subpart 2 may override subpart 1's general provisions (57 FR 13501 (April 16, 1992)). The Toledo area was classified as moderate (56 FR 56694). Therefore, in order to be redesignated, the State must meet the applicable requirements of subpart 1 of part D-specifically sections 172(c) and 176, as well as the applicable requirements of subpart 2 of part D.
a. Section 172(c) Requirements
Section 172(c) sets forth general requirements applicable to all nonattainment areas. Under section 172(b), the section 172(c) requirements are applicable as determined by the Administrator, but no later than 3 years after an area has been designated as nonattainment under the amended Act. Furthermore, as noted above, some of these section 172(c) requirements are superseded by more specific requirements in subpart 2 of part D. In the case of Toledo, the State has satisfied all of the section 172(c) requirements necessary for Toledo to be redesignated upon the basis of the November 8, 1993 redesignation request.
USEPA has determined that the section 172(c)(2) reasonable further progress (RFP) requirement (with parallel requirements for a moderate ozone nonattainment area under subpart 2 of part D, due November 15, 1993) was not applicable as the State of Ohio submitted this redesignation request on November 8, 1993. Also the section 172(c)(9) contingency measures and additional section 172(c)(1) non-RACT reasonable available control measures beyond what may already be required in the SIP are no longer necessary, since no earlier date was set for these measures and as RFP was not due until November 15, 1993.
The section 172(c)(3) emissions inventory requirement has been met by the submission and approval of the 1990 base year inventory required under subpart 2 of part D, section 182(a)(1) (60 FR 15053).
As for the section 172(c)(5) NSR requirement, USEPA has determined that areas being redesignated need not comply with the NSR requirement prior to redesignation provided that the area demonstrates maintenance of the standard without part D NSR in effect. Memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment. The rationale for this view is described fully in that memorandum, and is based on the Agency's authority to establish de minimis exceptions to statutory requirements. See Alabama Power Co. v. Costle, 636 F. 2d 323, 360-61 (D.C. Cir. 1979). As discussed below, the State of Ohio has demonstrated that the Toledo area will be able to maintain the standard without part D NSR in effect and, therefore, the State need not have a fully-approved part D NSR program prior to approval of the redesignation request for Toledo. Ohio's part C PSD program will become effective in the Toledo area upon redesignation to attainment.
Finally, for purposes of redesignation, the Toledo SIP was reviewed to ensure that all requirements of section 110(a)(2), containing general SIP elements, were satisfied. As noted above, USEPA believes the SIP satisfies all of those requirements. Section 176 Conformity Plan Provisions Section 176(c) of the Act requires States to revise their SIPs to establish criteria and procedures to ensure that, before they are taken, Federal actions conform to the air quality planning goals in the applicable State SIP. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 U.S.C. or the Federal Transit Act (transportation conformity), as well as to all other Federal actions (general conformity). Section 176 further provides that the conformity revisions to be submitted by States must be consistent with Federal conformity regulations that the Act required EPA to promulgate. Congress provided for the State revisions to be submitted one year after the date for promulgation of final EPA conformity regulations. When that date passed without such promulgation, USEPA's General Preamble for the Implementation of Title I informed States that its conformity regulations would establish a submittal date [see 57 FR 13498, 13557 (April 16, 1992)].
The USEPA promulgated final transportation conformity regulations on November 24, 1993 (58 FR 62188) and general conformity regulations on November 30, 1993 (58 FR 63214). These conformity rules require that States adopt both transportation and general conformity provisions in the SIP for areas designated nonattainment or subject to a maintenance plan approved under CAA section 175A. Pursuant to section 51.396 of the transportation conformity rule and section 51.851 of the general conformity rule, the State of Ohio is required to submit a SIP revision containing transportation conformity criteria and procedures consistent with those established in the Federal rule by November 25, 1994. Similarly, Ohio is required to submit a SIP revision containing general conformity criteria and procedures consistent with those established in the Federal rule by December 1, 1994. Because the deadlines for these submittals did not come due prior to the date the Toledo redesignation request was submitted, however, they are not applicable requirements under section 107(d)(3)(E)(v) and, thus, do not affect approval of this redesignation request.
b. Subpart 2 Requirements
The Toledo area is classified moderate nonattainment; therefore, part D, subpart 2, section 182(b) requirements apply. The requirements which came due prior to the submission of the request to redesignate the Toledo area must be fully approved into the SIP prior to redesignating the area to attainment. These requirements are discussed below:
(i) 1990 Base Year Emission Inventory. The 1990 base year emission inventory was due on November 15, 1992. It was submitted to the USEPA on March 15, 1994. The USEPA approved this submittal on March 22, 1995 (60 FR 15053).
