Approval and Promulgation of State Implementation Plan; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH58-1a; FRL-5954-6]

Approval and Promulgation of State Implementation Plan; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: In this action, EPA is approving as a revision to the Ohio

State Implementation Plan (SIP) a rate-of-progress plan for the purpose

of reducing volatile organic compounds (VOC) emissions in the Ohio

portion of the Cincinnati-Hamilton area by 15 percent by November 15,

1996. The plan and regulations will help to protect the public's health

and welfare by reducing the VOC emissions that contribute to the

formation of ground-level ozone, commonly known as urban smog.

Elsewhere in this Federal Register, EPA is proposing approval and

soliciting comment on this action; if written

[[Page 4189]]

adverse comments (not previously addressed) are received on the

approval of the rate-of-progress plan, EPA will withdraw the direct

final approval of the plan and address the comments received in a new

final rule. Unless this direct final is withdrawn, no further

rulemaking will occur on this requested SIP revision.

DATES: This rule is effective March 30, 1998 unless EPA receives

adverse or critical comments by February 27, 1998. If the effective

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

Register.

ADDRESSES: Comments may be mailed to: J. Elmer Bortzer, Chief,

Regulation Development Section, Air and Radiation Division, Air

Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77

West Jackson Boulevard, Chicago, Illinois 60604.

Copies of the documents relevant to this action are available at

the above address for public inspection during normal business hours.

FOR FURTHER INFORMATION CONTACT: William Jones, Environmental Scientist

at (312) 886-6058 and Francisco Acevedo, Environmental Protection

Specialist at (312) 886-6061.

SUPPLEMENTARY INFORMATION:

I. Background on Rate-of-Progress and Contingency Plan Requirement

On November 15, 1990, Congress enacted amendments to the 1977 Clean

Air Act (CAA); Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C.

7401-7671q.

Section 182(b)(1) of the Clean Air Act requires moderate and above

ozone nonattainment areas to submit plans to reduce their VOC emissions

by 15 percent by 1996. These plans are referred to as 15 percent rate

of progress (15% ROP) plans. These plans were due to be submitted to

the Environmental Protection Agency (EPA) by November 15, 1993. In

Ohio, these plans were due for the Toledo, Dayton-Springfield,

Cleveland-Akron-Lorain areas, and the Ohio portion of the Cincinnati-

Hamilton Moderate ozone nonattainment area.

On November 12, 1993, Ohio submitted 15% plans for the Toledo,

Dayton-Springfield, Cleveland-Akron-Lorain, and the Ohio portion of the

Cincinnati-Hamilton areas. EPA reviewed these plans to determine if

they satisfied the completeness criteria so that the rulemaking process

could begin. On January 21, 1994, EPA notified Ohio that EPA was making

a finding of incompleteness on the 15% ROP plan submittals and starting

a clock for imposing sanctions in these areas. In order to stop this

clock the State had to submit a complete 15% ROP plan for the State's

moderate ozone nonattainment areas.

On March 14, 1994, OEPA Director Schregardus submitted Ohio's 15%

ROP plans, along with several other State Implementation Plan

revisions, to EPA. Only the 15% ROP plan for the Ohio portion of the

Cincinnati-Hamilton area is subject to this approval. The requirements

for a 15% ROP plan in the Toledo and Dayton-Springfield areas were no

longer applicable after these areas were redesignated as ozone

attainment areas, see 60 FR 39115 (dated August 1, 1995) and 60 FR

22289 (dated May 5, 1995). The 15% ROP plan requirement for the

Cleveland-Akron-Lorain area was determined to be fulfilled since the

area reached attainment and, therefore, no further emissions reductions

were necessary to reach attainment of the ozone air quality standard.

See 61 FR 20458 (dated May 7, 1996).

The 15% ROP plans submitted by OEPA on March 14, 1994, were found

complete by EPA on August 8, 1994, in a letter to the State of Ohio.

The completeness review of the plans is contained in an EPA memorandum

dated May 12, 1994, a copy of which can be found in the docket.

II. Review Criteria

The requirements for a 15% ROP plan and its contents are found in

Section 182(b)(1) of the CAA and the following EPA documents:

1. Procedures for Preparing Emissions Projections, EPA-450/4-91-

019, July 1991.

2. State Implementation Plans; General Preamble for the

Implementation of Title I of the Clean Air Act Amendments of 1990;

Proposed rule (57 FR 13498), Federal Register, April 16, 1992.

3. ``November 15, 1992, Deliverables for RFP and modeling Emission

Inventories,'' Memorandum from J. David Mobley, Edwin L. Meyer, and G.

T. Helms, Office of Air Quality Planning and Standards, Environmental

Protection Agency, August 7, 1992.

