[Federal Register Volume 65, Number 15 (Monday, January 24, 2000)]
[Proposed Rules]
[Pages 3630-3642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1555]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[OH-132; KY-116; KY-84; FRL-6527-7]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Ohio and Kentucky
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes to determine that the Cincinnati-Hamilton
moderate ozone nonattainment area (Cincinnati-Hamilton area) has
attained the public health-based 1-hour ozone National Ambient Air
Quality Standard (NAAQS). If EPA takes final action on this proposal,
the Cincinnati-Hamilton area will be redesignated to attainment of the
1-hour ozone NAAQS. The Cincinnati-Hamilton area includes the Ohio
Counties of Hamilton, Butler, Clermont, and Warren and the Kentucky
Counties of Boone, Campbell, and Kenton. This proposed determination is
based on three years of complete, quality-assured, ambient air
monitoring data for the 1996 to 1998 ozone seasons that demonstrate
that the ozone NAAQS has been attained in the area. Preliminary ozone
monitoring data for 1999 continue to show the area attaining the ozone
NAAQS. On the basis of this determination, EPA is also determining that
certain attainment demonstration requirements, along with certain other
related requirements, of part D of Title 1 of the Clean Air Act (CAA)
are not applicable to the Cincinnati-Hamilton area.
The EPA is also proposing to approve the State of Ohio
Environmental Protection Agency's (OEPA) and the Commonwealth of
Kentucky Natural Resources and Environmental Protection Cabinet
(Cabinet) requests to redesignate the Cincinnati-Hamilton
[[Page 3631]]
area to attainment of the 1-hour ozone NAAQS. The redesignation request
from OEPA was received on July 2, 1999 and completed on December 22,
1999. The Cabinet sent the redesignation request to EPA on October 29,
1999. Approval of these redesignation requests would put into place a
plan for maintaining the 1-hour ozone standard for the next 10 years.
The EPA is also re-proposing to approve an exemption from the
nitrogen oxides (NOX) requirements as provided for in
section 182(f) for the Kentucky portion of the Cincinnati-Hamilton
area. Section 182(f) establishes NOX requirements for ozone
nonattainment areas. However, it provides that these requirements do
not apply to an area if the Administrator determines that
NOX reductions would not contribute to attainment. On
November 11, 1994, the Cabinet submitted a request for a 182(f)
NOX exemption and on May 10, 1995, EPA proposed approval for
the exemption. Subsequently, since the area monitored an exceedance
that constituted a violation of the ozone NAAQS, EPA did not publish a
final notice approving the NOX exemption. Because the
Cincinnati-Hamilton area is currently attaining the ozone NAAQS, EPA is
proposing to grant the Kentucky portion a NOX exemption. If
final action is taken, then the Kentucky portion of the Cincinnati-
Hamilton area would no longer be subject to NOX
requirements, however, all controls previously approved by the Cabinet
must continue to be implemented.
DATES: Comments on EPA's proposed action must be received by February
23, 2000.
ADDRESSES: Written comments should be addressed to:
J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs
Branch (AR-18J), United States Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
Kay Prince, Chief, Regulatory Planning Section, Air Planning Branch,
U.S. Environmental Protection Agency, 61 Forsyth Street, SW, Atlanta,
Georgia 30303.
Copies of the OEPA's and the Cabinet's submittals and other
information are available for inspection during normal business hours
at the following locations. The interested persons wanting to examine
these documents should make an appointment with the appropriate office
at least 24 hours before the visiting day. Reference file OH 132, KY-
116 and KY 84. Regulation Development Section, Air Programs Branch (AR-
18J), United States Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604. U.S. Environmental
Protection Agency, Region 4, Air Planning Branch, Regulatory Planning
Section, 61 Forsyth Street, SW, Atlanta, Georgia 30303.
FOR FURTHER INFORMATION CONTACT: William Jones, Environmental
Scientist, Regulation Development Section, Air Programs Branch (AR-
18J), United States Environmental Protection Agency, Region 5, Chicago,
Illinois 60604, (312) 886-6058, ([email protected]). Karla L.
McCorkle, Environmental Scientist, Regulatory Planning Section, Air
Planning Branch, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street, SW, Atlanta, Georgia, 30303, 404-562-9043,
([email protected]).
Table of Contents
I. Determination of Attainment
A. What action is EPA proposing to take?
B. Why is EPA taking this action?
C. What would be the effect of this action?
D. What is the background for this action?
E. Where is the public record and where do I send comments?
II. Redesignation Request
A. What action is EPA proposing to take?
B. Why is EPA taking this action?
C. What would be the effect of the redesignation?
D. What is the background for this action?
E. What are the redesignation review criteria?
F. What is EPA's analysis of the request?
G. Where is the public record and where do I send comments?
III. 182(f) NOX Exemption for Kentucky
A. What action is EPA proposing to take?
B. Where is the public record and where do I send comments?
IV. Disclaimer Language Approving SIP Revisions in Audit Law States
V. What administrative requirements were considered?
A. Executive Order 12866
B. Executive Order 13132
C. Executive Order 13045
D. Executive Order 13084
E. Regulatory Flexibility Act
F. Unfunded Mandates Act
G. National Technology Transfer and Advancement Act
I. Determination of Attainment
A. What Action Is EPA Proposing To Take?
The EPA is proposing to determine that the Cincinnati-Hamilton
moderate ozone nonattainment area has attained the NAAQS for ozone. The
Cincinnati-Hamilton area includes the Ohio Counties of Hamilton,
Butler, Clermont, and Warren and the Kentucky Counties of Boone,
Campbell, and Kenton. On the basis of this determination, EPA is also
determining that certain attainment demonstration requirements (section
172(c)(1)), along with certain other related requirements, of Part D of
Title 1 of the CAA, specifically the section 172(c)(9) contingency
measure requirement, the section 182(b)(1) attainment demonstration
requirement and the 182(j) multi-state attainment demonstration
requirement are not applicable to the Cincinnati-Hamilton area as long
as it continues to attain the ozone NAAQS.
B. Why Is EPA Taking This Action?
The EPA proposes to redesignate the area because three years of
ambient air monitoring data demonstrate that the ozone NAAQS has been
attained and the area has satisfied the other requirements for
redesignation. The EPA believes it is reasonable to interpret
provisions regarding attainment demonstrations, along with certain
other related provisions, so as not to require State Implementation
Plan (SIP) submissions, as described further below, if an ozone
nonattainment area subject to those requirements is monitoring
attainment of the ozone standard (i.e., attainment of the NAAQS is
demonstrated with three consecutive years of complete, quality-assured,
air quality monitoring data). The EPA is basing this determination upon
three years of complete, quality-assured, ambient air monitoring data
for the 1996 to 1998 ozone seasons that demonstrate that the ozone
NAAQS has been attained in the entire Cincinnati-Hamilton area.
Preliminary ozone monitoring data for 1999 continue to show that the
area is attaining the ozone NAAQS.
C. What Would Be the Effect of This Action?
The requirements of section 172(c)(1), 182(b)(1) and 182(j)
concerning the submission of the ozone attainment demonstration and the
requirements of section 172(c)(9) concerning contingency measures for
reasonable further progress (RFP) or attainment will not be applicable
to the area. This proposal does not revoke the 1-hour standard (see
discussion in II (A) of this document.)
