Clean Air Act Promulgation of Extension of Attainment Date for Ozone Nonattainment Area; Ohio; Kentucky

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH107-1a; KY94-9717a; FRL-5830-5]

Clean Air Act Promulgation of Extension of Attainment Date for

Ozone Nonattainment Area; Ohio; Kentucky

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: USEPA is extending the attainment date for the Cincinnati-

Hamilton interstate moderate ozone nonattainment area from November 15,

1996 to November 15, 1997. This extension is based in part on monitored

air quality readings for the national ambient air quality standard

(NAAQS) for ozone during 1996. Accordingly, USEPA is revising the table

in the Code of Federal Regulations concerning ozone attainment dates in

this area. In this action, USEPA is approving the States' request

through a ``direct final'' rulemaking; the rationale for this approval

is set forth below. Elsewhere in this Federal Register, USEPA is

proposing approval and soliciting comment on this action; if adverse

comments are received, USEPA will withdraw the direct final rulemaking

and address the comments received in a new final rule; otherwise no

further rulemaking will occur on this attainment date extension

request.

DATES: This rule becomes effective July 28, 1997 unless substantive

adverse comments not previously addressed by the State or USEPA are

received by June 26, 1997. If the effective date is delayed, timely

notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to Joseph M. LeVasseur at the USEPA

Region 4 address listed below or to J. Elmer Bortzer, Chief, Regulation

Development Section, Air Programs Branch (AR-18J), Region 5 at the

address listed below. Copies of the material submitted by the Kentucky

Natural Resources and Environmental Protection Cabinet (KNREPC) may be

examined during normal business hours at the following locations:

Environmental Protection Agency, Atlanta Federal Center, Region 4 Air

Planning Branch, 61 Forsyth Street S.W., Atlanta, Georgia 30303-3104.

Natural Resources and Environmental Protection Cabinet, 803 Schenkel

Lane, Frankfort, Kentucky 40601.

Copies of the materials submitted by the Ohio Environmental

Protection Agency (OEPA) may be examined during normal business hours

at the following locations:

Regulation Development Section, Air Programs Branch (AR-18J), U.S.

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

Chicago, Illinois, 60604.

OEPA, Division of Air Pollution Control, 1800 Watermark Drive,

Columbus, OH 43215.

FOR FURTHER INFORMATION CONTACT: Randolph O. Cano at (312) 886-6036 or

Joseph M. LeVasseur at (404) 562-9035.

SUPPLEMENTARY INFORMATION:

Request for Attainment Date Extension for the Cincinnati-Hamilton

Metropolitan Moderate Ozone Nonattainment Area

On November 7, 1996, OEPA requested a one-year attainment date

extension for the Ohio portion of the Cincinnati-Hamilton moderate

ozone nonattainment area which consists of Hamilton, Butler, Clermont

and Warren Counties in Ohio. Similarly, on November 15, 1996 KNREPC

requested a one-year attainment date extension for the Kentucky portion

of the Cincinnati-Hamilton moderate ozone nonattainment area which

consists of Kenton, Boone and Campbell Counties. Since this area was

classified as a moderate ozone nonattainment area, the statutory ozone

attainment date, as prescribed by section 181(a) of the Clean Air Act

(CAA), is November 15, 1996. The submittals request that the attainment

date be extended to November 15, 1997.

CAA Requirements and USEPA Actions Concerning Designation and

Classification

Section 107(d)(4) of the CAA requires the States and USEPA to

designate areas as attainment, nonattainment, or unclassifiable for

ozone as well as other pollutants for which national ambient air

quality standards (NAAQS) have been set. Section 181(a)(1) requires

that ozone nonattainment areas be classified as marginal, moderate,

serious, severe,

[[Page 28635]]

or extreme, depending on their air quality. In a series of Federal

Register documents, USEPA completed this process by designating and

classifying all areas of the country for ozone. See, e.g., 56 FR 58694

(Nov. 6, 1991); 57 FR 56762 (Nov. 30, 1992).

Areas designated nonattainment for ozone are required to meet

attainment dates specified under the CAA. The Cincinnati-Hamilton ozone

nonattainment area was designated nonattainment and classified moderate

for ozone pursuant to 56 FR 58694 (Nov. 6, 1991). By this

classification, its attainment date became November 15, 1996. A

discussion of the attainment dates is found in 57 FR 13498 (April 16,

1992) (the General Preamble).

