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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH107-3; KY94-9717a; FRL-5922-5]

Clean Air Act Promulgation of Extension of Attainment Date for

Ozone Nonattainment Area; Ohio; Kentucky

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: On May 27, 1997, USEPA extended the attainment date for the

Cincinnati-Hamilton interstate, moderate ozone nonattainment area from

November 15, 1996 to November 15, 1997 utilizing ``direct final

rulemaking'' procedures. On July 28, 1997, USEPA withdrew the direct

final rule due to the receipt of adverse comments. In this action USEPA

is responding to public comments received in response to the proposed

rule and announcing that it 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. The USEPA is also revising the

table in the Code of Federal Regulations concerning ozone attainment

dates in this area.

EFFECTIVE DATE: This extension becomes effective December 17, 1997.

ADDRESSES: The Kentucky SIP revision is available for inspection at the

following addresses:

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.

The Ohio SIP revision is available for inspection at the following

addresses:

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

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

Chicago, Illinois, 60604.

Ohio EPA, Division of Air Pollution Control, 1800 Watermark Drive,

Columbus, OH 43215.

FOR FURTHER INFORMATION CONTACT: Joseph M. LeVasseur at the USEPA

Region 4 address listed above or Randolph O. Cano at Region 5 at the

address listed above. (It is recommended that you contact Joseph M.

LeVasseur at (404) 562-9035 before visiting the Region 4 office.) (It

is recommended that you contact Randolph O. Cano at (312) 886-6036

before visiting the Region 5 office.)

SUPPLEMENTARY INFORMATION:

Request for Attainment Date Extension for the Cincinnati-Hamilton

Metropolitan Moderate Ozone Nonattainment Area

On November 7, 1996, the Ohio Environmental Protection Agency (Ohio

EPA) 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, the Kentucky Natural Resources

and Environmental Protection Cabinet (KNREPC) requested

[[Page 61242]]

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 requested that the attainment date be

extended to November 15, 1997. On May 27, 1997 (62 FR 28634), USEPA

extended the attainment date for the Cincinnati-Hamilton interstate,

moderate ozone nonattainment area from November 15, 1996 to November

15, 1997 utilizing ``direct final rulemaking'' procedures. On July 28,

1997 (62 FR 40280), USEPA withdrew the direct final rule due to the

receipt of adverse comments. In this action USEPA is responding to

public comments received in response to the proposed rule and

announcing that it 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 ozone national ambient air quality

standard (NAAQS) during 1996.

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, 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 (bumped-up).

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 NAAQS 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 exeedances

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

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

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

[[Page 61243]]

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.

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 being

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.

Proposed Rule and Responses to Comments

The USEPA published a direct final rule to approve the attainment

date extension request for the Cincinnati-Hamilton moderate ozone

nonattainment area in the May 27, 1997 (62 FR 28634), Federal Register.

This action was accompanied by a proposed rule (62 FR 28650). Because

USEPA received comments adverse to this action, the direct final rule

was withdrawn. The comments received are summarized below along with

USEPA's responses. Copies of all comments have been placed in the

docket file and are available for public review.

Comment 1: Ohio has failed to comply with the CAA implementation

requirements under sec. 181 (a)(5)(B): ``no more than one exceedance of

the NAAQS level for ozone has occurred in the area in the year

preceding the Extension Year.'' The USEPA's proposal states that ``a

review of the ozone data for the area indicates the area has monitored

no more than one exceedance of the NAAQS at any monitor during 1996.''

Section 181 (a)(5)(B) states that one exceedance be allowed in the

area, not one exceedance be allowed per monitor.

USEPA Response: Appendix H to Part 50.9 of Title 40 of the Code of

Federal Regulations provides for review of the data from each monitor

individually as opposed to adding up all of the individual monitor

exceedances across the region to determine whether or not the area

meets the air quality test for an extension. This is consistent with

the process that USEPA uses to evaluate whether or not an area attained

the ozone standard by its attainment date. For instance in the

Cincinnati/Northern Kentucky area, USEPA reviewed the monitoring data

collected for 1994 through 1996 at each of the ten monitors in the

seven county multi-state area to determine whether or not the area

attained the ozone standard by November 15, 1996. This review showed

that the Lebanon monitor located in Warren County was in violation of

the ozone standard. This resulted in the entire multi-state area having

failed to attain the ozone standard by 1996.

