Approval and Promulgation of Implementation Plans; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH73-2-7033, OH74-2-7034, OH75-2-7035; FRL-5257-3]

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: The USEPA is approving, in final, requests for exemptions from

the nitrogen oxides (NOX) requirements as provided for in Section

182(f) of the Clean Air Act (Act) for the following ozone nonattainment

areas in Ohio: Canton (Stark County); Cincinnati (Butler, Clermont,

Hamilton and Warren Counties); Cleveland (Ashtabula, Cuyahoga, Geauga,

Lake, Lorain, Medina, Portage and Summit Counties); Columbus (Delaware,

Franklin, and Licking Counties); Youngstown (Mahoning and Trumbull

Counties); Steubenville (Columbiana and Jefferson Counties); Preble

County; and Clinton County. These exemption requests, submitted by the

Ohio Environmental Protection Agency (OEPA), are based upon three years

of ambient air monitoring data which demonstrate that the National

Ambient Air Quality Standard (NAAQS) for ozone has been attained in

each of these areas without additional reductions of NOX.

EFFECTIVE DATE: This action will be effective August 14, 1995.

ADDRESSES: A copy of the exemption requests 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.

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

Section 182(f) Requirements

The air quality planning requirements for the reduction of NOX

emissions are set out in Section 182(f) of the Act. Section 182(f) of

the Act requires States with areas designated nonattainment of the

NAAQS for ozone, and classified as marginal and above, to impose the

same control requirements for major stationary sources of NOX as

apply to major stationary sources of volatile organic compounds (VOC).

The requirements include, for marginal and above areas, nonattainment

area new source review (NSR) for major new sources and modifications

that are major for NOX. For nonattainment areas classified as

moderate and above, the State is also required to adopt reasonably

available control technology (RACT) rules for major stationary sources

of NOX.

Section 182(f) further provides that, for areas outside an ozone

transport region (OTR), these NOX reduction requirements shall not

apply if the Administrator determines that additional reductions of

NOX would not contribute to attainment of the NAAQS for ozone.

Transportation Conformity

The transportation conformity rule, entitled ``Criteria and

Procedures for Determining Conformity to State or Federal

Implementation Plans of Transportation Plans, Programs, and Projects

Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act,''

was published in the November 24, 1993 Federal Register (58 FR 62188).

The rule was promulgated under Section 176(c)(4) of the Act.

The transportation conformity rule requires regional emissions

analysis of motor vehicle NOX emissions for ozone nonattainment

and maintenance areas in order to determine the conformity of

transportation plans and programs to implementation plan requirements.

This analysis must demonstrate that the NOX emissions which would

result from the transportation system if the proposed transportation

plan and program were implemented are within the total allowable level

of NOX emissions from highway and transit motor vehicles as

identified in a submitted or approved maintenance plan, as specified in

the transportation conformity rule.

Until a maintenance plan is approved by USEPA, the regional

emissions analysis of the transportation system must also satisfy the

``build/no-build'' test. That is, the analysis must demonstrate that

emissions from the transportation system, if the proposed

transportation plan and program were implemented, would be less than

the emissions from the transportation system if the proposed

transportation plan and program were not implemented. Furthermore, the

regional emissions analysis must show that

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emissions from the transportation system, if the transportation plan or

program were implemented, would be lower than 1990 levels.

General Conformity

The general conformity rule, entitled ``Determining Conformity of

General Federal Actions to State or Federal Implementation Plans,'' was

published in the Federal Register on November 30, 1993 (58 FR 63214).

The rule was promulgated under Section 176(c)(4) of the Act.

Scope of Exemptions

If the USEPA Administrator determines, under Section 182(f) of the

Act, that additional reductions of NOX would not contribute to

attainment of the ozone NAAQS, the area at issue shall automatically

(i.e., a State would not need to submit an exemption request for each

requirement) be exempt from the following requirements (as applicable):

The NOX-related general and transportation conformity provisions,

NOX RACT, and nonattainment area NSR for new sources and

modifications that are major for NOX. Additionally, NOX

emission reductions would not be required of an enhanced inspection and

maintenance (I/M) program.

II. Criteria for Evaluation of Exemption Requests

The criteria used in the evaluation of the exemption requests can

be found in the following: a notice published in the June 17, 1994

Federal Register (59 FR 31238), entitled ``Conformity: General Preamble

for Exemption from Nitrogen Oxides Provisions,''; a USEPA memorandum

from John S. Seitz, Director, Office of Air Quality Planning and

Standards (OAQPS), dated May 27, 1994, entitled ``Section 182(f)

Nitrogen Oxides (NOX) Exemptions--Revised Process and Criteria,'';

a USEPA memorandum from G. T. Helms, Group Leader, Ozone/Carbon

Monoxide Programs Branch, OAQPS, dated January 12, 1995, entitled

``Scope of Nitrogen Oxides (NOX) Exemptions,''; a USEPA memorandum

from John S. Seitz, Director, OAQPS, dated February 8, 1995, entitled

``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised Process

and Criteria,''; and a USEPA guidance document entitled ``Guideline for

Determining the Applicability of Nitrogen Oxides Requirements Under

Section 182(f),'' dated December 1993, OAQPS, Air Quality Management

Division.

III. State Submittals

Marginal and Nonclassifiable Ozone Nonattainment Areas

In a letter dated March 18, 1994, the OEPA submitted a request that

the following marginal and nonclassifiable ozone nonattainment areas be

exempt from the NOX-related transportation and general conformity

requirements contained in Section 176(c) of the Act: Canton (Stark

County), Columbus (Delaware, Franklin and Licking Counties), Youngstown

(Mahoning and Trumbull Counties), Steubenville (Columbiana and

Jefferson Counties), Preble County, and Clinton County. Additionally,

USEPA is granting exemptions from the nonattainment area NSR

requirements for new sources and modifications that are major for

NOX, for the following marginal ozone nonattainment areas: Canton

(Stark County), Columbus (Delaware, Franklin and Licking Counties), and

Youngstown (Mahoning and Trumbull Counties). The NSR requirements do

not apply to the Steubenville area, Preble County, or Clinton County.

This exemption request is based upon three years (1991-1993) of

ambient air monitoring data which demonstrate that the NAAQS for ozone

has been attained in each of these areas without additional reductions

of NOX emissions.

Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area

In a letter dated November 15, 1994, the OEPA submitted a request

for an exemption from the NOX requirements contained in Section

182(f) of the Act for the Ohio portion of the Cincinnati-Hamilton

interstate moderate ozone nonattainment area (which includes the

Counties of Butler, Clermont, Hamilton and Warren). This exemption

request is based upon the most recent three years (1992-1994) of

ambient air monitoring data which demonstrate that the NAAQS for ozone

has been attained in the Ohio portion of the interstate area without

additional reductions of NOX emissions.