CAA Requirements and USEPA Actions Concerning Meeting the Attainment

Date

Section 181(b)(2)(A) requires the Administrator, within six months

of the attainment date, to determine whether ozone nonattainment areas

attained the NAAQS. For ozone, USEPA determines attainment status on

the basis of the expected number of exceedances of the NAAQS over the

most recent three-year period. See General Preamble, 57 FR 13506. In

the case of moderate ozone nonattainment areas, the three-year period

is 1994-1996. CAA section 181(b)(2)(A) further states that, for areas

classified as marginal, moderate, or serious, if the Administrator

determines that the area did not attain the standard by its attainment

date, the area must be reclassified upward.

A review of the actual ambient air quality ozone data from the

USEPA Aerometric Information Retrieval System (AIRS), shows that a

number of air quality monitors located in the Cincinnati-Hamilton ozone

nonattainment area recorded exceedances of the NAAQS for ozone during

the three year period from 1994 to 1996. At one of these monitors,

Warren County, OH, the number of expected exceedances was 2.0 per year,

for 1994 and 1995. Because these exceedances averaged more than 1.0

over the three year period, they constitute a violation of the ozone

NAAQS for the Cincinnati-Hamilton area during this three-year period.

Thus, the area did not meet the November 15, 1996 attainment date.

However, CAA section 181(a)(5) provides an exemption from these

bump up requirements. Under this exemption, USEPA may grant up to two,

one-year extensions of the attainment date under specified conditions:

Upon application by any State, the Administrator may extend for one

additional year (hereinafter referred to as the ``Extension Year'') the

date specified in table 1 of paragraph (1) of this subsection if--

(A) The State has complied with all requirements and commitments

pertaining to the area in the applicable implementation plan, and

(B) No more than one exceedance of the national ambient air quality

standard level for ozone has occurred in the area in the year preceding

the Extension Year.

No more than two one-year extensions may be issued for a single

nonattainment area.

The USEPA interprets this provision to authorize the granting of a

one-year extension under the following minimum conditions:

(1) The State requests a one-year extension,

(2) all requirements and commitments in the USEPA-approved SIP for

the area have been complied with, and

(3) the area has no more than one measured exceedance of the NAAQS

at each monitor in the area during the year that includes the

attainment date (or the subsequent year, if a second one-year extension

is requested).

Table 1.--Exceedances of the Ozone Air Quality Standard in the Cincinnati-Hamilton Area 1994 to 1996

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Exceedances Expected

Site County/state Year measured exceedances

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Oxford \1\............................ Butler, OH.................... 1994 0 0.0

Middletown............................ Butler, OH.................... 1994 0 0.0

Middletown............................ Butler, OH.................... 1995 2 2.0

Middletown............................ Butler, OH.................... 1996 1 1.0

Hamilton.............................. Butler, OH.................... 1994 0 0.0

Hamilton.............................. Butler, OH.................... 1995 1 1.0

Hamilton.............................. Butler, OH.................... 1996 0 0.0

4430 SR 222........................... Clermont, OH.................. 1994 1 1.0

4430 SR 222........................... Clermont, OH.................. 1995 1 1.0

4430 SR 222........................... Clermont, OH.................. 1996 0 0.0

11590 Grooms Rd....................... Hamilton, OH.................. 1994 0 0.0

11590 Grooms Rd....................... Hamilton, OH.................. 1995 0 0.0

11590 Grooms Rd....................... Hamilton, OH.................. 1996 0 0.0

6950 Ripple Road...................... Hamilton, OH.................. 1994 0 0.0

6950 Ripple Road...................... Hamilton, OH.................. 1995 1 1.0

6950 Ripple Road...................... Hamilton, OH.................. 1996 0 0.0

Cincinnati............................ Hamilton, OH.................. 1994 0 0.0

Cincinnati............................ Hamilton, OH.................. 1995 1 1.0

Cincinnati............................ Hamilton, OH.................. 1996 0 0.0

Lebanon............................... Warren, OH.................... 1994 2 2.0

Lebanon............................... Warren, OH.................... 1995 2 2.0

Lebanon............................... Warren, OH.................... 1996 0 0.0

KY 338................................ Boone, KY..................... 1994 0 0.0

KY 338................................ Boone, KY..................... 1995 0 0.0

KY 338................................ Boone, KY..................... 1996 0 0.0

Dayton................................ Campbell,KY................... 1994 0 0.0

Dayton................................ Campbell, KY.................. 1995 0 0.0

Dayton................................ Campbell, KY.................. 1996 1 1.0

Covington............................. Kenton, KY.................... 1994 0 0.0

Covington............................. Kenton, KY.................... 1995 1 1.0

Covington............................. Kenton, KY.................... 1996 1 1.0

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\1\ This site was shutdown after 1994, so no data are available for 1995 and 1996.

