[Federal Register Volume 72, Number 118 (Wednesday, June 20, 2007)]
[Proposed Rules]
[Pages 33937-33948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11958]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2006-0956; FRL-8328-9]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Ohio; Redesignation of
Dayton-Springfield Area to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to make a determination under the Clean Air
Act (CAA) that the nonattainment area of Dayton-Springfield, Ohio
(Clark, Green, Miami, and Montgomery Counties) has attained the 8-hour
ozone National Ambient Air Quality Standard (NAAQS). This determination
is based on complete, quality-assured ambient air quality monitoring
data for the 2004-2006 seasons that demonstrate that the 8-hour ozone
NAAQS have been attained in the area. EPA is also proposing to approve,
as a revision to the Ohio State Implementation Plan (SIP), the State's
plan for maintaining the 8-hour ozone NAAQS through 2018 in the area.
EPA is proposing to approve a request from the State of Ohio to
redesignate the Dayton-Springfield area to attainment of the 8-hour
ozone NAAQS. The Ohio Environmental Protection Agency (OEPA) submitted
this request on November 6, 2006 and supplemented it on November 29,
2006, December 4, 2006, December 13, 2006, January 11, 2007, March 9,
2007, March 27, 2007, and May 31, 2007. EPA is also proposing to
approve the State's 2005 and 2018 Motor Vehicle Emission Budgets
(MVEBs) for the Dayton-Springfield area.
DATES: Comments must be received on or before July 20, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0956, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (312) 886-5824.
4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
5. Hand delivery: John M. Mooney, Chief, Criteria Pollutant
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding
federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2006-0956. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov
or e-mail. The www.regulations.gov Web site is an ``anonymous access''
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through
www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. For additional instructions on submitting comments, go to
Section I of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov
[[Page 33938]]
index. Although listed in the index, some information is not publicly
available, e.g., CBI or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy. Publicly
available docket materials are available either electronically in
www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We
recommend that you telephone Kathleen D'Agostino, Environmental
Engineer, at (312) 886-1767 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-1767, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
Table of Contents
I. What Should I Consider as I Prepare My Comments for EPA?
II. What Actions Is EPA Proposing To Take?
III. What Is the Background for These Actions?
A. What Is the General Background Information?
B. What Is the Impact of the December 22, 2006 United States
Court of Appeals Decision Regarding EPA's Phase 1 Implementation
Rule?
IV. What Are the Criteria for Redesignation?
V. Why Is EPA Proposing To Take These Actions?
VI. What Is the Effect of These Actions?
VII. What Is EPA's Analysis of the Requests?
A. Attainment Determination and Redesignation
B. Adequacy of Ohio's MVEBs
VIII. What Actions Is EPA Taking?
IX. Statutory and Executive Order Reviews
I. What Should I Consider as I Prepare My Comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--The EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What Actions is EPA Proposing To Take?
EPA is proposing to take several related actions. EPA is proposing
to make a determination that the Dayton-Springfield nonattainment area
has attained the 8-hour ozone standard and that this area has met the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
EPA is thus proposing to approve Ohio's request to change the legal
designation of the Dayton-Springfield area from nonattainment to
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve
Ohio's maintenance plan SIP revision for Dayton-Springfield (such
approval being one of the CAA criteria for redesignation to attainment
status). The maintenance plan is designed to keep the Dayton-
Springfield area in attainment of the ozone NAAQS through 2018.
Additionally, EPA is proposing to approve the newly-established 2005
and 2018 MVEBs for the Dayton-Springfield area. The adequacy comment
period for the MVEBs began on November 14, 2006, with EPA's posting of
the availability of the submittal on EPA's Adequacy Web site (at http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm). The adequacy
comment period for these MVEBs ended on December 14, 2006. EPA did not
receive any requests for this submittal, or adverse comments on this
submittal during the adequacy comment period. On April 3, 2007, EPA
published a Federal Register notice announcing the adequacy of the 2005
and 2018 MVEBs. Please see the Adequacy section of this rulemaking for
further explanation on this process. Therefore, we find adequate, and
are proposing to approve, the State's 2005 and 2018 MVEBs for
transportation conformity purposes.
III. What Is the Background for These Actions?
A. What Is the General Background Information?
Ground-level ozone is not emitted directly by sources. Rather,
emissions of nitrogen oxides (NOX) and volatile organic
compounds (VOCs) react in the presence of sunlight to form ground-level
ozone. NOX and VOCs are referred to as precursors of ozone.
The CAA establishes a process for air quality management through
the NAAQS. Before promulgation of the current 8-hour standard, the
ozone NAAQS was based on a 1-hour standard. On November 6, 1991 (56 FR
56693 and 56813), the Dayton-Springfield area was designated as a
moderate nonattainment area under the 1-hour ozone NAAQS. The area was
subsequently redesignated to attainment of the 1-hour standard on May
5, 1995 (60 FR 22289). At the time EPA revoked the 1-hour ozone NAAQS,
on June 15, 2005, the Dayton-Springfield area was designated as
attainment under the 1-hour ozone NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour standard. On April 30, 2004 (69 FR 23857), EPA
published a final rule designating and classifying areas under the 8-
hour ozone NAAQS. These designations and classifications became
effective June 15, 2004. The CAA required EPA to designate as
nonattainment any area that was violating the 8-hour ozone NAAQS based
on the three most recent years of air quality data, 2001-2003.
The CAA contains two sets of provisions, subpart 1 and subpart 2,
that address planning and control requirements for nonattainment areas.
(Both are found in title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 contains general requirements for
nonattainment areas for any pollutant, including ozone, governed by a
NAAQS. Subpart 2 provides more specific requirements for ozone
nonattainment areas.
Under EPA's 8-hour ozone implementation rule, (69 FR 23951 (April
30, 2004)), an area was classified under subpart 2 based on its 8-hour
ozone design value (i.e., the 3-year average annual fourth-highest
daily maximum 8-hour average ozone concentration), if it had a 1-hour
design value at the time of designation at or above 0.121 ppm (the
lowest 1-hour design value in Table 1 of subpart 2) (69 FR 23954). All
other areas are covered under subpart 1, based upon their 8-
[[Page 33939]]
hour design values (69 FR 23958). The Dayton-Springfield area was
designated as a subpart 1, 8-hour ozone nonattainment area by EPA on
April 30, 2004, (69 FR 23857, 23927) based on air quality monitoring
data from 2001-2003 (69 FR 23860).
40 CFR 50.10 and 40 CFR Part 50, Appendix I provide that the 8-hour
ozone standard is attained when the 3-year average of the annual
fourth-highest daily maximum 8-hour average ozone concentration is less
than or equal to 0.08 ppm, when rounded. The data completeness
requirement is met when the average percent of days with valid ambient
monitoring data is greater than 90%, and no single year has less than
75% data completeness. See 40 CFR Part 50, Appendix I, 2.3(d).
On November 6, 2006, Ohio requested that EPA redesignate the
Dayton-Springfield area to attainment for the 8-hour ozone standard.