4. Guidance on the Adjusted Base Year Emissions Inventory and the

1996 Target for the 15 Percent Rate of Progress Plans, EPA-452/R-92-

005, October 1992.

5. ``Quantification of Rule Effectiveness Improvements,''

Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs

Branch, Office of Air Quality Planning and Standards, Environmental

Protection Agency, October 1992.

6. Guidance for Growth Factors, Projections, and Control Strategies

for the 15 Percent Rate-of-Progress Plans, EPA-452/R-93-002, March

1993.

7. ``Correction to `Guidance on the Adjusted Base Year Emissions

Inventory and the 1996 Target for the 15 Percent Rate of Progress

Plans','' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide

Programs Branch, Office of Air Quality Planning and Standards,

Environmental Protection Agency, March 2, 1993.

8. ``15 Percent Rate-of-Progress Plans,'' Memorandum from G.T.

Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air

Quality Planning and Standards, Environmental Protection Agency, March

16, 1993.

9. Guidance on the Relationship Between the 15 Percent Rate-of-

Progress Plans and Other Provisions of the Clean Air Act, EPA-452/R-93-

007, Environmental Protection Agency, May 1993.

10. ``Credit Toward the 15 Percent Rate-of-Progress Reductions from

Federal Measures,'' G. T. Helms, Chief Ozone/Carbon Monoxide Programs

Branch, May 6, 1993.

11. Guidance on Preparing Enforceable Regulations and Compliance

Programs for the 15 Percent Rate-of-Progress Plans, EPA-452/R-93-005,

Environmental Protection Agency, June 1993.

12. ``Correction Errata to the 15 Percent Rate-of-Progress Plan

Guidance Series,'' G.T. Helms, Chief, Ozone and Carbon Monoxide

Programs Branch, July 28, 1993.

13. ``Early Implementation of Contingency Measures for Ozone and

Carbon Monoxide (CO) Nonattainment Areas,'' G. T. Helms, Chief, Ozone/

Carbon Monoxide Programs Branch, August 13, 1993.

14. ``Region III Questions on Emission Projections for the 15

Percent Rate-of-Progress Plans,'' Memorandum from G.T. Helms, Chief,

Ozone/Carbon Monoxide Programs Branch, Office of Air Quality Planning

and Standards, Environmental Protection Agency, August 17, 1993.

15. ``Guidance on Issues Related to 15 Percent Rate-of-Progress

Plans,'' Michael H. Shapiro, Acting Assistant Administrator for Air and

Radiation, August 23, 1993.

16. ``Credit Toward the 15 Percent Requirements from Architectural

and Industrial Maintenance Coatings,'' John S. Seitz, Director, Office

of Air Quality Planning and Standards, September 10, 1993.

17. ``Reclassification of Areas to Nonattainment and 15 Percent

Rate-of-Progress Plans,'' John S. Seitz, Director, Office of Air

Quality Planning and Standards, September 20, 1993.

[[Page 4190]]

18. ``Clarification of `Guidance for Growth Factors, Projections

and Control Strategies for the 15 Percent Rate of Progress Plans',''

Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs

Branch, Office of Air Quality Planning and Standards, Environmental

Protection Agency, October 6, 1993.

19. ``Review and Rulemaking on 15 Percent Rate-of-Progress Plans,''

Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs

Branch, Office of Air Quality Planning and Standards, Environmental

Protection Agency, October 6, 1993.

20. ``Questions and Answers from the 15 Percent Rate-of-Progress

Plan Workshop,'' G.T. Helms, Chief, Ozone/Carbon Monoxide Programs

Branch, October 29, 1993.

21. ``Rate-of-Progress Plan Guidance on the 15 Percent

Calculations,'' D. Kent Berry, Acting Director, Air Quality Management

Division, October 29, 1993.

22. ``Clarification of Issues Regarding the Contingency Measures

that are due November 15, 1993 for Moderate and Above Ozone

Nonattainment Areas,'' D. Kent Berry, Acting Director, Air Quality

Management Division, November 8, 1993.

23. ``Credit for 15 percent Rate-of-Progress Plan Reductions from

the Architectural and Industrial Maintenance (AIM) Coating Rule,'' John

S. Seitz, Director, Office of Air Quality Planning and Standards,

December 9, 1993.

24. ``Guidance on Projection of Nonroad Inventories to Future

Years,'' Memorandum from Philip A. Lorang, Director, Emission Planning

and Strategies Division, Office of Air and Radiation, Environmental

Protection Agency, February 4, 1994.

25. ``Discussion at the Division Directors' Meeting on June 1

Concerning the 15 Percent and 3 Percent Calculations,'' Memorandum from

G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air

Quality Planning and Standards, Environmental Protection Agency, June

2, 1994.