[[Page 28636]]

In both extension requests Ohio and Kentucky indicated that they

satisfied the attainment date extension criteria in as much as no

monitors in the Cincinnati-Hamilton area monitored more than one

exceedance each during 1996. The 1996 monitoring data has been quality

controlled and quality assured, as has been the data for 1994 and 1995.

These data are summarized in Table 1. An examination of the data

indicates that three of the ten monitors recorded one exceedance each

during 1996.

Both Ohio and Kentucky certified that they are implementing the

ozone State Implementation Plans (SIPs) for the area. USEPA conducted a

review of the ozone SIPs, as contained in 40 CFR part 52 and USEPA's

electronic version of the SIP, and believes that the states are

implementing the USEPA approved ozone SIPs. Additionally, USEPA has not

made a finding of failure to implement the SIPs for the area. This

supports the States' certification that the area is implementing its

SIPs.

Ohio is implementing the requirements of the approved Ozone SIP.

Regarding implementation of the vehicle inspection and maintenance (I/

M) program, Ohio enacted legislation authorizing the I/M program and

adopted regulations for the operation of the program. The USEPA

approved the program on April 4, 1995 (See 60 FR 16989). The State of

Ohio awarded a contract for program operations, and on January 2, 1996,

Ohio began testing vehicles in the Cincinnati area. The enactment of

legislation, adoption of regulations, and the capital investment in

structures and equipment to perform testing meets the implementation

test. While the Cincinnati program has been suspended due to program

performance problems, Ohio is in compliance with CAA implementation

requirements. The Ohio Stage II vapor recovery program is fully

implemented in the Cincinnati area. The State is also collecting

emissions statements from sources in the area. The State is

implementing its SIP for conformity. Also, the area is implementing its

approved SIP which includes a program for controlling volatile organic

compound (VOC) emissions from stationary sources. This includes the

Non-Control Technique Guideline Reasonably Available Control Technique

requirements approved within the past several years for the following

plants in the Ohio portion of the area: Steelcraft Manufacturing Co,

Chevron USA Inc, International Paper Co, Morton Thiokol, Armco Steel

Co, Formica Corp, PMC Specialties Group, Hilton Davis Co, Monsanto Co,

and Proctor and Gamble.

Kentucky is implementing the requirements of its approved ozone SIP

for the Cincinnati-Hamilton interstate area. The Kentucky portion of

the area is implementing its program for controlling oxides of nitrogen

(NOx) and VOC emissions from stationary sources.

USEPA has determined that the requirements for a one-year extension

of the attainment date have been fulfilled as follows:

(1) Ohio and Kentucky have formally submitted the attainment date

extension requests.

(2) Ohio and Kentucky are currently in the process of implementing

the USEPA-approved SIPs.

(3) A review of actual ozone ambient air quality data for the

Cincinnati-Hamilton area indicates that the area has monitored no more

than one exceedance of the NAAQS at any monitor during 1996.

Therefore, USEPA approves the Ohio and Kentucky attainment date

extension requests for the Cincinnati-Hamilton ozone nonattainment

area. As a result, the Kentucky Control Strategy for Ozone which is

codified at 40 CFR 52.930 and the Ohio Control Strategy for Ozone which

is codified at 40 CFR 52.1885 are being amended to record these

attainment date extensions. The chart in 40 CFR 81.318 entitled

``Kentucky-Ozone'' is being modified to reflect USEPA's approval of

Kentucky's attainment date extension request. The chart in 40 CFR

81.336 entitled ``Ohio-Ozone'' is also being modified to reflect

USEPA's approval of Ohio's attainment date extension request.