An exemption request from the requirements contained in Section

182(f) of the Act has also been submitted to USEPA--Region 4 by the

Kentucky Department for Environmental Protection (KDEP) for the

Kentucky portion of the interstate area (which includes the counties of

Boone, Kenton, and Campbell). This exemption request is also based upon

ambient air monitoring for ozone which demonstrate that the NAAQS for

ozone has been attained in this area without additional reductions of

NOX. This exemption request will be evaluated in a separate

rulemaking (to be performed by USEPA--Region 4).

Cleveland Moderate Ozone Nonattainment Area

In a letter dated November 1, 1994, the OEPA submitted a request

for an exemption from the requirements contained in Section 182(f) of

the Act for the Cleveland moderate ozone nonattainment area (which

includes the Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain,

Medina, Portage and Summit). This exemption request is based upon the

most recent three years (1992-1994) of ambient air monitoring data

which demonstrate that the NAAQS for ozone has been attained in this

area without additional reductions of NOX.

IV. Analysis of State Submittals

The USEPA has reviewed the ambient air monitoring data for ozone

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

recorded in USEPA's--Aerometric Information Retrieval System--AIRS)

submitted by the OEPA in support of these exemption requests.

For ozone, an area is considered in attainment of the NAAQS if

there are no violations, as determined in accordance with 40 CFR 50.9,

based on quality assured monitoring data from three complete

consecutive calendar years. A violation of the ozone NAAQS occurs when

the annual average number of expected exceedances is greater than 1.0

at any site in the area at issue. An exceedance occurs when the daily

maximum hourly ozone concentration exceeds 0.124 parts per million

(ppm).

Marginal and Nonclassifiable Ozone Nonattainment Areas

The following ozone exceedances were recorded for the period from

1991 to 1993 (the average number of expected exceedances for this three

year period are also presented):

Canton: Stark County, 6318 Heminger Ave. (1991)--0.130 ppm; average

expected exceedances: 0.3.

Columbus: Franklin County, 5750 Maple Canyon (1991)--0.131 ppm;

average expected exceedances: 0.3.

Steubenville: no exceedances recorded;

Youngstown: Mahoning County, 9 West Front Street (1991)--0.143 ppm;

average expected exceedances: 0.3. Trumbull County, Community Hall

(1993)--0.127 ppm; average expected exceedances: 0.3.

Preble County: National Trials (1991)--0.129 ppm; average expected

exceedances: 0.3.

Clinton County: 62 Laurel Drive (1993)--0.125 ppm; average expected

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exceedances: 0.5 (based only on two years of monitoring data).

Cincinnati and Cleveland Ozone Nonattainment Areas

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):

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

expected exceedances: 0.5 (based only on two years of monitoring data).

Cuyahoga County, 891 E. 125 St. (1993)--0.126 ppm, (1994) 0.127 ppm and

0.125 ppm; average expected exceedances: 1.0.

Cincinnati: 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.

Thus, for all of the areas at issue, the annual average number of

expected exceedances were not greater than 1.0, and thus, the areas are

currently meeting the NAAQS for ozone.

V. Exemptions from the Conformity Provisions

Background

With respect to conformity, USEPA's conformity rules \1\,\2\

currently provide a NOX waiver from certain requirements if an

area receives a Section 182(f) exemption. Under the transportation

conformity rule, a NOX waiver relieves an area of the requirement

to meet the ``build/no build'' and ``less-than-1990-baseline'' tests

which apply during the period before State Implementation Plans (SIP)

with emissions budgets are approved. In a notice published in the June

17, 1994 Federal Register (59 FR 31238, 31241), entitled ``Conformity;

General Preamble for Exemption From Nitrogen Oxides Provisions,'' USEPA

acknowledged that the rule should also have provided that, in order to

conform, nonattainment and maintenance areas must demonstrate that the

transportation plan and transportation improvement program (TIP) are

consistent with the motor vehicle emissions budget for NOX even

where a conformity NOX waiver has been granted. Due to a drafting

error, that view is not reflected in the current published

transportation conformity rules. The USEPA is in the process of

amending the conformity rule so as to remedy the problem.

\1\ ``Criteria and Procedures for Determining Conformity to

State or Federal Implementation Plans of Transportation Plans,

Programs, and Projects Funded or Approved under Title 23 U.S.C. of

the Federal Transit Act,'' November 24, 1993 (58 FR 62188).

\2\ ``Determining Conformity of General Federal Actions to State

or Federal Implementation Plans; Final Rule,'' November 30, 1993 (58

FR 63214).

Approval Under Section 182(b)

An issue concerning the appropriate Act authority for granting

transportation-related NOX waivers has been raised by several

commenters. NOX exemptions are provided for in two separate parts

of the Act, Section 182(b)(1) and Section 182(f). These commenters

argue that exemptions from the NOX transportation conformity

requirements must follow the process provided in Section 182(b)(1),

since this is the only Section explicitly referenced by Section

176(c)(3)(A)(iii) in the Act's transportation conformity provisions.

With certain exceptions, USEPA agrees that Section 182(b)(1) is the

appropriate authority under the Act for waiving the transportation

conformity rule's NOX ``build/no build'' and ``less-than-1990''

tests, and is planning to amend the rule to be consistent with the

statute. However, USEPA believes that this authority is only applicable

with respect to those areas that are subject to Section 182(b)(1).

The change in authority for granting NOX waivers from Section

182(f) to Section 182(b)(1) has different impacts for areas subject to

Section 182(b)(1) depending on whether the area is relying on ``clean

air'' data or on modeling data. Areas relying on modeling data must

meet the procedure established under Section 182(b)(1), including

submitting the exemption request as part of a SIP revision. The USEPA

may not take action on exemptions for such areas until the rulemaking

amending the transportation conformity rule to establish Section

182(b)(1) as the appropriate authority for granting such relief has

been completed. ``Clean data'' areas that would otherwise be subject to

Section 182(b)(1), such as Cincinnati and Cleveland, will be relieved

of the transportation conformity rule's interim period NOX

requirements at such time as USEPA takes final action implementing its

recently-issued policy regarding the applicability of Section 182(b)(1)

requirements for areas demonstrating attainment of the ozone NAAQS

based on ``clean data''. This policy is contained in a May 10, 1995,

memorandum from John Seitz, Director, Office of Air Quality Planning

and Standards, entitled ``Reasonable Further Progress, Attainment

Demonstration, and Related Requirements for Ozone Nonattainment Areas

Meeting the Ozone National Ambient Air Quality Standard,'' which should

be referred to for a more thorough discussion. The aspect of the policy

that is relevant here is USEPA's determination that the Section

182(b)(1) provisions regarding reasonable further progress (RFP) and

attainment demonstrations may be interpreted so as not to require the

SIP submissions otherwise called for in Section 182(b)(1) if an ozone

nonattainment area that would otherwise be subject to those

requirements is in fact attaining the ozone standard (i.e., attainment

of the NAAQS is demonstrated with 3 consecutive years of complete,

quality-assured, air-quality monitoring data). Any such ``clean data''

areas, under this interpretation, would no longer be subject to the

requirements of Section 182(b)(1) once USEPA takes final rulemaking

action adopting the interpretation in conjunction with its

determination that the area has attained the standard. At that time,

such areas would be treated like ozone nonattainment areas classified

marginal and below, and hence eligible for NOX waivers from the

interim-period transportation conformity requirements by obtaining a

waiver under Section 182(f), as described below.