D. What Is the Background for This Action?
Subpart 2 of part D of Title I of the CAA contains various air
quality planning and SIP submission requirements for ozone
nonattainment areas. The EPA believes it is reasonable to interpret
provisions regarding RFP and attainment demonstrations, along with
certain other related provisions, so as not to require SIP submissions
if an
[[Page 3632]]
ozone nonattainment area subject to those requirements is monitoring
attainment of the ozone standard (i.e., attainment of the NAAQS
demonstrated with three consecutive years of complete, quality-assured,
air quality monitoring data). EPA has interpreted the general
provisions of subpart 1 of part D of Title I (sections 171 and 172) so
as not to require the submission of SIP revisions concerning RFP,
attainment demonstrations, or contingency measures. As explained in a
memorandum from John S. Seitz, Director, Office of Air Quality Planning
and Standards, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard,'' dated May
10, 1995, EPA believes it is appropriate to interpret the more specific
attainment demonstration and related provisions of subpart 2 in the
same manner. (See Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996))
The attainment demonstration requirements of section 182(b)(1) are
that the plan provide for ``such specific annual reductions in
emissions * * * as necessary to attain the national primary ambient air
quality standard by the attainment date applicable under the CAA.'' If
an area has in fact monitored attainment of the relevant NAAQS, EPA
believes there is no need for an area to make a further submission
containing additional measures to achieve attainment. This is also
consistent with the interpretation of certain section 172(c)
requirements provided by EPA in the General Preamble to Title I. As EPA
stated in the Preamble, no other measures to provide for attainment
would be needed by areas seeking redesignation to attainment since
``attainment will have been reached'' (57 FR 13564). Upon attainment of
the NAAQS, the focus of state planning efforts shifts to the
maintenance of the NAAQS and the development of a maintenance plan
under section 175A.
Similar reasoning applies to other related provisions of subpart 2.
The first of these are the contingency measure requirements of section
172(c)(9) of the CAA. The EPA has previously interpreted the
contingency measure requirement of section 172(c)(9) as no longer being
applicable once an area has attained the standard since those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date'' (57 FR 13564).
The state must continue to operate an appropriate air quality
monitoring network, in accordance with 40 CFR part 58, to verify the
attainment status of the area. The air quality data relied upon to
determine that the area is attaining the ozone standard must be
consistent with 40 CFR part 58 requirements and other relevant EPA
guidance and recorded in EPA's Aerometric Information Retrieval System
(AIRS).
The determinations made in this notice do not shield an area from
future EPA action to require emissions reductions from sources in the
area where there is evidence, such as photochemical grid modeling,
showing that emissions from sources in the area contribute
significantly to nonattainment in, or interfere with maintenance by,
any other states with respect to the NAAQS (see section 110(a)(2)(D)).
The EPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of
the CAA to require such emission reductions if necessary and
appropriate to deal with transport situations.
The EPA has reviewed the ambient air monitoring data for ozone
(consistent with the requirements contained in 40 CFR part 58 and
recorded in AIRS) for the Cincinnati-Hamilton moderate ozone
nonattainment area from the 1996 through 1998 ozone seasons. This data
is summarized in Table 1 covering EPA's analysis of the redesignation
request. Preliminary monitoring data for 1999 show the area continues
to attain the 1-hour ozone NAAQS. On the basis of this review, EPA
determines that the area has attained the 1-hour ozone standard during
the 1996-98 period, which is the most recent three-year time period of
air quality monitoring data, and therefore is not required to submit an
attainment demonstration, and a section 172(c)(9) contingency measure
plan.
E. Where Is the Public Record and Where Do I Send Comments?
The official record for this proposed rule is located at the
addresses in the ADDRESSES section at the beginning of this document.
The addresses for sending comments are also provided in the ADDRESSES
section at the beginning of this document. Public comments are
solicited on EPA's proposed rulemaking action. Public comments received
by February 23, 2000, will be considered in the development of EPA's
final rulemaking action.
II. Redesignation Request
A. What Action Is EPA Proposing To Take?
The EPA is proposing approval of the maintenance plan submitted by
the OEPA and the Cabinet and redesignation of the Cincinnati-Hamilton
moderate ozone nonattainment area to attainment of the 1-hour ozone
NAAQS. The Cincinnati-Hamilton area consists of the Ohio Counties of
Butler, Warren, Clermont, and Hamilton and the Kentucky Counties of
Boone, Campbell, and Kenton.
B. Why Is EPA Taking This Action?
The Cincinnati-Hamilton area meets the redesignation and
maintenance plan requirements of the CAA.
EPA issued a proposal to determine the 1-hour ozone NAAQS
inapplicable to the Cincinnati-Hamilton area in light of the new 8-hour
ozone NAAQS on June 10, 1999 (64 FR 110), when the U.S. Court of
Appeals for the D.C. Circuit issued its opinion in American Trucking
Ass'ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) and modified in
rehearing on October 29, 1999, WL 979463, which created uncertainty
regarding the 8-hour ozone standard. Thus, EPA proposed to rescind
findings of inapplicability of the 1-hour ozone standard on October 25,
1999 (64 FR 57424). Therefore, the 1-hour ozone standard remains
applicable in the Cincinnati-Hamilton area.
C. What Would Be the Effect of the Redesignation?
The redesignation would change the official designation of the Ohio
Counties of Butler, Warren, Clermont, and Hamilton and the Kentucky
Counties of Boone, Campbell, and Kenton from nonattainment to
attainment for the 1-hour ozone standard. It would also put into place
a plan for maintaining the 1-hour ozone standard for the next 10 years.
This plan includes contingency measures to correct any future
violations of the 1-hour ozone standard.
D. What Is the Background for This Action?
The OEPA and the Cabinet submitted requests on August 16, 1999 and
October 29, 1999, respectively, to redesignate the Ohio and Kentucky
portions of the Cincinnati-Hamilton area from nonattainment to
attainment for ozone.
Under section 107(d) of the 1977 amended CAA, the EPA promulgated
the ozone attainment status for each geographic area of the country.
All counties in the Cincinnati-Hamilton area were designated as an
ozone nonattainment area in March 1978 (43 FR 8962). On November 15,
1990, the CAA Amendments of 1990 were enacted. Pursuant to section
107(d)(4)(A), on November 6, 1991 (56 FR 56694), the Ohio Counties of
Butler,
[[Page 3633]]
Clermont, Hamilton, and Warren and the Kentucky Counties of Boone,
Campbell, and Kenton were designated as the Cincinnati-Hamilton
moderate ozone nonattainment area, as a result of monitored violations
of the ozone NAAQS during the 1987-1989 time frame. On November 14,
1994, OEPA submitted a redesignation request for the Ohio portion of
the Cincinnati-Hamilton area and EPA published a proposed redesignation
rulemaking on May 5, 1995 (60 FR 22337), for the Ohio portion of the
Cincinnati-Hamilton area. On November 11, 1994, the Cabinet submitted a
redesignation request for the Kentucky portion of the Cincinnati-
Hamilton area and revised the request on July 19, 1995.
During July of 1995, an ozone monitor in the area recorded an
exceedance of the ozone standard resulting in a violation of the 1-hour
ozone NAAQS. As a result of the violation the area was no longer
attaining the ozone air quality standard. On September 27, 1996 (61 FR
50718), EPA disapproved the redesignation request for the Kentucky
portion of the Cincinnati-Hamilton area and on February 18, 1997 (62 FR
7194), EPA proposed to disapprove the redesignation request for the
Ohio portion based on the area's violation of the ozone NAAQS. Both
Ohio and Kentucky were not meeting the requirements for redesignation
specified under section 107(d)(3)(E) of the CAA during the time period
when these actions were taken by EPA. The EPA will not respond to
comments received on the February 18, 1997, proposed rulemaking, since
that request is now moot, having been superseded by a new request. This
subsequent request is the subject of this proposed rulemaking.
