Determination of Attainment of Ozone Standard by Ashland, Kentucky, Northern Kentucky (Cincinnati Area), Charlotte, North Carolina, and Nashville, Tennessee, and Determination Regarding Applicability of Certain Reasonable Further Progress and Attainment Demonstration Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5225-1]

Determination of Attainment of Ozone Standard by Ashland,

Kentucky, Northern Kentucky (Cincinnati Area), Charlotte, North

Carolina, and Nashville, Tennessee, and Determination Regarding

Applicability of Certain Reasonable Further Progress and Attainment

Demonstration Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is determining, through direct final procedure, that

the Ashland, Kentucky, Northern Kentucky, Charlotte-Gastonia, North

Carolina, and Nashville, Tennessee ozone nonattainment areas have

attained the National Ambient Air Quality Standard (NAAQS) for ozone.

This determination is based upon three years of complete, quality

assured ambient air monitoring data for the years 1992-94 that

demonstrate that the ozone NAAQS has been attained in these areas. On

the basis of this determination, EPA is also determining that certain

reasonable further progress and attainment demonstration requirements,

along with certain other related requirements, of Part D of Title 1 of

the Clean Air Act are not applicable to the areas for so long as the

areas continue to attain the ozone NAAQS. In the proposed rules section

of this Federal Register, EPA is proposing these determinations and

soliciting public comment on them. If adverse comments are received on

this direct final rule, EPA will withdraw this final rule and address

these comments in a final rule on the related proposed rule which is

being published in the proposed rules section of this Federal Register.

DATES: This action will be effective August 7, 1995 unless notice is

received by July 24, 1995 that any person wishes to submit adverse or

critical comments. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: A copy of the air quality data and EPA's analysis are

available for inspection at the following address:

Environmental Protection Agency, Region 4 Air Programs Branch, 345

Courtland Street, NE, Atlanta, Georgia 30365

Commonwealth of Kentucky, Division of Air Quality, Department for

Environmental Protection, Natural Resources and Environmental

Protection Cabinet, 803 Schenkel Lane, Frankfort, Kentucky 40601

State of North Carolina, Air Quality Section, Division of Environmental

Management, North Carolina Department of Environment, Health, and

Natural Resources, Raleigh, North Carolina 27626

Environmental Management Division, Mecklenburg County Department of

Environmental Protection, 700 N. Tryon Street, Charlotte, North

Carolina 28202-2236

State of Tennessee, Division of Air Pollution Control, Tennessee

Department of Environment and Conservation, L & C Annex, 9th Floor, 401

Church Street, Nashville, Tennessee 37243-1531

Bureau of Environmental Health Services, Metropolitan Health

Department, Nashville-Davidson County, 311-23rd Avenue, North,

Nashville, Tennessee 37203

Written comments can be mailed to: Kay Prince, Regulatory Planning

and Development Section, Air Programs Branch, Air, Pesticides & Toxics

Management Division, Region 4, Environmental Protection Agency, 345

Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is

404/347-3555 extension 4221.

FOR FURTHER INFORMATION CONTACT: Kay Prince, Regulatory Planning and

Development Section, Air Programs Branch, Air, Pesticides & Toxics

Management Division, Region 4, Environmental Protection Agency, 345

Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is

404/347-3555 extension 4221.

SUPPLEMENTARY INFORMATION:

I. Background

Subpart 2 of Part D of Title I of the Clean Air Act (CAA) contains

various air quality planning and state implementation plan (SIP)

submission requirements for ozone nonattainment areas. EPA believes it

is reasonable to interpret provisions regarding reasonable further

progress (RFP) and attainment demonstrations, along with certain other

related provisions, so as not to require SIP submissions if an ozone

nonattainment area subject to those requirements is monitoring

attainment of the ozone standard (i.e., attainment of the NAAQS

demonstrated with three consecutive years of complete, quality assured

air quality monitoring data). As described below, EPA has previously

interpreted the general provisions of subpart 1 of part D of Title I

(sections 171 and 172) so as not to require the submission of SIP

revisions concerning RFP, attainment demonstrations, or contingency

measures. As explained in a memorandum dated May 10, 1995, from John S.

Seitz, Director, Office of Air Quality Planning and Standards to the

Regional Air Division Directors, entitled Reasonable Further Progress,

Attainment Demonstration, and Related Requirements for Ozone

Nonattainment Areas Meeting the Ozone National Ambient Air Quality

Standard, EPA believes it is appropriate to interpret the more specific

RFP, attainment demonstration and related provisions of subpart 2 in

the same manner.