Marginal and below ozone nonattainment areas (which represents the

majority of the areas USEPA is taking action on today) are not subject

to Section 176(c)(3)(A)(iii) because they are not subject to Section

182(b)(1), and general federal actions are also not subject to Section

176(c)(3)(A)(iii) (and, hence, are not subject to Section 182(b)(1)

either). These areas, however, are still subject to the conformity

requirements of Section 176(c)(1), which sets out criteria that, if

met, will assure consistency with the SIP. The USEPA believes it is

reasonable and consistent with the Act to provide relief under Section

176(c)(1) for areas not subject to Section 182(b)(1) from applicable

NOX conformity requirements where the Agency has determined that

NOX reductions would not be beneficial, and to rely, in doing so,

on the NOX exemption tests provided in Section 182(f) for the

reasons given below.

The basic approach of the Act is that NOX reductions should

apply when beneficial to an area's attainment goals, and should not

apply when unhelpful or counterproductive. Section 182(f) reflects this

approach but also includes specific substantive tests which provide a

basis for USEPA to determine when NOX requirements should not

apply.

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Whether under Section 182(b)(1) or Section 182(f), where USEPA has

determined that NOX reductions will not benefit attainment or

would be counterproductive in an area, USEPA believes it would be

unreasonable to insist on NOX reductions for purposes of meeting

RFP or other milestone requirements. Moreover, there is no substantive

difference between the technical analysis required to make an

assessment of NOX impacts on attainment in a particular area

whether undertaken with respect to mobile source or stationary source

NOX emissions. Consequently, USEPA believes that granting relief

from the NOX conformity requirements of Section 176(c)(1) under

Section 182(f) in these cases is appropriate.

Action

* Marginal and Nonclassifiable Ozone Nonattainment Areas

The USEPA is approving, as proposed in the January 17, 1995 Federal

Register (60 FR 3361), the transportation and general conformity

exemption requests submitted under Section 182(f) of the Act for the

following areas: Canton (Stark County), Columbus (Delaware, Franklin

and Licking Counties), Youngstown (Mahoning and Trumbull Counties),

Steubenville (Columbiana and Jefferson Counties), Preble County, and

Clinton County.

* Moderate and Above Ozone Nonattainment Areas

The USEPA is delaying action at this time on approval of the

transportation conformity exemptions for the Cincinnati and Cleveland

ozone nonattainment areas. As explained above, USEPA must complete its

rulemaking determining that these areas have attained the ozone

standard and, in conjunction, implementing its interpretation that the

SIP submissions otherwise called for in Section 182(b)(1) no longer

apply. Thus, further action on this approval will occur only as such

time as USEPA takes final action.

VI. NOX RACT Rules

Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area

The State of Ohio was required to submit NOX RACT rules to

USEPA for the Ohio portion of the Cincinnati-Hamilton interstate area.

On July 14, 1994, USEPA notified the Governor of Ohio that the State

had failed to submit the required rules. The State is required to

either submit complete rules to USEPA (or have its NOX exemption

request approved, in final) within 18 months from the date of the

finding in order to avoid the initiation of sanctions under Section

179(b) of the Act. Upon the effective date of the final approval of the

exemption request for the Ohio portion of the Cincinnati-Hamilton

Interstate area, the 18 month ``sanctions clock'' shall stop.

On November 15, 1994, the State of Ohio submitted a redesignation

request to attainment of the ozone NAAQS for the Ohio portion of the

Cincinnati-Hamilton interstate ozone nonattainment area. This

redesignation request will be evaluated in a separate rulemaking. The

State has included NOX RACT as a contingency measure of the

maintenance plan. The USEPA does not require that these rules be

adopted to be included as a contingency measure. However, a specific

schedule is provided for the adoption and implementation of NOX

RACT rules if a violation of the ozone standard is monitored in the

interstate area (which includes the following Counties located in the

State of Kentucky: Boone, Kenton, and Campbell).

Cleveland Moderate Ozone Nonattainment Area

The State of Ohio submitted adopted NOX RACT rules to USEPA on

July 1, 1994, for the Toledo, Dayton, and Cleveland ozone nonattainment

areas. These rules are currently under review and will be evaluated in

a separate rulemaking. The State provided the following provision in

the RACT rules submittal (Ohio Administrative Code (3745-14-02(B)(3))

for the suspension of the RACT rules:

``The Director also may suspend the requirements of this Chapter in

an area in the event that the USEPA issues a national policy and/or

promulgates a regulation which, based upon the ambient air monitoring

data for ozone in the area, eliminates the need for NOX control

requirements in that area.''

On November 1, 1994, the State of Ohio submitted a redesignation

request to attainment of the ozone NAAQS for the Cleveland moderate

ozone nonattainment area. This redesignation request will be evaluated

in a separate rulemaking. The State has included NOX RACT as a

contingency measure of the maintenance plan. The USEPA does not require

that these rules be adopted to be included as a contingency measure.

However, a specific schedule is provided for the adoption and

implementation of NOX RACT rules if a violation of the ozone

standard is monitored in the area.

VII. Inspection and Maintenance (I/M) Programs

Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area

For the Cincinnati area, the local area government has opted for an

enhanced I/M program. The I/M Final Rule (57 FR 52950) provides that if

the Administrator determines that NOX emission reductions are not

beneficial in a given ozone nonattainment area, then NOX emission

reductions are not required of the enhanced I/M program, but the

program shall be designed to offset NOX increases resulting from

the repair of motor vehicles that have failed the hydrocarbon (HC) and

carbon monoxide (CO) testing procedures.3 Upon the effective date

of this action, the Butler, Clermont, Hamilton and Warren Counties

shall not be required to demonstrate compliance with the enhanced I/M

performance standard for NOX. However, the State shall be required

to demonstrate, using USEPA's--Mobile Source Emissions Model, Mobile 5a

(or its successor), that NOX emissions will be no higher than in

the absence of any I/M program.