The Cincinnati-Hamilton area has since recorded three years of
complete, quality-assured, ambient air quality monitoring data for the
1996 to 1998 ozone seasons, thereby demonstrating that the area has
attained the 1-hour ozone NAAQS. Preliminary ozone monitoring data for
1999 continue to show the area is attaining the ozone NAAQS. On July 2,
1999, EPA received a redesignation request from OEPA which supersedes
its request submitted on November 14, 1994. On August 16, 1999, OEPA
submitted additional information for the request and on December 22,
1999, EPA received the results of OEPA's public hearing on the proposed
revision which was the final portion of the initial request. On October
29, 1999, EPA received a request from the Cabinet to parallel process
the prehearing redesignation submittal. On December 13, 1999, the
Cabinet submitted to EPA the final redesignation request including the
Cabinet's public hearing results.
E. What Are the Redesignation Review Criteria?
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) allows for
redesignation providing that: (1) The Administrator determines that the
area has attained the NAAQS; (2) The Administrator has fully approved
the applicable implementation plan for the area under Section 110(k);
(3) The Administrator determines that the improvement in air quality is
due to permanent and enforceable reductions in emissions resulting from
implementation of the applicable state implementation plan and
applicable Federal air pollutant control regulations and other
permanent and enforceable reductions; (4) The Administrator has fully
approved a maintenance plan for the area as meeting the requirements of
section 175(A); and, (5) The State containing such area has met all
requirements applicable to the area under section 110 and part D.
The EPA provided guidance on redesignation in the General Preamble
for the Implementation of Title I of the CAA Amendments of 1990, on
April 16, 1992 (57 FR 13498) and supplemented on April 28, 1992 (57 FR
18070). The EPA has provided further guidance on processing
redesignation requests in the following documents:
1. ``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Mary D. Nichols, Assistant
Administrator for Air and Radiation, October 14, 1994. (Nichols,
October 1994)
2. ``Use of Actual Emissions in Maintenance Demonstrations for
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' D. Kent Berry,
Acting Director, Air Quality Management Division, November 30, 1993.
3. ``State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on
or after November 15, 1992,'' Michael H. Shapiro, Acting Assistant
Administrator for Air and Radiation, September 17, 1993.
4. ``State Implementation Plan (SIP) Actions Submitted in Response
to Clean Air Act Deadlines,'' John Calcagni, Director, Air Quality
Management Division, October 28, 1992. (Calcagni, October 1992)
5. ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' John Calcagni, Director, Air Quality Management Division,
September 4, 1992.
6. ``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' G.T. Helms, Chief, Ozone/Carbon Monoxide Programs
Branch, June 1, 1992.
7. State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990 (57
FR 13498), April 16, 1992.
F. What Is EPA's Analysis of the Request?
1. The Area Must Be Attaining the 1-Hour Ozone NAAQS
For ozone, an area may be considered attaining the 1-hour ozone
NAAQS if there are no violations, as determined in accordance with 40
CFR 50.9 and appendix H, based on three complete, consecutive calendar
years of quality assured monitoring data. A violation of the 1-hour
ozone NAAQS occurs when the annual average number of expected daily
exceedances is equal to or greater than 1.05 per year at a monitoring
site. A daily exceedance occurs when the maximum hourly ozone
concentration during a given day is 0.125 parts per million (ppm) or
higher. The data must be collected and quality-assured in accordance
with 40 CFR part 58, and recorded in AIRS. The monitors should have
remained at the same location for the duration of the monitoring period
required for demonstrating attainment.
The OEPA and the Cabinet submitted ozone monitoring data for the
April through October ozone season from 1996 to 1998. Table 1 below
summarizes the air quality data from 1996-1998.
[[Page 3634]]
Table 1.--1-Hour Ozone NAAQS Exceedances in the Cincinnati-Hamilton, Ohio--Kentucky Area From 1996 to 1998
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Exceedances Expected
Site County Year measured exceedances
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Middletown............................... Butler..................... 1996 1 1.0
Middletown............................... Butler..................... 1997 1 1.0
Middletown............................... Butler..................... 1998 0 0.0
Hamilton................................. Butler..................... 1996 0 0.0
Hamilton................................. Butler..................... 1997 0 0.0
Hamilton................................. Butler..................... 1998 0 0.0
4430 SR 222.............................. Clermont................... 1996 0 0.0
4430 SR 222.............................. Clermont................... 1997 0 0.0
4430 SR 222.............................. Clermont................... 1998 1 1.0
11590 Grooms Rd.......................... Hamilton................... 1996 0 0.0
11590 Grooms Rd.......................... Hamilton................... 1997 1 1.0
11590 Grooms Rd.......................... Hamilton................... 1998 1 1.0
6950 Ripple Road......................... Hamilton................... 1996 0 0.0
6950 Ripple Road......................... Hamilton................... 1997 0 0.0
6950 Ripple Road......................... Hamilton................... 1998 0 0.0
Cincinnati............................... Hamilton................... 1996 0 0.0
Cincinnati............................... Hamilton................... 1997 0 0.0
Cincinnati............................... Hamilton................... 1998 0 0.0
Lebanon.................................. Warren..................... 1996 0 0.0
Lebanon (230 Cook Road).................. Warren..................... 1997 1 1.0
Lebanon (230 Cook Road).................. Warren..................... 1998 1 1.0
KY 338................................... Boone...................... 1996 0 0.0
KY 338................................... Boone...................... 1997 0 0.0
KY 338................................... Boone...................... 1998 0 0.0
Dayton................................... Campbell................... 1996 1 1.0
Dayton................................... Campbell................... 1997 0 0.0
Dayton................................... Campbell................... 1998 0 0.0
Covington................................ Kenton..................... 1996 1 1.0
Covington................................ Kenton..................... 1997 0 0.0
Covington................................ Kenton..................... 1998 1 1.0
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This data has been quality assured and is recorded in AIRS. During
the 1996 to 1998 time period, the Middletown, Grooms Road, Lebanon, and
Covington monitors each recorded a total of 2.0 expected exceedances.
This equates to 0.67 average expected exceedances per year and shows
that the monitoring sites with the most exceedances are attaining the
1-hour ozone NAAQS. In addition, preliminary 1999 ambient air quality
monitoring data indicate that the area continues to attain the 1-hour
ozone standard. As a result, the Cincinnati-Hamilton area is currently
meeting the air quality requirement for redesignation to attainment of
the ozone NAAQS.
2. The Area Must Have a Fully Approved SIP Under Section 110(k); and
the Area Must Have Met All Applicable Requirements Under Section 110
and Part D
Before the Cincinnati-Hamilton area may be redesignated to
attainment for ozone, it must have fulfilled the applicable
requirements of section 110 and part D. The Calcagni memorandum dated
September 4, 1992, states that areas requesting redesignation to
attainment have to fully adopt rules and programs that come due prior
to the submittal of a complete redesignation request. If unimplemented
and not necessary, these rules/programs may be moved into the area's
maintenance plan as contingency measures rather than fully approved
into the SIP. As described below in the section of this notice
addressing Volatile Organic Compounds (VOC) reasonably available
control technology (RACT) rules, however, the EPA is allowing an
exception to this policy. While all requirements that come due prior to
the submission of the redesignation request remain applicable
requirements, the EPA believes it is appropriate, in this instance, to
allow an exception to policy (Calcagni, September 4, 1992) to provide
that the requirement for certain VOC RACT rules may be complied with
simply through their incorporation among the contingency measures in
the maintenance plan. For reasons described later in this action, these
measures need not be fully adopted and approved prior to redesignation.
Furthermore, requirements of the CAA that come due subsequent to the
area's submittal of a complete redesignation request would continue to
be applicable to the area until a redesignation is approved, but are
not required as a prerequisite for redesignation (see section 175A(c)).
If the redesignation is disapproved, the States remain obligated to
fulfill those requirements.
