[Federal Register Volume 74, Number 177 (Tuesday, September 15, 2009)]
[Rules and Regulations]
[Pages 47414-47422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21818]



[[Page 47413]]

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Part IV





Environmental Protection Agency





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40 CFR Parts 52 and 81



Approval and Promulgation of Implementation Plans and Designation of 
Areas for Air Quality Planning Purposes; Ohio; Redesignation of the 
Cleveland-Akron-Lorain Area to Attainment for Ozone; Final Rule

Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / 
Rules and Regulations

[[Page 47414]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2009-0221; FRL-8952-1]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Ohio; Redesignation of the 
Cleveland-Akron-Lorain Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking several related actions affecting the Cleveland-
Akron-Lorain, Ohio 1997 8-hour ozone nonattainment area. EPA is making 
a determination under the Clean Air Act (CAA) that the Cleveland-Akron-
Lorain area (Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, 
Portage, and Summit Counties) has attained the 1997 8-hour ozone 
National Ambient Air Quality Standard (NAAQS). This determination is 
based on quality-assured ambient air quality monitoring data for the 
2006-2008 ozone seasons that demonstrate that the 8-hour ozone NAAQS 
has been attained in the area. Preliminary 2009 air quality data show 
that the area continues to attain the 8-hour ozone standard. EPA is 
approving, as a revision to the Ohio State Implementation Plan (SIP), 
the state's plan for maintaining the 8-hour ozone NAAQS through 2020 in 
the area. EPA is approving a request from the state of Ohio to 
redesignate the Cleveland-Akron-Lorain area to attainment of the 8-hour 
ozone NAAQS. EPA is approving the 2002 base year emissions inventory 
for the Cleveland-Akron-Lorain area as meeting the requirements of the 
CAA. EPA is approving Ohio's 15 percent (15%) Rate of Progress (ROP) 
plan as meeting the requirements of the CAA for the 1-hour ozone 
standard. EPA is also approving a waiver, for the Cleveland-Akron-
Lorain area, from the oxides of nitrogen (NO<INF>X</INF>) Reasonably 
Available Control Technology (RACT) requirements of section 182(f) of 
the CAA in relation to the 1997 8-hour ozone NAAQS. Finally, EPA finds 
adequate and is approving the state's 2012 and 2020 volatile organic 
compound (VOC) and oxides of nitrogen (NO<INF>X</INF>) Motor Vehicle 
Emission Budgets (MVEBs) for the Cleveland-Akron-Lorain area.

DATES: This final rule is effective September 15, 2009.

ADDRESSES: EPA has established a docket for this action: Docket ID No. 
EPA-R05-OAR-2009-0221. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically in www.regulations.gov or in hard copy at the 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. We recommend that you telephone Kathleen D'Agostino, 
Environmental Engineer, at (312) 886-1767 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-1767, 
<a href="/cdn-cgi/l/email-protection#2f4b4e48405c5b46414001444e5b47434a4a416f4a5f4e01484059"><span class="__cf_email__" data-cfemail="afcbcec8c0dcdbc6c1c081c4cedbc7c3cacac1efcadfce81c8c0d9">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

Table of Contents

I. What is the Background for This Rule?
II. What Comments Did We Receive on the Proposed Rule?
III. What Action is EPA Taking?
IV. Statutory and Executive Order Reviews

I. What is the Background for This Rule?

A. What is the General Background Information?

    On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone 
standard of 0.08 parts per million (ppm). EPA published a final rule 
designating and classifying areas under the 1997 8-hour ozone NAAQS on 
April 30, 2004 (69 FR 23857).
    On March 12, 2008, EPA promulgated a more stringent 8-hour ozone 
standard of 0.075 ppm. This rule was published in the Federal Register 
on March 27, 2008 (73 FR 16436). It is expected that EPA will designate 
nonattainment areas under the 2008 8-hour ozone standard in 2010. 
Today's approval of Ohio's SIP revision addresses only the status of 
the Cleveland-Akron-Lorain area with respect to the 1997 8-hour ozone 
standard.
    The background for today's actions with respect to the 1997 ozone 
standard is discussed in detail in EPA's June 12, 2009, proposal (74 FR 
27957). In that rulemaking, we noted that, under EPA regulations at 40 
CFR part 50, the 8-hour ozone standard is attained when the three-year 
average of the annual fourth-highest daily maximum 8-hour average ozone 
concentrations is less than or equal to 0.08 ppm. (See 69 FR 23857 
(April 30, 2004) for further information). The data completeness 
requirement is met when the average percent of days with valid ambient 
monitoring data is greater than 90%, and no single year has less than 
75% data completeness, as determined in accordance with Appendix I of 
Part 50.
    Under the CAA, EPA may redesignate nonattainment areas to 
attainment if sufficient complete, quality-assured data are available 
to determine that the area has attained the standard and if it meets 
the other CAA redesignation requirements in section 107(d)(3)(E).
    On March 17, 2009 and April 24, 2009, the Ohio EPA submitted a 
request to redesignate the Cleveland-Akron-Lorain area to attainment of 
the 8-hour ozone standard. The request included three years of 
complete, quality-assured data for the period of 2006 through 2008, 
indicating the 8-hour NAAQS for ozone had been achieved. The area 
continues to attain the standard based on preliminary data available in 
2009. The June 12, 2009, proposed rule provides a detailed discussion 
of how Ohio met this and other CAA requirements. Under EPA's proposal, 
final action to redesignate the Cleveland-Akron-Lorain area to 
attainment was contingent on final approval of Ohio rules satisfying 
the requirement for volatile organic compound (VOC) RACT. Such final 
approval was published on July 28, 2009 at 74 FR 37171.

B. What are the Impacts of the December 22, 2006, and June 8, 2007, 
United States Court of Appeals Decisions Regarding EPA's Phase 1 
Implementation Rule?

