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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH50-5-7072, FRL-5258-9]

Approval and Promulgation of Implementation Plans and Designation

of Areas for Air Quality Planning Purposes: State of Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On May 2, 1995, the United States Environmental Protection

Agency (USEPA) published a proposed and direct final rulemaking notice

to approve the ozone redesignation request and associated section 175A

maintenance plan for Toledo, Ohio under the Clean Air Act. The 30-day

comment period for these notices concluded on June 1, 1995. Four

comment letters were received in response to the May 2, 1995 proposal,

and included adverse comments and a request to extend the comment

period. The USEPA withdrew the direct final rulemaking but denied the

request to extend the public comment period. This final rule summarizes

all adverse comments and USEPA's responses, and finalizes the approval

of the redesignation to attainment of the National Ambient Air Quality

Standard for ozone and section 175A maintenance plan for the Toledo

area.

EFFECTIVE DATE: This action will be effective August 1, 1995.

ADDRESSES: Copies of the SIP revisions, public comments and USEPA's

responses are available for inspection at the following address: (It is

recommended that you telephone Angela Lee at (312) 353-5142 before

visiting the Region 5 Office.)

United States Environmental Protection Agency, Region 5, Air and

Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Angela Lee, Regulation Development

Section, Air Enforcement Branch (AE-17J), United States Environmental

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

Illinois 60604, (312) 353-5142.

SUPPLEMENTARY INFORMATION:

I. Background Information

The 1977 Act required areas that were designated nonattainment to

develop SIPs with sufficient control measures to expeditiously attain

and maintain applicable standards. For Ohio, Lucas and Wood Counties

were designated nonattainment for ozone, see 43 FR 8962 (March 3,

1978), 43 FR 45993 (October 5, 1978), and 40 CFR part 81. After

enactment of the amended Act on November 15, 1990, the nonattainment

designation of the Toledo area continued by operation of law according

to section 107(d)(1)(C)(i) of the Act; furthermore, the area was

classified by operation of law as moderate for ozone pursuant to

section 181(a)(1) (56 FR 56694, November 6, 1991), codified at 40 CFR

81.336.

More recently, ambient monitoring data for the Toledo area show no

violations of the ozone National Ambient Air Quality Standard (NAAQS)

during the period from 1990 through 1992. The area, therefore, became

eligible for redesignation from nonattainment to attainment consistent

with the amended Act. On September 17, 1993, Ohio requested

redesignation of the area to attainment with respect to the ozone

NAAQS. To ensure continued attainment of the ozone standard, Ohio

submitted an ozone maintenance SIP for the Toledo area with the

redesignation request. On November 1, 1993, Ohio held a public hearing

on the maintenance plan and redesignation request.

On May 2, 1995, the USEPA published a proposed (60 FR 21490) and

direct final rule (60 FR 21456) to approve the redesignation request

and section 175A maintenance plan as revisions to the Ohio ozone State

Implementation Plan (SIP). The USEPA withdrew the direct final rule on

June 19, 1995, (60 FR 31917) in response to receiving adverse comments.

This final rule addresses these comments and takes final action

regarding the redesignation and section 175A maintenance plan for the

Toledo area.

II. Summary of Comments and Responses

USEPA has considered the adverse comments received and has decided

to proceed with formal action approving the redesignation. A summary of

adverse comments received in response to the May 2, 1995 proposed and

direct final rulemaking notices (60 FR 21490, 60 FR 21456) and

responses to these comments is provided below. Comments were made by

two residents of the Toledo, Ohio area, Environment Canada, and the

Citizens Commission for Clean Air in the Lake Michigan Basin.

(1) Comment: A commentor objects to the use of the direct final

procedure when the proposed redesignation is neither noncontroversial

nor routine. Another commentor objected to the final rule procedure due

to insufficient opportunity for public comment. Several commentors

requested that the direct final rule be withdrawn and republished as a

proposed rule. The commentors also requested a 30 day extension of the

public comment period. One commentor stated that ``most citizens have

not heard about the opportunity to comment, and should be afforded

additional time to do so.'' Another commentor requested an extension of

the comment period so that concerns about increased vehicle emissions

caused by new road construction projects and a possible increase in

highway tolls can be evaluated and addressed.

(1) Response: The USEPA did not expect adverse comments regarding

the approval of the ozone redesignation request and viewed its decision

as noncontroversial since it believed that all of the Clean Air Act

requirements for redesignation were met. In response to the adverse

comment letters which were received, the USEPA withdrew the direct

final rule. In any event, that process preserves the public opportunity

to comment as a proposed rule was published the same day as the direct

final rule was published at 60 FR 21490.