26. ``Future Nonroad Emission Reduction Credits for Court-Ordered

Nonroad Standards,'' Memorandum from Philip A. Lorang, Director,

Emission Planning and Strategies Division, Office of Air and Radiation,

Environmental Protection Agency, November 28, 1994.

27. ``Credit for the 15 Percent Rate-of-Progress Plans for

Reductions from the Architectural and Industrial Maintenance (AIM)

Coating Rule and the Autobody Refinishing Rule,'' John S. Seitz,

Director, Office of Air Quality Planning and Standards, November 29,

1994.

28. ``Transmittal of Rule Effectiveness Protocol for 1996

Demonstrations,'' Memorandum from Susan E. Bromm, Director, Chemical,

Commercial Services and Municipal Division, Office of Compliance,

Environmental Protection Agency, December 22, 1994.

29. ``Future Nonroad Emission Reduction Credits for Locomotives,''

Memorandum from Philip A. Lorang, Director, Emission Planning and

Strategies Division, Office of Air and Radiation, Environmental

Protection Agency, January 3, 1995.

30. ``Credit for the 15 Percent Rate-of-Progress Plans for

Reductions from the Architectural and Industrial Maintenance (AIM)

Coating Rule,'' John S. Seitz, Director, Office of Air Quality Planning

and Standards, March 22, 1995.

31. ``Fifteen Percent Rate-of-Progress Plans--Additional

Guidance,'' John S. Seitz, Director, Office of Air Quality Planning and

Standards, May 5, 1995.

32. ``Update on the credit for the 15 percent Rate-of-Progress

Plans for Reductions from the Architectural and Industrial maintenance

coatings rule,'' John S. Seitz, Director, Office of Air Quality

Planning and Standards, March 7, 1996.

33. ``Date by which States Need to Achieve all the Reductions

Needed for the 15% Plan from Inspection and Maintenance (I/M) and

Guidance for Recalculation,'' memorandum from Margo Oge, Director,

Office of Mobile Sources, and John S. Seitz, Director, Office of Air

Quality Planning and Standards, Environmental Protection Agency, August

13, 1996.

34. ``Modeling 15 Percent Volatile Organic Compound (VOC)

Reduction(s) from I/M in 1999: Supplemental Guidance,'' memorandum from

Gay MacGregor, Director, Regional and State Programs Division, and

Sally Shaver, Director, Air Quality Strategies and Standards Division,

Environmental Protection Agency, December 23, 1996.

35. ``15% Volatile Organic Compound (VOC) State Implementation Plan

(SIP) Approvals and the `As Soon As Practicable' Test,'' memorandum

from John S. Seitz, Director, Office of Air Quality Planning and

Standards, and Richard B. Ossias, Deputy Associate General Counsel,

Division of Air and Radiation, Office of General Counsel, Environmental

Protection Agency, February 12, 1997.

Section 182(b)(1) requires that the ROP plan provide for a 15

percent reduction in base line emissions of VOCs, accounting for any

growth in emissions after 1990. Section 182(b)(1) also allows an area

to reduce its emissions by a percentage less than 15 percent provided

that (1) the State demonstrates that the area requires new source

review provisions to the same extent as required in Extreme Areas,

except that the definition of a major source is lowered to sources with

a potential to emit 5 tons per day of VOCs; (2) Reasonably Available

Control Technology (RACT) is required for all existing major stationary

sources; and (3) the plan includes all measures that can feasibly be

implemented in the area, in light of technological achievability. To

qualify for a percentage less than 15 percent, a State must demonstrate

to the satisfaction of the EPA that the plan for the area includes the

measures that are achieved in practice by sources in the same source

category in nonattainment areas of the next higher category.

The CAA also provides details on calculating the 15 percent

emissions reduction. The CAA defines the base line emissions to be the

total amount of actual VOC emissions from all anthropogenic sources in

the area during the calendar year of 1990, excluding emissions that

would be eliminated under any Federal Motor Vehicle Emissions Control

Program (FMVECP) measures promulgated by EPA by January 1, 1990, and

any Reid Vapor Pressure (RVP) regulations promulgated by EPA by

November 15, 1990 or required to be promulgated under section 211 of

the Act. This is further explained in EPA's General Preamble at 57 FR

13498.

Section 182(b)(1) allows emissions reductions to be creditable

except for the RVP and FMVECP programs mentioned above, any measures

requiring corrections to motor vehicle inspection and maintenance

programs required to be submitted immediately after enactment, and

corrections to the States VOC RACT rules that were required by section

182(a)(2)(A) concerning RACT fix-up requirements.