Section 110 Requirements. General SIP elements are delineated in
section 110(a)(2) of Title I, part A. These requirements include but
are not limited to the following: submittal of a SIP that has been
adopted by the state after reasonable notice and public hearing,
provisions for establishment and operation of appropriate apparatus,
methods, systems and procedures necessary to monitor ambient air
quality, implementation of a permit program, provisions for part C,
Prevention of Significant Deterioration (PSD), and Part D, New Source
Review (NSR) permit programs, criteria for stationary source emission
control measures, monitoring and reporting, provisions for modeling,
and provisions for public and local agency participation. For purposes
of redesignation, the Ohio and Kentucky SIPs were reviewed to ensure
that all requirements under the amended CAA were satisfied through
approved SIP provisions.
Transport of Ozone Precursors to Downwind Areas. Modeling results
utilizing EPA's regional oxidant model (ROM) indicate that ozone
precursor
[[Page 3635]]
emissions from various states west of the ozone transport region (OTR)
in the northeastern United States contribute to increases in ozone
concentrations in the OTR. The EPA issued a SIP call on October 27,
1998, (63 FR 57356) requiring the District of Columbia (DC) and 22
states, including Ohio and Kentucky to reduce their emissions of oxides
of nitrogen in order to reduce the transport of ozone and ozone
precursors. The SIP Call submittal date of September 1999 has been
stayed by the DC Circuit Court. Because of the stay of the submittal
date, this is not an applicable requirement and thus, need not be met
for purposes of redesignation.
EPA has determined that the Ohio and Kentucky SIPs for the
Cincinnati-Hamilton 1-hour ozone nonattainment area satisfy all of the
section 110 SIP requirements of the CAA.
Part D: General Provisions for Nonattainment Areas. Before the
Cincinnati-Hamilton area may be redesignated to attainment, it must
have fulfilled the applicable requirements of part D. Under part D, an
area's classification determines the requirements to which it is
subject. Subpart 1 of part D sets forth the basic nonattainment
requirements applicable to all nonattainment areas. Subpart 2 of part D
establishes additional requirements for nonattainment areas classified
under Table 1 of section 181(a). As described in the General Preamble
for the Implementation of Title 1, specific requirements of subpart 2
may override subpart 1's general provisions (57 FR 13501, April 16,
1992). The Cincinnati-Hamilton area was classified as moderate ozone
nonattainment. Therefore, in order to be redesignated, the State must
meet the applicable requirements of subpart 1 of part D--specifically
sections 172(c) and 176, as well as the applicable requirements of
subpart 2 of part D.
Section 172(c) Requirements. EPA has determined that the
redesignation request received from the OEPA and the Cabinet for the
Cincinnati-Hamilton area has satisfied all of the relevant submittal
requirements under section 172(c) necessary for the area to be
redesignated to attainment. In the first part of this proposed
rulemaking, EPA is proposing to determine that the requirement for a
SIP revision providing an attainment demonstration to meet section
172(c)(1), 182(b)(1), and 182(j) is not applicable. The RFP requirement
under section 172(c)(2) is defined as progress that must be made toward
attainment. Section 182(b)(1)(A) sets forth the specific requirements
for RFP. On March 14, 1994, Ohio submitted an RFP plan for Cincinnati
and on January 28, 1998 (63 FR 4188) EPA approved the RFP plan as
meeting the 15 percent RFP requirements of section 182(b)(1)(A). By
meeting the specific 15% RFP requirements of section 182(b)(1)(A),
Cincinnati is also meeting the RFP requirement of section 172(c)(2).
Section 172(c)(3) requires submission and approval of a comprehensive,
accurate, and current inventory of actual emissions. The OEPA submitted
an actual emission inventory under section 182(a)(1) and EPA approved
it on December 7, 1995 (60 FR 62737). The Cabinet submitted on
September 11, 1998, a 15 Percent VOC Reduction Plan and the 1990 base
year inventory for the Kentucky Counties of Boone, Campbell, and Kenton
and EPA approved the submittal on December 8, 1998 (63 FR 67586). EPA
has determined that the RFP and actual emission inventory requirement
for Ohio and Kentucky is satisfied.
Section 172(c)(5) requires permits for the construction and
operation of new and modified major stationary sources anywhere in the
nonattainment area. Section 182(b)(5) requires all major new sources or
modifications in a moderate nonattainment area to achieve offsetting
reductions of VOCs at a ratio of at least 1.15 to 1.0. The EPA has
determined that areas being redesignated do not need to comply with the
requirement that a NSR program be approved prior to redesignation
provided that the area demonstrates maintenance of the standard without
part D NSR in effect. The rationale for this decision is described in a
memorandum from Mary Nichols dated October 14, 1994. See discussion in
the Grand Rapids, Michigan document published on June 21, 1996 (61 FR
31831). The States have demonstrated that the Cincinnati-Hamilton area
will be able to maintain the standard without part D NSR in effect,
and, therefore, the States need not have fully approved part D NSR
programs prior to approval of the redesignation request for the
Cincinnati-Hamilton area. The OEPA's federally delegated PSD program
will become effective in the Cincinnati area upon redesignation to
attainment. The Cabinet has a statewide NSR rule. EPA approved the
latest version of the NSR rule on June 23, 1994 (59 FR 32343) and the
latest version of the statewide PSD rule on June 24, 1998 (63 FR
39741). Kentucky's PSD requirements will remain enforceable after the
redesignation of the Cincinnati-Hamilton area.
Section 176 Conformity Requirements. Section 176(c) of the CAA
requires states to establish criteria and procedures to ensure that
Federally supported or funded projects conform to the air quality
planning goals in the applicable SIP. The requirement to determine
conformity applies to transportation plans, programs and projects
developed, funded or approved under title 23 U.S.C. of the Federal
Transit Act (``transportation conformity''), as well as to all other
Federally supported or funded projects (``general conformity'').
Section 176 further provides that state conformity revisions must be
consistent with Federal conformity regulations that the CAA required
the EPA to promulgate. The EPA believes it is reasonable to interpret
the conformity requirements as not applying for purposes of evaluating
the redesignation request under section 107(d). The rationale for this
is based on a combination of two factors. First, the requirement to
submit SIP revisions to comply with the conformity provisions of the
CAA continues to apply to areas after redesignation to attainment,
since such areas would be subject to a section 175A maintenance plan.
Second, EPA's Federal conformity rules require the performance of
conformity analyses in the absence of Federally approved state rules.
Therefore, because areas are subject to the conformity requirements
regardless of whether they are redesignated to attainment and must
implement conformity under Federal rules if state rules are not yet
approved, the EPA believes it is reasonable to view these requirements
as not applying for purposes of evaluating a redesignation request.
Consequently, EPA may approve the ozone redesignation request for the
Ohio and Kentucky portion of the Cincinnati-Hamilton area without a
fully approved conformity SIP. See Detroit, Michigan, carbon monoxide
redesignation published on June 30, 1999 (64 FR 35017), Cleveland-
Akron-Lorain ozone redesignation published on May 7, 1996 (61 FR
20458), and Tampa, Florida, published on December 7, 1995 (60 FR
52748).
Subpart 2 Section 182 Requirements. The Cincinnati-Hamilton area is
classified moderate nonattainment; therefore, part D, subpart 2,
section 182(b) requirements apply. In accordance with the September 17,
1993, EPA guidance memorandum, the requirements which came due prior to
the submission of the request to redesignate the area must be fully
approved into the SIP before or at the time of the request to
redesignate the area to attainment. Those requirements are discussed
below:
1990 Base Year Inventory. The 1990 base year emission inventory was
due on November 15, 1992. OEPA submitted
[[Page 3636]]
the 1990 base year emission inventory on March 14, 1994, for the Ohio
portion and EPA approved it on December 7, 1995 (60 FR 62737). The
Cabinet submitted the 1990 base year emission inventory on September
11, 1998, and EPA approved it on December 8, 1998 (63 FR 67586).
