[Federal Register Volume 70, Number 118 (Tuesday, June 21, 2005)]
[Rules and Regulations]
[Pages 35946-35966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12016]
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Part IV
Environmental Protection Agency
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40 CFR Parts 52 and 81
Approval and Promulgation of State Implementation Plans and Designation
of Areas for Air Quality Planning Purposes in Ohio; Final Rule
Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules
and Regulations
[[Page 35946]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[R05-OAR-2005-OH-0004; FRL-7925-3]
Approval and Promulgation of State Implementation Plans and
Designation of Areas for Air Quality Planning Purposes in Ohio;
Redesignation of Cincinnati to Attainment of the 1-Hour Ozone Standard
and Approval of Ozone Maintenance Plan; Approval of Volatile Organic
Compound Emissions Control Regulations; and Approval of Motor Vehicle
Emissions Budgets
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a request from the State of Ohio, submitted
in draft on March 10, 2005 and in final on May 20, 2005, to redesignate
the Cincinnati area (Butler, Clermont, Hamilton, and Warren Counties)
from nonattainment to attainment for the 1-hour ozone National Ambient
Air Quality Standard (NAAQS). In conjunction with this approval, EPA is
approving the State's plan for maintaining the 1-hour ozone NAAQS in
the Cincinnati area through 2015 as a revision to the Ohio State
Implementation Plan (SIP). EPA is approving Volatile Organic Compound
(VOC) emission control regulations for various source categories, thus
completing Ohio's obligation to adopt Reasonably Available Control
Technology (RACT) regulations for the Cincinnati area. EPA is approving
periodic VOC and Oxides of Nitrogen (NOx) emission
inventories for the Cincinnati area. EPA finds as adequate and is
approving the 2015 VOC and NOx Motor Vehicle Emission
Budgets (MVEBs) for the Cincinnati area as contained in the Cincinnati
area ozone maintenance plan.
EPA is not, at this time, taking action on Ohio's demonstrations
that termination of the vehicle Inspection and Maintenance (I/M)
programs in the Cincinnati and Dayton areas will not interfere with the
attainment and maintenance of the 1-hour ozone NAAQS in these areas,
and is not taking action on the State's requests for conversion of the
vehicle I/M programs in these areas to contingency measures in the 1-
hour ozone maintenance plans. The State did not submit a demonstration
of non-interference with the 8-hour ozone or fine particulate
(PM2.5) standards, or with any other applicable requirements
of the Clean Air Act (CAA). Such actions, however, may be considered in
subsequent rulemakings.
DATES: This rule is effective on June 14, 2005, except 40 CFR 52.1870
which is effective on July 21, 2005.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) Docket ID No. R05-OAR-2005-OH-0004. All
documents in the docket are listed in the RME index at http://docket.epa.gov/rmepub/, once in the system, select ``quick search,''
then key in the appropriate RME Docket identification number. Although
listed in the index, some information is not publicly available, i.e.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in RME or in hard copy at
the Environmental Protection Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. We
recommend that you telephone Edward Doty, Environmental Scientist, at
(312) 886-6057 before visiting the Region 5 office. This facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist,
Criteria Pollutant Section, Air Programs Branch (AR-18J), EPA Region 5,
77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6057,
[email protected].
SUPPLEMENTARY INFORMATION: In the following, whenever ``we,'' ``us,''
or ``our'' are used, we mean the United States Environmental Protection
Agency.
Table of Contents
I. What Is The Background for This Rule?
II. What Actions Are We Taking and When Are They Effective?
A. Finding of Continued Attainment for Cincinnati
B. Redesignation of the Cincinnati Area to Attainment of the 1-
Hour Ozone NAAQS
C. Approval of Ohio's Ozone Maintenance Plan for the Cincinnati
Area
D. Approval and Finding of Adequacy of VOC and NOX
Motor Vehicle Emission Budgets for the Cincinnati Area
E. Approval of VOC Emission Control Regulations for Various
Sources in the Cincinnati Area and Approval of Negative Declarations
for Some VOC Source Categories
F. Approval of Periodic Emission Inventories for the Cincinnati
Area
G. Termination of the Vehicle Inspection and Maintenance
Programs in the Cincinnati and Dayton Areas
H. Effective Date of These Actions
III. Why Are We Taking These Actions?
IV. What Are the Effects of These Actions?
V. What Comments Did We Receive and What Are Our Responses?
A. Comments Related to Ohio's VOC RACT Regulations
B. Comments Related to the Termination of the Vehicle Inspection
and Maintenance Programs in the Cincinnati and Dayton Areas
C. Comments Received After the Close of the Comment Period
VI. Did Ohio Adopt All of the Volatile Organic Compound Emission
Control Regulations Needed To Comply With the Reasonably Available
Control Technology Requirements of the Clean Air Act?
A. Source Categories Not Requiring New VOC Regulations
B. Source Categories for Which VOC RACT Regulations Have Been
Proposed and Adopted
VII. Statutory and Executive Order Review
I. What Is The Background for This Rule?
In accordance with section 107(d) of the Clean Air Act (CAA) as
amended in 1977, EPA designated all counties in the Cincinnati-Hamilton
area (the Ohio portion of this area includes Butler, Clermont,
Hamilton, and Warren Counties, and the Kentucky portion of this area
includes Boone, Campbell, and Kenton Counties) as an ozone
nonattainment area for the 1-hour ozone NAAQS in March 1978 (43 FR
8962). On November 6, 1991 (56 FR 56694), pursuant to section
107(d)(4)(A) of the CAA as amended in 1990, EPA designated the
Cincinnati-Hamilton area as a moderate ozone nonattainment area based
on monitored violations of the 1-hour ozone NAAQS recorded during the
1987-1989 period.
From 1996 through 1998, air quality monitors in Ohio and Kentucky
in the vicinity of the Cincinnati-Hamilton area recorded three years of
complete, quality-assured ambient ozone data that did not violate the
1-hour ozone NAAQS.\1\ Thus, the area met the air quality requirement
\2\ for redesignation to attainment of the 1-hour ozone NAAQS. This
area has continued to
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monitor attainment of the 1-hour ozone NAAQS from 1996 through the
present.
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\1\ The 1-hour ozone NAAQS is violated when the annual average
expected number of daily peak 1-hour ozone concentrations equaling
or exceeding 0.125 parts per million (ppm) (125 parts per billion
(ppb)) is 1.05 or greater over a three-year period at any monitoring
site in the area of interest.
\2\ Section 107(d)(3)(E) of the CAA specifies five criteria for
redesignation to attainment of the NAAQS, of which acceptable air
quality is only one of the criteria. See 70 FR 19898 for a complete
listing of all five criteria.
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In 1999, the Ohio Environmental Protection Agency (Ohio EPA) and
the Commonwealth of Kentucky Natural Resources and Environmental
Protection Cabinet (Cabinet) submitted separate requests for the
redesignation of the State-specific portions of the Cincinnati-Hamilton
area to attainment of the 1-hour ozone NAAQS. On January 24, 2000 (65
FR 3630), EPA proposed approval of the Ohio and Kentucky ozone
redesignation requests. EPA issued a final rulemaking (65 FR 37879) on
June 19, 2000, effective July 5, 2000, determining that the Cincinnati-
Hamilton area had attained the 1-hour ozone NAAQS and approving the
Ohio and Kentucky ozone redesignation requests, the States' plans for
maintaining the 1-hour ozone NAAQS, and their NOX emission
control exemption requests (NOX control waiver requests).
On August 17, 2000, two Ohio residents and the Ohio chapter of the
Sierra Club petitioned the United States Court of Appeals for the 6th
Circuit (Court) for review of EPA's final rule on the States' ozone
redesignation requests for the Cincinnati-Hamilton area. The
petitioners urged the Court to find that the EPA had erred in a number
of respects in approving the redesignation requests. In its September
11, 2001 decision, the Court upheld EPA's actions with respect to all
requirements for redesignation that related to Kentucky. The Court also
rejected the majority of the petitioners' challenges with respect to
EPA's approval of the Ohio redesignation request, with the sole
exception of EPA's finding that it could approve Ohio's redesignation
request before Ohio had fully adopted all of the VOC emission control
rules needed to comply with the RACT requirements of part D, subpart 2
of the CAA. The Court concluded that EPA exceeded its discretion by
determining that Ohio did not need to fully adopt all of the VOC RACT
rules required by the CAA as a prerequisite for EPA's approval of
Ohio's ozone redesignation request for the Cincinnati area. The Court
thus vacated EPA's action in redesignating the Cincinnati-Hamilton area
to attainment of the 1-hour ozone NAAQS and ``remanded for further
proceedings consistent with this opinion.'' See Wall v. EPA (265 F.3d
436, 6th Circuit 2001).
On February 12, 2002 (67 FR 6411), in a direct final rule, the EPA
took action to reinstate a designation of attainment of the 1-hour
ozone NAAQS for the Kentucky portion of the Cincinnati-Hamilton area. A
submittal of a negative comment, however, resulted in the withdrawal of
this rule on April 8, 2002 (67 FR 16646). The reinstatement of the
attainment designation for the Kentucky portion of the Cincinnati-
Hamilton area was subsequently completed through promulgation of a
final rule responding to comments on July 31, 2002 (67 FR 49600).
On March 12, 2002 (67 FR 11041), through a technical amendment to
its June 19, 2000 final rule, the EPA revised the ozone designation of
the Ohio portion of the Cincinnati-Hamilton area to nonattainment of
the 1-hour ozone NAAQS with a classification of moderate nonattainment.
This technical amendment became effective on April 11, 2002.
On April 30, 2004 (69 FR 23858), the Cincinnati area was designated
as nonattainment for the 8-hour ozone NAAQS and classified as a subpart
1 (subpart 1 of the CAA) or ``Basic'' area. This designation became
effective on June 15, 2004. Please note, however, that today's final
action primarily deals with the designation of this area for the 1-hour
ozone NAAQS and not for the 8-hour ozone NAAQS.
On March 10, 2005, the Ohio EPA submitted a new ozone redesignation
request and ozone maintenance plan, in draft, for the Cincinnati area.
This submittal also included draft VOC emission control rules that Ohio
was preparing to adopt to comply with the RACT requirements of the CAA.
The submittal requested the EPA to parallel process \3\ the ozone
redesignation request, ozone maintenance plan, and VOC emission control
rules, and noted that the State had scheduled a public hearing to
address the submittal items.
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\3\ A state request for parallel processing is used when the
state has not completed adoption of a SIP revision request, but
anticipates doing so prior to EPA's completion of final rulemaking
for the requested SIP revision. Parallel processing of a state's
draft SIP revision request can only lead to a final EPA rulemaking
(without additional proposed rulemaking by the EPA) if the state's
final, adopted SIP revision request is essentially the same as the
initial drafted SIP revision request or is modified in a manner
requested by the EPA and noted in EPA's parallel processing proposed
rule.
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On April 4, 2005, the Ohio EPA submitted additional information,
including a negative declaration to avoid RACT for plastic parts
coating, and demonstrations showing that terminating the vehicle
inspection and maintenance (vehicle I/M) programs in the Cincinnati and
Dayton areas will not interfere with the attainment and maintenance of
the 1-hour ozone NAAQS in these areas. Consequently, the Ohio EPA
proposed to revise the SIP and the ozone maintenance plans for these
areas to move the vehicle I/M programs from the active portion of the
SIP to the contingency measure portions of the area-specific
maintenance plans. This submittal revised the ozone maintenance
demonstrations for these areas and revised mobile source emission
budgets to reflect the changes in mobile source VOC and NOX
emissions that will result when the I/M programs are terminated.
Finally, this submittal included a committal from the State to complete
and submit analyses in compliance with section 110(l) of the CAA to
demonstrate that terminating the vehicle I/M programs will not
interfere with the attainment of any NAAQS and with compliance with
requirements of the CAA.
On April 15, 2005, EPA published a proposed rule (70 FR 19895),
proposing to: (1) Find that the Cincinnati-Hamilton area has continued
to attain the 1-hour ozone NAAQS and to approve Ohio's request for the
redesignation of the Cincinnati area to attainment of the 1-hour ozone
NAAQS; (2) approve Ohio's ozone maintenance plan for the Cincinnati
area; (3) approve certain VOC emission control regulations as meeting
the RACT requirements of the CAA; (4) approve periodic emission
inventories for the Cincinnati area; and (5) notify the public that the
mobile source VOC and NOX emission estimates projected
through 2015 in the Cincinnati area maintenance plan are approvable and
adequate for conformity purposes. In addition, we proposed to find that
Ohio has demonstrated that termination of the vehicle I/M programs in
the Cincinnati and Dayton areas will not interfere with the attainment
and maintenance of the 1-hour ozone NAAQS in these areas. This proposed
rule established a 30-day public comment period.
This rule is EPA's final action on the April 15, 2005 proposed rule
as it relates to attainment and maintenance of the 1-hour ozone NAAQS
in the Cincinnati area. Since the final, State-adopted SIP revision
request is substantially the same as that submitted for parallel
processing by the EPA and contains only significant revisions as
requested by the EPA and noted in our April 15, 2005 proposed rule, we
will not publish an additional proposed rule on this State submittal.
EPA is, however, not taking final action on certain portions of the
April 15, 2005 proposed rule as noted below.
II. What Actions Are We Taking and When Are They Effective?
After consideration of the comments received in response to the
April 15, 2005 proposed rule, as described in section V below, and the
State's final,
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adopted SIP revisions and supporting material (reviewed in draft form
in the April 15, 2005 proposed rule), we are taking the following
actions:
A. Finding of Continued Attainment for Cincinnati
In its June 19, 2000 rulemaking, EPA issued a final rule
determining that the Cincinnati-Hamilton area had attained the 1-hour
ozone NAAQS (65 FR 37879). While the Court, in Wall v. EPA, vacated
EPA's action redesignating the area to attainment, it did not vacate
EPA's determination of attainment for the area. Therefore, the
determination of attainment remains intact and in effect. 67 FR 49600
(July 31, 2002). As a result of this determination of attainment, EPA
also determined that certain attainment demonstration requirements,
along with certain other related requirements of part D of title I of
the CAA are not applicable to the area. In its April 15, 2005 proposal,
EPA proposed to find that the Cincinnati-Hamilton area has continued to
attain the 1-hour NAAQS. 70 FR 19899, 19901. In this notice we are
finalizing this finding. In addition, since the Cincinnati-Hamilton
area continues to attain the 1-hour ozone NAAQS, we note that a
NOX emission control waiver pursuant to section 182(f) of
the CAA, approved on July 13, 1995 (60 FR 36060) and extended on June
19, 2000 (65 FR 37879), continues in the Cincinnati area.
The State must continue to operate an appropriate monitoring
network, in accordance with 40 CFR part 58, to verify the attainment
status of the area. The air quality data relied on to determine that
the area is attaining the ozone NAAQS must be consistent with 40 CFR
part 58 requirements and other relevant EPA guidance and recorded in
EPA's Aerometric Information Retrieval System (AIRS).
EPA has reviewed the ambient air monitoring data for ozone for the
Cincinnati-Hamilton area from the 2002 to 2004 ozone seasons (for the
Cincinnati-Hamilton area, the ozone season is April 1 through October
31 of each year, when the highest 1-hour ozone concentrations are
typically recorded). On the basis of this review, EPA has determined
that the area has continued to attain the 1-hour ozone NAAQS during the
2002-2004 period. Therefore, the State of Ohio is not required to
submit an ozone attainment demonstration, Reasonably Available Control
Measures (RACM) regulations, a Reasonable Further Progress (RFP) plan,
and a section 172(c)(9) contingency measure plan, nor does it need any
other measures (other measures mandated by the CAA) to attain the 1-
hour ozone NAAQS in the Cincinnati-Hamilton area.