    On December 22, 2006, in South Coast Air Quality Management Dist. 
v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit 
vacated EPA's Phase 1 Implementation Rule for the 8-hour ozone standard 
(69 FR 23951, April 30, 2004). 472 F.3d 882 (D.C. Cir. 2006). On June 
8, 2007, in response to several petitions for rehearing, the D.C. 
Circuit Court clarified that the Phase 1 Rule was vacated only with 
regard to those parts of the rule that had been

[[Page 47415]]

successfully challenged. South Coast Air Quality Mgmt. Dist. v. EPA, 
485 F.3d 1245 (D.C. Cir. 2007). Therefore, the Phase 1 Rule provisions 
related to classifications for areas currently classified under subpart 
2 of Title I, part D of the CAA as 8-hour nonattainment areas, the 8-
hour attainment dates, and the timing for emissions reductions needed 
for attainment of the 8-hour ozone NAAQS, remain effective. The June 
8th decision left intact the Court's rejection of EPA's reasons for 
implementing the 8-hour standard in certain nonattainment areas under 
subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let 
stand EPA's revocation of the 1-hour standard and those anti-
backsliding provisions of the Phase 1 Rule that had not been 
successfully challenged. The June 8th decision reaffirmed the Court's 
December 22, 2006, decision that EPA had improperly failed to retain 
four measures required for 1-hour nonattainment areas under the anti-
backsliding provisions of the regulations: (1) Nonattainment area New 
Source Review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) section 185 penalty fees for 1-hour 
severe or extreme nonattainment areas; (3) measures to be implemented 
pursuant to section 172(c)(9) or 182(c)(9) of the CAA, contingent on an 
area not making reasonable further progress toward attainment of the 1-
hour NAAQS, or for failure to attain that NAAQS; and (4) certain 
transportation conformity requirements for certain types of Federal 
actions. The June 8th decision clarified that the Court's reference to 
conformity requirements was limited to requiring the continued use of 
1-hour motor vehicle emissions budgets until 8-hour budgets were 
available for 8-hour conformity determinations.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation. EPA believes that 
the Court's December 22, 2006, and June 8, 2007, decisions impose no 
impediment to moving forward with redesignation of this area to 
attainment, because, even in light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
requests.
    With respect to the requirement for transportation conformity under 
the 1-hour standard, the Court in its June 8th decision clarified that, 
for those areas with 1-hour motor vehicle emissions budgets in their 
maintenance plans, anti-backsliding requires only that those 1-hour 
budgets must be used for 8-hour conformity determinations until 
replaced by 8-hour budgets. To meet this requirement, conformity 
determinations in such areas must comply with the applicable 
requirements of EPA's conformity regulations at 40 CFR part 93.

C. What are the Impacts of the Clean Air Interstate Rule (CAIR) Remand?

    As discussed in greater detail in the proposal, EPA has considered 
the relationship of the Cleveland-Akron-Lorain area's maintenance plan 
to the reductions currently required pursuant to the Clean Air 
Interstate Rule. This rule was remanded to EPA, and the process of 
developing a replacement rule is ongoing. However, the remand of CAIR 
does not alter the requirements of the NO<INF>X</INF> SIP Call and Ohio 
has now demonstrated that the area can maintain without any additional 
requirements (beyond those required by the NO<INF>X</INF> SIP Call). 
Therefore, EPA believes that Ohio's demonstration of maintenance under 
sections 175A and 107(d)(3)(E) remains valid.
    The NO<INF>X</INF> SIP Call requires states to make significant, 
specific emissions reductions. It also provided a mechanism, the 
NO<INF>X</INF> Budget Trading Program, which states could use to 
achieve those reductions. When EPA promulgated CAIR, it discontinued 
(starting in 2009) the NO<INF>X</INF> Budget Trading Program, 40 CFR 
51.121(r), but created another mechanism--the CAIR ozone season trading 
program--which states could use to meet their SIP Call obligations, 70 
FR 25289-90. EPA notes that a number of states, when submitting SIP 
revisions to require sources to participate in the CAIR ozone season 
trading program, removed the SIP provisions that required sources to 
participate in the NO<INF>X</INF> Budget Trading Program. In addition, 
because the provisions of CAIR including the ozone season 
NO<INF>X</INF> trading program remain in place during the remand, EPA 
is not currently administering the NO<INF>X</INF> Budget Trading 
Program. Nonetheless, all states, regardless of the current status of 
their regulations that previously required participation in the 
NO<INF>X</INF> Budget Trading Program, will remain subject to all of 
the requirements in the NO<INF>X</INF> SIP Call even if the existing 
CAIR ozone season trading program is withdrawn or altered. In addition, 
the anti-backsliding provisions of 40 CFR 51.905(f) specifically 
provide that the provisions of the NO<INF>X</INF> SIP Call, including 
the statewide NO<INF>X</INF> emission budgets, continue to apply after 
revocation of the 1-hour standard.
    In the case of Ohio, the state has retained the SIP provisions 
requiring sources to participate in the NO<INF>X</INF> Budget Trading 
Program. Ohio EPA is in the process of promulgating a rule change 
stating that the NO<INF>X</INF> Budget Trading Program would not be 
applicable so long as CAIR remains in place. However, the drafted rule 
revision also provides that should CAIR requirements be removed, the 
NO<INF>X</INF> Budget Trading Program would once again apply, on 
condition that EPA maintains a NO<INF>X</INF> Budget Trading Program.
    All NO<INF>X</INF> SIP Call states have SIPs that currently satisfy 
their obligations under the SIP Call, the SIP Call reduction 
requirements are being met, and EPA will continue to enforce the 
requirements of the NO<INF>X</INF> SIP Call even after any response to 
the CAIR remand. For these reasons, EPA believes that regardless of the 
status of the CAIR program, the NO<INF>X</INF> SIP call requirements 
can be relied upon in demonstrating maintenance. Here, the state has 
demonstrated maintenance based in part on those requirements.

II. What Comments Did We Receive on the Proposed Rule?

    EPA provided a 30-day review and comment period. The comment period 
closed on July 13, 2009. EPA received adverse comments from the 
Allegheny County Health Department, a private citizen, and the National 
Resources Defense Council (NRDC). A summary of the comments received, 
and EPA's responses, follow.
    (1) Comment: The totals for VOC Non-road emissions and VOC Area 
emissions in table 4 are incorrect. Also, the value for 2006 VOC Non-
road in table 5 is incorrect.
    Response: EPA concurs with the commenter and is revising the 
tables. Below are corrected tables 4 and 5. The revisions correct 
typographical errors in the tables and do not affect the net change in 
total VOC and NO<INF>X</INF> emissions between 2002 and 2006, since the 
correct numbers were used in calculating these values.