Periodic Emissions Inventory. Periodic inventories were required to
be submitted on November 15, 1995, and November 15, 1998, providing an
estimate of emissions for 1993 and 1996, respectively. This inventory
is not considered a SIP requirement for the Cincinnati-Hamilton area,
therefore they do not need to be approved into the SIP. Ohio provided
its most recent estimates of emissions for 1993 and 1996 in its
redesignation request and these emissions are summarized in the tables
provided in this proposed action. Kentucky also provided EPA with
periodic emissions for 1993 and 1996.
Emission Statements. The emission statement SIP was due on November
15, 1992. The OEPA submitted an emission statement SIP for Ohio on
March 18, 1994 and EPA approved it on October 13, 1994 (59 FR 51863).
The Cabinet submitted the emission statement SIP for Kentucky on
January 15, 1993 and supplemented the submittal on December 29, 1994 to
satisfy the federal requirements. EPA published approval of the
Kentucky emission statement on May 2, 1995 (60 FR 21445).
15 Percent Plan. The 15 percent RFP plan for VOC reductions was
required to be submitted by November 15, 1993, and, therefore, is
applicable to the Cincinnati-Hamilton moderate ozone nonattainment
area. The OEPA submitted the 15 percent RFP plan on March 14, 1994 and
EPA approved it on January 28, 1998 (63 FR 4188). The Cabinet
originally submitted a 15 percent plan in November 1993 and revised the
plan in March 1994. By the end of the 1994 ozone season, air quality
monitoring data for the entire Cincinnati area showed attainment of the
1-hour ozone NAAQS. Therefore, on June 29, 1995, the Cabinet requested
that EPA take no further action on the submitted 15 percent plan.
Subsequently, during the 1995 ozone season the area monitored a
violation making the 15 percent plan again an applicable requirement
for the area. On September 11, 1998, the Cabinet submitted a revised 15
percent VOC Reduction Plan and EPA approved it on December 8, 1998 (63
FR 67586).
VOC RACT Requirements. SIP revisions requiring RACT for three
classes of VOC sources are required under section 182(b)(2). The
categories are: (1) All sources covered by a Control Technique
Guideline (CTG) document issued between November 15, 1990 and the date
of attainment; (2) All sources covered by a CTG issued prior to
November 15, 1990; (3) All other major non-CTG stationary sources. The
non-CTG rules were due by November 15, 1992, and apply to the Ohio and
Kentucky submittal. The EPA approved Ohio's VOC RACT rules on April 25,
1996 (61 FR 18255), September 7, 1994 (59 FR 46182) and October 23,
1995 (60 FR 54308). EPA approved Kentucky's VOC RACT rules on January
25, 1980 (45 FR 6092), August 7, 1981 (46 FR 40188), February 7, 1990
(55 FR 4169), June 23, 1994, (59 FR 32344), and June 28, 1996 (61 FR
33674). Upon redesignation of the area, all new major VOC sources
locating in Kentucky and all major modifications to existing major VOC
sources will continue to be subject to the RACT requirements. These
actions satisfy requirements (2) and (3) above for the Ohio and
Kentucky portion of the Cincinnati-Hamilton area. Since November 15,
1990, EPA has issued CTG documents for the VOC source categories of
aerospace, synthetic organic compound manufacturing industry (SOCMI)
reactor and distillation processes, shipbuilding, and wood furniture.
To satisfy the requirement of (1) above, the Cabinet submitted a
negative declaration on December 14, 1999 for the CTG categories of
aerospace, SOCMI reactor and distillation processes, shipbuilding, and
wood furniture. Ohio has satisfied requirement (1) above by including
these CTG categories as contingency measures in their maintenance plan.
This is discussed below.
In regards to requirement (1) above, EPA's policy on redesignations
would require full adoption, submission and approval of these rules
prior to approval of the redesignation request. Since the due date for
the CTG RACT rules at issue preceded the submission of the
redesignation request, EPA believes, however, that, in the context of
the particular circumstances of this redesignation, that it is
permissible to depart from that policy and instead accept a commitment
to implement these RACT rules as contingency measures in the
maintenance plan rather than require full adoption and approval of the
rules prior to approval of the redesignation. See Grand Rapids,
Michigan, redesignation (61 FR 31831, June 21, 1996). The State of Ohio
has included these RACT rules as contingency measures in its
maintenance plan for Cincinnati. The reasons justifying this exception
to EPA's general policy are explained in the above cited Grand Rapids,
Michigan, redesignation and as explained below. The EPA believes that
several factors in combination justify this approach with respect to
the Cincinnati-Hamilton redesignation. First, the RACT rules at issue
in this redesignation were not needed to bring about attainment of the
standard in Cincinnati. Second, Ohio has demonstrated continued
maintenance of the ozone standard through 2010 without the
implementation of these measures. Third, Ohio has placed other
contingency measures in the maintenance plan that would bring about far
greater emission reductions than the RACT rules and would therefore be
substantially more effective in terms of correcting violations
attributable to local emissions from the Cincinnati area that may occur
after redesignation. An analysis of emission reduction estimates, based
on documentation contained in Ohio's 15 percent RFP Plan, shows that
the implementation of low Reid Vapor Pressure (RVP) or Reformulated
Gasoline programs would bring about greater reductions than the CTG VOC
RACT rules issued since 1990. As a consequence, EPA believes that the
other, more effective contingency measures, should and would be
implemented first even if the RACT rules were to be fully adopted prior
to redesignation. The EPA emphasizes that even under the exception to
its policy proposed herein, the requirement for these RACT rules
remains an applicable requirement for purposes of evaluating the
redesignation request since it predated the submission of the request.
The requirement, however, would be met in the form of the submission
and full approval of a commitment to adopt and implement these rules as
contingency measures in the maintenance plan. (Under EPA's existing
policy, contingency measures in maintenance plans may consist of
commitments to adopt and implement measures upon a violation of the
standard (Calcagni, September 1992)).
The EPA further notes that even without this exception to its
general policy, the State would have been able to have the RACT rules
become a part of the contingency measures in the maintenance plan upon
approval of the redesignation. That could have occurred only after or
upon EPA's full approval of the adopted RACT rules, however. Thus, the
only difference between EPA's general policy and the exception to that
policy described in this proposal is that a commitment to adopt and
implement the RACT rules in an expeditious
[[Page 3637]]
manner, rather than fully adopted RACT rules, would be among the
contingency measures in the maintenance plan. In light of the
combination of factors discussed above, including in particular the
presence of other, significantly more effective, contingency measures
in the maintenance plan, EPA believes that this difference has no
significant environmental consequence and that it is legally
permissible to approve the Cincinnati-Hamilton redesignation on this
basis.
Stage II Vapor Recovery. Section 182(b)(3) requires states to
submit Stage II rules no later than November 15, 1992. The Ohio Stage
II rules were submitted as a SIP revision on June 7, 1993 and on
October 20, 1994. The EPA partially approved and partially disapproved
Ohio's SIP revision for implementation of Stage II (58 FR 52911). As
stated in that rulemaking action, with the exception of paragraph 3745-
21-09 (DDD)(5), EPA considers Ohio's Stage II program to fully satisfy
the criteria set forth in the September 17, 1993, EPA guidance document
for such programs entitled ``Enforcement Guidance for Stage II Vehicle
Refueling Control Programs.'' On February 3, 1998 the Cabinet submitted
Stage II controls and EPA approved the rule on December 8, 1998 (63 FR
67586).
Only those Stage II provisions previously approved by EPA are part
of the Cincinnati-Hamilton area maintenance plan. The September 17,
1993, guidance memorandum listed above states that once onboard vapor
recovery regulations are promulgated, the Stage II regulations are no
longer applicable for moderate ozone nonattainment areas. The EPA
promulgated onboard vapor recovery rules in February 1994. Therefore,
pursuant to section 202(a)(6) of the CAA, Stage II would no longer be
required. However, both Ohio and Kentucky have opted to include
reductions in VOCs from the Stage II program as part of the submitted
maintenance plan and the previously approved 15 percent RFP plans (63
FR 4188 and 63 FR 67586).