B. Redesignation of the Cincinnati Area to Attainment of the 1-Hour
Ozone NAAQS
As just explained, EPA has determined that the entire Cincinnati-
Hamilton area has attained the 1-hour ozone standard. In this final
rule, EPA is taking action on Ohio's request to redesignate the Ohio
portion (the Cincinnati area) of the Cincinnati-Hamilton area to
attainment of the 1-hour ozone NAAQS. As noted above, on February 12,
2002 (67 FR 6411), EPA reinstated its approval of a redesignation to
attainment of the 1-hour NAAQS for the Kentucky portion of the
Cincinnati-Hamilton area. Also as noted above, on remand from the
Court, Wall v. EPA, 265 F.3d 436 (6th Cir. 2001), on March 12, 2002 (67
FR 11041), EPA reinstated a designation of nonattainment of the 1-hour
ozone NAAQS for the Ohio portion of the Cincinnati-Hamilton area. Thus,
only the Ohio portion of the Cincinnati-Hamilton area was left with a
designation of nonattainment for the 1-hour ozone NAAQS in this area.
Thus, this final rule only affects the Ohio portion of the Cincinnati-
Hamilton area.
EPA is approving the request from the State of Ohio to redesignate
the Cincinnati area to attainment of the 1-hour ozone NAAQS. With our
approval of Ohio's VOC RACT rules, as discussed below, the Cincinnati
area has complied with all CAA criteria for redesignation to attainment
of the NAAQS, as set forth in section III below.
C. Approval of Ohio's Ozone Maintenance Plan for the Cincinnati Area
EPA is approving Ohio's plan for maintaining the 1-hour ozone NAAQS
in the Cincinnati area through 2015 as a revision to the Ohio SIP. The
adopted maintenance plan contains triggering mechanisms and contingency
measures designed to promptly correct a violation of the 1-hour ozone
NAAQS that occurs after redesignation of the Cincinnati area to
attainment of the NAAQS. Section 175A of the CAA requires that a
maintenance plan include such contingency measures as EPA deems
necessary to assure that the State will promptly correct a violation of
the NAAQS that occurs after redesignation.
The VOC contingency measures listed in the adopted maintenance plan
are the following: \4\
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\4\ Note that the contingency plan adopted by the State also
includes VOC RACT for sources covered by new control technology
guidelines issued in response to the 1990 CAA amendments. This
contingency measure has become moot because the State has adopted
such RACT rules and is in the process implementing these
regulations.
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1. Lower Reid Vapor Pressure (RVP) gasoline; \5\
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\5\ Prior to implementing lower RVP gasoline requirements, the
State of Ohio would have to be granted a waiver to address
preemption requirements under section 211(c)(4)(C) of the CAA.
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2. Reformulated gasoline;
3. Broader geographic coverage of existing regulations;
4. Application of RACT to smaller existing sources;
5. Implementation of one or more transportation control measures
sufficient to achieve at least a 0.5 percent reduction in area wide VOC
emissions;
6. Alternative fuel programs for fleet vehicle operations;
7. Controls on consumer products consistent with those adopted
elsewhere in the United States;
8. VOC offsets for new or modified major sources;
9. VOC offsets for new or modified minor sources;
10. Increased ratio of VOC offsets required for new sources; and
11. Requirements of VOC controls on new minor sources.
Ohio also requested that the vehicle I/M program, known as E-Check
in Ohio, be converted to a contingency measure in the maintenance plan.
However, Ohio offered EPA the option of first approving a maintenance
plan in which E-Check remains an active measure and later approving a
revision to the maintenance plan to convert E-Check to a contingency
measure. For reasons described below, EPA is approving a maintenance
plan in which the projected emission estimates take no credit for the
operation of E-Check, even though E-Check would remain an active
measure in the SIP.
Consideration and selection of one or more of the contingency
measures will take place in the event that it is verified that the 1-
hour ozone NAAQS is violated after the redesignation of the Cincinnati
area to attainment of the NAAQS. The selected contingency measure(s)
will be implemented within 12 months, after verification of a NAAQS
violation. If the NAAQS continues to be violated after the
implementation of the VOC contingency control measure, NOX
RACT will be adopted and implemented. As noted above, the list of
contingency measures is made up entirely of VOC emission control
measures. Ohio's first preference for the selection of an emissions
control measure as a contingency measure is to pursue a VOC emissions
reduction
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measure. The State wants to pursue NOX RACT as an
additional, contingency emissions control measure only if the
implementation of the VOC emissions control measure fails to prevent
additional violations of the 1-hour ozone NAAQS.
The maintenance plan estimates emissions 10 years into the future
from the anticipated year of the redesignation as required by section
175A of the CAA. These emission estimates are for point, area, and
mobile sources in the Ohio portion of the Cincinnati-Hamilton area. The
emissions estimates demonstrate continued maintenance of the 1-hour
ozone standard through 2015. The latest information was used to project
these emissions. The mobile source emissions estimates were developed
using the MOBILE6 model. As noted above, the mobile source emission
estimates do not include the emission reductions resulting from the
continued implementation of the E-Check program. The maintenance plan
demonstrates that the 1-hour standard can be maintained without taking
credit for the E-Check program. The State continues to implement the E-
Check program in the Cincinnati area in compliance with the current
SIP, but anticipates it will submit a request for its future
termination and retention as a contingency measure. In this request,
the State will demonstrate that termination of the E-Check program will
not interfere with the attainment of any NAAQS and with compliance with
any requirement of the CAA. In addition, the State will demonstrate
compliance with 40 CFR 51.372(c).
Despite the fact that Ohio is continuing with the implementation of
the E-Check program, we believe we can approve the ozone maintenance
plan even though Ohio has not taken credit for the emissions reductions
resulting from the E-Check program in the maintenance demonstration.
Ohio's approach provides a conservative demonstration that shows that
maintenance of the 1-hour ozone standard will occur in the Cincinnati
area even if the E-Check program is terminated.
D. Approval and Finding of Adequacy of VOC and NOX Motor
Vehicle Emission Budgets for the Cincinnati Area
EPA finds as adequate and approves the 2015 Motor Vehicle Emission
Budgets (MVEBs) of 26.2 tons per day for VOC and 39.5 tons per day for
NOX for the Ohio portion of the Cincinnati-Hamilton area in
the State-adopted maintenance plan. These MVEBs are subarea budgets for
the Ohio portion of the Cincinnati-Hamilton area and will be used for
future transportation conformity determinations.
Although these budgets do not include emissions reductions from the
E-Check program, the emissions estimates continue to decline from
current estimates (from 1996 and 2005 levels, see Tables 4 and 5 in our
April 15, 2005 proposed rule, 70 FR 19911) and demonstrate that the 1-
hour ozone standard will be maintained. These MVEBs have been through
the appropriate public involvement and comment period requirements
without receiving adverse comment. The budgets meet the adequacy
criteria, 40 CFR 93.118(e)(4), and are approvable as part of the 1-hour
ozone maintenance plan. These budgets set a tighter limit (the budgets
are lower) than the current 2010 Cincinnati area emissions budgets,
which are currently being used for transportation conformity purposes.
The current 2010 budgets are: 37.9 tons per day of VOC and 62.3 tons
per day of NOX. The approved 2015 budgets will replace the
current 2010 budgets, as detailed in our April 15, 2005 proposed rule,
upon the effective date of this rule so that the maintenance plan, as
approved, will extend 10 years past the redesignation date as required
by section 175A of the CAA. The newer budgets, which are being approved
as part of the 1-hour maintenance plan, are consistent with the goals
of section 110(l) of the CAA because they set a tighter cap on mobile
source VOC and NOX emissions for transportation conformity
purposes, thereby limiting growth in mobile source emissions allowed in
the transportation plan.
Subsequent to the effective date of this rule, the State of Ohio
and local planning agencies in the Cincinnati area will have to use the
2015 emissions budgets in all transportation conformity analyses and
demonstrations.
E. Approval of VOC Emission Control Regulations for Various Sources in
the Cincinnati Area and Approval of Negative Declarations for Some VOC
Source Categories
As noted below, EPA is approving VOC emission control regulations
that the State has adopted for the following source categories: (1)
Bakeries; (2) batch chemical operations; (3) industrial wastewater; (4)
synthetic organic chemical manufacturing industry reactor and
distillation units; and (5) wood furniture manufacturing as meeting the
VOC RACT requirements of the CAA. EPA is also approving negative
declarations (determinations that there are no applicable sources in
the Cincinnati area requiring the implementation of RACT emission
control measures) for the following source categories: (1) Industrial
cleaning solvents; (2) shipbuilding and ship repair industry; (3)
automobile refinishing; (4) aerospace manufacturing and rework
facilities; (5) volatile organic liquid storage tanks; (6) lithographic
printing; and (7) plastic parts coating. These adopted VOC RACT rules
and negative declarations complete Ohio's obligations to meet the VOC
RACT requirements of the CAA.
F. Approval of Periodic Emission Inventories for the Cincinnati Area
EPA approves Ohio's emission inventories for 1996, 1999, and 2002
documented in Ohio's July 2, 1999, December 22, 1999, March 8, 2005,
and April 4, 2005 submittals, as meeting the requirements for such
periodic emission inventories contained in section 182(a)(3)(A) of the
CAA.
G. Termination of the Vehicle Inspection and Maintenance Programs in
the Cincinnati and Dayton Areas
As noted above, EPA is approving Ohio's maintenance plan for the
Cincinnati area as demonstrating that the area will maintain the 1-hour
ozone standard even without taking credit for emissions reductions due
to the E-Check program. This, however, does not mean that EPA is
approving the termination of the E-Check program in this area. As
explained in detail below, in response to public comments on our April
15, 2005 proposed rule, EPA is not taking action on the conversion of
E-Check to contingency measures in the Cincinnati and Dayton areas
until the State has submitted, and EPA has approved certain
demonstrations and other information in compliance with 40 CFR
51.372(c) and section 110(l) of the CAA.
In our April 15, 2005 proposed rule at 70 FR 19912, we requested
the State of Ohio to project VOC and NOX emissions for the
Dayton area through 2015 to demonstrate that attainment of the 1-hour
NAAQS could be maintained without the emissions reductions resulting
from the E-Check program. In response to our request, the Ohio EPA has
provided projected emissions data demonstrating that the 1-hour ozone
NAAQS can be maintained through 2015 even if the E-Check program is
terminated in the Dayton area. As noted here, however, we are not
taking action on the conversion of the E-Check program to a contingency
measure in the Dayton 1-hour ozone maintenance plan at this time.
Further, we are not discussing the details of Ohio's projected VOC and
NOX emissions in this final action. We are deferring this
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discussion until we review Ohio's section 110(l) demonstrations of non-
interference with attainment of other NAAQS and with compliance with
the requirements of the CAA for this area. Through that future
rulemaking, the public will be given an opportunity to review and
comment on Ohio's new emission projections for 2010 and 2015.
H. Effective Date of These Actions
EPA finds that there is good cause for this redesignation to
attainment and approval of the ozone maintenance plan, motor vehicle
emission budgets for the Cincinnati area, and periodic emissions
inventories as revisions to the SIP to become effective on June 14,
2005 after signature and transmittal of a rule report, including a copy
of the rule, to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States in accordance with the
Congressional Review Act, 5 U.S.C. 801 et seq. This is because a
delayed effective date is unnecessary due to the nature of a
redesignation to attainment, which confirms monitored attainment of the
NAAQS over a number of years and relieves the area from certain CAA
requirements that otherwise would apply to it. The immediate effective
date for this action is authorized under both 5 U.S.C. 553(d)(1), which
provides that a rulemaking action may become effective less than 30
days after publication if the rule ``grants or recognizes an exemption
or relieves a restriction'' and 5 U.S.C. 553(d)(3), which allows an
effective date less than 30 days after publication ``as otherwise
provided by the agency for good cause found and published with the
rule.'' With respect to its approval of the VOC emissions control
regulations for various source categories, these rules are effective 30
days after publication in the Federal Register.
III. Why Are We Taking These Actions?
EPA has determined that the Cincinnati-Hamilton area has continued
to attain the 1-hour ozone standard. EPA has determined that the State
of Ohio has adopted all VOC RACT rules required by the CAA, for all
source categories covered by Control Techniques Guidelines (CTGs), with
the exception of source categories lacking applicable sources in the
Cincinnati area and addressed through negative declarations, and for
all major non-CTG sources for the Cincinnati area. Finally, EPA has
determined that the State of Ohio has demonstrated that all other
criteria for the redesignation of the Cincinnati area from
nonattainment to attainment of the 1-hour ozone NAAQS have been met.
EPA is fully approving a maintenance plan meeting the requirements of
sections 175A and 107(d) of the CAA.
In the April 15, 2005 proposed rule at 70 FR 19898, EPA described
the applicable criteria for redesignation to attainment. Specifically,
section 107(d)(3)(E) allows for redesignation provided that: (1) The
Administrator determines that the area has attained the applicable
NAAQS; (2) the Administrator has fully approved the applicable
implementation plan for the area under section 110(k) of the CAA; (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, applicable
Federal air pollution control regulations, and other permanent and
enforceable emission reductions; (4) the Administrator has fully
approved a maintenance plan for the area as meeting the requirements of
section 175A of the CAA; and, (5) the State containing such area has
met all requirements applicable to the area under section 110 and part
D of the CAA.
EPA has determined that the Cincinnati-Hamilton area has continued
to attain the applicable NAAQS. EPA is fully approving the applicable
implementation plan for the Cincinnati area under section 110(k) of the
CAA. EPA has determined that the improvement in air quality in the
Cincinnati-Hamilton area is due to permanent and enforceable emission
reductions resulting from implementation of the applicable
implementation plan and applicable Federal air pollution control
regulations. EPA is fully approving a maintenance plan for the
Cincinnati area as meeting the requirements of section 175A of the CAA.
EPA is approving VOC RACT rules completing Ohio's VOC RACT rule
adoption requirements under the CAA. EPA is approving periodic emission
inventories for the Cincinnati area, meeting the CAA requirements for
such emission inventory updates. Finally, EPA concludes that Ohio has
met all requirements applicable to the Cincinnati area for purposes of
redesignation to attainment of the 1-hour ozone NAAQS under section 110
and part D of the CAA.
By finding that the maintenance plan provides for maintenance of
the 1-hour ozone NAAQS through 2015, EPA is hereby finding adequate and
approving the 2015 VOC and NOX MVEBs contained within the
maintenance plan. The MVEB for VOC in the Cincinnati area is 26.2 tons
per day. The MVEB for NOX in the Cincinnati area is 39.5
tons per day.
The rationale for these findings and actions are as stated in this
rulemaking and in the April 15, 2005 proposed rule, found at 70 FR
19895.
