Determination of Attainment of the Ozone Standard by the Cleveland, Toledo, Dayton and the Cincinnati-Hamilton Interstate Ozone Nonattainment Areas and Determination Regarding Applicability of Certain Reasonable Further Progress and Attainment Demonstration Requirements; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH87-1-7075a; FRL-5227-1]

Determination of Attainment of the Ozone Standard by the

Cleveland, Toledo, Dayton and the Cincinnati-Hamilton Interstate Ozone

Nonattainment Areas and Determination Regarding Applicability of

Certain Reasonable Further Progress and Attainment Demonstration

Requirements; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

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

the Cleveland ozone nonattainment area (which includes the Counties of

Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit);

Toledo (which includes the Counties of Lucas and Wood); Dayton (which

includes the Counties of Clark, Greene, Miami, and Montgomery); and the

Ohio portion of the Cincinnati-Hamilton Interstate (which includes the

Counties of Butler, Clermont, Hamilton and Warren) 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 1992 to 1994 ozone

seasons that demonstrate that the ozone NAAQS has been attained in each

of these areas. On the basis of this determination, USEPA is also

determining that certain reasonable-further-progress (RFP) 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 Cleveland, Toledo, Dayton and Cincinnati areas for so

long as these areas continue to attain the ozone NAAQS. In the proposed

rules section of this Federal Register, USEPA is proposing these

determinations and soliciting public comment on them. If adverse

comments are received on this direct final rule, USEPA 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 on August 14, 1995 unless notice

is received by July 31, 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 USEPA's analysis are

available for inspection at the following location (it is recommended

that you contact Richard Schleyer at (312) 353-5089 before visiting the

Region 5 office): United States Environmental Protection Agency, Region

5, Air Enforcement Branch, Air and Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois, 60604.

Written comments can be mailed to: William MacDowell, Chief,

Regulation Development Section, Air Enforcement Branch (AE-17J), U.S.

Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Richard Schleyer, Regulation

Development Section, Air Enforcement Branch (AE-17J), Region 5, United

States Environmental Protection Agency, 77 West Jackson Boulevard,

Chicago, Illinois, 60604, (312) 353-5089.

SUPPLEMENTARY INFORMATION:

I. Background

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

various air quality planning and state implementation plan (SIP)

submission requirements for ozone nonattainment areas. The USEPA

believes it is reasonable to interpret provisions regarding 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, USEPA 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 from John S. Seitz, Director, Office of Air Quality Planning

and Standards, entitled ``Reasonable Further Progress, Attainment

Demonstration, and Related Requirements for Ozone Nonattainment

[[Page 33743]]

Areas Meeting the Ozone National Ambient Air Quality Standard,'' dated

May 10, 1995, USEPA 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) of the Act 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

purpose of ensuring attainment of the applicable NAAQS 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 USEPA 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\ USEPA 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.

---------------------------------------------------------------------------

The USEPA 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, USEPA

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'').

---------------------------------------------------------------------------

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, USEPA 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

USEPA in the General Preamble to Title I. As USEPA stated in the

Preamble, 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.

Similar reasoning applies to other related provisions of subpart 2.

The first of these are the contingency measure requirements of Section

172(c)(9) of the Act. The USEPA has previously interpreted the

contingency measure requirement of Section 172(c)(9) as no longer being

applicable once an area has attained the standard since those

``contingency measures are directed at ensuring RFP and attainment by

the applicable date.'' (57 FR at 13564; see also September 1992

Calcagni memorandum at page 6)

The USEPA 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 USEPA

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 USEPA 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 USEPA 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 State 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 USEPA

guidance and recorded in USEPA's--Aerometric Information Retrieval

System (AIRS).

These determinations that are being made with this Federal Register

notice are not equivalent to the redesignation of the area 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. Please note that redesignation requests have

been submitted for the Cleveland, Toledo, Dayton and Cincinnati areas.

These redesignation requests are being evaluated in separate rulemaking

actions.

Furthermore, the determinations made in this notice do not shield

an area from future USEPA 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,

any other States with respect to the NAAQS (see section 110(a)(2)(D)).

The USEPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of

the Act to require such emission reductions if necessary and

appropriate to deal with transport situations.

Analysis of Air Quality Data

The USEPA has reviewed the ambient air monitoring data for ozone

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

recorded in AIRS) for

[[Page 33744]]

the Cleveland, Toledo, Dayton, and Cincinnati ozone nonattainment areas

in the State of Ohio from the 1992 through 1994 ozone seasons.3

The following ozone exceedances were recorded for the period from 1992

to 1994 (the average number of expected exceedances for this three year

period are also presented):

\3\ The Cincinnati-Hamilton Interstate Area includes the

following counties in Ohio: Butler, Clermont, Hamilton and Warren;

and the following counties in Kentucky: Boone, Campbell and Kenton.

If a violation were monitored in the Kentucky portion of the

interstate area (or the Ohio portion of the Interstate area) these

nonattainment area provisions would then be applicable.

---------------------------------------------------------------------------

Cleveland: Medina County, 6364 Deerview Lane (1994) - 0.127 ppm;

average expected exceedances: 0.5 (based only on two years of

monitoring data). Cuyahoga County, 891 E. 152 St. (1993) - 0.126 ppm,

(1994) 0.127 ppm and 0.125 ppm; average expected exceedances: 1.0.

Cincinnati-Hamilton Interstate Area: Ohio Portion: Butler County,

Schuler and Bend (1993) - 0.131 ppm; average expected exceedances: 0.3.

Hook Field Municipal (1993) - 0.138 ppm; average expected exceedances:

0.3. Clermont County, 389 Main St. (1994) - 0.128 ppm; average expected

exceedances: 0.3. Warren County, Southeast St. (1994) - 0.139 ppm and

0.128 ppm; average expected exceedances: 0.7.

