Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37879

available through routes outside the Old

Park that have been historically used for

that purpose. Therefore, the use of

snowmachines is not authorized by

section 1110(a) for such travel. Further,

Congress did not authorize subsistence

activities in the Old Park. In addition,

the National Park Service has

determined that the use of even a few

snowmachines in the Old Park would be

detrimental to the resource values of the

area. Therefore, because no usage is

authorized in the Old Park by section

1110(a) the Old Park remains closed to

all snowmachine use in accordance

with 36 CFR 2.18.

(3) Where can I operate a

snowmachine in Denali National Park

and Preserve? You can use a

snowmachine outside of the Old Park

for traditional activities or travel to and

from villages and homesites and other

valid occupancies as authorized by 43

CFR 36.11(c), or when lawfully engaged

in subsistence activities authorized by

§ 13.46.

(4) What types of snowmachines are

allowed? The types of snowmachines

allowed are defined in § 13.1(q) under

snowmachine or snowmobile.

(5) What other regulations apply to

snowmachine use? Snowmachine use is

governed by regulations at § 2.18(a) of

this chapter, traffic safety, § 2.18(b) of

this chapter, state laws, and § 2.18(d)

and (e) of this chapter, prohibited

activities; and 43 CFR 36.11(a)(2)

adequate snow cover, and 43 CFR

36.11(c) traditional activities.

(6) Who determines when there is

adequate snow cover? The

superintendent will determine when

snow cover is adequate for

snowmachine use. The superintendent

will follow the procedures in §§ 1.5 and

1.7 of this chapter to inform the public.

(7) Nothing in this section shall limit

the authority of the superintendent to

restrict or limit uses of an area under

other statutory authority.

Dated: June 7, 2000.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 00–14754 Filed 6–16–00; 8:45 am]

BILLING CODE 4310–70–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[OH–132–2; KY–116–2; KY–84–2; FRL–

6717–1]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; Ohio and Kentucky

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: We are determining that the

Cincinnati-Hamilton moderate ozone

nonattainment area (CincinnatiHamilton area) has attained the 1-hour

ozone National Ambient Air Quality

Standard (NAAQS) by its extended

attainment date. The CincinnatiHamilton area includes the Ohio

Counties of Hamilton, Butler, Clermont,

and Warren and the Kentucky Counties

of Boone, Campbell, and Kenton. This

determination is based on three years of

complete, quality-assured, ambient air

monitoring data for the 1996 to 1998

ozone seasons that demonstrate that the

ozone NAAQS has been attained in the

area, as well as the most recent 3-year

period of data from 1997–1999, which

shows the area is continuing to attain.

On the basis of this determination, EPA

is also determining that certain

attainment demonstration requirements,

along with certain other related

requirements of Part D of Title 1 of the

Clean Air Act (CAA), are not applicable

to the Cincinnati-Hamilton area.

We are also approving an exemption

for the Cincinnati-Hamilton area from

the nitrogen oxides (NOX) requirements

as provided for in section 182(f) of the

CAA. Section 182(f) establishes NOX

requirements for ozone nonattainment

areas. However, it also provides, in

subsection 182(f)(1)(A), that these

requirements shall not apply to an area

if the Administrator determines that

additional NOX reductions would not

contribute to attainment of the ozone

NAAQS in that area. Because the

Cincinnati-Hamilton area is currently

attaining the ozone NAAQS without

benefit of additional NOX reductions,

we are granting the area a NOX

exemption. As a result, the CincinnatiHamilton area will no longer be subject

to the section 182(f) NOX requirements;

however, all NOX controls previously

approved for the area by EPA must

continue to be implemented.

We are also approving the State of

Ohio Environmental Protection

Agency’s (OEPA) and the

Commonwealth of Kentucky Natural

Resources and Environmental

Protection Cabinet’s (Cabinet) requests

to redesignate the Cincinnati-Hamilton

area to attainment of the 1-hour ozone

NAAQS. The original redesignation

request from OEPA, dated June 28,

1999, was received on July 2, 1999, and

completed on December 22, 1999. The

Cabinet’s redesignation request to EPA

was dated October 29, 1999. In

approving these redesignation requests,

EPA is also approving, as revisions to

the Ohio and Kentucky State

Implementation Plans, the States’ plans

for maintaining the 1-hour ozone

standard for the next 10 years.

EFFECTIVE DATE: This action will be

effective on July 5, 2000.

ADDRESSES: Copies of the OEPA’s and

the Cabinet’s submittals and other

information are available for inspection

during normal business hours at the

following locations. Interested persons

wanting to examine these documents

should make an appointment with the

appropriate office at least 24 hours

before the visiting day. The reference

file numbers are OH–132, KY–116 and

KY–84.

United States Environmental Protection

Agency, Region 5, Air Programs

Branch (AR–18J), Regulation

Development Section, 77 West

Jackson Boulevard, Chicago, Illinois

60604.

United States Environmental Protection

Agency, Region 4, Air Planning

Branch, Regulatory Planning Section,

61 Forsyth Street SW, Atlanta,

Georgia 30303.

FOR FURTHER INFORMATION CONTACT:

William Jones, Environmental Scientist,

United States Environmental

Protection Agency, Region 5, Air

Programs Branch (AR–18J),

Regulation Development Section, 77

West Jackson Boulevard, Chicago,

Illinois 60604, (312) 886–6058,

(jones.william@epa.gov).

Allison Humphris, Environmental

Scientist, United States

Environmental Protection Agency,

Region 4, Air Planning Branch,

Regulatory Planning Section, 61

Forsyth Street SW, Atlanta, Georgia

30303, (404) 562–9030,

(humphris.allison@epa.gov).

Table of Contents

I. What is the background for these actions?

II. What comments did we receive and what

are our responses?

III. What actions are we taking?

IV. Why are we taking these actions?

V. What are the effects of these actions?

VI. Approving SIP Revisions in Audit Law

States.

VII. Administrative requirements.

A. Executive Order 12866

37880 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

B. Executive Order 13045

C. Executive Order 13084

D. Executive Order 13132

E. Executive Order 12898

F. Regulatory Flexibility

G. Unfunded Mandates

H. Submission to Congress and the

Comptroller General

I. National Technology Transfer and

Advancement Act

J. Other

K. Petitions for Judicial Review

Whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are

used we mean EPA.

I. What Is the Background for These

Actions?

See proposed rulemaking published

January 24, 2000 (65 FR 3630). On

March 17, 2000 (65 FR 14510), EPA

reopened the public comment period

until March 24, 2000.

Prior to the January 24, 2000 proposal

to redesignate the area, EPA approved

two 1-year extensions of the area’s

attainment date (62 FR 61241,

November 17, 1997; 63 FR 14673, March

26, 1998) making its new attainment

date November 15, 1998. The area

attained the 1-hour standard by its

extended attainment date (November 15,

1998).

II. What Comments Did We Receive and

What Are Our Responses?

Comments in support of the

rulemaking action are not summarized

below. The adverse comments and EPA

responses to them are provided below.

Comment 1: The Ohio Chapter of the

Sierra Club requested a 30-day

extension, beyond February 23, 2000, of

the public comment period due to the

proposal’s alleged technical complexity

and the unavailability of their

Conservation Chair during the last week

of the comment period.

Response 1: EPA reopened the

comment period until March 24, 2000.

See 65 FR 14510, dated March 17, 2000.

Comment 2: The commenter believes

that the air quality protections provided

by designation of the area as

nonattainment are needed to address

continued adverse health effects from

poor air quality. EPA has adopted a

more stringent air quality standard

based on an 8-hour average rather than

1-hour average ozone concentrations.

The 8-hour average standards have been

‘‘suspended’’ by the Circuit Court of

Appeals of the District of Columbia. The

court stated that it accepted EPA’s

findings that tighter standards were

needed to protect public health. The

commenter claims that an important

factor in the litigation is that even the

8-hour standard is insufficient to protect

public health with an adequate margin

of safety. Thus, the commenter implies

that attainment of the 1-hour ozone

standard is insufficient to protect public

health.

The commenter does not analyze air

quality in relation to the 1-hour

standard, the 8-hour standard, or any

other criteria. Instead, as evidence of

poor air quality, the commenter cites

analyses by the Natural Resources

Defense Council. The comments

highlight the deaths attributable to

inhalation of particulate matter. The

comments also reference Cincinnati

Health Department estimates of ‘‘ ‘about

5000 sublethal cases per year’ of

temporary respiratory problems due to

ozone levels.’’ The commenter

concludes that ‘‘lifting restrictions

imposed by nonattainment status would

violate the spirit if not the letter of the

Act by increasing the exposure of the

public to [unsafe levels].’’

Response 2: EPA continues to believe

that implementation of the 8-hour

average ozone standard it adopted in

1997 would provide a more appropriate

level of protection against ozone’s

adverse impacts. EPA is pursuing

Supreme Court review of the Circuit

Court’s ruling, American Trucking

Assoc. v. EPA, 175 F.3d 1027, modified

on rehearing 193 F.3d 4 (D.C. Cir. 1999),

with hopes of being able to apply the

full legal authority of the Clean Air Act

to mandate attainment of the revised

standard. EPA does not believe that the

Cincinnati-Hamilton area’s status with

respect to the 8-hour standard is

relevant to the issues in this rulemaking,

as this rulemaking concerns a

redesignation under the 1-hour

standard, not a designation made under

the 8-hour standard, for which

designations have yet to be made.

Comment 3: The commenters note the

impact of poor air quality in Hamilton

County (the county containing the City

of Cincinnati) on the African-American

community, and request that EPA

‘‘consider the racial, ethnic and

economic composition of local

communities in relation to volatile

organic compound (VOC) emissions,

ozone formation, and ozone

accumulation.’’ The commenters allege

that redesignating the area as attainment

would violate President Clinton’s

Executive Order 12898.

Response 3: The commenters imply

that the area is not meeting the standard

for ozone. EPA’s rulemaking action here

determines not only that the CincinnatiHamilton area is attaining the 1-hour

standard for ozone, but that its State

Implementation Plan and maintenance

plan provide for attainment and

maintenance of the standard throughout

the area.

The commenters assert that AfricanAmerican and low-income residents in

the center-city are exposed to higher

ozone levels than other residents. The

air quality data for the entire CincinnatiHamilton area, however, reflects levels

below the ozone NAAQS. Further,

commenters’ Appendix 1 indicates that

‘‘ozone monitors in the north and

northwest suburbs have traditionally

measured the highest ozone levels’’,

whereas the monitors near the

communities referenced by the

commenters have measured

comparatively lower levels of ozone.

We therefore find that the rulemaking

at issue here is consistent with

Executive Order 12898 and does not

impose any disproportionately high and

adverse human health or environmental

effects on minority and low-income

populations.

Comment 4: The commenters allege

that the State Implementation Plan (SIP)

is inadequate in addressing population

and economic growth impacts in this

region.

Response 4: The maintenance plan

adequately takes into account growth

and population impacts on emissions in

the Cincinnati-Hamilton area. Both

Ohio’s and Kentucky’s emissions

projections for point sources use Bureau

of Economic Analysis (BEA) industrial

employment projection data broken

down by Standard Industrial

Classification (SIC) to ‘‘grow’’ the point

source emissions into the future.

The average annual growth rates used

to project point sources in the Ohio

portion of the area were between ¥0.05

and 2.8 percent. The emissions

projections for area sources are grown

using BEA industrial employment data

broken down by SIC for some area

source categories. Other area source

categories are projected using projected

population data for the area. The growth

rates used for area source projections

were around zero to just over one

percent per year.

In Kentucky, the growth rates for

point sources were around a half

percent decrease to around a four

percent increase in growth per year. The

ranges for area sources in Kentucky

were from around zero to around three

percent per year.

The mobile source emissions

projections were made by the OhioKentucky-Indiana Metropolitan Council

of Governments (OKI), which is the

local metropolitan planning

organization. They used a travel

demand model, and MOBILE5a–H

(EPA’s mobile source emissions factor

model), along with post-processing

programs to calculate emissions for the

Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37881

1Area-wide emissions projections for 2007 were

not available for the maintenance plan.

area. The OKI travel demand model uses

demographic and land use data for each

of 1003 Traffic Analysis Zones and

capacity and free-flow speed

characteristics for each roadway

segment in the transportation network

to produce a ‘‘loaded’’ highway network

with forecasted traffic volumes with

revised speeds (based on specified

speed/capacity relationships). Complete

sets of population, household and

employment forecasts were prepared for

2010 based on the 1990 Census and

projections from the Ohio Department of

Development and Kentucky State Data

Center. The modeling process used to

develop this 2010 emissions data was

calibrated using the latest demographic

and land use data available. The

transportation network used in this

analysis includes the existing highway

and transit network plus all capacityrelated highway projects included in

OKI’s financially-constrained 2020

Metropolitan Transportation Plan as

amended in June 1999. The emissions

projections in the area do take into

consideration growth and changes in

population.

A comparison was made of the change

in volatile organic compound and

nitrogen oxides emissions in the

maintenance plan for the CincinnatiHamilton area versus the statewide

emissions estimates used in the Tier 2

rulemaking. ‘‘Data Summaries of Base

and Future Year Mass and Modeling

Inventories for the Tier 2 Final

Rulemaking, Detailed Report,’’ EPA420–

R–99–003, September 1999. In the

maintenance plan the area-wide VOC

emissions decreased 11% between 1996

and 2005.1 This compares to statewide

emissions decreases of 25% and 13%

between 1996 and 2007 for Ohio and

Kentucky, respectively. In the

maintenance plan the area-wide NOX

emissions decreased 8% between 1996

and 2005. This compares to statewide

emissions decreases of 47% and 45%

between 1996 and 2007 for Ohio and

Kentucky, respectively.

The statewide NOX emissions were

projected lower in the EPA report

mainly due to projected emissions

reductions required by EPA rules

affecting Electric Generating Units. If

the reductions from Electric Generating

Units were not included in the

statewide projections then the statewide

NOX emissions reductions would be

around 10% and 6% for Ohio and

Kentucky, respectively. This projection

without crediting Electric Generating

Units reductions compares well with

the estimates in the maintenance plans.

The maintenance plans did not include

the Electric Generating Units reductions

in projections of future emissions.

Overall, this shows that the states’

estimates of future NOX emissions in the

maintenance plan are higher than what

would be expected to occur due to

population and economic growth.

This rough comparison indicates that

the maintenance plans do not

underestimate the affects of population

and economic growth. The maintenance

plans’ estimates of future emissions

more than adequately account for any

future population or economic growth

in the Cincinnati-Hamilton area. The

states’ estimates of future growth

provide a margin of safety, are

appropriate, reasonable and meet EPA

standards for maintenance plans.

Comment 5: The commenter is

concerned that the state of Ohio is

inadequately enforcing the Clean Air

Act. The commenter indicates that it has

identified some indications that Ohio is

failing in implementation and

enforcement of the SIP. For example,

the commenter states that the air quality

monitor in Middletown has

demonstrated that air quality standards

for ozone have been exceeded. AK Steel

of Middletown is the fourth largest

emitter of VOCs (9006.2 tons per year)

in Ohio according to an EPA analysis of

data accumulated between 1990 and

1995. The commenter claims, however,

that EPA sector facility indexing project

data shows that for all of 1997 and for

the first two quarters of 1998, the most

recent quarters on the database, AK

Steel was out of compliance with SIP

and National Emission Standards for

Hazardous Air Pollutants requirements.

The commenter states that no penalties,

enforcement actions, or schedules of

compliance are listed in the database

and that there have been no news

releases by Ohio EPA announcing any

recent enforcement actions. A similar

situation is alleged to have occurred

with the local power plant, Cinergy

Beckjord, which the commenter

assumes to be one of the larger emitters

in the region. The commenter asserts

that the facility is now being sued by

EPA for apparently skirting the CAA for

many years despite supervision by the

State of Ohio. The commenter objects to

EPA’s acceptance of Ohio’s SIP as

protective of the 1-hour ozone NAAQS

given alleged lax or ineffective

monitoring and enforcement of

Hamilton County’s largest polluters by

state authorities and their designates.