In determining whether or not to extend the attainment date from

1996 to 1997, USEPA reviewed the ozone

[[Page 61244]]

monitoring data for 1996 at each monitoring site in the area to see if

any of the sites recorded more than one exceedance of the ozone

standard during 1996 (see table 1). The results of this review showed

that while three of the monitors recorded an exceedance during 1996,

none of the monitors recorded more than one exceedance. The monitors'

exceedances were not added up to see if they were more than one, which

is consistent with how USEPA evaluates data to determine if an area

attained the standard by 1996. Therefore, the Cincinnati/Northern

Kentucky area meets the monitoring requirements for an extension to

November 15, 1997.

Comment 2: A fourth exceedance in three years was monitored at the

Middletown monitoring site. Therefore, the area is in violation of the

NAAQS for ozone and now qualifies for serious nonattainment so it does

not meet the requirements for an extension.

USEPA Response: The criteria in section 181(a)(5) of the CAA

requires that in order for an area to be eligible for an extension not

more than one exeedance of the NAAQS for ozone may be monitored in the

year prior to the extension year. The year prior to the extension year,

in this case, is 1996. The ambient air monitoring data for the area

shows that not more than one exeedance occurred in 1996 at any

monitoring site in the area (see table 1). Therefore, the area

satisfies the air quality requirements for an extension. The

preliminary air monitoring data for 1997 shows no indication that any

monitor recorded more than one exceedance.

Comment 3: Section 181 (a)(5) states that an extension may be

granted if ``(A) the State has complied with all requirements and

commitments pertaining to the area in the applicable implementation

plan.'' The State committed to an I/M program in their submitted SIP.

The I/M program began, but was suspended on August 20, 1996, and is not

expected to resume until at least after the 1997 ozone season.

Additionally, the I/M program has not yet made a full cycle (a full

cycle takes two years to complete). No program was implemented that

would take the place of the 18 ton/day reduction which the I/M program

was to provide.

USEPA Response: Ohio is implementing the I/M requirements of the

SIP. 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.

The State of Ohio has been working to resume automobile testing in

the Cincinnati area. The program was suspended, due to program

performance requirements. However, the State has been actively working

to get the program back up and running in the area. It is reasonable to

allow the State the opportunity to improve the performance of the

program and to allow sufficient time to get the program operational

again. It is expected that the program will be operational in January

1998.

Comment 4: The extension proposal states that Stage II vapor

recovery program is fully implemented, however, according to the

Hamilton County Department of Environmental Services approximately 225

warning letters are issued annually to facilities whose vapor recovery

devices were delinquent upon inspection. Since the area only has about

500 facilities, it is likely not achieving the required reductions.

USEPA Response: Ohio has implemented the Stage II gasoline vapor

control program in the Ohio portion of the Cincinnati ozone

nonattainment area. Subsequent to the beginning of the program,

inspections have been carried out by the local Department of

Environmental Services (DOES). These inspections have uncovered a

number of deficiencies at some of the facilities inspected prompting

warning letters to facility owners. The warning letters represent a

concerted effort on the part of the DOES to encourage full compliance

with requirements of the Stage II program. The DOES sent 291 warning

letters to gasoline dispensing facilities for a number of different

deficiencies. The warning letters do not necessarily mean that the

facility is not complying with all of the required elements of the

Stage II rule. Of all of the letters sent, 143 letters were sent to

stations because of recordkeeping deficiencies as opposed to a control

equipment problem. Of the remaining 148 letters, there were 431

physical problems such as a leaking nozzle or damaged hoses, cited out

of approximately 10,000 gasoline dispensing nozzles in the four Ohio

counties. Some of the nozzles, for example, were cited for multiple

defects. These deficiencies represent 4.3 percent or less of the

nozzles having some type of problem. This indicates that for the vast

majority of the facilities visited, the Stage II control equipment is

operational and the stage II program is being adequately implemented in

the area.

Comment 5: The interstate area continues to violate the standard

while claiming its Transportation Improvement Program (TIP) will meet

the standards. The Ohio Indiana Kentucky Regional Planning Commission

predicts that the area's TIP will conform, but fails to meet the

standard each year. This is perhaps due to the use of outdated data and

modeling (from the 1960's) for determining conformity with the TIP.

