Approval and Promulgation of Maintenance Plan Revisions; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH117-1; FRL-6147-9]

Approval and Promulgation of Maintenance Plan Revisions; Ohio

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The United States Environmental Protection Agency (USEPA) is

finalizing a June 18, 1998, proposal to approve an Ohio State

Implementation Plan (SIP) revision to remove the air quality triggers

from the Dayton-Springfield (Montgomery, Clark, Greene, and Miami

Counties), Ohio maintenance area contingency plan.

EFFECTIVE DATE: This action will be effective on August 19, 1998.

ADDRESSES: Copies of the documents relevant to this action are

available for inspection during normal business hours at the following

location: Regulation Development Section, Air Programs Branch, (AR-

18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois, 60604.

Please contact William Jones at (312) 886-6058 before visiting the

Region 5 office.

FOR FURTHER INFORMATION CONTACT: William Jones, Environmental

Scientist, Regulation Development Section, Air Programs Branch (AR-

18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604, (312) 886-6058.

SUPPLEMENTARY INFORMATION:

I. Background

Since the initial Clean Air Act (CAA) attainment status

designations were made, the Dayton-Springfield area has attained the

one hour ozone standard and has been redesignated to attainment status

for ozone. As a requirement of being redesignated to attainment status,

the area developed a maintenance plan. The purpose of the maintenance

plan is to assure maintenance of the one hour ozone National Ambient

Air Quality Standards (NAAQS) for at least ten years.

The area's maintenance plan included contingency provisions. The

contingency provisions are intended to identify and correct violations

of the one hour ozone NAAQS in a timely fashion. Triggers are included

in the contingency provisions to identify the need to implement

measures and correct air quality problems until such time as a revised

maintenance or attainment plan could be developed to address the level

of the air quality problem. Triggering events in the contingency plans

could be linked to ozone air quality and/or an emission level of ozone

precursors.

USEPA approved the Dayton-Springfield ozone maintenance plan in the

Federal Register on May 5, 1995 (60 FR 22289).

II. One Hour Ozone Standard Revocation

On July 18, 1997, USEPA approved a revision to the NAAQS for ozone

which changed the standard from 0.12 parts per million (ppm) averaged

over one hour, to 0.08 ppm, averaged over eight hours. The USEPA is

revoking the one hour standard in separate rulemakings based on an

area's attainment of the one hour ozone standard. The first round of

revocations was for areas attaining the one hour standard based on

quality assured air monitoring data for the years 1994-1996. The second

round of one hour ozone standard revocations was for areas attaining

the one hour standard based on quality assured air monitoring data for

the years 1995-1997. USEPA intends to publish rulemakings on an annual

basis revoking the one hour ozone standard for additional areas that

come into attainment of the one hour standard.

On July 22, 1998, USEPA published a final rule (63 FR 39432) in the

Federal Register revoking the one hour ozone standard in areas

attaining the one hour standard based on quality assured air monitoring

data for the years 1995-1997. In that action, USEPA revoked the one

hour ozone standard in the Dayton-Springfield, Ohio ozone maintenance

area, effective July 22, 1998.

On July 16, 1997, President Clinton issued a directive to

Administrator Browner on implementation of the new ozone standard, as

well as the current one hour ozone standard (62 FR 38421). In that

directive the President laid out a plan on how the new ozone and

particulate matter standards, as well as the current one hour standard,

are to be implemented. A December 29, 1997 memorandum entitled

``Guidance for Implementing the 1-Hour and Pre-Existing PM10 NAAQS,''

signed by Richard D. Wilson, USEPA's Acting Assistant Administrator for

Air and Radiation, reflected that directive. The purpose of the

guidance set forth in the memorandum is to ensure that the momentum

gained by States to attain the one hour ozone NAAQS was not lost when

moving toward implementing the eight hour ozone NAAQS.

The guidance document explains that maintenance plans will remain

in effect for areas where the one hour standard is revoked; however,

those maintenance plans may be revised to withdraw certain contingency

measure provisions that have not been triggered or implemented prior to

USEPA's determination of attainment and revocation. Where the

contingency measure is linked to the one hour ozone standard or air

quality ozone concentrations, the measures may be removed from the

maintenance plan. Measures linked to non-air quality elements, such as

emissions increases or vehicle miles traveled, may be removed if the

State demonstrates that removing the measure will not affect an area's

ability to attain the eight hour ozone standard.