\3\ Additional clarification concerning the I/M requirements

and areas with NOX exemptions is provided in a memorandum from

Mary T. Smith, Acting Director, Office of Mobile Sources, dated

October 14, 1994, entitled ``I/M Requirements in NOX RACT

Exempt Areas.''

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Cleveland Moderate Ozone Nonattainment Area

For the Cleveland area, the local area government has opted for an

enhanced I/M program for the following counties: Cuyahoga, Geauga,

Lake, Lorain, Medina, Portage and Summit. The I/M Final Rule (57 FR

52950) provides that if the Administrator determines that NOX

emission reductions are not beneficial in a given ozone nonattainment

area, then NOX emission reductions are not required of the

enhanced I/M program, but the program shall be designed to offset

NOX increases resulting from the repair of motor vehicles that

have failed the hydrocarbon (HC) and carbon monoxide (CO) testing

procedures. Upon the effective date of this action, Cuyahoga, Geauga,

Lake, Lorain, Medina, Portage and Summit Counties shall not be required

to demonstrate compliance with the enhanced I/M performance standard

for NOX. However, the State shall be required to demonstrate,

using USEPA's--Mobile Source Emissions Model, Mobile 5a (or its

successor), that NOX emissions will be no higher than in the

absence of any I/M program.

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VIII. Withdrawal of the Exemptions

Until an area has been redesignated to attainment, continuation of

the Section 182(f) exemptions granted herein is contingent upon

continued monitoring and continued attainment of the ozone NAAQS in the

affected area(s). If a violation of the ozone NAAQS is monitored in an

area(s) (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 withdrawing the exemption.

A determination that the NOX exemption no longer applies would

mean that the NOX NSR, general conformity, and transportation

conformity provisions would immediately be applicable (see 58 FR 63214

and 58 FR 62188) for the affected area(s). The NOX RACT

requirements would also be applicable, with a reasonable time provided

as necessary to allow major stationary sources subject to the RACT

requirements to purchase, install and operate the required controls.

The USEPA believes that the State may provide sources a reasonable time

period after the USEPA determination to actually meet the RACT emission

limits. The USEPA expects such time period to be as expeditious as

practicable, but in no case longer than 24 months.

If a nonattainment area is redesignated to attainment of the ozone

NAAQS, but then a violation of the ozone NAAQS occurs, NOX RACT

shall be implemented as stated in the maintenance plan.

IX. Notice of Proposed Rulemaking and Responses to Comments

The USEPA published a notice proposing to approve the exemption

requests for the Cincinnati, Cleveland, and other nonattainment areas

in Ohio in the January 17, 1995 Federal Register (60 FR 3361). The

USEPA received comments supporting and adverse to this proposed action.

Copies of all comments have been placed in the docket file. The

following entities submitted adverse or supporting comments:

Submitting Entity (date received by USEPA): Natural Resources

Defense Council (08-24-94); Columbia Gas Transmission Corporation (02-

09-95); Private Citizen (02-14-95); LTV Steel Company (02-16-95); Ohio

Sierra Club (02-21-95); Akron Regional Infrastructure Alliance (03-29-

95); State of New Hampshire--Department of Environmental Services (03-

30-95); Northeast States for Coordinated Air Use Management (03-30-95);

Ameritech (03-31-95); Southern Environmental Law Center (04-03-95);

Private Citizen (04-03-95); Environmental Defense Fund (04-03-95);

Greater Cleveland Growth Association (04-03-95); Portage County Board

of Commissioners (04-04-95); State of New York--Department of

Environmental Conservation (04-10-95); State of New Jersey--Department

of Environmental Protection (04-10-95); Executive of the County of

Summit (04-11-95).

Some of the adverse comments addressed similar points. The USEPA

responds to these comments by issue as follows:

Procedural Comments: Several commenters argued that USEPA should

not approve the waiver requests at issue on procedural grounds.

NOX exemptions are provided for in two separate parts of the Act,

Section 182(b)(1) and Section 182(f). Commenters took the position that

because the NOX exemption tests in Subsections 182(b)(1) and

182(f)(1) include language indicating that action on such requests

should take place ``when [EPA] approves a plan or plan revision,'' that

all NOX exemption determinations by USEPA, including exemption

actions taken under the petition process established by Subsection

182(f)(3), must occur during consideration of an approvable attainment

or maintenance plan, unless the area has been redesignated to

attainment for the ozone NAAQS. These commenters also argue that even

if the petition procedures of Subsection 182(f)(3) may be used to

relieve areas of certain NOX requirements, exemptions from the

NOX conformity requirements must follow the process provided in

Subsection 182(b)(1), since this is the only provision explicitly

referenced by Section 176(c) in the Act's conformity provisions.

USEPA Response: Section 182(f) contains very few details regarding

the administrative procedure for USEPA action on NOX exemption

requests. The absence of specific guidelines by Congress leaves USEPA

with discretion to establish reasonable procedures, consistent with the

requirements of the Administrative Procedure Act (APA).

The USEPA believes that Subsections 182(f)(1) and 182(f)(3) provide

independent procedures for USEPA to act on NOX exemption requests.

The language in Subsection 182(f)(1), which indicates that USEPA should

act on NOX exemptions in conjunction with action on a plan or plan

revision, does not appear in Subsection 182(f)(3). While Subsection

182(f)(3) references Subsection 182(f)(1), USEPA believes that this

reference encompasses only the substantive tests in paragraph (1) [and,

by extension, paragraph (2)], and not the procedural requirement that

USEPA act on exemptions only when acting on SIPs. Additionally,

paragraph (3) provides that ``person[s]'' (which Section 302(e) of the

Act defines to include States) may petition for NOX exemptions

``at any time,'' and requires USEPA to make its determination within

six months of the petition's submission. These key differences lead

USEPA to believe that Congress intended the exemption petition process

of paragraph (3) to be distinct and more expeditious than the longer

plan revision process intended under paragraph (1).

