[Federal Register Volume 74, Number 177 (Tuesday, September 15, 2009)]
[Rules and Regulations]
[Pages 47404-47411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21825]
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Part III
Environmental Protection Agency
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40 CFR Parts 52 and 81
Approval and Promulgation of Implementation Plans and Designation of
Areas for Air Quality Planning Purposes; Ohio; Redesignation of the
Columbus Area to Attainment for Ozone; Final Rule
Federal Register / Vol. 74 , No. 177 / Tuesday, September 15, 2009 /
Rules and Regulations
[[Page 47404]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2009-0220; FRL-8952-2]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Ohio; Redesignation of the
Columbus Area to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking several related actions affecting the Columbus,
Ohio 1997 8-hour ozone nonattainment area. EPA is making a
determination under the Clean Air Act (CAA) that the Columbus area has
attained the 1997 8-hour ozone National Ambient Air Quality Standard
(NAAQS). The Columbus area includes Delaware, Fairfield, Franklin,
Knox, Licking, and Madison Counties. This determination is based on
quality-assured ambient air quality monitoring data for the 2006-2008
ozone seasons that demonstrate that the 8-hour ozone NAAQS has been
attained in the area. Preliminary 2009 air quality data show that the
area continues to attain the 8-hour ozone standard. EPA is approving,
as a revision to the Ohio State Implementation Plan (SIP), the state's
plan for maintaining the 8-hour ozone NAAQS through 2020 in the area.
EPA is approving a request from the state of Ohio to redesignate the
Columbus area to attainment of the 8-hour ozone NAAQS. EPA is approving
the 2002 base year emissions inventory for the Columbus area as meeting
the requirements of the CAA. Finally, EPA finds adequate and is
approving the state's 2012 and 2020 volatile organic compound (VOC) and
oxides of nitrogen (NOX) Motor Vehicle Emission Budgets
(MVEBs) for the Columbus area.
DATES: This final rule is effective September 15, 2009.
ADDRESSES: EPA has established a docket for this action: Docket ID No.
EPA-R05-OAR-2009-0220. All documents in the docket are listed on the
http://www.regulations.gov Web site. 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 http://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
Federal 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),
U.S. 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 Is the Background for This Rule?
II. What Comments Did We Receive on the Proposed Rule?
III. What Action Is EPA Taking?
IV. Statutory and Executive Order Reviews
I. What Is the Background for This Rule?
A. What Is the General Background Information?
On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone
standard of 0.08 parts per million (ppm). EPA published a final rule
designating and classifying areas under the 1997 8-hour ozone NAAQS on
April 30, 2004 (69 FR 23857).
On March 12, 2008, EPA promulgated a more stringent 8-hour ozone
standard of 0.075 ppm. This rule was published in the Federal Register
on March 27, 2008 (73 FR 16436). It is expected that EPA will designate
nonattainment areas under the 2008 8-hour ozone standard in 2010.
Today's approval of Ohio's SIP revision addresses only the status of
the Columbus area with respect to the 1997 8-hour ozone standard.
The background for today's actions with respect to the 1997 ozone
standard is discussed in detail in EPA's June 12, 2009, proposal (74 FR
27973). In that rulemaking, we noted that, under EPA regulations at 40
CFR part 50, the 1997 8-hour ozone standard is attained when the three-
year average of the annual fourth-highest daily maximum 8-hour average
ozone concentrations is less than or equal to 0.08 ppm. (See 69 FR
23857 (April 30, 2004) for further information). 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, as determined in accordance with Appendix I of
Part 50.
Under the CAA, EPA may redesignate nonattainment areas to
attainment if sufficient complete, quality-assured data are available
to determine that the area has attained the standard and if it meets
the other CAA redesignation requirements in section 107(d)(3)(E).
On March 17, 2009, the Ohio EPA submitted a request to redesignate
the Columbus area to attainment of the 8-hour ozone standard. The
request included three years of complete, quality-assured data for the
period of 2006 through 2008, indicating the 8-hour NAAQS for ozone had
been achieved. The area continues to attain the standard based on
preliminary data available in 2009. The June 12, 2009, proposed rule
provides a detailed discussion of how Ohio met this and other CAA
requirements.
B. What Are the Impacts of the December 22, 2006, and June 8, 2007,
United States Court of Appeals Decisions Regarding EPA's Phase 1
Implementation Rule?
On December 22, 2006, in South Coast Air Quality Management Dist.
v. EPA, 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 FR 23951, April 30, 2004). 472 F.3d 882 (D.C. Cir. 2006). On June
8, 2007, in response to several petitions for rehearing, the D.C.