The USEPA is denying the extension requests because it believes the

period provided for public comment was adequate in light of the issues

presented by the Toledo redesignation request. USEPA further notes that

the public had many opportunities to become informed about the issues

as Ohio itself had its own public comment period and that a public

function for the rulemaking package was held on March 14, 1995, in

Toledo, Ohio, which was shown on television news programs. Moreover,

USEPA has already exceeded the statutory deadline of section

107(d)(3)(d) to act on this request which expired on March 17, 1995--

and does not believe further delay in the action is appropriate.

(2) Comment: Several commentors stated that the last two summers

were abnormally cool and that data for the last 10 years indicate a

trend toward warmer summers in the Toledo area. The commentors

requested that USEPA delay rulemaking so that one or two years of

monitoring data could be collected to ensure that the improvement in

air quality was not caused by cooler temperatures. The commentors also

stated that it would be a waste of resources to redesignate the area to

attainment when a violation

[[Page 39116]]

would require a redesignation back to nonattainment.

(2) Response: The USEPA may not delay action on this redesignation

request since section 107(d)(3)(E) requires USEPA to act on complete

redesignation requests within 18 months of their receipt--a period that

expired on March 17, 1995. Furthermore, in establishing the criteria

for determining if an area is in attainment of the ozone standard,

USEPA used three years of ambient monitoring data. See 40 CFR part 50,

Appendix H. The USEPA notes that the Toledo area has been in attainment

for four consecutive three-year periods (1989-1991, 1990-1992, 1991-

1993, and 1992-1994). This includes six years of ambient monitoring

data. Thus, Toledo has already been in attainment substantially longer

than the three-year period required. The CAA expressly contemplates the

possibility that areas redesignated to attainment may violate the NAAQS

after redesignation and requires contingency plans to address future

violations. Ohio has adopted such a plan for Toledo. If a violation

occurs, Stage II Vapor Recovery Program (Stage II) and a vehicle

inspection and maintenance program (I/M) will be implemented according

to a specified schedule. If a violation occurs after these programs

have been implemented, nitrogen oxides (NOX) Reasonably Available

Control Technology requirements will be implemented in the area.

(3) Comment: Toledo will not be able to maintain attainment on a

permanent and enforceable basis and therefore does not meet requirement

107(d)(3)(E) of the Clean Air Act. The rulemaking notice states that

the measures are permanent and enforceable, but does not show that the

improvement is permanent and enforceable. The improvement in air

quality is temporary since emission increases resulting from increased

vehicle miles travelled (VMT) will surpass the emission reductions from

these measures. Short term emissions reductions and cooler temperatures

have been used to claim that a long term improvement in air quality has

occurred. Long term air quality will not improve and will decrease due

to emissions increases which will offset the gains which have been

made. Insufficient data has been gathered on which to base a long term

prediction, and models have been based on biased assumptions regarding

the effect of capacity expansions. The USEPA should require the state

to submit additional information regarding current trends in land use

and transportation in the Toledo area. The commentor mentioned trends

which were not conducive to efficient transportation such as decreasing

bus ridership, increasing tolls on the Ohio Turnpike, widening of I-75

which will lead to increased VMT, increasing single-occupant vehicle

capacity, and increasing use of the Toledo Airport. Another commentor

submitted excerpts from an article regarding traffic flow on congested

roads from the American Scientist dated November-December 1988 written

by Joel E. Cohen, Professor of Populations, Rockefeller University.

The USEPA and the State of Ohio have failed to demonstrate that the

improvement in air quality was due to permanent and enforceable

emission reductions rather than atypically cool ozone seasons in 1992

and 1993. Also the controls on the volatility of gasoline through

lowering of the Federal Volatility standard and controls new cars under

the Federal Motor Vehicle Emissions Control Program (FMVECP) are

insufficient to guarantee permanent improvements under the Clean Air

Act. These measures represent only a few of the requirements that

should have been enacted prior to any serious consideration of the

redesignation request by USEPA.

(3) Response: Section 107(d)(3)(E)(iii) of the Clean Air Act

requires the USEPA to determine that ``the improvement in air quality

is due to permanent and enforceable reductions in emissions resulting

from implementation of the applicable implementation plan and

applicable Federal air pollutant control regulations and other

permanent and enforceable reductions.'' Ohio met this requirement by

estimating emission reductions from federally mandated controls on new

cars and on fuel volatility as well as reductions which took place at

the British Petroleum Refinery. These controls provided a significant

reduction in the areas emissions and the State has shown that no

additional reductions are needed to maintain the standard. See 60 FR

21456 and 60 FR 21490.