Section 182(f)(1) appears to contemplate that exemption requests

submitted under these paragraphs are limited to States, since States

are the entities authorized under the Act to submit plans or plan

revisions. By contrast, Section 182(f)(3) provides that ``person[s]''

4 may petition for a NOX determination ``at any time'' after

the ozone precursor study required under Section 185B of the Act is

finalized,5 and gives USEPA a limit of 6 months after filing to

grant or deny such petitions. Since individuals may submit petitions

under paragraph (3) ``at any time,'' this must include times when there

is no plan revision from the State pending at USEPA. The specific

timeframe for USEPA action established in paragraph (3) is

substantially shorter than the timeframe usually required for States to

develop and for USEPA to take action on revisions to a SIP. These

differences strongly suggest that Congress intended the process for

acting on petitions under paragraph (3) to be distinct from and more

expeditious than the plan revision process intended under paragraph

(1). Thus, USEPA believes that paragraph (3)'s reference to paragraph

(1) encompasses only the substantive tests in paragraph (1) [and, by

extension, paragraph (2)], not the requirement in paragraph (1) for

USEPA to grant exemptions only when acting on plan revisions. With

respect to the comment that Section 182(b)(1) provides the appropriate

authority to grant transportation conformity NO exemptions, please

refer to the discussion in `` Section V., Approval Under Section

182(b),'' of this notice.

\4\ Section 302(e) of the Act defines the term ``person'' to

include States.

\5\ The final Section 185B report was issued July 30, 1993.

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Air Monitoring Network: One commenter stated that the network

established for air monitoring is

[[Page 36056]]

insufficient to accurately assess the ambient air quality in these

areas.

USEPA Response: The USEPA has established ambient air monitoring

networks for each of these areas to provide the most accurate

assessment of the ambient air concentrations of ozone as practicable.

These monitors meet the requirements set in 40 CFR Part 58 for ambient

air monitoring, and USEPA has not been provided with any evidence that

would allow it to conclude either that the number of monitors nor their

locations are inadequate.

Attainment Data Comments: Three years of ``clean'' data fail to

demonstrate that NOX reductions would not contribute to attainment

of the NAAQS for ozone. The USEPA's policy erroneously equates the

absence of a violation for one three-year period with ``attainment.''

USEPA Response: The USEPA has separate criteria for determining if

an area should be redesignated to an ozone attainment area under

Section 107 of the Act. The Section 107 redesignation criteria are more

comprehensive than the Act requires with respect to NOX exemptions

under Section 182(f).

Under Section 182(f)(1)(A), an exemption from the NOX

requirements may be granted for nonattainment areas outside an OTR if

USEPA determines that ``additional reductions of [NOX] would not

contribute to attainment'' of the ozone NAAQS in those areas. In some

cases, an ozone nonattainment area might attain the ozone standard, as

demonstrated by 3 years of adequate monitoring data, without having

implemented the Section 182(f) NOX provisions over that 3-year

period.

In cases where a nonattainment area is demonstrating attainment

with 3 consecutive years of air quality monitoring data without having

implemented the Section 182(f) NOX provisions, USEPA believes that

the Section 182(f) test is met since ``additional reductions of

[NOX] would not contribute to attainment'' of the NAAQS in that

area. In cases where it is warranted, USEPA's approval of the exemption

is granted on a contingent basis (i.e., the exemption would last for

only as long as the area's monitoring data continue to demonstrate

attainment).

Review Criteria: One commenter requested that USEPA should review

all exemption requests with the same level of scrutiny.

USEPA Response: It is the Clean Air Act itself, not USEPA, that

treats areas differently for purposes of qualifying for a NOX

exemption. Section 182(f) establishes separate criteria for USEPA to

use in determining whether an area should be granted a NOX

exemption or not depending on whether an area falls within or outside

of an OTR. Within these bounds, USEPA has established national guidance

for evaluating NOX petitions. The relevant NOX exemption

guidance documents are listed earlier in this notice. Each USEPA

Regional Office implements the established policy contained in the

guidance when evaluating individual State's exemption requests. The

USEPA--Region 5 used the same criteria and scrutiny in reviewing these

exemption requests and finds that these exemption requests submitted by

the State meet the procedures set forth in the guidance in order to

meet the applicable requirements of the Act.

Modeling Comments: Some commenters stated that no modeling has been

performed to show that NOX is not a contributor to the ozone

``problem'' in these nonattainment areas and in downwind areas. Other

commenters stated that the modeling required by USEPA guidance is

insufficient to establish that NOX reductions would not contribute

to attainment of the ozone NAAQS.

USEPA Response: As described in USEPA's December 1993 NOX

exemption guidance,6 photochemical grid modeling is generally

needed to document cases where NOX reductions are

counterproductive to net air quality, do not contribute to attainment,

do not show a net ozone benefit, or include excess reductions. The

Urban Airshed Model (UAM) or, in the OTR, the Regional Oxidant Model

(ROM), are acceptable methods for these purposes. However, the December

guidance also provides that, under the ``not contribute to attainment

test,'' an area may qualify for a NOX exemption by attaining the

ozone standard, as demonstrated by three years of ambient air

monitoring data. The exemption requests submitted by the State for

these areas are based upon ambient air monitoring data for ozone, which

demonstrate that the area is in fact attaining the NAAQS and,

consequently, additional reductions of NOX in that area would not

``contribute to attainment''. The comment regarding the sufficiency of

USEPA's modeling guidance is not relevant to this action since these

petitions are based on air monitoring data. For additional information,

please refer to the ``Downwind Area'' comments and response below.

\6\ ``Guideline for Determining the Applicability of Nitrogen

Oxide Requirements under Section 182(f),'' from John S. Seitz,

Director, Office of Air Quality Planning and Standards, dated

December 19, 1993.

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

SIP Status Request: One commenter stated that since other SIP

revisions have not been approved (i.e., the 15% rate-of-progress plans,

maintenance plans, contingency plans, and redesignation request), it is

premature to approve the exemption requests.

USEPA Response: This action only addresses the requests for

exemptions from the NOX requirements contained in Section 182(f)

of the Act and from certain NOX requirements of USEPA's I/M and

conformity regulations as submitted by the State of Ohio. Final actions

by USEPA on these requests are not dependent on final actions on other

required SIP submittals, such as the ones mentioned. Non-related SIP

revisions will be addressed separately. See also USEPA response to

``Conclusive Evidence'' comments.

Transportation Modeling and Emissions Estimates: One commenter

cited a specific highway project, and others stated that generally

there were significant flaws in the transportation modeling and with

the SIP emission estimates for several of the areas included in the

exemption petition.

USEPA Response: This action addresses only the requests for

exemptions from the NOX requirements contained in Section 182(f)

of the Act and certain NOX requirements of USEPA's conformity and

I/M regulations as submitted by the State of Ohio based upon ambient

air monitoring data. Transportation modeling and emission estimates are

not required to be reviewed as part of this approval. Therefore,

adverse comments submitted concerning transportation modeling and

emissions estimates are not being further addressed.

Attainment Demonstration Comments: Some commenters stated that

ambient air monitoring data is a poor indicator for the purpose of

demonstrating that NOX reductions would not contribute to

attainment.