Circuit Court clarified that the Phase 1 Rule was vacated only with
regard to those parts of the rule that had been successfully
challenged. South Coast Air Quality Mgmt. Dist. v. EPA, 485 F.3d 1245
(D.C. Cir. 2007). Therefore, the Phase 1 Rule provisions related to
classifications for areas currently classified under subpart 2 of Title
I, part D of the CAA as 8-hour nonattainment areas, the 8-hour
attainment dates, and the timing for emissions reductions needed for
attainment of the 8-hour ozone NAAQS, remain effective. The June 8th
decision left intact the Court's rejection of EPA's reasons for
implementing the 8-hour standard in certain nonattainment areas under
subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let
stand EPA's revocation of the 1-hour standard and those anti-
backsliding provisions of the Phase 1 Rule that had not been
successfully challenged. The June 8th decision reaffirmed the Court's
December 22, 2006, decision that EPA
[[Page 47405]]
had 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 CAA, contingent on an area not making reasonable
further progress toward attainment of the 1-hour NAAQS, or for failure
to attain that NAAQS; and (4) certain transportation conformity
requirements for certain types of Federal actions. The June 8th
decision clarified that the Court's reference to conformity
requirements was limited to requiring the continued use of 1-hour motor
vehicle emissions budgets until 8-hour budgets were available for 8-
hour conformity determinations.
For the reasons set forth in the proposal, EPA does not believe
that the Court's rulings alter any requirements relevant to this
redesignation action so as to preclude redesignation. EPA believes that
the Court's December 22, 2006, and June 8, 2007, decisions impose no
impediment to moving forward with redesignation of this area to
attainment, because, even in light of the Court's decisions,
redesignation is appropriate under the relevant redesignation
provisions of the CAA and longstanding policies regarding redesignation
requests.
With respect to the requirement for transportation conformity under
the 1-hour standard, the Court in its June 8th decision clarified that,
for those areas with 1-hour motor vehicle emissions budgets in their
maintenance plans, anti-backsliding requires only that those 1-hour
budgets must be used for 8-hour conformity determinations until
replaced by 8-hour budgets. To meet this requirement, conformity
determinations in such areas must comply with the applicable
requirements of EPA's conformity regulations at 40 CFR part 93.
C. What Are the Impacts of the Clean Air Interstate Rule (CAIR) Remand?
As discussed in greater detail in the proposal, EPA has considered
the relationship of the Columbus area's maintenance plan to the
reductions currently required pursuant to the Clean Air Interstate
Rule. This rule was remanded to EPA, and the process of developing a
replacement rule is ongoing. However, the remand of CAIR does not alter
the requirements of the NOX SIP Call and Ohio has now
demonstrated that the area can maintain without any additional
requirements (beyond those required by the NOX SIP Call).
Therefore, EPA believes that Ohio's demonstration of maintenance under
sections 175A and 107(d)(3)(E) remains valid.
The NOX SIP Call requires states to make significant,
specific emissions reductions. It also provided a mechanism, the
NOX Budget Trading Program, which states could use to
achieve those reductions. When EPA promulgated CAIR, it discontinued
(starting in 2009) the NOX Budget Trading Program, 40 CFR
51.121(r), but created another mechanism--the CAIR ozone season trading
program--which states could use to meet their SIP Call obligations, 70
FR 25289-90. EPA notes that a number of states, when submitting SIP
revisions to require sources to participate in the CAIR ozone season
trading program, removed the SIP provisions that required sources to
participate in the NOX Budget Trading Program. In addition,
because the provisions of CAIR including the ozone season
NOX trading program remain in place during the remand, EPA
is not currently administering the NOX Budget Trading
Program. Nonetheless, all states, regardless of the current status of
their regulations that previously required participation in the
NOX Budget Trading Program, will remain subject to all of
the requirements in the NOX SIP Call even if the existing
CAIR ozone season trading program is withdrawn or altered. In addition,
the anti-backsliding provisions of 40 CFR 51.905(f) specifically
provide that the provisions of the NOX SIP Call, including
the statewide NOX emission budgets, continue to apply after
revocation of the 1-hour standard.
In the case of Ohio, the state has retained the SIP provisions
requiring sources to participate in the NOX Budget Trading
Program. Ohio EPA is in the process of promulgating a rule change
stating that the NOX Budget Trading Program would not be
applicable so long as CAIR remains in place. However, the drafted rule
revision also provides that should CAIR requirements be removed, the
NOX Budget Trading Program would once again apply, on
condition that EPA maintains a NOX Budget Trading Program.
All NOX SIP Call states have SIPs that currently satisfy
their obligations under the SIP Call, the SIP Call reduction
requirements are being met, and EPA will continue to enforce the
requirements of the NOX SIP Call even after any response to
the CAIR remand. For these reasons, EPA believes that regardless of the
status of the CAIR program, the NOX SIP call requirements
can be relied upon in demonstrating maintenance. Here, the state has
demonstrated maintenance based in part on those requirements.