In general, emissions reductions are creditable toward the ROP

emissions reduction to the extent they have actually occurred, as of 6

years after November 15, 1990, resulting from the implementation of

measures required under the applicable implementation plan, rules

promulgated by the Administrator, or a permit issued under Title V.

In addition, section 172(C)(9) requires that the plan provide for

the implementation of specific measures to be undertaken if the area

fails to make reasonable further progress, or to attain the national

primary ambient air quality standard by the applicable attainment date.

Such measures shall be included

[[Page 4191]]

in the plan revision as contingency measures.

III. Review of the 15% ROP Plan

EPA compared the State's submittal for consistency with the

requirements of the CAA and Agency policy and guidance. A summary of

this analysis is provided below.

A. Emission Inventory

Sections 172(c)(3) and 182(a)(1) of the Act require that

nonattainment plan provisions include a comprehensive, accurate,

current inventory of actual emissions from all sources of relevant

pollutants in the nonattainment area. This inventory provides an

estimate of the amount of VOC, carbon monoxide and oxides of nitrogen

produced by emissions sources such as automobiles, powerplants, and the

use of consumer solvents in the household. On December 7, 1995, EPA

approved Ohio's 1990 base year inventory for the Cincinnati-Hamilton

area. For specific details of the final rulemaking, see 60 FR 62737.

Therefore, the Cincinnati-Hamilton area has a comprehensive, accurate,

current inventory of actual emissions from all sources of relevant

pollutants in the nonattainment area.

The 1990 base year emissions inventory required by section 182(a)

was submitted to EPA at the same time that the 15 percent ROP plan was

submitted for the Cincinnati-Hamilton area, in March of 1994. The base

year emissions inventory was later modified by the State based on EPA

comments. The modified inventory resulted in a higher level of

estimated VOC emissions in 1990. The State based its 15% ROP plan on

its emissions inventory that was submitted in March of 1994. The State

will not be required to revise the 15% ROP plan at this time to account

for a revised 1990 base year level of VOC emissions. If the State were

required to go back and adjust its 15% ROP plan whenever something

changes in the base year emissions inventory, it would result in a

moving emissions reduction target that the State would have to try to

meet by continually adjusting the control measures being relied on.

This would result in a significant delay in developing 15% ROP plans.

This is not a reasonable expectation for areas that are required to

prepare the 15% ROP plans, and, accordingly, EPA is not requiring that

the State change its 15% ROP plan at this time.

B. Calculation of the Adjusted Base Year Inventory

The Act specifies the emission baseline from which the 15 percent

reduction is calculated. This baseline value is termed the 1990

adjusted base year inventory. Section 182(b)(1)(D) excludes from the

baseline the emissions that would be eliminated by FMVECP regulations

promulgated by January 1, 1990, and RVP regulations (55 FR 23666, June

11, 1990) promulgated by EPA prior to November 15, 1990, which limit

the volatility of gasoline in nonattainment areas during the peak ozone

season. The FMVECP provides requirements that automobile manufacturers

must meet in building new automobiles. These requirements result in

automobiles being manufactured today that produce less pollution

compared to cars manufactured years ago.

The adjusted base year inventory is determined by starting with the

base year 1990 emission inventory (which is described under A. above),

and then removing all biogenic emissions as well as emissions from

sources located outside of the designated nonattainment boundary. The

resulting inventory is termed the 1990 rate-of-progress base year

inventory. The 1990 rate-of-progress base year inventory is then

adjusted by removing the expected FMVECP and RVP reductions in order to

derive the adjusted base year inventory. As specified by EPA's General

Preamble, see 57 FR 13507, emission credits banked preenactment were

not included in the emissions inventories.

Ohio used EPA's MOBILE5a emission factor model to calculate its

adjusted base year inventory. The documentation includes actual 1990

motor vehicle emissions using 1990 vehicle miles traveled (VMT) and

MOBILE5a emission factors, and the adjusted emissions using 1990 VMT

and the MOBILE5a emission factors in calendar year 1996 with the

appropriate RVP for the nonattainment area as required by EPA.

Provided in table 1 is a summary of the results of the emissions

calculations used to determine the required 15 percent ROP plan

reduction.