USEPA Response: Under Section 182(f)(1)(A), an exemption from the

NOX requirements may be granted for nonattainment areas outside an

OTR if USEPA determines that ``additional reductions of [NOX]

would not contribute to attainment'' of the ozone NAAQS in those areas.

In some cases, an ozone nonattainment area might attain the ozone

standard, as demonstrated by 3 years of adequate monitoring data,

without having implemented the Section 182(f) NOX provisions over

that 3-year period. In cases where a nonattainment area is

demonstrating attainment with 3 consecutive years of air quality

monitoring data without having

[[Page 36057]]

implemented the Section 182(f) NOX provisions, USEPA believes that

the Section 182(f) test is met since ``additional reductions of

[NOX] would not contribute to attainment'' of the NAAQS in that

area. In all such cases, USEPA's approval of the exemption is granted

on a contingent basis (i.e., the exemption would last for only as long

as the area's monitoring data continue to demonstrate attainment). The

policy described above is applicable to the areas of the country that

successfully meet the ``not contribute to attainment'' NOX

exemption test in Section 182(f)(1)(A), and is further described in

USEPA's December 1993 guidance and May 27, 1994, policy memorandum.

Downwind Area Comments: Several commenters note that USEPA's

December 1993 guidance prohibits granting a Section 182(f) waiver based

on 3 years of clean data if evidence exists showing that the waiver

would interfere with attainment or maintenance in downwind areas. The

commenters argue that the same condition should also apply to waiver

requests based on modeling. Exemptions in Ohio cities, they claim, are

likely to exacerbate ozone nonattainment downwind, and therefore are

not consistent with the Act. If the exemptions are granted, emissions

from new stationary sources and the transportation sector in Ohio,

which are projected to increase, could delay attainment of the ozone

standard in areas in the northeastern United States.

These commenters further claim that USEPA modeling has demonstrated

that Ohio is a significant contributor to atmospheric transport of

ozone precursors to the OTR. Since this modeling indicates that

emissions of NOX from stationary sources west of the OTR

contribute to increased ozone levels in the northeast, they argue that

control of NOX emissions in the OTR and in States west of the OTR

will contribute to significant reductions in peak ozone levels within

the OTR.

USEPA Response: As a result of such comments, USEPA has re-

evaluated its position on this issue and decided to revise the

previously-issued guidance.7 As described below, USEPA intends to

use its authority under Section 110(a)(2)(D) to require a State to

reduce NOX emissions from stationary and/or mobile sources where

there is evidence, such as photochemical grid modeling, showing that

NOX emissions would contribute significantly to nonattainment in,

or interfere with maintenance by, any other State. This action would be

independent of any action taken by USEPA on a NOX exemption

request for stationary sources under Section 182(f). That is, USEPA

action to grant or deny a NOX exemption request under Section

182(f) would not shield that area from USEPA action to require NOX

emission reductions, if necessary, under Section 110(a)(2)(D).

\7\ Please refer to ``Section 182(f) Nitrogen Oxides (NOX)

Exemptions--Revised Process and Criteria,'' from John Seitz,

Director, OAQPS, dated February 8, 1995.

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

Recent modeling data suggest that certain ozone nonattainment areas

may benefit from reductions in NOX emissions far upwind of the

nonattainment area. For example, the northeast corridor and the Lake

Michigan areas are considering attainment strategies which rely in part

on NOX emission reductions hundreds of miles upwind. The USEPA is

working with the States and other organizations to design and complete

studies which consider upwind sources and quantify their impacts. As

the studies progress, USEPA will continue to work with the States and

other organizations to develop mutually acceptable attainment

strategies.

At the same time as these large scale modeling analyses are being

conducted, certain nonattainment areas that are located in the area

being modeled, have requested exemptions from NOX requirements

under Section 182(f). Some areas requesting an exemption may impact

upon downwind nonattainment areas. The USEPA intends to address the

transport issue through Section 110(a)(2)(D) based on a domain-wide

modeling analysis.

Under Section 182(f) of the Act, an exemption from the NOX

requirements may be granted for nonattainment areas outside an OTR if

USEPA determines that ``additional reductions of [NOX] would not

contribute to attainment of the national ambient air quality standard

for ozone in the area.''\8\ As described in section 4.3 of the December

16, 1993 guidance document, USEPA believes that the term ``area'' means

the ``nonattainment area,'' and that USEPA's determination is limited

to consideration of the effects in a single nonattainment area due to

NOX emissions reductions from sources in the same nonattainment

area.

\8\ There are three NOX exemption tests specified in

Section 182(f). Of these, two are applicable for areas outside an

ozone transport region; the ``contribute to attainment'' test

described above, and the ``net air quality benefits'' test. The

USEPA must determine, under the latter test, that the net benefits

to air quality in an area ``are greater in the absence of NOX

reductions'' from relevant sources. Based on the plain language of

Section 182(f), USEPA believes that each test provides an

independent basis for receiving a full or limited NOX

exemption. Consequently, as stated in Section 1.4 of the December

16, 1993 USEPA guidance, ``[w]here any one of the tests is met (even

if another test is failed), the Section 182(f) NOX requirements

would not apply or, under the excess reductions provision, a portion

of these requirements would not apply.''

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

Section 4.3 of the guidance goes on to encourage, but not require,

States/petitioners to include consideration of the entire modeling

domain, since the effects of an attainment strategy may extend beyond

the designated nonattainment area. Specifically, the guidance

encourages States to ``consider imposition of the NOX requirements

if needed to avoid adverse impacts in downwind areas, either intra- or

inter-State. States need to consider such impacts since they are

ultimately responsible for achieving attainment in all portions of

their State (see generally Section 110) and for ensuring that emissions

originating in their State do not contribute significantly to

nonattainment in, or interfere with maintenance by, any other State

[see Section 110(a)(2)(D)(i)(I)].''

In contrast, Section 4.4 of the guidance states that the Section

182(f) demonstration would not be approved if there is evidence, such

as photochemical grid modeling, showing that the NOX exemption

would interfere with attainment or maintenance in downwind areas. The

guidance goes on to explain that Section 110(a)(2)(D) [not Section

182(f)] prohibits such impacts.

Consistent with the guidance in section 4.3, USEPA believes that

the Section 110(a)(2)(D) and 182(f) provisions must be considered

independently, and, hence, is withdrawing the guidance presently

contained in Section 4.4. Thus, if there is evidence that NOX

emissions in an upwind area would interfere with attainment or

maintenance in a downwind area, that action should be separately

addressed by the State(s) or, if necessary, by USEPA in a Section

110(a)(2)(D) action. A Section 182(f) exemption request should be

independently considered by USEPA. In some cases, then, USEPA may grant

an exemption from across-the-board NOX RACT controls under Section

182(f) and, in a separate action, require NOX controls from

stationary and/or mobile sources under Section 110(a)(2)(D). It should

be noted that the controls required under Section 110(a)(2)(D) may be

more or less stringent than RACT, depending upon the circumstances.