II. What Comments Did We Receive on the Proposed Rule?
EPA provided a 30-day review and comment period. The comment period
closed on July 13, 2009. EPA received comments in support of the
redesignation from the Mid-Ohio Regional Planning Commission and
adverse comments from the National Resources Defense Council (NRDC). A
summary of the comments received, and EPA's responses, follow.
(1) Comment: Ohio EPA's redesignation request fails to demonstrate
compliance with the ozone NAAQS. The Franklin County New Albany monitor
has a fourth-highest three-year average of 0.084 ppm, which is higher
than the 0.08 ppm standard. EPA contends that the relevant standard is
complied with because the area has achieved average 8-hour ozone
concentrations less than 0.085 ppm. While 40 CFR part 50, Appendix I,
purports to authorize such a rounding convention, its use here
improperly inflates the 1997 standard from its actual value of 0.08 ppm
and would allow an area to be considered to be in attainment even
though it has fourth-highest 3-year average concentrations that exceed
the actual ozone NAAQS. Such rounding approach has been rejected by
EPA's own scientific advisory committee in developing the 2008 ozone
NAAQS, and it would be arbitrary and capricious for EPA to use it here.
Response: EPA promulgated the 1997 8-hour ozone standard on July
18, 1997 (62 FR 38856). As part of this rulemaking, EPA promulgated 40
CFR 50 Appendix I, entitled ``Interpretation of the 8-hour Primary and
Secondary National Ambient Air Quality Standards for Ozone,'' which
provides rounding procedures under which observed values which round to
0.08 ppm are considered to reflect attainment of the standard. As
discussed in detail in the proposed rule, an area is considered to be
in attainment of the 8-hour ozone standard if the three-year average of
the fourth-highest daily maximum 8-hour average ozone concentrations
measured at each monitor within an area over each year does not exceed
0.084 ppm. Comments regarding the adequacy of the 1997 8-hour ozone
standard should have been submitted in response to the proposal on that
standard and its implementing regulations that include the data
handling and rounding
[[Page 47406]]
conventions 40 CFR Part 50 Appendix I. The definition of the standard
as set forth in the applicable regulations cannot be challenged here.
In addition, in adopting the 2008 standard, 0.075 ppm, EPA changed the
``degree of precision to which the level of the standard is specified
to the thousandth ppm'' (72 FR 37882 (July 11, 2007)), expressing the
standard out to three decimal places instead of two, as was previously
done with the 1997 standard. While this was a different way of
expressing the standard, it did not undermine the implementation of the
1997 standard. As stated in the final rulemaking on the 2008 standard:
``Truncating both the individual 8-hour averages used to determine the
annual fourth maximum as well as the three-year average of the fourth
maxima to the third decimal place is consistent with the approach used
in Appendix I for the previous 8-hour ozone standard. 73 FR 16436,
16501 (March 27, 2008). The 2008 three-digit standard achieves the same
result that would have been accomplished by adopting a 0.07 standard
and permitting rounding up to 0.075. Thus it does not represent, as
commenters contend, a repudiation of the result of rounding in the 1997
standard. It is therefore not only consistent with the existing statute
and regulations, but entirely reasonable, for EPA to implement the 1997
standard as it has here.
(2) Comment: Redesignation is inappropriate because the Columbus
area is out of attainment of the 2008 ozone standard, which is
currently set at 0.075 ppm. As such, the Columbus area has not
demonstrated compliance with the currently applicable NAAQS and,
therefore, cannot be considered in attainment with CAA ozone standards.
Redesignation to attainment under the 1997 standard would suspend
Reasonable Further Progress (RFP) requirements and other measures that
would enable the area to make progress toward attainment of the 2008
standard.
The ruling in Wall v. EPA, 265 F. 3d 426 (6th Cir. 2001), does not
compel a different conclusion. In that case, redesignation for the
Cincinnati area was challenged because, inter alia, another rulemaking
proceeding had found that the area was certain or highly likely to
require additional emission reductions. The court rejected the
challenge because the other proceeding was not an attainment rulemaking
and its data were outdated. In this case, however, Ohio has made a
nonattainment recommendation under the 2008 standard using data that
are not out of date, and thus redesignation to attainment here would
not be reasonable. As the Wall court stated, ``[A]ny final
determination regarding the adequacy of a maintenance plan will be made
`in light of the particular circumstances facing the area proposed for
redesignation and based on all relevant information available at the
time.' '' 265 F.3d at 430. A pending designation of nonattainment is
relevant information that forecloses redesignation to attainment at
this time.