Vehicle Inspection and Maintenance (I/M). The EPA's final I/M
regulations in 40 CFR Part 85 require the States to submit a fully
adopted I/M program by November 15, 1993. Ohio submitted rules for an
enhanced I/M program (E-Check), on May 26, 1994 and EPA published
approval of the rules on April 4, 1995 (60 FR 16989). On September 11,
1998, the Cabinet submitted the Kentucky I/M program and EPA approved
the program rule on December 8, 1998 (63 FR 67586).
NOX Requirement. Section 182(f) establishes
NOX requirements for ozone nonattainment areas. However, it
provides that these requirements do not apply to an area if the
Administrator determines that NOX reductions would not
contribute to attainment. The Administrator made such a determination
for the Ohio portion of the Cincinnati-Hamilton nonattainment area on
July 13, 1995 (60 FR 36060). After this waiver was approved, the
Cincinnati-Hamilton area monitored a violation of the 1-hour ozone
standard. Since that time the area has returned to monitoring
attainment and continues to do so. EPA is leaving the NOX
waiver in place based on the area returning to attainment. Since the
NOX waiver is approved as a final rule, OEPA is not required
to impose NOX control measures pursuant to section 182(f)
for the Cincinnati-Hamilton area to be redesignated. OEPA has committed
to adopt NOX RACT rules as a contingency measure to be
implemented upon a violation of the ozone NAAQS which occurs after
initial contingency measures are in place for the Cincinnati-Hamilton
area.
On May 10, 1995, EPA proposed approval for an exemption from
NOX requirements for the Kentucky portion of the Cincinnati-
Hamilton area. Subsequently, since the area monitored an exceedance
that constituted a violation of the ozone NAAQS, EPA did not publish a
final notice approving the NOX exemption. As discussed
below, EPA is also re-proposing to approve a request from the Cabinet
for a section 182(f) NOX exemption for the Kentucky portion
of the Cincinnati-Hamilton area. This proposal is based on the area
attaining the ozone NAAQS. Therefore, upon redesignation the Kentucky
portion of the Cincinnati-Hamilton area would no longer be subject to
NOX requirements. However, all controls previously approved
by the Cabinet must continue to be implemented, but no additional
NOX measures would be required.
Ohio and Kentucky have satisfied the requirement that the area must
have a fully approved SIP under section 110(k) and the area must have
met all applicable requirements under section 110 and part D.
3. The Improvement in Air Quality Must Be Due to Permanent and
Enforceable Reductions in Emissions
The improvement in air quality must be due to permanent and
enforceable reductions in emissions resulting from the SIP, Federal
measures, and other state adopted measures. The improvement in air
quality in the Ohio portion of the Cincinnati-Hamilton area is due to
emissions reductions from the Federal Motor Vehicle Emissions Control
Program (FMVECP), Stage II vapor recovery program, VOC RACT controls,
and the partial implementation of E-Check. Between 1993 and 1996, the
Ohio area's VOC emissions were reduced by 6.7 percent. Kentucky
attributes the improvement in air quality to emission reductions
achieved prior to the attainment year of 1996 through the following
programs: FMVECP; VOC RACT; fleet turnover of automobiles; low Reid
Vapor Pressure (RVP) gasoline; reformulated gasoline; and ceased
operation and improved technology at facilities in the area. Between
1990 and 1996, the Kentucky area's VOC emissions were reduced by 2.93
tons per day. Additional programs have been implemented in the Kentucky
area since the 1996 attainment year which have provided substantial
emission reductions for Kentucky. These programs include: Stage II
vapor recovery; vehicle emission testing program, increased rule
effectiveness of Stage I vapor control; Architectural Coatings, Traffic
Paints, Auto Body Refinishing, and Commercial/Consumer Products rules;
and Open Burning controls. The State control programs listed above have
been approved into the Ohio and Kentucky SIP. Based on the listed
programs, Ohio and Kentucky have shown that the improvement in air
quality is based on permanent and enforceable reductions in emissions
and meets this requirement.
4. The Area Must Have a Fully Approved Maintenance Plan Meeting the
Requirements of Section 175A
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
The maintenance plan is a SIP revision which provides for maintenance
of the relevant NAAQS in the area for at least 10 years after
redesignation. The Calcagni memorandum dated September 4, 1992,
provides additional guidance on the required content of a maintenance
plan. An ozone maintenance plan should address the following five
areas: the attainment emissions inventory, maintenance demonstration,
monitoring network, verification of continued attainment and, a
contingency plan. The attainment emissions inventory identifies the
emissions level in the area which is sufficient to attain the 1-hour
ozone NAAQS, and includes emissions during the time period which had no
monitored violations. Maintenance is demonstrated by showing that
future
[[Page 3638]]
emissions will not exceed the level established by the attainment
inventory. Provisions for continued operation of an appropriate air
quality monitoring network are to be included in the maintenance plan.
The state must show how it will track and verify the progress of the
maintenance plan. Finally, the maintenance plan must include a list of
potential contingency measures which ensure prompt correction of any
violation of the ozone standard.
The OEPA and the Cabinet included a 1996 emissions inventory as the
attainment inventory. Both of the maintenance plans for Ohio and
Kentucky portion of the Cincinnati-Hamilton area provide emissions
estimates from 1990 to 2010 for VOCs, NOX, and carbon
monoxide. The emissions in the Cincinnati-Hamilton area are projected
to decrease from 1996 levels. The results of this analysis show that
the area is expected to maintain the air quality standard for at least
10 years into the future after redesignation. Table 2 and Table 3
provide the emissions summary for VOCs and NOX for the Ohio
portion and Table 4 and Table 5 provide the emission summary for VOCs
and X for the Kentucky portion of the Cincinnati-Hamilton
area. Table 6 and Table 7, respectively provides the emissions summary
for VOCs and NOX for the entire Cincinnati-Hamilton area.
Although carbon monoxide levels were provided, there is no requirement
to evaluate these for an ozone area.