Another commenter argues that the

maintenance plan is also not approvable

because it lacks enforcement programs

and commitments of resources as

required by the Clean Air Act. 42 U.S.C.

7410(a)(2)(E). The commenter claims

that EPA simply assumes that the

various measures relied on for future

emission reductions will continue to be

implemented. Without explicit

commitments of legal authority and

resources to implement all of those

measures, the commenter argues that

the maintenance plan is not approvable.

Response 5: Regardless of any alleged

implementation issues, the area is

attaining the 1-hour ozone standard. In

fact, the entire state of Ohio is now in

attainment for ozone. The commenter

noted that the ozone monitor in

Middletown has recorded exceedances

of the NAAQS. The monitoring data for

the area show that during the 1997–

1999 time period, an exceedance

occurred once in 1997 and once in 1999.

This averages out to 0.67 expected

exceedances during the 1997–1999 time

period. This is below 1.0 and shows that

the monitor is monitoring attainment of

the 1-hour ozone standard.

The CAA requires the area to have a

fully approved SIP and to have met all

of the applicable requirements of the

CAA. The area’s SIP satisfies these

requirements as described in EPA’s

proposed rulemaking published on

January 24, 2000 (65 FR 3630). The

measures that Ohio is relying on to

maintain the 1-hour ozone standard

have been approved into the SIP and are

state and federally enforceable. See

references to approved SIP in the

January 24, 2000 proposed rulemaking.

The state must continue to implement

these measures as provided for in the

federally approved SIP.

Ohio has committed to select and

implement the maintenance plan

contingency measures within 12 months

of a violation of the 1-hour ozone

standard. See April 14, 1995 letter from

Donald Schregardus, OEPA to David

Kee, EPA, for further information. The

commenter provided no evidence that

the maintenance plan fails to satisfy

section 110(a)(2)(E). The CAA does not

require a separate level of enforcement

for a maintenance plan as a prerequisite

to redesignation. The enforcement

program approved for and applicable to

the SIP as a whole also applies to the

maintenance plan.

Redesignation to attainment for ozone

does not suspend the implementation of

the existing VOC Reasonably Available

Control Technology (RACT) rules for the

sources in the area. These rules will

continue to be in place to provide for

maintenance of the 1-hour ozone

standard.

In 1980, EPA approved the Ohio

ozone SIP as meeting all of the

requirements of section 110, which

37882 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

included section 110(a)(2)(F), the

predecessor of current section

110(a)(2)(E). See 40 CFR 52.1873. EPA

has consistently interpreted section

107(d)(3) as permitting the Agency to

rely on prior approvals of SIP provisions

when reviewing redesignation requests.

A memorandum to its Regional Offices

from John Calcagni, Director of the Air

Quality Management Division, dated

September 4, 1992, (Calcagni

Memorandum) describes procedures

that EPA regions should use to evaluate

requests to redesignate areas to

attainment status. The memo states:

‘‘An area cannot be redesignated if a

required element of its plan is the

subject of a disapproval * * *.

However, this does not mean that earlier

issues with regard to the SIP will be

reopened. Regions should not

reconsider those things that have

already been approved and for which

the Clean Air Act Amendments did not

alter what is required.’’

EPA does not need to reconsider the

issue of whether the Ohio SIP meets

section 110(a)(2)(E) requirements prior

to redesignation. Southwestern

Pennsylvania Growth Alliance v.

Browner, 144 F.3d 984 (6th Cir. 1998).

Even if violations subsequently occur,

this does not conclusively establish that

state enforcement is so inadequate as to

make the state enforcement program

deficient under the Clean Air Act. EPA

has not yet made such a finding, and

even if the area is redesignated, EPA

retains authority to make a finding of

failure to implement under section

173(b) of the Clean Air Act or to require

a SIP revision under section 110(a)(2)(H)

if it concludes that state implementation

and enforcement is deficient. The State

would thus remain subject to EPA

authority to improve its enforcement

even after the area is redesignated. For

purposes of redesignation, the area has

a fully approved SIP.

In addition, EPA notes that in

response to petitions filed by the

commenter and others (also referred to

in Comment 16), EPA is currently

conducting a comprehensive review of

the programs cited in those petitions as

amended and supplemented. Any

implementation deficiencies EPA finds

in this review will be addressed and

corrected in contexts apart from the

redesignation procedure that is the

subject of this rulemaking. See also

Responses 16 and 24. EPA also recently

advised the state of Ohio that, ‘‘as

amended by the Ohio Legislature and

interpreted by Ohio’s Attorney General,

Ohio’s Audit Privilege and Immunity

Law should not present a barrier to

continued authorization of federal

environmental programs in Ohio.’’

Letter dated June 18, 1999 from Steven

A. Herman, Assistant Administrator to

Betty D. Montgomery, Attorney General,

State of Ohio, and Christopher Jones,

Director, OEPA.

Comment 6: The commenter claims

that the legal requirements for

redesignation have not been met. The

prerequisites for redesignating a

nonattainment area to attainment are set

forth in section 107(d)(3)(E) of the CAA,

42 U.S.C. 7407(d)(3)(E). Section

107(d)(3)(E)(i) of the CAA prohibits a

redesignation to attainment unless EPA

determines that the area has attained the

ozone NAAQS. The commenter states

that although EPA’s Aerometric

Information Retrieval System (AIRS)

data does not show NAAQS violations

in 1996–1998, EPA has not determined

that the area has attained the standard,

nor can it do so.

In its recent rulemaking adopting Tier

2 Motor Vehicle Emission Standards,

EPA listed the Cincinnati-Hamilton area

as ‘‘certain or highly likely to require

additional emission reductions in order

to attain and maintain the 1-hour ozone

NAAQS.’’ 65 FR 6698, 6710 (February

10, 2000). The commenter alleges that

EPA cannot determine that this area has

attained the standard when it has

explicitly found that the area requires

additional emission reductions to attain

and maintain the NAAQS. Further, the

commenter states that EPA has not

shown that emission reductions from

the Tier 2 motor vehicle and gasoline

sulfur standards will be substantial

enough, or occur soon enough, to

produce timely attainment and

maintenance.

EPA’s own projections, the

commenter argues, undermine any

claim that the recent absence of

violations is due to permanent and

enforceable emission reductions.

According to the commenter,

moreover, any emissions benefits

attributed to the Tier 2 standards and

gasoline sulfur requirements must be

offset by reductions that EPA’s

projections assumed would occur from

the NOX SIP call and other measures

that cannot yet be credited because they

are not enforceable as things stand now,

and that EPA cannot approve the

maintenance demonstration without

first conducting new modeling to

account for the foregoing concerns.

Furthermore, any such modeling (or

reanalysis of existing data) must be

subject to full public notice and

comment before final EPA action on the

redesignation proposal.

Response 6: The Cincinnati-Hamilton

area has monitored attainment of the 1-

hour ozone standard for both the 1996–

1998 and 1997–1999 time periods. The

area is well monitored. There are 10

ozone monitors in operation throughout

the seven county area. This monitoring

clearly demonstrates that the air quality

in the area has improved and that the

area is attaining the 1-hour ozone

standard. Also, see discussion for Table

3 in response below summarizing the air

quality data from 1987 to 1999. The fact

that attainment has lasted over a fouryear period is strong evidence that it is

attributable to emission reductions and

not merely favorable meteorology.

Any emissions and ozone modeling

system used to predict future ozone

involves approximations and

uncertainties at each stage: historical

emission inventory estimation, growth

and control projection, transport

modeling, and photochemical modeling.

Model predictions are best treated as

indicators of risk, rather than as

absolute forecasts. In the Tier 2

rulemaking, we used a regional ozone

modeling system to predict ozone in

many cities, as part of an interpretative

process to characterize the risk that

there would be nonattainment in a large

and geographically broad number of

areas. While ozone predictions and the

characterization of the risk of

nonattainment in individual areas was a

step toward reaching a conclusion about

risks across the group of areas, that

characterization was not an Agency

finding of violations for any specific

area.

In the Tier 2 rulemaking, no area was

characterized as being highly likely to

require more emission reductions for

attainment and maintenance unless the

ozone modeling predicted a future

exceedance and actual air quality data

indicated nonattainment between 1995

and 1998. An area with monitored

attainment in 1995 to 1998 was at worst

characterized as having a moderate risk

of future nonattainment, and only if it

came within 10 percent of having a

NAAQS violation in the 1995 to 1998

period. At the time, we used 1995–1998

(two three-year periods), so the

Cincinnati-Hamilton area was included

in the list of areas highly likely to need

more reductions. The Tier 2 modeling

did not have available to it the 1999 air

quality data which shows that the area

is continuing to attain the ozone

standard. With the 1999 data,

application of the same method would

result in it being characterized as having

only a moderate risk of needing

additional emission reductions to avoid

nonattainment sometime in the 2007 to

2030 period. A moderate risk of

nonattainment is not inconsistent with

EPA approval of the maintenance plan.

Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37883

In the Tier 2 method, we also deferred

to local attainment demonstration and

weight of evidence conclusions

wherever they existed and indicated

attainment by 2007, moving even areas

with both predicted 2007 exceedances

and actual 1995–1998 violations to a

‘‘significant risk’’ list in those cases

where we had proposed approval of an

attainment demonstration, based on

weight of evidence considerations,

without requiring additional emission

reductions. In the case of the CincinnatiHamilton area, there is no local

modeling or weight of evidence analysis

indicating future attainment, but there is

data showing attainment now, and

emission inventory projections that

show that total NOX and VOC emissions

decline between 1996 and 2007. Actual

local data showing attainment over four

years, combined with a downward trend

in total emissions, is an even stronger

basis for not relying completely on the

Tier 2 ozone modeling.

With respect to maintenance of the 1-

hour ozone standard, the Tier 2

modeling showed a downward trend in

ozone from 1996 to 2007 in the

Cincinnati-Hamilton area, even without

Tier 2 reductions. The Tier 2 reductions

are the type of additional reductions

that will help ensure maintenance for

the next 10 years.

Comment 7: Pursuant to section

107(d)(3)(E)(ii) of the Clean Air Act,

EPA cannot redesignate an area to

attainment unless EPA ‘‘has fully

approved the applicable

implementation plan for the area.’’ The

commenter contends that EPA has yet to

fully approve the applicable

implementation plan for the CincinnatiHamilton area. The commenter

maintains that among other things, EPA

has yet to fully approve the moderate

area ozone SIP for this area and has also

failed to fully approve the following

specific SIP elements required by the

Clean Air Act:

A. Attainment demonstration: The

Clean Air Act requires the moderate

area SIP submittal to include an

attainment demonstration based on

photochemical grid modeling or other

analytical method determined by EPA to

be at least as effective. 42 U.S.C.

7502(c)(1), (c)(6), 7511a(b)(1), 7511a(j).

EPA has not approved an attainment

demonstration for this area as required

by the CAA.

B. All Reasonably Available Control

Measures (RACM): EPA has not

approved a demonstration that the SIP

provides for implementation of all

reasonably available control measures as

expeditiously as practicable. 42 U.S.C.

7502(c)(1). The commenter argues that

EPA has no authority to waive this

requirement, which applies in addition

to the requirement to demonstrate

timely attainment.

C. RACT: The Clean Air Act requires

the SIP to mandate Reasonably

Available Control Technology for all

VOC sources within the nonattainment

area, including all sources covered by

Control Technique Guideline (CTG)

documents. 42 U.S.C. 7502(c)(1),

7511a(b)(2). EPA has not fully approved

the SIP as meeting this requirement, and

concedes that the requirement has not

been met with respect to the Ohio

portion of the nonattainment area. 65 FR

3636. The commenter argues that EPA is

without authority to waive this explicit

requirement for SIPs, and cannot deem

it to be met by the state’s commitment

to adopt such measures in the future if

needed as maintenance plan

contingency measures. The CAA makes

clear that RACT (including, specifically,

RACT specified in Control Technique

Guidelines (CTGs)) is a minimum level

of control technology that must be

included in all moderate area SIPs. It is

not an optional control strategy that can

be deferred until ‘‘needed’’ for

attainment or maintenance. For these

reasons, the commenter challenges the

legal validity of EPA’s prior guidance

suggesting that unimplemented and

‘‘unneeded’’ RACT might be moved to

an area’s maintenance plan as a

contingency measure.

Further, the commenter declares, even

the prior guidance requires that RACT

be fully adopted, submitted, and

approved by EPA before redesignation:

it does not allow a state to defer

adoption of RACT requirements. The

commenter contends that EPA’s

justification for making an exception to

the requirement for full adoption here is

irrational and meritless. The fact that

the RACT rules are supposedly not

needed for attainment and maintenance

is a factor that was assumed in the

original guidance as well, otherwise

there would have been no basis for even

considering the idea of allowing

deferred implementation.

Equally irrelevant, says the

commenter, is EPA’s claim that greater

emission reductions can be achieved by

other contingency measures in the area’s

maintenance plan. The commenter

argues that EPA was aware of this

possibility as well at the time of its prior

guidance, and that the purpose of

requiring full adoption prior to

redesignation was to provide assurance

that this mandatory level of control

already required in almost all other

ozone nonattainment areas would no

longer be deferred where additional

emission reductions were clearly

needed, and would be subject to

immediate implementation (rather than

requiring potentially years of state

rulemaking and EPA reviews). As it is,

Ohio has not committed to ever adopt

the full range of mandated VOC RACT,

only to consider it as one contingency

measure option in the maintenance

plan.

Response 7: The Cincinnati-Hamilton

area has satisfied all applicable ozone

requirements and has a fully approved

ozone SIP. In acting on a redesignation

request, EPA may rely on any prior SIP

approvals plus any additional approvals

it may perform in conjunction with

acting on the redesignation. EPA is fully

approving any remaining portions of the

SIP that must be approved prior to

redesignation in conjunction with this

action. Therefore, the Ohio SIP is fully

approved. See ‘‘Procedures for

Processing Requests to Redesignate

Areas to Attainment,’’ John Calcagni,

Director, Air Quality Management

Division, September 4, 1992, page 3.

The Calcagni memorandum allows for

approval of SIP elements and

redesignation to occur simultaneously,

and EPA has frequently taken this

approach in its redesignation actions.

In response to comment 7A on the

attainment demonstration, an

attainment demonstration is not

required under EPA’s attainment

determination policy. EPA has

explained at length in other actions its

rationale for the reasonableness of that

interpretation of the Clean Air Act and

incorporates those explanations by

reference here. See, for example, 61 FR

20458 (Cleveland-Akron-Lorain,

Ohio)(May 7, 1996); 60 FR 36723 (July

18, 1995)(Salt Lake and Davis Counties,

Utah); 60 FR 37366 (July 20, 1995), 61

FR 31832–33 (June 21, 1996)(Grand

Rapids, MI).

EPA also reiterates its position set

forth in the proposed rulemaking.

Subpart 2 of part D of Title I of the CAA

contains various air quality planning

and SIP submission requirements for

ozone nonattainment areas. EPA

believes it is reasonable to interpret

provisions regarding Reasonable Further

Progress (RFP) and attainment

demonstrations, along with certain other

related provisions, so as not to require

SIP submissions if an ozone

nonattainment area subject to those

requirements is monitoring attainment

of the ozone standard (i.e., attainment of

the NAAQS demonstrated with three

consecutive years of complete, qualityassured, air quality monitoring data).