Response: The area's status with respect to the 2008 standard does
not foreclose redesignation for the 1997 standard. The redesignation
being considered in this action is pertinent to only for the 1997 8-
hour ozone standard. Designations for the 2008 8-hour standard have not
yet occurred, and will be made in the future in accordance with the
process for designating areas under the new standard. This
redesignation rulemaking action is not related to that future
designation action. As set forth above, the state's recommendation to
designate the area as nonattainment for the 2008 standard does not, as
commenters contend, foreclose redesignation of the area for purposes of
the 1997 standard. EPA has not yet acted on the state's recommendation,
and even had it done so, this would not prevent redesignation for the
prior standard. Indeed, it would be inappropriate to retain the 1997 8-
hour nonattainment designation, if no longer applicable, solely on the
assumption that the Columbus area might be designated as nonattainment
for the 2008 8-hour ozone standard in the future. EPA has in the past
continued to redesignate areas under existing standards even after the
adoption of new standards for the same pollutant. After adopting the
1997 8-hour ozone standard, EPA continued to redesignate areas for the
1-hour ozone standard until that standard was revoked. See, for
example, Cincinnati redesignation, 70 FR 35946 (June 21, 2005).
Thus, even after the area receives its designation for the new
standard, the 1997 8-hour ozone standard and the 2008 8-hour ozone
standard are considered to be separable in terms of requiring emission
controls and determining the area's attainment status. Subsequent to
the adoption of the 2008 standard, EPA has continued to redesignate for
the 1997 ozone standard those areas attaining that ozone standard and
otherwise meeting redesignation requirements. See, for example, Detroit
redesignation, 74 FR 30950 (June 29, 2009); Clearfield and Indiana
Counties, Pennsylvania redesignation, 74 FR 11674 (March 19, 2009);
Greene County, Pennsylvania redesignation, 74 FR 11671 (March 19,
2009); and Kewaunee County, Wisconsin redesignation, 73 FR 29436 (May
21, 2008).
Commenters have noted that the redesignation would be
``counterproductive'' because it would ``suspend RFP and other measures
that would enable the area to make progress towards attainment of the
2008 standard.'' This contention, however, is not an obstacle to
redesignaton for attainment of the 1997 ozone standard. The Sixth
Circuit has previously approved as reasonable EPA's interpretation of
what constitutes interference with a new standard under section 110(l),
and it does not include ``that which does not advance'' as opposed to
that which ``hinder[s] or make[s] worse.'' Kentucky Resources Council
v. EPA, 467 F.3d 986, 995 (6th Cir. 2006). In any event, we have
evaluated this redesignation with respect to section 110(l) and have
determined that it will not interfere with attainment or maintenance of
the 2008 ozone standard nor any other standard, since the area is
attaining the 1997 ozone standard, no control measures are being
removed from the SIP, and no implementation ceased. See Id. (showing
deference to EPA's interpretation of section 110(l)). See also the
discussion of 110(l) in the Cincinnati 1-hour ozone redesignation at 70
FR 35960. The rationale stated in the Cincinnati redesignation applies
here as well:
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. Moreover, 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
[[Page 47407]]
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.
70 FR 35960 (June 21, 2005). Thus EPA has determined that the
redesignation of the area does not interfere with attainment of the
2008 8-hour ozone standard and complies with the provisions of section
110(l) of the CAA.
(3) Comment: Ohio EPA has not provided an adequate maintenance
plan. Ohio EPA has failed to fully satisfy the requirement that it
include contingency measures for ensuring continued attainment that can
take effect ``without further action by the State or EPA.'' 42 U.S.C.
7402(c)(9). EPA interprets that provision as requiring that the state
or EPA need not take any ``further rulemaking activities'' in order for
the contingency measures to be carried out. EPA, State Implementation
Plans; General Preamble for the Implementation of Title I of the Clean
Air Act Amendments of 1990, 57 FR 13498, 13512; Greenbaum v. EPA, 370
F. 3d 527, 541 (6th Cir. 2004). While Ohio EPA has identified a series
of possible contingency measures and triggers for possible
implementation of those measures, the agency also notes that ``adoption
of any additional control measures is subject to the necessary
administrative and legal process * * * required by Ohio law for
rulemaking.'' (Ohio EPA request, p. 37). EPA must ensure that Ohio EPA
can adopt such additional control measures without the need for
additional rulemaking before any redesignation for the Columbus area
can be made.
