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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH78-2-7116; FRL-5440-4]

Approval and Promulgation of Implementation Plans and Designation

of Areas for Air Quality Planning Purposes; Ohio

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: The USEPA is approving the Ohio Environmental Protection

Agency's (OEPA) request for redesignation of Clinton County, Ohio from

transitional ozone nonattainment to attainment. The USEPA is also

approving the maintenance plan and emissions inventory for Clinton

County as a revision to Ohio's State Implementation Plan (SIP) for

ozone. Clinton County's monitoring data shows that it is already

meeting the ozone air quality standard. In addition, in order to meet

USEPA redesignation requirements the State must continue to maintain

the ozone National Ambient Air Quality Standards for at least ten years

after the redesignation, or the year 2006. Thus, the State has

developed a maintenance plan which includes specific contingency

measures to assure continued compliance with the ozone air quality

standard. Any monitored violation in Clinton County will trigger these

contingency measures to reduce ozone levels. In addition, an ambient

air monitor will remain in operation to verify future attainment status

of the area.

EFFECTIVE DATE: This final rule is effective on March 21, 1996.

ADDRESSES: Copies of the redesignation request, public comments on the

rulemaking, and other materials relating to this rulemaking are

available for inspection at the following address: (It is recommended

that you telephone Fayette Bright at (312) 886-6069, before visiting

the Region 5 Office.) United States Environmental Protection Agency,

Region 5, Air and Radiation Division, 77 West Jackson Boulevard (AR-

18J), Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Fayette Bright, Air Programs Branch,

Regulation Development Section (AR-18J), United States Environmental

Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6069.

SUPPLEMENTARY INFORMATION:

I. Background

On November 15, 1994, the OEPA submitted to the USEPA a request for

redesignation of Clinton County, Ohio from transitional nonattainment

1 to attainment for ozone, and a maintenance plan designed to

assure continued attainment of the national ambient air quality

standards for ozone in the Clinton County area. On February 24, 1995,

the OEPA submitted additional information to the USEPA regarding the

State public hearing and responses to public comments received

regarding the redesignation and the maintenance plan. The redesignation

request was supported by technical information demonstrating that the

requirements of Section 107(d)(3)(E) of the Clean Air Act (Act) were

met. On May 5, 1995, a document was published in the Federal Register

(60 FR 22337) which proposed approval of the redesignation request the

maintenance plan, and the emissions inventory.

\1\ As stated in the proposed rule, Clinton County did not

experience a violation during the three year period from January 1,

1987 through December 31, 1989. Therefore, pursuant to Section

185(A) of the Clean Air Act, it was designated a transitional

nonattainment area for ozone. Under this classification, the

requirements of Subpart 2 of Part D of Title 1 of the CAA for ozone

nonattainment areas were suspended for Clinton County until December

31, 1991. See 60 FR 22337 (May 5, 1995). After December 31, 1991,

the requirements were no longer suspended, however, Subpart 2 did

not contain any new requirements that would apply to a transitional

area that was not classified under Section 181(a) as marginal or

above.

[[Page 11561]]

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II. Summary of Proposed Rulemaking

The proposed rulemaking detailed how the State submittal fulfilled

the redesignation requirements of the Act. Specifically, Section

107(d)(3)(E) of the Act provides for redesignation if: (i) The

Administrator determines that the area has attained the National

Ambient Air Quality Standards (NAAQS); (ii) the Administrator has fully

approved the applicable implementation plan for the area under Section

110(k); (iii) the Administrator determines 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; (iv) the Administrator has fully

approved a maintenance plan for the area as meeting the requirements of

Section 175(A); (v) the State containing such area has met all

requirements applicable to the area under Section 110 and Part D. The

USEPA also provided guidance on redesignation in the General Preamble

for the Implementation of Title I of the Clean Air Act Amendments of

1990, 57 FR 13498 (April 16, 1992), supplemented at 57 FR 18070 (April

28, 1992) and in three key memoranda which were cited in the May 5,

1995 Federal Register notice. See 60 FR 22337. The following discussion

expands and clarifies the analysis made in the proposed rule as to how

the State has fulfilled the Act's redesignation requirements for

Clinton County.