Ohio supplemented its submittal on November 29, 2006, December 4, 2006,
December 13, 2006, January 11, 2007, March 9, 2007, March 27, 2007, and
May 31, 2007. The redesignation request included three years of
complete, quality-assured data for the period of 2004 through 2006,
indicating the 8-hour NAAQS for ozone had been attained for the Dayton-
Springfield area. Under the CAA, nonattainment areas may be
redesignated to attainment if sufficient complete, quality-assured data
are available for the Administrator to determine that the area has
attained the standard, and the area meets the other CAA redesignation
requirements in section 107(d)(3)(E).
B. What Is the Impact of the December 22, 2006 United States Court of
Appeals Decision Regarding EPA's Phase 1 Implementation Rule?
1. Summary of Court Decision
On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 23951, April 30, 2004). South Coast Air
Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). The
Court held that certain provisions of EPA's Phase 1 Rule were
inconsistent with the requirements of the CAA. The Court rejected EPA's
reasons for implementing the 8-hour standard in nonattainment areas
under Subpart 1 in lieu of subpart 2 of Title I, part D of the Act. The
Court also held that EPA improperly failed to retain four measures
required for 1-hour nonattainment areas under the anti-backsliding
provisions of the regulations: (1) Nonattainment area New Source Review
(NSR) requirements based on an area's 1-hour nonattainment
classification; (2) Section 185 penalty fees for 1-hour severe or
extreme nonattainment areas; (3) Measures to be implemented pursuant to
section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an
area not making reasonable further progress toward attainment of the 1-
hour NAAQS, or for failure to attain that NAAQS; and (4) certain
conformity requirements for certain types of federal actions. The Court
upheld EPA's authority to revoke the 1-hour standard provided there
were adequate anti-backsliding provisions.
This section sets forth EPA's views on the potential effect of the
Court's ruling on this redesignation action. For the reasons set forth
below, EPA does not believe that the Court's ruling alters any
requirements relevant to this redesignation action so as to preclude
redesignation, and does not prevent EPA from finalizing this
redesignation. EPA believes that the Court's decision, as it currently
stands or as it may be modified based upon any petition for rehearing
that has been filed, imposes no impediment to moving forward with
redesignation of this area to attainment, because in either
circumstance redesignation is appropriate under the relevant
redesignation provisions of the Act and longstanding policies regarding
redesignation requests.
2. Requirements Under the 8-Hour Standard
With respect to the 8-hour standard, the Court's ruling rejected
EPA's reasons for classifying areas under Subpart 1 for the 8-hour
standard, and remanded that matter to the Agency. Consequently, it is
possible that this area could, during a remand to EPA, be reclassified
under Subpart 2. Although any future decision by EPA to classify this
area under Subpart 2 might trigger additional future requirements for
the area, EPA believes that this does not mean that redesignation
cannot now go forward. This belief is based upon: (1) EPA's
longstanding policy of evaluating State submissions in accordance with
the requirements due at the time the request is submitted; and, (2)
consideration of the inequity of applying retroactively any future
requirements.
First, at the time the redesignation request was submitted, the
Dayton-Springfield area was classified under Subpart 1 and was
obligated to meet Subpart 1 requirements. Under EPA's longstanding
interpretation of section 107(d)(3)(E) of the CAA, to qualify for
redesignation, states requesting redesignation to attainment must meet
only the relevant SIP requirements that came due prior to the submittal
of a complete redesignation request. September 4, 1992, Calcagni
memorandum (``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division) See also Michael Shapiro Memorandum, September 17,
1993, and 60 FR 12459, 12465-66 (March 7, 1995) (Redesignation of
Detroit-Ann Arbor). See Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004), which upheld this interpretation. See, e.g. also 68 FR 25418,
25424, 25427 (May 12, 2003) (redesignation of St. Louis).
Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The D.C. Circuit has recognized the inequity in such
retroactive rulemaking, See Sierra Club v. Whitman, 285 F. 3d 63 (D.C.
Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling
refusing to make retroactive an EPA determination of nonattainment that
was past the statutory due date. Such a determination would have
resulted in the imposition of additional requirements on the area. The
Court stated: ``Although EPA failed to make the nonattainment
determination within the statutory time frame, Sierra Club's proposed
solution only makes the situation worse. Retroactive relief would
likely impose large costs on the States, which would face fines and
suits for not implementing air pollution prevention plans in 1997, even
though they were not on notice at the time.'' Id. at 68. Similarly here
it would be unfair to penalize the area by applying to it for purposes
of redesignation additional SIP requirements under Subpart 2 that were
not in effect at the time it submitted its redesignation request.
3. Requirements Under the 1-Hour Standard
With respect to the requirements under the 1-hour standard, the
Dayton-Springfield area was an attainment area subject to a CAA section
175A maintenance plan under the 1-hour standard. The Court's ruling
does not impact redesignation requests for these types of areas.
First, there are no conformity requirements that are relevant for
redesignation requests for any standard, including the requirement to
submit a transportation conformity SIP. Under longstanding EPA policy,
EPA believes that it is reasonable to interpret the conformity SIP
requirement as not applying for purposes of evaluating a redesignation
request under section
[[Page 33940]]
107(d) because state conformity rules are still required after
redesignation and federal conformity rules apply where state rules have
not been approved. 40 CFR 51.390. See Wall v. EPA, 265 F.3d 426 (6th
Cir. 2001), upholding this interpretation. See also 60 FR 62748
(December 7, 1995) (Tampa, FL redesignation).
Federal transportation conformity regulations apply in all States
prior to approval of transportation conformity SIPs. The Dayton-
Springfield, Ohio 1-hour ozone area was redesignated to attainment
without approved State transportation conformity regulations because
the federal regulations were in effect in Ohio. When challenged, these
1-hour ozone redesignations, which were approved without state
regulations, were upheld by the courts. See Wall v. EPA, 265 F.3d 426
(6th Cir. 2001). See also 60 FR 62748 (December 7, 1995) (Tampa,
Florida). Although Ohio does not have approved state transportation
conformity regulations, it has developed memoranda of understanding,
signed by all parties involved in conformity, to address conformity
consultation procedures. The federal transportation conformity
regulations, which apply in Ohio, require the approved 1-hour ozone
budgets to be used for transportation conformity purposes prior to 8-
hour ozone budgets being approved.
Second, with respect to the three other anti-backsliding provisions
for the 1-hour standard that the Court found were not properly
retained, the Dayton-Springfield area is an attainment area subject to
a maintenance plan for the 1-hour standard, and the NSR, contingency
measure (pursuant to section 172(c)(9) or 182(c)(9)) and fee provision
requirements no longer apply to an area that has been redesignated to
attainment of the 1-hour standard.
Thus, the decision in South Coast should not alter requirements
that would preclude EPA from finalizing the redesignation of this area.