In our April 15, 2005 proposed rule, we proposed to approve the
redesignation of the Cincinnati area and to approve Ohio's new VOC
emission control regulations through parallel processing. Our proposed
rulemaking was completed during the same period that Ohio itself was
completing its adoption of the maintenance plan for the Cincinnati area
and of needed VOC emission control regulations. This parallel
processing was done at Ohio's request to expedite rulemaking on Ohio's
redesignation and SIP revision requests. Such parallel rulemaking can
only be completed through final rulemaking without additional proposed
rulemaking if Ohio makes a final submittal of adopted plans and VOC
emission control regulations that do not significantly differ from the
versions described and reviewed by the EPA in its proposed rulemaking
(including, where applicable, prospective revisions described and
requested by EPA in the proposed rulemaking). The State has in fact
here provided a final submittal that matches the draft submittal
described and reviewed in the notice of proposed rulemaking, except
that the final submittal includes the revisions to RACT rules that EPA
described as necessary in its notice of proposed rulemaking. Therefore,
we believe that the public has had suitable opportunity to comment on
the substance of our April 15, 2005 proposed rule and today's final
rule, and that EPA may properly proceed with final action on the
State's submittal.
IV. What Are the Effects of These Actions?
EPA concludes that the Cincinnati area has continued to attain the
1-hour ozone NAAQS, and, thus, the ozone attainment demonstration, RFP
plan, and certain other related requirements of part D of title I of
the CAA, including the section 172(c)(9) contingency measure
requirements (measures needed to mitigate a state's failure to achieve
reasonable further progress toward, and attainment of a NAAQS), the
section 182 attainment demonstration and rate of progress requirements,
and the section 182(j) multi-state attainment demonstration
requirements continue to be inapplicable to the Cincinnati area.
Approval of the Ohio redesignation request changes the official
designation
[[Page 35951]]
for the 1-hour ozone NAAQS found at 40 CFR part 81 for the Ohio portion
of the Cincinnati-Hamilton area from nonattainment to attainment. It
also incorporates into the Ohio SIP a plan for maintaining the 1-hour
ozone NAAQS through 2015. The maintenance plan includes contingency
measures to remedy any future violations of the 1-hour ozone NAAQS, and
includes VOC and NOX MVEBs for 2015 for the Cincinnati area.
As noted above, Ohio has submitted projected VOC and NOX
emissions for 2015 to revise the Dayton area 1-hour ozone maintenance
plan. We are not taking action on these projected emissions in this
final rule, but will address them in a future rulemaking when we
address Ohio's section 110(l) demonstrations showing that terminating
the E-Check program in the Dayton area will not interfere with the
attainment of any NAAQS and with compliance with the requirements of
the CAA. This future rulemaking will establish revised MVEBs for the
Dayton area, and will provide for public comment on the new MVEBs.
EPA's final Phase 1 rule to implement the 8-hour ozone NAAQS (69 FR
23951, April 30, 2004) provided that the 1-hour ozone standard would be
revoked for an area one year after the effective date of the area's
designation for the 8-hour ozone NAAQS (June 15, 2004). 40 CFR 50.9(b).
The Phase 1 rule also provided that an area's attainment status for the
1-hour ozone standard, as of the area's date of designation for the 8-
hour ozone standard, establishes the 1-hour emissions control
obligations that must remain in place for purposes of preventing anti-
backsliding. 40 CFR 51.905. For purposes of the anti-backsliding
provisions of the Phase 1 rule, the Cincinnati area remains a 1-hour
nonattainment/8-hour nonattainment area subject to the requirements of
40 CFR 51.905(a)(1).
Today's action to approve VOC RACT rules incorporates these rules
into the Ohio SIP and makes the rules federally enforceable.
Today's action does not affect the status of the E-Check program in
either the Cincinnati or Dayton areas. This program remains an active
measure in the Ohio SIP for these areas, and Ohio is continuing to
implement this program. As discussed below, before Ohio can convert E-
Check to a contingency measure for either area, Ohio has to modify its
legislation to assure that the State has provided for legislative
authority to restart E-Check on a contingency basis in compliance with
40 CFR 51.372(c). As noted in the proposed rulemaking, EPA also expects
Ohio to provide replacement measures or otherwise demonstrate non-
interference to assure that a discontinuation of E-Check would not
interfere with attainment of any NAAQS, including the 8-hour ozone and
PM2.5 standards, or interfere with meeting other
requirements of the CAA, as mandated under section 110(l) of the CAA.
EPA must complete rulemaking finding that 40 CFR 51.372(c) and section
110(l) of the CAA have been satisfied before Ohio discontinues the E-
Check program and converts E-Check to contingency measures in the ozone
maintenance plans for the Cincinnati and Dayton areas.
V. What Comments Did We Receive and What Are Our Responses?
We received four letters commenting on the April 15, 2005 proposed
rule. All four of the letters contained comments critical of various
portions of our proposed rule. The first letter was sent by the
American Lung Association (ALA) on April 6, 2005. ALA, in conjunction
with the Natural Resources Defense Council, sent additional comments on
April 25, 2005. ALA, in conjunction with the American Lung Association
of Ohio, the Ohio Environmental Council, Earthjustice, and the Natural
Resources Defense Council, sent more extensive comments on May 16,
2005. Earthjustice also sent comments on May 16, 2005. A summary of the
comments and EPA's responses to them are provided below.
A. Comments Related to Ohio's VOC RACT Regulations
Earthjustice is critical of EPA's approval of Ohio's negative
declarations for certain VOC source types for RACT purposes and EPA's
conclusion that Ohio has met all of the VOC RACT requirements of the
CAA for the Cincinnati area.
Comment 1: The plain language of 182(b)(2)(A) mandates that each
moderate area SIP shall require implementation of RACT for each
category of VOC sources covered by a CTG document issued between
November 15, 1990 and the date of attainment. The State's duty to adopt
these RACT provisions is not waived merely because no individual
sources are big enough to trigger the RACT control requirements.
Response 1: Ohio EPA submitted negative declarations for seven
source categories. Of these seven categories, Shipbuilding and Ship
Repair Operations and Aerospace Manufacturing and Rework facilities are
covered by a post-1990 CTG (subject to CAA section 182(b)(2)(A)) and
each CTG contains specific applicability cutoffs. The remaining 5
categories of sources are considered ``non-CTG'' source categories
subject to section 182(b)(2)(C) of the CAA, and a RACT rule would be
required for any of these source categories if any source within the
source category has greater than 100 tons VOC per year of potential
non-CTG emissions (either by itself or combined with other non-CTG
sources at a facility) and is not subject to federally enforceable
operating and/or production restrictions limiting the facility to less
than 100 tons per year of non-CTG VOC emissions. Non-CTG emissions
include emissions from source categories for which there is not a CTG
document, and also include unregulated emissions from source categories
covered by a CTG category. Potential emissions or potential to emit
(PTE) represents the emissions from a source if it were at maximum
production and operating 8,760 hours per year (i.e., 24 hours/day, 7
days/week), essentially a physical emissions ceiling.
We disagree with the commenter that section 182(b)(2)(A) requires
the State to adopt RACT rules where there are no sources in the area
that have the potential to emit VOC above the cut-off levels specified
in the relevant CTGs. Section 182(b)(2)(A) requires the State to adopt
RACT rules for ``[e]ach category of VOC sources in the area covered by
a CTG document issued by the Administrator between the date of
enactment of the Clean Air Act Amendments of 1990 and the date of
attainment.'' Thus, a State must adopt RACT rules for categories of
sources ``covered by a CTG document.'' Each CTG document establishes a
source cut-off for applicability of RACT. Sources with emissions at or
above the cut-off are ``covered by the CTG document,'' and sources that
are below the cut-off are not ``covered by the CTG document.'' Thus,
where a state can demonstrate that there are no sources in an area that
meet the requirements for RACT as set forth in a specific CTG, then the
State is not required under section 182(b)(2)(A) to adopt a RACT rule
for that category of sources. \6\ This
[[Page 35952]]
interpretation of the Act by EPA is long-standing and was in fact set
forth in the April 16, 1992, General Preamble for the implementation of
title I of the CAA of 1990. In that notice, we stated: ``All States
should submit negative declarations for those source categories for
which they are not adopting CTG-based regulations (because they have no
sources above the CTG recommended threshold)* * *'' (57 FR 13512, April
16, 1992).
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\6\ Although the commenter does not specifically reference
sections 182(b)(2)(B) and (C), these provisions are subject to the
same interpretation. Subsection (B) uses the same phrasing as
subsection (A)--requiring RACT for sources ``covered by any [pre-
1990] CTG.'' Subsection (C), when read in conjunction with the
opening paragraph of section 182(b)(2), requires RACT rules for
major stationary sources in the area that are not covered by a CTG.
Thus, RACT rules are not needed for sources that do not meet the
definition of a ``major stationary source,'' which is 100 tpy for
the Cincinnati area, which is a 1-hour moderate ozone nonattainment
area.
---------------------------------------------------------------------------
For the reasons provided elsewhere in this notice, we believe that
Ohio EPA has thoroughly documented that there are, in fact, no sources
in the Cincinnati ozone nonattainment area that are above the
applicability cutoff and thus the State was not required to submit RACT
rules for those two CTG categories.
Comment 2: Neither the State nor EPA have documented that all
sources within each of the seven categories do in fact have potential
to emit at levels below the relevant thresholds (aside from those
sources that are subject to enforceable emission caps). Aside from
those sources that are subject to enforceable emission caps that keep
them below the threshold, the State has not explained how it calculated
or estimated potential to emit at all of the relevant sources. For
example, for Industrial Cleaning Solvents, the State's negative
declaration consists of a letter with a table showing emission figures
for each company but does not explain how the emission figures were
derived. An entry of 184.65 tons of VOC emissions for coatings was
difficult to reconcile with the state's assertion that no facilities
with Industrial Cleaning Solvent operations have combined non-CTG PTE
of 100 Tons per year or more.
Response 2: The State has fully documented that there are no
sources in each of the seven source categories with potential emissions
above the applicable cut-off levels. In the negative declaration for
each source-category, the State first explained how it searched the
area for any sources that potentially could be subject to the relevant
CTG or to non-CTG RACT. Once the State developed the list of sources
potentially subject to RACT, it then evaluated the individual sources
to determine whether the sources had potential emissions above the
applicable cut-off. If a source had a federally-enforceable permit
limiting emissions below the cut-off (i.e., an ``emissions cap''), the
State did not need to analyze the source further. For the remaining
sources, the State analyzed whether the potential emissions of the
sources were above the cut-off level. There were two methods for
performing this analysis. First, the State could use the results of
test methods--where the emissions of a specific source are derived
based on a test of actual emissions from the facility. Where the State
used this method of analysis, the test methods in OAC rule 3745-21-10,
which have been approved by EPA, were used. Second, where test data are
unavailable, EPA has established emission calculation procedures based
upon the source characteristics. For source categories involving
evaporative emissions, such as cleaning solvents, potential emissions
are based on determining the weight of volatile organic material that
would be used with the source operating at maximum capacity. This is
the most direct way of estimating emissions.
During the State hearing process, the State made available for
public comment the detailed information about (1) how it determined
whether there were sources potentially subject to RACT in each
category; (2) which of those sources had federally enforceable permit
limits ``capping'' their emissions below the applicable cut-off; (3)
the potential emissions for sources that do not have their emissions
capped; and (4) the source-specific calculations for each source (the
Hamilton County Department of Environmental Services (HAMCO--a local
air agency) maintains files which document the emissions of the sources
listed in the tables attached to the negative declaration letters). The
State submitted items (1), (2) and (3) as part of the SIP revision, and
that information was available during the comment period on this rule.
In addition, in response to questions from EPA, the State submitted:
(1) In a May 2, 2003 email by HAMCO, additional information regarding
how the State calculated industrial cleaning solvent emissions and
examples of those calculations; and, (2) in a January 9, 2003, letter
from HAMCO, the State provided example calculations for a storage tank
at the Valvoline Oil Company terminal.
The following summarizes the more detailed information that was
available to the public for each of the seven categories for which
negative declarations were documented by the Ohio EPA:
(1) The applicability cutoff for industrial cleaning solvents is a
PTE of 100 tons VOC per year, and Ohio EPA has documented that all of
the industrial cleaning solvent sources have less than 50 tons VOC per
year of potential emissions;
(2) Ohio EPA has adequately documented that there are no ship
building and repair facilities;
(3) The applicability cutoff for auto refinishing is 100 tons VOC
per year, and Ohio EPA has documented that all of the auto refinishing
facilities have potential emissions of less than 25 tons VOC per year
or have a federally-enforceable Permit to Install (PTIs) limiting
emissions to less than 25 tons VOC per year;
(4) The applicability cutoff for aerospace manufacturing and rework
facilities is a PTE of 25 tons VOC per year, and Ohio EPA has
documented that all such sources have potential emissions below this
cutoff or have a federally-enforceable PTI restricting emissions to
less than 25 TPY;
(5) The applicability cutoff for VOL storage tanks is 100 tons VOC
per year, and Ohio EPA has documented that all VOL storage tanks (a)
are already subject to an existing RACT rule or are below RACT control
requirement cutoffs; (b) have a federally-enforceable PTI limiting
actual VOC emissions to below 100 tons per year; or, (c) have a
potential to emit less than this cut-off;
(6) The applicability cut-off for offset lithographic printing is
100 tons VOC per year. Ohio EPA has documented all such sources have
potential emissions below this cut-off or have a federally-enforceable
PTI restricting emissions to less than 100 TPY; and,
(7) The applicability cut-off for automotive plastic parts coating
is 100 tons VOC per year. Ohio EPA has documented all such sources have
potential emissions below this cut-off or have a federally-enforceable
PTI restricting emissions to less than 100 TPY.
The commenter raises a specific concern with respect to a table in
the negative declaration for the Industrial Cleaning Solvents source
category. The commenter claims that because the source cut-off for RACT
is 100 tpy, the commenter does not understand why the 184.65 tons of
VOC emissions for coatings does not subject the source to RACT. As
stated on the referenced table, the 184.65 tpy emission is for
coatings. These emissions are not part of the cleanup solvent
emissions,\7\ and, because these emissions are already subject to RACT
under the EPA-approved State coating rule in OAC rule 3745-21-09, they
are not non-CTG emissions. Thus, for purposes of whether the source is
a major source for the industrial cleaning solvents category, those
emissions are not considered.
---------------------------------------------------------------------------
\7\ Coatings are materials, such as paint, that are used to coat
another surface. Solvents are frequently used at coating facilities
to clean the coating material from the instruments and other
surfaces that were not intended to be coated.
---------------------------------------------------------------------------
Comment 3: The negative declarations are substantially out of date,
e.g. July
[[Page 35953]]
2003 for lithographic printing and October 2003 for aerospace.
Response 3: The negative declarations are not substantially out of
date. States must first develop SIP revisions, which are then submitted
and which EPA must process through rulemaking. Section 110 of the CAA
provides for up to 18 months for EPA to process a SIP revision. Thus,
it is not unusual for EPA to be acting on a SIP that has components
that were adopted and submitted by the State one or two years before
EPA takes final action on the submission. Furthermore, the rate of
industrial growth during the past two years is not expected to have
added any sources above the applicability cutoff for any of the seven
negative declaration categories.
As explained by HAMCO, any permit application for the construction
or modification of a source subsequent to its applicable negative
declaration letter would have been reviewed by HAMCO and identified if
its potential to emit or allowable emissions exceeded the RACT
applicability cutoff for that category. No such permit applications
were identified by HAMCO since the negative declaration letters were
submitted by Ohio EPA.
Furthermore, the commenter did not identify any specific facilities
in any of the seven negative declaration categories that, subsequent to
the State's negative declaration letter, have VOC emissions above the
RACT applicability cutoff.