In other words, after the one hour standard is revoked for an area,

USEPA believes it is permissible to withdraw contingency measures

designed to correct violations of that standard. Since such measures

were designed to address future violations of a standard that no longer

exists, it is no longer necessary to retain them. Furthermore, USEPA

believes that future attainment and maintenance planning efforts should

be directed toward attaining the eight hour ozone NAAQS. As part of the

implementation of the eight hour ozone standard, the State's ozone air

quality will be evaluated and eight hour attainment and nonattainment

designations will be made.

III. Review of the State Submittal

In a letter from Donald R. Schregardus, Director, Ohio

Environmental Protection Agency (OEPA) received by USEPA on April 27,

1998, OEPA officially requested that all air quality triggers be

deleted from the maintenance plans for the areas in Ohio now attaining

the one hour ozone standard and where USEPA proposed to revoke the one

hour standard. In a letter from Robert Hodanbosi, Chief of the Division

of Air Pollution Control, dated June 11, 1998, OEPA transmitted the

results of its public hearing held on June 1, 1998. No public comments

were made at the hearing and no written comments were received.

The USEPA believes that Ohio's request is consistent with the

December 29, 1997 guidance document and the

[[Page 44400]]

July 16, 1997 Presidential Directive, and that the request is

approvable. On June 18, 1998, USEPA proposed to approve Ohio's request

to remove the air quality triggers from the Dayton-Springfield, Ohio

maintenance plan. On July 22, 1998, USEPA revoked the one hour ozone

standard in the Dayton-Springfield area.

IV. Public Comments on the Proposed Rulemaking

The public comment period on USEPA's June 18, 1998, proposal to

approve Ohio's request ended on July 20, 1998. See 63 FR 33314. No

public comments were received on USEPA's proposed approval.

V. USEPA Final Action

USEPA is approving in final the maintenance plan revisions to

remove the air quality triggers in the Dayton-Springfield, Ohio ozone

maintenance area.

VI. Administrative Procedure Act

This action will be effective immediately upon publication in the

Federal Register pursuant to the Administrative Procedure Act, 5 U.S.C.

553(d) (1) and (3) (APA) for good cause. A delayed effective date is

unnecessary due to the nature of this action, which removes certain SIP

measures related to the 1-hour ozone standard, which has been revoked.

The thirty day delay of the effective date of this action generally

required by the Administrative Procedure Act is unwarranted in that it

does not serve the public interest to unnecessarily delay the effective

date of this action.

VII. Administrative Requirements

(A) Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

(B) Executive Order 13045

This rule is not subject to Executive Order 13045, titled

``Protection of Children's Health From Environmental Health Risks and

Safety Risks,'' because it is not an ``economically significant''

action under Executive Order 12866.

(C) Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because it does not create any new

requirements. Therefore, because this Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids USEPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

(D) Unfunded Mandates

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

signed into law on March 22, 1995, USEPA must 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 the removal of pre-existing

requirements under state or local law, and imposes no new requirements.

Accordingly, no additional costs to state, local, or tribal

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

(E) 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). USEPA 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 Clean Air Act 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.

(F) Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. USEPA will submit 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 United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

(G) Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by October 19, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Ozone, Nitrogen oxides.

Dated: August 11, 1998.

David A. Ullrich,

Acting Regional Administrator, Region V.

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 et seq.

Subpart KK--Ohio

2. Section 52.1885 is amended by adding paragraph (a)(10) to read

as follows:

Sec. 52.1885 Control Strategy: Ozone.

(a) * * *

(10) Approval--On April 27, 1998, Ohio submitted a revision to

remove the

[[Page 44401]]

air quality triggers from the ozone maintenance plan for the Dayton-

Springfield, Ohio Area (Miami, Montgomery, Clark, and Greene Counties)

* * * * *

[FR Doc. 98-22337 Filed 8-18-98; 8:45 am]

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