(ii) Emission Statements. The emissions statement SIP was due on November 15, 1992. It was submitted to the USEPA on March 15, 1994. The USEPA approved this SIP revision through a direct final rulemaking action published on October 13, 1994 (59 FR 51863).
(iii) VOC RACT Fix-ups and Catch-ups. Sections 182(a)(2)(A) and 182(b)(2) establish VOC RACT requirements applicable to moderate ozone nonattainment areas such as Toledo. Section 182(a)(2)(A) required the submission to USEPA of all rules and corrections to existing VOC RACT rules that were required under the RACT provision of the pre-1990 CAA (referred to as RACT "fix-ups"). Section 182(b)(2) required the submission to USEPA of (1) VOC RACT rules for all VOC sources covered by a CTG issued before the date of enactment of the 1990 CAA amendments (a requirement that the State has previously met), (2) VOC RACT for each VOC source covered by a CTG issued between the enactment of the 1990 CAAA and the attainment date (which is not an applicable requirement for purposes of this redesignation since the due date for these rules is November 15, 1994, a date after the submission of the redesignation request), and (3) VOC RACT for all other major stationary sources of VOC located in the area.
On June 9, 1988, August 24, 1990, and June 7, 1993, Ohio submitted VOC RACT rules. In a final rulemaking action, the USEPA partially approved, partially disapproved and granted partial limited approval/limited disapproval to portions of Ohio's VOC RACT rules on May 9, 1994 (see 58 FR 49458). The USEPA processed draft VOC RACT rules which addressed identified deficiencies in Ohio's VOC RACT rules in parallel with the ozone redesignation request. Ohio adopted these rules and submitted them to USEPA on February 14, 1995. Ohio's VOC RACT rules submittals have now been approved in a direct final notice published on March 23, 1995 (60 FR 15235). Thus, the State has now satisfied all of the VOC RACT requirements applicable to the Toledo area. (The approval of the redesignation is contingent upon the approval of the VOC RACT rules and the 1990 Base-Year Emissions Inventory. Thus, this redesignation will not become effective until the approval of the VOC RACT rules and the 1990 Base-Year Emissions Inventory become effective. Consequently, should the direct final notice approving the VOC RACT rules or 1990 Base-Year Inventory be withdrawn as a consequence of adverse comment, this direct final notice approving the redesignation will also be withdrawn and final action will be taken on the redesignation at a later date.)
(iv) Stage II Vapor Recovery (Stage II). Section 182(b)(3) required States to submit Stage II rules to USEPA for moderate ozone nonattainment areas by November 15, 1992. Ohio submitted Stage II regulations as a SIP revision on June 7, 1993. However, as the USEPA promulgated onboard rules on April 6, 1994 (59 FR 16262), Stage II is no longer required for moderate ozone nonattainment areas (see section 202(a)(b). Thus, Stage II is not an applicable requirement for purposes of evaluating this redesignation.