With respect to the issue of unusual meteorology, the USEPA has

compared the average meteorological parameters of maximum daily

temperature, minimum daily temperature, average daily temperature,

cooling degrees, and days with high temperatures greater than 90

degrees fahrenheit for the periods of June through August, 1991 through

1993, with the 30-year norms for these parameters. The 1991 through

1993 averages for these parameters agreed with those for the 30-year

norms with only minor differences. Based on these averaged parameters,

it can be concluded that the 1991 through 1993 period was not unusually

cool in terms of temperatures. Thus, the State has adequately

demonstrated that the air quality improvement was not due to unusually

favorable meteorology.

To meet section 107(d)(3)(E)(iii), the improvement in air quality

does not have to be shown to be permanent, only the measures that

resulted in the improvement need to be permanent and enforceable.

However, section 107(d)(3)(E)(iv) does require that the area have a

fully approved maintenance plan showing that the ozone standard will be

maintained for ten years into the future. This can be done through air

quality modeling or by using emissions projections. Ohio demonstrated

that, by considering the growth in the area (including VMT growth) and

existing controls on emission sources, emissions will remain below the

attainment year inventory through the year 2005. In projecting mobile

source emissions, Ohio obtained VMT based on the Highway Performance

Modeling System which uses traffic counting data for the year 1990. To

forecast VMT to the year 2005, Ohio used growth parameters based on

modeling of the Long Range Transportation Plan (future highway

network). This modeling process incorporated population growth

estimates from Ohio Data Users Center, employment forecasts and other

forecasts of socio-economic data. The methodology which was used to

project emissions is reasonable. The USEPA notes that the emissions

projection for mobile sources in the maintenance plan establishes the

emissions budget which will be used for determining conformity of

transportation plans and transportation improvement programs for the

Toledo area. The conformity determination must include reasonable

assumptions about transit service and increases in transit fares and

road and bridge tolls over time.

The May 2, 1995 notice describes a tracking plan for updating the

emission inventory. As discussed, Ohio has committed to submitting

periodic inventories every 3 years. Ohio will compare the projected

emissions in the redesignation request with actual emissions. If

volatile organic compounds (VOC) emissions exceed 95 percent of 1990

levels, Ohio will implement Stage II and/or I/M.

If the periodic inventories exceed the attainment level of

emissions in the maintenance plan, the USEPA may issue a SIP call to

the area under section 110(k)(5) on the basis that the State made

inadequate assumptions in projecting the inventory used to demonstrate

maintenance. In this event, the USEPA may require the State to

[[Page 39117]]

correct the projection inventory and, if increases are projected,

propose and ultimately implement maintenance measure(s) to lower the

emissions to a level at or below the attainment year level. Under

section 175A of the Clean Air Act, Ohio must submit a demonstration

that the ozone standard will be maintained for another ten years, eight

years after the area is redesignated to attainment. This is expected to

result in the Toledo area maintaining the ozone standard for the next

20 years.

(4) Comment: Two commentors requested that USEPA prepare an

Environmental Impact Statement (EIS) as the redesignation constitutes a

major federal action with the potential for significant impacts on the

human environment. A number of transportation and land use control

measures which would have resulted under requirements applied to

nonattainment areas will not be required. The EIS should consider

downwind transport of ozone precursors, and the effect of such

transport on the Northeastern United States.

(4) Response: USEPA is not required to prepare an EIS in connection

with this redesignation. Section 7(c)(1) of the Energy Supply and

Environmental Coordination Act (Pub. L. 93-319) states that ``[n]o

action taken under the Clean Air Act shall be deemed a major Federal

action significantly affecting the quality of the human environment

within the meaning of the National Environmental Policy Act of 1969 (83

Stat. 856).'' This redesignation does not affect the applicability of

the National Environmental Policy Act (NEPA) to particular

transportation projects in the Toledo area. In addition, the

transportation and general conformity rules will still apply after the

area is redesignated to attainment. (Conformity determinations for

transportation plans, transportation improvement projects, and Federal

actions must demonstrate that the emissions budget established by the

maintenance plan is not exceeded.)

The redesignation does not allow States to automatically remove

control programs which have contributed to an area's attainment of a

U.S. National Ambient Air Quality Standard (NAAQS) for any pollutant.

Sources of ozone precursors in the Toledo area must continue to

implement all control equipment and/or measures in accordance with

applicable rules, regulations and permits. Other control programs

required by the Act will be implemented in the area, regardless of the

ozone designation, such as title IV NOX controls, section 112

toxic controls and on-board vapor recovery requirements. Upon

redesignation to attainment, Toledo will be subject to the Prevention

of Significant Deterioration provisions (PSD) of the Clean Air Act that

apply to stationary sources of air pollution.

The State has assessed emission increases due to growth in all

potential sources of emissions and has shown that reductions in

emissions over the maintenance period will more than offset any

increases in emissions of VOC and NOX. As stated in the Federal

Register notice (60 FR 21456), USEPA will address transport of ozone

precursors to downwind areas under section 110 of the Clean Air Act

based on a domain-wide modeling analysis. Should this or other studies

provide a sufficient scientific basis for taking action in the future,

the USEPA will take appropriate action notwithstanding the

redesignation of the Toledo area to attainment for ozone.