[[Page 47416]]



                                     Table 4--Cleveland-Akron-Lorain VOC and NOx Emissions for Attainment Year 2006
                                                                          [tpd]
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                                                    Point                 Area                 Nonroad               Onroad                 Total
                                           -------------------------------------------------------------------------------------------------------------
                                               VOC        NOX        VOC        NOX        VOC        NOX        VOC        NOX        VOC        NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ashtabula.................................       0.94       4.52       5.89       0.85       9.19       8.71       4.00       7.01      20.02      21.09
Cuyahoga..................................       3.68      13.56      44.14      13.83      40.62      36.61      27.64      64.40     116.08     128.40
Geauga....................................       0.00       0.00       9.96       1.01       4.87       2.58       2.41       5.06      17.24       8.65
Lake......................................       0.82      37.48       9.06       2.30      11.13       8.99       5.33      13.00      26.34      61.77
Lorain....................................       3.18      27.31      11.45       2.66      13.03      12.84       6.17      14.88      33.83      57.69
Medina....................................       0.79       0.26       7.40       1.57       5.29       5.02       5.05      12.32      18.53      19.17
Portage...................................       0.95       0.22       6.19       1.52       7.49       6.25       4.30      10.79      18.93      18.78
Summit....................................       1.27       3.23      18.17       5.51      12.36      11.33      14.18      32.28      45.98      54.35
                                           -------------------------------------------------------------------------------------------------------------
    Total.................................      11.63      86.58     112.26      29.25     103.98      92.33      69.08     161.74     296.95     369.90
--------------------------------------------------------------------------------------------------------------------------------------------------------


                Table 5--Comparison of Cleveland-Akron-Lorain 2002 and 2006 VOC and NOX Emissions
                                                      [tpd]
----------------------------------------------------------------------------------------------------------------
                                                     VOC                                    NOX
                                   -----------------------------------------------------------------------------
                                                               Net change                             Net change
                                        2002         2006     (2002-2006)      2002         2006     (2002-2006)
----------------------------------------------------------------------------------------------------------------
Point.............................        12.64        11.63        -1.01       156.98        86.58       -70.40
Area..............................       110.68       112.26         1.58        12.49        29.25        16.76
Nonroad...........................        98.72       103.98         5.26        94.44        92.33        -2.11
Onroad............................       109.49        69.08       -40.41       226.17       161.74       -64.43
                                   -----------------------------------------------------------------------------
    Total.........................       331.53       296.95       -34.58       490.08       369.90      -120.18
----------------------------------------------------------------------------------------------------------------

    (2) Comment: Open burning is a direct cause of air pollution. Open 
burning results in direct emissions of carbon dioxide and causes 
neighbors to use air conditioners to avoid breathing in smoke fumes and 
prevent smoke damage. Air conditioning is a large source of unnecessary 
power usage.
    Response: EPA appreciates the commenter's concerns regarding open 
burning. However, the current rulemaking is a redesignation action that 
is designed to determine whether an area has met the requirements for 
redesignation to attainment as set forth in section 107(d)(3)(E) of the 
CAA. Consideration of how to address open burning issues is not related 
to the current redesignation action. In this action, EPA has determined 
that, for the 1997 8-hour NAAQS, the state has met all requirements for 
redesignation, including a demonstration that the area has met all 
applicable requirements for the purposes of redesignation and that it 
will maintain the standard over the ten year maintenance period.
    (3) Comment: Ohio EPA's redesignation request fails to demonstrate 
compliance with the ozone NAAQS. Three out of the eleven ozone monitors 
in the area registered three-year average fourth-highest concentrations 
that were greater than 0.08 ppm. EPA contends that the relevant 
standard is complied with because the area has achieved average 8-hour 
ozone concentrations less than 0.085 ppm. While 40 CFR part 50, 
Appendix I, purports to authorize such a rounding convention, its use 
here improperly inflates the 1997 standard from its actual value of 
0.08 ppm and would allow an area to be considered to be in attainment 
even though it has fourth-highest three-year average concentrations 
that exceed the actual ozone NAAQS. The commenter contends that such 
rounding approach has been rejected by EPA's own scientific advisory 
committee in developing the 2008 ozone NAAQS, and it would be arbitrary 
and capricious for EPA to use it here.
    Response: EPA promulgated the 1997 8-hour ozone standard on July 
18, 1997 (62 FR 38856). As part of this rulemaking, EPA promulgated 40 
CFR 50 Appendix I, entitled ``Interpretation of the 8-hour Primary and 
Secondary National Ambient Air Quality Standards for Ozone,'' which 
provides rounding procedures under which observed values which round to 
0.08 ppm are considered to reflect attainment of the standard. As 
discussed in detail in the proposed rule, an area is considered to be 
in attainment of the 8-hour ozone standard if the three-year average of 
the fourth-highest daily maximum 8-hour average ozone concentrations 
measured at each monitor within an area over each year does not exceed 
0.084 ppm. Comments regarding the adequacy of the 1997 8-hour ozone 
standard should have been submitted in response to the proposal on that 
standard and its implementing regulations that include the data 
handling and rounding conventions for the 1997 8-hour NAAQS, 40 CFR 
Part 50, Appendix I. The definition of the standard as set forth in the 
applicable regulations cannot be challenged here. In addition, in 
adopting the 2008 standard, 0.075 ppm, EPA changed the ``degree of 
precision to which the level of the standard is specified to the 
thousandth ppm'' (72 FR 37882 (July 11, 2007)), expressing the standard 
out to three decimal places instead of two, as was previously done with 
the 1997 standard. While this was a different way of expressing the 
standard, it did not undermine the implementation of the 1997 standard. 
As stated in the final rulemaking on the 2008 standard: ``Truncating 
both the individual 8-hour averages used to determine the annual fourth 
maximum as well as the three-year average of the fourth maxima to the 
third decimal place is consistent with the approach used in Appendix I 
for the previous 8-hour ozone standard.'' 73 FR 16436, 16501 (March 27, 
2008). The