A. The Area Must Have Attained the Ozone NAAQS.

There is a 2-step process to determining whether an area has

violated the ozone NAAQS which both tallies the number of monitored

exceedances and accounts for any time the monitor was not operating or

operating improperly. The first step is to determine the number of

expected exceedances for each year of the last three years from each

monitoring site. The second step is to determine the area's average

expected exceedance rate over the most recent three year period.

Pursuant to 40 C.F.R. 50.9, this rate cannot exceed 1.0.

The OEPA submitted monitoring data for Clinton County for the years

1977 through 1994. The monitor recorded 5 exceedances of the ozone

NAAQS in 1983. This resulted in an average expectant exceedance rate of

greater than 1.0. Consequently, Clinton County was found to be in

violation of the NAAQS. On November 15, 1990, Clinton County retained

its nonattainment designation and was classified as a transitional area

based on monitoring data for 1987, 1988 and 1989. Clinton County

exceeded the NAAQS for ozone for the years 1988, 1989, and 1993, during

which there were only single exceedances during each of these years. In

addition, monitoring data shows that no exceedances were monitored

during 1995. Because Clinton County had only one exceedance during the

last three years of complete monitoring data (1993-1995), the average

expected exceedance rate is 0.33 per year, which falls below the

average expected exceedance rate of 1.0. Thus, Clinton County currently

meets the ozone NAAQS and has been in attainment since 1986.

B. The Area Must Have a Fully Approved State Implementation Plan (SIP)

Under Section 110(k)

Because Clinton County is classified as a transitional area for

ozone, it is only required to submit an emissions inventory as a SIP

revision.\2\ This final rulemaking also approves the emissions

inventory for the Clinton County area which has been included as part

of the maintenance plan.\3\ Consequently, the area has satisfied the

second requirement.

\2\ September 4, 1992 memorandum issued by John Calcagni,

Director, Air Quality Management Division, entitled ``Procedures for

Processing Requests to Attainment''.

\3\ The September 4, 1992 memorandum issued by John Calcagni,

Director, Air Quality Management Division, entitled, ``Procedures

for Processing Requests to Attainment,'' allows approval action on

the SIP elements and the redesignation request to occur

simultaneously.

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C. The Improvement in Air Quality Must Be Due to Permanent and

Enforceable Reductions in Emissions Resulting From Implementation of

the SIP and Applicable Federal Air Pollutant Control Regulations and

Other Permanent and Enforceable Reductions

The State of Ohio did not rely on new SIP measures to meet this

requirement because there were no new emission reduction programs

required by the CAA to be approved into the SIP. Instead, the State

demonstrated that the improvement in air quality was due to the Federal

Motor Vehicle Emissions Control Program (FMVCP) required at 40 Code of

Federal Regulations (CFR) Part 86 and the lower fuel volatility

requirements at 40 CFR Part 80. Both of these requirements are

permanent measures enforceable by the Federal government.

The State has also shown that in Clinton County, actual total VOC

emissions were reduced by approximately two (2) tons per day from 1990

to 1993. The State attributes these results exclusively to reductions

in mobile source emissions. The mobile source emission reductions were

the result of the lower fuel volatility program and the FMVCP.

Consequently, the third requirement has also been met.

D. The Area Must Have a Fully Approved Maintenance Plan Meeting the

Requirements of Section 175(A)

The OEPA has met the applicable requirements by submitting a

maintenance plan consisting of emission inventories for area, point,

and mobile sources of Volatile Organic Compounds (VOC), Nitrogen Oxides

(NOX), and Carbon Monoxide (CO) emissions. This maintenance plan

also includes a contingency plan with defined measures to be

implemented in accordance with a specified schedule, as presented in

Section II. D of the May 5, 1995 proposed rule. Additionally, any

monitored violation in Clinton County would also trigger contingency

measures in the counties comprising the Cincinnati moderate

nonattainment area. (The State has also developed rules and an

implementation plan to place a program in operation in the event a

violation in any of these areas occur).