Comment 4: Even if the State's estimates of current potential to
emit were credible, they would not support waiver of RACT requirements
where the State does not and cannot claim that PTE will be capped at
current levels. Except for sources with PTE restrictions, sources below
the RACT applicability cutoffs could increase their emissions above the
threshold in the future.
Response 4: As provided in Response 1, above, we believe that
section 182(b)(2) of the CAA requires that the State adopt RACT rules
for source categories where there are sources that currently meet the
applicability threshold for imposition of RACT. In addition, we note,
as further explained below, that the State has assured EPA that it
would require RACT-level controls through its permitting process for
any new source that would have the potential to emit above the
applicability cut-off or for any existing source that was modified such
that potential emissions exceeded the applicability cutoff.
As discussed previously, certain sources in the seven negative
declaration categories are subject to a source-specific federally
enforceable permit to install, that limits emissions to below the
appropriate RACT applicability cutoff for its source category. Any
change in a permit to install resulting in an increase in emissions
would be subject to EPA and public review and would require RACT level
controls if the revised limit exceeds the RACT applicability cutoff.
Other sources in the seven negative declaration categories have
permits with allowable emissions below each source's applicability
cutoff. As stated by HAMCO, if a facility increases its emissions above
its present allowable emissions level, the definition of modification
in OAC rule 3745-31-01(PPP) would be triggered. By triggering the
modification definition, the facility would have to apply for a permit
to install which requires implementation of best available technology.
In order to satisfy the requirement of best available technology, Ohio
EPA would require any facility in one of the seven negative declaration
categories to meet RACT.
The remaining sources are exempted by the de minimis levels in OAC
3745-15-05 and/or exempted from the requirement to obtain a permit to
install and regulatory requirements in OAC 3745-31-03. The de minimis
levels are below the RACT applicability cutoffs for all source
categories. Similarly, any source that increased its emissions above
the de minimis level would need a permit that would be reviewed by
HAMCO to determine whether it exceeded a RACT applicability cutoff and,
if so, the source would be required to comply with best available
technology by complying with RACT limits.
Comment 5: EPA's proposed waiver of RACT requirements for
Cincinnati conflicts with the Agency's anti-backsliding rules for
implementing the 8-hour ozone standard. The anti-backsliding rules
expressly list RACT among the applicable requirements that cannot be
relaxed in 8-hour nonattainment areas, where the same area was
obligated (due to its 1-hour nonattainment status) to adopt and
implement RACT at the time of 8-hour designation. The Cincinnati area
is plainly covered by these provisions with respect to RACT. EPA's
redesignation proposal would allow the State to waive RACT requirements
that plainly applied to the area as of its 8-hour designation. Existing
sources could increase their potential to emit in the future above the
applicability cutoff, in which case the Act and EPA's anti-backsliding
rules expect that the source be subject to the CTG control
requirements.
Response 5: Section 51.905(a)(1)(i) merely states that the area
remains subject to the obligation to adopt and implement the applicable
requirements in section 51.900(f), including RACT, after revocation of
the 1-hour NAAQS. Therefore, this anti-backsliding provision does not
add any new control requirements. Under the anti-backsliding
provisions, if a negative declaration is adequate to meet an area's
obligation for the 1-hour NAAQS, then the anti-backsliding provisions
are satisfied. For the reasons provided elsewhere in this notice, we
have concluded that the State has met the RACT obligation that applied
for purposes of its 1-hour nonattainment designation and moderate
classification.
B. Comments Related to The Termination of the Vehicle Inspection and
Maintenance Programs in the Cincinnati and Dayton Areas
ALA, et al., submitted extensive comments on our proposal to
approve the conversion of the vehicle I/M program in the Cincinnati
area from an active element of the 1-hour ozone SIP to a contingency
measure in the 1-hour ozone maintenance plan for this area. The comment
letters also included comments dealing with the termination of the I/M
programs in the Cincinnati and Dayton areas and the section 110(l)
demonstrations needed to support these program terminations. Although
we are not at this time approving termination of the vehicle I/M
program in either Cincinnati or Dayton for the reasons explained
further below, these comments are addressed here.
The summary of comments and responses below also includes comments
made by the ALA on April 6, 2005, and by the ALA and the Natural
Resources Defense Council on April 25, 2005. In general, these comments
are subsumed in the more extensive comments of ALA, et al., dated May
16, 2005.
Comment 6: Ohio has not met the criteria that would allow the
Cincinnati area to be redesignated to attainment of the 1-hour ozone
standard because, among other things:
(a) Ohio does not have legal authority to implement an I/M program
after December 2005; and
(b) Ohio has not made the required demonstration that removal of
the I/M program in Cincinnati will not interfere with attainment of the
8-hour ozone and fine particulates (PM2.5) standards. Ohio
has made no attempt to make the necessary showing, promising only that
[[Page 35954]]
it will do so, without specifics of any sort.
Response 6: EPA believes that Ohio has met the necessary criteria
to allow the Cincinnati area to be redesignated to attainment of the 1-
hour ozone NAAQS. Specifically, section 107(d)(3)(E) of the CAA allows
for redesignation provided that: (1) The Administrator determines that
the area has attained the applicable NAAQS; (2) the Administrator has
fully approved the applicable implementation plan for the area under
section 110(k) of the CAA; (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, applicable Federal air pollution control
regulations, and other permanent and enforceable emission reductions;
(4) the Administrator has fully approved a maintenance plan for the
area as meeting the requirements of section 175A of the CAA; and, (5)
the State containing such area has met all requirements applicable to
the area under section 110 and part D of the CAA. As discussed above,
and in more detail in our April 15, 2004 proposed rule (70 FR 19900),
we believe that Ohio has met all of these requirements.
EPA does not believe that Ohio's lack of legal authority to
implement a vehicle I/M program after 2005 or the lack of a non-
interference demonstration with the attainment of the 8-hour ozone and
PM2.5 NAAQS has any impact on EPA's ability to approve
Cincinnati's redesignation request. An implemented vehicle I/M program
is currently required by the approved SIP and, should Ohio terminate
the vehicle I/M program without the submittal and EPA approval of a SIP
revision, it would be in violation of the SIP. Furthermore, the actions
EPA is taking today are not dependent on Ohio demonstrating that
removal of the vehicle I/M program in Cincinnati will not interfere
with the attainment of the 8-hour ozone and fine particulate standard.
EPA has determined that Ohio's current vehicle I/M authority does
not satisfy the requirements set forth in 40 CFR 51.372(c) authorizing
the conversion of Ohio's E-Check program in the Cincinnati and Dayton
areas to a contingency measure.
EPA believes that a basic I/M area which is designated
nonattainment for the 8-hour ozone NAAQS, and which is not required to
have a vehicle I/M program based on its 8-hour ozone designation, and
which has been redesignated to attainment for the 1-hour ozone NAAQS
continues to have the option to move its vehicle I/M program to a
contingency measure under 40 CFR 51.372(c) as long as the 8-hour
nonattainment area can demonstrate that doing so will not interfere
with its ability to comply with any affected NAAQS or any other
applicable CAA requirement pursuant to section 110(l) of the Act. This
issue is discussed in more detail in subsequent responses.
In order to satisfy the requirements outlined in 40 CFR 51.372(c),
the State's submittal must contain the legal authority to implement a
basic vehicle I/M program (or enhanced if the State chooses to opt-up)
that allows the adoption of implementing regulations without requiring
further legislation. This authority must continue for the full term of
the maintenance plan.
Based on EPA's determination regarding legal authority, EPA is not
approving conversion of Ohio's E-Check program in the Cincinnati and
Dayton areas to contingency measures in the maintenance plans for these
areas in today's final action. EPA also reiterates, as noted in the
proposal, that satisfactory compliance with section 110(l) relating to
non-interference must be completed before the E-Check program can be
terminated. Until Ohio makes the required demonstrations with respect
to legal authority under 40 CFR 51.372(c) and non-interference under
section 110(l) and EPA approves the conversion of the vehicle I/M
program to contingency measures in the Cincinnati and Dayton 1-hour
ozone maintenance plans, an implemented vehicle I/M program will remain
as an applicable requirement in the SIP for these two areas. EPA fully
approved Ohio's vehicle I/M program as a revision to the ozone SIP on
April 4, 1995 (60 FR 16989).
Today's action does not approve the discontinuation of the vehicle
I/M program in either the Cincinnati or Dayton area. The State has not
fully met its demonstration obligations under section 110(l) of the
CAA, and Ohio must continue to operate the vehicle I/M program in the
Cincinnati and Dayton areas until all obligations are addressed.
However, the fact that such a demonstration has not been submitted is
not germane to today's action regarding satisfaction of requirements
relative to redesignation under the 1-hour ozone standard.
EPA believes that Ohio has met the necessary criteria to allow the
Cincinnati area to be redesignated to attainment of the 1-hour ozone
NAAQS. In addition, EPA believes that Ohio has made a successful
demonstration showing continued maintenance of the 1-hour NAAQS. EPA is
proceeding with final approval of the redesignation of the Ohio portion
of the Cincinnati-Hamilton area and the area's maintenance plan with
projected emissions not taking credit for the vehicle I/M program even
though the SIP provides for continued implementation of the vehicle I/M
program in the Cincinnati area.
Comment 7: The need for expeditious attainment of a NAAQS is the
central principle of title I of the CAA. Cincinnati and Dayton continue
to have serious air quality problems, as evidenced by their
nonattainment status for the 8-hour ozone and PM2.5
standards. EPA promulgated the 8-hour ozone standard because the 1-hour
ozone standard was insufficient to protect public health. The EPA
committed through its anti-backsliding policy that the transition
between the 1-hour ozone standard and the 8-hour ozone standard would
not lead to compromises in air quality. That is, however, what EPA's
proposal would do.
The anti-backsliding provisions applicable to the transition from
the 1-hour ozone standard to the 8-hour ozone standard prohibit removal
of the vehicle I/M programs for the Cincinnati and Dayton areas. The
provisions provide that the requirements that apply to an 8-hour ozone
nonattainment area are the requirements that applied under the 1-hour
ozone standard at the time the areas were designated to nonattainment
of the 8-hour ozone standard. Both Cincinnati and Dayton were
designated to nonattainment of the 8-hour ozone standard on April 15,
2004, when vehicle I/M was still required for both areas. Vehicle I/M
must continue to be implemented in these areas until these areas come
into attainment with the 8-hour ozone standard.
Response 7: Although this comment is not specific about which
action proposed by the EPA in the April 15, 2005 proposed rule is of
concern, it is assumed here that the commenter is referring to EPA's
discussion concerning the termination of the vehicle I/M (E-Check)
programs in the Cincinnati and Dayton areas. See 70 FR 19910.
On April 30, 2004 (69 FR 23996), the EPA promulgated revisions to
40 CFR part 51 subpart X to establish provisions for implementation of
the 8-hour ozone NAAQS. Included in these provisions were sections
51.900(f), the definition of ``Applicable requirements,'' and 51.905,
which establishes provisions for the transition between the 1-hour
ozone NAAQS and the 8-hour ozone NAAQS, including specifying which
requirements that applied to an area for
[[Page 35955]]
the 1-hour ozone NAAQS remain in place after EPA revokes the 1-hour
standard (expected to occur for the Cincinnati and Dayton areas on June
15, 2005). The latter section is subdivided depending on the attainment
status of an area for both ozone NAAQS (1-hour and 8-hour) on the date
when the 8-hour ozone designations became effective (June 15, 2004).
Since the Cincinnati area was designated as a nonattainment area for
the 1-hour ozone NAAQS when the 8-hour ozone nonattainment designation
became effective, subsection (a)(1) of section 51.905 applies to the
Cincinnati area. Since the Dayton area was a maintenance area for the
1-hour ozone NAAQS on June 15, 2004 and is an 8-hour ozone
nonattainment area, the transition requirements for this area are
covered by subsection 51.905(a)(2). Both of these rule subsections
require these areas to continue to implement all of the applicable
requirements specified in 51.900(f) that applied to the areas based on
their 1-hour ozone status as of June 15, 2004. Vehicle I/M is one of
the listed applicable requirements and both the Cincinnati area and the
Dayton area were subject to this requirement on June 15, 2004.
The preamble to the anti-backsliding rule made it clear that any
applicable requirement that was retained would apply in the same manner
as it applied for purposes of the 1-hour standard. We specifically
noted the example of an enhanced vehicle I/M program and stated that,
while an area classified as serious nonattainment for the 1-hour
standard would need to retain an enhanced I/M program, it could modify
such a program consistent with our enhanced I/M regulations. 69 FR
23972.
On May 12, 2004, the EPA issued a policy memorandum (``1-Hour Ozone
Maintenance Plans Containing Basic I/M Programs,'' from Tom Helms,
Group Leader, Ozone Policy and Strategies Group, Office of Air Quality
Planning and Standards, and Leila H. Cook, Group Leader, State Measures
and Conformity Group, Office of Transportation and Air Quality, to Air
Program Managers) (hereafter referred to as the Helms-Cook memorandum)
clarifying how our basic I/M regulations applied for purposes of an
area that was being or had been redesignated to attainment of the 1-
hour ozone NAAQS. This memorandum notes that, for 1-hour ozone
maintenance areas, special provisions regarding vehicle I/M that were
published by the EPA on January 5, 1995 (60 FR 1735) continue to define
the applicable vehicle I/M program. For a 1-hour ozone maintenance area
subject only to basic vehicle I/M, 40 CFR 51.372(c) provides a
mechanism for a State to convert a basic vehicle I/M program to a
contingency measure in the area's maintenance plan. For areas
designated as nonattainment for the 8-hour ozone NAAQS, application of
this provision is limited to areas with 8-hour ozone classifications
that do not trigger the I/M requirement, and this provision only
applies to areas that were required to adopt basic I/M programs (to
areas that were classified as moderate or marginal nonattainment under
the 1-hour ozone NAAQS) and not thus required to have an enhanced
vehicle I/M program. However, a marginal nonattainment area that opted
to implement an enhanced vehicle I/M programs can also convert the
vehicle I/M programs to contingency measures in the 1-hour ozone
maintenance plans provided they continue to show maintenance of the 1-
hour ozone standard. Finally, the Helms-Cook memorandum notes that, to
convert a vehicle I/M program to a contingency measure under the 1-hour
maintenance plan, the State must also demonstrate that such conversion
will not interfere with the area's ability to comply with any affected
NAAQS or any other applicable CAA requirement in order to comply with
section 110(l) of the CAA.
Under section 110(l) of the CAA, Ohio must demonstrate that
conversion of the vehicle I/M programs in the Cincinnati and Dayton
areas to contingency measures in the 1-hour ozone maintenance plans in
these areas will not interfere with attainment of any NAAQS or with
compliance with any other CAA requirements, most notably with
attainment of the 8-hour ozone NAAQS and PM2.5 NAAQS. Until
Ohio makes the required demonstrations and EPA approves the conversion
of the vehicle I/M programs to contingency measures in the Cincinnati
and Dayton 1-hour ozone maintenance plans, the SIP will still require
implementation of the vehicle I/M program in these areas. As such, at
this time, no adverse air quality impacts are expected to occur in
these areas through this process. Thus, the commenters' concerns about
adverse impacts on air quality relating to the new standards will be
addressed in future rulemakings should Ohio provide the necessary
demonstrations.
Comment 8: Besides ozone reduction benefits, I/M benefits air
quality for other pollutants, for example, benzene, formaldehyde, 1,3-
butadiene, and fine particulates, PM2.5. It would be short-
sighted to eliminate the I/M programs.