(5) Comment: The USEPA should delay rulemaking on this and all

other ozone redesignation requests pending a re-evaluation of the

current ozone standard to determine if public health is adequately

protected. Recent studies indicate that health impacts occur at lower

levels of ozone than the current ozone standard.

(5) Response: The USEPA is currently in the process of reevaluating

the ozone NAAQS and expects to make a final decision in mid-1997. Until

any change is made, however, the USEPA is bound to implement the

provisions of the Act as they relate to the current standard, including

those relating to designations and redesignation. Moreover, as

previously noted under section 107(d)(3)(D) USEPA has 18 months in

which to act on a redesignation request and has no authority to delay

rulemaking until the entire evaluation of the ozone NAAQS is complete.

(6) Comment: Ozone levels exceeded 0.124 parts per million (ppm) at

the Yondota Avenue monitor in 1991, 1993, and 1994. From these

occurrences, and the absence of mandated forceful control measures post

1994, it is very difficult to have the expectation that the Yondota

station will remain in attainment.

(6) Response: Exceedances of the ozone standard did occur at the

Yondota monitor in 1991, 1993 and 1994, but did not cause a violation

of the ozone standard. The control measures approved into the State's

Implementation Plan will remain in place to ensure that the ozone

standard is maintained. Ohio's maintenance demonstration shows that

future emission levels will remain below levels associated with

attainment. Continued maintenance of the ozone NAAQS will be determined

by continued ambient monitoring. If a violation does occur at the

Yondota monitor after the redesignation is approved, Stage II and I/M

will be implemented. In addition, the area will be subject to the PSD

program, FMVECP, and other measures.

(7) Comment: Environment Canada commented that air quality needs to

be managed in a regional context and evaluated over a long term period

that takes meteorological variations into consideration. Environment

Canada is disappointed that current USEPA policy does not reflect this

opinion. Environment Canada believes that the ground level ozone

standards in effect in the United States allow such high levels of

ozone and ozone precursors to flow into Canada as to make it

practically impossible for Canada to reach its ground level ozone

objective of 82 parts per billion. Another commentor asserted that

USEPA failed to consider adverse impacts of transport of ozone and

ozone precursors to the Province of Ontario, Detroit, the Northeastern

United States and the Lake Michigan Basin. USEPA has failed to obtain a

legally enforceable commitment from the State of Ohio to cooperate in

developing a strategy to reduce the documented problem of ozone

transport throughout Eastern North America. Another commentor stated

that the air quality problem is not being solved, it is being moved off

to other downwind states. This breaks the spirit of the Clean Air Act.

(7) Response: The USEPA would like to note that the governments of

the United States and Canada are in the process of developing a joint

study of the transboundary ozone phenomena under the U.S.-Canada Air

Quality Agreement. It is envisioned that this regional ozone study will

provide the scientific information necessary to understand what

contributes to ozone levels in the region, as well as what control

measures would contribute to reductions in ozone levels. Should this or

other studies provide a sufficient scientific basis for taking action

in the future, the USEPA will take an appropriate course of action. The

USEPA may take appropriate action notwithstanding the redesignation of

the Toledo area. Therefore, the USEPA does not believe that the

contentions regarding transboundary impact provide a basis for delaying

action at this time on this redesignation or disapproving the

redesignation. This is particularly true since approval of the

redesignation is not expected to result in an increase in ozone

precursor emissions and is not expected to adversely affect air quality

[[Page 39118]]

in Canada. In fact, a decrease in both VOC and NOX emissions from

the Toledo area is expected over the 10-year maintenance period. It

should also be noted that redesignation does not allow States to

automatically remove control programs which have contributed to an

area's attainment of a U.S. National Ambient Air Quality Standard for

any pollutant. As discussed previously, the USEPA's general policy is

that a State may not relax the adopted and implemented SIP for an area

upon the area's redesignation to attainment unless an appropriate

demonstration,1 based on computer modeling, is approved by the

USEPA. In this case, no previously implemented control strategies are

being relaxed as part of this redesignation.

\1\Such a demonstration must show that removal of a control

program will not interfere with maintenance of the ozone NAAQS and

would entail submittal of an attainment modeling demonstration with

the USEPA's current Guideline on Air Quality Models. Also, see

memorandum from Gerald A. Emison, April 6, 1987, entitled Ozone

Redesignation Policy, and memorandum from Michael H. Shapiro,

September 17, 1993, entitled State Implementation Plan (SIP)

Requirements for Submitting Requests for Redesignation to Attainment

of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality

Standards (NAAQS) on or after November 15, 1992.