[[Page 47417]]

2008 three-digit standard achieves the same result that would have been 
accomplished by adopting a 0.07 standard and permitting rounding up to 
0.075. Thus it does not represent, as commenters contend, a repudiation 
of the result of rounding in the 1997 standard. It is therefore not 
only consistent with the existing statute and regulations, but entirely 
reasonable, for EPA to implement the 1997 standard as it has here.
    (4) Comment: Ohio EPA's contention that ozone concentrations have 
trended downward is not supported by the 2006 to 2008 data provided by 
the agency. For seven out of the eleven monitors in the Cleveland-
Akron-Lorain area, the fourth-high ozone concentration increased from 
2006 to 2007. At eight out of the eleven monitors, the 2008 fourth-
highest concentration was higher than the 2006 fourth-highest 
concentration. This suggests that ozone concentrations are not 
declining and raises questions about whether redesignation is 
appropriate. While 2008 concentrations are mostly lower than those in 
2007, it is not clear if such reduction is due to permanent and 
enforceable reductions or transient factors. At a minimum, EPA must 
decline to approve Ohio EPA's redesignation request until 2009 
monitoring data can confirm the relevant ozone concentration trends.
    Response: The CAA provides the requirements for redesignating a 
nonattainment area to attainment. Specifically, section 107(d)(3)(E) 
allows for redesignation provided that, among other things, the 
Administrator determines that the area has attained the applicable 
NAAQS. A determination that an area has attained the standard is based 
on an objective review of the air quality data. There are no provisions 
in the CAA or in EPA redesignation policy for using monitoring data 
trends or statistical analyses as criteria for determining attainment 
in evaluating a redesignation request. As discussed in detail in the 
proposed rule, the Cleveland-Akron-Lorain area is monitoring attainment 
of the 1997 8-hour ozone standard. As discussed in the proposal, the 
requirement that attainment be due to permanent and enforceable 
emissions reductions is a separate criterion for redesignation, which 
has been met here.
    Furthermore, looking at the yearly fourth-high ozone concentrations 
ozone over a two or three year time period is not statistically 
significant and does not determine a trend. In fact, it is expected 
that there will be year to year variations in ozone concentrations due 
to meteorological influences. A review of data over a longer time 
period, from 2001 (designations under the 1997 8-hour ozone standard 
were based on air quality monitoring data from 2001-2003) through 2008, 
shows a downward trend at each monitor in the area. Moreover, in its 
maintenance demonstration the state has shown that the 1997 ozone 
standard can be maintained in the area over a ten-year period after 
redesignation.
    (5) Comment: Redesignation is inappropriate because the Cleveland-
Akron-Lorain area is out of attainment of the 2008 ozone standard, 
which is currently set at 0.075 ppm. As such, the Cleveland-Akron-
Lorain area has not demonstrated compliance with the currently 
applicable NAAQS and, therefore, cannot be considered in attainment 
with CAA ozone standards. Redesignation to attainment under the 1997 
standard would suspend Reasonable Further Progress (RFP) requirements 
and other measures that would enable the area to make progress toward 
attainment of the 2008 standard.
    The ruling in Wall v. EPA, 265 F. 3d 426 (6th Cir. 2001), does not 
compel a different conclusion. In that case, redesignation for the 
Cincinnati area was challenged because, inter alia, another rulemaking 
proceeding had found that the area was certain or highly likely to 
require additional emission reductions. The court rejected the 
challenge because the other proceeding was not an attainment rulemaking 
and its data were outdated. In this case, however, Ohio has made a 
nonattainment recommendation under the 2008 standard using data that 
are not out of date, and thus redesignation to attainment here would 
not be reasonable. As the Wall court stated, ``[A]ny final 
determination regarding the adequacy of a maintenance plan will be made 
`in light of the particular circumstances facing the area proposed for 
redesignation and based on all relevant information available at the 
time.''' 265 F.3d at 430. A pending designation of nonattainment is 
relevant information that forecloses redesignation to attainment at 
this time.
    Response: The area's status with respect to the 2008 standard does 
not foreclose redesignation for the 1997 standard. The redesignation 
being considered in this action is only for the 1997 8-hour ozone 
standard. Designations for the 2008 8-hour standard have not yet 
occurred, and will be made in the future in accordance with the process 
for designating areas under the new standard. This redesignation 
rulemaking action is not related to that future designation action. As 
set forth above, the state's recommendation to designate the area as 
nonattainment for the 2008 standard does not, as commenters contend, 
foreclose redesignation of the area for purposes of the 1997 standard. 
EPA has not yet acted on the state's recommendation, and even had it 
done so, this would not prevent redesignation for the prior standard. 
Indeed, it would be inappropriate to retain the 1997 8-hour 
nonattainment designation, if no longer applicable, solely on the 
assumption that the Cleveland-Akron-Lorain area might be designated as 
nonattainment for the 2008 8-hour ozone standard in the future. EPA has 
in the past continued to redesignate areas under existing standards 
even after the adoption of new standards for the same pollutant. After 
adopting the 1997 8-hour ozone standard, EPA continued to redesignate 
areas for the 1-hour ozone standard until that standard was revoked. 
See, for example, Cincinnati redesignation, 70 FR 35946 (June 21, 
2005).
    Thus even after the area receives its designation for the 2008 
standard, the 1997 8-hour ozone standard and the 2008 8-hour ozone 
standard are considered to be separable in terms of requiring emission 
controls and determining the area's attainment status. Subsequent to 
the adoption of the 2008 standard, EPA has continued to redesignate for 
the 1997 ozone standard those areas attaining that ozone standard and 
otherwise meeting redesignation requirements. See, for example, 
Detroit, Michigan redesignation, 74 FR 30950 (June 29, 2009); 
Clearfield and Indiana Counties, Pennsylvania redesignation, 74 FR 
11674 (March 19, 2009); Greene County, Pennsylvania redesignation, 74 
FR 11671 (March 19, 2009); and Kewaunee County, Wisconsin 
redesignation, 73 FR 29436 (May 21, 2008).
    Commenters have noted that the redesignation would be 
``counterproductive'' because it would ``suspend RFP and other measures 
that would enable the area to make progress towards attainment of the 
2008 standard.'' This contention, however, is not an obstacle to 
redesignaton for attainment of the 1997 ozone standard. The Sixth 
Circuit has previously approved as reasonable EPA's interpretation of 
what constitutes interference with a new standard under section 110(l), 
and it does not include ``that which does not advance'' as opposed to 
that which ``hinder[s] or make[s] worse.'' Kentucky Resources Council 
v. EPA, 467 F.3d 986, 995 (6th Cir. 2006). In any event, we have 
evaluated this redesignation with respect to section 110(l) and have