Response 8: As noted above, we agree that vehicle I/M remains an
applicable requirement, but we believe that it is consistent with our
anti-backsliding rule and the vehicle I/M rule to allow a maintenance
area to move a basic I/M program to the contingency portion of the SIP
if certain conditions are met. Before we can approve the conversion of
the vehicle I/M programs to 1-hour ozone contingency measures in the
Cincinnati and Dayton maintenance plans, Ohio must demonstrate that the
conversion will not interfere with compliance with all of the
requirements of the CAA. This demonstration must include a
demonstration of non-interference with the CAA requirements related to
air toxics as well as to attainment of all of the NAAQS.
As noted elsewhere in this final rulemaking, Ohio has not made the
requisite section 110(l) demonstration. Therefore, we are not approving
a conversion of the vehicle I/M programs to contingency measures nor
termination of such programs for the Cincinnati and Dayton areas in
this final rulemaking.
Comment 9: In its haste to redesignate the Cincinnati area to
attainment of the 1-hour ozone standard, the EPA has seemed to have
missed the essential points: That the ozone redesignation, however
speedy, does not pave the way for ending the vehicle I/M programs; and,
that its proposal stands to set Cincinnati and Dayton back on efforts
to improve air quality.
Response 9: EPA agrees with the commenter that the redesignation of
the Cincinnati area to attainment of the 1-hour ozone NAAQS, by itself,
does not meet the requirements for approving the conversion of the
vehicle I/M program in the Cincinnati area to a contingency measure in
the maintenance plan for this area. As noted elsewhere in this final
rulemaking, Ohio must meet other requirements before EPA can approve
such a conversion. It is noted, however, that the redesignation of the
Cincinnati area to attainment of the 1-hour ozone NAAQS does allow Ohio
to meet one of the crucial requirements for such a conversion as
detailed here.
Redesignation of the Cincinnati area to attainment of the 1-hour
ozone NAAQS makes the Cincinnati area an area for which the approach in
40 CFR 51.372(c) is available. However, 40 CFR 51.372(c) provides that
additional elements must first be met, including:
(1) Legal authority to implement a basic vehicle I/M program
(enhanced if the State chooses to opt-up) without requiring further
legislation;
(2) A request to place the vehicle I/M program/plan into the
contingency measures portion of the maintenance plan upon
redesignation; and
(3) A contingency measure consisting of a commitment by the
Governor or the Governor's designee to adopt or
[[Page 35956]]
consider adopting regulations to implement a vehicle I/M program to
correct a violation of the ozone standard (or carbon monoxide standard
[not applicable for the Cincinnati area]) or other air quality problem
in accordance with the provisions of the maintenance plan. Although 40
CFR 51.372(c) refers to redesignation requests and maintenance plans
for areas that are currently designated as nonattainment areas for
ozone (in nonattainment of the 1-hour ozone NAAQS), we believe that 40
CFR 51.372(c) also applies to 1-hour ozone maintenance areas, where the
State chooses to revise the ozone maintenance plan to include vehicle
I/M as a contingency measure.
As noted in the Helms-Cook memorandum, the anti-backsliding
provisions of 40 CFR 51.905 do not modify the basic vehicle I/M
program. Thus, the requirements and application of 40 CFR 51.372(c)
remain in place and available to areas that meet the criteria of that
rule and also meet the requirements of section 110(l) of the CAA,
demonstrating that converting the vehicle I/M program to a contingency
measure will not interfere with the attainment of all affected NAAQS
and requirements of the CAA.
The State of Ohio has not complied with the requirements of 40 CFR
51.372(c) in that the State has not demonstrated that it has the legal
authority to restart a vehicle I/M program in the Cincinnati area (and
in the Dayton area) without additional legislation. In addition, the
State has not made a demonstration under section 110(l) of the CAA that
the conversion of the vehicle I/M program in the Cincinnati area (and
in the Dayton area) to a contingency measure will not interfere with
attainment of the affected NAAQS or with compliance with other
requirements of the CAA. Therefore, we cannot approve, at this time,
the State's request to make vehicle I/M a contingency measure in the
Cincinnati area 1-hour ozone maintenance plan. In addition, we cannot
approve the State's request to make vehicle I/M a contingency measure
in the Dayton area 1-hour ozone maintenance plan for the same reason.
Comment 10: The State of Ohio does not have legal authority to
implement a vehicle I/M program after December 2005. 40 CFR 51.372(c),
with respect to redesignation requests, provides:
Any nonattainment area that EPA determines would otherwise
qualify for redesignation from nonattainment to attainment shall
receive full approval of a State Implementation Plan (SIP) submittal
under Sections 182(a)(2)(B) or 182(b)(4) if the submittal contains
the following elements:
(1) Legal authority to implement a basic I/M program * * * as
required by this subpart. The legislative authority for an I/M
program shall allow the adoption of implementing regulations without
requiring further legislation.
Ohio legislation, in ORC Ann. (Ohio Revised Code Annotated) section
3704.143(C) provides that:
Notwithstanding * * * [sections of the Revised Code] that
require[s] emissions inspections to be conducted * * * upon the
expiration or termination of all contracts that are in existence on
September 5, 2001, the director of environmental protection shall
terminate all motor vehicle inspection and maintenance programs in
this state and shall not implement a new motor vehicle inspection
and maintenance program unless this section is repealed and such a
program is authorized by the general assembly.
The State has noted, through a press release, that the vehicle I/M
programs in the Cincinnati and Dayton areas will expire on December 31,
2005. In addition, in a letter to the EPA, dated April 4, 2005, the
Ohio EPA acknowledges that:
Under 3704-14(b), Ohio EPA retains the legislative authority to
conduct an automobile inspection maintenance program in moderate
nonattainment areas as part of the attainment or maintenance
demonstration as well as the contingency portion of the maintenance
plan. It must be understood, though, the specifics of restarting the
program should a contingency arise, would involve negotiating a new
operator contract and obtaining approval from the legislature to
execute that contract.
This indicates that the Ohio EPA acknowledges that the State would
need new legislative authority to restart the I/m program.
Response 10: As discussed above, EPA has determined that Ohio's
current vehicle I/M authority does not satisfy the requirements set
forth in 40 CFR 51.372(c) with respect to redesignation requests.
Based in part on EPA's determination regarding legal authority, EPA
is not taking action on the conversion of Ohio's E-Check program in the
Cincinnati and Dayton areas to contingency measures in this final rule.
In order to satisfy the requirements outlined in 40 CFR 51.372(c),
the State will, in part, need to demonstrate that the State has
sufficient legal authority to implement a vehicle I/M program that
allows the adoption of implementing regulations without requiring
further legislation. Until Ohio makes the required demonstrations and
EPA approves the conversion of the vehicle I/M program to contingency
measures in the Cincinnati and Dayton 1-hour ozone maintenance plans,
vehicle I/M will remain as an applicable requirement in the SIP for
these two areas.
Comment 11: The State has not made the required demonstration that
removal of the I/M program in Cincinnati will not interfere with
attainment of the 8-hour ozone and PM2.5 standards. EPA
acknowledges this in the April 15, 2005 proposed rule. The non-
interference demonstration is also required for the purposes of the
redesignation of the Cincinnati area to attainment.
Section 107(d)(3)(E) of the CAA provides:
The Administrator may not promulgate a redesignation of a
nonattainment area * * * to attainment unless * * *
(ii) The Administrator has fully approved the applicable
implementation [plan] for the area under section 7410(k) [i.e.,
section 110(k)] of this title * * * and
(v) The State containing such area has met all requirements
applicable to the area under section 7410 [i.e., section 110] of
this title * * *.
The State has met neither of these requirements. EPA has not
approved a revised SIP, nor could it without a showing of legal
authority for an I/M program, which the State cannot make following the
termination of the program. And, as EPA's proposal concedes, the State
has not met all applicable requirements under section 110, which
includes the demonstration required under section 110(l) that removing
the I/M programs for Cincinnati and Dayton will not interfere with the
8-hour ozone and PM2.5 standards.
It is difficult to see how the EPA can argue that either of the
section 107(d(3)(E) requirements have been met in light of the fact
that the SIP revision does not qualify for approval on a conditional
basis. EPA acknowledges that the State has done no more than promise to
complete the required demonstration without specifics of any sort. The
Court of Appeals for the District of Columbia Circuit has admonished
EPA at least twice for conditionally approving SIP revisions that
contain nothing more than a mere promise to take appropriate but
unidentified measures in the future. Sierra Club v. EPA, 356 F.3d 296,
303 (DC Cir. 2004), slip opinion at 10, citing NRDC v. EPA, 22 F.3d
1125 (DC Cir. 1994).
Response 11: As we have discussed elsewhere in this final rule, we
agree with the commenter that Ohio has not made the demonstration that
conversion of the vehicle I/M programs in the Cincinnati and Dayton
areas to contingency measures in the maintenance plans will not
interfere with the attainment of the 8-hour ozone,
[[Page 35957]]
PM2.5, or any other applicable NAAQS in these areas.
Therefore, we are not approving these conversions in this final rule.
We disagree with the commenter that this fact leads to the
conclusion that Ohio has not met the necessary requirements for
redesignation of the Cincinnati area to attainment of the 1-hour ozone
NAAQS. As we noted in our April 15, 2004 proposed rule, at 70 FR 19900,
Ohio has a fully approved SIP under section 110(k) of the CAA, and Ohio
has met all applicable requirements under section 110 and part D of the
CAA, including a fully approved vehicle I/M SIP (60 FR 16989, April 4,
1995). Our discussion in the proposed rulemaking thoroughly documents
how Ohio has complied with these requirements. Therefore, we are
approving the ozone redesignation request for the Cincinnati area in
this final rule. EPA is not conditionally approving this redesignation
nor the maintenance plan. We are fully approving these SIP revisions,
with vehicle I/M remaining as an implemented requirement of the
approved SIP.
With regard to the vehicle I/M program in the Cincinnati area, this
remains an applicable requirement for this area under Ohio's SIP. We
will not approve conversion of the vehicle I/M program to a contingency
measure until Ohio has made all required demonstrations discussed in
this final rule and we have approved the State's demonstrations of non-
interference in subsequent rulemaking. Should Ohio fail to make these
demonstrations, vehicle I/M will remain a fully enforceable requirement
of the SIP.
Comment 12: The anti-backsliding provisions applicable to the
transition from the 1-hour to the 8-hour ozone standard prohibit
removal of vehicle I/M programs for the Cincinnati and Dayton areas.
EPA proposes to terminate the vehicle I/M programs for the Cincinnati
and Dayton areas and to retain I/M only as contingency measures in the
maintenance plans for these areas. This is not acceptable for the
following reasons even if the Cincinnati area is redesignated as an
attainment area for the 1-hour ozone standard:
(1) The anti-backsliding provisions, 40 CFR 51.900(f) and 51.905,
are absolutely unambiguous, and provide that the requirements that
apply to an 8-hour nonattainment area are the requirements that applied
under the 1-hour standard at the time of designation for the 8-hour
ozone standard. At the time the Cincinnati and Dayton areas were
designated as nonattainment for the 8-hour ozone standard, these areas
were under the requirement to continue implementation of vehicle I/M
programs;
(2) EPA argues that 40 CFR 51.372(c) creates an exception to the
anti-backsliding provisions for I/M purposes. All that 40 CFR 51.372(c)
does is to allow a nonattainment area to become eligible for
redesignation if the area's SIP contains certain provisions (including
legal authority) for I/M. This provision has no bearing on the anti-
backsliding issue in question. Redesignation of the Cincinnati area to
attainment now has no bearing on the issue because the only date that
counts for anti-backsliding purposes is the date of designation for the
8-hour ozone standard; and
(3) Even if there were some legal justification for removing the
vehicle I/M programs for the Cincinnati and Dayton areas, Ohio would be
required to have the legal authority to trigger the programs should the
need arrive. The State does not have such legal authority.
Response 12: Since we are not approving the conversion of vehicle
I/M to a contingency measure, these issues are not relevant here.
However, for the reasons we have discussed above, we believe that our
anti-backsliding rule does not modify the basic I/M regulations nor the
availability of the approach under 40 CFR 51.372(c).
Comment 13: The anti-backsliding provisions applicable to the
transition from the 1-hour ozone standard to the 8-hour ozone standard
are absolutely clear that it would be illegal to remove the I/M
programs for the Cincinnati and Dayton areas. The anti-backsliding
provisions applicable to the transition from the 1-hour ozone standard
to the 8-hour ozone standard are 40 CFR 51.900(f) and 51.905.
Section 51.900(f) provides that 12 separately enumerated
requirements are ``applicable requirements'' for an area if they
applied to the area under the 1-hour standard at the time of the area's
designation for the 8-hour ozone standard. Vehicle I/M is one of the 12
enumerated applicable requirements. When the Cincinnati area was
designated as an 8-hour ozone nonattainment area, vehicle I/M was an
applicable requirement for this area.
40 CFR 51.905 provides:
(a)(1) 8-Hour NAAQS Nonattainment/1-Hour Nonattainment. The
following requirements apply to an area designated nonattainment for
the 8-hour NAAQS and designated nonattainment for the 1-hour NAAQS
at the time of designation for the 8-hour NAAQS for that area.
(i) The area remains subject to the obligation to adopt and
implement the applicable requirements as defined in section
51.900(f), except as provided in paragraph (a)(1)(iii) of this
section, and except as provided in paragraph (b) this section.
Paragraph (a)(1)(iii) is not relevant to this issue. Paragraph (b)
provides:
A State remains subject to the obligations under paragraphs
(a)(1)(i) and (a)(2) of this section until the area attains the 8-
hour NAAQS. After the area attains the 8-hour NAAQS, the State may
request such obligations be shifted to contingency measures * * *.
Therefore, Cincinnati is required to retain its I/M program until
it comes into attainment with the 8-hour ozone standard, when the State
can request that I/M become a contingency measure.
Unlike Cincinnati, Dayton was a maintenance area for the 1-hour
ozone standard when this area was designated as an 8-hour ozone
nonattainment area. At that time, Ohio's SIP required Dayton to
maintain a basic I/M program.
40 CFR 51.905 further provides:
(a)(2) An area designated nonattainment for the 8-hour NAAQS
that is a maintenance area for the 1-hour NAAQS at the time of
designation for the 8-hour NAAQS for that area remains subject to
the obligation to implement the applicable requirements as defined
in section 51.900(f) to the extent such obligations are required by
the approved SIP, except as provided in paragraph (b) of this
section. Applicable measures in the SIP must continue to be
implemented; however, if these measures were shifted to contingency
measures prior to designation for the 8-hour NAAQS for the area,
they may remain as contingency measures * * *.
Therefore, the conclusion for Dayton is almost the same as for
Cincinnati. The Dayton area is also required to retain its I/M program
until it comes into attainment with the 8-hour ozone standard.
Response 13: Our anti-backsliding rule retains the obligations that
applied to the area under the CAA, not as the commenter implies, the
obligations contained in the SIP. The preamble to the final anti-
backsliding rule specifically noted that a state may modify its SIP
consistent withy the existing relevant regulations. See 69 FR 23972. 40
CFR 372(c) is part of our existing basic vehicle I/M rule, and it
remains in place. We interpret this provision to mean that Ohio may
revise the Cincinnati and Dayton ozone maintenance plans to convert the
vehicle I/M programs in these areas to contingency measures in the
ozone maintenance plans provided that Ohio meets the requirements of 40
CFR 51.372(c) and section 110(l) of the CAA. We are, however, at this
time not approving the conversion of the vehicle I/M programs to
contingency measures in the Cincinnati and Dayton areas
[[Page 35958]]
because the State has not made the requisite demonstrations in
compliance with section 110(l) of the CAA and with 40 CFR 51.372(c).
