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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH31-2-6361; FRL-5066-9]

Approval and Promulgation of Implementation Plans and Designation

of Areas for Air Quality Planning Purposes; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency is approving maintenance

plans and redesignation of Morgan and Washington Counties, Ohio, from

nonattainment to attainment for sulfur dioxide (SO2), and is

deferring action on the maintenance plans and redesignation request for

Gallia and Coshocton Counties. This action for Morgan and Washington

Counties is based on Ohio's request, and provides that the new source

review requirements for nonattainment areas will no longer apply for

SO2 in these two counties.

EFFECTIVE DATE: This final rule is effective on October 21, 1994.

ADDRESSES: Copies of the maintenance plan and 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 John Summerhays at (312) 886-6067

before visiting the Region 5 Office.) United States Environmental

Protection Agency, Region 5, Air and Radiation Division, 77 West

Jackson Boulevard (AE-17J), Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John Summerhays at (312) 886-6067.

SUPPLEMENTARY INFORMATION:

I. Summary of Proposed Rulemaking

A subsequent submittal provided stack test data for one of the

relevant facilities. On March 18, 1994, at 59 FR 12886, USEPA proposed

to approve maintenance plans and redesignation of Morgan and Washington

Counties, Ohio, from nonattainment to attainment for sulfur dioxide

(SO2). In that document, USEPA did not propose to take action on

the maintenance plans and redesignation request for Gallia and

Coshocton Counties. The notice of proposed rulemaking (NPR) included a

background synopsis of the State's submittals and the applicable

criteria, a full review of the State's submittals, and a summary of the

proposed action. The NPR contained five subsections corresponding to

the five criteria for redesignation from nonattainment to attainment

given in section 107(d)(3)(E) of the Clean Air Act. In the NPR, USEPA

made the following proposed findings: (i) All four counties are

attaining the 24-hour air quality standard, Morgan and Washington

Counties are attaining the 3-hour standard, and USEPA did not evaluate

whether Coshocton and Gallia Counties are attaining the 3-hour

standard; (ii) USEPA considered approval of the Morgan and Washington

County plans under section 110(a)(2) to satisfy section

107(d)(3)(E)(ii) for these counties, but ``based on questions as to

whether (Federal Implementation Plans (FIPs)) satisfy the requirements

of section 107(d)(3)(E)(ii),'' USEPA deferred action on Ohio's request

for Coshocton and Gallia Counties; (iii) USEPA judged all four counties

to have permanent and enforceable emission reductions; (iv) USEPA

judged the maintenance plans for Morgan and Washington Counties

adequate, and did not evaluate the maintenance plans for Coshocton and

Gallia Counties; and (v) USEPA judged that Ohio had satisfied the

requirements of section 110 and part D of title I for Morgan and

Washington Counties, and did not evaluate whether these requirements

were satisfied for Coshocton and Gallia Counties. On the basis of this

review, USEPA proposed to approve the maintenance plans and

redesignation request for Morgan and Washington Counties and did not

propose action for Coshocton and Gallia Counties.

II. Public Comments/USEPA Responses

One letter commenting on the proposed rulemaking was received,

submitted by the Ohio Environmental Protection Agency (OEPA). This

letter included as an attachment a letter commenting on the same

issues, sent from Ohio Governor Voinovich to Administrator Carol

Browner prior to publication of the notice of proposed rulemaking. The

comments in these letters and USEPA's responses follow:

Comment: Ohio supports the proposed action with respect to Morgan

and Washington Counties.

Response: USEPA received no adverse comments on this part of its

proposal, and, for the reasons provided in the proposal, concludes that

the maintenance plans and redesignation request for these counties

should be approved.

Comment: The State objects to USEPA's decision to defer action on

the redesignation of Coshocton and Gallia Counties, and in particular

presents arguments that areas subject to FIP limits (promulgated under

section 110(c) of the Clean Air Act) rather than SIP limits (approved

under section 110(k) or its equivalent) may be redesignated. Ohio

argues that FIP limits are equivalent to SIP limits. The State cites

language previously in section 110(d) (essentially moved to section

302(q) by the Clean Air Act Amendments of 1990) that the

``implementation plan'' includes both approved State submittals and

federally promulgated measures. The State comments that if areas with

FIPs could not be redesignated, then ``U.S. EPA could never promulgate

a FIP because such a plan would not provide for attainment

redesignations and thus would be incomplete,'' and ``nonattainment

areas would be frozen, even though air quality may be demonstrably

improved.''