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(8) Comment: The maintenance demonstration overestimates reductions

in VOC and NOX emissions, especially for the latter which relies

heavily on NOX emission reductions obtained from modifications at

the British Petroleum refinery and underestimated economic, population

and VMT growth projections. VMT growth projections fail to consider the

ensuing sprawl caused by the development of a corridor from northeast

to southern Ohio. USEPA reliance on assurances from the State of Ohio

that VOC and NOX emissions in the Toledo area will decrease 35

percent and 38 percent, respectively, from attainment levels by 2005,

is speculative and suspect given continued urban growth and sprawl

along major transportation corridors.

(8) Response: The methodology used to project emissions followed

USEPA guidance. Point source emissions were projected by accounting for

known changes to sources for each year between 1990 and 2005 and

applying a growth factor based on manufacturing employment data

provided by the Bureau of Economic Analysis, United States Department

of Commerce, to derive inventories for all ensuing years. Manufacturing

employment is expected to remain relatively constant. The NOX

emission reductions which would result from compliance with Title IV

NOX requirements are reasonable. Population projections were

obtained from using data from the Ohio Data Users Center (ODUC). ODUC

takes into account past trends, the age of the population, economic

cycles, and other factors in estimating the future population of the

area. Ohio used the Highway Performance Modeling System which uses

actual traffic counts to obtain 1990 levels of VMT. This model was

developed by the Federal Highway Administration and is an acceptable

model for estimating VMT. To project levels of VMT, Ohio used the Long

Range Transportation Planning Program which considered the future

transportation network. The methodology used to project mobile source

emissions was reasonable and should not underpredict growth.

While the overall VMT are expected to increase, this growth will be

offset by the FMVECP which will be providing emissions reductions in

the area through the production of cleaner automobiles. In addition

this area is still subject to the transportation conformity

requirements and must show that the expected transportation projects in

the area will conform to the ozone SIP for the area. This will help to

ensure that growth in VMT will not increase emissions to a point where

the ozone standard could be violated. In addition, Ohio has committed

to submit an emissions inventory every three years to USEPA. If the

total of point, area, and mobile VOC emissions exceed 95 percent of

1990 levels, Ohio has committed to implement either Stage II or I/M or

both. Mobile source inventories will incorporate new VMT estimates.

(9) Comment: Ohio has not made the necessary commitments to ensure

the prompt implementation and operation of the contingency plan in the

event of a violation. It is unlikely that Stage II would be re-

implemented given that the Director of the Ohio Environmental

Protection Agency (OEPA) suspended Stage II on September 17, 1993.

(9) Response: The State provided a schedule in their contingency

plan for implementing Stage II and an automobile inspection and

maintenance program. This schedule was provided in the direct final

rule published on May 2, 1995. The Director of the OEPA also committed

in the SIP submittal to implementing the contingency plan for the area

in the event of a violation in the area. As the compliance deadlines

for Stage II begin as early as 6 months after a violation and I/M

testing is to commence within 18 months of a violation, the contingency

measures satisfy the statutory criteria section of section 175A.

(10) Comment: Ohio's failure to implement a part D New Source

Review program for Toledo, Ohio cannot be excused by the memorandum

from Mary Nichols entitled, ``Part D New Source Review (part D NSR)

Requirements for Areas Requesting Redesignation to Attainment''. The

USEPA cannot waive statutory requirements of the Clean Air Act when

such waivers frustrate the purpose of the Clean Air Act which is to

provide clean air, not convenient loopholes for state responsibilities

under the Clean Air Act.

(10) Response: The USEPA believes that its decision not to insist

on a fully-approved NSR program as a pre-requisite to redesignation is

justifiable as an exercise of the Agency's general authority to

establish de minimis exceptions to statutory requirements. See Alabama

Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under

Alabama Power Co. v. Costle, the USEPA has the authority to establish

de minimis exceptions to statutory requirements where the application

of the statutory requirements would be of trivial or no value

environmentally.

In this context, the issue presented is whether the USEPA has the

authority to establish an exception to the requirements of section

107(d)(3)(E) that the USEPA have fully-approved a SIP meeting all of

the requirements applicable to the area under section 110 and part D of

title I of the Act. Plainly, the NSR provisions of section 110 and part

D are requirements that were applicable to the Ohio area seeking

redesignation at the time of the submission of the request for

redesignation. Thus, on its face, section 107(d)(3)(E) would seem to

require that the State have submitted and the USEPA have fully-approved

a part D NSR program meeting the requirements of the Act before the

areas could be redesignated to attainment.