USEPA Action

USEPA is approving the attainment date extension requests for the

Cincinnati-Hamilton moderate ozone nonattainment area from November 15,

1996 to November 15, 1997 without prior proposal because the Agency

views this as a noncontroversial amendment and anticipates no adverse

comments. However, in a separate document in this Federal Register

publication, USEPA is proposing to approve this part 52 and part 81

action should adverse or critical comments be filed. This action will

be effective July 28, 1997 unless, by June 26, 1997 adverse or critical

comments are received.

If USEPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. USEPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective on July 28, 1997.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

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

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Administrative Requirements

A. Executive Order (E.O.) 12866

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

by the Regional Administrators 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 (OMB) has

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

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.

Extension of an area's attainment date under the CAA does not

impose any new requirements on small entities. Extension of an

attainment date is an action that affects a geographical area and does

not impose any regulatory requirements on sources. USEPA certifies that

the approval of the attainment date extension will not affect a

substantial number of small entities.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

[[Page 28637]]

governments in the aggregate; or to private sector, of $100 million or

more. Under Section 205, 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

USEPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

USEPA has determined that the approval action promulgated 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 imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, USEPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in this

Federal Register. This rule is not a ``major rule'' as defined by

section 804(2).

E. Petitions for Judicial Review

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

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

the appropriate circuit by July 28, 1997. 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 to grant Ohio and Kentucky an extension to attain the ozone

NAAQS in the Cincinnati-Hamilton ozone nonattainment area as defined in

40 CFR 81.318 and 40 CFR 81.336 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.

40 CFR Part 81

Environmental protection, Air pollution control, National parks,

Wilderness areas.

Dated: May 16, 1997.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Dated: May 16, 1997.

Valdas V. Adamkus,

Regional Administrator, Region 5.

Parts 52 and 81 of chapter I, title 40 of the Code of Federal

Regulations 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.

Subpart S--Kentucky

2. Section 52.930 is amended by adding paragraph (d) to read as

follows:

Sec. 52.930 Control strategy: Ozone.

* * * * *

(d) Kentucky's November 15, 1996, request for a one-year attainment

date extension for the Kentucky portion of the Cincinnati-Hamilton

metropolitan moderate ozone nonattainment area which consists of

Kenton, Boone, and Campbell Counties is approved. The date for

attaining the ozone standard in these counties is November 15, 1997.

Subpart KK--Ohio

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

follows:

Sec. 52.1885 Control strategy: Ozone.

* * * * *

(bb) Ohio's November 7, 1996, request for a one-year attainment

date extension for the Ohio portion of the Cincinnati-Hamilton

metropolitan moderate ozone nonattainment area which consists of

Hamilton, Butler, Clermont and Warren Counties is approved. The date

for attaining the ozone standard in these counties is November 15,

1997.

PART 81--[AMENDED]

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

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

2. In Section 81.318, the ``Kentucky--Ozone'' table is amended by

revising the entry for the ``Cincinnati-Hamilton Area'' to read as

follows:

Sec. 81.318 Kentucky.

* * * * *

Kentucky--Ozone

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Designation Classification

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

Date \1\ Type Date \1\ Type

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Cincinnati-Hamilton Area:

Boone County............................ ........... Nonattainment............................ ........... Moderate.\2\

Campbell County......................... ........... Nonattainment............................ ........... Moderate.\2\

Kenton County........................... ........... Nonattainment............................ ........... Moderate.\2\

* * * * * * *

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

\2\ Attainment date extended to November 15, 1997.

* * * * *

3. In Section 81.336, the ``Ohio--Ozone'' table is amended by

revising the entry for the ``Cincinnati-Hamilton Area'' to read as

follows:

Sec. 81.336 Ohio.

* * * * *

[[Page 28638]]

Ohio--Ozone

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Designation Classification

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

Date \1\ Type Date \1\ Type

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* * * * * * *

Cincinnati-Hamilton Area:

Butler County........................... ........... Nonattainment............................ ........... Moderate.\2\

Clermont County......................... ........... Nonattainment............................ ........... Moderate.\2\

Hamilton County......................... ........... Nonattainment............................ ........... Moderate.\2\

Warren County........................... ........... Nonattainment............................ ........... Moderate.\2\

* * * * * * *

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

\2\ Attainment date extended to November 15, 1997.

* * * * *

[FR Doc. 97-13751 Filed 5-23-97; 8:45 am]

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