Approval and Promulgation of Implementation Plan; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH90-1-7255a; FRL-5500-5]

Approval and Promulgation of Implementation Plan; Ohio

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: This document conditionally approves a revision to the Ohio

State Implementation Plan (SIP) to meet the requirements of the USEPA

transportation conformity rule. The transportation conformity SIP

revisions enable the State of Ohio to implement and enforce the Federal

transportation conformity requirements at the State or local level. The

Federal transportation conformity rule has been amended twice since the

original 1993 publication, and the Ohio SIP will need to be amended to

accommodate the changes. The purpose of transportation conformity is to

assure that transportation plans, programs and projects, approved by

the United States Department of Transportation conform to the purpose

of the SIP to attain and maintain the public health based air quality

standards. The rationale for this conditional approval and other

information are provided in this document.

DATES: This ``direct final'' rule is effective on July 15, 1996, unless

USEPA receives adverse or critical comments by June 17, 1996. If the

effective date is delayed, timely notice will be published in the

Federal Register.

Addresses: Copies of the SIP revision are available for inspection at

the following address: (It is recommended that you telephone Patricia

Morris at (312) 353-8656 before visiting the Region 5 Office.)

United States Environmental Protection Agency, Region 5, Air and

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

Written comments should be sent to: J. Elmer Bortzer, Chief,

Regulation Development Section, Air Programs Branch, (AR-18J), 77 West

Jackson Boulevard, Chicago, Illinois 60604.

[[Page 24703]]

FOR FURTHER INFORMATION CONTACT: Patricia Morris, Regulation

Development Section (AR-18J), Air Programs Branch, Air and Radiation

Division, United States Environmental Protection Agency, Region 5, 77

West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)

353-8656.

SUPPLEMENTARY INFORMATION:

I. Background

Conformity provisions first appeared in the Clean Air Act (CAA)

amendments of 1977 (Public Law 95-95). Although these provisions did

not specifically define conformity, they provided that no Federal

department could engage in, support in any way or provide financial

assistance for, license or permit, or approve any activity which did

not conform to a SIP which has been approved or promulgated.

The CAA Amendments of 1990 expanded the scope and content of the

conformity provisions by defining conformity to an implementation plan.

Conformity is defined in section 176(c) of the CAA as conformity to the

SIP's purpose of eliminating or reducing the severity and number of

violations of the National Ambient Air Quality Standards and achieving

expeditious attainment of such standards, and that such activities will

not: (1) cause or contribute to any new violation of any standard in

any area, (2) increase the frequency or severity of any existing

violation of any standard in any area, or (3) delay timely attainment

of any standard or any required interim emission reductions or other

milestones in any area.

The CAA requires USEPA to promulgate criteria and procedures for

determining conformity of all Federal actions (transportation and

general) to a SIP (42 U.S.C. 7506(c)). The USEPA published the final

transportation conformity rules in the Federal Register on November 24,

1993, and codified them at 40 CFR part 51, subpart T--Conformity to

State or Federal Implementation Plans of Transportation Plans,

Programs, and Projects Developed, Funded or Approved Under Title 23

U.S.C. or the Federal Transit Act. The conformity rules require the

States and local agencies to adopt and submit a transportation

conformity SIP revision to the USEPA not later than November 24, 1994

(40 CFR 51.396). This document does not address the conformity

requirements of general Federal actions as required pursuant to 40 CFR

part 51, subpart W. USEPA intends to take action on these requirements

in a separate document.

The federal transportation conformity rule was subsequently amended

on August 8, 1995, and again on November 14, 1995. The November 14,

1995, amendments allow 12 months from November 14, 1995, or until

November 14, 1996 for States to submit a transportation conformity SIP

revision consistent with these amendments. The submittal approved in

this document is not consistent with these November 14, 1995, federal

conformity amendments. However, Ohio has committed to submit another

transportation conformity SIP revision consistent with these recent

amendments by November 14, 1996. The OEPA has formalized their

commitment in a letter dated April 1, 1996, incorporated herein by

reference.

II. Evaluation of State Submittal

Pursuant to the requirements under section 176(c)(4)(C) of the

Clean Air Act, the Ohio Environmental Protection Agency (OEPA)

submitted a SIP revision to the USEPA on August 17, 1995. This

submittal was found to be complete on October 5, 1995. In its

submittal, the State adopted State rules to meet the requirements of 40

CFR part 51, subpart T, as published on November 24, 1993.

Transportation conformity is required for all nonattainment or

maintenance areas for any transportation related criteria pollutants

(40 CFR 51.394 (b)).