(v) Vehicle Inspection and Maintenance (I/M). On January 5, 1995, the USEPA revised the I/M Program Requirements promulgated on November 5, 1992 (60 FR 1735). See 60 FR 1735. The revision allows areas subject to the basic I/M program requirements and that otherwise qualify for redesignation from nonattainment to attainment for ozone or carbon monoxide NAAQS to defer adoption and implementation of some of the otherwise applicable requirements established in the original promulgation of the I/M rule. USEPA amended Subpart S to allow such areas to be redesignated if they submit a SIP that contains the following four elements: (1) Legal authority for a basic I/M program (or an enhanced program, as defined in the Federal rule, if the state chooses to opt up), meeting all of the requirements of Subpart S such that implementing regulations can be adopted without further legislation; (2) a request to place the I/M plan or upgrades, as defined in the Federal rule, (as applicable) in the contingency measures portion of the maintenance plan upon redesignation as described in the fourth element below; (3) a contingency measure to go into effect as soon as a triggering event occurs, consisting of a commitment by the Governor or the governor's designee to adopt regulations to implement the I/M program in response to the specified triggering event; and (4) a commitment that includes an enforceable schedule for adopting and implementing the I/M program, including appropriate milestones, in the event the contingency measure is triggered (milestones shall be defined in terms of months since the triggering event). USEPA believes that for areas that otherwise qualify for redesignation, a SIP meeting these four requirements would satisfy the obligation to submit "provisions to provide" for a satisfactory I/M program, as required by the stature.
Ohio has met each of the above four requirements. Section 3704.14(B) of Ohio's Administrative Code states ".. The Director shall implement and supervise a basic or an enhanced motor vehicle inspection and maintenance program in a county that is within an area classified as nonattainment for carbon monoxide or ozone when such a program is included in the air quality maintenance plan or contingency plan for the nonattainment area that includes the county and that is submitted to the USEPA by the Director as required under section 175A of the CAAA as part of a request for redesignation of the nonattainment area as attainment for carbon monoxide or ozone under section 107(d) of that Act, and the Director determines that the conditions requiring implementation of such a program and set forth in either such plan have been met." This provision allows the I/M program to be implemented in the Toledo area as part of a contingency plan. In addition, I/M programs in Ohio have been approved by USEPA (46 FR 31881). As noted in tables 3 and 4, Ohio has identified appropriate triggering events and submitted an enforceable implementation schedule for the I/M program. The commitment to implement I/M was contained in the letter from the Director of OEPA, the Governor's designee, requesting the redesignation of the Toledo area to attainment for ozone. This satisfies the remaining requirements of the I/M rule revision.
(vi) 1.15:1 VOC and NOx Offsets Requirement for NSR. As explained above, USEPA has determined that areas need not comply with the part D NSR requirements of the Act in order to be redesignated provided that the area is able to demonstrate maintenance without part D NSR in effect. As maintenance has been demonstrated for the Toledo area without part D NSR being in effect, USEPA is not requiring that the area have a fully-approved part D NSR plan meeting the requirements of sections 182(a) and (b) prior to redesignation.
(vii) NOx Requirement. Section 182(f) establishes NOx requirements for ozone nonattainment areas. However, it provides that it does not apply to an area such as Toledo if the Administrator determines that NOx reductions would not contribute to attainment. The Administrator has made such a determination and has approved the State of Ohio's request to exempt the Toledo area from the section 182(f) NOx requirements (60 FR 3760). Thus, the State of Ohio need not comply with the NOx requirements of section 182(f) for Toledo to be redesignated. If a violation is monitored in the Toledo area, Ohio has committed to adopt and implement NOx RACT rules as a contingency measure.
E. Section 107(d)(3)(E)(ii). The Administrator has fully approved the applicable implementation plan for the area under Section 110(k). USEPA has reviewed the SIP to ensure that it contains all measures that were due under the amended 1990 Act. Based on the approval of submittals under the pre-amended CAA, and USEPA's approval of SIP revisions under the amended CAA, USEPA has determined that the Toledo area has a fully approved SIP under section 110(k), which also meets the applicable requirements of section 110 and part D as discussed above (45 FR 72122, 59 FR 51863, 60 FR 3760, 60 FR 15053, 60 FR 15235).
III. Transport of Ozone Precursors to Downwind Areas
Preliminary modeling results utilizing USEPA's regional oxidant model (ROM) indicate that ozone precursor emissions from various States west of the ozone transport region (OTR) in the northeastern United States contribute to increases in ozone concentrations in the OTR. The State of Ohio has provided documentation that VOC and NOx emissions in the Toledo area will decrease 35 percent and 38 percent, respectively, from attainment levels by the year 2005. Given this decrease in emissions, the Toledo area's impact on ozone concentrations in the OTR will correspondingly be reduced. The USEPA is currently developing policy which will address long range impacts of ozone transport. The USEPA is working with the States and other organizations to design and complete studies which consider upwind sources and quantify their impacts. The USEPA intends to address the transport issue through Section 110 based on a domain-wide modeling analysis.