Table 1.--Calculations Summary

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

Rate of progress summary for the Ohio portion of the Cincinnati-Hamilton

area

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

VOC emissions

Calculation of reduction needs by 1996 (tons/day)

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

1990 Cincinnati-Hamilton VOC Emissions............... 383.40

1990 Rate-of-Progress Base Year Emissions Inventory

(Anthropogenic Only)................................ 273.51

Noncreditable Emission Reductions from FMVECP and RVP

expected by 1996.................................... 58.57

1990 Adjusted Base Year Inventory (minus RVP and

FMVECP)............................................. 214.94

15 percent of Adjusted Base Year Emissions........... 32.24

1990-1996 Noncreditable Emission Reductions from

corrections to VOC RACT rules and the required Basic

Automobile Inspection/Maintenance program........... 4.80

Total expected emissions reductions by 1996.......... 95.61

1996 Target Level of Emissions....................... 177.90

Estimated 1996 Emissions (Anthropogenic), including

growth.............................................. 225.89

REQUIRED REDUCTIONS BY 1996 TO MEET THE 15 PERCENT

RATE OF PROGRESS REQUIREMENTS....................... 47.99

Control Measures Used to Meet ROP VOC emissions

(tons/day)

Stage II Gasoline Vapor Recovery..................... 4.29

Enhanced Automobile Inspection and Maintenance (E-

Check).............................................. 18.80

NESHAP for reducing coke by product Benzene emissions 20.06

Enforcement Cases.................................... 0.85

Architectural Coatings............................... 4.00

TOTAL EMISSIONS REDUCTIONS........................... 48.00

CONTINGENCY EMISSIONS REDUCTION...................... 7.01

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

[[Page 4192]]

C. Required VOC Emission Reductions

The 1990 adjusted base year inventory is multiplied by 0.15 to

calculate 15% of the adjusted base year emissions. Therefore, to meet

the rate-of-progress requirement, Ohio's plan must provide for at least

a 32.24 tons per day (TPD) reduction in VOC emissions, in addition to

the reduction needed to offset growth.

Under section 182(b)(1)(D) of the Act, the following reductions are

not creditable toward the rate-of-progress reductions: (1) FMVECP

regulations promulgated by January 1, 1990; (2) RVP regulations

promulgated by EPA before enactment of the 1990 Clean Air Act

amendments; (3) certain corrections to VOC RACT rules (which require

controls on certain industrial operations); and (4) corrections to

basic automobile inspection and maintenance programs. Thus, the total

expected reductions are comprised of the reductions necessary to meet

the ROP requirement and the expected emissions reductions from the four

noncreditable programs just described. The total expected emissions

reductions are 95.61 TPD.

The amount of reduction necessary to meet the contingency plan

requirement is 3 percent of the adjusted base year inventory.

Therefore, the adjusted base year inventory is multiplied by 0.03 to

calculate the amount of required reduction for the contingency plan

requirement. Therefore, to meet the contingency requirement, the

State's plan must provide for at least a 6.45 TPD reduction in VOC

emissions, in addition to the other emissions reduction measures. Ohio

has documented the correct amount for the total expected reductions in

the nonattainment area by showing each step used in the calculations.

The 1996 target level of VOC emissions is the 1990 ROP base year

inventory minus the total expected emission reductions.

D. Projected Emission Inventory

Emission projections for sources within an air basin are needed to

determine if the rate-of-progress requirements in the Act are met and

to determine if the area will attain the National Ambient Air Quality

Standards (NAAQS) by the applicable attainment date. The purpose of

projecting the emission inventories into the future is not solely to

predict what is likely to happen without additional controls, but also

to gauge the ability of the regulations in the control strategy to meet

the ROP goals.

Growth factors are not included in the calculations of the 1990

adjusted base year inventory or the 1996 target level of emissions.

Growth factors are needed, however, to project emissions to 1996 for

the ROP demonstration as part of the ROP plan.

The State calculated the point source emissions growth based on

earnings data obtained from the Bureau of Economic Analysis. The point

source growth factors ranged from a 4 percent decrease to a 5 percent

increase per year. Area source emissions were projected based on

population, industrial employment, and state gasoline consumption

growth. The annual population growth factors for the four Ohio counties

range from 0.1 percent to 1.6 percent. Industrial employment is

projected to decrease by about 0.1 percent per year. The State gasoline

consumption is estimated to decrease by about 8 percent from 1990 to

1996. The VMT were projected to grow from 25,671,581 miles per day in

1990 to 27,586,074 miles per day in 1996. This is a 7.46 percent

increase in VMT over 6 years. These are acceptable growth estimates.

Total estimated 1996 VOC emissions including growth was calculated as

225.89 TPD. Mobile source emissions account for 80.32 TPD of the total

emissions.

E. Required Emissions Reduction

The required VOC emissions reduction to meet the 15% ROP

requirements is 47.99 TPD. This is the difference between the estimated

1996 emissions with growth and no additional controls and the 1996

target level of emissions.

F. Control Measures

The revision submitted by the State lists a series of control

measures projected to achieve a 48.0 TPD reduction in VOC emissions.

See the table below for a list of the measures and their status. The

table does not include any Federal measures used to reduce the mobile

source emissions. These reductions are already accounted for in the

MOBILE5a emissions model that in combination with the projected VMT for

the area was used to estimate the future emissions for the area.

