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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH107a; KY101-9809a; FRL-5985-9]

Clean Air Act Promulgation of Extension of Attainment Date for

Ozone Nonattainment Area; Ohio; Kentucky

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

Hamilton interstate moderate ozone nonattainment area from November 15,

1997 to November 15, 1998. This extension is based in part on monitored

air quality readings for the national ambient air quality standard

(NAAQS) for ozone during 1997. Accordingly, EPA is revising the table

in the Code of Federal Regulations concerning ozone attainment dates in

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

``direct final'' rulemaking; the rationale for this approval is set

forth below. Elsewhere in this Federal Register, EPA is proposing

approval and soliciting comment on this action; should EPA receive such

comment, it will publish an action informing the public that this rule

did not take effect; otherwise no further rulemaking will occur on this

SIP revision request.

DATES: This final rule is effective May 26, 1998 unless substantive

written adverse comments not previously addressed by the State or EPA

are received by April 27, 1998. If the effective date is delayed,

timely notification will be published in the Federal Register.

ADDRESSES: Written comments may be mailed to Joseph M. LeVasseur at the

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

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

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

Kentucky Natural Resources and Environmental Protection Cabinet

(KNREPC) may be examined during normal business hours at the following

locations: Environmental Protection Agency, Atlanta Federal Center,

Region 4 Air Planning Branch, 61 Forsyth Street, Atlanta, Georgia

30303-3104.

Natural Resources and Environmental Protection Cabinet, 803

Schenkel Lane, Frankfort, Kentucky 40601.

Copies of the materials submitted by the Ohio Environmental

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

at the following locations:

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

Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,

Illinois, 60604.

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

Columbus, OH 43215.

FOR FURTHER INFORMATION CONTACT: Joseph M. LeVasseur at the EPA Region

4 address listed above or Randolph O. Cano at the Region 5 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 14, 1997, OEPA requested a one-year attainment date

extension for the Ohio portion of the Cincinnati-Hamilton moderate

ozone nonattainment area which consists of Hamilton, Butler, Clermont

and Warren Counties in Ohio. Similarly on January 7, 1998 KNREPC

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

of the Cincinnati-Hamilton moderate ozone nonattainment area which

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

classified as a moderate ozone nonattainment area, the statutory ozone

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

(CAA), was November 15, 1996. On November 17, 1997 (62 FR 61241, and

see 63 FR 6664) EPA extended the attainment date to November 15, 1997.

The submittals request that the attainment date be extended to November

15, 1998.

CAA Requirements and EPA Actions Concerning Designation and

Classification

Section 107(d)(4) of the CAA requires the States and EPA 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, EPA 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); 59 FR

18967 (April 21, 1994).

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 EPA 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, EPA determines attainment status on the

basis of the average number of expected 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

[[Page 14624]]

attainment date, the area must be reclassified upwards.

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

bump up requirements. Under this exemption, EPA 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 1

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

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

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

pertaining to the area in the applicable implementation plan, and,

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

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

the Extension Year.

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

nonattainment area.

EPA 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 EPA-approved SIP for

the area have been complied with, and,

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

during the year that includes the attainment date (or the subsequent

year, if a second one-year extension is requested).

On November 17, 1997 (62 FR 61241), EPA granted the Ohio and

Kentucky requests to extend the attainment date for the Cincinnati

Hamilton Interstate moderate ozone nonattainment area from November 15,

1996 to November 15, 1997. The November 17, 1997 approval was based in

part on monitored air quality readings for the national air quality

standard for 1996.

Ohio's second ozone attainment date extension was supported by

monitored air quality readings during 1997.

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

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 1995 to 1997. At one of these monitors,

Middletown OH, the number of expected exceedances was 2.0 for 1995, 1.0

for 1996 and 1.0 for 1997. 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 the three year

period. Thus the area did not meet the November 15, 1997 attainment

date.

Kentucky provided no discussion of monitoring data in its January

7, 1998 request. However, in its November 14, 1997 request, Ohio

indicated that Ohio and Kentucky had satisfied the compliance date

extension criteria in as much as no monitors in the Cincinnati-Hamilton

area monitored more than one exceedance each during 1997. The 1997

monitoring data has been quality controlled and quality assured as has

been the data for 1995 and 1996. These data have been summarized in

Table 1. The monitoring data for the Oxford, Ohio site located in

Butler County is not provided in the list. Currently, quality assured

data is not available for this site for 1997.