First, with respect to RFP, section 171(1) states that, for

purposes of part D of Title I, RFP ``means such annual incremental

reductions in emissions of the relevant air pollutant as are required

by this part or may reasonably be required by the Administrator for the

[[Page 32467]] purpose of ensuring attainment of the applicable

national ambient air quality standard by the applicable date.'' Thus,

whether dealing with the general RFP requirement of section 172(c)(2),

or the more specific RFP requirements of subpart 2 for classified ozone

nonattainment areas (such as the 15 percent plan requirement of section

182(b)(1)), the stated purpose of RFP is to ensure attainment by the

applicable attainment date.1 If an area has in fact attained the

standard, the stated purpose of the RFP requirement will have already

been fulfilled and EPA does not believe that the area need submit

revisions providing for the further emission reductions described in

the RFP provisions of section 182(b)(1).

\1\ EPA notes that paragraph (1) of subsection 182(b) is

entitled ``Plan Provisions For Reasonable Further Progress'' and

that subparagraph (B) of paragraph 182(c)(2) is entitled

``Reasonable Further Progress Demonstration,'' thereby making it

clear that both the 15 percent plan requirement of section 182(b)(1)

and the 3 percent per year requirement of section 182(c)(2) are

specific varieties of RFP requirements.

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EPA notes that it took this view with respect to the general RFP

requirement of section 172(c)(2) in the General Preamble for the

Interpretation of title I of the Clean Air Act Amendments of 1990 (57

FR 13498 (April 16, 1992)), and it is now extending that interpretation

to the specific provisions of subpart 2. In the General Preamble, EPA

stated, in the context of a discussion of the requirements applicable

to the evaluation of requests to redesignate nonattainment areas to

attainment, that the ``requirements for RFP will not apply in

evaluating a request for redesignation to attainment since, at a

minimum, the air quality data for the area must show that the area has

already attained. Showing that the state will make RFP towards

attainment will, therefore, have no meaning at that point.'' (57 FR at

13564.) 2

\2\ See also ``Procedures for Processing Requests to Redesignate

Areas to Attainment,'' from John Calcagni, Director, Air Quality

Management Division, to Regional Air Division Directors, September

4, 1992, at page 6 (stating that the ``requirements for reasonable

further progress * * * will not apply for redesignations because

they only have meaning for areas not attaining the standard'')

(hereinafter referred to as ``September 1992 Calcagni memorandum'').

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Second, with respect to the attainment demonstration requirements

of section 182(b)(1), an analogous rationale leads to the same result.

Section 182(b)(1) requires that the plan provide for ``such specific

annual reductions in emissions * * * as necessary to attain the

national primary ambient air quality standard by the attainment date

applicable under this Act.'' As with the RFP requirements, if an area

has in fact monitored attainment of the standard, EPA believes there is

no need for an area to make a further submission containing additional

measures to achieve attainment. This is also consistent with the

interpretation of certain section 172(c) requirements provided by EPA

in the General Preamble to title I, as EPA stated there that no other

measures to provide for attainment would be needed by areas seeking

redesignation to attainment since ``attainment will have been

reached.'' (57 FR at 13564; see also September 1992 Calcagni memorandum

at page 6.) Upon attainment of the NAAQS, the focus of state planning

efforts shifts to the maintenance of the NAAQS and the development of a

maintenance plan under section 175A.

EPA emphasizes that the lack of a requirement to submit the SIP

revisions discussed above exists only for as long as an area designated

nonattainment continues to attain the standard. If EPA subsequently

determines that such an area has violated the NAAQS, the basis for the

determination that the area need not make the pertinent SIP revisions

would no longer exist. The EPA would notify the State of that

determination and would also provide notice to the public in the

Federal Register. Such a determination would mean that the area would

have to address the pertinent SIP requirements within a reasonable

amount of time, which EPA would establish taking into account the

individual circumstances surrounding the particular SIP submissions at

issue. Thus, a determination that an area need not submit one of the

SIP submittals amounts to no more than a suspension of the requirement

for so long as the area continues to attain the standard.

The states must continue to operate an appropriate air quality

monitoring network, in accordance with 40 CFR Part 58, to verify the

attainment status of the area. The air quality data relied upon to

determine that the area is attaining the ozone standard must be

consistent with 40 CFR Part 58 requirements and other relevant EPA

guidance and recorded in EPA's Aerometric Information Retrieval System

(AIRS).

The determinations that are being made with this Federal Register

notice are not equivalent to the redesignation of the areas to

attainment. Attainment of the ozone NAAQS is only one of the criteria

set forth in section 107(d)(3)(E) that must be satisfied for an area to

be redesignated to attainment. To be redesignated the state must submit

and receive full approval of a redesignation request for the area that

satisfies all of the criteria of that section, including the

requirement of a demonstration that the improvement in the area's air

quality is due to permanent and enforceable reductions and the

requirements that the area have a fully approved SIP meeting all of the

applicable requirements under section 110 and Part D and a fully

approved maintenance plan.