[[Page 47418]]

determined that it will not interfere with attainment or maintenance of 
the 2008 ozone standard nor any other standard, since the area is 
attaining the 1997 ozone standard, no control measures are being 
removed from the SIP, and no implementation ceased. See Id. (showing 
deference to EPA's interpretation of section 110(l)). See also the 
discussion of 110(l) in the Cincinnati 1-hour ozone redesignation at 70 
FR 35960. The rationale stated in the Cincinnati redesignation applies 
here as well:

    ``EPA does not believe that approving a maintenance plan 
containing existing control measures that the State has demonstrated 
will provide emission reductions sufficient to maintain the 1-hour 
ozone standard can in any way interfere with Ohio's obligations 
under the PM<INF>2.5</INF> and 8-hour ozone standards for 
Cincinnati. EPA is not approving any relaxation of the existing 
control measures so emissions of VOC and NO<INF>X</INF> will not 
increase as a consequence of this action. Morevoer, Ohio will still 
have to meet whatever obligations it may have regarding the 
implementation of the new standards and determining that existing 
control measures will provide for maintenance of the 1-hour standard 
does not impair nor interfere with the state's obligations regarding 
the new standards. EPA does not believe that section 110(l) 
transforms this redesignation action into an obligation for the 
state to comply with its SIP obligations for the new standards 
earlier than otherwise required, which is the implication of the 
assertion that this action cannot proceed without a demonstration 
that additional control measures are not necessary to prevent 
interference with attainment of the PM<INF>2.5</INF> and 8-hour 
ozone standards. Moreover, the commenter does not present any 
evidence or even assert that there is anything about any of the 
control measures contained in the maintenance plan that would 
somehow interfere with PM<INF>2.5</INF>, 8-hour ozone attainment, or 
other requirements. EPA does not believe that approval of this 
maintenance plan would interfere with the 8-hour ozone or 
PM<INF>2.5</INF> attainment or other obligations applicable to the 
Cincinnati area. As Cincinnati's ability to implement those 
standards would be the same if this redesignation were not 
occurring, approval of the maintenance plan cannot interfere with 
the requirements applicable for those standards.''

    70 FR 35960 (June 21, 2005). Thus EPA has determined that the 
redesignation of the area does not interfere with attainment of the 
2008 8-hour ozone standard and complies with the provisions of section 
110(l) of the CAA.
    (6) Comment: Ohio EPA has not provided an adequate maintenance 
plan. Ohio EPA has failed to fully satisfy the requirement that it 
include contingency measures for ensuring continued attainment that can 
take effect ``without further action by the State or EPA.'' 42 U.S.C. 
7402(c)(9). EPA interprets that provision as requiring that the state 
or EPA need not take any ``further rulemaking activities'' in order for 
the contingency measures to be carried out. General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990, 57 
FR 13498, 13512; Greenbaum v. EPA, 370 F.3d 527, 451 (6th Cir. 2004). 
While Ohio EPA has identified a series of possible contingency measures 
and triggers for possible implementation of those measures, the agency 
also notes that ``adoption of any additional control measures is 
subject to the necessary administrative and legal process * * * 
required by Ohio law for rulemaking.'' EPA must ensure that Ohio EPA 
can adopt such additional control measures without the need for 
additional rulemaking before any redesignation for the Cleveland-Akron-
Lorain area can be made.
    Response: Section 175A of the CAA requires that a maintenance plan 
include contingency provisions, as EPA deems necessary, to promptly 
correct any violation of the NAAQS that occurs after redesignation of 
the area. Contrary to the commenter's contention, these contingency 
measures are not the same as those required for nonattainment areas 
under section 172(c)(9) or 182(c)(9). The statutory provision under 
section 175A for maintenance contingency measures to be employed after 
redesignation to attainment is distinct from the requirement for 
contingency measures for nonattainment areas prior to attainment. As 
explicitly discussed in EPA's September 4, 1992, redesignation policy 
memorandum from John Calcagni entitled ``Procedures for Processing 
Requests to Redesignate Areas to Attainment'': ``For the purposes of 
section 175A, a State is not required to have fully adopted contingency 
measures that will take effect without further action by the State in 
order for the maintenance plan to be approved.'' EPA has applied this 
interpretation since 1992, and it has been referred to and relied upon 
by the Sixth Circuit. In Greenbaum v. EPA, cited by the commenters, the 
Sixth Circuit stated that under section 175A, the EPA ``has been 
granted broad discretion by Congress in determining what is `necessary 
to assure' prompt correction.'' 370 F.3d at 540. In that case, the 
state had chosen to adopt as contingency measures under section 175A 
those measures that it had originally adopted pursuant to section 
172(c)(9), so the measures happened to meet the requirement of that 
section that no further state action be necessary. But nothing mandates 
that section 175A contingency measures meet the strictures that apply 
solely to section 172(c)(9) measures. The General Preamble language 
cited by the commenters, that ``no further rulemaking activities by the 
State or EPA would be needed to implement the contingency measures'', 
addresses contingency measures under section 172(c)(9). Indeed, the 
Sixth Circuit in Greenbaum pointed out that this limitation does not 
apply to contingency measures under section 175A, noting that the 
Calcagni memorandum states that ``[f]or the purposes of section 175A, a 
State is not required to have fully adopted contingency measures that 
will take effect without further action by the State in order for the 
maintenance plan to be approved.'' 370 F.3d at 541.
    Ohio EPA included the following list of potential contingency 
measures in the maintenance plan for the Cleveland-Akron-Lorain area: A 
lower Reid vapor pressure gasoline program; tightened VOC Reasonably 
Available Control Technology (RACT) on existing sources covered by EPA 
Control Technique Guidelines issued after the 1990 CAA; one or more 
transportation control measures sufficient to achieve at least half a 
percent reduction in actual area wide VOC emissions; alternative fuel 
and diesel retrofit programs for fleet vehicle operations; VOC or 
NO<INF>X</INF> emission offsets for new and modified major sources; VOC 
or NO<INF>X</INF> emission offsets for new and modified minor sources; 
VOC or NO<INF>X</INF> controls on new minor sources (less than 100 tons 
per year (tpy)); increase in the ratio of emission offsets required for 
new sources; and, NO<INF>X</INF> RACT for existing combustion sources. 
The state can choose to implement one or more of these measures as 
necessary to correct a violation of the standard. As set forth in the 
proposal, we find that the contingency measures included in the 
maintenance plan are adequate to assure that the state will promptly 
correct a future violation of the standard that occurs after 
redesignation.
    (7) Comment: Ohio EPA has not provided any information showing that 
it has adequate resources to enforce the steps relied on in the 
maintenance plan. Such information is required by 42 U.S.C. 
7410(a)(2)(C) which requires that each plan ``include a program to 
provide for the enforcement of measures'' described in the plan, and 40 
CFR 51.280, which requires a ``description of the resources available 
to the state and local agencies * * * and any additional resources 
needed to carry out the plan'' for the next five years. Ohio EPA,

