FEDERAL REGISTER
Vol. 61, No. 56
Rules and Regulations

ENVIRONMENTAL PROTECTION AGENCY (EPA)

40 CFR Parts 52 and 81
[OH78-2-7116; FRL-5440-4]

Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio

61 FR 11560

DATE: Thursday, March 21, 1996
ACTION: Final rule.

SUMMARY: The USEPA is approving the Ohio Environmental Protection Agency's (OEPA) request for redesignation of Clinton County, Ohio from transitional ozone nonattainment to attainment. The USEPA is also approving the maintenance plan and emissions inventory for Clinton County as a revision to Ohio's State Implementation Plan (SIP) for ozone. Clinton County's monitoring data shows that it is already meeting the ozone air quality standard. In addition, in order to meet USEPA redesignation requirements the State must continue to maintain the ozone National Ambient Air Quality Standards for at least ten years after the redesignation, or the year 2006. Thus, the State has developed a maintenance plan which includes specific contingency measures to assure continued compliance with the ozone air quality standard. Any monitored violation in Clinton County will trigger these contingency measures to reduce ozone levels. In addition, an ambient air monitor will remain in operation to verify future attainment status of the area.

EFFECTIVE DATE: This final rule is effective on March 21, 1996.

ADDRESSES: Copies of the redesignation request, public comments on the rulemaking, and other materials relating to this rulemaking are available for inspection at the following address: (It is recommended that you telephone Fayette Bright at (312) 886-6069, before visiting the Region 5 Office.) United States Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard (AR-18J), Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Fayette Bright, Air Programs Branch, Regulation Development Section (AR-18J), United States Environmental Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6069.

SUPPLEMENTARY INFORMATION:

I. Background

On November 15, 1994, the OEPA submitted to the USEPA a request for redesignation of Clinton County, Ohio from transitional nonattainment n1 to attainment for ozone, and a maintenance plan designed to assure continued attainment of the national ambient air quality standards for ozone in the Clinton County area. On February 24, 1995, the OEPA submitted additional information to the USEPA regarding the State public hearing and responses to public comments received regarding the redesignation and the maintenance plan. The redesignation request was supported by technical information demonstrating that the requirements of Section 107(d)(3)(E) of the Clean Air Act (Act) were met. On May 5, 1995, a document was published in the Federal Register (60 FR 22337) which proposed approval of the redesignation request the maintenance plan, and the emissions inventory.

n1 As stated in the proposed rule, Clinton County did not experience a violation during the three year period from January 1, 1987 through December 31, 1989. Therefore, pursuant to Section 185(A) of the Clean Air Act, it was designated a transitional nonattainment area for ozone. Under this classification, the requirements of Subpart 2 of Part D of Title 1 of the CAA for ozone nonattainment areas were suspended for Clinton County until December 31, 1991. See 60 FR 22337 (May 5, 1995). After December 31, 1991, the requirements were no longer suspended, however, Subpart 2 did not contain any new requirements that would apply to a transitional area that was not classified under Section 181(a) as marginal or above.

II. Summary of Proposed Rulemaking

The proposed rulemaking detailed how the State submittal fulfilled the redesignation requirements of the Act. Specifically, Section 107(d)(3)(E) of the Act provides for redesignation if: (i) The Administrator determines that the area has attained the National Ambient Air Quality Standards (NAAQS); (ii) the Administrator has fully approved the applicable implementation plan for the area under Section 110(k); (iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of Section 175(A); (v) the State containing such area has met all requirements applicable to the area under Section 110 and Part D. The USEPA also provided guidance on redesignation in the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 FR 13498 (April 16, 1992), supplemented at 57 FR 18070 (April 28, 1992) and in three key memoranda which were cited in the May 5, 1995 Federal Register notice. See 60 FR 22337. The following discussion expands and clarifies the analysis made in the proposed rule as to how the State has fulfilled the Act's redesignation requirements for Clinton County.

A. The Area Must Have Attained the Ozone NAAQS.

There is a 2-step process to determining whether an area has violated the ozone NAAQS which both tallies the number of monitored exceedances and accounts for any time the monitor was not operating or operating improperly. The first step is to determine the number of expected exceedances for each year of the last three years from each monitoring site. The second step is to determine the area's average expected exceedance rate over the most recent three year period. Pursuant to 40 C.F.R. 50.9, this rate cannot exceed 1.0.