EPA has interpreted the general

provisions of subpart 1 of part D of Title

I (sections 171 and 172) so as not to

require the submission of SIP revisions

37884 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

concerning RFP, attainment

demonstrations, or section 172(c)(9)

contingency measures. As explained in

a memorandum from John S. Seitz,

Director, Office of Air Quality Planning

and Standards, entitled ‘‘Reasonable

Further Progress, Attainment

Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard,’’ dated

May 10, 1995, EPA believes it is

appropriate to interpret the more

specific attainment demonstration and

related provisions of subpart 2 in the

same manner. (See Sierra Club v. EPA,

99 F.3d 1551 (10th Cir. 1996))

The attainment demonstration

requirements of section 182(b)(1) are

that the plan provide for ‘‘such specific

annual reductions in emissions * * * as

necessary to attain the national primary

ambient air quality standard by the

attainment date applicable under the

CAA.’’ If an area has in fact monitored

attainment of the relevant NAAQS, EPA

believes there is no need for an area to

make a further submission containing

additional measures to achieve

attainment. This is also consistent with

the interpretation of certain section

172(c) requirements provided by EPA in

the General Preamble to Title I. As EPA

stated in the Preamble, no other

measures to provide for attainment

would be needed by areas seeking

redesignation to attainment since

‘‘attainment will have been reached’’ (57

FR 13564). Upon attainment of the

NAAQS, the focus of state planning

efforts shifts to the maintenance of the

NAAQS and the development of a

maintenance plan under section 175A. Similar reasoning applies to other

related provisions of subpart 2. The first

of these are the contingency measure

requirements of section 172(c)(9) of the

CAA. EPA has previously interpreted

the contingency measure requirement of

section 172(c)(9) as no longer being

applicable once an area has attained the

standard since those ‘‘contingency

measures are directed at ensuring RFP

and attainment by the applicable date’’

(57 FR 13564).

The state must continue to operate an

appropriate air quality monitoring

network, in accordance with 40 CFR

part 58, to verify the attainment status

of the area. The air quality data relied

upon to determine that the area is

attaining the ozone standard must be

consistent with 40 CFR part 58

requirements and other relevant EPA

guidance and recorded in EPA’s AIRS. EPA has reviewed the ambient air

monitoring data for ozone (consistent

with the requirements contained in 40

CFR part 58 and recorded in EPA’s

AIRS) for the Cincinnati-Hamilton

moderate ozone nonattainment area

from the 1996 through 1998 ozone

seasons. This data is summarized in

Table 3. Monitoring data for 1999 show

the area continues to attain the 1-hour

ozone NAAQS. On the basis of this

review, EPA determines that the area

has attained the 1-hour ozone standard

during the 1996–98 period, as well as

the 1997–1999 period (the most recent

three-year time period of air quality

monitoring data), and therefore is not

required to submit an attainment

demonstration and a section 172(c)(9)

contingency measure plan and does not

need any other measures to attain the 1-

hour ozone standard.

In response to comments 7 B and C,

no additional RACM controls beyond

what are already required in the SIP are

necessary for redesignation to

attainment. The General Preamble (57

FR 13560, (April 16, 1992)) explains

that section 172(c)(1) requires the plans

for all nonattainment areas to provide

for the implementation of RACM as

expeditiously as practicable. EPA

interprets this requirement to impose a

duty on all nonattainment areas to

consider all available control measures

and to adopt and implement such

measures as are reasonably available for

implementation in the area’s attainment

demonstration. Because attainment is

reached no additional measures are

needed to provide for attainment. The suspension of the attainment

demonstration requirements pursuant to

our determination of attainment

includes the section 172(c)(1) RACM

requirements as well. The General

Preamble treats the RACM requirements

as a ‘‘component’’ of an area’s

attainment demonstration. See reference

above. Thus, the suspension of the

attainment demonstration requirement

pursuant to our determination of

attainment applies to the RACM

requirement, since it is a component of

the attainment demonstration.

As discussed in the proposed

rulemaking, Ohio has completed

adoption of stationary source RACT

requirements for the CincinnatiHamilton moderate ozone

nonattainment area. EPA has approved

these RACT regulations in prior

rulemakings. See rulemakings for Ohio

dated April 25, 1996 (61 FR 18255),

September 7, 1994 (59 FR 46182) and

October 23, 1995 (60 FR 54308). The

requirement for RACT based on new

CTGs in Ohio is satisfied by the listing

of new CTGs in the maintenance plan as

contingency measures. See discussion

in EPA’s proposed rulemaking on this

action. EPA’s rationale has been

explained at length in the Grand Rapids,

Michigan redesignation actions of

proposed and final rulemakings dated

April 2, 1996 (61 FR 14522), June 21,

1996 (61 FR 31833–31834, 31843–

31847), and is incorporated by reference

here.

Ohio has demonstrated that the

Cincinnati-Hamilton area does not

require the new CTG RACT rules for

either attainment or maintenance. If

EPA were to require the State to fully

adopt these rules prior to redesignation,

the State would still be entitled to have

the rules become a part of the

contingency measures in the

maintenance plan upon approval of the

redesignation. EPA’s policy allows that

even those measures which have been

adopted may be moved into the area’s

maintenance plan as contingency

measures if they are not yet

implemented and not necessary for

maintenance of the standard. September

17, 1993 Memorandum from Michael H.

Shapiro, Acting Assistant Administrator

for Air and Radiation, entitled, ‘‘SIP

Requirements for Areas Submitting

Requests for Redesignation to

Attainment’’, Detroit redesignation with

respect to Stage I (March 7, 1995, 60 FR

12459).

Consequently, requiring full adoption

prior to redesignation would not lead to

implementation of the measures, and

would not impose a minimum level of

technology as the commenter suggests.

The only difference between the

commenter’s approach and EPA’s is that

EPA, as in the case of Grand Rapids, is

permitting Ohio to place a commitment

to adopt measures, rather than fully

adopted measures, in its maintenance

plan. This approach is fully consistent

with EPA’s longstanding practice, set

forth in the September 1992 Calcagni

memorandum, that in general,

contingency measures need not be fully

adopted. EPA believes that this

approach is also consistent with the

requirements of the CAA.

EPA has previously addressed the

issue of whether Clean Air Act

requirements, such as RACT, must be

implemented after an area has been

redesignated, and whether EPA’s

longstanding policy of allowing states to

convert mandatory control measures to

contingency measures is authorized.

See, for example, redesignation of

Detroit dated March 7, 1995 (60 FR

12459, 12470). The CAA contains many

requirements that States must adopt

certain measures, including RACT,

specifically for nonattainment areas.

Those requirements do not by their own

terms continue to apply to an area after

it has been redesignated to attainment.

Moreover, nothing in section 175A

itself suggests that these requirements

must continue to be met in redesigVerDate 11<MAY>2000 19:46 Jun 16, 2000 Jkt 190000 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 E:\FR\FM\19JNR1.SGM pfrm01 PsN: 19JNR1
Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37885

nated areas. Section 175A(d) is

specifically and clearly applicable to

contingency provisions and their

inclusion in a section 175A

maintenance plan. Section 175A(d)

establishes that SIP revisions submitted

under section 175A must contain

contingency provisions, as may be

necessary, to assure that the state will

promptly correct any violation of the

ozone NAAQS that occurs after

redesignation to attainment. It further

requires that these contingency

provisions include a requirement for the

state to implement all measures with

respect to the control of ozone precursor

emissions that were in the

nonattainment SIP before the area was

redesignated. This provision clearly

demonstrates that section 175A(d)

contemplates that there may be

unimplemented control measures in the

SIP prior to redesignation that will be

shifted into the maintenance plan as

contingency measures. Nothing in

section 175A suggests that the measures

that may be shifted into the contingency

plan do not include programs mandated

by the Act when the area was

designated nonattainment. As section

175A(a) requires that measures be

adopted and implemented to ensure

maintenance, it indicates that measures

may not be converted to contingency

provisions unless the State

demonstrates that the standard will be

maintained in the absence of the

implementation of such measures. Ohio

has shown that it can maintain the

standard without the unimplemented

measures. Thus EPA believes that its

policy with respect to allowing

measures to be placed into the

contingency plan meets the

requirements of the Act.

Comment 8: The commenter asserts

that EPA has not determined that the

motor vehicle emissions budget for the

Cincinnati-Hamilton area SIP is

adequate for attainment (and

maintenance), and states that the CAA

and EPA rules and guidance preclude

EPA from approving an attainment

demonstration SIP unless the SIP

includes a motor vehicle emissions

budget that EPA determines to be

adequate.

Response 8: The commenter is correct

that EPA rules and guidance preclude

the final approval of an attainment

demonstration, maintenance plan or

other control strategy SIP before the

mobile source emission budget in the

plan meets the adequacy criteria in the

transportation conformity rule. EPA

posted the Ohio maintenance plan SIP

to EPA’s adequacy web site on January

7, 2000 and the Kentucky maintenance

plan SIP to the adequacy web site on

November 29, 1999.

The adequacy web site at

www.epa.gov/oms/transp/conform/

adequacy.htm is available to the public

to allow notice and comment on the

adequacy of mobile source emission

budgets in submitted control strategy

SIPs. The comment period on the

maintenance plan SIPs has closed

without receipt of any negative

comments. Letters of adequacy have

been issued and will be posted on the

web site. EPA found the mobile source

emission budgets adequate on April 27,

2000, and May 24, 2000, for Ohio and

Kentucky respectively.

As a general matter, it should be

noted that EPA also proposes and

approves transportation conformity

budgets through the regular Federal

Register notice and comment process.

The public therefore has several

opportunities to comment on the

approvability of mobile source emission

budgets: First, at the state level during

the state public comment period on the

SIP; second at the federal level during

the adequacy posting of the submitted

SIP; and third during the Federal

Register proposed approval of the SIP

with mobile source budgets. In some

cases, the proposed approval and the

adequacy posting may occur at the same

time or concurrently. The adequacy and

approvability of the mobile source

budget is evaluated during this time

frame and before the final approval of

the control strategy SIP with approved

budgets.

The public should note, however, that

not all submitted SIP budgets will be

posted on the adequacy web site and go

though the adequacy process, although

all budgets must meet the adequacy

criteria in the transportation conformity

rule before being approved. The

adequacy process is available so that

budgets can be found adequate and be

used for conformity purposes before the

SIP is approved.

If a control strategy SIP with a budget

has already been approved for an area

and a new SIP with a new budget is

submitted that covers the same

requirements and time frame as the

approved SIP, then the new SIP would

not be posted for adequacy because the

new submitted budget could not replace

the approved budget without full

Federal Register notice and comment.

For example, when Ohio wants to

allocate the safety margin in a

maintenance plan to the mobile source

emissions budget in the current

maintenance plan, the new maintenance

plan budget would not need to be

posted to the adequacy web site because

an approved maintenance plan budget

would already be in place. The new SIP

submittal with the new budget does,

however, go through full notice and

comment rulemaking before the budget

can be used for transportation

conformity.

Comment 9: The commenter argues

that the SIP does not include conformity

procedures as required by the CAA, and

that EPA has no authority whatsoever to

waive this mandatory requirement for

SIPs. The commenter contends that the

CAA allows redesignation to attainment

only where EPA has fully approved the

implementation plan and only where

the state ‘‘has met all requirements

applicable to the area’’ under section

110 and part D.

Response 9: The State of Ohio and the

State of Kentucky have met the statutory

requirement for submitting approvable

general conformity procedures. EPA

approved the Ohio general conformity

rules effective on May 10, 1996 (61 FR

9644). EPA approved the Kentucky

general conformity rules effective on

July 27, 1998 (63 FR 40044).

Section 176(c) provides that state

conformity revisions must be consistent

with Federal conformity regulations that

the CAA requires EPA to promulgate.

The Federal general conformity

regulations were finalized on November

30, 1993, and the Federal transportation

conformity regulations were finalized

on November 24, 1993. The Federal

general conformity regulations have

remained the same since that time, but

the Federal transportation conformity

regulations have been amended several

times since 1993.

EPA conditionally approved the Ohio

transportation conformity rules on May

16, 1996 (61 FR 24702). Ohio met the

condition of the approval by submitting

rule changes within the specified one

year time frame. The Federal

transportation conformity regulations

were amended on August 15, 1997 (40

CFR parts 51 and 93 Transportation

Conformity Rule Amendments:

Flexibility and Streamlining). Ohio

submitted new transportation

conformity rules on October 6, 1999, in

response to the 1997 changes to the

Federal transportation conformity

regulations. However, the Ohio rules

will need to be revised again due to the

March 2, 1999 court decision

(Environmental Defense Fund v.

Environmental Protection Agency, U.S.

Court of Appeals District of Columbia

Circuit, No. 97–1637) which rescinded

several sections of the Federal

transportation conformity rule and

asked EPA to revise several sections of

the Federal rule. Kentucky submitted

transportation conformity rules in 1994,

37886 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

but EPA has not acted upon the rules

and the rules must be revised to be

consistent with the amendments and

court rulings.

EPA believes it is reasonable to

interpret the conformity requirements as

not applying for purposes of evaluating

the redesignation request under section

107(d). The rationale for this is based on

a combination of two factors. First, the

requirement to submit SIP revisions to

comply with the conformity provisions

of the Clean Air Act continues to apply

to areas after redesignation to

attainment, since such areas would be

subject to a Section 175A maintenance

plan. Second, EPA’s Federal conformity

rules require the performance of

conformity analyses in the absence of

federally approved state rules.

Therefore, because areas are subject to

the conformity requirements regardless

of whether they are redesignated to

attainment and must implement

conformity under Federal rules if state

rules are not yet approved, EPA believes

it is reasonable to view these

requirements as not applying for

purposes of evaluating a redesignation

request. See, for example Grand Rapids

redesignation at 61 FR 31835–31836

(June 21, 1996).

EPA has explained its rationale and

applied this interpretation in numerous

redesignation actions. See, Tampa,

Florida and Cleveland-Akron-Lorain

redesignations 60 FR 52748 (December

7, 1995), and 61 FR 20458 (May 7,

1996), respectively. Consequently, EPA

may approve the ozone redesignation

request for the Cincinnati-Hamilton area

notwithstanding the lack of a fully

approved conformity SIP.

Comment 10: The commenter asserts

that neither the states nor EPA have

shown that air quality improvements are

due to permanent and enforceable

emission reductions, as required by 42

U.S.C. 7407(d)(3)(E)(iii). The commenter

takes issue with the finding that this

criteria is met because the states have

adopted measures that have produced

some emission reductions. The

commenter believes EPA has not

demonstrated that these reductions are

responsible for the area’s improved air

quality or the absence of violations,

claiming that the only way to reliably

make such a showing would be through

photochemical grid modeling. No such

modeling is presented or discussed in

this proposal.

The commenter states that given the

complex chemistry and meteorology of

ozone formation, the combination of

NOx and VOC emission reductions that

might be attributable to the cited

measures could just as easily lead to

increases in ozone concentrations. The

lack of violations in 1996–1998, the

commenter states, could just as well be

due to weather patterns or changes in

transport of ozone precursors. Without

modeling to determine the actual impact

of adopted and enforceable controls, the

commenter finds EPA’s claim to be

speculative.

Response 10: We disagree with the

commenter. We believe that

photochemical grid modeling is not

necessary to show that the improvement

in air quality is due to permanent and

enforceable emissions reductions. Our

policy does not specify that

photochemical grid modeling must be

done in ozone nonattainment areas to

meet this requirement. See General

Preamble for the Interpretation of Title

I of the CAA Amendments of 1990, 57

FR 13496 (April 16, 1992),

supplemented at 57 FR 18070 (April 28,

1992); ‘‘Procedures for Processing

Requests to Redesignate Areas to

Attainment,’’ John Calcagni, Director,

Air Quality Management Division,

September 4, 1992; ‘‘State

Implementation Plan (SIP)

Requirements for Areas Submitting

Requests for Redesignation to

Attainment of the Ozone and Carbon

Monoxide (CO) National Ambient Air

Quality Standards (NAAQS) on or after

November 15, 1992,’’ Michael H.

Shapiro, Acting Assistant Administrator

for Air and Radiation, September 17,

1993; and ‘‘Use of Actual Emissions in

Maintenance Demonstrations for Ozone

and CO Nonattainment Areas,’’ D. Kent

Berry, Acting Director, Air Quality

Management Division, November 30,

1993.

Our policy allows an area to meet this

requirement by showing how its ozone

precursor emissions changed due to

permanent and enforceable emissions

reductions from when the area was not

monitoring attainment of the 1-hour

ozone NAAQS to when it reached

attainment.