The State of Ohio currently has 28 counties which are ozone

nonattainment or ozone maintenance areas. The areas are identified as

follows: Toledo area (Lucas and Wood Counties), Cleveland/Akron area

(Lorain, Cuyahoga, Medina, Summit, Portage, Geauga, Lake, and Ashtabula

Counties), Youngstown area (Trumbull and Mahoning Counties), Canton

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

Cincinnati (Hamilton, Butler, Clermont, and Warren Counties), Dayton

(Preble, Montgomery, and Greene Counties), Springfield (Miami and Clark

Counties), and Clinton County, and Columbiana County, and Jefferson

County. In addition to the ozone nonattainment and maintenance areas,

Cuyahoga County is also maintenance for carbon monoxide.

Section 51.396 of the final transportation conformity rule requires

that the majority of the Federal rules be incorporated in verbatim

form, with only a few exceptions. In addition, the rule states that the

State rules can not be more stringent than the Federal rules unless the

conformity provisions ``apply equally to non-Federal as well as Federal

entities'' (40 CFR 51.396(a)).

The OEPA held a public hearing on the transportation conformity

submittal on May 25, 1995. One comment was received by the OEPA and was

addressed in the submittal.

Consultation

The Federal rules require the SIPs to include processes and

procedures for interagency consultation among the Federal, State, and

local agencies and resolution of conflicts in accordance with the

criteria set forth in 40 CFR 51.402. Specifically, to implement the

requirements of Sec. 51.402, the SIP revisions must include processes

and procedures to be undertaken by Metropolitan Planning Organizations

(MPOs), State Department of Transportation (DOT), and the United States

Department of Transportation (USDOT) with State and local air quality

agencies and USEPA before making conformity determinations, and by

State and local air quality agencies and USEPA with MPOs, State

Department of transportation, and USDOT in developing applicable SIPs.

The consultation portion of the SIP is among the exceptions which

are not required to be incorporated in verbatim form. The consultation

section requires State and local (where applicable) air quality

agencies to develop their own consultation rules.

In order to satisfy these consultation requirements, the OEPA

developed consultation procedures by using the requirements of 40 CFR

51.402 and 23 CFR 450 (the metropolitan planning regulations), and by

integrating the local procedures and processes into the final

consultation rule. The consultation procedures outline the roles and

responsibilities of each of the responsible agencies for the process

for determining conformity. The consultation procedures further

document the process of conflict resolution in the transportation

conformity process, implementing the public participation process, and

the documentation to be submitted in a conformity determination. The

conformity SIP revision submitted has adequately addressed all

provisions of 40 CFR 51.402 and has met the USEPA SIP requirements.

Verbatim Sections and Amendments to the Federal Rule

Section 51.396 of transportation conformity rule states that to be

approved by the USEPA, the SIP revision submitted to USEPA must

``address all requirements of this subpart in a manner which gives them

full legal effect''. In particular, the revision shall incorporate the

provisions of the following sections in verbatim form, except insofar

as needed to give

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effect to a stated intent in the revision to establish criteria and

procedure more stringent than the requirements stated in these

sections: 51.392, 51.394, 51.398, 51.400, 51.404, 51.410, 51.412,

51.414, 51.416, 51.418, 51.420, 51.422, 51.424, 51.426, 51.428, 51.430,

51.432, 51.434, 51.436, 51.438, 51.440, 51.442, 51.444, 51.446, 51.448,

51.450, 51.460, and 51.462.'' The State of Ohio submittal incorporated

all of the above sections in verbatim form following the November 24,

1993, version of the Federal rules, with only clarifying changes.

It should be noted, however, that on February 8, 1995, USEPA

promulgated an interim final rule that amended certain provisions of 40

CFR 51.448 in the Federal transportation conformity rules. The rule was

made permanent with an August 7, 1995, final rule (60 FR 40098) after

the USEPA took public comment on the interim final rule. On November

14, 1995, the USEPA finalized a second set of amendments to the

conformity rule. It has not been USEPA's policy to approve sections

into the SIP where major inconsistencies exist between the submittal

and the final transportation conformity rule in terms of the portions

that are required to be verbatim. In some cases where the difference is

minor and has no weakening effect, the USEPA can approve the State

rule. However, in cases where the State rule is more stringent, Sec.

51.396 requires that the ``State's conformity provisions apply equally

to non-Federal as well as Federal entities.'' The second set of

amendments allows States until November 14, 1996, to revise the State

conformity SIP to comply with the Federal changes.

The USEPA believes that the OEPA has complied with the SIP

requirements and has adopted the Federal rules which were in effect at

the time that the transportation conformity SIP was due to the USEPA.