IV. What Are the Criteria for Redesignation?
The CAA provides the requirements for redesignating a nonattainment
area 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); (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 SIP and applicable
federal air pollutant control regulations and other permanent and
enforceable reductions; (4) the Administrator has fully approved a
maintenance plan for the area as meeting the requirements of section
175A; and, (5) the state containing such area has met all requirements
applicable to the area under section 110 and part D.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
``Ozone and Carbon Monoxide Design Value Calculations,'' Memorandum
from William G. Laxton, Director Technical Support Division, June 18,
1990;
``Maintenance Plans for Redesignation of Ozone and Carbon Monoxide
Nonattainment Areas,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in Response to
Clean Air Act (ACT) Deadlines,'' Memorandum from John Calcagni,
Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSD's) for Redesignation Ozone and
Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G.T. Helms,
Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
``State Implementation Plan (SIP) Requirements for Areas Submitting
Requests for Redesignation to Attainment of the Ozone and Carbon
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or
After November 15, 1992,'' Memorandum from Michael H. Shapiro, Acting
Assistant Administrator for Air and Radiation, September 17, 1993;
``Use of Actual Emissions in Maintenance Demonstrations for Ozone
and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting
Director, Air Quality Management Division, to Air Division Directors,
Regions 1-10, dated November 30, 1993.
``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
``Reasonable Further Progress, Attainment Demonstration, and
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard,'' Memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, May 10, 1995.''
V. Why Is EPA Proposing To Take These Actions?
On November 6, 2006, Ohio requested redesignation of the Dayton-
Springfield area to attainment for the 8-hour ozone standard. Ohio
supplemented its submittal on November 29, 2006, December 4, 2006,
December 13, 2006, January 5, 2007, January 11, 2007, March 9, 2007,
March 27, 2007, and May 31, 2007. EPA believes that the area has
attained the standard and has met the requirements for redesignation
set forth in section 107(d)(3)(E) of the CAA.
VI. What Is the Effect of These Actions?
Approval of the redesignation request would change the official
designation of the area for the 8-hour ozone NAAQS found at 40 CFR part
81. It would also incorporate into the Ohio SIP a plan for maintaining
the 8-hour ozone NAAQS through 2018. The maintenance plan includes
contingency measures to remedy future violations of the 8-hour NAAQS.
It also establishes MVEBs of 29.19 and 14.73 tons per day (tpd) VOC and
63.88 and 21.42 tpd NOX for the years 2005 and 2018,
respectively.
VII. What Is EPA's Analysis of the Requests?
A. Attainment Determination and Redesignation
EPA is proposing to make a determination that the Dayton-
Springfield area has attained the 8-hour ozone standard and that the
area has met all other applicable section 107(d)(3)(E) redesignation
criteria. The basis for EPA's determination is as follows:
1. The Area Has Attained the 8-Hour Ozone NAAQS. (Section
107(d)(3)(E)(i))
EPA is proposing to make a determination that the Dayton-
Springfield area has attained the 8-hour ozone NAAQS. For ozone, an
area may be considered to be attaining the 8-hour
[[Page 33941]]
ozone NAAQS if there are no violations, as determined in accordance
with 40 CFR 50.10 and part 50, Appendix I, based on three complete,
consecutive calendar years of quality-assured air quality monitoring
data. To attain this standard, the 3-year average of the fourth-highest
daily maximum 8-hour average ozone concentrations measured at each
monitor within an area over each year must not exceed 0.08 ppm. Based
on the rounding convention described in 40 CFR part 50, Appendix I, the
standard is attained if the design value is 0.084 ppm or below. The
data must be collected and quality-assured in accordance with 40 CFR
part 58, and recorded in the Aerometric Information Retrieval System
(AIRS). The monitors generally should have remained at the same
location for the duration of the monitoring period required for
demonstrating attainment.
OEPA submitted ozone monitoring data for the 2004 to 2006 ozone
seasons. The OEPA quality-assured the ambient monitoring in accordance
with 40 CFR 58.10, and recorded it in the AIRS database, thus making
the data publicly available. The data meet the completeness criteria in
40 CFR 50, Appendix I, which requires a minimum completeness of 75
percent annually and 90 percent over each three year period. Monitoring
data is presented in Table 1 below. Data completeness information is
presented in Table 2 below.
Table 1.--Annual 4th High Daily Maximum 8-Hour Ozone Concentration and 3-Year Averages of 4th High Daily Maximum
8-Hour Ozone Concentrations
----------------------------------------------------------------------------------------------------------------
2004-2006
2004 4th 2005 4th 2006 4th average
County Monitor high (ppm) high (ppm) high (ppm) 4th high
(ppm)
----------------------------------------------------------------------------------------------------------------
Clark........................... Springfield, 39-023-001... 0.079 0.086 0.076 0.080
Mud Run, 39-023-0003...... 0.073 0.081 0.074 0.076
Greene.......................... Xenia, 39-057-0006........ 0.075 0.083 0.079 0.079
Miami........................... Miami, 39-109-0005........ 0.075 0.079 0.073 0.076
Montgomery...................... Webster, 39-113-0033...... 0.067 0.082 0.071 0.073
----------------------------------------------------------------------------------------------------------------
Table 2.--Data Completeness in Percent (%)
----------------------------------------------------------------------------------------------------------------
2004-2006
County Monitor 2004 (%) 2005 (%) 2006 (%) average (%)
----------------------------------------------------------------------------------------------------------------
Clark........................... Springfield, 39-023-001... 100 99 100 100
Mud Run, 39-023-0003...... 99 99 100 99
Greene.......................... Xenia, 39-057-0006........ 100 100 100 100
Miami........................... Miami, 39-109-0005........ 99 100 99 99
Montgomery...................... Webster, 39-113-0033...... 98 100 100 99
----------------------------------------------------------------------------------------------------------------
In addition, as discussed below with respect to the maintenance
plans, OEPA has committed to continue operating the ozone monitors
listed above. OEPA has also committed to consult with EPA prior to
making changes to the existing monitoring network, should changes
become necessary in the future. OEPA will continue to quality assure
and report monitoring data in accordance with 40 CFR part 58 and all
other federal requirements. In summary, EPA believes that the data
submitted by Ohio provide an adequate demonstration that the Dayton-
Springfield area has attained the 8-hour ozone NAAQS.
2. The Area Has Met All Applicable Requirements Under Section 110 and
Part D; and the Area Has a Fully Approved SIP Under Section 110(k).
(Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
We have determined that Ohio has met all currently applicable SIP
requirements for purposes of redesignation for the Dayton-Springfield
area under Section 110 of the CAA (general SIP requirements). We have
also determined that the Ohio SIP meets all SIP requirements currently
applicable for purposes of redesignation under part D of Title I of the
CAA (requirements specific to Subpart 1 nonattainment areas), in
accordance with section 107(d)(3)(E)(v). In addition, we have
determined that the Ohio SIP is fully approved with respect to all
applicable requirements for purposes of redesignation, in accordance
with section 107(d)(3)(E)(ii). In making these determinations, we have
ascertained what SIP requirements are applicable to the area for
purposes of redesignation, and have determined that the portions of the
SIP meeting these requirements are fully approved under section 110(k)
of the CAA. As discussed more fully below, SIPs must be fully approved
only with respect to currently applicable requirements of the CAA.
a. The Dayton-Springfield Area Has Met All Applicable Requirements
Under Section 110 and Part D of the CAA
The September 4, 1992 Calcagni memorandum (see ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) of the CAA. Under this interpretation, a state and the
area it wishes to redesignate must meet the relevant CAA requirements
that are due prior to the state's submittal of a complete redesignation
request for the area. See also the September 17, 1993 Michael Shapiro
memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of
Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS).