[[Page 47419]]

however, has simply asserted that it ``has the legal authority and 
necessary resources to actively enforce any violations of its rules or 
permit provisions.'' The agency has not identified what those resources 
are, or explained how they are purportedly adequate to ensure 
enforcement of the plan. This shortcoming is especially troublesome 
given that Ohio faces a $3.2 billion budget deficit and will likely be 
cutting agency budgets to try to close that gap.
    Response: As discussed in detail in the proposal, section 
107(d)(3)(E) of the CAA provides the requirements for redesignating a 
nonattainment area to attainment. Specifically, section 107(d)(3)(E)(v) 
allows for redesignation provided that, among other things, the area 
has met all applicable requirements under section 110 and Part D. 
Section 110(a) of Title I of the CAA contains the general requirements 
for a SIP, including the requirement that the state provide ``necessary 
assurances that the State * * * will have adequate personnel, funding, 
and authority under state * * * law to carry out such implementation 
plan. * * *'' The courts are in agreement that: ``Congress has left to 
the Administrator's sound discretion determination of what assurances 
are `necessary.' '' NRDC v. EPA, 478 F.2d 875, 884 (1st Cir. 1973); 
Friends of the Earth v. EPA, 499 F.2d 1118, 1126 (2d. Cir. 1974), BCCA 
Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003). In a December 5, 
2007, SIP submittal, Ohio EPA asserted that it continues to retain the 
resources necessary to evaluate ambient air quality, develop plans to 
attain new and existing ambient air quality standards, run a complete 
new source review program and effectively enforce all applicable 
requirements. In support of Ohio EPA's assertion that the state 
continues to staff and implement a vigorous enforcement program, the 
submittal included Ohio EPA's Enforcement Report: 2006. As documented 
in the report, Ohio's Division of Air Pollution Control reduced 160 tpy 
VOC and 419 tpy NO<INF>X</INF> through enforcement actions, secured 
$1,248,917 in penalties and issued 41 orders. In addition, the 
department resolved 96% of its enforcement cases older than 21 months 
and all verified complaints within two years. With respect to legal 
authority, Ohio Revised Code 3704.03 provides the Director of Ohio EPA 
with the authority to develop rules and regulations necessary to meet 
state and Federal ambient air quality standards and to implement the 
program.
    The Court found that EPA was entitled to rely on the state's 
certification that the SIP was a valid exercise of its legal authority. 
See Ohio Envtl. Council v. EPA, 593 F.2d 24, 28 (6th Cir. 1979). In 
BCCA v. EPA, the Fifth Circuit Court of Appeals found that the state 
had ``provided a general assurance that its fiscal and manpower 
resources were adequate to implement the SIP as a whole.'' The Court 
also determined that the Houston, Texas SIP ``provided a detailed 
discussion about the legal authority of state and local agencies to 
implement, maintain, and enforce the plan as a whole, including 
citations to applicable law.'' The Fifth Circuit found that, ``based on 
its past experience with Texas's air quality program and its 
relationship with the state, the EPA determined that these assurances 
regarding funding, resources, and legal authority met the minimum 
requirements of Sec.  7410(a)(2)(E).'' Finding that EPA had also 
evaluated the state's funding and resources and determined they were 
adequate, the Court concluded that EPA approval was in compliance with 
the CAA and not arbitrary and capricious. 355 F.3d at 843-845.
    Commenters here raise the identical claim regarding section 
110(a)(2)(C) and 40 CFR 51.280 that petitioners set forth in the 
Cincinnati 1-hour ozone redesignation case Wall v. EPA, 265 F.3d 426 
(6th Cir. 2001). In Wall, the Sixth Circuit concluded that ``there is 
no language in the CAA or in the EPA's regulations that specifically 
requires that a separate commitment be made within the maintenance 
plans themselves. Thus, the EPA permissibly determined that Kentucky 
and Ohio fulfilled the requirement of submitting a `program to provide 
for enforcement of the [maintenance] measures' when such measures were 
already approved in their earlier SIPs.'' Id. at 438.
    As pointed out in the Wall case, EPA has previously approved the 
state SIP as meeting 110(a)(2)(C) requirements in acting on the state's 
1-hour ozone SIP. The enforcement of the 8-hour ozone standard is a 
continuation of this same enforcement program, and the state has 
submitted confirmation that the area's 8-hour SIP continues to meet 
those requirements.
    In addition, EPA periodically reviews state enforcement programs 
for adequacy. The EPA Office of Enforcement and Compliance Assurance, 
EPA's ten regions, the Environmental Council of States Compliance 
Committee, and other state representatives jointly developed a method 
to assess state performance in the enforcement and compliance assurance 
program. EPA performs this assessment on a four-year cycle. The most 
recent assessment of Ohio EPA's enforcement program using this 
framework was released by EPA on September 27, 2007. In that 
assessment, EPA found that Ohio EPA is implementing an adequate 
enforcement program. Ohio EPA's enforcement actions have been found to 
be generally successful at bringing sources back into compliance in a 
specific time frame, with well-defined penalties. Further, Ohio EPA's 
inspection reports meet the requirements of EPA's Clean Air Act 
Stationary Source Compliance Monitoring Strategy (CMS). While EPA noted 
that Ohio EPA could make improvements regarding reporting issues and 
timeliness of enforcement actions, the state has since addressed these 
concerns by implementing the corrective actions recommended by EPA in 
that assessment.
    In addition, as required under 40 CFR 35.115, EPA reviews Ohio 
EPA's air pollution control activities, including enforcement, on a 
yearly basis. In EPA's most recent review, dated February 24, 2009, EPA 
found no areas of concern regarding Ohio EPA's ability to adequately 
implement and enforce its air control programs. During the 2008 Federal 
fiscal reporting year, Ohio EPA's commitment under the CMS was to 
complete 342 Title V source full compliance evaluations. There were 375 
full compliance evaluations reported to EPA's AIRS Facility Subsystem 
(AFS) database. In addition, Ohio EPA exceeded the commitment to 
conduct 210 synthetic minor source full compliance evaluations by 
reporting 225 evaluations to AFS.
    As in the BCCA case, the state has also certified that it has 
adequate legal authority, and based on EPA's past experience with the 
state's air quality program and its relationship with the state, as 
well as its evaluation of the current situation, EPA has determined 
that these circumstances assure that the requirements of section 
110(a)(2)(E) and section 110(a)(2)(C) have been met.
    (8) Comment: The proposed redesignation relies on an improper 
NO<INF>X</INF> waiver. The NO<INF>X</INF> waiver provisions of section 
182(f)(1)(A) are designed simply to ensure that NO<INF>X</INF> 
reductions are not required in those limited circumstances where 
NO<INF>X</INF> reductions can actually lead to increased ozone 
concentrations. There has been no showing of a NO<INF>X</INF> 
disbenefit in this proceeding and, therefore, a NO<INF>X</INF> waiver 
is improper. There is no evidence suggesting that NO<INF>X</INF> 
controls did not contribute to the purported attainment. Instead, the