USEPA Response: The CAA requires the TIP to conform to the SIP. For

the Cincinnati/Northern Kentucky area this means that the area must

perform a build/no build analysis on its transportation plan to show

that its volatile organic compound (VOC) and oxides of nitrogen

emissions (NOx) will not increase if the transportation projects are

built. Additionally as part of this conformity demonstration the

emissions resulting from building projects outlined in the TIP must be

shown not to exceed the emissions levels that are planned for in the

SIP. For Cincinnati/Northern Kentucky this calls for comparing the

projected TIP emissions to the emissions in the 15% rate of progress

(ROP) plan submitted by the State of Ohio to USEPA. The ROP plan

provides for an emissions reduction in VOC that the area is required to

meet on its way toward achieving the NAAQS. This level of emissions

will result in improved air quality, but not necessarily air quality

that will attain the NAAQS. The current SIP does not provide for the

reductions or a specific emissions level (attainment target) in order

to reach attainment of the NAAQS. Until this level is set the TIP is

only required to meet the Rate of Progress (ROP) emissions targets and

the build/no build test. The State has been implementing its SIP for

conformity in the Cincinnati area by ensuring that the TIP meets the

ROP test. Therefore, the area satisfied the SIP implementation

requirement for receiving an attainment date extension.

While the interstate area is in violation of the standard, it is

eligible for an attainment date extension because it meets the air

quality test of no more than one exceedance at each monitor in the

area.

Comment 6: The proposed extension does not include any requirements

that will bring the area into compliance. Therefore, it is not

reasonable to expect that a one-year extension will improve the area's

air quality.

USEPA Response: Section 181(a)(5) of the CAA authorizes the

Administrator to provide a one-year extension of time to attain the

ozone NAAQS upon State application as long as two requirements are met.

The State must have complied with all requirements and commitments

pertaining to the area in the applicable

[[Page 61245]]

implementation plan. No more than one exceedance of the NAAQS level may

have occurred in the extension area in the year proceeding the

extension year. A second one-year extension may be granted if the

requirements can be met the following year.

Congress likely intended the extension year as a period to evaluate

the effectiveness of the control strategy prior to developing

additional emission control measures. Over the course of the extension

year, the Federal Motor Vehicle Emissions Control Program (FMVECP) will

reduce mobile source emissions as older, more polluting motor vehicles

were replaced by newer, less polluting motor vehicles. Providing an

additional year for the FMVECP to operate will provide sufficient

additional emission reductions bringing the area closer toward

achieving attainment.

Comment 7: The scientific and medical evidence shows that levels of

ozone in the area are unhealthy. The purpose of the CAA is to protect

the environment and public health, and to prevent damage from air

pollution. If the USEPA grants the area an extension, it would fail to

enforce the CAA, and betray its mission to protect human health and the

environment.

USEPA Response: As stated above, section 181(a)(5) authorizes the

Administrator to grant a one-year extension of the ozone attainment

date upon application by the State if the two conditions discussed

above are met. In granting such an extension, the Administrator is

clearly within the scope of authority granted him by the CAA. In as

much as the extension is authorized by the CAA, it should be considered

consistent with the goals and objectives of the CAA. The extension may

allow the area to reach attainment without incurring the additional

costs that would result from reclassification to a serious area.

Comment 8: The commenter states that an extension can only be

granted upon state submittal of an approvable 15% plan. The areas

current 15% plan is no longer valid because its I/M program has been

suspended. The commenter requests further explanation of the suspension

and a schedule for reimplementing the I/M program prior to any final

action on the attainment date extension.

USEPA Response: In order to be granted an extension, the States are

required to implement their SIPs for the Cincinnati/Northern Kentucky

area. Neither Ohio nor Kentucky has 15% plans that are federally

approved into the State Implementation Plans for the area. Therefore,

the status of the 15% plan is not relevant to the question of whether

or not the States are implementing their SIP since it is not part of

the federally approved SIP. In regards to the I/M program, which is a

part of the federally approved SIP for Ohio, it is expected that the

program will be operational in January 1998. The State is actively

working to improve the performance of the program and to restart the I/

M program.

Comment 9: Implementation of NOX Reasonably Available

Control Technology (RACT) for major sources in the Ohio portion of the

nonattainment area is over a year late. Concerns regarding this

tardiness have been repeatedly expressed in letters addressed to USEPA.