Reductions in ozone precursor

(volatile organic compounds and

nitrogen oxides) emissions have brought

many areas across the country into

attainment. EPA has approved many

ozone redesignations showing decreases

in ozone precursor emissions resulting

in attainment of the ozone standard. See

redesignations for Charleston (59 FR

30326, June 13, 1994; 59 FR 45985,

September 6, 1994), Greenbrier County

(60 FR 39857, August 4, 1995),

Parkersburg (59 FR 29977, June 10,

1994; 59 FR 45978, September 6, 1994),

Jacksonville/Duval County (60 FR 41,

January 3, 1995), Miami/Southeast

Florida (60 FR 10325, February 24,

1995), Tampa (60 FR 62748, December

7, 1995), Lexington (60 FR 47089,

September 11, 1995), Owensboro (58 FR

47391, September 9, 1993), Indianapolis

(59 FR 35044, July 8, 1994; 59 FR 54391,

October 31, 1994), South Bend-Elkhart

(59 FR 35044, July 8, 1994; 59 FR 54391,

October 31, 1994), Evansville (62 FR

12137, March 14, 1997; 62 FR 64725,

December 9, 1997), Canton (61 FR 3319,

January 31, 1996), Youngstown-Warren

(61 FR 3319, January 31, 1996),

Cleveland-Akron-Lorain (60 FR 31433,

June 15, 1995; 61 FR 20458, May 7,

1996), Clinton County (60 FR 22337,

May 5, 1995; 61 FR 11560, March 21,

1996), Columbus (61 FR 3591, February

1, 1996, Kewaunee County (61 FR

29508, June 11, 1996; 61 FR 43668,

August 26, 1996), Walworth County (61

FR 28541, June 5, 1996; 61 FR 43668,

August 26, 1996), Point Coupee Parish

(61 FR 37833, July 22, 1996; 62 FR 648,

January 6, 1997), and Monterey Bay (62

FR 2597, January 7, 1997). Most of the

areas that have been redesignated to

attainment for the 1-hour ozone

standard have continued to attain it.

Areas that are not maintaining the 1-

hour ozone standard have a

maintenance plan to bring them back

into attainment.

Reductions in ozone precursor

emissions have been shown in

photochemical grid modeling to reduce

ambient ozone concentrations in areas

across the country. Between 1990 and

1996 area-wide VOC and NOX emissions

in the Cincinnati-Hamilton area

decreased by 18% and 6%, respectively.

These emissions reductions are due to

the Federal Motor Vehicle Emissions

Control Program, fleet turnover of

automobiles, implementation of Stage II

vapor recovery program,

implementation of VOC RACT, Federal

requirements for lower Reid vapor

pressure gasoline, use of reformulated

gasoline in Kentucky, ceased operation

and improved technology at facilities in

Kentucky, and partial implementation

of vehicle emission testing (E-Check) in

Ohio.

Additional programs have been

implemented in Kentucky since the

1996 attainment year. These programs

include Stage II vapor recovery, vehicle

emission testing program, and increased

rule effectiveness of Stage I vapor

control. Additional Federal rules such

as architectural coatings, traffic paints,

auto body refinishing, and commercial/

consumer products rules have become

effective.

Between 1990 and 1999 area-wide

VOC and NOX emissions decreased by

24% and 9%, respectively. Ozone air

quality monitoring data show that the

Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37887

2The design value is typically the fourth highest

ozone concentration recorded at a monitor over a

three year period. This value is calculated for each

monitor and the highest value is the design value

for the area.

design value 2 changed from 0.157 parts

per million (during the 1987–1989 time

period) to 0.124 parts per million

(during the 1996–1998 time period).

This shows that reductions in ozone

concentrations correspond to the

reduction in ozone precursors emissions

in the area.

The commenter claims that the

combination of NOX and VOC emissions

reductions could just as easily have led

to increases in ozone. This claim is

shown to not be true by the actual

monitoring data collected in the area

showing that ambient ozone

concentrations have dropped when this

combination of ozone precursor

reductions occurred. In other

metropolitan areas, different levels of

VOC and NOX reductions have also

resulted in attainment. See areas listed

above in first part of this response. The

Cincinnati-Hamilton area’s decrease in

ozone levels is consistent with what

other areas have experienced. The

commenter has not provided data

showing that decreases in ozone

precursor emissions have led to higher

levels of ozone.

The commenter claims that the lack of

violations during 1996–1998 could just

as well be due to weather patterns or

changes in transport of ozone

precursors, but does not supply any

evidence to support this conclusion. We

use a three year period of air quality to

account for changes in weather

conditions. Weather conditions have a

substantial effect on ozone

concentrations, both in terms of

increasing ozone and decreasing ozone.

However, this effect is not controllable

and EPA uses a three year average to

account for changes in meteorology. In

the case of the Cincinnati-Hamilton

area, the fact that the 1997–1999 time

period also shows that the area

continues to be in attainment of the

ozone standard increases our confidence

that weather is not a controlling factor

in the area’s attainment.

Indeed, weather data from the

National Oceanic and Atmospheric

Administration shows that during the

period at issue, weather conditions were

not unusually favorable toward low

ozone concentrations in the CincinnatiHamilton area. This data is summarized

in Tables 1 and 2.

TABLE 1. RANKED TEMPERATURE FOR

MAY TO SEPTEMBER PERIODS

VERSUS 1895–1998 LONG-TERM

AVERAGE

Year

Temperature rank for

northern

Kentucky

Temperature rank for

southwest

Ohio

1987 .................. 96 94

1988 .................. 62 80

1989 .................. 13 18

1993 .................. 52 58

1994 .................. 20 28

1995 .................. 67 64

1996 .................. 36 35

1997 .................. 8 6

1998 .................. 85 88

1999 .................. 78 83

TABLE 2. COMPOSITE TEMPERATURE

ANOMALIES FOR MAY TO SEPTEMBER PERIODS VERSUS 1950–

1995 AVERAGE

Three-year period of May-September data

Temperature anomaly for

northern

Kentucky

Temperature anomaly for

southwest

Ohio

1987–1989 ........ 0.72 0.49

1993–1995 ........ 0.21 ¥0.02

1995–1997 ........ ¥0.30 ¥0.81

1996–1998 ........ ¥0.02 ¥0.56

1997–1999 ........ 0.64 0.07

Table 1 shows the rank of the average

temperatures over the May to September

period for certain years compared to

data from 1895 to 1998. A rank of 104

is given to the hottest year and a rank

of 1 is given to the coolest year. Table

2 shows how the average temperature

(in degrees Fahrenheit) over three year

periods compared to a long-term average

of temperature. This shows that for the

1996–1998 time period, average

temperatures in Kentucky were close to

the long-term average and Ohio’s

temperatures were only half a degree

below average. The 1996–1998 period

had slightly warmer average

temperatures than the 1995–1997 time

period and slightly cooler average

temperatures than the 1993–1995 time

period. During the 1995–1997 and

1993–1995 time periods, monitoring

data show that the area was in violation

of the 1-hour ozone standard. During the

1997–1999 time period, temperatures

averaged about a half degree above

average in Kentucky and were average

in Ohio. Ozone monitoring data for this

time period show that the area was in

attainment of the 1-hour ozone

standard. These temperatures are

comparable to the average during the

1987–1989 time period used to classify

the area as a moderate ozone

nonattainment area under the Clean Air

Act.

Table 1 shows how the temperature

rankings have varied from year to year.

Note that 1998 and 1999 are ranked

higher than 1995, when the area last

experienced two exceedances at a

monitor during a single year.

This data shows that the weather

conditions were not unusually favorable

towards lower levels of ozone, and that

the area has continued to attain the 1-

hour standard even with weather that

was slightly warmer than average and

comparable to when the area was

originally classified as moderate

nonattainment. The combination of this

analysis of the meteorological

conditions in conjunction with the

existence of permanent and enforceable

emission reductions demonstrates that

the improvement in air quality is due to

permanent and enforceable emission

reductions.

In light of this information, EPA

believes it is reasonable not to require

photochemical grid modeling. Threeyear averaging addresses variations in

meteorological conditions, and the

commenter has presented no evidence

that the three year attainment period

was unusually favorable. We have

looked at the weather and determined

that it was not unusually favorable. It is

important to note that, redesignation is

not intended as an absolute guarantee

that the area will never monitor future

violations. This is what maintenance

plan contingency measures are designed

to address and correct.

Comment 11: The commenter

contends that the plan does not

demonstrate maintenance for ten years

as required by sections 107(d)(3)(E)(iv)

and 175A of the Clean Air Act. EPA

proposes to find maintenance not on the

basis of modeling, as required by the

CAA, but on the presumption that the

area will always be in attainment if

emissions remain at or below estimated

1996 levels. The commenter states that

such a presumption is not rationally

supportable. The area violated the

NAAQS in the 1995–1997 period.

Therefore, the commenter reasons,

holding emissions to 1996 levels does

not assure attainment.

The commenter avers that, even

assuming the emission reductions

predicted by the states for 1999 and

subsequent years, there is no technical

analysis in the record demonstrating

that those emission levels will assure

maintenance. Such a demonstration

requires photochemical grid modeling

that accounts for the kinds of weather

conditions and transport impacts

experienced on appropriately chosen

design days. See 65 FR 6711 (rejecting

37888 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

3Expected exceedances take into actual

monitored exceedances and account for days where

there is missing data or the data was invalidated.

4See ‘‘Use of Actual Emissions in Maintenance

Demonstrations for Ozone and CO Nonattainment

Areas,’’ D. Kent Berry, Acting Director, Air Quality

Management Division, November 30, 1993.

use of rollback analysis for making

attainment and nonattainment

predictions). According to the

commenter, until EPA approves such a

modeling demonstration, it cannot

approve the maintenance plan.

The commenter argues that the

history of this nonattainment area

shows that EPA cannot rationally

assume that emission levels correlate

with ozone levels in a linear or

consistent fashion; the area did not

violate the ozone NAAQS in the 1992–

94 period, but did subsequently violate

the NAAQS when VOC emissions were

supposedly lower.

Response 11: We believe that the

monitoring shows that the current level

of emissions is adequate to keep the area

in attainment. Table 3 summarizes the

number of exceedances at each monitor

in the area from 1987 through 1999.

This Table shows the number of

expected exceedances for each monitor

for each year. A monitor has to measure

more than 1.0 average expected

exceedances over a three year period to

cause a violation of the 1-hour ozone

standard.3 See 40 CFR 50.9 and

Appendix H. The Table shows that the

number of exceedances have decreased

from what was monitored in the late

1980’s. The violation monitored during

the 1995–1997 time period was just

slightly above the ozone standard and

significant reductions in emissions have

occurred to bring this level down to

attainment. Likewise, emissions have

decreased from the 1992–1994 time

period, increasing the likelihood that

the area will maintain the 1-hour ozone

standard.

Since 1996 all of the monitors in

operation recorded 1.0 exceedance or

less each year. This averages out to less

than 1.0 exceedance on average per

year. This is clearly not a violation of

the 1-hour ozone standard. The last time

a monitor recorded more than 1.0

exceedance was in 1995, when two

exceedances were recorded at two of the

monitoring sites in the area. The

number of monitored exceedances has

decreased as the amount of emissions

has decreased.

TABLE 3.—1-HOUR OZONE NAAQS EXPECTED EXCEEDANCES IN THE CINCINNATI-HAMILTON, OHIO-KENTUCKY AREA

FROM 1987 TO 1999.

Site/County 87 88 89 90 91 92 93 94 95 96 97 98 99

Middletown/Butler ....................... 0.0 6.5 0.0 2.0 0.0 0.0 1.0 0.0 2.0 1.0 1.0 0.0 1.0

Hamilton/Butler ........................... 0.0 4.1 0.0 0.0 0.0 0.0 1.0 0.0 1.0 0.0 0.0 0.0 1.0

389 Main St./Clermont ............... 2.0 10.4 0.0 0.0 0.0 0.0 0.0 .......... .......... .......... .......... .......... ..........

4430 SR 222/Clermont .............. .......... .......... .......... .......... .......... .......... .......... 1.0 1.0 0.0 0.0 1.0 1.0

11590 Grooms Road/Hamilton .. 2.0 5.0 1.0 1.0 4.0 0.0 0.0 0.0 0.0 0.0 1.0 1.0 0.0

6950 Ripple Road/Hamilton ....... 2.0 0.0 0.0 1.0 1.1 0.0 0.0 0.0 1.0 0.0 0.0 0.0 0.0

Cincinnati (0019)/Hamilton ......... 3.0 5.0 1.2 0.0 .......... .......... .......... .......... .......... .......... .......... .......... ..........

Cincinnati (0037)/Hamilton ......... .......... .......... .......... 0.0 0.0 0.0 0.0 0.0 1.0 0.0 0.0 0.0 ..........

Cincinnati (0040)/Hamilton ......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... 0.0

Lebanon (416 S. East St.)/Warren ........................................... 2.0 8.2 0.0 4.0 3.0 0.0 0.0 2.0 2.0 0.0 .......... .......... ..........

Warren ........................................ .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... 1.0 1.0 0.0

Boone ......................................... 0.0 2.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0

Campbell .................................... 2.0 7.0 1.1 0.0 0.0 0.0 1.0 0.0 0.0 1.0 0.0 0.0 0.0

Kenton ........................................ 2.0 14.1 0.0 0.0 0.0 0.0 0.0 0.0 1.0 1.0 0.0 1.0 0.0

The area has monitored attainment for

both the 1996–1998 and 1997–1999 time

periods. This shows that the current

level of emissions is adequate to keep

the area in attainment during weather

conditions as in past years associated

with higher levels of ozone. In addition,

the CAA does not presume that the area

will always be in attainment. The CAA

provides that if the area were to violate

the 1-hour ozone standard, then the

contingency measures in the

maintenance plan would be triggered.

This would reduce the ozone precursor

emissions and bring the area back into

attainment.

Our policy allows areas to prepare an

attainment emissions inventory

corresponding to when the area

monitored attainment. It also allows

areas to project maintenance by showing

that future emissions will stay below the

attainment emissions inventory.4 The

attainment inventory estimates 1996

emissions, which is within the 1996–

1998 time period of attainment.

Emissions are projected to remain below

this level for the next 10 years.

Holding emissions at or below the

level of the attainment inventory is

adequate to reasonably assure continued

maintenance of the 1-hour ozone

standard. Reductions in ozone precursor

emissions have been shown in

photochemical grid modeling to reduce

ambient ozone concentrations in areas

across the country. Photochemical grid

modeling is not needed to show that the

area has attained or will maintain the

standard. The air quality will be

maintained by keeping below the

attainment emissions level, continuing

to monitor ozone levels, and having

maintenance plan contingency measures

available. Reductions in ozone

precursor emissions have brought many

areas across the country into attainment.

Many of the ozone areas for which

EPA has approved ozone redesignations

have used an emissions inventory

approach to demonstrate maintenance.

The majority of areas have continued to

maintain the 1-hour ozone standard

using that approach. See redesignations

cited in Response 10. Emissions

inventories can be used to project

maintenance of the 1-hour ozone

standard. As previously stated, if the

attainment level of emissions is not

adequate to protect against a violation

and the area monitors a violation, then

the contingency measures in the

maintenance plan would be triggered to

bring the area back into attainment.

There are ozone monitors located in the

Cincinnati-Hamilton area to ensure that

the area’s air quality remains below the

level set by the 1-hour ozone standard.

The comment that EPA should not

assume that ‘‘emission levels correlate

with ozone levels in some sort of linear

Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37889

5Table 1 shows that the average temperature

conditions in the area were worse in 1998 and 1999

than in 1995.

or consistent fashion’’ is in effect a

recommendation that future

maintenance be tested assuming

meteorological conditions that are more

conducive to ozone formation than the

conditions that have prevailed in 1996

to 1999. No other factor is known to

introduce an inconsistency between

ozone and emissions. The commenter

protests that the area has not submitted

a maintenance demonstration based on

ozone modeling, and implicitly urges

that the modeling assume 1995-type

conditions, or worse.5 However, if a

prospective maintenance demonstration

were performed with an ozone

photochemical model following EPA

guidance, the modeling would be

allowed to use episode days from the

1996–1998 period, not 1995. It is highly

likely, if not certain, that the outcome

would be a conclusion that attainment

will be preserved through the required

10-year period. EPA believes this

modeling guidance is reasonable and

appropriate.