Enhanced I/M Program

Of the 15% ROP plans originally submitted to EPA, most contain

enhanced I/M programs because they achieve more VOC emission reductions

than most, if not all, other control strategies. However, because most

States experienced substantial difficulties implementing enhanced I/M

programs, only a few States are currently actually testing cars using

the original enhanced I/M protocol.

On September 18, 1995 (60 FR 48029), EPA finalized revisions to its

enhanced I/M rule allowing States significant flexibility in designing

I/M programs appropriate for their needs. Further, Congress enacted the

National Highway Systems Designation Act of 1995 (NHSDA), which

provides States with more flexibility in determining the design of

enhanced I/M programs. The substantial amount of time needed by States

to re-design enhanced I/M programs in accordance with the final

enhanced I/M rules and/or the guidance contained within the NHSDA, to

secure State legislative approval when necessary, and set up the

infrastructure to perform the testing program has precluded States from

obtaining emission reductions from enhanced I/M by November 15, 1996.

Given the heavy reliance by many States on enhanced I/M programs to

help satisfy 15% ROP plan requirements, and the recent NHSDA and

regulatory changes regarding enhanced I/M programs, EPA has recognized

that it is not possible for many States to achieve the portion of the

15% ROP reductions that are attributed to enhanced I/M by November 15,

1996. Under these circumstances, disapproval of the 15% ROP plan State

Implementation Plans (SIPs) would serve no purpose. Consequently, under

certain circumstances, EPA will allow States that pursue re-design of

enhanced I/M programs to receive emission reduction credit from these

programs in their 15% ROP plans, even though the emission reductions

from the I/M program will occur after November 15, 1996.

Specifically, the EPA will approve 15% ROP SIPs if the emission

reductions from the revised, enhanced I/M programs, as well as from the

other 15% ROP plan measures, will achieve the 15% level as soon after

November 15, 1996, as practicable. To make this ``as soon as

practicable'' determination, the EPA must determine that the 15% ROP

plan contains all VOC control strategies that are practicable for the

nonattainment area in question and that meaningfully accelerate the

date by which the 15% level is achieved. The EPA does not believe that

measures meaningfully accelerate the 15% date if they provide only a

relatively small amount of reductions.

The Enhanced I/M program (E-Check) began operation in the

Cincinnati-Hamilton area in January 1996. The program is a biennial

testing program which requires two years of testing to complete one

test cycle. The program will not achieve its full emissions reduction

potential until the cycle is

[[Page 4193]]

complete. The 15% ROP plan anticipated that the program would start up

in January 1995, but the program actually started in January 1996. The

emissions reduction benefits of E-Check have been delayed beyond

November 15, 1996.

Ohio implemented E-Check in the Cincinnati area in January 1996. In

August 1996 vehicle testing was suspended due to technical and

operational problems. On January 5, 1998, OEPA resumed the E-Check

program in the Cincinnati area. EPA performed a modeling analysis to

determine if the emission reduction credits claimed in the 15% plan

from enhanced I/M would be achieved by November 1999.1 EPA

modeled the emission reductions from the program, with an enhanced I/M

start date of January 1996, out to November 1999, as provided for in

EPA policy. EPA subtracted emissions for the period of time the testing

program was suspended (from August 1996 to December 1997). Other

program characteristics modeled included actual I/M emission cutpoints

in place at the time of evaluation, and projected 1996 vehicle miles

traveled information for the Cincinnati area. EPA's analysis showed

that the E-Check program would provide the necessary VOC emissions

reductions for the 15% plan by November 1999.

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

\1\ This analysis was based on the methodology specified in

EPA's policy memoranda, ``Date by Which States Need to Achieve All

the Reductions Needed for the 15% Plan from I/M and Guidance for

Recalculation,'' August 13, 1996, and ``Modeling 15% VOC

Reduction(s) from I/M in 1999--Supplemental Guidance,'' December 23,

1996. EPA policy provides that credit in 15% plans can be claimed

from the I/M start date to November 1999.

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

To determine whether there are other available potential control

measures which can meaningfully accelerate the date by which 15%

emission reduction in the Cincinnati-Hamilton area can be achieved, EPA

compared the area's 15% Rate of Progress (ROP) and contingency plans

with control measures included in 15% ROP plans nation-wide, which are

listed in EPA's report, ``Sample City Analysis: Comparison of Enhanced

I/M Reductions Versus Other 15 Percent ROP Plan Measures,'' December

12, 1996, referenced in EPA's policy document ``15% VOC SIP Approvals

and the `As Soon As Practicable' Test,'' February 12, 1997. The report

listed several possible control measures which were not included in the

Cincinnati-Hamilton 15% plan. Some of these control measures have the

potential to achieve significant emission reductions. These control

measures include the federal reformulated gasoline program, federal

Transfer, Storage, and Disposal Facility (TSDF) regulations, and

federal consumer/commercial products regulations.