The current RVP requirement in the State of Ohio is 9.0 pounds per

square inch (psi).\4\ There is a 1 psi waiver available for retailers

and blenders who use ethanol as an octane enhancer/additive. This

waiver would still be available with the State's low-RVP program in the

event it is implemented. The low-RVP program and other measures on

Ohio's list of contingency measures are new measures that are not

currently in place in the area.

\4\ Federal RVP requirements are found at 40 CFR Section 80.27.

As of the summer of 1992, gasoline RVP could not exceed 9.0 psi

during the months of May through September. There is a special

provision for fuels blended to a 10 volume percent ethanol. The

provision allows the RVP to exceed 9.0 psi up to 10.0 psi.

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E. The Area Must Have Met All Applicable Requirements Under Section 110

and Part D

Ohio has also met this requirement, as detailed in a discussion in

the May 5, 1995 Federal Register proposed approval of the redesignation

request at 60 FR 22343.

The proposed rulemaking also presented summary tables of VOC

emissions, CO emissions, and NOX emissions projections for Clinton

County. The tables for VOC and NOX are presented below.

[[Page 11562]]

Summary of VOC Emissions (tons/day)

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1990 base 1993 attain 1996 proj. 1999 proj. 2002 proj. 2006 proj.

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Point....................... 0.0 0.0 0.0 0.0 0.0 0.0

Area........................ 11.3 11.33 11.36 11.39 11.42 11.47

Mobile...................... 5.04 3.27 2.82 2.80 2.31 2.42

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Totals................ 16.34 14.60 14.18 14.19 13.73 13.89

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Summary of NOX Emissions (tons/day)

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1990 base 1993 attain 1996 proj. 1999 proj. 2002 proj. 2006 proj.

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Point....................... 0.0 0.0 0.0 0.0 0.0 0.0

Area........................ 1.62 1.63 1.64 1.64 1.65 1.66

Mobile...................... 4.80 4.19 3.69 3.65 3.13 3.25

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Totals................ 6.42 5.82 5.33 5.29 4.78 4.91

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The VOC and NOX emissions projected for the year 2006 in the

above tables are considered emission budgets for purposes of

transportation conformity. Section 176 of the CAA sets forth the

requirement that the federal government and metropolitan planning

organizations may not support transportation activities that do not

conform to the purpose of the SIP. This is generally known as

``transportation conformity.'' In the Maintenance Plan portion of the

SIP an emissions budget is established for certain areas. This budget

is the amount of emissions that the area must remain below in order to

maintain the ozone standard. Clinton County is designated as a

transitional nonattainment area that is generally downwind of the

Cincinnati Metropolitan area. The Clinton County area does not have any

major stationary sources of emissions and is considered a relatively

small source of emissions. In addition, the last violation of the ozone

NAAQS in Clinton County occurred in 1983.

Public Comment/USEPA Response

In response to USEPA's request for written comments on the proposed

rulemaking, USEPA received comments from the Miami Group of the Ohio

Chapter of the Sierra Club (the Miami Group). The Miami Group submitted

comments regarding the redesignation of both the Cincinnati and the

Clinton County areas.\5\ Because this final rulemaking only addresses

the redesignation of the Clinton County area, the following discussion

summarizes and responds only to the Miami Group's comments insofar as

they concerned the redesignation of the Clinton County area. USEPA will

respond to the Miami Group's comments regarding the redesignation of

the Cincinnati area in any final rulemaking regarding the redesignation

of the Cincinnati area.

\5\ USEPA's proposed rule in the May 5, 1995 Federal Register

notice at 60 FR 22343 addressed OEPA's request for both the

redesignation of the Ohio portion of the Cincinnati area and the

Clinton County area.