Comment 12: EPA has not fully

approved the Stage II vapor recovery

program in the Ohio portion of the

nonattainment area. EPA partially

disapproved the program because it can

be suspended at the discretion of the

Ohio EPA Director without obtaining

EPA approval. 59 FR 52911 (October 20,

1994). The commenter contends that

because of this discretionary suspension

provision, EPA cannot credit any

emissions reductions to the Ohio Stage

II program, either with respect to the

attainment demonstration or the

maintenance demonstration.

Response 12: EPA does not agree with

the conclusion of the comment. EPA can

give credit for the emissions reductions

because the Stage II program has been

implemented in all areas where it was

required in the state, including the

Cincinnati-Hamilton area. EPA partially

approved the Ohio Stage II plan because

it contained all of the required criteria

for an approvable Stage II plan.

Furthermore, because EPA approved the

program into the state SIP, EPA has the

authority to enforce the program

provisions, if necessary.

The director’s discretion provision,

which states that the OEPA Director

may suspend the program at will, was

disapproved by EPA. EPA’s initial

concern regarding this provision was

over the potential for the OEPA Director

to not implement any one or all phases

of the program without first seeking

EPA approval. The Ohio EPA Director,

however, has not chosen to suspend the

Stage II program in the CincinnatiHamilton area. EPA has also established

through discussions with OEPA

enforcement staff that the Stage II

program is in operation in the Ohio

portion of the Cincinnati-Hamilton area

and has been for a number of years.

EPA has reviewed the state’s efforts to

implement the Stage II program in detail

at 62 FR 61241 (November 17, 1997).

We believe that Ohio understands the

need for VOC emission reductions from

all source categories and has

implemented the Stage II program along

with other VOC reduction measures to

meet not only the spirit but also the

letter of the ozone attainment plan.

Since this measure is part of the

Federally approved SIP and is being

implemented, it is providing creditable

emissions reductions contributing to

attainment.

The Memorandum entitled, ‘‘State

Implementation Plan Requirements for

Areas Submitting Requests for

Redesignation to Attainment of the

Ozone and Carbon Monoxide (CO)

NAAQS on or after November 15,

1992,’’ Michael Shapiro, Acting

Assistant Administrator for Air and

Radiation, dated October 14, 1994,

states:

‘‘Stage II vapor recovery remains an

applicable requirement for moderate

ozone nonattainment areas until EPA

promulgates on-board vapor recovery

regulations. Section 202(a)(6) of the Act

provides that once onboard regulations

are promulgated, the Stage II regulations

required under section 182(b)(3) are no

longer applicable for moderate ozone

nonattainment areas. Therefore, final

redesignation for a moderate

nonattainment area that occurs after

EPA’s onboard regulations are

promulgated does not have to include a

Stage II SIP control program.’’

On October 20, 1994, EPA partially

approved and partially disapproved

Ohio’s SIP revision for implementation

of the Stage II program (59 FR 52911).

As stated in that rulemaking action,

with the exception of paragraph 3745–

21–09(DDD)(5), EPA considers Ohio’s

Stage II program to fully satisfy the

criteria set forth in the EPA guidance

document for such programs entitled,

‘‘Enforcement Guidance for Stage II

Vehicle Refueling Control Programs.’’

EPA promulgated onboard rules on

April 6, 1994 (59 FR 16292); therefore,

pursuant to section 202(a)(6) of the

CAA, Stage II is no longer required, and

a fully approved program is not a

prerequisite for redesignation. However,

the state has opted to include reductions

in VOCs from the Stage II program as

part of its maintenance plan. Only those

Stage II provisions previously approved

by EPA are part of the CincinnatiHamilton area maintenance plan. See

also similar determinations by EPA in

the redesignations of Cleveland (60 FR

31433, June 15, 1995; and 61 FR 20458,

May 7, 1996) and Dayton (60 FR 22289,

May 5, 1995).

Comment 13: The commenter argues

that under 42 U.S.C. 7410(a)(2)(D)(i) the

SIP must include provisions to prohibit

emissions that will contribute

significantly to nonattainment in, or

interfere with maintenance by, any

other state. The commenter asserts that

EPA has specifically determined that

emissions from Ohio contribute

significantly to ozone nonattainment in

downwind states, and has issued a SIP

call to require additional NOX controls

in the Ohio SIP to address this problem.

Ohio has not yet adopted the required

SIP provisions. The commenter claims

that EPA seeks to gloss over this failure

by noting that the NOX SIP call has been

stayed by the D.C. Circuit. The

commenter complains that EPA has

proposed to allow various Ozone

Transport Region States to claim credit

for SIP call reductions, notwithstanding

the stay. In the Washington, D.C. area,

for example, the commenter asserts that

EPA is proposing to approve an

attainment demonstration that relies

heavily on ozone reductions that will

follow from compliance with the NOX

SIP call. The commenter argues that in

that context, EPA discounted the

significance of the court ordered stay,

asserting that the SIP call rule was still

on the books, and therefore must be

given credence. 64 FR 70460, 70464,

70464–70465 (1999). The commenter

states that EPA cannot rationally allow

downwind states to claim credit for SIP

call reductions, while allowing upwind

states to avoid adoption of measures

required for such reductions.

Response 13: For a number of

independent reasons, we view

submissions under the NOX SIP call as

not being applicable requirements for

purposes of evaluating a redesignation

request. First, because the NOX SIP call

has been stayed, submissions under it

were not due at the time the

redesignation requests were submitted.

Established EPA policy holds that when

evaluating a redesignation request, EPA

does not consider whether the state has

met requirements that come due after

submittal of a complete redesignation

request. See page 4 of the Calcagni

Memorandum. This ground alone would

be dispositive. EPA also believes that

even if the revisions under the NOX SIP

call were due prior to the redesignation

requests, other grounds support

considering these revisions to not be

applicable requirements.

37890 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

The requirement to submit revisions

under the NOX SIP call continues to

apply to areas after redesignation to

attainment. Therefore, the state remains

obligated to submit these revisions even

after redesignation, and would risk

sanctions for failure to do so. While

redesignation of an area to attainment

enables the area to avoid further

compliance with the requirements of

section 110 and part D that are linked

with an area’s nonattainment status, the

NOX SIP call requirements apply to both

nonattainment and maintenance

(attainment) areas. The NOX SIP call

submissions are required not to address

air quality in the designated CincinnatiHamilton ozone nonattainment area, but

to reduce emissions affecting downwind

areas. They are not requirements linked

with a particular nonattainment area’s

designation and classification.

The requirements linked with a

particular area’s designation and

classification are the requirements that

EPA believes are the relevant measures

to evaluate in reviewing a redesignation

request. Thus, even if it had been due

prior to the filing of the redesignation

request, the NOX SIP call submission

requirement could be construed not to

be an applicable requirement for

purposes of redesignation. This policy is

consistent with EPA’s existing

redesignation policies regarding

conformity and oxygenated fuels

requirements, as well as with section

184 ozone transport requirements. See

Reading, Pennsylvania proposed and

final rulemakings, 6l FR 53174–53176

(October 10, 1996), 62 FR 24826 (May 7,

1997); Cleveland-Akron-Lorain, Ohio

final rulemaking 61 FR 20458 (May 7,

1996); and Tampa, Florida final

rulemaking at 60 FR 62748, 62741

(December 7, 1995).

Comment 14: The commenter states

that the CAA explicitly requires the SIP

to include a preconstruction permit

program for new major sources and

modifications within the nonattainment

area (NSR program). 42 U.S.C.

7410(a)(2)(C), 7502(c)(4)&(5), 7503,

7511, 7511(a)(2)(C), and (b)(5). EPA has

not fully approved an NSR program for

the Ohio portion of the nonattainment

area. According to the commenter, this

is not an optional program that EPA can

simply waive if not ‘‘needed’’ for

attainment. The Clean Air Act sets out

the NSR mandate as an explicit SIP

requirement, in addition to the

requirement for demonstrating timely

attainment.

Response 14: EPA believes that the

Cincinnati-Hamilton area may be

redesignated to attainment

notwithstanding the lack of a fullyapproved NSR program meeting the

requirements of the 1990 Clean Air Act

amendments. This view has been set

forth by EPA in a memorandum from

Mary Nichols, Assistant Administrator

for Air and Radiation, dated October 14,

1994, entitled ‘‘Part D New Source

Review (part D NSR) Requirements for

Areas Requesting Redesignation to

Attainment.’’ Also, see Grand Rapids,

Michigan redesignation (61 FR 31834–

31837, June 21, 1996). This policy has

also been applied in redesignations of

Youngstown-Warren, Columbus,

Canton, Cleveland-Akron-Lorain,

Dayton-Springfield, Toledo, Preble

County, Columbiana County, and

Clinton County, Ohio, as well as Detroit,

Michigan.

EPA believes that its decision not to

insist on a fully approved NSR program

as a prerequisite to redesignation is

justifiable as an exercise of the Agency’s

general authority to establish de

minimis exceptions to statutory

requirements. See Alabama Power Co. v.

Costle, 636 F.2d 323, 360–61 (D.C. Cir.

1979). Under Alabama Power Co. v.

Costle, EPA has the authority to

establish de minimis exceptions to

statutory requirements where the

application of the statutory

requirements would be of trivial or no

value environmentally. In this context,

the issue presented is whether EPA has

the authority to establish an exception

to the requirements of section

107(d)(3)(E) that EPA must fully

approve a SIP meeting all of the

requirements applicable to an area

under section 110 and part D of title I

of the Clean Air Act before

redesignating the area. Plainly, the NSR

provisions of section 110 and part D are

requirements that were applicable to the

Cincinnati-Hamilton area at the time of

the submission of the request for

redesignation. Thus, on its face, section

107(d)(3)(E) would seem to require that

the State submit and EPA fully approve

a part D NSR program meeting the

requirements of the Clean Air Act before

an area could be redesignated to

attainment. Under EPA’s de minimis

authority, however, the agency may

establish an exception to an otherwise

plain statutory requirement if its

fulfillment would be of little or no

environmental value. Therefore, it is

necessary to determine what would be

achieved by insisting that there be a

fully-approved part D NSR program in

place prior to the redesignation of the

Cincinnati-Hamilton area.

For the following reasons, EPA

believes that requiring the adoption and

full approval of a part D NSR program

prior to redesignation would not be of

significant environmental value in this

case. Ohio assumed that NSR would not

apply after redesignation to attainment,

and therefore, assumed source growth

factors based on projected growth in the

economy and in the area’s population.

Ohio has demonstrated that

maintenance of the ozone NAAQS will

occur even if the emission reductions

expected to result from the part D NSR

program do not occur. The emission

projections made by Ohio to

demonstrate maintenance of the

NAAQS considered growth in point

source emissions (along with growth for

other source categories) premised on the

assumption that the Prevention of

Significant Deterioration (PSD) program,

rather than the part D NSR, would be in

effect during the maintenance period. (It

should be noted that the growth factors

assumed may even be overestimates

under PSD, which would restrain source

growth through the application of best

available control technology.) Under

NSR, significant point source emissions

growth would not occur. Thus, contrary

to the assertion of the commenter, Ohio

has demonstrated that there is no need

to retain the part D NSR as an operative

program in the SIP during the

maintenance period in order to provide

for continued maintenance of the

NAAQS. (If this demonstration had not

been made, NSR would have had to

have been retained in the SIP as an

operative program since it would have

been needed to maintain the ozone

standard.)

The other purpose that requiring the

full approval of a part D NSR program

might serve is to ensure that NSR would

become a contingency provision in the

maintenance plan required for these

areas by section 107(d)(3)(E)(iv) and

175A(d). These provisions require that

for an area to be redesignated to

attainment, it must receive full approval

of a maintenance plan containing ‘‘such

contingency provisions as the

Administrator deems necessary to

assure that the State will promptly

correct any violation of the standard

which occurs after the redesignation of

the area as an attainment area. Such

provisions shall include a requirement

that the State will implement all

measures with respect to the control of

the air pollutant concerned which were

contained in the SIP for the area before

redesignation of the area as an

attainment area.’’ Based on this

language, it is apparent that whether an

approved NSR program must be

included as a contingency provision

depends on whether it is a ‘‘measure’’

for the control of the pertinent air

pollutants.

The term ‘‘measure’’ is not defined in

section 175A(d) and Congress utilized

Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37891

that term differently in different

provisions of the Clean Air Act with

respect to the PSD and NSR permitting

programs. For example, in section

110(a)(2)(A), Congress requires that SIPs

include ‘‘enforceable emission

limitations and other control measures,

means, or techniques * * * as may be

necessary or appropriate to meet the

applicable requirements of the Act.’’ In

section 110(a)(2)(C), Congress requires

that SIPs include ‘‘a program to provide

for the enforcement of the measures

described in subparagraph (A), and

regulation of the modification and

construction of any stationary source

within the areas covered by the plan as

necessary to assure that NAAQS are

achieved, including a permit program as

required in parts C and D.’’ If the term

‘‘measures’’ as used in section 110

(a)(2)(A) and (c) had been intended to

include PSD and NSR there would have

been no point to requiring that SIPs

include both measures and

preconstruction review under parts C

and D (PSD or NSR). Unless ‘‘measures’’

referred to something other than

preconstruction review under parts C

and D, the reference to preconstruction

review programs in section 110(a)(2)(C)

would be rendered mere surplusage.

Thus, in section 110(a)(2) (A) and (C), it

is apparent that Congress distinguished

‘‘measures’’ from preconstruction

review. On the other hand, in other

provisions of the Clean Air Act, such as

section 161, Congress appeared to

include PSD within the scope of the

term ‘‘measures.’’

EPA believes that the fact that

Congress used the undefined term

‘‘measure’’ differently in different

sections of the Clean Air Act is germane.

This indicates that the term is

susceptible to more than one

interpretation and that EPA has the

discretion to interpret it in a reasonable

manner in the context of section 175A.

Inasmuch as Congress itself has used the

term in a manner that excluded PSD and

NSR from its scope, EPA believes it is

reasonable to interpret ‘‘measure,’’ as

used in section 175A(d), not to include

NSR. That this is a reasonable

interpretation is further supported by

the fact that PSD, a program that is the

corollary of part D NSR for attainment

areas, goes into effect in lieu of part D

NSR when an area is redesignated to

attainment. This distinguishes NSR

from other required programs under the

Clean Air Act, such as inspection and

maintenance programs, which have no

corollary for attainment areas.

Moreover, EPA believes that those other

required programs are clearly within the

scope of the term ‘‘measure.’’

EPA is not suggesting that NSR and

PSD are equivalent, but merely that they

are the same type of program. The PSD

program is a requirement in attainment

areas and is designed to allow new

source permitting, yet contains adequate

provisions to protect the NAAQS. If any

information, including preconstruction

monitoring, indicates that an area is not

continuing to meet the NAAQS after

redesignation to attainment, the

requirements of 40 CFR part 51,

appendix S (Interpretive Offset Rule) or

a 40 CFR 51.165(b) program would

apply.

EPA believes that in any area that is

designated or redesignated as

attainment under section 107, but

experiences violations of the NAAQS,

these provisions should be interpreted

as requiring major new or modified

sources to obtain VOC emission offsets

of at least a 1:1 ratio, as presumptive

that 1:1 NOX offsets are necessary. See

October 14, 1994 memorandum from

Mary Nichols entitled, ‘‘Part D New

Source Review (part D NSR)

Requirements for Areas Requesting

Redesignation to Attainment.’’ In

addition, permits to install cannot be

issued under the PSD program unless

the applicant can demonstrate that the

increased emissions from the new or

modified source will not result in a

violation of the NAAQS.

EPA’s logic in treating part D NSR in

this manner does not mean that other

applicable part D requirements,

including those that have been

previously met and previously relied

upon in demonstrating attainment,

could be eliminated without an analysis

demonstrating that maintenance would

be protected. As noted above, Ohio has

demonstrated that maintenance would

be protected with PSD in effect, rather

than part D NSR. Thus, EPA is not

permitting part D NSR to be removed

without a demonstration that

maintenance of the standard will be

achieved.