The OEPA in no way intentionally adopted rules that were not in

verbatim form or more stringent than the Federal rule. Therefore, it

would be unreasonable to discredit the agency's good faith effort in

submitting the transportation conformity SIP and disapprove the State's

SIP. The OEPA will be required to submit a SIP revision in the near

future to incorporate the amended portions of the Federal

transportation conformity rules and has committed to do so in its April

1, 1996, letter.

The first set of amendments (60 FR 40098-60 FR 40101) significantly

revises Sec. 51.448, to align the timing of the transportation

improvement program (TIP) lapsing provisions in cases of state air

quality planning failures with the imposition of Clean Air Act highway

sanctions. In the case of a conformity lapse, transportation projects

could not be approved or funded by the USDOT unless they were listed as

exempt. A conformity lapse is similar to a highway sanction in that it

can stop highway projects from being funded. The Ohio rule has not yet

incorporated this change and therefore is different and in this case,

more stringent than the current Federal transportation conformity rule.

The second set of amendments in 60 FR 57179, make the following

changes to the Federal conformity rule:

(1) transportation control measures (TCMs) from an approved SIP can

proceed during a conformity lapse;

(2) further amends Sec. 51.448 to align conformity lapses with the

date of application of CAA highway sanctions for any failure to submit

or submission of an incomplete control strategy SIP;

(3) extends the duration of the grace period for areas which must

determine conformity to a submitted control strategy implementation

plan;

(4) establishes a grace period before which transportation plan and

program conformity must be determined in newly designated nonattainment

areas; and

(5) corrects (or clarifies) the nitrogen oxides provisions of the

transportation conformity rule consistent with the CAA so that a

NOX budget test is required in areas which have been granted a

NOX waiver (60 FR 57179).

These changes result in the Federal rule and the Ohio rule being

different in sections that are required to be in verbatim form.

However, the USEPA believes that conditional approval is appropriate in

this situation. Although these changes may appear extensive, the

difference from the Ohio rules should have little effect during the

time period before the State amends the State conformity rules. Each of

the changes are discussed individually below:

(1) TCM's in the approved SIPs: Ohio does not currently have TCMs

in the approved SIP for the Ohio nonattainment and maintenance areas.

Therefore, this change to the Federal rule will have no effect on the

Ohio areas. However, any future selected contingency measures which may

include TCMs would not be able to proceed in the case of a conformity

lapse. If Ohio changes its rules by November 14, 1996, there should be

very little effect on the Ohio areas.

(2) Lapsing Provisions: The extensive changes to the Federal rule

in 40 CFR 51.448 make the Ohio rule more stringent than the Federal

rule, as amended. Section 51.448 deals with the time period before a

nonattainment area has an approved maintenance plan (the transition

from the ``interim period'' to the ``control strategy period''). Most

of the Ohio areas have approved maintenance plans and are now in the

control strategy period, and thus, are not affected by this section.

The only area which is still in the interim period is the Cincinnati

ozone nonattainment area. The Cincinnati area currently has a complete

15 percent rate of progress plan. Thus, this section would apply to the

Cincinnati area only if the 15 percent plan or other control strategy

plan were disapproved. Section 51.448(g)(2) applies to moderate ozone

nonattainment areas using photochemical dispersion modeling to

demonstrate reductions ``even if the area has submitted the 15 percent

emission reduction demonstration''. However, the USEPA has not started

any sanctions clocks due to a State's failure to submit as stated in

Sec. 51.448(b)(1) and therefore, the Cincinnati area is not a candidate

for a conformity lapse under this section, nor under OAC 3745-101-13,

at least not within the next 12 months.

The Federal conformity rule allows the State rule to be more

stringent when the State rule applies equally to non-Federal projects.

However, the Ohio rules do not extend to non-Federal projects. In the

case of a conformity lapse, transportation plans, programs and projects

could not be approved by USDOT. In some cases, non-Federal projects

which are regionally significant and need a Federal action such as a

National Environmental Protection Act (NEPA) decision would also be

unapproved because of the need for a Federal action. In other cases,

the non-Federal project could possibly proceed in the event of a lapse.

In the case of Texas (60 FR 56244) and New Mexico (60 FR 56241), the

Federal approval of State rules did not include the section

corresponding to the Federal Sec. 51.448. If USEPA were to approve this

State provision, Ohio would have a transportation conformity rule more

stringent than other areas of the nation. However, OEPA has committed

to submit a SIP revision to address this issue by November 14, 1996.

(3) Extending the grace period for conformity to a submitted

control strategy SIP: Extending the grace period for areas to determine

conformity to a control strategy SIP is not expected to significantly

affect the Ohio nonattainment and maintenance areas. Through excellent

consultation procedures, the Ohio areas have participated in the

control strategy mobile source budget development and it is USEPA's

evaluation that the areas

[[Page 24705]]

are aware of the need to show conformity to the budget where

appropriate.