Also, the Governor commented that designations are based on air

quality and that FIPs provide for permanent air quality improvement.

The Governor concluded that Coshocton and Gallia Counties have been

exhibiting attainment for 14 years, and that obstruction to the

attainment status of these counties is based on a narrow interpretation

of the Clean Air based on ``periodic changes in review requirements,''

and is inappropriate and unnecessary.

Response: Section 107(d)(3)(E) of the Act, as amended in 1990,

precludes USEPA from redesignating areas subject to FIPs, such as

Coshocton and Gallia Counties to attainment. That section of the Act

prohibits USEPA from redesignating a nonattainment area to attainment

unless the area satisfies certain explicit statutory criteria. It

provides that:

The Administrator may not promulgate a redesignation of a

nonattainment area (or portion thereof) to attainment unless--

(i) The Administrator determines that the area has attained the

national ambient air quality standard;

(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 175A; and

(v) The State containing such area has met all requirements

applicable to the area under section 110 and part D.

As is evident, several criteria must be satisfied for an area to be

redesignated to attainment apart from attaining the national ambient

air quality standard and the determination that improvements in air

quality are due to permanent and enforceable reductions in emissions.

It is those criteria, especially that in clauses (ii), (iv) and (v),

that are pertinent with respect to the issue of whether a nonattainment

area may be redesignated to attainment if there is FIP, rather than a

SIP, in place.

First, the language of clause (ii) requires that for USEPA to

redesignate an area, USEPA must have ``fully approved the applicable

implementation plan for the area under section 110(k).'' This clause

clearly requires that a SIP be in place. Only SIPs are approved by

USEPA; FIPs are not approved, but promulgated. More importantly, the

clause refers to approval under section 110(k), the provision of the

Act setting forth the procedure for USEPA to act on SIP revisions

submitted to the Agency by states. Thus, a FIP does not qualify as a

plan approved under section 110(k). In contrast, the language of

section 302(q) defines the term ``applicable attainment plan'' as

meaning a FIP or a SIP. Thus, it defines ``applicable implementation

plan'' as ``the portion (or portions) of the implementation plan, or

most recent revision thereof, which has been approved under section 110

(a SIP, which is referred to in section 107(d)), or promulgated under

section 110(c) (a FIP, which is not referred to in section

107(d)(3)(E)(ii)).''

Second, clause (iv) requires that USEPA have fully approved a

maintenance plan as meeting the requirements of section 175A. Section

175A(a) requires that each State that submits a redesignation request

to submit ``a revision of the applicable State implementation plan to

provide for maintenance of the national primary ambient air quality

standard,'' and thus clearly presupposes that a SIP, not a FIP, will be

in place prior to redesignation.

Third, clause (v) requires that, in order to have an area

redesignated to attainment, the State containing the area must meet

``all requirements applicable to the area under section 110 and part

D.'' As these requirements concern various SIP submissions, this clause

also implicitly means that USEPA cannot approve a redesignation request

for an area that is subject to a FIP.

Thus, the language of section 107(d)(3) plainly prohibits USEPA

from redesignating an area to attainment if that area is subject to a

FIP. This outcome is fully consistent with a fundamental policy

underlying the law--that the states have primary responsibility for

attaining and maintaining air quality standards and that FIPs are

intended to be only short-term measures to fill gaps in control

strategies. Further evidence of this policy is provided by the fact

that sanctions imposed under section 179 due to a state's failure to

comply with its SIP obligations are not suspended or lifted due to

USEPA's promulgation of a FIP pursuant to its obligations under section

110(c).