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Comment: The area has not yet proven that it has attained the

NAAQS. The NAAQS for ozone are not fully protective of the public

health and the environment. The area has reached attainment previously

only to be followed by violations. Additionally, the ozone monitoring

network may be insufficient and no consideration is given to downwind

areas.

Response: The current ozone standard was set to protect public

health. The OEPA has shown that the Clinton County area meets the

NAAQS, as described in both this final rulemaking and in the proposed

rulemaking published on May 5, 1995. In addition, the ozone monitoring

network has been determined by USEPA, to be representative of ambient

air concentrations of ozone in the Clinton County area. In addition,

the monitoring network will remain in operation after the redesignation

to attainment to verify the future attainment status of the area.

Finally, as stated in the proposed rule, the USEPA intends to

address the transport or downwind area issue through Section 110 of the

Act, based on a domain-wide modeling analysis. The domain-wide modeling

analysis involves modeling the eastern portion of the United States in

an effort to better understand what is needed in this region to reduce

the amount of transported ozone and ozone precursors such as volatile

organic compounds and oxides of nitrogen, so that the ozone NAAQS can

be achieved in all areas across the region. Section 110 of the CAA

requires that SIPs contain adequate provisions to prohibit sources or

emissions activities within the State from contributing to

nonattainment, or interfering with maintenance in any other state with

respect to the NAAQS. USEPA expects to use its authority under the CAA

to require states to revise their SIPs to meet this requirement.

Comment: The improvement in air quality is not due to permanent and

enforceable reductions in emissions. The lack of violations of the

ozone NAAQS may be due to voluntary controls. Increasing vehicle miles

travelled will result in increasing emissions, offsetting reductions

from the removal of older vehicles. There are inconsistencies in the

Vehicle Miles Traveled (VMT) and growth projections between the SIP,

the Transportation Improvement Program (TIP), and the redesignation

request.

Response: The State reasonably attributed improvement in air

quality to be primarily due to two Federal programs: the FMVCP and the

lower Reid Vapor Pressure (RVP) program, both of which are permanent

and Federally enforceable. The transportation projections were

calculated using methods consistent with USEPA guidance. The

differences in VMT growth projections are slight and do not affect the

approval of the redesignation package. The year 2006 total VOC emission

totals as detailed in this rulemaking set the budget for transportation

conformity purposes. While VMT is increasing in Clinton County, the

vehicles in the area are producing less pollution per vehicle due to

the FMVCP. This offsets the growth in VMT and results in less pollution

from the mobile sources sector. Emissions projections using USEPA's

mobile emissions model to estimate vehicle emissions combined with the

VMT projections for Clinton County confirm this conclusion.

Comment: The transportation modeling and emission analysis is

flawed and makes it impossible for the maintenance plan to succeed.

Changes in VMT brought about by changes in highway systems or land

development have not been adequately addressed.

Response: The approach used to estimate mobile source emissions is

reasonable and in accordance with USEPA guidance. The Mobile 5a model

[[Page 11563]]

is the appropriate model to use to predict emission factors which can

be applied to VMT to obtain emission projections. Additionally, mobile

source inventories will be updated at least once every three years to

incorporate new VMT estimates and revised USEPA mobile emission models.

Comment: If the area is redesignated to attainment, stationary

sources will be allowed to grow uncontrolled.

Response: Currently, no major sources are located in the Clinton

County area. Any major new sources located in this area would be

subject to Prevention of Significant Deterioration (PSD) requirements

at 40 C.F.R. Sec. 52.21. These regulations require major new sources

and major modifications of existing sources to use Best Available

Control Technology (BACT). In addition, any allowable emission

increases from such new construction could not cause or contribute to

air pollution in the area. The maintenance plan prepared for Clinton

County also relies on contingency measures to correct any future

violations. These contingency measures would be implemented in the

event the standard is violated.