Response: Section 175A of the CAA requires that a maintenance plan
include contingency provisions, as EPA deems necessary, to promptly
correct any violation of the NAAQS that occurs after redesignation of
the area. Contrary to commenter's contention, these contingency
measures are not the same as those required for nonattainment areas
under sections 172(c)(9) and 182(c)(9). The statutory provision under
section 175A for maintenance plan contingency measures to be employed
after redesignation to attainment is distinct from the requirement for
contingency measures for nonattainment areas prior to attainment. As
explicitly discussed in EPA's September 4, 1992, redesignation policy
memorandum from John Calcagni entitled ``Procedures for Processing
Requests to Redesignate Areas to Attainment,'' ``For the purposes of
section 175A, a State is not required to have fully adopted contingency
measures that will take effect without further action by the State in
order for the maintenance plan to be approved.'' EPA has applied this
interpretation since 1992, and it has been referred to and relied upon
by the Sixth Circuit. In Greenbaum v. EPA, cited by the commenters, the
Sixth Circuit stated that under section 175A, the EPA ``has been
granted broad discretion by Congress in determining what is `necessary
to assure' prompt correction.'' 370 F.3d at 540. In that case, the
state had chosen to adopt as contingency measures under section 175A
those measures that it had originally adopted pursuant to section
172(c)(9), so the measures happened to meet the requirement of that
section that no further state action be necessary. But nothing mandates
that section 175A contingency measures meet the strictures that apply
solely to section 172(c)(9) measures. The General Preamble language
cited by the commenters, that ``no further rulemaking activities by the
State or EPA would be needed to implement the contingency measures,''
addresses contingency measures under section 172(c)(9). Indeed, the
Sixth Circuit in Greenbaum pointed out that this limitation does not
apply to contingency measures under section 175A, noting that the
Calcagni memorandum states that ``[f]or the purposes of section 175A, a
State is not required to have fully adopted contingency measures that
will take effect without further action by the State in order for the
maintenance plan to be approved.'' 370 F.3d at 541.
Ohio EPA included the following list of potential contingency
measures in the maintenance plan for the Columbus area: a lower Reid
vapor pressure gasoline program; VOC Reasonably Available Control
Technology (RACT) on existing sources covered by EPA control technique
guidelines issued after the 1990 CAA; lower applicability of VOC RACT
rules to cover smaller existing sources; one or more transportation
control measures sufficient to achieve at least half a percent
reduction in actual area wide VOC emissions; alternative fuel and
diesel retrofit programs for fleet vehicle operations; high volume, low
pressure coating application requirements for autobody facilities;
regulations for cold cleaner degreaser operations (low vapor pressure
solvents); VOC or NOX emission offsets for new and modified
major sources; VOC or NOX emission offsets for new and
modified minor sources; VOC or NOX controls on new minor
sources (less than 100 tons per year (tpy)); increase in the ratio of
emission offsets required for new sources; and, NOX RACT for
existing combustion sources. The state can choose to implement one or
more of these measures as necessary to correct a violation of the
standard. As set forth in the proposal, we find that the contingency
measures included in the maintenance plan are adequate to assure that
the state will promptly correct a future violation of the standard that
occurs after redesignation.
(4) Comment: Ohio EPA has not provided any information showing that
it has adequate resources to enforce the steps relied on in the
maintenance plan. Such information is required by 42 U.S.C.
7410(a)(2)(C) which requires that each plan ``include a program to
provide for the enforcement of measures'' described in the plan, and 40
CFR 51.280, which requires a ``description of the resources available
to the State and local agencies * * * and any additional resources
needed to carry out the plan'' for the next five years. Ohio EPA,
however, has simply asserted that it ``has the legal authority and
necessary resources to actively enforce any violations of its rules or
permit provisions.'' (Ohio EPA Request, p. 35). The agency has not
identified what those resources are, or explained how they are
purportedly adequate to ensure enforcement of the plan. This
shortcoming is especially troublesome given that Ohio faces a $3.2
billion budget deficit and will likely be cutting agency budgets to try
to close that gap.
Response: As discussed in detail in the proposal, section
107(d)(3)(E) of the CAA provides the requirements for redesignating a
nonattainment area to attainment. Specifically, section 107(d)(3)(E)(v)
allows for redesignation provided that, among other things, the area
has met all applicable requirements under section 110 and Part D.
Section 110(a) of Title I of the CAA contains the general requirements
for a SIP, including the requirement that the state provide ``necessary
assurances that the State * * * will have adequate personnel, funding,
and authority under state * * * law to carry out such implementation
plan * * *.'' The courts are in agreement that: ``Congress has left to
the Administrator's sound discretion determination of what assurances
are `necessary.' '' NRDC v. EPA, 478 F.2d 875, 884 (1st Cir. 1973);
Friends of the Earth v. EPA, 499 F. 2d 1118, 1126 (2d. Cir. 1974), BCCA
Appeal Group v. EPA,
[[Page 47408]]
355 F. 3d 817 (5th Cir. 2003). In a December 5, 2007, SIP submittal,
Ohio EPA asserted that it continues to retain the resources necessary
to evaluate ambient air quality, develop plans to attain new and
existing ambient air quality standards, run a complete new source
review program, and effectively enforce all applicable requirements. In
support of Ohio EPA's assertion that the state continues to staff and
implement a vigorous enforcement program, the submittal included Ohio
EPA's Enforcement Report: 2006. As documented in the report, Ohio's
Division of Air Pollution Control reduced 160 tpy VOC and 419 tpy
NOX through enforcement actions, secured $1,248,917 in
penalties and issued 41 orders. In addition, the department resolved
96% of its enforcement cases older than 21 months and all verified
complaints within two years. With respect to legal authority, Ohio
Revised Code 3704.03 provides the Director of Ohio EPA with the
authority to develop rules and regulations necessary to meet state and
Federal ambient air quality standards and to implement the program.