Table 2.--VOC Emissions in Tons Per Summer Day for Ohio Counties (Hamilton, Butler, Clermont, and Warren)
----------------------------------------------------------------------------------------------------------------
1996 1999 2002 2005 2010
1990 base 1993 attainment projected projected projected projected
----------------------------------------------------------------------------------------------------------------
Point....................... 70.9 72.8 74.9 77.0 79.2 81.4 83.0
Area........................ 69.0 69.8 70.7 71.4 72.3 73.1 75.0
Mobile...................... 125.8 85.3 67.1 49.6 41.6 36.8 37.9
-----------------------------------------------------------------------------------
Totals.................. 265.7 227.9 212.7 198.0 193.1 191.3 195.9
----------------------------------------------------------------------------------------------------------------
Table 3.--NOX Emissions in Tons Per Summer Day for Ohio Counties (Hamilton, Butler, Clermont, and Warren)
----------------------------------------------------------------------------------------------------------------
1996 1999 2002 2005 2010
1990 base 1993 attainment projected projected projected projected
----------------------------------------------------------------------------------------------------------------
Point....................... 280.0 279.4 279.0 278.6 278.3 277.6 277.4
Area........................ 29.8 30.3 30.9 31.4 32.1 32.2 34.0
Mobile...................... 130.7 115.6 101.3 84.4 72.0 65.5 52.3
-----------------------------------------------------------------------------------
Totals.................. 440.5 425.3 411.2 394.4 382.4 375.3 363.7
----------------------------------------------------------------------------------------------------------------
Table 4.--VOC Emissions in Tons Per Summer Day for Kentucky Counties (Boone, Campbell, and Kenton)
----------------------------------------------------------------------------------------------------------------
1996 1999 2002 2005 2008 2010
1990 base attainment projected projected projected projected projected
----------------------------------------------------------------------------------------------------------------
Point....................... 3.9 4.14 3.96 4.07 4.19 4.33 4.4
Area........................ 12.6 13.57 10.27 10.45 10.76 11.13 11.35
Mobile...................... 17.54 12.69 12.07 8.25 7.38 6.47 5.83
Non-Highway................. 8.6 9.31 9.58 9.82 10.23 10.65 10.97
-----------------------------------------------------------------------------------
Total................... 42.64 39.71 35.88 32.59 32.56 32.58 32.55
----------------------------------------------------------------------------------------------------------------
Table 5.-- NOX Emissions in Tons Per Summer Day for Kentucky Counties (Boone, Campbell, and Kenton)
----------------------------------------------------------------------------------------------------------------
1996 1999 2002 2005 2008 2010
1990 base attainment projected projected projected projected projected
----------------------------------------------------------------------------------------------------------------
Point....................... 43.59 29.06 29.47 29.9 30.34 30.77 31.07
Area........................ 0.42 12.07 0.33 0.34 0.34 0.35 0.37
Mobile...................... 15.4 24.90 25.55 22.73 20.14 16.99 15.13
Non-Highway................. 9.23 0.51 12.87 13.27 13.95 14.69 15.2
-----------------------------------------------------------------------------------
Total................... 68.64 66.54 68.22 66.24 64.77 62.8 61.77
----------------------------------------------------------------------------------------------------------------
Table 6.--VOC Emissions in Tons Per Summer Day for the Entire Cincinnati-Hamilton Area
----------------------------------------------------------------------------------------------------------------
1996 1999 2002 2005 2010
1990 base attainment projected projected projected projected
----------------------------------------------------------------------------------------------------------------
Point................................... 74.8 79.04 80.96 83.27 85.59 87.4
Area.................................... 90.2 93.58 91.25 92.57 94.09 97.32
Mobile.................................. 143.34 79.79 61.67 49.85 44.18 43.73
-----------------------------------------------------------------------
[[Page 3639]]
Total............................... 308.34 252.41 233.88 225.69 223.86 228.45
----------------------------------------------------------------------------------------------------------------
Table 7.--NOX Emissions in Tons Per Summer Day for the Entire Cincinnati-Hamilton Area
----------------------------------------------------------------------------------------------------------------
1996 1999 2002 2005 2010
1990 base attainment projected projected projected projected
----------------------------------------------------------------------------------------------------------------
Point................................... 323.59 308.06 308.07 308.2 307.94 308.47
Area.................................... 39.45 43.48 44.6 45.71 46.49 49.57
Mobile.................................. 146.1 126.2 109.95 94.73 85.64 67.43
-----------------------------------------------------------------------
Total............................... 509.14 477.74 462.62 448.64 440.07 425.47
----------------------------------------------------------------------------------------------------------------
The OEPA and the Cabinet commit to continue the operation of the
monitors in the area in accordance with 40 CFR part 58. The States will
also track maintenance by regularly updating the emissions inventory
for the area. The emission projections for 2010 are the budgets for
transportation conformity.
The contingency plan for the Cincinnati-Hamilton area contains
three major components: Attainment tracking, contingency measures to be
implemented in the event that a violation of the ozone NAAQS occurs in
the Cincinnati-Hamilton area, and a mechanism with which to trigger the
implementation of the contingency measures.
Two methods of attainment tracking will be utilized in the Ohio
portion of the Cincinnati-Hamilton area: (1) Air quality monitoring
using the existing ozone monitoring network, and (2) inventory updates
on a regular schedule. Stationary, mobile, and area source inventories
will be updated at a minimum of once every three years beginning with
1996. Area emission inventories will be updated using revised census
data. Mobile source emission inventories will be updated using new
vehicle miles traveled (VMT) estimates and any new EPA mobile emission
models. Annual progress reports will summarize available VOC and
NOX emissions data.
The contingency measures to be considered for implementation for
the Ohio portion of the Cincinnati-Hamilton area are listed below.
1. Lower RVP gasoline.
2. Reformulated gasoline.
3. Broader geographic coverage of existing regulations.
4. Application of RACT on sources covered by new control technology
guidelines issued in response to the 1990 CAA Amendments.
5. Application of RACT to smaller existing sources.
6. Implementation of one or more transportation control measures
sufficient to achieve at least a 0.5 percent reduction in actual area
wide VOC emissions. The transportation control measures to be
considered would include: (1) Trip reductions programs, including but
not limited to employer-based transportation management programs, area
wide rideshare programs, work schedule change, and telecommuting; (2)
transit improvements; (3) traffic flow improvements; and, (4) other
measures.
7. Alternative fuel programs for fleet vehicle operations.
8. Controls on consumer products consistent with those adopted
elsewhere in the United States.
9. VOC offsets for new or modified major sources.
10. VOC offsets for new or modified minor sources.
11. Increased ratio of VOC offsets required for new sources.
12. Requirements of VOC controls on new minor sources.
Selection of one or more of the contingency measures will be based
on various considerations including cost-effectiveness, VOC reduction
potential, economic and social consideration, and other factors the
State determines to be appropriate.
Consideration and selection of one or more of the contingency
measures will take place in the event the ozone NAAQS is violated.
Initially, the State of Ohio will conduct an analysis to determine the
level of control measures needed to assure expedient future attainment.
If a subsequent violation of the ozone NAAQS occurs after
implementation of the VOC controls measures, NOX RACT will
be activated. Contingency measures on the Ohio portion of the area will
be implemented according to the following schedule:
Table 8.--Contingency Measure Schedule for Ohio
------------------------------------------------------------------------
------------------------------------------------------------------------
Activity--VOC measure implementation Completion time after
triggering event
------------------------------------------------------------------------
Verify a violation has occurred........ 1 month.
Identify VOC plan and submit schedule 3 months.
for implementation.
Implement VOC control program.......... 12 months.
------------------------------------------------------------------------
Activity--NOX measure implementation Completion time for second
triggering event after
implementation of the VOC
contingency measure
------------------------------------------------------------------------
Verify a violation has occurred........ 1 month.
Submit schedule for implementation of 3 months.
NOX RACT.
Implement NOX RACT..................... 18 months.
------------------------------------------------------------------------
[[Page 3640]]
Reformulated gasoline and low RVP gasoline would not be able to be
implemented as contingency measures by the State of Ohio unless the
State first requested and received from EPA a waiver of federal
preemption under section 211(c)(4) of the CAA. However, in light of the
State's listing of other potential contingency measures and the State's
commitment to implement contingency measures within 12 months of a
violation, the identification of reformulated gasoline and low RVP
gasoline does not detract from the approvability of the contingency
plan.
The Cabinet commits to perform triennial reviews of actual
emissions for the redesignated area using the latest emission factors,
models, and methodologies. The Cabinet will begin the triennial
assessments in 2000 for calendar year 1999. At the time of this
periodic inventory, the Cabinet will review the assumptions made for
the purpose of the maintenance demonstration concerning projected
growth in activity levels. If any of these assumptions appear to have
changed substantially, then the Cabinet will re-project emissions.
In the event that exceedances of the 1-hour ozone standard are
measured in any portion of the nonattainment area, or if periodic
emission inventory updates reveal excessive or unanticipated growth
greater than 10 percent in ozone precursor emissions, the Cabinet will
evaluate existing control measures to determine the further emission
reduction measures that should be implemented at that time.