Consistent with these principles, USEPA is approving these exemption

requests under Section 182(f) of the Act. If evidence appears that

NOX emissions in an upwind area would interfere with attainment or

maintenance in a

[[Page 36058]]

downwind area, appropriate action shall be taken by the State(s) or, if

necessary, by USEPA under Section 110(a)(2)(D). The USEPA also believes

this approach is consistent with statements made by Mary Nichols,

Assistant Administrator for Air and Radiation, in a March 2, 1995,

memorandum entitled ``Ozone Attainment Demonstrations,'' concerning the

development of regional approaches to resolve NOX transport

issues. Also see response to comment on ``Alternative Ozone Attainment

Demonstration Policy''.

Scope of Exemption: One commenter stated that if USEPA granted

these exemptions, NOX RACT and NSR would be waived for all

NOX sources in the State of Ohio.

USEPA Response: Upon the effective date of this final approval,

NOX RACT and NSR will not be required for any nonattainment area

in the State of Ohio; however, the NOX requirements of Title IV,

acid rain, are not affected by this action and must be met by affected

sources in Ohio. Moreover, as noted earlier, all NOX exemption

approvals are contingent upon the exempted areas continuing to attain

the ozone NAAQS, and would no longer apply in any previously-exempted

area where, prior to redesignation, a violation occurs. Also, NOX

reductions that are needed for maintenance would still be applicable.

Alternative Ozone Attainment Demonstration Policy: One commenter

stated that proposed approval of Ohio's exemption requests seems

premature in light of a recent USEPA policy memorandum from Mary D.

Nichols, Assistant Administrator for Air and Radiation, entitled

``Ozone Attainment Demonstrations,'' dated March 2, 1995.

USEPA Response: The March 2, 1995, policy memorandum is applicable

to ozone nonattainment areas significantly affected by ozone transport

that are classified as serious and above (discretion is given to the

Regional Offices to determine, in consultation with State Agencies,

whether it would be appropriate to apply the policy to other areas in

the State). For the State of Ohio, the Cincinnati-Hamilton interstate

area is the only area that may be affected by this memorandum. However,

a redesignation request has been submitted for this area, and upon the

effective date of the final approval, an attainment demonstration for

this area would no longer be required, thus relieving that area of the

need for the flexibility offered in the March 2nd memorandum. Please

note that the States of Ohio and Kentucky are still funding a

contractual effort to develop an attainment demonstration for the area

in the event the redesignation requests are not approved. See also

response to comment regarding ``Downwind Areas''.

Conclusive Evidence: The Act does not authorize any waiver of the

NOX reduction requirements until conclusive evidence exists that

such reductions are counter-productive.

USEPA Response: The USEPA does not agree with this comment since it

is contrary to Congressional intent as evidenced by the plain language

of Section 182(f), the structure of the Title I ozone subpart as a

whole, and relevant legislative history. In developing and implementing

its NOX exemption policies, USEPA has sought an approach that

reasonably accords with that intent.

In addition to imposing control requirements on major stationary

sources of NOX similar to those that apply for such sources of

VOC, Section 182(f) also provides for an exemption (or limitation) from

application of these requirements if, under one of several tests, USEPA

determines that in certain areas NOX reductions would generally

not be beneficial. In Subsection 182(f)(1), Congress explicitly

conditioned action on NOX exemptions on the results of an ozone

precursor study required under Section 185B. Because of the possibility

that reducing NOX in a particular area may either not contribute

to ozone attainment or may cause the ozone problem to worsen, Congress

included attenuating language, not just in Section 182(f), but

throughout the Title I ozone subpart, to avoid requiring NOX

reductions where they would be non-beneficial or counterproductive.

In describing these various ozone provisions (including Section

182(f), the House Conference Committee Report states in pertinent part:

``[T]he Committee included a separate NOX/VOC study provision in

Section [185B] to serve as the basis for the various findings

contemplated in the NOX provisions. The Committee does not intend

NOX reduction for reduction's sake, but rather as a measure scaled

to the value of NOX reductions for achieving attainment in the

particular ozone nonattainment area.'' H.R. Rep. No. 490, 101st Cong.,

2d Sess. 257-258 (1990).

As noted in response to a comment discussed above, the command in

Subsection 182(f)(1) that USEPA ``shall consider'' the Section 185B

report taken together with the timeframe the Act provides both for

completion of the report and for acting on NOX exemption petitions

clearly demonstrate that Congress believed the information in the

completed Section 185B report would provide a sufficient basis for

USEPA to act on NOX exemption requests, even absent the additional

information that would be included in affected areas' attainment or

maintenance demonstrations. However, while there is no specific

requirement in the Act that USEPA actions granting NOX exemption

requests must await ``conclusive evidence,'' as the commenters argue,

there is also nothing in the Act to prevent USEPA from revisiting an

approved NOX exemption if warranted due to subsequent ambient

monitoring information.

In addition, USEPA believes (as described in USEPA's December 1993

guidance) that Section 182(f)(1) of the Act provides that the new

NOX requirements shall not apply (or may by limited to the extent

necessary to avoid excess reductions) if the USEPA Administrator

determines that any one of the following tests is met:

(1) In any area, the net air quality benefits are greater in the

absence of NOX reductions from the sources concerned;

(2) In nonattainment areas not within an ozone transport region,

additional NOX reductions would not contribute to ozone attainment

in the area; or

(3) In nonattainment areas within an ozone transport region,

additional NOX reductions would not produce net ozone air quality

benefits in the transport region.

Based on the plain language of Section 182(f), USEPA believes that

each test provides an independent basis for the granting of a full or

limited NOX exemption.

Only the first test listed above is based on a showing that

NOX reductions are ``counter-productive.'' If even one of the

tests is met, the Section 182(f) NOX requirements would not apply

or, under the excess reductions provision, a portion of these

requirements would not apply.

Air Quality Comment: One commenter stated that attainment of the

ozone NAAQS has not occurred, while several commenters stated that the

air quality monitoring data alone does not support this exemption

proposal (even though the air quality levels are below USEPA's

definition of an exceedance of the ozone NAAQS at 0.125 ppm, but are

greater than the ozone NAAQS of 0.120 ppm).