The Court found that EPA was entitled to rely on the state's
certification that the SIP was a valid exercise of its legal authority.
See Ohio Envtl. Council v. EPA, 593 F.2d 24, 28 (6th Cir. 1979). In
BCCA v. EPA, the Fifth Circuit Court of Appeals found that the state
had ``provided a general assurance that its fiscal and manpower
resources were adequate to implement the SIP as a whole.'' The Court
also determined that the Houston, Texas SIP ``provided a detailed
discussion about the legal authority of state and local agencies to
implement, maintain, and enforce the plan as a whole, including
citations to applicable law.'' 355 F.3d at 844. The Fifth Circuit found
that, ``[b]ased on its past experience with Texas's air quality program
and its relationship with the state, the EPA determined that these
assurances regarding funding, resources, and legal authority met the
minimum requirements of Sec. 7410(a)(2)(E).'' Finding that EPA had
also evaluated the state's funding and resources and determined they
were adequate, the Court concluded that EPA approval was in compliance
with the CAA and not arbitrary and capricious. 355 F.3d at 843-845.
Commenters here raise the identical claim regarding section 110
(a)(2)(C) and 40 CFR 51.280 that petitioners set forth in the
Cincinnati 1-hour ozone redesignation case Wall v. EPA, 265 F. 3d 426
(6th Cir. 2001). In Wall, the Sixth Circuit concluded that ``there is
no language in the CAA or in the EPA's regulations that specifically
requires that a separate commitment be made within the maintenance
plans themselves. Thus, the EPA permissibly determined that Kentucky
and Ohio fulfilled the requirement of submitting a `program to provide
for enforcement of the [maintenance] measures' when such measures were
already approved in their earlier SIPs.'' Id. at 438.
As pointed out in the Wall case, EPA has previously approved the
state SIP as meeting 110(a)(2)(C) requirements in acting on the state's
1-hour ozone SIP. The enforcement of the 8-hour ozone standard is a
continuation of this same enforcement program, and the state has
submitted confirmation that the area's 8-hour SIP continues to meet
those requirements.
In addition, EPA periodically reviews state enforcement programs
for adequacy. The EPA Office of Enforcement and Compliance Assurance,
EPA's ten regions, the Environmental Council of States Compliance
Committee, and other state representatives jointly developed a method
to assess state performance in the enforcement and compliance assurance
program. EPA performs this assessment on a four-year cycle. The most
recent assessment of Ohio EPA's enforcement program using this
framework was released by EPA on September 27, 2007. In that
assessment, EPA found that Ohio EPA is implementing an adequate
enforcement program. Ohio EPA's enforcement actions have been found to
be generally successful at bringing sources back into compliance in a
specific time frame, with well-defined penalties. Further, Ohio EPA's
inspection reports meet the requirements of EPA's Clean Air Act
Stationary Source Compliance Monitoring Strategy (CMS). While EPA noted
that Ohio EPA could make improvements regarding reporting issues and
timeliness of enforcement actions, the state has since addressed these
concerns by implementing the corrective actions recommended by EPA in
that assessment.
In addition, as required under 40 CFR 35.115, EPA reviews Ohio
EPA's air pollution control activities, including enforcement, on a
yearly basis. In EPA's most recent review, dated February 24, 2009, EPA
found no areas of concern regarding Ohio EPA's ability to adequately
implement and enforce its air control programs. During the 2008 Federal
fiscal reporting year, Ohio EPA's commitment under the CMS was to
complete 342 Title V source full compliance evaluations. There were 375
full compliance evaluations reported to EPA's AIRS Facility Subsystem
(AFS) database. In addition, Ohio EPA exceeded the commitment to
conduct 210 synthetic minor source full compliance evaluations by
reporting 225 evaluations to AFS.
As in the BCCA case, the state has also certified that it has
adequate legal authority, and based on EPA's past experience with the
state's air quality program and its relationship with the state, as
well as its evaluation of the current situation, EPA has determined
that these circumstances assure that the requirements of section
110(a)(2)(E) and section 110(a)(2)(C) have been met.