The federal reformulated gasoline program (RFG) (40 CFR part 80,

subpart D) requires that gasoline providers in certain areas sell only

gasoline which meets certain blending requirements to reduce pollution.

Areas not already subject to these requirements, such as the

Cincinnati-Hamilton area, can, under section 211(k)(6) of the Act,

``opt-in'' to the program, upon request to EPA by the Governor.

In the Cincinnati area there is not enough lead time to get a fuels

program selected, approved, and in place for this summer's ozone season

and by the next ozone season (the summer of 1999) the E-Check program

will be about three quarters of the way through testing. In Phoenix,

Arizona, for example, the Governor established an Air Quality

Strategies Task Force in May 1996 to develop a report describing ozone

reduction measures. In January 1997 the Governor requested to opt into

the Reformulated Gasoline program. USEPA approved the program on June

3, 1997, with an effective date of August 4, 1997 for retailers and

wholesale purchase-consumers. It took about 15 months, on an extremely

expedited schedule from the time the task force was formed, for the

program to become effective in the Phoenix area.

In addition, phase II RFG will be required in nonattainment areas

using RFG in the year 2000, instead of the current phase I RFG used in

certain nonattainment areas across the country. Given the short lead

time, the start up of the E-Check program, and the national change over

to phase II of RFG in areas using RFG, it is not practical to implement

phase I RFG in place of E-Check in an effort to achieve the 15% ROP

reduction requirement as soon as practicable. The Greater Cincinnati

area will experience immediate benefits from the E-Check program, and

these benefits will increase as more cars are tested and repaired. A

significant portion of the automobiles will be tested and repaired by

this summer in time for this year's ozone season. These benefits will

help the area to make progress toward attaining the ozone standard as

soon as practicable. Therefore, for all of these reasons, USEPA

believes the reformulated gasoline program could not be implemented in

the Ohio portion of the Cincinnati-Hamilton area significantly faster

than E-check.

The federal TSDF regulations, promulgated pursuant to the Resource

Conservation and Recovery Act (RCRA) as amended, require air pollution

controls on certain facilities which manage hazardous wastes containing

VOC and hazardous air pollutants. These regulations were promulgated in

two phases, one on June 21, 1990 (55 FR 25454), and the other on

December 6, 1994 (59 FR 62896). The final compliance date for the

second phase of control was December 8, 1997. These Federal regulations

are expected to provide significant emissions reduction in the

Cincinnati area and will assist the area in making progress towards

attainment of the ozone standard.

The February 12 EPA memorandum from Seitz and Ossias provides a

report listing a cutback asphalt ban and open burning ban as measures

the State could potentially adopt to achieve emission reductions.

However, the report overestimates the emission reduction potential of a

cutback asphalt ban because the use of cutback asphalt is prohibited in

Ohio by OAC 3745-21-09(N). The State of Ohio also has an open burning

ban that has been in place for a number of years. As for other control

measures, such as regulating industrial adhesives reformulation and/or

solvent cleaning substitution/equipment, these measures are not

expected to achieve reductions significantly faster than E-check,

because it would take Ohio one to two years to develop, adopt, and

implement these measures. It is not reasonable to implement other

controls to make up for the delay in implementing the E-check program

and the emissions reduction is expected to be met by 1999 with the help

of Federal emissions control programs.

Federal Architectural Coatings Rule

The State estimated that the anticipated Federal rule for

architectural coatings would provide for a 25 percent emission

reduction in that category. An EPA policy memorandum issued after the

State had submitted its plan to EPA stated that only 20 percent is

allowed. In addition there have been delays in proposing the rule, and

the compliance date is not expected to occur until 1998. This change in

policy would revise the emission reduction estimated downward by 0.8

TPD.

The State did not take credit in its plan for the Federal Nonroad

engine emissions standards rule. This rule sets standards for new

engines and will reduce emissions in the future. In addition, the State

did not take credit for the automobile refinishing rule which is

estimated to provide a 1.6 TPD emissions reduction. This assumes a 30

percent reduction in VOC emissions from the national automobile

refinishing rule EPA is developing. These factors will help to offset

the change in

[[Page 4194]]

emissions reduction credit for architectural coatings.

The State's plan provides a table of cost effectiveness estimates

for the various control measures considered by the State for its plan.

Table 2.--Status of Emissions Control Measures in the Cincinnati-

Hamilton Area 15 Percent ROP Plan

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

Control measure Status of rules

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

Stage II Vapor Recovery...... Approved on October 20, 1994, at 59 FR

52911.