Applicable requirements of the CAA that come due subsequent to the
state's submittal of a complete request remain applicable until a
redesignation to attainment is approved, but are not required as a
prerequisite to redesignation. See section 175A(c) of the CAA. Sierra
Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427
(May 12, 2003) (redesignation of the St. Louis/East St. Louis area to
attainment of the 1-hour ozone NAAQS).
General SIP requirements. Section 110(a) of title I of the CAA
contains the general requirements for a SIP. Section
[[Page 33942]]
110(a)(2) provides that the implementation plan submitted by a state
must have been adopted by the state after reasonable public notice and
hearing, and that, among other things, it includes enforceable emission
limitations and other control measures, means or techniques necessary
to meet the requirements of the CAA; provides for establishment and
operation of appropriate devices, methods, systems and procedures
necessary to monitor ambient air quality; provides for implementation
of a source permit program to regulate the modification and
construction of any stationary source within the areas covered by the
plan; includes provisions for the implementation of part C, Prevention
of Significant Deterioration (PSD) and part D, NSR permit programs;
includes criteria for stationary source emission control measures,
monitoring, and reporting; includes provisions for air quality
modeling; and provides for public and local agency participation in
planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain measures
to prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants (NOX SIP Call,\1\ Clean Air Interstate Rule
(CAIR) (70 FR 25162)). However, the section 110(a)(2)(D) requirements
for a state are not linked with a particular nonattainment area's
designation and classification. EPA believes that the requirements
linked with a particular nonattainment area's designation and
classification are the relevant measures to evaluate in reviewing a
redesignation request. When the transport SIP submittal requirements
are applicable to a state, they will continue to apply to the state
regardless of the attainment designation of any one particular area in
the state. Therefore, we believe that these requirements should not be
construed to be applicable requirements for purposes of redesignation.
Further, we believe that the other section 110 elements described above
that are not connected with nonattainment plan submissions and not
linked with an area's attainment status are also not applicable
requirements for purposes of redesignation. A state remains subject to
these requirements after an area is redesignated to attainment. We
conclude that only the section 110 and part D requirements which are
linked with a particular area's designation and classification are the
relevant measures which we may consider in evaluating a redesignation
request. This approach is consistent with EPA's existing policy on
applicability of conformity and oxygenated fuels requirements for
redesignation purposes, as well as with section 184 ozone transport
requirements. See Reading, Pennsylvania, proposed and final rulemakings
(61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997);
Cleveland-Akron-Lorain, Ohio, final rulemaking (61 20458, May 7, 1996);
and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995).
See also the discussion on this issue in the Cincinnati ozone
redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh ozone
redesignation (66 FR 50399, October 19, 2001).
---------------------------------------------------------------------------
\1\ On October 27, 1998 (63 FR 57356), EPA issued a
NOX SIP call requiring the District of Columbia and 22
states, including Ohio, to reduce emissions of NOX in
order to reduce the transport of ozone and ozone precursors. In
compliance with EPA's NOX SIP call, OEPA has developed
rules governing the control of NOX emissions from
Electric Generating Units (EGUs), major non-EGU industrial boilers,
and major cement kilns. EPA approved Ohio's rules as fulfilling
Phase I of the NOX SIP Call on June 27, 2005 (70 FR
36845).
---------------------------------------------------------------------------
As discussed above, we believe that section 110 elements which are
not linked to the area's nonattainment status are not applicable for
purposes of redesignation. Because there are no section 110
requirements linked to the part D requirements for 8-hour ozone
nonattainment areas that have become due, as explained below, there are
no part D requirements applicable for purposes of redesignation under
the 8-hour standard.
Part D Requirements. EPA has determined that the Ohio SIP meets
applicable SIP requirements under part D of the CAA, since no
requirements applicable for purposes of redesignation became due for
the 8-hour ozone standard prior to OEPA's submission of the
redesignation request for the Dayton-Springfield area. Under part D, an
area's classification determines the requirements to which it will be
subject. Subpart 1 of part D, found in sections 172-176 of the CAA,
sets forth the basic nonattainment requirements applicable to all
nonattainment areas. Section 182 of the CAA, found in subpart 2 of part
D, establishes additional specific requirements depending on the area's
nonattainment classification. The Dayton-Springfield area was
classified as a subpart 1 nonattainment area, and, therefore, subpart 2
requirements do not apply.
Part D, Subpart 1 applicable SIP requirements. For purposes of
evaluating these redesignation requests, the applicable part D, subpart
1 SIP requirements for the Dayton-Springfield area are contained in
sections 172(c)(1)-(9). A thorough discussion of the requirements
contained in section 172 can be found in the General Preamble for
Implementation of Title I (57 FR 13498, April 16, 1992).
No requirements applicable for purposes of redesignation under part
D became due prior to submission of the redesignation request, and,
therefore, none are applicable to the areas for purposes of
redesignation. Since the State of Ohio has submitted a complete ozone
redesignation request for the Dayton-Springfield area prior to the
deadline for any submissions required for purposes of redesignation, we
have determined that these requirements do not apply to the Dayton-
Springfield area for purposes of redesignation.
Furthermore, EPA has determined that, since PSD requirements will
apply after redesignation, areas being redesignated need not comply
with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
NAAQS without part D NSR. A more detailed rationale for this view is
described in a memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation, dated October 14, 1994, entitled, ``Part D New
Source Review Requirements for Areas Requesting Redesignation to
Attainment.'' Ohio has demonstrated that the area to be redesignated
will be able to maintain the standard without part D NSR in effect;
therefore, EPA concludes that the State need not have a fully approved
part D NSR program prior to approval of the redesignation request. The
State's PSD program will become effective in the Dayton-Springfield
area upon redesignation to attainment. See rulemakings for Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain,
Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66
FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-
31837, June 21, 1996).
Section 176 conformity requirements. Section 176(c) of the CAA
requires states to establish criteria and procedures to ensure that
federally-supported or funded activities, including highway projects,
conform to the air quality planning goals in the applicable SIPs. The
requirement to determine conformity applies to transportation plans,
programs and projects developed, funded or approved under Title 23 of
the U.S. Code and the Federal Transit Act (transportation
[[Page 33943]]
conformity) as well as to all other federally-supported or funded
projects (general conformity). State conformity revisions must be
consistent with federal conformity regulations relating to
consultation, enforcement and enforceability, which EPA promulgated
pursuant to CAA requirements.