(5) Comment: EPA proposes that it can approve Ohio EPA's request to
redesignate the Columbus area because the area is classified as a
subpart 1 nonattainment area, to which subpart 2 requirements do not
apply. This argument fails, however, because the subpart 1
classification has been vacated by the D.C. Circuit. South Coast Air
Quality Mgmt. Dist. v. EPA, 472 F. 3d 882 (D.C. Cir. 2006). In the wake
of the vacatur, EPA is proposing to redesignate subpart 1 nonattainment
areas as moderate subpart 2 nonattainment areas, but this proposed rule
has not been finalized (74 FR 2936). Because the current classification
has been vacated, however, EPA cannot make use of that classification's
requirements to avoid the stringent VOC and NOX controls
that are required before the Columbus area can be redesignated to
attainment.
EPA contends that it can redesignate Columbus to attainment under
subpart 1 now and then classify the area later as moderate
nonattainment under subpart 2 when the proposed rule is finalized. The
agency attempts to justify this proposal by saying that its policy is
to evaluate requests for redesignation according to requirements in
place at the time the request is submitted, rather than to
retroactively impose requirements on the area. EPA's argument, however,
ignores the fact that judicial decisions ``must be given full
retroactive effect.'' Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97
(1993). The U.S. District Court for the District of Columbia's decision
to vacate the subpart 1 classifications demonstrates that the decision
to exempt such nonattainment areas from subpart 2 requirements was
never valid or effective and ``restores the status quo before the
invalid rule took effect * * *.'' Envtl. Def. v. Leavitt, 329 F. Supp.
2d 55, 64 (D.D.C. 2004). As such, EPA can allow redesignation of the
Columbus area only under the applicable subpart 2 requirements, not the
less stringent and vacated subpart 1 classification.
[[Page 47409]]
Response: 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.
On April 30, 2004 (69 FR 23857), EPA published a final rule
designating and classifying areas under the 1997 8-hour ozone NAAQS.
Under EPA's implementation rule for the 1997 8-hour ozone standard, (69
FR 23951 (April 30, 2004)), an area was classified under subpart 2
based on its 8-hour ozone design value, 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
were covered under subpart 1, based upon their 8-hour design values (69
FR 23958). The Columbus 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).
As noted by the commenter, on December 22, 2006, in South Coast Air
Quality Management Dist. v. EPA, 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. On June 8, 2007, in response to several
petitions for rehearing, the D. C. Circuit Court clarified that the
Phase 1 Rule was vacated only with regard to those parts of the rule
that had been successfully challenged. 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. Despite the vacatur of classifications under subpart 1,
subpart 1 requirements continue to apply to all nonattainment areas.
In its January 16, 2009, proposed rulemaking in response to the
South Coast decision, EPA has proposed to classify Columbus under
subpart 2 as a moderate area.\74\ FR 2936, 2944. If EPA finalizes the
January 16 rulemaking, new requirements for areas reclassified under
subpart 2 will be become applicable for purposes of redesignation when
they are due, a deadline that EPA has proposed to be one year after the
effective date of a final rulemaking classifying areas as moderate or
marginal. 74 FR 2940-2941.
---------------------------------------------------------------------------
\1\ As noted in the proposal, ``Areas originally covered under
subpart 1 that have already been redesignated to attainment will not
be affected by this rule * * *.'' 74 FR 2939.
---------------------------------------------------------------------------
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. See
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).
At the time the redesignation request was submitted, the Columbus
area was not classified under subpart 2, nor were there any subpart 2
requirements yet due for this area. As noted above, even if the
Columbus area were reclassified under subpart 2, the new requirements
would not become applicable for purposes of redesignation until they
become due, a deadline that EPA has proposed to be one year after the
effective date of a final rulemaking classifying areas as moderate or
marginal. 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. Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir.
2002). In any event, what Sierra Club sought--to have the effective
date of EPA's court-ordered determination converted to the date the
statute envisioned, rather than the actual date of EPA's action--was a
form of relief the D.C. Circuit quite properly rejected. Court-ordered
or not, EPA engaged in rulemaking. The Supreme Court has held that the
Administrative Procedures Act prohibits retroactive rulemaking. See
Georgetown Univ. Hosp. v. Bowen, 821 F.2d 750, 756-58 & n.11 (D.C. Cir.
1987), aff'd, 488 U.S. 204 (1988).
Thus, the D.C. Circuit concluded that even if EPA should have
accomplished the reclassification at an earlier date, it would be wrong
for EPA or the Court to impose requirements retroactive to that date
without having given the state an opportunity to meet them. Sierra Club
v. Whitman, 285 F.3d at 68. The commenter contends that here ``[t]he
Court's decision to vacate the subpart 1 classifications `restores the
status quo before the invalid rule took effect * * *.' '' and then
implies that the ``status quo'' is the applicable subpart 2
requirements. However, for areas such as Columbus, that were classified
under subpart 1, the subpart 2 classification was not the status quo.