Furthermore, the determinations made in this notice do not shield

an area from future EPA action to require emissions reductions from

sources in the area where there is evidence, such as photochemical grid

modeling, showing that emissions from sources in the area contribute

significantly to nonattainment in, or interfere with maintenance by,

other nonattainment areas. EPA has authority under sections

110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions if

necessary and appropriate to deal with transport situations.

II. Analysis of Air Quality Data

The EPA has reviewed the ambient air monitoring data for ozone

(consistent with the requirements contained in 40 CFR part 58 and

recorded in AIRS) for the Ashland, Northern Kentucky, Charlotte-

Gastonia, and Nashville ozone nonattainment areas in the Commonwealth

of Kentucky and the States of North Carolina and Tennessee from 1992

through the present time. On the basis of that review EPA has concluded

that the areas attained the ozone standard during the 1992-94 period

and continue to attain the standard at this time. The monitors in the

Northern Kentucky portion of the Cincinnati ozone nonattainment area

have not recorded a violation of the ozone standard since 1988 and have

recorded only one exceedance (Campbell County monitor) during the 1992-

94 period. Additionally, all monitors in the Cincinnati ozone

nonattainment area have an expected exceedance rate of less than 1.1

for the 1992-94 period. The Ashland portion of the Ashland-Huntington

area has air quality data showing attainment of the standard for the

period 1991-94. Both the Boyd County and Greenup County monitors have

recorded 2 exceedances in the 1992-94 period. All monitors in the

Ashland-Huntington area have an expected exceedance rate for the 1992-

94 period of less than 1.1. All monitors in the Charlotte-Gastonia area

have an expected exceedance rate of less than 1.1 for the 1992-94

period with no violations recorded at any monitor for the 1990-94

period. Two of the monitors in Mecklenburg County have recorded two

exceedances during the 1992-94 period, with no exceedance at

[[Page 32468]] any monitor in the area during 1994. All monitors in the

Nashville area have less than 1.1 expected exceedance rate. One of the

two monitors located in Sumner County recorded 3 exceedances during the

1992-94 period. None of the other monitors in the Nashville ozone

nonattainment area have recorded a violation since 1988. Thus, these

areas are no longer recording violations of the air quality standard

for ozone. A more detailed summary of the ozone monitoring data for the

area is provided in the EPA technical support document dated May 19,

1995.

Final Action

EPA determines that the Ashland, Kentucky, Northern Kentucky,

Charlotte-Gastonia, North Carolina, and Nashville, Tennessee, ozone

nonattainment areas have attained the ozone standard and continue to

attain the standard at this time. As a consequence of EPA's

determination that the Ashland, Kentucky, Northern Kentucky, Charlotte-

Gastonia, North Carolina, and Nashville, Tennessee, areas have attained

the ozone standard, the requirements of section 182(b)(1) concerning

the submission of the 15 percent plan and ozone attainment

demonstration and the requirements of section 172(c)(9) concerning

contingency measures are not applicable to the areas so long as the

areas do not violate the ozone standard.

The issuance of this determination will have no immediate impact on

the way transportation conformity is demonstrated. These areas will

continue to demonstrate conformity using the build/no-build test and

less-than-1990 test (section 51.436-51.446 of the transportation

conformity rule), and the 15 percent SIP if one has been submitted (and

attainment/RFP SIP, if one with a budget has been submitted). Since

these areas are the subject of conformity determinations pursuant to

this action and will not be required to submit RFP or attainment

demonstration SIPs, these areas will not generally be in the control

strategy period for conformity purposes (i.e., have a control strategy

SIP approved and build/no-build test no longer required) for so long as

the area does not violate the standard. These areas will not have

approved budgets until a maintenance plan is approved as part of the

approval of a redesignation request, therefore the build/no-build test

and less-than-1990 test, in addition to consistency with any applicable

submitted budgets, will be required until maintenance plan approval. (A

maintenance plan budget does not apply for conformity purposes until

the maintenance plan has been approved, except as provided by section

51.448(i) of the conformity rule (which applies to the Ashland,

Kentucky, and Charlotte-Gastonia, North Carolina, areas which were

required to submit a 15 percent SIP but submitted a maintenance plan

instead).)

The Northern Kentucky area which had previously submitted a 15

percent SIP, and the Nashville, Tennessee, area which had previously

submitted 15 percent and attainment SIPs, may choose to withdraw their

submitted SIPs through the submission of a letter from the Governors or

their designees in order to eliminate the applicability of their motor

vehicle emission budgets for conformity purposes. This is because these

areas will not be subject to the 15 percent and attainment

demonstration requirements of section 182(b)(1) for so long as the area

continues to attain the standard. If the respective submitted SIP is

not withdrawn, the budget in that submittal will continue to apply for

conformity purposes. If the submitted 15 percent or attainment SIP is

withdrawn, only the build/no-build and less-than-1990 tests would apply

until a maintenance plan is approved.