USEPA Response: The exemption requests were evaluated against the

standards set forth for this purpose under the Act, regulations, and

USEPA policy. As stated in 40 CFR 50.9, the ozone ``standard is

attained when the expected number of days per calendar year with

maximum hourly average

[[Page 36059]]

concentrations above 0.12 parts per million (235 ug/m\3\) is equal to

or less than 1, as determined by Appendix H.'' Appendix H references

USEPA's ``Guideline for Interpretation of Ozone Air Quality

Standards,'' (EPA-450/4-79-003, January 1979), which notes that the

stated level of the standard is taken as defining the number of

significant figures to be used in comparison with the standard. For

example, a standard level of 0.12 ppm means that measurements are to be

rounded to two decimal places (0.005 rounds up to 0.01). Thus, 0.125

ppm is the smallest concentration value in excess of the level of the

ozone standard (please refer to ``Section IV. Analysis of the State

Submittal'' in this notice for monitored ozone concentrations in these

areas). Based on these criteria, the ambient air monitoring data shows

that a violation of the ozone standard has not occurred for any of the

areas during the indicated ozone seasons.

Monitoring Data Demonstration: One commenter was concerned that

USEPA reviewed 1991-1993 ambient air ozone monitoring data for the

exemption request submitted for the Canton, Columbus, Steubenville,

Youngstown areas; Preble and Clinton Counties; and 1992-1994 ambient

air ozone monitoring data for the Cleveland and Cincinnati areas. The

commenter believed that the inconsistencies between these time periods

brought into question the entire proposed approval.

USEPA Response: The USEPA reviewed the exemption requests based on

when the submittal and accompanying ozone data were received by USEPA.

For the marginal and nonclassifiable ozone nonattainment areas, the

exemption requests were submitted to USEPA in a letter dated March 18,

1994 (based upon monitoring data from the 1991-1993 ozone seasons). For

the Cleveland and Cincinnati areas, the State submitted the exemptions

requests in letters dated November 1 and 15, 1994, respectively, (based

upon monitoring data from the 1992-1994 ozone seasons). The approvals

are consistent with the criteria in 40 CFR 50.9 and Appendix H, as well

as with relevant USEPA guidance, under which the relevant factor is

that there are 3 consecutive years during which the standard has been

attainment as demonstrated by quality-assured ambient air quality data.

X. Final Action

The USEPA is approving, in final, the exemption requests submitted

by the State of Ohio from the NOX requirements provided for in

Section 182(f) of the Act. This approval would exempt the following

Counties in Ohio from the NOX-related general and transportation

conformity provisions; and nonattainment area NSR for new sources and

modifications that are major for NOX: Clinton, Columbiana,

Delaware, Franklin, Jefferson, Licking, Mahoning, Preble, Stark, and

Trumbull.

This approval also exempts the following Counties in Ohio from the

NOX-related general conformity provisions, nonattainment area NSR

for new sources and modifications that are major for NOX, NOX

RACT; and a demonstration of compliance with the enhanced I/M

performance standard for NOX (please note that the following

counties are not being granted an exemption from the transportation

conformity NOX provisions): Ashtabula, Butler, Clermont, Cuyahoga,

Geauga, Hamilton, Lake, Lorain, Medina, Portage, Summit and Warren.

XI. General Provisions

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 has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The Office of Management and Budget exempted this

regulatory action from Executive Order 12866 review.

XII. Regulatory Process

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. Today's exemptions do not create any new requirements, but

allow suspension of the indicated requirements for the life of the

exemptions. 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, 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 relieves requirements otherwise imposed

under the Act and hence, does not impose any federal intergovernmental

mandate, as defined in Section 101 of the Unfunded Mandates Act. This

action also will not impose 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 September 11, 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

Environmental protection, Air pollution control, Intergovernmental

relations, Nitrogen oxides, Ozone, Reporting and recordkeeping

requirements, Volatile organic compounds.

Dated: June 30, 1995.

David A. Ullrich,

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 52.1879 is amended by adding new paragraph (e) to read

as follows:

[[Page 36060]]

Sec. 52.1879 Review of new sources and modifications.

* * * * *

(e) Approval--The USEPA is approving exemption requests submitted

by the State of Ohio on March 18, November 1, and November 15, 1994,

from the requirements contained in Section 182(f) of the Clean Air Act.

This approval exempts the following counties in Ohio from the NOX-

related general and transportation conformity provisions; and

nonattainment area NSR for new sources and modifications that are major

for NOX: Clinton, Columbiana, Delaware, Franklin, Jefferson,

Licking, Mahoning, Preble, Stark, and Trumbull. This approval also

exempts the following counties in Ohio from the NOX-related

general conformity provisions, nonattainment area NSR for new sources

and modifications that are major for NOX, NOX RACT; and a

demonstration of compliance with the enhanced I/M performance standard

for NOX: Ashtabula, Butler, Clermont, Cuyahoga, Geauga, Hamilton,

Lake, Lorain, Medina, Portage, Summit and Warren. If, prior to

redesignation to attainment, a violation of the ozone NAAQS is

monitored in the Canton, Cincinnati, Cleveland, Columbus, Youngstown,

and Steubenville areas, Preble County and Clinton County, the

exemptions from the requirements of Section 182(f) of the Act in the

applicable area(s) shall no longer apply.

3. Section 52.1885 is amended by adding new paragraph (x) to read

as follows:

Sec. 52.1885 Control strategy: Ozone.

* * * * *

(x) Approval--The USEPA is approving exemption requests submitted

by the State of Ohio on March 18, November 1, and November 15, 1994,

from the requirements contained in Section 182(f) of the Clean Air Act.

This approval exempts the following counties in Ohio from the NOX-

related general and transportation conformity provisions, and

nonattainment area NSR for new sources and modifications that are major

for NOX: Clinton, Columbiana, Delaware, Franklin, Jefferson,

Licking, Mahoning, Preble, Stark, and Trumbull. This approval also

exempts the following counties in Ohio from the NOX-related

general conformity provisions, nonattainment area NSR for new sources

and modifications that are major for NOX, NOX RACT, and a

demonstration of compliance with the enhanced I/M performance standard

for NOX: Ashtabula, Butler, Clermont, Cuyahoga, Geauga, Hamilton,

Lake, Lorain, Medina, Portage, Summit, and Warren. If, prior to

redesignation to attainment, a violation of the ozone NAAQS is

monitored in the Canton, Cincinnati, Cleveland, Columbus, Youngstown,

and Steubenville areas, Preble County and Clinton County, the

exemptions from the requirements of Section 182(f) of the Act in the

applicable area(s) shall no longer apply.

[FR Doc. 95-17211 Filed 7-12-95; 8:45 am]

BILLING CODE 6560-50-P