The OEPA submitted monitoring data for Clinton County for the years 1977 through 1994. The monitor recorded 5 exceedances of the ozone NAAQS in 1983. This resulted in an average expectant exceedance rate of greater than 1.0. Consequently, Clinton County was found to be in violation of the NAAQS. On November 15, 1990, Clinton County retained its nonattainment designation and was classified as a transitional area based on monitoring data for 1987, 1988 and 1989. Clinton County exceeded the NAAQS for ozone for the years 1988, 1989, and 1993, during which there were only single exceedances during each of these years. In addition, monitoring data shows that no exceedances were monitored during 1995. Because Clinton County had only one exceedance during the last three years of complete monitoring data (1993-1995), the average expected exceedance rate is 0.33 per year, which falls below the average expected exceedance rate of 1.0. Thus, Clinton County currently meets the ozone NAAQS and has been in attainment since 1986.

B. The Area Must Have a Fully Approved State Implementation Plan (SIP) Under Section 110(k)

Because Clinton County is classified as a transitional area for ozone, it is only required to submit an emissions inventory as a SIP revision. n2 This final rulemaking also approves the emissions inventory for the Clinton County area which has been included as part of the maintenance plan. n3 Consequently, the area has satisfied the second requirement.

n2 September 4, 1992 memorandum issued by John Calcagni, Director, Air Quality Management Division, entitled "Procedures for Processing Requests to Attainment".

n3 The September 4, 1992 memorandum issued by John Calcagni, Director, Air Quality Management Division, entitled, "Procedures for Processing Requests to Attainment," allows approval action on the SIP elements and the redesignation request to occur simultaneously.

C. The Improvement in Air Quality Must Be Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollutant Control Regulations and Other Permanent and Enforceable Reductions

The State of Ohio did not rely on new SIP measures to meet this requirement because there were no new emission reduction programs required by the CAA to be approved into the SIP. Instead, the State demonstrated that the improvement in air quality was due to the Federal Motor Vehicle Emissions Control Program (FMVCP) required at 40 Code of Federal Regulations (CFR) Part 86 and the lower fuel volatility requirements at 40 CFR Part 80. Both of these requirements are permanent measures enforceable by the Federal government.

The State has also shown that in Clinton County, actual total VOC emissions were reduced by approximately two (2) tons per day from 1990 to 1993. The State attributes these results exclusively to reductions in mobile source emissions. The mobile source emission reductions were the result of the lower fuel volatility program and the FMVCP. Consequently, the third requirement has also been met.

D. The Area Must Have a Fully Approved Maintenance Plan Meeting the Requirements of Section 175(A)

The OEPA has met the applicable requirements by submitting a maintenance plan consisting of emission inventories for area, point, and mobile sources of Volatile Organic Compounds (VOC), Nitrogen Oxides (NOx), and Carbon Monoxide (CO) emissions. This maintenance plan also includes a contingency plan with defined measures to be implemented in accordance with a specified schedule, as presented in Section II. D of the May 5, 1995 proposed rule. Additionally, any monitored violation in Clinton County would also trigger contingency measures in the counties comprising the Cincinnati moderate nonattainment area. (The State has also developed rules and an implementation plan to place a program in operation in the event a violation in any of these areas occur).

The current RVP requirement in the State of Ohio is 9.0 pounds per square inch (psi). n4 There is a 1 psi waiver available for retailers and blenders who use ethanol as an octane enhancer/additive. This waiver would still be available with the State's low-RVP program in the event it is implemented. The low-RVP program and other measures on Ohio's list of contingency measures are new measures that are not currently in place in the area.

n4 Federal RVP requirements are found at 40 CFR Section 80.27. As of the summer of 1992, gasoline RVP could not exceed 9.0 psi during the months of May through September. There is a special provision for fuels blended to a 10 volume percent ethanol. The provision allows the RVP to exceed 9.0 psi up to 10.0 psi.

E. The Area Must Have Met All Applicable Requirements Under Section 110 and Part D Ohio has also met this requirement, as detailed in a discussion in the May 5, 1995 Federal Register proposed approval of the redesignation request at 60 FR 22343.

The proposed rulemaking also presented summary tables of VOC emissions, CO emissions, and NOx emissions projections for Clinton County. The tables for VOC and NOx are presented below.

The VOC and NOx emissions projected for the year 2006 in the above tables are considered emission budgets for purposes of transportation conformity. Section 176 of the CAA sets forth the requirement that the federal government and metropolitan planning organizations may not support transportation activities that do not conform to the purpose of the SIP. This is generally known as "transportation conformity." In the Maintenance Plan portion of the SIP an emissions budget is established for certain areas. This budget is the amount of emissions that the area must remain below in order to maintain the ozone standard. Clinton County is designated as a transitional nonattainment area that is generally downwind of the Cincinnati Metropolitan area. The Clinton County area does not have any major stationary sources of emissions and is considered a relatively small source of emissions. In addition, the last violation of the ozone NAAQS in Clinton County occurred in 1983.