EPA believes that it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) for two reasons. First, the
requirement to submit SIP revisions to comply with the conformity
provisions of the CAA continues to apply to areas after redesignation
to attainment since such areas would be subject to a section 175A
maintenance plan. Second, EPA's federal conformity rules require the
performance of conformity analyses in the absence of federally-approved
state rules. Therefore, because areas are subject to the conformity
requirements regardless of whether they are redesignated to attainment
and, because they must implement conformity under federal rules if
state rules are not yet approved, EPA believes it is reasonable to view
these requirements as not applying for purposes of evaluating a
redesignation request. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001),
upholding this interpretation. See also 60 FR 62748, 62749-62750 (Dec.
7, 1995) (Tampa, Florida).
EPA approved Ohio's general and transportation conformity SIPs on
March 11, 1996 (61 FR 9646) and May 30, 2000 (65 FR 34395),
respectively. Ohio has submitted on-highway motor vehicle budgets for
the Dayton-Springfield area of 29.19 and 14.73 tpd VOC and 63.88 and
21.42 tpd NOX for the years 2005 and 2018, respectively. The
area must use the MVEBs from the maintenance plan in any conformity
determination that is effective on or after the effective date of the
maintenance plan approval. Thus, the Dayton-Springfield area has
satisfied all applicable requirements under section 110 and part D of
the CAA.
b. The Dayton-Springfield Area Has a Fully Approved Applicable SIP
Under Section 110(k) of the CAA
EPA has fully approved the Ohio SIP for the Dayton-Springfield area
under section 110(k) of the CAA for all requirements applicable for
purposes of redesignation. EPA may rely on prior SIP approvals in
approving a redesignation request (See the September 4, 1992 John
Calcagni memorandum, page 3, Southwestern Pennsylvania Growth Alliance
v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998), Wall v. EPA, 265
F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve
in conjunction with a redesignation action. See 68 FR 25413, 25426 (May
12, 2003). Since the passage of the CAA of 1970, Ohio has adopted and
submitted, and EPA has fully approved, provisions addressing the
various required SIP elements applicable to the Dayton-Springfield area
under the 1-hour ozone standard. No Dayton-Springfield area SIP
provisions are currently disapproved, conditionally approved, or
partially approved.
3. The Improvement in Air Quality Is Due to Permanent and Enforceable
Reductions in Emissions Resulting From Implementation of the SIP and
Applicable Federal Air Pollution Control Regulations and Other
Permanent and Enforceable Reductions. (Section 107(d)(3)(E)(iii))
EPA finds that Ohio has demonstrated that the observed air quality
improvement in the Dayton-Springfield area is due to permanent and
enforceable reductions in emissions resulting from implementation of
the SIP, federal measures, and other state-adopted measures.
In making this demonstration, the State has calculated the change
in emissions between 2002 and 2005, one of the years the Dayton-
Springfield area monitored attainment. The reduction in emissions and
the corresponding improvement in air quality over this time period can
be attributed to a number of regulatory control measures that Ohio and
upwind areas have implemented in recent years. The Dayton-Springfield
is impacted by the transport of ozone and ozone precursors from upwind
areas. Therefore, local controls as well as controls implemented in
upwind areas are relevant to the improvement in air quality in the
Dayton-Springfield area.
a. Permanent and Enforceable Controls Implemented
The following is a discussion of permanent and enforceable measures
that have been implemented in the areas:
NOX rules. In compliance with EPA's NOX SIP call, Ohio
developed rules to control NOX emissions from Electric
Generating Units (EGUs), major non-EGU industrial boilers, and major
cement kilns. These rules required sources to begin reducing
NOX emissions in 2004. From 2004 on, NOX
emissions from EGUs and large industrial boilers have been capped at a
level well below pre-2002 levels. OEPA expects that NOX
emissions will further decline as the State meets the requirements of
EPA's Phase II NOX SIP call (69 FR 21604 (April 21, 2004))
and CAIR.
Federal Emission Control Measures. Reductions in VOC and
NOX emissions have occurred statewide as a result of federal
emission control measures, with additional emission reductions expected
to occur in the future as the state implements additional emission
controls. Federal emission control measures include: The National Low
Emission Vehicle (NLEV) program, Tier 2 emission standards for
vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and
heavy-duty diesel engine standards. In addition, in 2004, EPA issued
the Clean Air Non-road Diesel Rule (69 FR 38958 (July 29, 2004)). EPA
expects this rule to reduce off-road diesel emissions through 2010,
with emission reductions starting in 2008.
Control Measures in Upwind Areas. On October 27, 1998 (63 FR
57356), EPA issued a NOX SIP call requiring the District of
Columbia and 22 states, including Ohio, to reduce emissions of
NOX. The reduction in NOX emissions has resulted
in lower concentrations of transported ozone entering the Dayton-
Springfield area. Emission reductions resulting from regulations
developed in response to the NOX SIP call are permanent and
enforceable.
b. Emission Reductions
Ohio is using 2002 for the nonattainment inventory and 2005, one of
the years used to demonstrate monitored attainment of the NAAQS, for
the attainment inventory. OEPA developed a 2002 base year inventory
which they provided to the Lake Michigan Air Directors Consortium
(LADCO). The base year inventory was processed by LADCO to develop
summer day emissions for use in regional air quality analyses and
attainment demonstration modeling. Area source emissions data were
taken from the Ohio 2002 periodic inventory submitted to EPA. Onroad
mobile source emissions were calculated using MOBILE6.2. Point source
emissions data was compiled from Ohio's STARShip annual emissions
inventory database and EPA's 2002 Air Markets acid rain database.
Nonroad mobile emissions were generated using EPA's National Mobile
Inventory Model (NMIM), with the following exceptions. Recreational
motorboat populations and spatial surrogates were updated and emissions
estimates were developed for aircraft, commercial marine vessels, and
railroads, three nonroad categories not included in NMIM. For 2005,
OEPA
[[Page 33944]]
estimated point, area, and nonroad mobile source emissions by
interpolating between the 2002 inventory and the 2009 inventory
described below. Onroad emissions were generated using MOBILE6.2.
Based on the inventories described above, Ohio's submittal
documents changes in VOC and NOX emissions from 2002 to 2005
for the Dayton-Springfield area. Emissions data are shown in Tables 3
through 5 below.