Under the USEPA's de minimis authority, however, the Agency may

establish an exception to an otherwise plain statutory requirement if

its fulfillment would be of little or no environmental value. In this

context, it is necessary to determine what would be achieved by

insisting that there be a fully-approved part D NSR program in place

prior to the redesignation of the Toledo area. For the following

reasons, the USEPA believes that requiring the adoption and full-

approval of a part D NSR program prior to redesignation would not be of

significant environmental value in this case.

Ohio has demonstrated that maintenance of the ozone NAAQS will

occur even if the emission reductions expected to result from the part

D NSR

[[Page 39119]]

program do not occur. Ohio assumed that NSR would not apply after

redesignation to attainment, and therefore, assumed source growth

factors based on projected growth in the economy and in the area's

population. (It should be noted that the growth factors assumed may be

overestimates under PSD, which would restrain source growth through the

application of best available control techniques.) Thus, contrary to

the assertion of the commentor, Ohio has demonstrated that there is no

need to retain the part D NSR as an operative program in the SIP during

the maintenance period in order to provide for continued maintenance of

the NAAQS. (If this demonstration had not been made, NSR would have had

to have been retained in the SIP as an operative program since it would

have been needed to maintain the ozone standard.)

The other purpose that requiring the full-approval of a part D NSR

program might serve would be to ensure that NSR would become a

contingency provision in the maintenance plan required for these areas

by section 107(d)(3)(E)(iv) and 175A(d). These provisions require that,

for an area to be redesignated to attainment, it must receive full

approval of a maintenance plan containing ``such contingency provisions

as the Administrator deems necessary to assure that the State will

promptly correct any violation of the standard which occurs after the

redesignation of the area as an attainment area. Such provisions shall

include a requirement that the State will implement all measures with

respect to the control of the air pollutant concerned which were

contained in the SIP for the area before redesignation of the area as

an attainment area.'' Based on this language, it is apparent that

whether an approved NSR program must be included as a contingency

provision depends on whether it is a ``measure'' for the control of the

pertinent air pollutants.

As the USEPA noted in the proposal regarding this redesignation

request, the term ``measure'' is not defined in section 175A(d) and

Congress utilized that term differently in different provisions of the

Act with respect to the PSD and NSR permitting programs. For example,

in section 110(a)(2)(A), Congress required that SIPs to include

``enforceable emission limitations and other control measures, means,

or techniques * * * as may be necessary or appropriate to meet the

applicable requirements of the Act.'' In section 110(a)(2)(C), Congress

required that SIPs include ``a program to provide for the enforcement

of the measures described in subparagraph (A), and regulation of the

modification and construction of any stationary source within the areas

covered by the plan as necessary to assure that NAAQS are achieved,

including a permit program as required in parts C and D.'' (Emphasis

added.) If the term measures as used in section 110(a)(2) (A) and (C)

had been intended to include PSD and NSR there would have been no point

to requiring that SIPs include both measures and preconstruction review

under parts C and D (PSD or NSR). Unless ``measures'' referred to

something other than preconstruction review under parts C and D, the

reference to preconstruction review programs in section 110(a)(2)(C)

would be rendered mere surplusage. Thus, in section 110(a)(2) (A) and

(C), it is apparent that Congress distinguished ``measures'' from

preconstruction review. On the other hand, in other provisions of the

Act, such as section 161, Congress appeared to include PSD within the

scope of the term ``measures.''

The USEPA believes that the fact that Congress used the undefined

term ``measure'' differently in different sections of the Act is

germane to this issue. This indicates that the term is susceptible to

more than one interpretation and that the USEPA has the discretion to

interpret it in a reasonable manner in the context of section 175A.

Inasmuch as Congress itself has used the term in a manner that excluded

PSD and NSR from its scope, the USEPA believes it is reasonable to

interpret ``measure,'' as used in section 175A(d), not to include NSR.

That this is a reasonable interpretation is further supported by the

fact that PSD, a program that is the corollary of part D NSR for

attainment areas, goes into effect in lieu of part D NSR.2 This

distinguishes NSR from other required programs under the Act, such as

inspection and maintenance and Reasonably Available Control Technology

programs, which have no corollary for attainment areas. Moreover, the

USEPA believes that those other required programs are clearly within

the scope of the term ``measure.''

\2\The U.S. EPA is not suggesting that NSR and PSD are

equivalent, but merely that they are the same type of program. The

PSD program is a requirement in attainment areas and designed to

allow new source permitting, yet contains adequate provisions to

protect the NAAQS. If any information including preconstruction

monitoring, indicates that an area is not continuing to meet the

NAAQS after redesignation to attainment, 40 CFR part 51 appendix S

(Interpretive Offset Rule) or a 40 CFR 51.165(b) program would

apply. The USEPA believes that in any area that is designated or

redesignated as attainment under section 107, but experiences

violations of the NAAQS, these provisions should be interpreted as

requiring major new or modified sources to obtain VOC emission

offsets of at least a 1:1 ratio, and as presuming that 1:1 NOX

offsets are necessary. See October 14, 1994 memorandum from Mary

Nichols entitled Part D New Source Review (part D NSR) Requirements

for Areas Requesting Redesignation to Attainment.