The USEPA notified Environment Canada of this action. The redesignation is not expected to have any adverse impact on Canada since emissions are expected to remain below levels associated with attainment conditions in the Toledo area.
IV. Final Rulemaking Action
The State of Ohio has met the requirements of the Act for revising the Ohio ozone SIP. The USEPA approves the redesignation of Lucas and Wood Counties to attainment areas for ozone. In addition, the USEPA approves the maintenance plan into the ozone SIP for these Counties. As noted earlier, this approval is contingent upon the direct final approval of Toledo's VOC RACT rules and 1990 Base-Year Emissions Inventory becoming effective.
Because USEPA considers this action to be noncontroversial and routine, USEPA is publishing this notice of approval without prior proposal. This action will become effective on July 3, 1995. However, if the USEPA receives adverse comments by June 1, 1995 on this action or by April 24, 1995, regarding the VOC RACT notice published at 60 FR 15235, or by April 21, 1995, regarding the 1990 Base-Year Emissions Inventory published at 60 FR 15053, then the USEPA will publish a notice that withdraws the action, and will address these comments in the final rule on the requested redesignation and SIP revision which has been proposed for approval in the proposed rules section of this Federal Register.
Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to any SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.
This action has been classified as a Table 2 action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation. The Office of Management and Budget exempted this regulatory action from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities (5 U.S.C. 603 and 604). Alternatively, USEPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000.
The SIP approvals under section 110 and subchapter I, part D, of the Act do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not impose any new requirements, I certify that it does not have a significant impact on small entities affected. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Act forbids USEPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976).
Under Section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 3, 1995. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See Section 307(b)(2).)
List of Subjects
40 CFR Part 52
Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Ozone, Volatile organic compounds, Reporting and recordkeeping requirements.
40 CFR Part 81
Environmental protection, Air pollution control, National parks, Wilderness areas.
Dated: March 14, 1995.
Valdas V. Adamkus, Regional Administrator.
40 CFR parts 52 and 81 are amended as follows:
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1870 is amended by adding a new paragraph (c)(105) to read as follows:
@ 52.1870 -- Identification of plan.
* * * * *
(c) * * *
(105) On September 17, 1993, the Ohio Environmental Protection Agency requested the redesignation of Lucas and Wood Counties to attainment of the National Ambient Air Quality Standard for ozone. To meet the redesignation criteria set forth by section 107(d)(3)(E) (iii) and (iv), Ohio credited emissions reductions from the enclosure of the "oily ditch" at the British Petroleum Refinery in Oregon, Ohio. The USEPA is approving the Director's Finding and Order which requires the enclosure of the "oily ditch" into the SIP for Lucas and Wood Counties.
(i) Incorporation by reference.
Letter dated June 2, 1994, from Donald R. Schregardus, Director, Ohio Environmental Protection Agency, to Valdas Adamkus, Regional Administrator, USEPA, Region 5, and one enclosure which is the revised Director's Final Findings and Orders in the matter of BP Oil company, Toledo Refinery, 4001 Cedar Point Road, Oregon, Ohio, Fugitive Emissions from the Refinery Waste Water System "Oily Ditch", dated June 2, 1994.
3. Section 52.1885 is amended by adding paragraph (b) to read as follows:
@ 52.1885 -- Control strategy: Ozone.
* * * * *
(b) The maintenance plans for the following counties are approved:
(5) Lucas and Wood Counties.
* * * * *
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PURPOSES
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 81.336 is amended by revising the entry in the ozone table for Toledo area to read as follows:
@ 81.336 -- Ohio. * * * * * Ohio--Ozone Designated area Designation Classification Date fn 1 Type Date fn 1 Type * * * * * * * Lucas County July 3, 1995. Attainment Wood County July 3, 1995. Attainment * * * * * * * fn 1 This date is November 15, 1990, unless otherwise noted.
[FR Doc. 95-10693 Filed 5-1-95; 8:45 am]
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