Kentucky Portion: Campbell County, 9th and Maple (1993) - 0.126

ppm; average expected exceedances: 0.3.

Toledo: Lucas County, 306 N. Yondota (1993) 0.126 ppm, (1994) 0.142

ppm; average expected exceedances: 0.7. Friendship Park (1993) 0.126

ppm; average expected exceedances: 0.3.

Dayton: Clark County, 5171 Urbana Road (1994) 0.125 ppm; average

expected exceedances: 0.5. Montgomery County, 2100 Timberlane (1993)

0.125 ppm; average expected exceedances: 0.3.

On the basis of this review, USEPA has concluded that these areas

have attained the ozone standard during the 1992-94 period and

continues to attain the standard at this time.

15% Plan/Attainment Demonstration Submittal Status

On March 14, 1994, the State of Ohio submitted revisions to the

ozone portion of the Ohio SIP which included fifteen percent rate of

progress plans for the Toledo, Dayton, Cleveland and Cincinnati ozone

nonattainment areas. These fifteen percent plans were deemed complete

by USEPA on August 8, 1994. Also included in this SIP revision were

attainment demonstrations for the Toledo, Dayton and Cleveland ozone

nonattainment areas. These attainment demonstrations were deemed

complete on September 14, 1994. Upon the effective date of this

determination, the State may withdraw these SIP revisions.

If Ohio withdraws the submitted 15 percent plan or attainment

demonstration for Cleveland and Cincinnati areas through the submission

of a letter from the Governor or his or her designee, the motor vehicle

emissions budget test would no longer apply for conformity purposes in

that area 4. The build/no-build and less than-1990 test would

apply until a maintenance plan is approved. This is because the area

would 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 submitted SIP is not withdrawn, the budget

in that submission will continue to apply for conformity purposes.

\4\ For Toledo and Dayton, the Ohio Department of

Transportation and metropolitan planning organizations demonstrated

conformity to the 15 percent plan and attainment demonstration motor

vehicle emissions budgets for illustrative purposes in 1994. The

USEPA provided written guidance to the Ohio Department of

Transportation and the Ohio Environmental Protection Agency that the

submitted maintenance plans for Toledo and Dayton were to be used in

lieu of the 15 percent plans and attainment demonstrations in

letters dated July 1, 1994, and May 9, 1995. Ohio may withdraw the

15 percent plan and attainment demonstrations submitted for the

Dayton and Toledo areas. This will not affect USEPA's interpretation

of the applicability of these SIPs for conformity purposes.

---------------------------------------------------------------------------

However, areas that are already demonstrating conformity to a

submitted maintenance plan pursuant to section 51.448(i) (Toledo and

Dayton) 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. If the applicability

of the submitted maintenance plan budget is withdrawn for conformity

purposes, the build/no-build and less-than 1990 tests will apply until

the maintenance plan is approved.

Conclusion

The USEPA has determined that the Cleveland (which includes the

Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage

and Summit); Toledo (which includes the Counties of Lucas and Wood);

Dayton (which includes the counties of Clark, Greene, Miami and

Montgomery); and the Ohio portion of the Cincinnati-Hamilton interstate

(which includes the Counties of Butler, Clermont, Hamilton and Warren)

ozone nonattainment areas have attained the ozone standard and continue

to attain the standard at this time.

As a consequence of this determination that the Cleveland, Toledo,

Dayton and Cincinnati ozone nonattainment 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 will not be applicable to the area so long as the area does

not violate the ozone standard.

It should be emphasized that these determinations are contingent

upon the continued monitoring and continued attainment and maintenance

of the ozone NAAQS in the affected area. If a violation of the ozone

NAAQS is monitored in the Cleveland, Toledo, Dayton and Cincinnati

ozone nonattainment areas (consistent with the requirements contained

in 40 CFR part 58 and recorded in AIRS), USEPA will provide notice to

the public in the Federal Register. Such a violation would mean that

the area(s) would thereafter have to address the requirements of

section 182(b)(1) and 172(c)(9) since the basis for the determination

that they do not apply would no longer exist.

Nothing in this action shall be construed as permitting or allowing

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

any state implementation plan. Each request for revision to the State

implementation plan 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 14, 1995. However, if

USEPA receives adverse comments by July 31, 1995, then USEPA 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.

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 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

[[Page 33745]]

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. Today's 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. 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 (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.

The USEPA'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, USEPA 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 14, 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, Intergovernmental relations, Nitrogen

oxides, Ozone, Reporting and recordkeeping requirements, Volatile

organic compounds.

Dated: June 14, 1995.

David A. Kee,

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 KK--Ohio

2. Section 52.1885 is amended by adding new paragraph (w) to read

as follows:

Sec. 52.1885 Control Strategy: Ozone.

* * * * *

(w) Determination--USEPA is determining that, as of May 31, 1995,

the Cleveland (which includes the Counties of Ashtabula, Cuyahoga,

Geauga, Lake, Lorain, Medina, Portage and Summit); Toledo (which

includes the Counties of Lucas and Wood); Dayton (which includes the

Counties of Clark, Greene, Miami and Montgomery); and the Ohio portion

of the Cincinnati-Hamilton Interstate (which includes the Counties of

Butler, Clermont, Hamilton and Warren) 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 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 Cleveland, Toledo, Dayton or Cincinnati-Hamilton

Interstate (ambient air monitoring data shall be reviewed for all

monitors located in the interstate nonattainment area which includes

the State of Kentucky Counties of Boone, Campbell, and Kenton) ozone

nonattainment area(s), this determination(s) shall no longer apply.

[FR Doc. 95-15959 Filed 6-28-95; 8:45 am]

BILLING CODE 6560-50-P