Comment 14: Allowing Ohio to drop I/M while the Cincinnati and
Dayton areas remain in nonattainment with the 8-hour ozone standard
conflicts with section 172(e) of the CAA, which requires that EPA rules
``provide for controls which are not less stringent than the controls
applicable to areas designated nonattainment'' for ozone before
adoption of the 8-hour standard. Allowing states to drop I/M while
areas remain in 8-hour nonattainment further conflicts with the stated
rationale and intent underlying EPA's anti-backsliding rule.
Response 14: Section 172(e) of the CAA does not apply where EPA has
promulgated a more stringent NAAQS, as EPA did when it promulgated the
8-hour ozone NAAQS. As discussed above, since EPA is not approving a
conversion of the vehicle I/M program to a contingency measure, this
comment is not relevant for this final action. Additionally, for the
reasons provided above, EPA believes 40 CFR 51.372(c) remains available
under the anti-backsliding rules in 40 CFR 51.905. Furthermore, EPA did
look to section 172(e) when establishing the anti-backsliding
regulations. These regulations require that areas remain subject to
their 1-hour ozone nonattainment control obligations once that standard
no longer applies and thus retain controls at the same level of
stringency that they applied for purposes of the 1-hour NAAQS. In this
case that level of control includes the provisions of 40 CFR 51.372(c).
Comment 15: The EPA understands the preamble to the anti-
backsliding provisions as reflecting the view that, if a SIP could have
been modified to remove a measure for the purposes of the 1-hour ozone
NAAQS, it may be removed for 8-hour nonattainment purposes. This
understanding of the preamble cannot contradict the language of the
anti-backsliding provisions for at least three reasons:
(1) The language of the anti-backsliding regulations is
unambiguous, leaving no room for a directly conflicting interpretation
in the preamble;
(2) The language of the preamble itself is ambiguous; and,
(3) Portions of the preamble are, in fact, entirely consistent with
the language of the anti-backsliding regulations; in other words, while
the regulations themselves are unambiguous, the preamble is internally
consistent.
Response 15: Since we are not approving the conversion of vehicle
I/M to a contingency measure, these issues are not relevant here.
However, we disagree with the commenter. The preamble to the Phase 1
implementation rule was our contemporaneous interpretation of the Phase
1 regulations. It clearly states that areas remain subject to the 1-
hour obligations in the same manner it was subject to that obligation
for the 1-hour standard. See 69 FR 23972. As an example, the preamble
specifically noted that an area subject to an enhanced I/M program
could modify its SIP consistent with our enhanced I/M regulations.
Similarly, as here, an area subject to basic I/M can modify its SIP
consistent with our basic I/M regulations, which include 40 CFR
51.372(c).
The Helms-Cook memorandum explains how 40 CFR 51.372(c) continues
to apply in light of the anti-backsliding rules and would allow Ohio to
demonstrate that I/M in the Cincinnati and Dayton areas may be
converted to contingency measures in the Cincinnati and Dayton ozone
maintenance plans. As noted elsewhere in this final rule, Ohio must
make a number of demonstrations in compliance with 40 CFR 51.372(c) and
section 110(1) of the CAA to successfully support these conversions and
receive EPA approval.
Comment 16: 40 CFR 51.372(c) does not create an exception to the
anti-backsliding provisions for vehicle I/M. EPA has concluded that 40
CFR 51.372(c), adopted nine years before the adoption of the anti-
backsliding provisions, creates an exception to the anti-backsliding
provisions for I/M. There is nothing in 40 CFR 51.372(c) to suggest
this interpretation. 40 CFR 51.372(c) provides:
Redesignation requests. Any nonattainment area that EPA
determines would otherwise qualify for redesignation from
nonattainment to attainment shall receive full approval of a State
Implementation Plan (SIP) submittal under Sections 182(a)(2)(B) or
182(b)(4) if the submittal contains the following elements * * *.
The ``following elements'' refer to a variety of provisions for an
I/M program, including the necessity of legal authority.
EPA can redesignate a nonattainment area to an attainment area if
the SIP makes certain provisions for I/M. This is irrelevant to the
anti-backsliding issue at hand. What counts for anti-backsliding
purposes in the context of the transition from the 1-hour ozone
standard to the 8-hour ozone standard is the area's I/M obligations at
the time of the 8-hour ozone nonattainment designation. The Cincinnati
and Dayton areas were obligated to continue the implementation of
vehicle I/M when these areas were designated to nonattainment for the
8-hour ozone standard. Therefore, these areas remain obligated to
implement vehicle I/M programs, even if the Cincinnati area is
redesignated to attainment of the 1-hour ozone standard.
Response 16: Since we are not approving the conversion of vehicle
I/M to a contingency measure, these issues are not relevant here.
However, although we agree with the commenter that 40 CFR 51.372(c)
does not create an ``exception'' to the anti-backsliding rules, we
disagree that the anti-backsliding provisions do not allow Cincinnati
and Dayton to take advantage of this provision. As provided in previous
responses, our anti-backsliding rules kept in place our current
regulations for I/M (and the other ``applicable requirements'' under 40
CFR 51.900(f)) and that includes 40 CFR 51.372(c). Under the anti-
backsliding rules both Cincinnati and Dayton remain subject to the
basic I/M requirement and can meet that requirement in any way
acceptable under our basic I/M regulations.
Comment 17: Ohio does not have the necessary legal authority to
maintain vehicle I/M as a contingency measure in Ohio's maintenance
plan for the Cincinnati and Dayton areas. Ohio needs such legal
authority to trigger the implementation of I/M if needed as a
contingency measure in these areas. Such legal authority is a
prerequisite to the redesignation of the Cincinnati area. It is also a
requirement for anti-backsliding purposes, for both the Cincinnati and
Dayton areas. Section 175 of the CAA provides as well:
Such [contingency] provisions shall include a requirement that
the State will implement all measures with respect to the control of
the air pollutant concerned which were contained in the State
implementation plan for the area before redesignation of the area as
an attainment area.
Ohio does not have the necessary legal authority to maintain I/M as
a contingency measure for the Cincinnati and Dayton areas.
Response 17: As discussed above, EPA agrees with the comment that
Ohio does not have sufficient legal authority to implement a vehicle I/
M program in the Cincinnati and Dayton areas after December 2005
without further legislative action. EPA has determined that Ohio's
current vehicle I/M authority does not satisfy the requirements set
forth in 40 CFR
[[Page 35959]]
51.372(c) with respect to redesignation requests. Based on EPA's
determination regarding legal authority, EPA is not taking action on
conversion of Ohio's E-Check program in the Cincinnati and Dayton areas
to contingency measures in this final rule.
For the reasons provided in earlier responses to comments, we
believe that Ohio meets the anti-backsliding requirements for
Cincinnati and Dayton so long as its SIP meets our basic I/M
regulations. Because we are not approving I/M as a contingency measure,
the language quoted from section 175A(d) regarding contingency measures
is not relevant here.
Comment 18: EPA may not approve a SIP revision eliminating the I/M
programs in Cincinnati and Dayton until Ohio demonstrates that the
revision would not interfere with 8-hour ozone and PM2.5
attainment. Ohio has failed to make the required showing that removing
the I/M programs from the SIP will not interfere with attainment of the
8-hour ozone and PM2.5 standards. Both the Cincinnati and
Dayton areas have been designated as nonattainment for both standards.
Response 18: As we have discussed elsewhere in this final rule, we
agree with the commenter that Ohio has not made the demonstration that
conversion of the vehicle I/M programs in the Cincinnati and Dayton
areas to contingency measures in the maintenance plans will not
interfere with the attainment of the 8-hour ozone and PM2.5
NAAQS in these areas. Therefore, we are not taking action on these
conversions in this final rule.
With regard to the vehicle I/M program in the Cincinnati area, the
State of Ohio remains obligated to implement the vehicle I/M program
for this area as required in the approved SIP. We will not approve
conversion of the I/M program to a contingency measure until Ohio has
made all applicable demonstrations discussed in this final rule. If the
State makes such a submission, we will undertake subsequent notice and
comment rulemaking.
Comment 19: EPA has re-written the law as it applies to non-
interference and, in so doing, has used the transition from the 1-hour
ozone standard to the 8-hour ozone standard as a basis for weakening
air quality standards. In the proposed rule, 70 FR 19911, EPA says in
its proposal for Cincinnati and Dayton:
In accordance with the Act and EPA redesignation guidance * * *
states are free to adjust control strategies in the maintenance plan
as long as they can demonstrate that overall emissions remain below
the attainment level of emissions.
In its proposed rule entitled ``Approval and Promulgation of
Implementation Plans for Kentucky: Inspection and Maintenance Program
Removal for Jefferson County, KY; Source Specific Nitrogen Oxides
Emission Rate for Kosmos Cement Kiln,'' 70 FR 53, January 3, 2005, the
EPA explains:
[A] strict interpretation of the requirement in section 110(l)
of the Act would allow EPA to approve a SIP revision removing a SIP
requirement only after determining based on a completed attainment
demonstration that it would not interfere with applicable
requirements concerning attainment and reasonable further progress.
EPA continues with the observation that the strict interpretation
would prevent changes to SIP control measures before areas are required
to submit attainment demonstrations for the new NAAQS, at a time when
it is unknown what suite of control measures are needed for a given
area to attain these standards. EPA concludes that states should be
allowed to substitute equivalent emission reductions to compensate for
the control measure being removed as long as the actual emissions in
the area are not increased, 70 FR 57.
This line of reasoning is unlawful and arbitrary for a number of
reasons. First, the construction that EPA characterizes as ``strict''
is in fact the only one that is consistent with both the plain language
of the statute and common sense. Second, the fact that a plain reading
of section 110(l) of the CAA prevents removal of a SIP requirement
prior to a complete attainment demonstration is the very reason for the
existence of both anti-backsliding and non-interference requirements.
Third, EPA's reference to changes in the SIP when the exact control
measures that will be required to attain the new NAAQS are unknown is a
point well taken. It is unlawful, arbitrary, and capricious to
eliminate effective control measures from the SIP when the State has
not shown that these measures will not be needed for timely progress
toward and timely attainment of the new standards. The State has not
shown that control measures apart from I/M are available to meet all of
the emission reductions that will be required. Finally, the EPA
proposal for Ohio refers to ``EPA redesignation guidance,'' as does the
Helms/Cook memo referenced in the anti-backsliding context:
EPA is currently developing guidance on what areas need to
include in a section 110(l) demonstration of non-interference.
The redesignation guidance has not yet been published. Thus, states
with 8-hour and PM2.5 nonattainment areas are being allowed
to remove effective control programs from their SIPs, which were
required for the purposes of the 1-hour standard, at a time when the
guidance applicable to attainment of the new standards has not been
provided.
The 8-hour ozone standard was promulgated because the 1-hour ozone
standard is insufficiently protective of human health. The transition
between these standards should not provide an opportunity to weaken air
quality standards.
Response 19: EPA is the Agency responsible for implementing the CAA
and is accorded deference in interpreting ambiguous provisions of the
CAA when it does so through notice and comment rulemaking. Through the
April 15, 2005, proposed rule (70 FR 19895), EPA sought public comment
on its current interpretation of section 110(l) of the CAA. EPA has
evaluated the comments and continues to believe its interpretation to
be reasonable. Section 110(l) of the CAA requires the State to
demonstrate that the removal of an emissions control measure from the
SIP will not interfere with the attainment of any NAAQS or with
compliance with any other requirement of the CAA. EPA believes the
appropriate interpretation of this section would allow states to
substitute equivalent (or greater) emission reductions to compensate
for the removal of emission control measures from the SIPs. As long as
actual emissions in the air are not increased, EPA believes that
equivalent (or greater) emissions reductions would be acceptable to
demonstrate non-interference because ambient air quality levels will
not change. EPA does not believe that areas must wait to produce a
complete attainment demonstration (or be required to produce one when
not otherwise required based on the area's classification) to make any
revisions to the SIP, provided the status quo air quality is preserved
(emissions will not be allowed to increase in an area through the
removal of an emissions control from the SIP). EPA believes such an
approach will not interfere with an area's ability to develop a timely
attainment demonstration. A state seeking to remove an emission control
requirement from the SIP would not be granted an extension for
attainment of NAAQS as a result of such an action. Although EPA
believes this interpretation to be reasonable, we are not taking final
action invoking the use of this interpretation in this final action
because, as noted elsewhere in this final
[[Page 35960]]
rulemaking, we are not acting on a section 110(l) demonstration of non-
interference at this time.
D. Comments Received After the Close of the Comment Period
On June 9, 2005, a commenter submitted late comments.
Notwithstanding the facts that the comments were submitted more than
three weeks after the close of the comment period and that EPA is not
obligated to take into account or respond to such late comments, EPA is
responding to the comments in this notice.
Comment 20: The commenter contends that EPA may not redesignate the
Cincinnati area as attainment because Ohio did not prove that its
maintenance plan for the Cincinnati area will not interfere with
attainment of the 8-hour ozone standard and because ``the nature of
non-interference, which requires states to prove a negative, means that
not only was Ohio required to demonstrate that the control measures in
its SIP would not interfere with attainment of the PM2.5 and
8-hour ozone standards, but also that additional control measures are
not necessary to prevent interference with attainment of the
PM2.5 and 8-hour ozone standards.''
Response 20: EPA believes that the commenter misunderstands the
nature of section 110(l). The commenter appears to contend that, even
though the maintenance plan for Cincinnati does not relax any existing
control measures, the State must somehow demonstrate that additional
control measures are not necessary to prevent interference with
attainment of the PM2.5 and 8-hour ozone standards. EPA does
not believe that approving a maintenance plan containing existing
control measures that the State has demonstrated will provide emission
reductions sufficient to maintain the 1-hour ozone standard can in any
way interfere with Ohio's obligations under the PM2.5 and 8-
hour ozone standards for Cincinnati. EPA is not approving any
relaxation of the existing control measures so emissions of VOC and
NOX will not increase as a consequence of this action.
Morevoer, Ohio will still have to meet whatever obligations it may have
regarding the implementation of the new standards and determining that
existing control measures will provide for maintenance of the 1-hour
standard does not impair nor interfere with the state's obligations
regarding the new standards. EPA does not believe that section 110(l)
transforms this redesignation action into an obligation for the state
to comply with its SIP obligations for the new standards earlier than
otherwise required, which is the implication of the assertion that this
action cannot proceed without a demonstration that additional control
measures are not necessary to prevent interference with attainment of
the PM2.5 and 8-hour ozone standards. Moreover, the
commenter does not present any evidence or even assert that there is
anything about any of the control measures contained in the maintenance
plan that would somehow interfere with PM2.5, 8-hour ozone
attainment, or other requirements. EPA does not believe that approval
of this maintenance plan would interfere with the 8-hour ozone or
PM2.5 attainment or other obligations applicable to the
Cincinnati area. As Cincinnati's ability to implement those standards
would be the same if this redesignation were not occurring, approval of
the maintenance plan cannot interfere with the requirements applicable
for those standards.