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The USEPA's logic in treating part D NSR in this manner does not

mean that other applicable part D requirements, including those that

have been previously met and previously relied upon in demonstrating

attainment, could be eliminated without an analysis demonstrating that

maintenance would be protected. As noted above, Ohio has demonstrated

that maintenance would be protected with PSD requirements in effect,

rather than those of part D NSR. Thus, the USEPA is not permitting part

D NSR to be removed without a demonstration that maintenance of the

standard will be achieved. Moreover, the USEPA has not amended its

policy with respect to the conversion of other SIP elements to

contingency provisions, which provides that they may be converted to

contingency provisions only upon a showing that maintenance will be

achieved without them being in effect. Finally, as noted above, the

USEPA believes that the NSR requirement differs from other

requirements, and does not believe that the rationale for the NSR

exception extends to other required programs.

The position taken in this action is consistent with the USEPA's

current national policy. That policy permits redesignation to proceed

without otherwise required NSR programs having been fully approved and

converted to contingency provisions provided that the area

demonstrates, as has been done in this case, that maintenance will be

achieved with the application of PSD rather than part D NSR.

(11) Comment: Permitting Toledo, Ohio to defer adoption and

implementation of I/M according to the revised USEPA I/M Program

Requirements Rule published on January 5, 1995, at 60 FR 1735

frustrates meaningful control of vehicle emissions.

(11) Response: While the revised I/M rule (60 FR 1735) allows the

I/M program to be placed in the contingency plan, there are still

ongoing emission reductions in the area due to the FMVECP. The

maintenance demonstration shows that the mobile source emissions are

expected to decrease from 102,560 pounds of volatile organic compounds

per day in 1996 to 57,412 pounds per day in 2005. The mobile source

emissions of oxides of nitrogen are expected to decrease from 65,128

pounds per day in 1996 to 49,374 pounds per day in 2005. These

[[Page 39120]]

are significant reductions and are expected to ensure that the area

maintains the ozone standard. Thus, deferral of the I/M program does

not frustrate meaningful control of vehicle emissions.

(12) Comment: One commentor stated that Toledo illegally obtained a

waiver from NOX conformity requirements under a section 182(f)

submittal, and because of it NOX conformity requirements should be

incorporated into Toledo's maintenance plan. The commentor notes that a

NOX waiver for conformity purposes can only be issued under

section 182(b)(1)(A). Also, not requiring Toledo, Ohio to submit

general and transportation conformity SIP revisions with the

redesignation request removes any incentive for Toledo, Ohio to adopt

procedures for preventing emissions from transportation and federal

construction projects contributing to ozone pollution levels. Another

commentor stated that land use and transportation controls under the

Clean Air Act will not be taken, resulting in increased pollution, if

these requirements are changed.

(12) Response: Ohio is currently developing transportation and

conformity SIP revisions. The USEPA expects to receive these submittals

this summer. Maintenance areas are subject to the transportation and

general conformity rules and therefore, must submit the SIP revisions

required by these rules. The approval of these submissions was not

required for the approval of the redesignation request because the

redesignation request was submitted before the transportation and

general conformity SIPs were due and were, therefore, not applicable

requirements for purposes of evaluating this redesignation. Upon

redesignation, the transportation conformity rule requires that a

regional emission analyses of proposed transportation plans and

programs for the Toledo area demonstrate that emissions from the future

transportation system are below the motor vehicle emission budget

established in the maintenance plan and lower than 1990 levels. The

general conformity rule will also apply to the Toledo area after

redesignation.

With respect to conformity, USEPA's conformity rules34

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 only of the

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

baseline'' tests. 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 reiterated its

view 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. USEPA is in the process of

amending the conformity rule to remedy the problem.

\3\``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).

\4\``Determining Conformity of General Federal Actions to State

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

FR 63214).

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

An issue concerning the appropriate Act authority for granting

transportation-related NOX waivers has been raised by several

commentors. NOX exemptions are provided for in two separate parts

of the Act, section 182(b)(1) and section 182(f). These commentors

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

[[Page 39121]]

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. 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.

III. Final Rulemaking Action

The USEPA approves the redesignation of the Toledo, Ohio ozone area

to attainment and the section 175A maintenance plan as a revision to

the Ohio SIP. The State of Ohio has satisfied all of the necessary

requirements of the Act.