Enhanced Automobile Approved on April 4, 1995, at 60 FR

Inspection and Maintenance. 16989.

NESHAP for reducing coke by Federal Regulation (see 40 CFR part 61).

product Benzene emissions.

Enforcement Cases............ Sources brought in to compliance since

1990 with preexisting rule.

Architectural Coatings....... Federal Regulation for which Ohio may

take credit (see memorandum dated March

7, 1996 from John Seitz, Director,

Office of Air Quality Planning and

Standards to Regional Division

Directors).

CONTINGENCY EMISSIONS Lower RVP rule to be addressed in

REDUCTION. subsequent rulemaking action.

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

G. Rate-of-Progress and Contingency Plan Demonstrations

Overall, Ohio's ROP plan provides for a 48.0 TPD emissions

reduction, which meets the ROP requirements. The contingency plan

provides for the necessary 3 percent emission reduction and both the

contingency measure and the contingency plan will be addressed in a

subsequent rulemaking action. EPA can address the contingency plan in a

subsequent rulemaking action because it is not a prerequisite to

approving the 15% ROP plan.

H. Enforceability

Each rule developed by the State for the Ohio portion of the

Cincinnati-Hamilton area 15% ROP plan has been independently reviewed

and approved by EPA as part of the State's SIP. Part of this review

process includes a review of the enforceability of the rule. The

remaining rules that the State is taking credit for are Federal rules

or are expected to soon be issued as Federal rules.

IV. Final Rulemaking Action

EPA is approving the 15% rate of progress plan for the Ohio portion

of the Cincinnati-Hamilton ozone nonattainment area. The plan will

provide for a 15% emissions reduction by 1999, which is as soon as

practicable.

For the purposes of transportation conformity determinations, final

approval of this ROP plan revision also approves the 1996 mobile source

emission budget of 57.23 TPD of VOC for the Ohio portion of the

Cincinnati-Hamilton area. This budget is the projected 1996 emissions

including growth and the reductions expected from E-Check and stage II

gasoline vapor recovery. For years later than 1996, conformity

determinations addressing VOCs must demonstrate consistency with this

plan revision's motor vehicle emissions budget. Final approval of this

ROP plan revision does not eliminate the need for a build/no-build test

for oxides of nitrogen.

Because EPA considers this action noncontroversial and routine, we

are approving it without prior proposal. This action will become

effective on March 30, 1998. However, if EPA receives significant

adverse comments on the approval of the rate-of-progress plan in

writing by February 27, 1998, which have not already been addressed by

the State or EPA, EPA will withdraw the direct final approval of the

plan and address the comments received in a new final rule.

V. Miscellaneous

A. Applicability to Future SIP Decisions

Nothing in this action should be construed as permitting, allowing

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

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

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

relation to relevant statutory and regulatory requirements.

B. Ohio 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). EPA will be reviewing the effect of the Ohio audit

privilege and immunity law on various Ohio environmental programs,

including those under the Clean Air Act, and taking 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 Clean Air Act program under which they are implemented may be

withdrawn, or other appropriate action may be taken, as necessary.

C. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

D. Regulatory Flexibility

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

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, EPA 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.

SIP approvals under section 110 and subchapter I, part D of the CAA

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, the Administrator

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

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

State relationship under the CAA, preparation of the regulatory

flexibility analysis would constitute Federal inquiry into the economic

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

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

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

E. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must

[[Page 4195]]

undertake various actions in association with any proposed or final

rule that includes a Federal mandate that may result in estimated costs

to state, local, or tribal governments in the aggregate; or to the

private sector, of $100 million or more. This Federal action approves

pre-existing requirements under state or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to state, local,

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

F. Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) of the Administrative Procedure Act

(APA) as amended by the Small Business Regulatory Enforcement Fairness

Act of 1996, EPA 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 today's Federal Register.

This rule is not a ``major rule'' as defined by section 804(2) of the

APA as amended.

G. 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 Appeal for

the appropriate circuit by March 30, 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 may not be challenged later in proceedings to enforce its

requirements (see section 307(b)(2)).

VII. List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Ozone.

Dated: January 9, 1998.

Michelle D. Jordan,

Acting Regional Administrator.

For the reasons stated in the preamble, part 52, chapter I, 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 paragraph (z) to read as

follows:

Sec. 52.1885 Control Strategy: Ozone.

* * * * *

(z) The 15 percent rate-of-progress requirement of section 182(b)

of the Clean Air Act, as amended in 1990, is satisfied for the Ohio

portion of the Cincinnati-Hamilton ozone nonattainment area.

[FR Doc. 98-2081 Filed 1-27-98; 8:45 am]

BILLING CODE 6560-50-P