The position taken in this action is

consistent with EPA’s current national

redesignation policy. This policy

permits redesignation to proceed

without otherwise required NSR

programs having been fully approved

and converted to contingency

provisions, provided that the area

demonstrates, as has been done in this

case, that maintenance will be achieved

with the application of PSD rather than

part D NSR.

Comment 15: A commenter states that

EPA cannot lawfully or rationally grant

a NOX waiver to the Kentucky portion

of the nonattainment area because EPA

has not determined that NOX reductions

are unnecessary throughout the entire

nonattainment area; and EPA has in fact

proposed to approve NOX RACT as a

contingency measure in the Ohio

portion of the nonattainment area; and

EPA has determined that additional

NOX reductions are needed in Ohio to

prevent ozone violations in downwind

states. The commenter asserts that

EPA’s approval of a NOX waiver under

these circumstances, and its failure to

require NOX RACT regionwide, is

irrational and violates the CAA.

Response 15: We disagree with the

commenter. EPA has determined that

additional NOX reductions are

unnecessary throughout the entire

nonattainment area as both the

Kentucky and Ohio portions have three

years of quality-assured ozone

monitoring data indicating attainment.

Based on this data, the area has

demonstrated in accordance with

section 182(f)(1)(A) that additional

reductions of NOX will not contribute to

attainment of the 1-hour ozone

standard. Consequently, EPA is

approving NOX RACT waivers for both

the Ohio and Kentucky portions of the

Cincinnati-Hamilton nonattainment

area.

The area’s contingency plan focuses

initially on implementation of VOC

precursor controls in the event of

control inadequacies. Moreover, the

redesignation proposal specifically

states that, although NOX RACT is listed

in the Ohio portion of the contingency

plan, such measures will be

implemented only ‘‘if a violation of the

ozone NAAQS is recorded in the

Cincinnati[-Hamilton] Moderate

Nonattainment Area after

implementation of the selected VOC

control measures’’ in the contingency

plan.

The CAA requires EPA to view NOX

waivers in a narrow manner. In general,

section 182(f) provides that waivers

must be granted if states show that

reducing NOX within a nonattainment

area would not contribute to attainment

of the ozone NAAQS within the same

nonattainment area. Only the role of

local NOX emissions on local attainment

of the ozone standard is considered in

nonattainment areas outside an ozone

transport region. The role of NOX in

regional attainment is addressed

separately under section 110(a)(2)(D) of

the Clean Air Act, which prohibits one

state from significantly polluting

another state’s downwind areas.

Comment 16: The commenter

questions the accuracy, completeness

and appropriateness of Ohio’s emissions

inventory. See 1997 citizen Audit report

of the area’s compliance with the ozone

standard. The commenter finds that the

37892 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

use of ‘‘previous emissions estimates’’ to

project emissions ten years into the

future for the purpose of showing

‘‘Maintenance Projections’’ for the SIP

to be highly questionable, claiming that

there is no demonstration that the VOC

and NOX are stable or are being reduced.

The commenter states that they have

compared emission inventory data in a

number of Title V applications and draft

OEPA permits (to the extent they have

been made available), expecting those

applications and permits to provide the

most current VOC and NOX data.

The commenter claims to have found

large discrepancies between past

emission data and current Title V

permit to operate applications. For

example, Celotex is identified as a major

source for VOCs in Ohio EPA’s

Statement for Basis for Title V Permit.

The commenter says that the Title V

permit to operate indicates VOCs

totaling over 100 tons per year, with no

controls, but that the emission

inventories used for past SIPs list at

most just over 10 tons per year. The

commenter states that there are no VOC

controls on this facility. If past

inventories are correct, then this facility

is or will be emitting significantly more

VOCs, which will affect ozone

formation. If past inventories didn’t

include all the VOCs (and reviews of the

files indicate this is the case) then the

commenter believes the conformity

budget is inaccurate.

The Formica facility is another

example cited by the commenter, who

states that this facility’s Title V

application estimated maximum

emission rate for two coaters is over

3000 tons per year each. The emission

inventories have varied from a high of

264 tons for one unit and a low of 11.87

for the other. The commenter contends

that the Ohio EPA’s local air agency has

been having the facility redo stack tests

‘‘to show compliance’’ but hasn’t done

so for the past two years.

The commenter claims to have found

similar discrepancies at other facilities,

like Morton International and

Cincinnati Specialties, and that some

facilities do not have all their permits.

The commenter complains that facilities

are being allowed to repeat stack tests

over and over or are not being required

to retest at capacity, because they aren’t

running at capacity. The commenter

believes that the Title V program is

years behind schedule and many nonTitle V permits have expired or are

being held as ‘‘non-priorities’’.

The commenter overall finds a lack of

an effective permitting and enforcement

program which would assure the

accuracy of the data used in the SIP, and

thus assure compliance that the 1-hour

standard can be met in future years. For

more information on permit and

enforcement failures, the commenter

refers to the Sierra Club, OPIRG, Ohio

Citizen Action and Rivers Unlimited

petitions, supplemental petitions,

reports and documentation submitted to

EPA to revoke Ohio’s authority to

implement the Clean Air Act and other

environmental laws.

The commenter contends that new

source review for modifications is not

being done, and new source permitting

has not been done properly for utilities.

The commenter also claims to find that

major modifications have been made at

Cincinnati Specialties and Celotex

without undergoing NSR. The

commenter claims that this issue needs

to be systematically reviewed at Ohio

EPA before considering a SIP or

redesignation request adequate.

Response 16: We reviewed the 1990

base year emissions inventory for Ohio

that was used to develop the emissions

projections and approved it in a

rulemaking dated December 7, 1995 (60

FR 62737). This inventory was

thoroughly reviewed and deemed

adequate after an opportunity for public

comment. The point source emissions

were based on permit information

available at that time. Emissions from

individual point sources can vary from

year to year due to shutdowns, changes

in production and other factors. In

addition, the emissions inventory was

prepared to estimate what a typical

summer day’s emissions were during

1990 instead of showing what the

maximum emissions were that a source

could potentially emit during that

summer. This is more representative of

what is actually occurring than using

the maximum potential emissions.

Emissions inventory projections were

made following EPA guidance for

projecting emissions inventories. This

guidance allows areas to project their

actual emissions based on projected

changes in industrial employment. This

is a reasonable factor to use to project

future emissions for a large number of

sources.

In any event, the ozone SIP for the

Cincinnati-Hamilton area has been fully

approved. The Title V permitting

program is not an applicable SIP

requirement and there is no requirement

for EPA to evaluate and reassess

individual permits for enforceable

emission limits prior to redesignation of

the area. The redesignation criteria do

not include reviewing permitting

programs and enforcement programs to

ascertain whether or not any

implementation deficiencies exist. Any

failures that may be occurring are not

undermining attainment, and any

deficiencies that are confirmed can be

addressed and corrected in other

contexts. The maintenance plan is also

designed to assure that attainment of the

standard will be preserved.

As noted in EPA’s Response to

Comment 5, EPA in response to the

petitions cited by the commenter, is

currently conducting a comprehensive

review of the implementation issues

raised by the petitions. Any

implementation deficiencies that EPA

finds as a result of this review will be

addressed and corrected in other

contexts unrelated to the redesignation

procedure that is the subject of this

rulemaking. The issues relating to

alleged standard-setting, permit and

enforcement failures raised by

commenters are not required to be

resolved in the context of a

redesignation action. Also see Response

14.

Comment 17: The commenter notes

that Stage II Vapor Recovery is assumed

to be in place to demonstrate conformity

for the metropolitan planning

organization’s Transportation

Improvement Program (TIP) for the

approval and funding of highway

projects. The commenter states that

Ohio EPA’s local air agency has stated

in the past that they check Stage II

Vapor Recovery systems when installed,

but when citizens complained about

leaking and broken hoses, the air agency

would not investigate, saying that they

had checked compliance when the

systems were installed. The commenter

alleges that the failure to effectively

enforce Stage II and subsequently

suspend Stage II, invalidates the TIP

conformity analysis and makes it more

likely that the region will exceed the

ozone standard.

The commenter declares that

transportation conformity analysis does

not include induced travel and

exempted projects which were in the

‘‘pipeline’’ prior to the 1991 Intermodal

Surface Transportation Efficiency Act

(ISTEA) legislation. Now that such

projects as the Butler Regional Highway

are coming online, the transportation

sector will be increasing its emissions.

Response 17: See Response 12.

Transportation Plans must conform with

the SIP requirements before they can be

found adequate. Conformity of

transportation plans is not a

requirement for redesignation of an area

from nonattainment to attainment, and

thus these comments are not germane to

this rule. Conformity requirements will

continue to apply to the CincinnatiHamilton area once it is redesignated to

attainment subject to the requirement to

have a maintenance plan.

Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37893

Comment 18: The commenter argues

that redesignation would mislead the

public into thinking that Cincinnati’s air

does not pose a serious health risk. The

commenter states that in May 1997, EPA

issued ‘‘A Special Alert for People with

Asthma and Other Respiratory Problems

in the Greater Cincinnati/Northern

Kentucky Metropolitan Area.’’ EPA

warns that negative health effects are

‘‘of concern to everyone who works,

plays or spends time outdoors, even the

healthiest people.’’ The commenter

claims that there is no reason to believe

that the air quality is any safer now than

it was two years ago.

The commenter claims that in 1999

there were three violations of the 1-hour

standard and 77 violations of the new 8-

hour standard, according to Hamilton

County Department of Environmental

Services (as of September 12, 1999). The

commenter contends that smog alerts

were also issued for 27 days, including

one eight-consecutive-day period from

June 6 to 13; and two five-consecutiveday periods from July 16 to 20 and July

22 to 26. All together, the commenter

contends, this represents nearly one

third of the summer when it was unsafe

for people to breathe the air.

The CAA requires the SIPs to make

RFP. The term ‘‘ ‘reasonable further

progress’ ’’ means such annual

incremental reductions in emissions of

the relevant air pollutant as are required

by this part or may reasonably be

required by the Administrator for the

purpose of ensuring attainment of the

applicable national ambient air quality

standard by the applicable date.’ The

commenter states that 13 exceedances of

the standard show that the RFP plan

was not adequate and still isn’t

adequate.

The commenter says that Ohio should

be undertaking the measures outlined in

the contingency plan since the area has

not yet achieved the standard.

According to the commenter,

continued efforts are needed to meet the

1-hour standard and that standard must

be met before redesignation. In July

1997, EPA revised the NAAQS for

ozone. The commenter states that EPA

is currently phasing out and replacing

the 1-hour ozone standard with the new

eight-hour standard to protect against

longer exposure periods. The 1-hour

standard will be revoked when an area

has achieved three consecutive years of

air quality data meeting the 1-hour

standard. Further, the commenter

argues, EPA states that an area meets the

ozone NAAQS if there is not more than

one day per year when the highest

hourly value exceeds the threshold. The

commenter claims that EPA’s policy

refers to the ‘‘standard’’ not the

technical issues of a violation being

three exceedances of the standard.

Response 18: We disagree with the

commenter. As shown above in Table 3

(Response 11), air quality monitors

show that the area is attaining the 1-

hour ozone standard. Ozone alerts were

called in the area to alert the public to

take steps to reduce air pollution when

the area was either monitoring high

levels of ozone or had the potential to

start monitoring high levels of ozone.

Calling an ozone alert does not

necessarily mean that the standard was

exceeded on a particular day. The

summary of monitoring data in

Response 11 shows that the number of

monitored exceedances was much lower

than the number of alerts called. The air

quality is measured by ozone monitors

and the data collected is compared to

the level of the ozone standard. See 40

CFR 50.9 and Appendix H. The number

of ozone alerts called is not a part of this

determination. Also, see Responses 2,

11, 19 and 20.

The RFP plan was approved as

adequate. See 63 FR 4188 (January 28,

1998) and 63 FR 67586 (December 8,

1998). Emissions reductions provided

by this plan have helped the area to

attain the 1-hour ozone standard.

Comment 19: The commenter believes

that EPA should not take any action on

the redesignation until the federal

courts resolve the current legal

questions surrounding the new

standard. In any event, the commenter

states, EPA and the health community

recognize that the old standard is

unsafe. While the commenter agrees that

EPA’s interpretation of the letter of the

law may qualify the area to be in

attainment based on the old standard, it

believes that this ruling would distort

the spirit and purpose of the law.

Response 19: EPA’s action to

redesignate the Cincinnati-Hamilton

area to attainment under the 1-hour

standard is not affected by the 8-hour

standard or any legal questions

surrounding the status of the 8-hour

standard. EPA currently has a legal

obligation under the Clean Air Act to act

on redesignation requests. See section

107(d)(3)(D) (‘‘Within 18 months of

receipt of a complete State redesignation

submittal, the Administrator shall

approve or deny such redesignation.’’).

See also Response 2 above.

Comment 20: The commenter

maintains that the Cincinnati-Hamilton

area continues to exceed the 1-hour

ozone standard. In 1999, the commenter

states, the standard has been exceeded

three times, in 1998 four times, in 1997

three times and in 1996 three times. The

commenter alleges that the standard has

been exceeded 10 times in the three

years being evaluated under this

request, and that it has been exceeded

three times since the three years being

used for the purpose of showing

attainment.

The commenter contends that the

region was supposed to attain the

standard in 1996, yet three years later

the standard is still being exceeded. The

commenter believes that reclassifying

the area as a serious nonattainment area

would result in significant and valid

steps to actually reduce ozone

precursors. The commenter alleges that

continued failure to meet the standard

three years after the required date shows

that further steps must be taken.

Response 20: We evaluate attainment

of the 1-hour ozone standard by

comparing the data at each individual

monitor to the 1-hour ozone standard.

This data is summarized in Response

11. Table 3 shows that the total number

of exceedances measured at each

individual monitor averages less than

1.0 over the 1996–1998 and 1997–1999

time periods. EPA’s interpretation of the

1-hour ozone standard, long embodied

in its regulations, allows a monitor in

the area to exceed the standard as long

as it does not average more than 1.0 per

year over a three year period. See 40

CFR 50.9 and Appendix H for EPA’s

interpretation of the 1-hour ozone

standard. This shows that the area has

attained the standard.

The commenter has erroneously

combined the data from several

monitors in order to imply that the area

is not attaining the 1-hour ozone

standard. This is inconsistent with

EPA’s long-standing regulations

concerning the definition of compliance

and how we interpret the 1-hour ozone

standard. See also Response to

Comment 21.

Comment 21: The commenter states

that a strict reading of the CAA (section

181(a)(5)(B)) requires that not more than

1 exceedance of the national ambient air

quality standard level for ozone may

have occurred in the area in the year

preceding the extension year (for

extensions of the deadline). The

Cincinnati-Hamilton area, the

commenter states, has far more than one

exceedance per year.

The commenter contends that it is

now three years after the deadline for

achieving the standard, and that the

region is now well overdue for

‘‘Reclassification Upon Failure to

Attain.’’ The CAA requires that ‘‘Within

6 months following the applicable

attainment date (including any

extension thereof) for an ozone

nonattainment area, the Administrator

shall determine, based on the area’s

37894 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

design value (as of the attainment date),

whether the area attained the standard

by that date. Except for any Severe or

Extreme Area, any area that the

Administrator finds has not attained the

standard by that date shall be

reclassified by operation of law in

accordance with table 1 of subsection (a)

to the higher of—(i) the next higher

classification for the area, or (ii) the

classification applicable to the area’s

design value as determined at the time

of the notice required under

subparagraph (b).’’

Response 21: We disagree with the

commenter. Section 181(a)(5)(B) of the

CAA governs what an area has to meet

in order to receive an attainment date

extension. This area has met this part of

the CAA and has been given an

extension of the attainment date twice.

See final rule (62 FR 61241, November

17, 1997), effective December 17, 1997;

and direct final rule (63 FR 14623,

March 26, 1998), effective May 26, 1998.