An examination of the data indicate that three of the ten monitors,

currently in operation, recorded one exceedance each during 1997. EPA

has determined that the requirements for a second one-year extension of

the attainment date have been fulfilled as follows:

Table 1.--Cincinnati-Hamilton Monitored Exceedances and Violation 1995-97

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Kentucky

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Campbell

Boone County County Kenton County

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1995............................................................ 0 0 1.0

1996............................................................ 0 1.0 1.0

1997............................................................ 0 0 0

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Ohio

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Butler County Hamilton County Warren County

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Hamilton Middletown Grooms Rd Ripple Rd Cincinnati Lebanon Cook Rd Clermont Co

1995............................................ 1.0 2.0 0 1.0 1.0 2.0 (\1\) 1.0

1996............................................ 0 1.0 0 0 0 0 (\1\) 0

1997............................................ 0 1.0 1.0 0 0 (\1\) 1.0 0

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\1\ No data is available for this site during this year.

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

extension requests.

(2) Ohio and Kentucky are currently implementing the EPA-approved

SIPs.

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

Cincinnati-Hamilton Interstate area indicates that the area has

monitored no more than one exceedance of the NAAQS at any monitor

during 1997.

Therefore, EPA approves the Ohio and Kentucky second one-year

attainment date extension requests for the Cincinnati-Hamilton ozone

nonattainment area. As a result, the Kentucky Control Strategy for

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

for Ozone which is codified at 40 CFR 52.1885 are being amended to

record these attainment date extensions. The chart in 40 CFR 81.318

entitled ``Kentucky-Ozone'' is being modified to reflect EPA'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 EPA's

approval of Ohio's attainment date extension request.

EPA Action

EPA is approving the second one-year attainment date extension

requests for the Cincinnati-Hamilton moderate

[[Page 14625]]

ozone nonattainment area from November 15, 1997 to November 15, 1998

without prior proposal because EPA views this as a noncontroversial

amendment and anticipates no adverse comments. However, in a separate

document in this Federal Register publication, the EPA is proposing to

approve this part 52 and part 81 action should written adverse or

critical comments be filed.

This rule will become effective without further notice unless EPA

receives relevant adverse written comment on the parallel proposed rule

(published in the proposed rules section of this Federal Register) by

April 27, 1998. Should EPA receive such comments, it will publish a

final rule informing the public that this rule did not take effect. Any

party interested in commenting on this action should do so at this

time. If no such comments are received, the public is advised that this

action will be effective on May 26, 1998.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP 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 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

B. Regulatory Flexibility Act

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.

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. EPA 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

signed into law on March 22, 1995, EPA 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, EPA 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 EPA to establish a plan for informing and advising any small

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

EPA 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 EPA will be reviewing the effect of the Ohio audit

privilege and immunity law on various Ohio environmental programs,

including those under the CAA. The EPA 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

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. EPA 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 the publication of the rule in the Federal Register. This rule is

not a ``major rule'' as defined by 5 U.S.C. 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 May 26, 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: February 27, 1998.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Dated: March 16, 1998.

David A. Ullrich,

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 et seq.

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

follows:

Sec. 52.930 Control strategy: Ozone.

* * * * *

(f) Kentucky's January 7, 1998, request for a one-year attainment

date extension for the Kentucky portion of the Cincinnati-Hamilton

metropolitan

[[Page 14626]]

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, 1998.

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

follows:

Sec. 52.1885 Control strategy: Ozone.

* * * * *

(cc) Ohio's November 14, 1997, request for a one-year attainment

date extension for the Ohio portion of the Cincinnati-Hamilton

metropolitan moderate ozone nonattainment area which consists of

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

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

1998.

PART 81--[AMENDED]

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

Authority: 42 U.S.C. 7401 et seq.

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

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Designation Classification

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

Date \1\ Type Date \1\ Type

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Cincinnati-Hamilton Area:

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

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

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

* * * * * * *

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

\2\ Attainment date extended to November 15, 1998.

* * * * *

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

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Designation Classification

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

Date \1\ Type Date \1\ Type

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* * * * * * *

Cincinnati-Hamilton Area:

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

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

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

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

* * * * * * *

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

\2\ Attainment date extended to November 15, 1998.

* * * * *

[FR Doc. 98-7760 Filed 3-25-98; 8:45 am]

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