Public Comment/USEPA Response

In response to USEPA's request for written comments on the proposed rulemaking, USEPA received comments from the Miami Group of the Ohio Chapter of the Sierra Club (the Miami Group). The Miami Group submitted comments regarding the redesignation of both the Cincinnati and the Clinton County areas. n5 Because this final rulemaking only addresses the redesignation of the Clinton County area, the following discussion summarizes and responds only to the Miami Group's comments insofar as they concerned the redesignation of the Clinton County area. USEPA will respond to the Miami Group's comments regarding the redesignation of the Cincinnati area in any final rulemaking regarding the redesignation of the Cincinnati area.

n5 USEPA's proposed rule in the May 5, 1995 Federal Register notice at 60 FR 22343 addressed OEPA's request for both the redesignation of the Ohio portion of the Cincinnati area and the Clinton County area.

Comment: The area has not yet proven that it has attained the NAAQS. The NAAQS for ozone are not fully protective of the public health and the environment. The area has reached attainment previously only to be followed by violations. Additionally, the ozone monitoring network may be insufficient and no consideration is given to downwind areas.

Response: The current ozone standard was set to protect public health. The OEPA has shown that the Clinton County area meets the NAAQS, as described in both this final rulemaking and in the proposed rulemaking published on May 5, 1995. In addition, the ozone monitoring network has been determined by USEPA, to be representative of ambient air concentrations of ozone in the Clinton County area. In addition, the monitoring network will remain in operation after the redesignation to attainment to verify the future attainment status of the area.

Finally, as stated in the proposed rule, the USEPA intends to address the transport or downwind area issue through Section 110 of the Act, based on a domain-wide modeling analysis. The domain-wide modeling analysis involves modeling the eastern portion of the United States in an effort to better understand what is needed in this region to reduce the amount of transported ozone and ozone precursors such as volatile organic compounds and oxides of nitrogen, so that the ozone NAAQS can be achieved in all areas across the region. Section 110 of the CAA requires that SIPs contain adequate provisions to prohibit sources or emissions activities within the State from contributing to nonattainment, or interfering with maintenance in any other state with respec to the NAAQS. USEPA expects to use its authority under the CAA to require states to revise their SIPs to meet this requirement.

Comment: The improvement in air quality is not due to permanent and enforceable reductions in emissions. The lack of violations of the ozone NAAQS may be due to voluntary controls. Increasing vehicle miles travelled will result in increasing emissions, offsetting reductions from the removal of older vehicles. There are inconsistencies in the Vehicle Miles Traveled (VMT) and growth projections between the SIP, the Transportation Improvement Program (TIP), and the redesignation request.

Response: The State reasonably attributed improvement in air quality to be primarily due to two Federal programs: the FMVCP and the lower Reid Vapor Pressure (RVP) program, both of which are permanent and Federally enforceable. The transportation projections were calculated using methods consistent with USEPA guidance. The differences in VMT growth projections are slight and do not affect the approval of the redesignation package. The year 2006 total VOC emission totals as detailed in this rulemaking set the budget for transportation conformity purposes. While VMT is increasing in Clinton County, the vehicles in the area are producing less pollution per vehicle due to the FMVCP. This offsets the growth in VMT and results in less pollution from the mobile sources sector. Emissions projections using USEPA's mobile emissions model to estimate vehicle emissions combined with the VMT projections for Clinton County confirm this conclusion.

Comment: The transportation modeling and emission analysis is flawed and makes it impossible for the maintenance plan to succeed. Changes in VMT brought about by changes in highway systems or land development have not been adequately addressed.

Response: The approach used to estimate mobile source emissions is reasonable and in accordance with USEPA guidance. The Mobile 5a model is the appropriate model to use to predict emission factors which can be applied to VMT to obtain emission projections. Additionally, mobile source inventories will be updated at least once every three years to incorporate new VMT estimates and revised USEPA mobile emission models.

Comment: If the area is redesignated to attainment, stationary sources will be allowed to grow uncontrolled.

Response: Currently, no major sources are located in the Clinton County area. Any major new sources located in this area would be subject to Prevention of Significant Deterioration (PSD) requirements at 40 C.F.R. @ 52.21. These regulations require major new sources and major modifications of existing sources to use Best Available Control Technology (BACT). In addition, any allowable emission increases from such new construction could not cause or contribute to air pollution in the area. The maintenance plan prepared for Clinton County also relies on contingency measures to correct any future violations. These contingency measures would be implemented in the event the standard is violated.

Comment: The contingency plan is based on insufficient control measures and the implementation schedule is too long.

Response: The contingency plan is adequate. It contains 12 possible measures. Moreover, it is not limited to the list of 12 measures in the submittal. For example, the State may select other control measures based on cost-effectiveness, VOC reduction potential, economic and social consideration, or other factors. The implementation schedule calls for a VOC control program to be implemented as expeditiously as possible and to be in place no later than 12 months from the verification that a violation of the ozone National Ambient Air Quality Standards (NAAQS) has occurred. USEPA believes that this schedule satisfies the requirement of section 175A that contingency measures promptly correct any violations and is consistent with schedules contained in numerous other maintenance plans approved by USEPA.