(4) Conformity for newly designated nonattainment areas: This

change establishes a grace period for newly designated nonattainment

areas. There are no newly designated nonattainment areas in the State

of Ohio, nor does the USEPA anticipate newly designated nonattainment

areas in the near future.

(5) Conformity to a NOX budget in areas with a NOx

waiver: The correction (or clarification) of the need to show

conformity to the NOX mobile source budget in areas which have

NOX waivers is important to the many areas in Ohio which have been

granted NOX waivers. The Ohio conformity consultation process has

already confirmed that the correct interpretation of the rule is to

require a NOX budget test in these areas. Therefore, although this

clarification is important, the clarification in Ohio has been

accomplished through the consultation process.

Therefore, the USEPA believes that the Ohio rules can be

conditionally approved based on the State's commitment letter dated

April 1, 1996, and the above analysis.

III. USEPA Action

The USEPA conditionally approves the Ohio transportation conformity

SIP revision. This conditional approval is based, in part, on the

State's commitment, submitted in a letter on April 1, 1996, to submit

revised transportation conformity rules to incorporate the two

amendments to the federal transportation conformity regulations. The

State of Ohio committed to revise its transportation conformity rules

by November 14, 1996. If the State ultimately fails to meet its

commitment to meet these requirements within one year of final

conditional approval, then USEPA's action for the State's requested SIP

revision will automatically convert to a final disapproval. This

conditional approval is consistent with USEPA's authority under section

110(k)(4) of the Act.

Because USEPA considers this action noncontroversial and routine,

we are approving it without prior proposal. This action will become

effective on July 15, 1996. However, if we receive adverse comments by

June 17, 1996, EPA will publish a document that withdraws this action.

IV. Miscellaneous

A. Applicability to Future SIP Decisions

Nothing in this action should be construed as permitting, allowing

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

SIP. The EPA shall consider each request for revision to the SIP in

light of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

B. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary D. Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from E.O. 12866 review.

C. Regulatory Flexibility

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.

This approval does not create any new requirements. Therefore, I

certify that this action does not have a significant impact on any

small entities affected. Moreover, due to the nature of the Federal-

State relationship under the Act, preparation of the regulatory

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of the State action. The Act forbids USEPA to base its

actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256-66 (1976).

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

USEPA must prepare a budgetary impact statement to accompany any

proposed or final rule that includes a Federal mandate that may result

in estimated costs to State, local, or tribal governments in the

aggregate; or to the private sector, of $100 million or more. Under

section 205, the USEPA must select the most cost-effective and least

burdensome alternative that achieves the objectives of the rule and is

consistent with statutory requirements. Section 203 requires the USEPA

to establish a plan for informing and advising any small governments

that may be significantly or uniquely impacted by the rule.

The USEPA has determined that the approval action promulgated today

does not include a Federal 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.

This Federal action approves pre-existing requirements under State

or local law, and imposes no new Federal requirements. Accordingly, no

additional costs to State, local, or tribal governments, or the private

sector, result from this action.

D. Petitions for Judicial Review

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 July 15, 1996. 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, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Ozone, Transportation conformity, Transportation-air quality planning,

Volatile organic compounds.

Dated: April 19, 1996.

Valdas V. Adamkus,

Regional Administrator.

40 CFR part 52, 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 52.1919 is amended by adding and reserving paragraph

(a)(2) and by adding paragraph (a)(3) to read as follows:

Sec. 52.1919 Identification of plan-conditional Approval.

(a)* * *

(3) Conditional Approval--On August 17, 1995, the Ohio

Environmental Protection Agency submitted a revision to the State

Implementation Plan. The

[[Page 24706]]

submittal pertained to a plan for the implementation of the federal

transportation conformity requirements at the State or local level in

accordance with 40 CFR part 51, subpart T--Conformity to State or

Federal Implementation Plans of Transportation Plans, Programs, and

Projects Developed, Funded or Approved Under Title 23 U.S.C. or the

Federal Transit Act. This conditional approval is based, in part, on

the State's commitment, submitted in a letter on April 1, 1996, to

submit revised transportation conformity rules to incorporate the two

amendments to the federal transportation conformity regulations. The

State of Ohio committed to revise its transportation conformity rules

by November 14, 1996. If the State ultimately fails to meet its

commitment to meet these requirements within one year of final

conditional approval, then USEPA's action for the State's requested SIP

revision will automatically convert to a final disapproval.

(i) Incorporation by reference. August 1, 1995, Ohio Administrative

Code Chapter 3745-101, effective August 21, 1995.

* * * * *

[FR Doc. 96-12357 Filed 5-15-96; 8:45 am]

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