These two consecutive extensions

extended the attainment date to

November 15, 1998. The area attained

the standard by this new deadline. Also

see air quality summary in Response 11.

The area was not reclassified to a higher

classification since it qualified for an

extension of the attainment date, having

attained the 1-hour ozone standard by

the deadline set by the applicable

extension. In this rulemaking EPA is

making this determination of attainment

by the applicable attainment date, and

the area is not subject to reclassification.

Comment 22: The commenter alleges

that the large number of exceedances of

the eight-hour standard are another

indication that the regional ozone levels

must be reduced. The plan for reduction

should be put in place now, not just to

meet regulatory deadlines but to protect

public health.

Response 22: The 8-hour ozone

standard is not the subject of this

rulemaking. The Cincinnati-Hamilton

area is being evaluated only with

reference to the 1-hour ozone standard.

See Response 2 and Response 19.

Comment 23: The commenter

contends that the SIP relied on

voluntary actions such as those

proposed by the Regional Ozone

Coalition and funded by Congestion

Mitigation and Air Quality

Improvement program (CMAQ) (under

ISTEA) funds, and that the voluntary

actions fail to meet the CAA

requirements of being permanent and

enforceable. Furthermore, the

commenter expresses the fear that the

region will no longer qualify for CMAQ

funds if it is redesignated, and that the

region will no longer have access to

funds which have been used since 1996

to reduce the vehicle component of

ozone precursors, including reduced

bus fares. The reduced bus fares have

been effective in increasing ridership

and would likely need to continue

unless such funding comes from another

source. The commenter says it has no

indication that these funds have been

replaced or will come from other

sources.

Response 23: We disagree with the

commenter. The voluntary actions were

not used to meet the requirement that

the improvement in air quality was due

to permanent and enforceable measures.

Permanent and enforceable measures

listed in the proposed rulemaking, such

as the Federal Motor Vehicle Emissions

Control Program, have provided the

emissions reductions that have brought

the area into attainment. The CAA does

not prohibit areas from using voluntary

measures to further reduce air pollution.

The State of Ohio receives CMAQ

funding from the United States

Department of Transportation for all of

the ozone and carbon monoxide

nonattainment and maintenance areas

in Ohio. The CMAQ funds are allocated

to the states based on the allocation

formula in the Transportation Equity

Act for the 21st century passed by

Congress during 1998. The CincinnatiHamilton area currently receives CMAQ

funding based on its status as a

moderate ozone nonattainment area.

In general, the CMAQ funding

allocation for a state is dependent on the

number and size of the ozone and

carbon monoxide nonattainment and

maintenance areas in the State. The

allocation does change slightly when an

area goes from an ozone nonattainment

area to an ozone maintenance area.

Ozone maintenance areas are eligible for

CMAQ funding. The allocation of

funding to the State for a maintenance

area is factored at a slightly lower level

than for a nonattainment area; however,

the funding is still significant. Changing

the status of the area to an attainment

area with a maintenance plan does not

eliminate CMAQ funding. EPA believes

that the CMAQ funds available to Ohio

for the Cincinnati-Hamilton area will be

sufficient to continue to support many

of the existing air quality projects that

are currently being funded.

Comment 24: The commenter opposes

the redesignation because, as the

commenter states, most of the permits

the commenter has reviewed do not

have enforceable limits. The commenter

believes most ‘‘compliance’’ is

determined by calculations based on

unverified data, and that facilities are

not required to perform stack tests to

show compliance with VOC limits. (It

refers to files on Cincinnati Specialties

for example.) The commenter points out

that the CAA states ‘‘Such plan

provisions shall include enforceable

emission limitations.’’

Response 24: EPA approved

enforceable limits into the SIP for

Cincinnati Specialties located at 501

Murray Road, Cincinnati, Ohio. See 61

FR 18256, dated April 25, 1996. The

rule containing these emissions limits is

found at SIP section 3745–21–09(YY).

These limits apply to Cincinnati

Specialties.

The ozone SIP for the CincinnatiHamilton area has been fully approved,

and there are no criteria requiring EPA

to evaluate and assess Title V permit

programs or review individual permits

for enforceable emission limits prior to

redesignation of the area. The SIP

approval and redesignation criteria do

not include evaluating permitting

programs to ascertain whether or not

any deficiencies exist. Whatever failures

may be occurring are not undermining

attainment, and any deficiencies that are

confirmed can be addressed and

corrected in other contexts, including a

finding of failure to implement under

section 173(b) of the CAA or requiring

a SIP revision under section 110(a)(2)(H)

of the CAA. The maintenance plan is

also designed to assure that attainment

will be preserved.

Also see Responses 5, 14, and 16.

Comment 25: What is the NAAQS?

What is the ‘‘one-hour ozone standard’’?

Response 25: Air quality standards—

known as National Ambient Air Quality

Standards (NAAQS)—set national

standards for acceptable concentrations

of specific pollutants in outdoor air that

threaten public health and the

environment across broad regions of the

country and are emitted in relatively

large quantities by a variety of sources.

EPA has established air quality

standards for six pollutants or classes of

pollutants, including ground level

ozone. The 1-hour ozone standard is set

at an ambient concentration of 0.12

parts per million and is averaged over

a 1-hour time period.

Ozone monitors in the CincinnatiHamilton area are in operation from late

spring to early fall, the period of highest

ozone concentrations. These monitors

continuously sample and analyze the air

for ozone. This data is averaged for each

hour during the day and compared to

the NAAQS. For further information see

65 FR 3633–3634.

Comment 26: Is this redesignation to

a better or worse level?

Response 26: Redesignating an area

from nonattainment to attainment

changes its official listing to indicate

that the area has better air quality which

is meeting the relevant NAAQS.

Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37895

Comment 27: Why is EPA

‘‘determining that certain attainment

demonstration requirements, along with

certain other related requirements of

part D of Title 1 of the Clean Air Act not

applicable to the Cincinnati-Hamilton

area’’? Also, 65 FR 3632 of the proposed

rule states that, ‘‘EPA has interpreted

the general provisions of subpart 1 of

part D of Title 1 (sections 171 and 172)

so as not to require the submission of

SIP revisions concerning RFP,

attainment demonstrations, or

contingency measures.’’

Response 27: These measures were

intended to bring an area into

attainment of the NAAQS. EPA has

interpreted certain of these

requirements as no longer being

applicable in the Cincinnati-Hamilton

area since it is in fact monitoring

attainment of the 1-hour ozone NAAQS.

See proposed rulemaking at 65 FR 3630.

Also, see May 10, 1995 memorandum

from John S. Seitz, Director, Office of

Air Quality Planning and Standards,

entitled ‘‘Reasonable Further Progress,

Attainment Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard,’’ and

Response 7, above, in this rulemaking.

Comment 28: Page 3636 of the

proposed rulemaking states that ‘‘EPA

believes, however, that in the context of

the particular circumstances of this

redesignation, it is permissible to depart

from that policy and instead accept a

commitment to implement these RACT

rules as contingency measures in the

maintenance plan rather than require

full adoption and approval of the rules

prior to approval of the redesignation.’’

Why do this and what exactly are these

particular circumstances?

Response 28: The proposed rule at 65

FR 3636–3637 contains a discussion of

the reasoning and circumstances. Also,

see Response 7, above, in this

rulemaking.

Comment 29: The 15 percent plan was

mentioned on page 3636 of the

proposed rulemaking. Why would

reductions of only 15 percent be

required in the area?

Response 29: Section 182(b)(1) of the

Clean Air Act specifically requires a

15% reduction for areas classified as

moderate and above. These reductions

helped to bring the area into attainment.

Additional reductions are not now

needed to reach attainment of the 1-

hour ozone standard since the area is

attaining the 1-hour ozone standard.

Also, see Response to Comment 27 in

this rulemaking.

Comment 30: How exactly does the

Administrator determine that NOX

reductions would not contribute to

attainment?

Response 30: For the CincinnatiHamilton area this determination is

based on air quality monitoring data

showing that the area is already

attaining the 1-hour ozone standard, and

therefore it does not need any additional

NOX reductions to attain the 1-hour

ozone standard. Also, see discussion

and responses elsewhere in this

rulemaking.

III. What Actions Are We Taking?

We are determining that the

Cincinnati-Hamilton moderate ozone

nonattainment area has attained the

NAAQS for ozone by its (extended)

attainment date. The CincinnatiHamilton area includes the Ohio

Counties of Hamilton, Butler, Clermont,

and Warren and the Kentucky Counties

of Boone, Campbell, and Kenton. On the

basis of this determination, EPA is also

determining that certain attainment

demonstration requirements (section

172(c)(1)), along with certain other

related requirements, of part D of Title

1 of the CAA, specifically the section

172(c)(9) contingency measure

requirement, the section 182(b)(1)

attainment demonstration requirement

and the 182(j) multi-state attainment

demonstration requirement are not

applicable to the Cincinnati-Hamilton

area.

We are approving an exemption from

the NOX requirement as provided for in

section 182(f) for the CincinnatiHamilton area.

We are approving the redesignation of

the Cincinnati-Hamilton area to

attainment of the 1-hour ozone standard

and we are approving the section 175A

maintenance plans as revisions to the

Ohio and Kentucky SIPs. The States of

Ohio and Kentucky have satisfied all of

the necessary requirements of the Act.

IV. Why Are We Taking These Actions?

We are making a determination that

the area has attained the 1-hour ozone

standard by its (extended) attainment

date and has continued to be in

attainment since that time. EPA is

basing this determination upon three

years of complete, quality-assured,

ambient air monitoring data for the

1996–1998 ozone seasons that

demonstrate that the ozone NAAQS has

been attained in the entire CincinnatiHamilton area. EPA also is determining

that based on the most recent 3 years of

data from 1997–1999, the area has

continued to attain the standard. EPA

believes it is reasonable to interpret

provisions regarding attainment

demonstrations, along with certain other

related provisions, so as not to require

SIP submissions, if an ozone

nonattainment area subject to those

requirements is monitoring attainment

of the ozone standard (i.e., attainment of

the NAAQS is demonstrated with three

consecutive years of complete, quality

assured, air quality monitoring data).

See May 10, 1995, memorandum from

John Seitz (referenced in Response 27)

and Sierra Club v. EPA, 99 F.3d 1551

(10th Cir. 1996).

Section 182(f) establishes NOX

requirements for ozone nonattainment

areas which require adoption and

implementation of control measures for

major stationary sources of NOX similar

to those which apply to major stationary

sources of VOCs. One of the control

requirements applicable to major

stationary sources of VOCs is RACT.

Therefore, pursuant to section 182(f) of

the CAA, RACT is a requirement that is

also applicable to major stationary

sources of NOX in an ozone

nonattainment area. However,

subsection 182(f)(1)(A) further provides

that these requirements shall not apply

to a nonattainment area outside an

ozone transport region if the

Administrator determines that

additional NOX reductions would not

contribute to attainment of the ozone

NAAQS in that area. Under EPA

guidance, a request for an exemption

from the NOX requirements may be

based upon the most recent three years

of monitoring data.

An EPA memorandum from John S.

Seitz, Director, Office of Air Quality

Planning and Standards, dated February

8, 1995, entitled ‘‘Section 182(f)

Nitrogen Oxides (NOX) ExemptionsRevised Process Criteria,’’ decouples the

section 182(f) exemptions from NOX

transport issues. The memorandum

states that for an area that did not

implement section 182(f) NOX

requirements, but did attain the ozone

standard as demonstrated by ambient air

monitoring data (consistent with 40 CFR

part 58 and recorded in EPA’s AIRS), it

is apparent that the additional NOX

reductions required by section 182(f)

would not contribute to attainment of

the ozone NAAQS in that area.

Because the Cincinnati-Hamilton area

is currently demonstrating compliance

with the ozone NAAQS based on three

years of complete, quality-assured,

ambient monitoring data, EPA is

exempting the area from the section

182(f) NOX requirements. As discussed

in detail above, EPA is also determining

that the Cincinnati-Hamilton area has

attained the 1-hour ozone NAAQS.

Ambient air monitoring data for the

1996 to 1998 ozone seasons demonstrate

that the ozone NAAQS has been

attained in the area. In addition, 1999

37896 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

ambient air monitoring data show that

the area continues to attain the

standard. Because the CincinnatiHamilton area has attained the ozone

NAAQS, without benefit of additional

NOX reductions, EPA has determined

that this exemption request satisfies the

NOX waiver test set forth in subsection

182(f)(1)(A).

We are approving the maintenance

plan as a revision to the SIP because it

meets the requirements of section 175A

and 107(d). We are also redesignating

the area because three years of ambient

air monitoring data demonstrate that the

ozone NAAQS has been attained, the

area has continued in attainment, and

the area has satisfied the other

requirements for redesignation.

V. What Are the Effects of These

Actions?

These actions determine that the area

attained the 1-hour ozone standard by

its (extended) attainment date

(November 15, 1998) and that the

requirements of section 172(c)(1),

182(b)(1) and 182(j) concerning the

submission of the ozone attainment

demonstration and the requirements of

section 172(c)(9) concerning

contingency measures for reasonable

further progress (RFP) or attainment are

not applicable to the area. This final

action also exempts the area from

section 182(f) NOX requirements for

moderate ozone nonattainment areas.

However, all NOX controls previously

approved for the area by EPA must

continue to be implemented. No

additional NOX measures are required

for purposes of attaining the 1-hour

standard.

The redesignation changes the official

designation of the Ohio Counties of

Butler, Warren, Clermont, and Hamilton

and the Kentucky Counties of Boone,

Campbell, and Kenton from

nonattainment to attainment for the 1-

hour ozone standard. It also approves as

a SIP revision and puts into place plans

for maintaining the 1-hour ozone

standard for the next 10 years. These

plans include contingency measures to

correct any future violations of the 1-

hour ozone standard.

The 1-hour ozone standard mobile

source budgets for the Ohio portion of

the area for the purposes of

transportation conformity are now 37.9

tons per summer day VOC and 52.3 tons

per summer day NOX for the year 2010.

The mobile source budgets for the

purposes of transportation conformity

for the Kentucky portion of the area are

now 5.83 tons per summer day VOC and

15.13 tons per summer day NOX for the

year 2010.

VI. Approving SIP Revisions in Audit

Law States

Nothing in this action should be

construed as making any determination

or expressing any position regarding

Kentucky’s audit privilege and penalty

immunity law Kentucky—‘‘KRS 224.01–

040’’ or its impact upon any approved

provision in the SIP, including the

revision at issue here. The action taken

herein does not express or imply any

viewpoint on the question of whether

there are legal deficiencies in this or any

other Clean Air Act program resulting

from the effect of Kentucky’s audit

privilege and immunity law. A state

audit privilege and immunity law can

affect only state enforcement and cannot

have any impact on Federal

enforcement authorities. EPA may at

any time invoke its authority under the

Clean Air Act, including, for example,

sections 113, 167, 205, 211 or 213, to

enforce the requirements or prohibitions

of the state plan, independently of any

state enforcement effort. In addition,

citizen enforcement under section 304

of the Clean Air Act is likewise

unaffected by a state audit privilege or

immunity law.

VII. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled ‘‘Regulatory Planning and

Review.’’

B. Executive Order 13045

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) Is

determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866; and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to Executive

Order 13045 because it does not involve

decisions intended to mitigate

environmental health or safety risks.

C. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly

affects or uniquely affects the

communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments.

If EPA complies by consulting,

Executive Order 13084 requires EPA to

provide to the Office of Management

and Budget, in a separately identified

section of the preamble to the rule, a

description of the extent of EPA’s prior

consultation with representatives of

affected tribal governments, a summary

of the nature of their concerns, and a

statement supporting the need to issue

the regulation.

In addition, Executive Order 13084

requires EPA to develop an effective

process permitting elected officials and

other representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. This action

does not involve or impose any

requirements that affect Indian Tribes.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

D. Executive Order 13132

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612 (Federalism) and 12875

(Enhancing the Intergovernmental

Partnership). Executive Order 13132

requires EPA to develop an accountable

process to ensure ‘‘meaningful and

timely input by State and local officials

in the development of regulatory

policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’ Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with state

and local officials early in the process

of developing the proposed regulation.

Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37897

EPA also may not issue a regulation that

has federalism implications and that

preempts state law unless the Agency

consults with State and local officials

early in the process of developing the

proposed regulation.

This rule will not have substantial

direct effects on the states, on the

relationship between the national

government and the states, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, because it

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 Clean

Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

E. Executive Order 12898

Executive Order 12898 (59 FR 7629,

February 16, 1994) instructs EPA to

address, as appropriate,

disproportionately high and adverse

health or environmental effects on

minority and low-income populations.

As set forth in its response to Comment

3, above, EPA has found that this

rulemaking is consistent with Executive

Order 12898 and does not impose any

disproportionately high and adverse

human health or environmental effects

on minority and low-income

populations.

F. Regulatory Flexibility

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This rule will not have a significant

impact on a substantial number of small

entities because SIP approvals under

section 110 and subchapter I, part D of

the Clean Air Act do not create any new

requirements but simply approve

requirements that the state is already

imposing. In addition, approval of NOX

exemption requests and determination

of attainment do not create any new

requirements, but instead allow the

states to avoid the imposition of the

indicated requirements. Redesignation

of an area to attainment under section

107(d)(3)(E) of the Clean Air Act 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. Therefore, because the Federal

SIP approval does not create any new

requirements, I certify that this action

will not have a significant economic

impact on a substantial number of small

entities. Moreover, due to the nature of

the Federal-State relationship under the

Clean Air Act, preparation of flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA,

427 U.S. 246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

G. Unfunded Mandates

Under sections 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to state,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either state, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under state or local law, and imposes no

new requirements. Accordingly, no

additional costs to state, local, or tribal

governments, or to the private sector,

result from this action.

H. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to 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). This rule

will be effective July 5, 2000.

I. National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use ‘‘voluntary

consensus standards’’ (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, and

in the absence of a prior existing

requirement for the state to use

voluntary consensus standards (VCS),

EPA has no authority to disapprove a

SIP submission for failure to use VCS.

It would thus be inconsistent with

applicable law for EPA, when it reviews

a SIP submission, to use VCS in place

of a SIP submission that otherwise

satisfies the provisions of the Clean Air

Act. 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.

J. Other

EPA finds that there is good cause for

this determination of attainment, NOX

exemption, and redesignation to

attainment and SIP revision to become

effective 15 days after publication

because a 30-day delayed effective date

is unnecessary due to the nature of these

actions, which relieve the area from

certain Clean Air Act requirements that

would otherwise apply to it. The 15-day

effective date for this redesignation and

other related actions is authorized under

both 5 U.S.C. 553(d)(l), 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

37898 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

30 days after publication ‘‘as otherwise

provided by the agency for good cause

found and published with the rule.’’

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to any SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and regulatory requirements.

Ozone SIPs are designed to satisfy the

requirements of part D of the Act and

provide for attainment and maintenance

of the ozone NAAQS. This final

redesignation should not be interpreted

as authorizing the State to delete, alter,

or rescind any of the VOC or NOX

emission limitations and restrictions

contained in the approved ozone SIP.

Changes to ozone SIP VOC regulations

rendering them less stringent than those

contained in the EPA approved plan

cannot be made unless a revised plan

for attainment and maintenance is

submitted to and approved by EPA.

Unauthorized relaxations, deletions,

and changes could result in both a

finding of nonimplementation (section

173(b) of the Act) and in a SIP

deficiency call made pursuant to section

110(a)(2)(H) of the Act.

K. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by August 18, 2000.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Nitrogen oxides,

Ozone, Reporting and recordkeeping

requirements, Volatile organic

compounds.

40 CFR Part 81

Environmental protection, Air

pollution control.

Authority: 42 U.S.C. 7401–7671q.

Dated: May 26, 2000.

Francis X. Lyons,

Regional Administrator, Region 5.

Dated: June 5, 2000.

John H. Hankinson, Jr.,

Regional Administrator, Region 4.

Chapter 1, title 40 of the Code of

Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart S—Kentucky

2. Section 52.920 is amended by

adding a new entry to the table in

paragrpah (e) in numerical order to read

as follows:

§ 52.920 Identification of plan.

* * * * *

(e) EPA-approved nonregulatory

provisions.

EPA-APPROVED KENTUCKY NONREGULATORY PROVISIONS

Appendix Title/subject State effective

date EPA approval date Federal Register notice

*******

20 ........................ Northern Kentucky Ozone Maintenance

Plan.

...................... July 5, 2000. ............................ [Insert FR page citation]

3. Section 52.930 is amended by

adding paragraphs (g), (h), and (i) to

read as follows:

§ 52.930 Control strategy ozone.

* * * * *

(g) The redesignation request

submitted by the Commonwealth of

Kentucky, on October 29, 1999, for the

Kentucky portion of the CincinnatiHamilton moderate interstate ozone

nonattainment area from nonattainment

to attainment was approved on July 5,

2000. The mobile source budgets for the

Kentucky portion of the area for the

purposes of transportation conformity

are now 5.83 tons per summer day of

volatile organic compounds and 15.13

tons per summer day of nitrogen oxides

for the year 2010.

(h) Determination—EPA is

determining that as of July 5, 2000, the

Kentucky portion of the CincinnatiHamilton ozone nonattainment area

(which includes the Counties of Boone,

Kenton, and Campbell) has attained the

1-hour ozone standard and that the

attainment demonstration requirements

of section 182(b)(1), 182(j), and

172(c)(1), along with the section

172(c)(9) contingency measure

requirements, do not apply to the area.

(i) Approval—EPA is approving an

exemption from the requirements

contained in section 182(f) of the Clean

Air Act. This approval exempts Boone,

Kenton, and Campbell counties in

Kentucky from the NOX related general

conformity provisions; nonattainment

NSR for new sources and modifications

that are major for NOX; NOX RACT; and

the requirement for a demonstration of

compliance with the enhanced I/M

performance standard for NOX.

4. Section 52.937 is amended by

adding paragraph (b) to read as follows:

§ 52.937 Review of new sources and

modifications.

* * * * *

(b) Approval—EPA is approving the

section 182(f) oxides of nitrogen (NOX)

reasonably available control technology

(RACT) exemption for the Kentucky

portion of the Cincinnati-Hamilton

ozone (O3) moderate nonattainment

area. This approval exempts this area

from implementing NOX RACT on major

sources of NOX.

Subpart KK—Ohio

5. Section 52.1885 is amended by

revising paragraph (x) and adding

paragraph (a)(14), (b)(11), (dd) and (ee)

to read as follows:

§ 52.1885 Control strategy: Ozone.

(a) * * *

(14) Approval—EPA is approving the

ozone maintenance plan for the Ohio

portion of the Cincinnati-Hamilton area

Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations 37899

that was received by EPA on July 2,

1999, and completed on December 22,

1999. The mobile source budgets for the

Ohio portion of the area for the

purposes of transportation conformity

are now 37.9 tons per summer day of

volatile organic compounds and 52.3

tons per summer day of nitrogen oxides

for the year 2010.

(b) * * *

(11) Butler, Clermont, Hamilton, and

Warren Counties.

* * * * *

(x) Approval—EPA is approving

requests submitted by the State of Ohio

on March 18, November 1, and

November 15, 1994, for exemption from

the requirements contained in section

182(f) of the Clean Air Act. This

approval exempts the following

counties in Ohio from the NOX related

general and transportation conformity

provisions; nonattainment area NSR for

new sources and modifications that are

major for NOX: Clinton, Columbiana,

Delaware, Franklin, Jefferson, Licking,

Mahoning, Preble, Stark, and Trumbull.

This approval also exempts the

following counties in Ohio from the

NOX related general and transportation

conformity provisions; nonattainment

area NSR for new sources and

modifications that are major for NOX;

NOX RACT; and a demonstration of

compliance with the enhanced I/M

performance standard for NOX:

Ashtabula, Cuyahoga, Geauga, Lake,

Lorain, Medina, Portage, and Summit.

* * * * *

(dd) Determination—EPA is

determining that, as of July 5, 2000, the

Ohio portion of Cincinnati-Hamilton

ozone nonattainment area (which

includes the Counties of Butler,

Clermont, Hamilton and Warren) has

attained the 1-hour ozone standard and

that the attainment demonstration

requirements of section 182(b)(1), 182(j),

and 172(c)(1), along with the section

172(c)(9) contingency measure

requirements, do not apply to the area.

(ee) Approval—EPA is approving an

exemption from the requirements

contained in section 182(f) of the Clean

Air Act. This approval exempts Butler,

Clermont, Hamilton, and Warren

counties in Ohio from the NOX related

general conformity provisions; the

nitrogen oxides nonattainment NSR for

new sources and modifications that are

major for NOX; NOX RACT; and a

demonstration of compliance with the

enhanced automobile inspection and

maintenance performance standard for

NOX.

* * * * *

6. Section 52.1879 is amended by

revising paragraph (e) and adding

paragraph (g) to read as follows:

§ 52.1879 Review of new sources and

modifications.

* * * * *

(e) Approval—EPA is approving

requests submitted by the State of Ohio

on March 18, November 1, and

November 15, 1994, for exemption from

the requirements contained in section

182(f) of the Clean Air Act. This

approval exempts the following

counties in Ohio from the NOX related

general and transportation conformity

provisions and nonattainment area NSR

for new sources and modifications that

are major for NOX: Clinton, Columbiana,

Delaware, Franklin, Jefferson, Licking,

Mahoning, Preble, Stark, and Trumbull.

This approval also exempts the

following counties in Ohio from the

NOX related general conformity

provisions; nonattainment area NSR for

new sources and modifications that are

major for NOX; NOX RACT; and a

demonstration of compliance with the

enhanced I/M performance standard for

NOX: Ashtabula, Cuyahoga, Geauga,

Lake, Lorain, Medina, Portage, and

Summit.

* * * * *

(g) Approval—EPA is approving an

exemption from the requirements

contained in section 182(f) of the Clean

Air Act. This approval exempts Butler,

Clermont, Hamilton, and Warren

counties in Ohio from nonattainment

NSR for new sources and modifications

that are major for NOX.

* * * * *

PART 81—[AMENDED]

1. The authority citation for part 81

continues to read as follows:

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

2. Section 81.336 is amended by

revising the ozone table entry for the

Cincinnati-Hamilton Area to read as

follows:

§ 81.336 Ohio.

* * * * *

OHIO—OZONE

[1-hour standard]

Designated area

Designation Classification

Date 1 Type Date 1 Type

*******

Cincinnati-Hamilton Area:

Butler County ................................................................... 6/19/00 Attainment.

Clermont County .............................................................. 6/19/00 Attainment.

Hamilton County ............................................................... 6/19/00 Attainment.

Warren County ................................................................. 6/19/00 Attainment.

*******

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

* * * * * 3. Section 81.318 is amended by

revising the ozone table entry for the

Cincinnati-Hamilton Area to read as

follows:

§ 81.318 Kentucky

* * * * *

37900 Federal Register / Vol. 65, No. 118 / Monday, June 19, 2000 / Rules and Regulations

OHIO—OZONE

[1-hour standard]

Designated area

Designation Classification

Date 1 Type Date 1 Type

Cincinnati-Hamilton Area:

Boone County .................................................................. 6/19/00 Attainment.

Campbell County .............................................................. 6/19/00 Attainment.

Kenton County ................................................................. 6/19/00 Attainment.

*******

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

* * * * *

[FR Doc. 00–15294 Filed 6–16–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 82

[FRL–6718–2]

Protection of Stratospheric Ozone

AGENCY: Environmental Protection

Agency.

ACTION: Notice of acceptability.

SUMMARY: This document expands the

list of acceptable substitutes for ozonedepleting substances (ODS) under the

U.S. Environmental Protection Agency’s

(EPA) Significant New Alternatives

Policy (SNAP) program.

EFFECTIVE DATE: June 19, 2000.

ADDRESSES: Information relevant to this

document is contained in Air Docket A–

91–42, Central Docket Section, South

Conference Room 4, U.S. Environmental

Protection Agency, 401 M Street, SW,

Washington, DC 20460, telephone: (202)

260–7548. The docket may be inspected

between 8:00 a.m. and 5:30 p.m.

weekdays. As provided in 40 CFR part

2, a reasonable fee may be charged for

photocopying.

FOR FURTHER INFORMATION CONTACT:

Anhar Karimjee at (202) 564–2683 or fax

(202) 565–2095, U.S. Environmental

Protection Agency, Stratospheric

Protection Division, Mail Code 6205J,

Washington, DC 20460. Overnight or

courier deliveries should be sent to the

office location at 501 3rd Street, NW,

Washington, DC, 20001. The

Stratospheric Protection Hotline can be

reached at (800) 296–1996. Further

information can be found at EPA’s

Ozone Depletion World Wide Web site

at ‘‘http://www.epa.gov/ozone/title6/

snap/’’.

SUPPLEMENTARY INFORMATION:

I. Section 612 Program

A. Statutory Requirements

B. Regulatory History

II. Listing of Acceptable Substitutes

A. Refrigeration and Air Conditioning

B. Foam Blowing

III. Additional Information

Appendix A—Summary of Acceptable

Decisions

I. Section 612 Program

A. Statutory Requirements

Section 612 of the Clean Air Act

authorizes EPA to develop a program for

evaluating alternatives to ozonedepleting substances. EPA refers to this

program as the Significant New

Alternatives Policy (SNAP) program.

The major provisions of section 612 are:

• Rulemaking—Section 612(c)

requires EPA to promulgate rules

making it unlawful to replace any class

I (chlorofluorocarbon, halon, carbon

tetrachloride, methyl chloroform,

methyl bromide, and

hydrobromofluorocarbon) or class II

(hydrochlorofluorocarbon) substance

with any substitute that the

Administrator determines may present

adverse effects to human health or the

environment where the Administrator

has identified an alternative that (1)

reduces the overall risk to human health

and the environment, and (2) is

currently or potentially available.

• Listing of Unacceptable/Acceptable

Substitutes—Section 612(c) also

requires EPA to publish a list of the

substitutes unacceptable for specific

uses. EPA must publish a corresponding

list of acceptable alternatives for

specific uses.

• Petition Process—Section 612(d)

grants the right to any person to petition

EPA to add a substance to or delete a

substance from the lists published in

accordance with section 612(c). The

Agency has 90 days to grant or deny a

petition. Where the Agency grants the

petition, EPA must publish the revised

lists within an additional 6 months.

• 90-day Notification—Section 612(e)

requires EPA to require any person who

produces a chemical substitute for a

class I substance to notify the Agency

not less than 90 days before new or

existing chemicals are introduced into

interstate commerce for significant new

uses as substitutes for a class I

substance. The producer must also

provide the Agency with the producer’s

unpublished health and safety studies

on such substitutes.

• Outreach—Section 612(b)(1) states

that the Administrator shall seek to

maximize the use of federal research

facilities and resources to assist users of

class I and II substances in identifying

and developing alternatives to the use of

such substances in key commercial

applications.

• Clearinghouse—Section 612(b)(4)

requires the Agency to set up a public

clearinghouse of alternative chemicals,

product substitutes, and alternative

manufacturing processes that are

available for products and

manufacturing processes which use

class I and II substances.

B. Regulatory History

On March 18, 1994, EPA published

rulemaking (59 FR 13044) which

described the process for administering

the SNAP program and issued EPA’s

first acceptability lists for substitutes in

the major industrial use sectors. These

sectors include: refrigeration and air

conditioning; foam blowing; solvents

cleaning; fire suppression and explosion

protection; sterilants; aerosols;

adhesives, coatings and inks; and

tobacco expansion. These sectors

compose the principal industrial sectors

that historically consumed the largest

volumes of ozone-depleting compounds.

As described in this original rule for

the SNAP program, EPA does not

believe that rulemaking procedures are

required to list alternatives as

acceptable with no limitations. Such

listings do not impose any sanction, nor

do they remove any prior license to use

a substance. Consequently, by this

notice EPA is adding substances to the

list of acceptable alternatives without

first requesting comment on new

listings.