Comment: The contingency plan is based on insufficient control

measures and the implementation schedule is too long.

Response: The contingency plan is adequate. It contains 12 possible

measures. Moreover, it is not limited to the list of 12 measures in the

submittal. For example, the State may select other control measures

based on cost-effectiveness, VOC reduction potential, economic and

social consideration, or other factors. The implementation schedule

calls for a VOC control program to be implemented as expeditiously as

possible and to be in place no later than 12 months from the

verification that a violation of the ozone National Ambient Air Quality

Standards (NAAQS) has occurred. USEPA believes that this schedule

satisfies the requirement of section 175A that contingency measures

promptly correct any violations and is consistent with schedules

contained in numerous other maintenance plans approved by USEPA.

Comment: The Long Range Plan contains emission projections which

are insupportable.

Response: Ohio demonstrated that by considering the growth in the

area (including VMT growth) and present controls on existing emission

sources, emissions will remain below the attainment year inventory

through the year 2006. In projecting mobile source emissions, Ohio

obtained VMT based on the TRANPLAN Model which uses traffic counting

data for the year 1990. To forecast VMT to the year 2006, 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 regarding socio-economic data. USEPA

considers the methodology which was used to project emissions to be

reasonable.

III. Rulemaking Action

Clinton County, which is located to the northeast of the City of

Cincinnati, is being redesignated from transitional nonattainment to

attainment for ozone. In the proposed rulemaking published on May 5,

1995, USEPA detailed how the Clinton County portion of the submittal

met the redesignation requirements of Section 107(d)(3)(E). See 60 FR

22337.

USEPA received comments pertaining to the proposed rulemaking. The

comments were considered and responses were detailed in the above

section of this notice. The USEPA believes that the redesignation

requirements of Section 107(d) are satisfied and is taking final action

to approve the request for redesignation to attainment and to approve

the maintenance plan and emissions inventory for Clinton County, Ohio.

USEPA finds that there is good cause for this redesignation,

maintenance plan and emissions inventory 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 Act requirements that would otherwise

apply to it. The immediate effective date for this redesignation,

maintenance plan and emissions inventory 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, allowing

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

SIP. USEPA 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.

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by 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 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 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. Redesignation of an area to attainment under section

107(d)(3)(E) of the 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. SIP approvals under section 110 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, the

Administrator certifies that it does not have a significant impact on

any small entities affected. Moreover, due to the nature of the

federal-state relationship under the Act, preparation of a regulatory

flexibility analysis would constitute federal inquiry into the economic

reasonableness of state action. The Act forbids USEPA to base its

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

E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

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

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

USEPA must undertake various actions in association with proposed or

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

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

local, or tribal governments in the aggregate.

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

[[Page 11564]]

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, USEPA'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, will

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

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

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

or to the private sector.

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 May 20, 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

40 CFR Part 52

Environmental Protection, Air pollution control, Ozone, Nitrogen

oxides, Volatile organic compounds.

40 CFR Part 81

Air pollution control.

Dated: March 1, 1996.

Valdas V. Adamkus,

Regional Administrator.

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.

2. Section 52.1885 is amended by adding paragraphs (b)(9) and (y)

to read as follows:

Sec. 52.1885 Control Strategy: Ozone.

* * * * *

(b) * * *

(9) Clinton County

* * * * *

(y) Approval--The 1990 base-year ozone emissions inventory

requirement of Section 182(a)(1) of the Clean Air Act has been

satisfied for Clinton County.

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

OHIO

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

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

2. In Sec. 81.336 the ozone table is amended by revising the entry

for the Clinton County Area to read as follows:

Sec. 81.336 Ohio

* * * * *

Ohio--Ozone

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Designation Classification

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

Date\1\ Type Date Type

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* * * * * * *

Clinton County Area, Clinton March 21, 1996................. Attainment...............

County.

* * * * * * *

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

[FR Doc. 96-6778 Filed 3-20-96; 8:45 am]

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