There is no established ``status quo'' classification in light of the
vacatur. EPA has not yet finalized the area's classification under
subpart 2, and deadlines for submitting subpart 2 requirements have not
yet been imposed on the areas that were classified as subpart 1. The
Seventh Circuit in the St. Louis case agreed with EPA that, even after
the St. Louis area was reclassified to serious, for purposes of
redesignation the serious area requirements need not be met if the
deadlines for their submission have not come due. Sierra Club v. EPA,
375 F.3d 537.
EPA is attempting to address the court's vacatur by establishing a
classification system for the former subpart 1 areas. Until this is
done, the only requirements currently applicable to these areas are the
subpart 1 requirements applicable to all nonattainment areas.
III. What Action Is EPA Taking?
EPA is making a determination that the Columbus area has attained
the 8-hour ozone NAAQS. EPA is also approving the maintenance plan SIP
revision for the Columbus area. EPA's approval of the maintenance plan
is based on Ohio's demonstration that the plan meets the requirements
of section 175A of the CAA. 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
approving the redesignation of the Columbus area from nonattainment to
attainment for the 8-hour ozone NAAQS. EPA is approving the 2002 base
year emissions inventory for the Columbus area as meeting the
requirements of section 172(c)(3) of the CAA. Finally, EPA also finds
adequate and is approving the state's 2012 and 2020 MVEBs for the
Columbus area.
In accordance with 5 U.S.C. 553(d), EPA finds there is good cause
for this action to become effective immediately upon publication. This
is because a delayed effective date is unnecessary due to the nature of
a redesignation to attainment, which relieves the area from certain CAA
requirements that would otherwise apply to it. The immediate effective
date for this action is authorized under both 5 U.S.C.
[[Page 47410]]
553(d)(1), which provides that rulemaking actions may become effective
less than 30 days after publication if the rule ``grants or recognizes
an exemption or relieves a restriction,'' and section 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.'' The purpose of the 30-day waiting period prescribed in
section 553(d) is to give affected parties a reasonable time to adjust
their behavior and prepare before the final rule takes effect. Today's
rule, however, does not create any new regulatory requirements such
that affected parties would need time to prepare before the rule takes
effect. Rather, today's rule relieves the state of planning
requirements for this 8-hour ozone nonattainment area. For these
reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action
to become effective on the date of publication of this action.
IV. 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 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 action merely approves 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 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 described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
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 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 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.
The Congressional Review Act, 5 U.S.C. 801, et seq., enacted
pursuant to the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that, before a rule may take effect, the
agency promulgating the rule must submit a rule report which includes a
copy of the rule to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
action and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication of the rule in the Federal Register. 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 CAA, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 16, 2009. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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 the action. This action may not be challenged later in proceedings
to enforce its requirements. (See 42 U.S.C. 7607(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Volatile organic compounds.
[[Page 47411]]
40 CFR Part 81
Air pollution control, Environmental protection, National parks,
Wilderness areas.
Dated: August 26, 2009.
Walter W. Kovalick, Jr.,
Acting Regional Administrator, Region 5.
0
Parts 52 and 81, chapter I, Title 40 of the Code of Federal Regulations
is 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 52.1885 is amended by adding paragraphs (ff)(8) and (hh) to
read as follows:
Sec. 52.1885 Control strategy: Ozone.
* * * * *
(ff) * * *
(8) Approval--On March 17, 2009, the Ohio Environmental Protection
Agency submitted a request to redesignate the Columbus area to
attainment of the 8-hour ozone NAAQS. As part of the redesignation
request, the state submitted a maintenance plan as required by section
175A of the Clean Air Act. Elements of the section 175 maintenance plan
include a contingency plan and an obligation to submit a subsequent
maintenance plan revision in 8 years as required by the Clean Air Act.
The 2012 motor vehicle emissions budgets for the Columbus area are
54.86 tpd for VOC and 91.64 tpd for NOX. The 2020 motor
vehicle emissions budgets for the area are 36.60 tpd for VOC and 46.61
tpd for NOX.
(hh) 8-hour Emissions Inventories. (1) Approval--Ohio's 2002
inventory satisfies the base year emissions inventory requirements of
section 172(c)(3) of the Clean Air Act for the Columbus area under the
1997 8-hour ozone standard.
(2) [Reserved].
PART 81-[AMENDED]
0
3. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
4. Section 81.336 is amended by revising the entry for Columbus, OH in
the table entitled ``Ohio-Ozone (8-Hour Standard)'' to read as follows:
Sec. 81.336 Ohio.
* * * * *
Ohio-Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
Designation \a\ Classification
Designated area ----------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Columbus, OH:
Delaware County...................... 9/15/09 Attainment.................
Fairfield County.....................
Franklin County......................
Knox County..........................
Licking County.......................
Madison County.......................
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * *
[FR Doc. E9-21825 Filed 9-14-09; 8:45 am]
BILLING CODE 6560-50-P