New York State Department of Environmental Conservation requests that

pertinent NOX requirements of the CAA be addressed

expeditiously through revisions to the Ohio SIP.

USEPA Response: USEPA responded to the letters from the State of

New York in three letters dated October 10, 1996, October 30, 1996, and

January 17, 1997. In USEPA's correspondence with the State of New York,

USEPA stated that it would publish a proposed rule in the Federal

Register to provide the community with an opportunity to comment on

removing the Cincinnati area's monitoring-based NOX waiver

and to comment on what ``reasonable time'' may be necessary to allow

major stationary sources subject to the reasonably available control

technology requirements to purchase install and operate the required

controls.

Along with the USEPA's efforts in this regard, it should be noted

that on October 10, 1997, USEPA Administrator Carol Browner signed a

proposed rulemaking to require emissions reductions, including

NOX, in Ohio and twenty-one other states in order to reduce

the effects on attainment caused by the interstate transport of ozone,

which is clearly the issue that New York in its correspondence sought

to have the USEPA address. The proposal reiterates USEPA's view that

ozone pollution is a regional as well as a local problem. As USEPA has

pointed out to New York in it's response letters, the State's concerns

are more appropriately addressed through a process dealing with

resolving the regional ozone pollution problem, particularly long-range

transport. However, section 182(f), which authorizes the granting of

NOX waivers, focuses only on the effects of reducing

NOX in local nonattainment areas, like Cincinnati, while the

provisions of section 110(a)(2)(D), the main statutory basis for the

proposed action, are specifically intended to address the kinds of

interstate problems exemplified by long-range ozone transport. The

USEPA notes that the requirements of the proposed ``SIP call'' action

if finalized would apply both to areas with approved NOX

waiver petitions and areas without such petitions. That is, any

nonattainment area with NOX waiver petitions approved by

USEPA in the past or in the future are not proposed to be exempt from

that action.

Comment 10: A commenter stated that the area should not be granted

an extension because of existing air pollution problems that cause

adverse health effects. Emission controls should be more strict. The

area should not be given more time to comply because it is not

enforcing current rules, and is not doing anything to solve current air

pollution problems.

USEPA Response: As stated above, the one-year extension is

authorized by the CAA for areas that meet the extension requirements.

This gives the area an additional year to realize the benefits of the

controls that are currently in place and the effects FMVECP on reducing

automobile emissions. The CAA allows areas that qualify for an

extension to request an attainment date extension instead of being

reclassified upward to serious and implementing more emission controls.

The area is enforcing its current controls as described in the above

responses.

USEPA Final Action

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 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 is approving the attainment date extension requests for the

Cincinnati-Hamilton moderate ozone nonattainment area from November 15,

1996 to November 15, 1997.

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

[[Page 61246]]

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.

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

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 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.

The 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. Audit Privilege and Immunity Law

Nothing in this action should be construed as making any

determination or expressing any position regarding Ohio's audit

privilege and immunity law (Sections 3745.70--3745.73 of the Ohio

Revised Code.) The USEPA will be reviewing the effect of the Ohio audit

privilege and immunity law on various Ohio environmental programs,

including those under the CAA. The USEPA will take appropriate

action(s), if any, after thorough analysis and opportunity for Ohio to

state and explain its views and positions on the issues raised by the

law. The action taken herein does not express or imply any viewpoint on

the question of whether there are legal deficiencies in this or any

Ohio CAA program resulting from the effect of the audit privilege and

immunity law. As a consequence of the review process, the regulations

subject to the action taken herein may be disapproved, Federal approval

for the CAA program under which they are implemented may be withdrawn,

or other appropriate action may be taken, as necessary.

E. 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).

F. 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 January 16, 1998. 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: November 5, 1997.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Dated: November 6, 1997.

Gail C. Ginsberg,

Acting 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

[[Page 61247]]

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 Sec. 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

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

Designation Classification

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

Date \1\ Type Date \1\ Type

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

Cincinnati-Hamilton Area:

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

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

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

* * * * * * *

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

\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.

* * * * *

Ohio--Ozone

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

Designation Classification

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

Date \1\ Type Date \1\ Type

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

* * * * * * *

Cincinnati-Hamilton Area:

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

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

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

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

* * * * * * *

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

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

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

* * * * *

[FR Doc. 97-30136 Filed 11-14-97; 8:45 am]

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