[[Page 47420]]

evidence is clear that they did contribute and, therefore, a 
NO<INF>X</INF> waiver is inappropriate.
    Response: As described in EPA's January 14, 2005 policy, Guidance 
on Limiting Nitrogen Oxides (NO<INF>X</INF>) Requirements Related to 8-
Hour Ozone Implementation, section 182(f)(1) of the CAA provides that 
the new NO<INF>X</INF> requirements shall not apply (or may be limited 
to the extent necessary to avoid excess reductions) if the 
Administrator determines that any one of the following tests is met:
    (1) In any area, the net air quality benefits are greater in the 
absence of NO<INF>X</INF> reductions from the sources concerned;
    (2) in nonattainment areas not within an ozone transport region, 
additional NO<INF>X</INF> reductions would not contribute to ozone 
attainment in the area; or
    (3) in nonattainment areas within an ozone transport region, 
additional NO<INF>X</INF> reductions would not produce net ozone air 
quality benefits in the transport region.
    Based on the plain language of section 182(f), EPA believes that 
each test provides an independent basis for receiving a full or limited 
NO<INF>X</INF> exemption. Only the first test listed above is based on 
a showing that NO<INF>X</INF> reductions result in a ``disbenefit.'' If 
any one of the tests is met, the section 182(f) NO<INF>X</INF> 
requirements would not apply.
    In areas monitoring attainment of the ozone standard where section 
182(f) NO<INF>X</INF> requirements were not implemented over that 
three-year period, it is clear that the second test listed above is 
met. Since attainment has already occurred, additional NO<INF>X</INF> 
reductions could not improve the area's attainment status and, 
therefore, the NO<INF>X</INF> exemption request can be approved.
    The Cleveland-Akron-Lorain area is monitoring attainment of the 
1997 8-hour ozone standard and, over the three-year period used to 
demonstrate attainment with the NAAQS (2006-2008), NO<INF>X</INF> RACT 
emissions reduction requirements were not yet implemented in the area. 
Therefore, the Cleveland-Akron-Lorain area can clearly demonstrate that 
``additional reductions of oxides of nitrogen would not contribute to 
attainment.''
    (9) Comment: Should EPA proceed with granting Ohio the 
NO<INF>X</INF> waiver, the agency must clarify the scope of the waiver. 
Ohio EPA's submissions suggest that the state is petitioning for a 
waiver only of the NO<INF>X</INF> RACT requirements, not the other 
NO<INF>X</INF> reductions required by section 182(f). In addition, EPA 
must make clear that any NO<INF>X</INF> waiver is only, as Ohio EPA 
requested, ``for the interim period between approval of this 
redesignation request and approval of Ohio's NO<INF>X</INF> RACT 
rules,'' and does not imply that NO<INF>X</INF> RACT requirements are 
somehow lifted or will not be needed to bring the Cleveland-Akron-
Lorain area into attainment of the 2008 ozone NAAQS or any more 
stringent ozone NAAQS that is developed in the future.
    Response: As the commenter stated, Ohio EPA requested that EPA 
grant a waiver from NO<INF>X</INF> RACT requirements for the Cleveland-
Akron-Lorain area. In this final action, EPA is approving a waiver from 
only the NO<INF>X</INF> RACT requirements of section 182(f). This has 
been clarified in both the summary and section III of this action. 
Further, as stated in the proposal, EPA agrees with the commenter that 
while Ohio need not adopt NO<INF>X</INF> RACT rules as a prerequisite 
for redesignation with respect to the 1997 8-hour ozone standard, EPA 
may in the future determine that NO<INF>X</INF> RACT rules are required 
in this area with respect to the 2008 8-hour ozone standard.