Table 3.--Dayton-Springfield Area: Total VOC and NOX Emissions for Nonattainment Year 2002 (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Clark Greene Miami Montgomery Total
-------------------------------------------------------------------------------------------------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point..................................... 0.55 0.11 0.05 9.30 0.29 0.05 2.61 29.32 3.50 38.78
Area...................................... 10.40 0.70 5.98 0.67 6.34 0.53 22.35 2.43 45.07 4.33
Nonroad................................... 1.94 3.56 1.79 3.70 1.74 3.49 8.62 12.17 14.09 22.92
Onroad.................................... 6.62 14.54 6.22 12.26 4.95 9.88 20.80 41.77 38.59 78.45
-------------------------------------------------------------------------------------------------------------
Total................................. 19.51 18.91 14.04 25.93 13.32 13.95 54.38 85.69 101.25 144.48
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 4.--Dayton-Springfield Area: Total VOC and NOX Emissions for Attainment Year 2005 (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Clark Greene Miami Montgomery Total
-------------------------------------------------------------------------------------------------------------
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point..................................... 0.50 0.11 0.05 8.75 0.30 0.05 2.60 27.69 3.45 36.60
Area...................................... 11.02 0.75 6.08 0.72 6.46 0.56 22.67 2.62 46.23 4.65
Nonroad................................... 1.68 3.16 1.60 3.37 1.55 3.07 7.33 10.64 12.16 20.24
Onroad.................................... 4.98 11.82 4.74 10.04 3.81 8.17 15.66 33.85 29.19 63.88
-------------------------------------------------------------------------------------------------------------
Total................................. 18.18 15.84 12.47 22.88 12.12 11.85 48.26 74.80 91.03 125.37
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5.--Dayton-Springfield Area: Comparison of 2002 and 2005 VOC and NOX Emissions (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
VOC NOX
-----------------------------------------------------------------------------------------------
Sector Net change Net change
2002 2005 (2002-2005) 2002 2005 (2002-2005)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point................................................... 3.50 3.45 -0.05 38.78 36.60 -2.18
Area.................................................... 45.07 46.23 1.16 4.33 4.65 0.32
Nonroad................................................. 14.09 12.16 -1.93 22.92 20.24 -2.68
Onroad.................................................. 38.59 29.19 -9.4 78.45 63.88 -14.57
-----------------------------------------------------------------------------------------------
Total............................................... 101.25 91.03 -10.22 144.48 125.37 -19.11
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5 shows that the Dayton-Springfield area reduced VOC
emissions by 10.22 tpd and NOX emissions by 19.11 tpd
between 2000 and 2005. Based on the information summarized above, Ohio
has adequately demonstrated that the improvement in air quality is due
to permanent and enforceable emissions reductions.
4. The Areas Have Fully Approved Maintenance Plans Pursuant to Section
175a of the CAA. (Section 107(d)(3)(E)(iv))
In conjunction with its requests to redesignate the Dayton-
Springfield nonattainment area to attainment status, Ohio submitted a
SIP revision to provide for the maintenance of the 8-hour ozone NAAQS
in the area through 2018.
a. What is required in a maintenance plan?
Section 175A of the CAA sets forth the required elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. Under section 175A, the plan must demonstrate continued
attainment of the applicable NAAQS for at least ten years after the
Administrator approves a redesignation to attainment. Eight years after
the redesignation, the State must submit a revised maintenance plan
which demonstrates that attainment will continue to be maintained for
ten years following the initial ten-year maintenance period. To address
the possibility of future NAAQS violations, the maintenance plan must
contain contingency measures with a schedule for implementation as EPA
deems necessary to assure prompt correction of any future 8-hour ozone
violations.
The September 4, 1992 John Calcagni memorandum provides additional
guidance on the content of a maintenance plan. The memorandum clarifies
that an ozone Maintenance Plan Should Address The Following Items: The
attainment VOC and NOX emissions inventories, a maintenance
demonstration showing maintenance for the ten years of the maintenance
period, a commitment to maintain the existing monitoring network,
factors and procedures to be used for verification of continued
attainment of the NAAQS, and a contingency plan to prevent or correct
future violations of the NAAQS.
b. Attainment Inventory
The OEPA developed an emissions inventory for 2005, one of the
years Ohio used to demonstrate monitored attainment of the 8-hour
NAAQS, as described above. The attainment level of emissions is
summarized in Table 4, above.
[[Page 33945]]
c. Demonstration of Maintenance
Ohio submitted with the redesignation request a revision to the 8-
hour ozone SIP to include a maintenance plan for the Dayton-Springfield
area, in compliance with section 175A of the CAA. This demonstration
shows maintenance of the 8-hour ozone standard through 2018 by assuring
that current and future emissions of VOC and NOX for the
Dayton-Springfield area remain at or below attainment year emission
levels. A maintenance demonstration need not be based on modeling. See
Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F.
3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19,
2001), 68 FR 25413, 25430-25432 (May 12, 2003).
Ohio is primarily using inventories developed by LADCO for the
years 2009 and 2018. Point and area source emissions were projected
from the 2002 base year to 2009 and 2018 using growth factors. LADCO
point source estimates have been supplemented with point source
emissions projections based upon data compiled from Ohio's STARShip
annual emissions inventory database and statewide EGU NOX
budgets from the Ohio NOX rule. Nonroad mobile emissions
were generated for 2009 and 2018 using NMIM, with the following
exceptions. Recreational motorboat populations and spatial surrogates
were updated and emissions estimates were developed for aircraft,
commercial marine vessels, and railroads, three nonroad categories not
included in NMIM. The Ohio Department of Transportation prepared onroad
mobile source emissions estimates using MOBILE6.2. Modeling for 2009
and 2018 includes implementation of the 7.8 low Reid Vapor Pressure
fuels program for the area. It should be noted that because Ohio is in
the process of seeking approval of the removal of the vehicle
inspection and maintenance (I/M) program from the Dayton-Springfield
SIP, MOBILE6.2 modeling was performed assuming no credit for I/M
related emissions reductions in 2009 and 2018. This results in
conservatively estimating onroad emissions to be higher in 2009 and
2018 than would be the case if the I/M program were to continue to
operate. While the issue of I/M program discontinuation will be
addressed in a separate action, it should be noted that Ohio's
maintenance plan demonstrates that the area can maintain the standard
through 2018 without operation of the I/M program. Emissions estimates
are presented in Table 6 below.
Table 6.--Dayton-Springfield Area: Comparison of 2005-2018 VOC and NOX Emissions (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
VOC NOX
-------------------------------------------------------------------------------------------------------
Sector Net change Net change
2005 2009 2018 2005-2018 2005 2009 2018 2005-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point........................................... 3.45 3.47 3.72 0.27 36.60 36.24 37.94 1.34
Area............................................ 46.23 47.76 52.75 6.52 4.65 5.09 5.45 0.80
Nonroad......................................... 12.16 9.62 7.91 -4.25 20.24 16.68 9.84 -10.40
Onroad.......................................... 29.19 20.50 11.66 -17.53 63.88 46.78 18.50 -45.38
-------------------------------------------------------------------------------------------------------
Total....................................... 91.03 81.35 76.04 -14.99 125.37 104.79 71.73 -53.64
--------------------------------------------------------------------------------------------------------------------------------------------------------
The emission projections show that OEPA does not expect emissions
in the Dayton-Springfield area to exceed the level of the 2005
attainment year inventory during the maintenance period. In the Dayton-
Springfield area, OEPA projects that VOC and NOX emissions
will decrease by 14.99 tpd and 53.64 tpd, respectively.
As part of its maintenance plan, the State elected to include a
``safety margin'' for the area. A ``safety margin'' is the difference
between the attainment level of emissions (from all sources) and the
projected level of emissions (from all sources) in the maintenance plan
which continues to demonstrate attainment of the standard. The
attainment level of emissions is the level of emissions during one of
the years in which the area met the NAAQS. The Dayton-Springfield area
attained the 8-hour ozone NAAQS during the 2004-2006 time period. Ohio
used 2005 as the attainment level of emissions for the area. In the
maintenance plan, OEPA projected emission levels for 2018. For Dayton-
Springfield, the emissions from point, area, nonroad, and mobile
sources in 2005 equaled 91.03 tpd of VOC. OEPA projected VOC emissions
for the year 2018 to be 76.04 tpd of VOC. The SIP submission
demonstrates that the Dayton-Springfield area will continue to maintain
the standard with emissions at this level. The safety margin for VOC is
calculated to be the difference between these amounts or, in this case,
14.99 tpd of VOC for 2018. By this same method, 53.64 tpd (i.e., 125.37
tpd less 71.73 tpd) is the safety margin for NOX for 2018.