USEPA finds that there is good cause for this redesignation to

become effective immediately upon publication because a delayed

effective date is unnecessary due to the nature of a redesignation to

attainment, which exempts the area from certain Clean Air Act

requirements that would otherwise apply to it. The immediate effective

date for this redesignation is authorized under both 5 U.S.C 553(d)(1),

which provides that rulemaking actions may become effective less than

30 days after publication if the rule ``grants or recognizes an

exemption or relieves a restriction'' and section 553(d)(3), which

allows an effective date less than 30 days after publication ``as

otherwise provided by the agency for good cause found and published

with the rule.''

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

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 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 has exempted

this regulatory action from Executive Order 12866 review.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, USEPA may certify that the rule will not have a

significant economic 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.

The SIP approvals under section 100 and subchapter I, part D, of

the Act do not create any new requirements, but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP-approval does not impose any new requirements, I certify

that it does not have a significant impact on 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 (1976).

Redesignation of an area to attainment under section 107(d)(3)(E)

of the Clean Air Act does not impose any new requirements on small

entities. Redesignation is an action that affects the status of a

geographical area and does not impose any regulatory requirements on

sources. The Administrator certifies that the approval of the

redesignation request will not affect a substantial number of small

entities.

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by October 2, 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)).

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

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

USEPA must undertake various actions in association with proposed or

final rules that include a Federal mandate that may result in estimated

costs of $100 million or more to the private sector, or to State,

local, or tribal governments in the aggregate.

Through submission of the state implementation plan or plan

revisions approved in this action, the State and any affected local or

tribal governments have elected to adopt the program provided for under

section 175A of the Clean Air Act. The rules and commitments being

proposed for approval in this action may bind State, local and tribal

governments to perform certain actions and also may ultimately lead to

the private sector being required to perform certain duties. To the

extent that the rules and commitments being proposed for approval by

this action will impose or lead to the imposition of any mandate upon

the State, local or tribal governments either as the owner or operator

of a source or as a regulator, or would impose or lead to the

imposition of any mandate upon the private sector, EPA's action will

impose no new requirements; such sources are already subject to these

requirements under State law. Accordingly, no additional costs to

State, local, or tribal governments, or to the private sector, result

from this action. The USEPA has also determined that this action does

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

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

or to the private sector.

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Motor vehicle

pollution, Ozone, Reporting and recordkeeping requirements, Volatile

organic compounds.

40 CFR Part 81

Air pollution control, Environmental protection, National parks,

and Wilderness areas.

[[Page 39122]]

Dated: July 5, 1995.

David A. Ullrich,

Acting Regional Administrator.

Title 40 of the Code of Federal Regulations, chapter I, parts 52

and 81, are amended as follows:

PART 52--[AMENDED]

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

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

2. Section 52.1870 is amended by adding a new paragraph (c)(105) to

read as follows:

Sec. 52.1870 Identification of plan.

* * * * *

(c) * * *

(105) On September 17, 1993, the Ohio Environmental Protection

Agency requested the redesignation of Lucas and Wood Counties to

attainment of the National Ambient Air Quality Standard for ozone. To

meet the redesignation criteria set forth by section 107(d)(3)(E) (iii)

and (iv), Ohio credited emissions reductions from the enclosure of the

``oily ditch'' at the British Petroleum Refinery in Oregon, Ohio. The

USEPA is approving the Director's Finding and Order which requires the

enclosure of the ``oily ditch'' into the SIP for Lucas and Wood

Counties.

(i) Incorporation by reference.

(A) letter dated June 2, 1994, from Donald R. Schregardus,

Director, Ohio Environmental Protection Agency, to Valdas Adamkus,

Regional Administrator, USEPA, Region 5, and one enclosure which is the

revised Director's Final Findings and Orders in the matter of BP Oil

company, Toledo Refinery, 4001 Cedar Point Road, Oregon, Ohio, Fugitive

Emissions from the Refinery Waste Water System ``Oily Ditch'',

effective June 2, 1994.

3. Section 52.1885 is amended by adding paragraph (b)(5) to read as

follows:

Sec. 52.1885 Control Strategy: Ozone.

* * * * *

(b) * * *

(5) Lucas and Wood Counties.

* * * * *

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

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

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

2. Section 81.336 is amended by revising the entry in the ozone

table for Toledo to read as follows:

Sec. 81.336 Ohio.

* * * * *

Ohio-Ozone

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

Designation Classification

Designated area ------------------------------------------------------------------------------------------

Date\1\ Type Date\1\ Type

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

* * * * * *

*

Toledo area:

Lucas County..... August 1, 1995....... Attainment...........

Wood County...... August 1, 1995....... Attainment...........

* * * * * *

*

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

* * * * *

\1\This date is November 15, 1990, unless otherwise noted.

[FR Doc. 95-18510 Filed 7-31-95; 8:45 am]

BILLING CODE 6560-50-P