The Ashland, Kentucky, and Charlotte-Gastonia, North Carolina,

areas which are already demonstrating conformity to a submitted

maintenance plan pursuant to Sec. 51.448(i) may continue to do so, or

may elect to withdraw the applicability of the submitted maintenance

plan budget for conformity purposes until the maintenance plan is

approved. The applicability may be withdrawn through the submission of

a letter from the respective Governor or his or her designee. If the

applicability of the submitted maintenance plan budget is withdrawn for

conformity purposes, the build/no-build test and less-than-1990 tests

will apply until the maintenance plan is approved.

EPA emphasizes that these determinations are contingent upon the

continued monitoring and continued attainment and maintenance of the

ozone NAAQS in the affected areas. If a violation of the ozone NAAQS is

monitored in the Ashland, Kentucky, Northern Kentucky, Charlotte-

Gastonia, North Carolina, or Nashville, Tennessee, areas (consistent

with the requirements contained in 40 CFR part 58 and recorded in

AIRS), EPA will provide notice to the public in the Federal Register.

Such a violation would mean that the area would thereafter have to

address the requirements of section 182(b)(1) and section 172(c)(9)

since the basis for the determination that they do not apply would no

longer exist.

As a consequence of the determinations that these areas have

attained and that the reasonable further progress and attainment

demonstration requirements of section 182(b)(1) do not presently apply,

the sanctions clocks started by EPA on January 28, 1994, for the

Ashland and Charlotte-Gastonia areas for the failure to submit a

section 181(b)(1) 15 percent plan and attainment demonstration and on

April 1, 1994, for the Nashville area for submittal of an incomplete 15

percent plan are hereby stopped as the deficiency for which the clocks

were started no longer exists.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a revision to

any SIP. Each request for revision to the 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 will become effective on August 7, 1995. However, if

the EPA receives adverse comments by July 24, 1995, then the EPA will

publish a document that withdraws the action, and will address those

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.

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., EPA

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, EPA 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. This determination does not create any new requirements, but

allows suspension of the indicated requirements. Therefore, because the

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected.

Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act

of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,

EPA 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. [[Page 32469]]

EPA's final action does not impose any federal intergovernmental

mandate, as defined in section 101 of the Unfunded Mandates Act, upon

the State. No additional costs to State, local, or tribal governments,

or to the private sector, result from this action, which suspends the

indicated requirements. Thus, EPA has determined that this final action

does not include a mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector.

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 August 21, 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 in 40 CFR Part 52

Air pollution control, Nitrogen oxides, Ozone, Volatile organic

compounds, Intergovernmental relations, Reporting and record keeping

requirements.

Dated: June 9, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

Part 52, 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.

Subpart S--Kentucky

2. Section 52.930 is amended by adding new paragraph (c) to read as

follows:

Sec. 52.930 Control strategy: Ozone.

* * * * *

(c) Determination--EPA is determining that, as of August 7, 1995,

the Cincinnati-Hamilton and Huntington-Ashland ozone nonattainment

areas have attained the ozone standard and that the reasonable further

progress and attainment demonstration requirements of section 182(b)(1)

and related requirements of section 172(c)(9) of the Clean Air Act do

not apply to the areas for so long as the areas do not monitor any

violations of the ozone standard. If a violation of the ozone NAAQS is

monitored in the Cincinnati-Hamilton or Huntington-Ashland ozone

nonattainment areas, these determinations shall no longer apply.

Subpart II--North Carolina

2. Section 52.1782 is added to read as follows:

Sec. 52.1782 Control strategy: Ozone.

(a) Determination--EPA is determining that, as of August 7, 1995,

the Charlotte-Gastonina ozone nonattainment area has attained the ozone

standard and that the reasonable further progress and attainment

demonstration requirements of section 182(b)(1) and related

requirements of section 172(c)(9) of the Clean Air Act do not apply to

the area for so long as the area does not monitor any violations of the

ozone standard. If a violation of the ozone NAAQS is monitored in the

Charlotte-Gastonia ozone nonattainment area, these determinations shall

no longer apply.

(b) [Reserved]

Subpart RR--Tennessee

2. Section 52.2235 is added to read as follows:

Sec. 52.2235 Control strategy: Ozone.

* * * * *

(a) Determination--EPA is determining that, as of August 7, 1995,

the Nashville ozone nonattainment area has attained the ozone standard

and that the reasonable further progress and attainment demonstration

requirements of section 182(b)(1) and related requirements of section

172(c)(9) of the Clean Air Act do not apply to the area for so long as

the area does not monitor any violations of the ozone standard. If a

violation of the ozone NAAQS is monitored in the Nashville ozone

nonattainment area, these determinations shall no longer apply.

(b) [Reserved]

[FR Doc. 95-15234 Filed 6-21-95; 8:45 am]

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