Comment: The Long Range Plan contains emission projections which are insupportable.

Response: Ohio demonstrated that by considering the growth in the area (including VMT growth) and present controls on existing emission sources, emissions will remain below the attainment year inventory through the year 2006. In projecting mobile source emissions, Ohio obtained VMT based on the TRANPLAN Model which uses traffic counting data for the year 1990. To forecast VMT to the year 2006, Ohio used growth parameters based on modeling of the Long Range Transportation Plan (future highway network). This modeling process incorporated population growth estimates from Ohio Data Users Center, employment forecasts, and other forecasts regarding socio-economic data. USEPA considers the methodology which was used to project emissions to be reasonable.

III. Rulemaking Action

Clinton County, which is located to the northeast of the City of Cincinnati, is being redesignated from transitional nonattainment to attainment for ozone. In the proposed rulemaking published on May 5, 1995, USEPA detailed how the Clinton County portion of the submittal met the redesignation requirements of Section 107(d)(3)(E). See 60 FR 22337.

USEPA received comments pertaining to the proposed rulemaking. The comments were considered and responses were detailed in the above section of this notice. The USEPA believes that the redesignation requirements of Section 107(d) are satisfied and is taking final action to approve the request for redesignation to attainment and to approve the maintenance plan and emissions inventory for Clinton County, Ohio.

USEPA finds that there is good cause for this redesignation, maintenance plan and emissions inventory to become effective immediately upon publication because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which exempts the area from certain Act requirements that would otherwise apply to it. The immediate effective date for this redesignation, maintenance plan and emissions inventory is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule "grants or recognizes an exemption or relieves a restriction" and section 553(d)(3), which allows an effective date less than 30 days after publication "as otherwise provided by the agency for good cause found and published with the rule."

Nothing in this action should be construed as permitting, allowing or establishing a precedent for any future request for revision to any SIP. USEPA shall consider each request for revision to the SIP 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 3 action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995 memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation. The Office of Management and Budget has 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. Redesignation of an area to attainment under section 107(d)(3)(E) of the Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. The Administrator certifies that the approval of the redesignation request will not affect a substantial number of small entities. 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, the Administrator certifies that it does not have a significant impact on any 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. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, USEPA must undertake various actions in association with proposed or final rules that include a Federal mandate that may result in estimated costs of $100 million or more to the private sector, or to State, local, or tribal governments in the aggregate.

Through submission of the state implementation plan or plan revisions approved in this action, the State and any affected local or tribal governments have elected to adopt the program provided for under section 175A of the Clean Air Act. The rules and commitments being proposed for approval in this action may bind State, local and tribal governments to perform certain actions and also may ultimately lead to the private sector being required to perform certain duties. To the extent that the rules and commitments being proposed for approval by this action will impose or lead to the imposition of any mandate upon the State, local or tribal governments either as the owner or operator of a source or as a regulator, or would impose or lead to the imposition of any mandate upon the private sector, USEPA's action will impose no new requirements; such sources are already subject to these requirements under State law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action. The USEPA has also determined that this action does not include a mandate that may result in estimated costs of $100 million or more to State, local, or tribal governments in the aggregate or to the private sector.

Under Section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 20, 1996. 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

Environmental Protection, Air pollution control, Ozone, Nitrogen oxides, Volatile organic compounds.

40 CFR Part 81

Air pollution control.

Dated: March 1, 1996.

Valdas V. Adamkus, Regional Administrator.

Chapter 1, title 40 of the Code of Federal Regulations is amended as follows: PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

2. Section 52.1885 is amended by adding paragraphs (b)(9) and (y) to read as follows:

@ 52.1885 -- Control Strategy: Ozone.

* * * * *

(b) * * *

(9) Clinton County

* * * * *

(y) Approval-The 1990 base-year ozone emissions inventory requirement of Section 182(a)(1) of the Clean Air Act has been satisfied for Clinton County.

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES-OHIO

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

Authority: 42. U.S.C. 7401-7671q.

2. In @ 81.336 the ozone table is amended by revising the entry for the Clinton 
County Area to read as follows:  @ 81.336 -- Ohio 

* * * * * 
                           Ohio--Ozone 

                              Designation            Classification 
Designated area         Date fn1       Type          Date      Type 
* * * * * * * 

Clinton County Area,    March 21, 1996  Attainment 
Clinton County 

* * * * * * * 

fn1 This date is November 15, 1990 unless otherwise noted. 

[FR Doc. 96-6778 Filed 3-20-96; 8:45 am]

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