USEPA also notes that areas subject to FIPs are not frozen in place

as nonattainment areas. Assuming that the area continued to satisfy the

national ambient air quality standards, the area would be eligible for

redesignation to attainment once the state submitted approvable SIP

revisions as required by the Act, and submitted an approvable state

maintenance plan.

Comment: In another argument for redesignating areas with FIP-based

plans, the State interprets section 110(n)(1), the ``Savings Clause,''

as providing that ``[t]he authority of USEPA to redesignate

nonattainment areas under a section 110(c) plan would remain unchanged

as a result of the 1990 Amendments.'' The State believes that former

section 110(d) provided this authority prior to the 1990 amendments.

Response: Section 110(n)(1) authorizes the enforcement of plan

elements approved prior to 1990. It does not authorize USEPA to ignore

post-1990 Clean Air Act criteria in judging the acceptability of

States' requests. The requirement now in section 107(d)(3)(E)(ii)

requiring a plan approved under section 110(k) was not included in the

pre-1990 Clean Air Act or in USEPA's guidance. However, this

requirement is applicable now under the Act.

Comment: The Governor commented that ``[a]reas with FIPs have been

redesignated in Ohio in the past,'' indicating that USEPA agreed that

FIPs provide for permanent air quality improvement, and indicating

further that Gallia and Coshocton Counties should be redesignated.

Response: Regardless of the situation prior to the enactment of the

Clean Air Act Amendments of 1990, the requirements of section

107(d)(3)(E) are applicable under the Act now, and must be satisfied as

a prerequisite for redesignating an area from nonattainment to

attainment.

Comment: The State comments that USEPA should not use 1.95 as the

conversion factor from coal sulfur content to sulfur dioxide emissions,

but should instead use the factor of 1.9 given in Supplement F of AP-42

(dated July 1993).

Response: USEPA agrees with the State's comment. Since the fuel

quality information indicated the air quality standards being met using

a 1.95 conversion factor, the fuel quality information also indicates

the air quality standards being met using a 1.9 conversion factor.

III. Rulemaking Action

USEPA has reviewed the State's submittals and other related

material and, for the reasons stated in the proposal, has concluded

that the maintenance plan and redesignation request for Morgan and

Washington Counties satisfy the applicable criteria for approval.

Consequently, USEPA approves the maintenance plan for SO2 for

Morgan and Washington Counties, and redesignates these two counties to

attainment. USEPA continues to defer action with respect to Ohio's

maintenance plans and redesignation requests for Coshocton and Gallia

Counties.

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 2 action under the

processing 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. On January 6, 1989, the Office of Management and Budget

(OMB) waived Table 2 and Table 3 SIP revisions (54 FR 2222) from the

requirements of section 3 of Executive Order 22291 for a period of 2

years. The USEPA has submitted a request for a permanent waiver for

Table 2 and 3 SIP revisions. The OMB has agreed to continue the

temporary waiver until such time as it rules on USEPA's request. This

request continues in effect under Executive Order 12866 which

superseded Executive Order 12291 on September 30, 1993.

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 November 21, 1994. 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, Intergovernmental relations, Sulfur oxides.

40 CFR Part 81

Air pollution control, National parks, Wilderness areas.

Dated: August 25, 1994.

Valdas V. Adamkus,

Regional Administrator.

Part 52, chapter I, 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.

Subpart KK--Ohio

2. Section 52.1881 is amended by adding paragraph (a)(12) to read

as follows:

Sec. 52.1881 Control strategy: Sulfur oxides (sulfur dioxide).

(a) * * *

(12) In a letter dated June 25, 1992, Ohio submitted a maintenance

plan for sulfur dioxide in Morgan and Washington Counties.

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PART 81--[AMENDED]

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

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

2. In Sec. 81.336 the ``Ohio-SO2'' table is amended by

revising the entries for ``Morgan County'' and ``Washington County'' to

read as follows:

Sec. 81.336 Ohio.

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Ohio--SO2

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Does not meet Does not meet Better than

Designated area primary secondary Cannot be national

standards standards classified standards

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Morgan County......................................... ............. ............. ............. X

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Washington County..................................... ............. ............. ............. X

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[FR Doc. 94-23109 Filed 9-20-94; 8:45 am]

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