Comment 21: The commenter also asserts that the redesignation may
not occur because Ohio has not met the section 110(a)(2)(D) requirement
concerning interstate transport. It cites EPA's recent finding of
failure to submit regarding the section 110(a)(2)(D) requirement.
Response 21: EPA's recent finding concerning section 110(a)(2)(D)
concerned SIPs for the 8-hour ozone and PM2.5 standards. It
did not concern the 1-hour ozone standard, the standard pertinent for
this redesignation to attainment for the 1-hour ozone standard.
Consequently, EPA's recent finding is simply irrelevant for the
standard at issue in this redesignation. (EPA notes that Ohio has
complied with section 110(a)(2)(D) for the 1-hour ozone standard by
virtue of having received EPA approval of its SIP to address the
NOX SIP Call. See 68 FR 46089 (August 5, 2003))
Furthermore, even if the recent finding of failure to submit a
section 110(a)(2)(D) SIP had been for a pertinent standard, it would
still not prevent redesignation of the area. EPA has repeatedly
interpreted such SIP requirements as not being applicable requirements
for purposes of a redesignation since the states remain obligated to
make such submissions even after redesignation to attainment, i.e.,
they remain applicable requirements notwithstanding the redesignation.
See 65 FR37879, 37890 (June 19, 2000) (Cincinnati redesignation), 66 FR
53097, 53099 (October 19, 2001) (Pittsburgh redesignation), 68 FR
25418, 25426-27 (May 12, 2003) (St. Louis redesignation).
Comment 22: The same commenter also contends that EPA may not
redesignate the Cincinnati area as attainment since the State has
failed to meet all applicable part D requirements ``because Ohio does
not have legal authority for the I/M program until it is no longer
necessary.'' The commenter contends that EPA requires that states have
legal ``authority for I/M program operation until such time as it is no
longer necessary (i.e., until a Section 175 maintenance plan without an
I/M program is approved by EPA).'' 40 CFR 51.372(a)(6). According to
the commenter, this requirement is not met since the legislative
authorization for the I/M program expires at the end of 2005 while Ohio
is currently required to have legislative authority passed the end of
2005.
Response 22: EPA believes that it may approve the redesignation at
this time because Ohio has a fully approved I/M program for the
Cincinnati area with legal authority. As noted previously, the existing
federally enforceable SIP includes a fully approved I/M program. Should
Ohio fail to reauthorize this program or otherwise terminate the
program prior to receiving EPA approval of a subsequent SIP revision
that satisfies section 110(l) then Ohio would be in violation of the
federally approved SIP and subject to potential enforcement and
sanctions. Furthermore, since the new maintenance plan for Cincinnati
demonstrates that the area can maintain the 1-hour ozone standard for
the requisite 10 years without the I/M program, even though the I/M
program currently remains an enforceable part of the Ohio SIP EPA is in
fact today approving a section 175 maintenance demonstration without an
I/M program. Therefore, EPA believes that the legislative authority of
the current I/M program is in fact sufficient to support the
maintenance plan, although as previously noted it is not sufficient to
satisfy 40 CFR 51.372(c). Thus, although EPA concludes that it could
not at this time approve termination of the I/M program nor conversion
of the I/M program to a contingency measure, EPA believes that it can
approve the maintenance plan and redesignation of the area consistent
with the requirements of section 175 and 40 CFR 51.372(a)(6).
VI. Did Ohio Adopt All Of the Volatile Organic Compound Emission
Control Regulations Needed To Comply With the Reasonably Available
Control Technology Requirements of the Clean Air Act?
Since the Cincinnati area is nonattainment for the 1-hour ozone
[[Page 35961]]
NAAQS, Ohio is required to ensure that all major VOC sources and all
VOC sources that meet the applicability criteria in any of EPA's
Control Technique Guideline (CTG) documents in the Cincinnati area are
subject to RACT regulations. In prior SIP approval actions, EPA
approved into the SIP Ohio's VOC RACT regulations covering all pre-1990
CTG categories and ``non-CTG'' RACT for most categories of major VOC
sources. Today, EPA is acting on RACT rules and negative declarations
for the remaining CTG categories and for remaining non-CTG RACT
sources.
To qualify for a redesignation of the Cincinnati area to attainment
of the 1-hour ozone NAAQS, Ohio was required to fully comply with the
RACT requirement of section 182(b)(2) of the CAA. An analysis of how
this RACT requirement is satisfied for these additional source
categories (source categories in addition to those covered by VOC
emission control regulations that had been previously approved into the
SIP) is presented on a category-by-category basis below.
New VOC RACT regulations were required for any facilities exceeding
the applicability criteria specified in the Synthetic Organic Chemical
Manufacturing Industry (SOCMI) Reactor/Distillation, Wood Furniture
Manufacturing, Ship Building and Ship Repair and Aerospace
Manufacturing CTG documents. For the other source categories (i.e.,
non-CTG categories including bakeries), VOC RACT regulations were
required if a facility in the Cincinnati area has the potential to emit
greater than 100 tons VOC per year of non-CTG VOC emissions. A facility
is not subject to RACT if it is subject to federally enforceable
operating and/or production restrictions limiting the facility
emissions to a level below the applicable cutoff (e.g., for non-CTG
RACT to less than 100 tons per year of non-CTG emissions).
A. Source Categories Not Requiring New VOC Regulations
The following VOC source categories do not require any additional
regulations because there are no sources in the Cincinnati area that
exceed the CTG or non-CTG applicability criteria; there are no major
sources in the category; and/or any such sources are subject to
federally enforceable operating and/or production restrictions limiting
the facility's VOC emissions to less than the applicable cutoff. Non-
CTG emissions include emissions from source categories for which there
is not a CTG document and also unregulated emissions from source
categories covered by a CTG category. PTE emissions are the emissions
at maximum production levels and 8760 hours per year and represent the
maximum emissions that can occur without a modification.
1. Industrial Cleaning Solvents
On May 23, 2003, the Ohio EPA submitted to EPA a Negative
Declaration letter for Industrial Cleaning Solvents, which adequately
documented that there are no sources in this category in the Ohio
portion of the Cincinnati-Hamilton area with non-CTG potential
emissions of equal to or greater than 100 tons VOC/year.
Ohio EPA made a thorough search to ensure that it considered all
sources with solvent clean-up emissions. This included looking at the
Standard Industrial Classification (SIC) Manual, the local Yellow
Pages, a database associated with the Ohio EPA permitting system, as
well as information from several trade associations and web sites.
Based on that review, 122 facilities were identified that are normally
associated with solvent clean-up emissions. None of these facilities
were found to have solvent clean-up potential VOC emissions of over 50
Tons Per Year (TPY), and there are no facilities with solvent cleaning
operations that have combined non-CTG potential VOC emissions of 100
TPY or more. EPA reviewed the negative declaration submitted by the
State and concluded that Ohio EPA has adequately documented that there
are no major non-CTG sources with potential emissions of 100 TPY or
more and, therefore, there are no sources in this category in the
Cincinnati area with emissions that are subject to RACT for this source
category.
2. Shipbuilding and Ship Repair Industry
On May 23, 2003, the Ohio EPA submitted to EPA a Negative
Declaration letter for the Ship Building and Ship Repair Industry which
adequately documented that there are no sources for this CTG category
in the Ohio portion of the Cincinnati-Hamilton area.
Ohio EPA made a thorough search to determine whether any ship
building or ship repair facilities were located within the Cincinnati
area. This included reviewing the Ohio EPA air pollution control
permitting system, contacting the local office of the United States
Coast Guard, reviewing ship building trade association information
identified on the web and, in addition, the Harris Directory, which
provides SIC information for more than 800,000 companies across the
country, was investigated for those categories related to ship building
and repair. None of the above sources of information resulted in the
identification of any ship building and repair facilities. In addition,
staff from the Hamilton County Department of Environmental Services
confirmed that there are no military or commercial ship building and
repair operations along the Ohio River, the only plausible location for
such operations in the ozone nonattainment area. EPA reviewed the
negative declaration and concludes that Ohio EPA has adequately
documented that there are no ship building and repair facilities
located in the Ohio portion of the Cincinnati-Hamilton area.
3. Automobile Refinishing
On May 23, 2003 the Ohio EPA submitted to EPA a Negative
Declaration letter for Automobile Refinishing which adequately
documented that there are no automobile refinishing major sources (also
referred to as auto body shops)in the Ohio portion of the Cincinnati-
Hamilton area with non-CTG potential VOC emissions of equal to or
greater than 100 tons/year.
In order to determine whether there were any major automobile
refinishing sources within the Cincinnati area, Ohio EPA searched the
SIC Code Manual for automobile refinishing in conjunction with the
Harris Directory, the local and business to business Yellow Pages for
automobile refinishing companies, the Ohio EPA permitting system, and
Ohio EPA's Small Business Assistance Program. After reviewing all of
the above sources of information, 142 automobile refinishing facilities
were identified. Of the 142 facilities, 103 are each subject to a
federally enforceable Permit to Install which limits VOC emissions to
less than 25 tons/year. A review of each of the remaining 39 facilities
established that the potential VOC emissions from each of them was less
than 25 tons VOC/year. EPA reviewed the negative declaration and
concludes that Ohio EPA has adequately documented that there are no
automobile refinishing facilities with potential emissions of 100 TPY
or more and, therefore, there are no such facilities for which a RACT
rule is required.
4. Aerospace Manufacturing and Rework Facilities
On October 14, 2003, the Ohio EPA submitted to EPA a Negative
Declaration letter for Aerospace Manufacturing and Rework Facilities
which adequately documented that there are no major sources (sources
with potential emissions equal to or greater than 25
[[Page 35962]]
tons VOC/year for this source category) in the Cincinnati area.
Ohio EPA made a thorough search to determine what aerospace
manufacturing and/or rework facilities were located within the
Cincinnati area. Ohio EPA searched the Ohio EPA permitting system, the
local and business Yellow Pages for aerospace manufacturing and rework
facilities, they utilized the web and found a number of trade
associations, and used the Harris Directory, which provides SIC
information for more than 800,000 companies across the country.
After reviewing all of the above sources of information, Ohio EPA
identified 22 facilities in the Cincinnati area that are generally
associated with aerospace manufacturing and rework operations. These 22
facilities are listed in a table attached to the October 14, 2003,
letter. In reviewing the status of those 22 facilities, it was
determined that 14 facilities do not have aerospace manufacturing or
rework operations. Two facilities, CTL Aerospace and Gayston
Corporation have federally enforceable Permits to Install which limit
the allowable VOC emissions to less than 25 TPY for each facility. One
facility has shut down all coating operations. The individual files
were reviewed for the remaining 5 facilities and it was determined that
the potential VOC emissions for operations subject to the CTG were less
than 25 TPY at each of the facilities. EPA reviewed the negative
declaration submitted by the State and concludes Ohio EPA has
adequately documented that there are no aerospace manufacturing and
rework operations located in the Ohio portion of the Cincinnati-
Hamilton area with potential emissions that exceed the applicability
criteria for this CTG category and therefore there are no such
facilities for which a RACT regulation is needed.
5. Volatile Organic Liquid Storage Tanks
On January 27, 2004, the Ohio EPA submitted to EPA a Negative
Declaration letter for volatile organic liquid (VOL) storage tanks,
which adequately documented that there are no sources in this category
in the Ohio portion of the Cincinnati-Hamilton area with potential non-
CTG emissions of 100 TPY that are not already subject to RACT level
controls on their VOL storage tanks. Ohio EPA performed the following
searches to identify all VOL storage tanks in the Cincinnati ozone
nonattainment area. Ohio EPA checked the Harris Directory for those
SICs which may have VOL storage tanks. They also checked the local
Yellow and business Yellow Pages for petroleum, oils and solvent
storage facilities, their permitting system for storage tanks and on
the web, information was obtained from several trade associations.
Ohio EPA identified 151 facilities in the four county Cincinnati
area with a total of 1363 storage tanks of various sizes, that
contained materials having a wide range of vapor pressures. Only VOL
storage tanks with a capacity of greater than 40,000 gallons and
storing material with a vapor pressure greater than 0.5 pounds per
square inch absolute (psia) are subject to RACT controls. Of those 151
facilities, only 12 were potentially subject to RACT because total
potential non-CTG emissions from the facility were above 100 TPY.
However, 7 of those facilities have no storage tanks with a capacity
greater than 40,000 gallons and storing a material with a vapor
pressure greater than 0.5 pounds psia. Thus, those facilities had no
tanks required to have RACT-level controls. As documented in Ohio EPA's
January 27, 2004 letter, one facility is subject to a federally
enforceable Permit to Install limiting facility emissions to less than
100 tons per year. At the remaining four facilities, the storage tanks
over 40,000 gallons and with a vapor pressure greater than 0.5 pounds
psia are subject to either existing petroleum liquid RACT control
requirements or National Emission Standards for Hazardous Air Pollutant
(NESHAP) regulations with control requirements that are at least as
stringent as RACT. EPA reviewed the negative declaration submitted by
the State and concludes Ohio EPA has adequately documented that, except
for the four adequately controlled facilities described above, there
are no major non-CTG sources with potential emissions of 100 TPY or
more and VOL storage tanks over 40,000 gallons and with a vapor
pressure greater than 0.5 pounds psia. Therefore, there are no VOL
storage tanks in the Cincinnati-Hamilton area for which a RACT
regulation is necessary.
6. Lithographic Printing
On July 31, 2003, the Ohio EPA submitted to EPA a Negative
Declaration letter for Lithographic Printing, which adequately
documented that there are no major lithographic printing sources
(sources with potential emissions equal to or greater than 100 tons per
year for this source category) in the Cincinnati area.
Ohio EPA made a thorough search to determine what lithographic
printing facilities were located in the Cincinnati area. Ohio EPA
searched their permitting system, the local and business Yellow Pages
for Lithographic printing, utilized the web and reviewed trade
association information, used the Small Business Assistance program,
and also used the Harris Directory, which provides SIC information for
more than 800,000 companies.
After reviewing the above sources of information, Ohio EPA
determined that there are seven facilities which perform web offset
lithographic printing. The potential to emit for three of these
facilities is less than 12 tons of VOC per year. The other four
facilities have federally enforceable Permits to Install limiting
emissions to less than 100 tons per year for each facility. EPA
reviewed the negative declaration submitted by the State and concludes
that Ohio EPA has adequately documented that there are no lithographic
printing facilities in the Cincinnati area for which a RACT regulation
is needed.
7. Plastic Parts Coating
On March 31, 2005, the Ohio EPA submitted to EPA a Negative
Declaration letter for the coating of Automotive Plastic Parts, which
adequately documented that there are no major automotive plastic parts
coating sources (sources with potential VOC emissions equal to or
greater than 100 tons per year for this source category) in the
Cincinnati area.
Ohio EPA made a thorough search to determine what automotive
plastic parts coating facilities were located in the Cincinnati area.
Ohio EPA searched their permitting system, the local and business
Yellow Pages for automotive plastic parts coating, utilized the web and
reviewed trade association information, used the small business
assistance program, and also used the Harris Directory which provides
SIC information on more than 800,000 companies.
After reviewing the above sources of information, Ohio EPA
determined that there are three facilities which coat automotive
plastic parts in the Cincinnati area. The potential to emit for one of
these facilities is less than 10 tons VOC per year, and the other two
automotive plastic parts coating facilities have federally enforceable
Permits to Install limiting emissions to less than 100 tons per year
for each facility. EPA reviewed the negative declaration submitted by
the State and concludes that Ohio EPA has adequately documented that
there are no automotive plastic parts coating facilities with potential
emissions of 100 TPY or more in the Cincinnati area. Therefore, there
are no automotive plastic parts coating facilities for which a RACT
rule is required.