The safety margin, or a portion thereof, can be allocated to any of the
source categories, as long as the total attainment level of emissions
is maintained.
d. Monitoring Network
Ohio currently operates two ozone monitors in Clark County, and one
ozone monitor each in Greene, Miami, and Montgomery Counties. OEPA has
committed to continue operating the ozone monitors located in these
counties. OEPA has also committed to consult with EPA prior to making
changes to the existing monitoring network, should changes become
necessary in the future. OEPA will continue to quality assure and
report monitoring data in accordance with 40 CFR part 58 and all other
federal requirements.
e. Verification of Continued Attainment
Continued attainment of the ozone NAAQS in the Dayton-Springfield
area depends, in part, on the State's efforts toward tracking
indicators of continued attainment during the maintenance period. The
State's plan for verifying continued attainment of the 8-hour standard
in the Dayton-Springfield area consists of plans to continue ambient
ozone monitoring in accordance with the requirements of 40 CFR part 58.
f. Contingency Plan
The contingency plan provisions are designed to promptly correct or
prevent a violation of the NAAQS that might occur after redesignation
of an area to attainment. 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 maintenance plan should
identify the contingency measures to be adopted, a schedule and
procedure for adoption and
[[Page 33946]]
implementation of the contingency measures, and a time limit for action
by the state. The state should also identify specific indicators to be
used to determine when the contingency measures need to be adopted and
implemented. The maintenance plan must include a requirement that the
state will implement all measures with respect to control of the
pollutant(s) that were contained in the SIP before redesignation of the
area to attainment. See section 175A(d) of the CAA.
As required by section 175A of the CAA, Ohio has adopted a
contingency plan for the Dayton-Springfield area to address possible
future ozone air quality problems. The contingency plan adopted by Ohio
has two levels of response, depending on whether a violation of the 8-
hour ozone standard is only threatened (Warning Level Response) or has
occurred (Action Level Response).
A Warning Level Response will occur when an annual (1-year) fourth-
high monitored daily peak 8-hour ozone concentration of 0.88 ppm is
monitored within the maintenance area. A Warning Level Response will
consist of a study to determine whether the high ozone value indicates
a trend toward higher ozone concentrations and whether emissions appear
to be increasing. The study will evaluate whether the trend, if any, is
likely to continue. If so, control measures necessary to reverse the
trend will be selected by the State for evaluation and possible
adoption. Implementation of necessary controls in response to a Warning
Level Response triggering will occur as expeditiously as possible, but
in no event later than 12 months from the conclusion of the most recent
ozone season (September 30).
An Action Level Response will be triggered whenever a two-year
average fourth-high monitored value of 0.85 ppm or greater is monitored
within the area, or a violation of the NAAQS (three-year average
fourth-high value of 0.85 ppm or greater) is monitored within the area.
When an Action Level Response is triggered, OEPA, in conjunction with
the metropolitan planning organization or regional council of
governments, will determine what control measures are needed to assure
future attainment of the NAAQS. Measures that can be implemented in a
short time will be selected in order to be in place within 18 months
from the close of the ozone season that prompted the Action Level.
The State will select contingency measures for consideration from a
comprehensive list of measures deemed appropriate and effective at the
time the selection is made. In its maintenance plan, OEPA included the
following list of possible contingency measures:
i. Lower Reid vapor pressure gasoline program;
ii. Tighten RACT on existing sources covered by U.S. EPA Control
Technique Guidelines issued in response to the 1990 CAA;
iii. Apply RACT to smaller existing sources;
iv. Alternative fuel and diesel retrofit programs for fleet vehicle
operations;
v. Controls on consumer products consistent with those adopted
elsewhere in the United States;
vi. Require VOC or NOX emission offsets for new and
modified major sources;
vii. Require VOC or NOX emission offsets for new and
modified minor sources;
viii. Increase the ratio of emission offsets required for new
sources; and
ix. Require VOC or NOX controls on new minor sources
(less than 100 tons).
It should be noted that a lower Reid vapor pressure gasoline
program would only be creditable as a contingency measure to the extent
that it goes beyond the program currently approved and included in the
maintenance plan emissions estimates.
g. Provisions for Future Updates of the Ozone Maintenance Plan
As required by section 175A(b) of the CAA, Ohio commits to submit
to the EPA updated ozone maintenance plans eight years after
redesignation of the Dayton-Springfield area to cover an additional 10-
year period beyond the initial 10-year maintenance period. As required
by section 175(A) of the CAA, Ohio has committed to maintaining the
existing controls after redesignation unless the State demonstrates
that the standard can be maintained without one or more controls. Ohio
commits that any changes to its rules or emission limits applicable to
VOC and/or NOX sources, as required for maintenance of the
ozone standard in the Dayton-Springfield area will be submitted to EPA
for approval as a SIP revision.
EPA has concluded that the maintenance plan adequately addresses
the five basic components of a maintenance plan: attainment inventory,
maintenance demonstration, monitoring network, verification of
continued attainment, and a contingency plan. The maintenance plan SIP
revision submitted by Ohio for the Dayton-Springfield area meets the
requirements of section 175A of the CAA.
B. Adequacy of Ohio's MVEBs
1. How Are MVEBs Developed and What Are the MVEBs for the Dayton-
Springfield Area?
Under the CAA, states are required to submit, at various times,
control strategy SIP revisions and ozone maintenance plans for ozone
nonattainment areas and for areas seeking redesignations to attainment
of the ozone standard. These emission control strategy SIP revisions
(e.g., reasonable further progress SIP and attainment demonstration SIP
revisions) and ozone maintenance plans create MVEBs based on onroad
mobile source emissions for criteria pollutants and/or their precursors
to address pollution from cars and trucks. The MVEBs are the portions
of the total allowable emissions that are allocated to highway and
transit vehicle use that, together with emissions from other sources in
the area, will provide for attainment or maintenance.
Under 40 CFR Part 93, a MVEB for an area seeking a redesignation to
attainment is established for the last year of the maintenance plan.
The MVEB serves as a ceiling on emissions from an area's planned
transportation system. The MVEB concept is further explained in the
preamble to the November 24, 1993, transportation conformity rule (58
FR 62188). The preamble also describes how to establish the MVEB in the
SIP and how to revise the MVEB if needed.
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the SIP that addresses emissions from cars
and trucks. Conformity to the SIP means that transportation activities
will not cause new air quality violations, worsen existing air quality
violations, or delay timely attainment of the NAAQS. If a
transportation plan does not conform, most new transportation projects
that would expand the capacity of roadways cannot go forward.