In the event of a monitored violation of the 1-hour ozone standard,
the Cabinet commits to adopt, within nine months, one or more of the
following contingency measures to achieve reductions sufficient to
bring the area back into attainment with the 1-hour ozone NAAQS. All
regulatory programs will be implemented within 18 months. The Cabinet
will also evaluate existing control measures to see if any further
emission reductions should be implemented at that time.
1. Implementation of a program to require additional emission
reductions on stationary sources.
2. New Source Review.
3. Implementation of a more frequent, or more stringent vehicle
emissions testing program.
4. Restriction of certain roads or lanes to, or construction of
such roads or lanes for use by, passenger buses or high-occupancy
vehicles.
5. Trip-reduction ordinances.
6. Employer based transportation management plans, including
incentives.
7. Programs to limit or restrict vehicle use in downtown areas, or
other areas of emission concentration, particularly during periods of
peak use.
8. Programs for new construction and major construction of paths or
tracks for use by pedestrians or by non-motorized vehicles when
economically feasible and in the public interest.
The OEPA and the Cabinet submittals adequately address the five
basic components which comprise a maintenance plan (attainment
inventory, maintenance demonstration, monitoring network, verification
of continued attainment, and a contingency plan) and therefore, satisfy
the maintenance plan requirement.
The CAA section 175A(b) also requires the OEPA and the Cabinet to
submit a revision of the SIP eight years after the original
redesignation request is approved to provide for maintenance of the
NAAQS for an additional 10 years following the first-10 year period.
The Cabinet has committed to submit the revision to the SIP 8 years
after redesignation of the Cincinnati-Hamilton area. Ohio did not
formally commit to submit this revision in the redesignation request,
however, OEPA is still required to submit a revision to the SIP 8 years
after this request is approved.
G. Where Is the Public Record and Where Do I Send Comments?
The official record for this proposed rule has been established
under OH-132 and KY-116 and is located at the addresses in the
ADDRESSES section at the beginning of this document. The addresses for
sending comments are also provided in the ADDRESSES section at the
beginning of this document.
Public comments are solicited on EPA's proposed rulemaking action.
Public comments received by February 23, 2000, will be considered in
the development of EPA's final rulemaking action. EPA will not respond
to comments received on the February 18, 1997 (62 FR 7194), proposed
rulemaking, since a new request has been submitted and is the subject
of this proposed rulemaking.
III. 182(f) NOX Exemption for Kentucky
A. What Action Is EPA Proposing To Take?
EPA is also re-proposing to approve an exemption from the
NOX requirement as provided for in Section 182(f) for the
Kentucky portion of the Cincinnati-Hamilton area. Section 182(f)
establishes NOX requirements for ozone nonattainment areas
which require the same provisions for major stationary sources of
NOX as apply to major stationary sources of VOCs. One of the
requirements of major sources of VOCs is RACT. Therefore, pursuant to
section 182 of the CAA, RACT is a requirement for major sources of
NOX in an ozone nonattainment area. However, it provides
that these requirements do not apply to a nonattainment area outside an
ozone transport region if the Administrator determines that
NOX reductions would not contribute to attainment. A
NOX exemption request must be based upon the most recent
three years of monitoring data, and demonstrate that additional
reductions of NOX would not contribute to attainment of the
NAAQS.
The EPA memorandum from John S. Seitz, Director, Office of Air
Quality Planning and Standards, dated February 8, 1995, entitled,
``Section 182(f) Nitrogen Oxides (NOX) Exemptions-Revised
Process Criteria,'' decouples the section 182(f) exemptions from
NOX transport issues. The memorandum states that for an area
that did not implement section 182(f) NOX requirements, but
did attain the ozone standard as demonstrated by ambient air monitoring
data (consistent with 40 CFR part 58 and recorded in the AIRS), it is
apparent that additional NOX reductions required by section
182(f) would not contribute to attainment of the NAAQS in the area.
On November 11, 1994, the Cabinet submitted a request for a 182(f)
NOX RACT exemption for the Kentucky portion of the
Cincinnati-Hamilton area and on May 10, 1995 (60 FR 24813), EPA
proposed approval of the exemption. Subsequently, since the area
monitored an exceedance that constituted a violation of the ozone
NAAQS, EPA did not publish a final notice approving the NOX
exemption.
Based on evidence that the area is currently demonstrating
compliance with the ozone NAAQS, EPA is re-proposing approval of
Kentucky's request to exempt the Kentucky portion of the Cincinnati-
Hamilton area from the 182(f) NOX requirement. Discussed in
detail above, the EPA is also proposing to determine the Cincinnati-
Hamilton area has attained the 1-hour ozone NAAQS. This proposed
determination of attainment is based on three years of complete,
quality-assured, ambient air monitoring data for the 1996 to 1998 ozone
seasons that demonstrate that the ozone NAAQS has been attained in the
area. Because the Cincinnati-Hamilton area has presently attained the
ozone NAAQS, this
[[Page 3641]]
exemption request for the area meets the applicable requirements. If
final action is taken on this proposal to exempt the Kentucky portion
from 182(f) requirements, upon redesignation it would no longer be
subject to NOX requirements for moderate nonattainment
areas. However, all controls previously approved by the Cabinet must
continue to be implemented, but no additional NOX measures
would be required. If there is a violation of the ozone NAAQS in any
portion of the Cincinnati-Hamilton area, the exemption would no longer
be applicable.
B. Where Is the Public Record and Where Do I Send Comments?
The official record for this proposed rule has been established
under KY-84 and is located only at the EPA Region 4 address in the
ADDRESSES section at the beginning of this document. The address for
sending comments to EPA Region 4 is also provided in the ADDRESSES
section at the beginning of this document.
Public comments are solicited on EPA's proposed rulemaking action.
Public comments received by February 23, 2000, will be considered in
the development of EPA's final rulemaking action.
IV. Disclaimer Language Approving SIP Revisions in Audit Law States
Nothing in this action should be construed as making any
determination or expressing any position regarding Kentucky's audit
privilege and penalty immunity law Kentucky--``KRS 224.01-040'' or its
impact upon any approved provision in the SIP, including the revision
at issue here. The action taken herein does not express or imply any
viewpoint on the question of whether there are legal deficiencies in
this or any other Clean Air Act program resulting from the effect of
Kentucky's audit privilege and immunity law. A state audit privilege
and immunity law can affect only state enforcement and cannot have any
impact on federal enforcement authorities. EPA may at any time invoke
its authority under the Clean Air Act, including, for example, sections
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions
of the state plan, independently of any state enforcement effort. In
addition, citizen enforcement under section 304 of the Clean Air Act is
likewise unaffected by a state audit privilege or immunity law.
V. What Administrative Requirements Were Considered?
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing
the Intergovernmental Partnership). Executive Order 13132 requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Thus, the requirements of section 6 of the Executive Order do not apply
to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it does not involve decisions intended to mitigate environmental health
or safety risks.
D. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments. If the mandate is
unfunded, EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.'' Today's proposed rule does not
significantly or uniquely affect the communities of Indian tribal
governments. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
E. Regulatory Flexibility Act
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 proposed rule will not have a significant impact on a
substantial
[[Page 3642]]
number of small entities because 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, because the 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 CAA, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The CAA
forbids EPA 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).
Redesignation of an area to attainment under section 107(d)(3)(E)
of the CAA does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. The
Administrator certifies that the approval of the redesignation request
will not affect a substantial number of small entities.
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 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
annual 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 annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing new regulations. To comply with
NTTAA, the EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this proposed action.
Today's action does not require the public to perform activities
conducive to the use of VCS.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Ozone, Reporting
and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control.
Authority: 42 U.S.C. 7401-7671q.
Dated: January 12, 2000.
Francis X. Lyons,
Regional Administrator, Region 5.
Dated: January 7, 2000.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 00-1555 Filed 1-21-00; 8:45 am]
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