[[Page 35963]]
B. Source Categories for Which VOC RACT Regulations Have Been Proposed
and Adopted
On March 8, 2005, Ohio EPA requested that EPA parallel process VOC
regulations for five source categories that are discussed below.
Parallel processing includes proposing action (by EPA) on draft rules
submitted by the State with EPA's final rulemaking taking place
subsequent to the State rules being finally adopted. Subsequent to
submittal of their draft rules on March 8, 2005, Ohio EPA agreed to
make some revisions to their rules, at EPA's request, so that they are
consistent with EPA VOC RACT requirements and, therefore, approvable.
Ohio's final rules incorporate these (and no other substantive) changes
and represent RACT. The following discussion of the five VOC rules that
EPA is approving includes a discussion of the changes made by Ohio EPA.
The RACT rules for these five categories were adopted by Ohio on
May 16, 2005 and became effective on May 27, 2005.
1. Bakeries
On March 8, 2005, Ohio EPA submitted draft rule 3745-21-12
``Control of Volatile Organic Compound Emissions from Commercial Bakery
Oven Facilities'' and the accompanying definitions in 37-45-21-01(U).
This draft rule applies to any commercial bakery oven facility in the
Cincinnati ozone nonattainment area with a potential VOC emissions
equal to or greater than 100 tons per year. Each bakery oven subject to
these control requirements must install and operate a VOC emission
control system with an overall control efficiency of at least 95
percent by weight. A bakery oven is exempted from the control
requirements of this rule if, as established by the recordkeeping
requirements in this rule, it has annual VOC emissions of less than
25.0 tons and average daily VOC emissions of less than 192 pounds. This
is consistent with the exemption levels that were approved by EPA in
the Maricopa County (Arizona) bakery rule. This rule contains a
calculation procedure to determine uncontrolled potential to emit, a
requirement to achieve compliance within 12 months, as well as
compliance testing requirements, monitoring and inspection
requirements, and recordkeeping and reporting requirements. At EPA's
request, Ohio EPA deleted the last sentence in the draft definition of
``Commercial bakery oven facility'' which improperly exempts
establishments that produce bakery products primarily for direct sale
on the premises to household consumers and that utilize only batch
bakery ovens. This adopted rule, with the revised definition, is
consistent with RACT and is, therefore, being approved.
2. Batch Processes
On March 8, 2005, Ohio EPA submitted draft rule 3745-21-14
``Control of Volatile Organic Compound Emissions from Process Vents in
Batch Operations'' and the accompanying definitions in 3745-21-01(W).
This draft rule applies to any batch process train for a variety of
chemical manufacturing operations at facilities in the Cincinnati area
with over 100 tons per year of potential VOC emissions. A batch
operation is a non-continuous operation in which chemicals are added to
the process in discrete intervals as opposed to on a continuous basis.
A batch process train is a collection of equipment (e.g., reactors,
filters, distillation columns, extractors, crystallizers, blend tanks,
neutralizer tanks, digesters, surge tanks and product separators)
configured to produce a specific product or intermediate by a batch
operation.
Exempted from the VOC control requirements of this rule are any
unit operation with uncontrolled annual VOC emissions of less than 500
pounds per year and any batch process train containing process vents
that have, in the aggregate, uncontrolled total annual mass emissions
of less than 30,000 pounds per year.
For those process vents of batch process trains and unit operations
within batch process trains subject to the control requirements of this
rule, compliance can be achieved by: (1) Reducing uncontrolled VOC
emissions by an overall efficiency of at least 90 percent, or to 20
parts per million volume, per batch cycle; (2) using a boiler or
process heater to comply with the above by requiring that the vent
stream be introduced into the flame zone of the boiler or process
heater; or (3) using a flare, provided that it meets Ohio's approved
flare requirements in 3745-21-09(DD)(10)(d). In addition, suitable
recordkeeping, reporting, and test methods have been included.
Compliance with these control requirements is required within 12
months of the effective date of this rule. In order to eliminate
ambiguity in 3714-21-14(A)(4), which deals with compliance deadlines,
Ohio EPA eliminated (at EPA's request) the last sentence in 3714-21-
14(A)(4) and added ``1990'' after baseline year in order to specify the
year after which actual emissions could not have exceeded 100 tons per
year of VOC to make the source eligible for avoiding applicability to
the batch rule by restricting emissions to less than 100 tons VOC per
year through federally enforceable operating restrictions.
This adopted batch rule is consistent with EPA VOC RACT guidance
and is, therefore, being approved.
3. Industrial Wastewater
On March 8, 2005, Ohio EPA submitted draft rule 3745-21-16
``Control of Volatile Organic Compound Emissions from Industrial
Wastewater'' and the accompanying definitions in 3745-21-01(Y). This
draft rule applies to facilities in the Cincinnati area with the
potential to emit over 100 tons VOC per year and that have operations
in one of several industrial categories, such as organic chemicals,
pesticides and pharmaceutical manufacturing, and that generate process
wastewater.
The proposed industrial wastewater rule contains the following
control requirements: Each individual drain system shall be covered
and, if vented, be routed through a closed vent system to an emissions
control device, or each drain shall be equipped with water seal
controls or a tightly fitting cap or plug; each surface impoundment
that receives, manages or treats an affected VOC wastewater stream must
be equipped with a cover and a closed-vent system which routes the VOC
vapors to an emissions control device or the surface impoundment must
be equipped with a floating flexible membrane cover; each oil-water
separator shall be equipped with a fixed roof and a closed vent system
that routes the vapors to an emissions control device or a floating
roof; each portable container must be covered; each wastewater tank
shall have a fixed roof and a closed-vent system that routes the VOC
vapors to a control device, a fixed roof and an internal floating roof,
or an external floating roof; and each treatment process must meet the
applicable requirements described above along with other requirements,
such as venting the gases from the treatment process to an emissions
control device designed and operated to reduce wastewater VOC emissions
by 90%. There is also an alternative control option requiring EPA
approval.
There are inspection and monitoring requirements, a list of
approved test methods, recordkeeping requirements, and a requirement
that compliance be achieved within 12 months from the effective date of
the rule.
At EPA's request, Ohio EPA made the following agreed upon changes
to its draft rule: It revised the definition of
[[Page 35964]]
``Affected VOC'' in 3745-21-01(Y)(3) to ``means VOC with a Henry's Law
Constant greater than * * *,'' because VOCs with a higher Henry's Law
Constant have a greater potential to be emitted; in order to eliminate
ambiguity in 3745-21-16(A)(4) it deleted the last sentence in this
section; Ohio EPA added ``1990'' before ``baseline year'' (for the
reason described in the prior section); and deleted the phrase ``or
(D)(8)''from 3745-21-16(D)(1), as (D)(8) is a control option for
treatment processes and was not intended to be an alternative to the
control requirements in (D)(3) through (D)(7). The adopted rule is
consistent with RACT and is being approved.
4. SOCMI Reactors/Distillation Units
On March 8, 2005, Ohio EPA submitted draft rule 3745-21-13
``Control of Volatile Organic Compound Emissions from Reactors and
Distillation Units Employed in SOCMI Chemical Production'' and the
accompanying definitions in 3745-21-01(V). This rule applies to any
reactor or distillation unit within a process unit that produces a
SOCMI chemical and that is located in the Cincinnati area. Any reactor
or distillation unit in a process unit with a design capacity of less
than 1,100 tons per year of chemicals produced is (consistent with the
CTG) exempt from the control requirements of this rule. This rule also
exempts any reactor or distillation unit that is regulated by either of
two of Ohio's existing VOC RACT rules or three new source performance
standards, each of which have federally enforceable control
requirements that are at least as stringent as the control requirements
for this SOCMI rule. Each process vent is classified according to
characteristics of the process vent stream (VOC concentration, flow
rate, and the total resource effectiveness (TRE))prior to a control
device. The TRE is a cost-effectiveness tool established by EPA to
determine if the annual cost of controlling a gas stream is reasonable
based on the emission reduction that can be achieved by a combustion-
type emissions control device.
One of the following controls is required for those process vents
for which control is required: Discharge to a properly operating flare;
discharge to the flame zone of a boiler or process heater with a heat
input capacity of over 150 million BTU per hour; discharge to a boiler
or process heater as the primary fuel or with the primary fuel;
discharge to a control device that reduces VOC emissions by at least 98
percent or emits VOC at a concentration less than 20 ppmv; achieve and
maintain a TRE index value greater than 1.0 (for which no additional
control is warranted); or discharge to an existing combustion device
with a 90 percent emission reduction efficiency.
Compliance is required within 12 months of the effective date of
the rule. This rule also includes compliance testing, TRE determination
testing and monitoring requirements, as well as recordkeeping and
reporting requirements.
At EPA's request, Ohio EPA revised 3714-21-13(A)(2) and added a new
(A)(3) that specifies that sources exempt from the requirements of the
SOCMI rule because they are subject to another rule must be subject to
the limits of such other rule. Ohio EPA also deleted (F)(1)(f), which
allows emission reduction credit for a recovery device that is part of
the process.
With the revisions made by Ohio EPA this adopted rule is consistent
with EPA RACT guidance and is being approved.
5. Wood Furniture Manufacturing
On March 8, 2005, Ohio EPA submitted draft rule 3745-21-15
``Control of Volatile Organic Compound Emissions from Wood Furniture
Manufacturing Operations'' and the accompanying definitions in 3745-21-
01(X). This draft rule applies to any facility that has wood furniture
manufacturing operations with a potential to emit 25 tons VOC per year
and is located in the Cincinnati area.
The five compliance options for wood finishing operations are: (1)
A VOC content limit of 0.8 pound VOC per pound of solids for topcoats
only; (2) VOC content limits for topcoats and sealers, wherein topcoats
are subject to 1.8 pounds VOC per gallon of solids or 2.0 pounds VOC
per gallon of solids for an acid-cured alkyd amino conversion topcoat,
and sealers are subject to 1.9 pounds VOC per gallon of solids or 2.3
pounds VOC per gallon of solids for an acid-cured alkyd amino sealer;
(3) a VOC emission control system for topcoats and/or sealers that is
equivalent to the VOC content limits of the above options; (4) daily
VOC emissions limits for topcoats; and (5) daily VOC emissions limit
for topcoats, sealers, and other finishing materials. The compliance
options associated with daily VOC emissions are based on a daily
summation of actual VOC emissions not exceeding 90 percent of the daily
summation of VOC emissions allowed under compliance options (1) or (2).
This rule also allows 30-day averaging for dip coaters.
This rule also requires a work practice implementation plan that
develops environmentally desirable work practices including: An
operator training course; a leak inspection and maintenance plan; a
cleaning and washoff accounting system, spray booth cleaning
restrictions; storage requirements for coatings; coating application
requirements; line cleaning and spray gun cleaning procedures; and
emission control practices from washoff operations.
This rule also includes compliance testing and monitoring
requirements for a VOC emission control system, as well as
recordkeeping and reporting requirements. Compliance is required 12
months after the effective date of this rule. Ohio EPA revised its
viscosity provisions, as was previously agreed between the State and
EPA, so that viscosity cannot, by itself, be used to establish the VOC
content for dip coaters. This rule is consistent with VOC RACT
requirements and is being approved.
VII. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.
Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).
Regulatory Flexibility Act
This action merely approves state law as meeting federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
Unfunded Mandates Reform Act
Because this rule approves pre-existing requirements under state
law and does not impose any additional enforceable duty beyond that
required by state law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as
[[Page 35965]]
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does 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 (64 FR 43255, August
10, 1999). This action merely approves a state rule implementing a
federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act.
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
National Technology Transfer Advancement Act
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. By June 14, 2005, EPA will submit a report containing
these rules and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States. A major rule cannot take effect until 60 days after it is
published in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 22, 2005. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2).)
List of Subjects in 40 CFR Parts 52 and 81
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Dated: June 10, 2005.
Norman Niedergang,
Acting Regional Administrator, Region 5.
0
For the reasons stated in the preamble, parts 52 and 81, chapter I,
title 40 of the Code of Federal Regulations are amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart KK--Ohio
0
2. Section 52.1870 is amended by adding paragraph (c)(133) to read as
follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(133) On May 20, 2005, the Ohio Environmental Protection Agency
submitted volatile organic compound (VOC) regulations for five source
categories in the Cincinnati ozone nonattainment area. These
regulations complete the requirement that all VOC reasonably available
control technology (RACT) regulations, for which there are eligible
sources, have been approved by EPA into the SIP for the Cincinnati
ozone nonattainment area.
(i) Incorporation by Reference. The following sections of the Ohio
Administrative Code (OAC) are incorporated by reference.
(A) OAC rule 3745-21-01(U), (definitions for commercial bakery oven
facilities), effective May 27, 2005.
(B) OAC rule 3745-21-01(V), (definitions for reactors and
distillation units employed in SOCMI chemical production), effective
May 27, 2005.
(C) OAC rule 3745-21-01(W), (definitions for batch operations),
effective May 27, 2005.
(D) OAC rule 3745-21-01(X), (definitions for wood furniture
manufacturing operations), effective May 27, 2005.
(E) OAC rule 3745-21-01(Y), (definitions for industrial
wastewater), effective May 27, 2005.
(F) OAC rule 3745-21-12: ``Control of Volatile Organic Compound
Emissions from Commercial Bakery Oven Facilities'', effective May 27,
2005.
(G) OAC rule 3745-21-13: ``Control of Volatile Organic Compound
Emissions from Reactors and Distillation Units Employed in SOCMI
Chemical Production'', effective May 27, 2005.
(H) OAC rule 3745-21-14: ``Control of Volatile Organic Compound
Emissions from Process Vents in Batch Operations'', effective May 27,
2005.
(I) OAC rule 3745-21-15: ``Control of Volatile Organic Compound
Emissions from Wood Furniture Manufacturing Operations'', effective May
27, 2005.
(J) OAC rule 3745-21-16: ``Control of Volatile Organic Compound
Emissions from Industrial Wastewater'', effective May 27, 2005.
* * * * *
0
2. Section 52.1885 is amended by revising paragraph (a)(14) to read as
follows:
Sec. 52.1885 Control strategy: Ozone.
(a) * * *
(14) Approval-EPA is approving the 1-hour ozone maintenance plan
for the Ohio portion of the Cincinnati-Hamilton area submitted by Ohio
on May 20,
[[Page 35966]]
2005. The approved maintenance plan establishes 2015 mobile source
budgets for the Ohio portion of the area (Butler, Clermont, Hamilton,
and Warren Counties) for the purposes of transportation conformity.
These budgets are 26.2 tons per day for volatile organic compounds and
39.5 tons per day for nitrogen oxides for the year 2015.
* * * * *
PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 81.336 is amended by revising the 1-hour ozone table entry
for the Cincinnati-Hamilton Area to read as follows:
Sec. 81.336 Ohio.
* * * * *
Ohio--Ozone (1-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date Type Date Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Cincinnati-Hamilton Area: 06/14/2005 Attainment...............................
Butler County.......................
Clermont County.....................
Hamilton County.....................
Warren County.......................
* * * * * * *
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[FR Doc. 05-12016 Filed 6-20-05; 8:45 am]
BILLING CODE 6560-50-P