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and
procedures for demonstrating and assuring conformity of such
transportation activities to a SIP.
When reviewing SIP revisions containing MVEBs, including attainment
strategies, rate-of-progress plans, and maintenance plans, EPA must
affirmatively find that the MVEBs are ``adequate'' for use in
determining transportation conformity. Once EPA affirmatively finds the
submitted MVEBs to be adequate for transportation conformity purposes,
the MVEBs are used by state and federal agencies in determining whether
proposed
[[Page 33947]]
transportation projects conform to the SIP as required by section
176(c) of the CAA. EPA's substantive criteria for determining the
adequacy of MVEBs are set out in 40 CFR 93.118(e)(4).
EPA's process for determining adequacy of a MVEB consists of three
basic steps: (1) Providing public notification of a SIP submission; (2)
providing the public the opportunity to comment on the MVEB during a
public comment period; and, (3) EPA's finding of adequacy. The process
of determining the adequacy of submitted SIP MVEBs was initially
outlined in EPA's May 14, 1999 guidance, ``Conformity Guidance on
Implementation of March 2, 1999, Conformity Court Decision.'' This
guidance was codified in the Transportation Conformity Rule Amendments
for the ``New 8-Hour Ozone and PM2.5 National Ambient Air
Quality Standards and Miscellaneous Revisions for Existing Areas;
Transportation Conformity Rule Amendments--Response to Court Decision
and Additional Rule Change,'' published on July 1, 2004 (69 FR 40004).
EPA follows this guidance and rulemaking in making its adequacy
determinations.
The Dayton-Springfield area's maintenance plan contains new VOC and
NOX MVEBs for the years 2005 and 2018. The availability of
the SIP submission with these 2005 and 2018 MVEBs was announced for
public comment on EPA's Adequacy Web page on November 14, 2006 at:
http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA
public comment period on adequacy of the 2005 and 2018 MVEBs for the
Dayton-Springfield area closed on December 14, 2006. No requests for
this submittal or adverse comments on the submittal were received
during the adequacy comment period. In a letter dated February 9, 2007,
EPA informed OEPA that we had found the 2005 and 2018 MVEBs to be
adequate for use in transportation conformity analyses. EPA published a
Federal Register notice announcing the adequacy of the 2005 and 2018
MVEBs on April 3, 2007 (72 FR 15879).
EPA, through this rulemaking, is proposing to approve the MVEBs for
use to determine transportation conformity in the Dayton-Springfield
area because EPA has determined that the area can maintain attainment
of the 8-hour ozone NAAQS for the relevant maintenance period with
mobile source emissions at the levels of the MVEBs. OEPA has determined
the 2005 MVEBs for the Dayton-Springfield area to be 29.19 tpd for VOC
and 63.88 tpd for NOX. OEPA has determined the 2018 MVEBs
for the area to be 14.73 tpd for VOC and 21.42 tpd for NOX.
These MVEBs exceed the onroad mobile source VOC and NOX
emissions projected by MDEQ for 2018, as summarized in Table 6 above
(``onroad'' source sector). OEPA decided to include safety margins
(described further below) of 3.07 tpd for VOC and 2.92 tpd for
NOX in the MVEBs to provide for mobile source growth. Ohio
has demonstrated that the Dayton-Springfield area can maintain the 8-
hour ozone NAAQS with mobile source emissions of 14.73 tpd of VOC and
21.42 tpd of NOX in 2018, including the allocated safety
margins, since emissions will still remain under attainment year
emission levels.
2. What Is a Safety Margin?
A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. As noted in Table 6, the
Dayton-Springfield area VOC and NOX emissions are projected
to have safety margins of 14.99 tpd for VOC and 53.64 tpd for
NOX in 2018 (the difference between the attainment year,
2005, emissions and the projected 2018 emissions for all sources in the
Dayton-Springfield area). Even if emissions reached the full level of
the safety margin, the area would still demonstrate maintenance since
emission levels would equal those in the attainment year.
The MVEBs requested by OEPA contain safety margins for mobile
sources smaller than the allowable safety margins reflected in the
total emissions for Dayton-Springfield area. The State is not
requesting allocation of the entire available safety margins reflected
in the demonstration of maintenance. Therefore, even though the State
is requesting MVEBs that exceed the projected onroad mobile source
emissions for 2018 contained in the demonstration of maintenance, the
increase in onroad mobile source emissions that can be considered for
transportation conformity purposes is well within the safety margins of
the ozone maintenance demonstration. Further, once allocated to mobile
sources, these safety margins will not be available for use by other
sources.
VIII. What Actions Is EPA Taking?
EPA is proposing to make a determination that the Dayton-
Springfield area has attained the 8-hour ozone NAAQS. EPA is also
proposing to approve the maintenance plan SIP revision for the Dayton-
Springfield area. EPA's proposed approval of the maintenance plan is
based on Ohio's demonstration that the plan meets the requirements of
section 175A of the CAA, as described more fully above. After
evaluating Ohio's redesignation request, EPA has determined that it
meets the redesignation criteria set forth in section 107(d)(3)(E) of
the CAA. Therefore, EPA is proposing to approve the redesignation of
the Dayton-Springfield area from nonattainment to attainment for the 8-
hour ozone NAAQS. The final approval of this redesignation request
would change the official designation for the Dayton-Springfield area
from nonattainment to attainment for the 8-hour ozone standard.
Finally, EPA is proposing to approve the 2005 and 2018 MVEBs submitted
by Ohio in conjunction with the redesignation request.
IX. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, September 30, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget.
Paperwork Reduction Act
This proposed 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.).
Regulatory Flexibility Act
This proposed action merely proposes to approve state law as
meeting federal requirements and imposes no additional requirements
beyond those imposed by state law. Redesignation of an area to
attainment under section 107(d)(3)(E) of the CAA does not impose any
new requirements on small entities. Redesignation is an action that
affects the status of a geographical area and does not impose any new
regulatory requirements on sources. 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 proposes to approve 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
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
[[Page 33948]]
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). Redesignation is an action that merely affects the status of
a geographical area, does not impose any new requirements on sources,
or allows a state to avoid adopting or implementing other requirements,
and does not alter the relationship or the distribution of power and
responsibilities established in the CAA.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This proposed 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 13045: Protection of Children From Environmental Health
and Safety Risks
This proposed 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.
Executive Order 13211: Actions 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).
National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTA), 15 U.S.C. 272, requires federal agencies to use
technical standards that are developed or adopted by voluntary
consensus to carry out policy objectives, so long as such standards are
not inconsistent with applicable law or otherwise impracticable. In
reviewing program submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Absent a prior
existing requirement for the state to use voluntary consensus
standards, EPA has no authority to disapprove a program submission for
failure to use such standards, and it would thus be inconsistent with
applicable law for EPA to use voluntary consensus standards in place of
a program submission that otherwise satisfies the provisions of the
Act. Redesignation is an action that affects the status of a
geographical area but does not impose any new requirements on sources.
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.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: June 12, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E7-11958 Filed 6-19-07; 8:45 am]
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