III. What Action Is EPA Taking?

    EPA is making a determination that the Cleveland-Akron-Lorain area 
has attained the 8-hour ozone NAAQS. EPA is also approving the 
maintenance plan SIP revision for the Cleveland-Akron-Lorain area. 
EPA's approval of the maintenance plan is based on Ohio's demonstration 
that the plan meets the requirements of section 175A of the CAA. After 
evaluating Ohio's redesignation request, EPA has determined that it 
meets the redesignation criteria set forth in section 107(d)(3)(E) of 
the CAA. Therefore, EPA is approving the redesignation of the 
Cleveland-Akron-Lorain area from nonattainment to attainment for the 8-
hour ozone NAAQS. EPA is also approving the 2002 base year emissions 
inventory for the Cleveland-Akron-Lorain area as meeting the 
requirements of section 182(a)(1) of the CAA. EPA is approving a waiver 
from the section 182(f) NO<INF>X</INF> RACT requirements in the 
Cleveland-Akron-Lorain area. EPA is also approving Ohio's 15% ROP plan 
as meeting the requirements of section 182(b)(1) of the CAA for the 1-
hour ozone standard. Finally, EPA also finds adequate and is approving 
the state's 2012 and 2020 MVEBs for the Cleveland-Akron-Lorain area.
    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause 
for this action to become effective immediately upon publication. This 
is because a delayed effective date is unnecessary due to the nature of 
a redesignation to attainment, which relieves the area from certain CAA 
requirements that would otherwise apply to it. The immediate effective 
date for this action is authorized under both 5 U.S.C. 553(d)(1), which 
provides that rulemaking actions may become effective less than 30 days 
after publication if the rule ``grants or recognizes an exemption or 
relieves a restriction,'' and section 553(d)(3) which allows an 
effective date less than 30 days after publication ``as otherwise 
provided by the agency for good cause found and published with the 
rule.'' The purpose of the 30-day waiting period prescribed in section 
553(d) is to give affected parties a reasonable time to adjust their 
behavior and prepare before the final rule takes effect. Today's rule, 
however, does not create any new regulatory requirements such that 
affected parties would need time to prepare before the rule takes 
effect. Rather, today's rule relieves the state of planning 
requirements for this 8-hour ozone nonattainment area. For these 
reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action 
to become effective on the date of publication of this action.

IV. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, September 30, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Regulatory Flexibility Act

    This action merely approves state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Redesignation of an area to attainment under 
section 107(d)(3)(E) of the CAA does not impose any new requirements on 
small entities. Redesignation is an action that affects the status of a 
geographical area and does not impose any new regulatory requirements 
on sources. Accordingly, the Administrator certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).

Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under state 
law,

[[Page 47421]]

and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). Redesignation is an action that merely affects the status of 
a geographical area, does not impose any new requirements on sources, 
or allows a state to avoid adopting or implementing other requirements, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000).

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272, requires Federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing program submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Absent a prior 
existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a program submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program submission that otherwise satisfies the provisions of the 
Act. Redesignation is an action that affects the status of a 
geographical area but does not impose any new requirements on sources. 
Thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
    The Congressional Review Act, 5 U.S.C. 801, et seq., enacted 
pursuant to the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that, before a rule may take effect, the 
agency promulgating the rule must submit a rule report which includes a 
copy of the rule to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
action and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of the rule in the Federal Register. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 16, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of the action. This 
action may not be challenged later in proceedings to enforce its 
requirements. (See 42 U.S.C. 7607(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Volatile organic compounds.

40 CFR Part 81

    Air pollution control, Environmental protection, National parks, 
Wilderness areas.

    Dated: August 26, 2009.
Walter W. Kovalick Jr.,
Acting Regional Administrator, Region 5.

0
Parts 52 and 81, chapter I, Title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart KK--Ohio

0
2. Section 52.1885 is amended by adding paragraphs (ff)(9), (hh)(2), 
(ii) and (jj) to read as follows:


Sec.  52.1885  Control strategy: Ozone.

* * * * *
    (ff) * * *
    (9) Approval--On March 17, 2009, and April 24, 2009, the Ohio 
Environmental Protection Agency submitted a request to redesignate the 
Cleveland-Akron-Lorain area to attainment of the 8-hour ozone NAAQS. As 
part of the redesignation request, the state submitted a maintenance 
plan as required by section 175A of the Clean Air Act. Elements of the 
section 175 maintenance plan include a contingency plan and an 
obligation to submit a subsequent maintenance plan revision in 8 years 
as required by the Clean Air Act. The 2012 motor vehicle emissions 
budgets for the Cleveland-Akron-Lorain area are 46.64 tpd for VOC and 
95.89 tpd for NO<INF>X</INF>. The 2020 motor vehicle emissions budgets 
for the area are 31.48 tpd for VOC and 42.75 tpd for NO<INF>X</INF>.
* * * * *
    (hh) * * *
    (2) Approval--Ohio's 2002 inventory satisfies the base year 
emissions inventory requirements of section 182(a)(1) of the Clean Air 
Act for the Cleveland-Akron-Lorain area under the 1997 8-hour ozone 
standard.
    (ii) Approval--The 15 percent Volatile Organic Compound reasonable 
further progress plan for the Cleveland-Akron-Lorain 1-hour ozone area, 
submitted by Ohio on June 15, 2007, and February 22, 2008, satisfies 
the

[[Page 47422]]

requirements of section 182(b)(1) of the Clean Air Act.
    (jj) Approval--EPA is approving exemptions under section 182(f) 
from requirements for reasonably available control technology for 
oxides of nitrogen for the Cleveland-Akron-Lorain 8-hour ozone 
nonattainment area with respect to the 1997 ozone standards. This 
waiver was requested by Ohio on March 17, 2009.

PART 81--[AMENDED]

0
3. The authority citation for part 81 continues to read as follows:

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

0
4. Section 81.336 is amended by revising the entry for Cleveland-Akron-
Lorain, OH in the table entitled ``Ohio-Ozone (8-Hour Standard)'' to 
read as follows:


Sec.  81.336  Ohio.

* * * * *

                                                   Ohio-Ozone
                                                [8-Hour Standard]
----------------------------------------------------------------------------------------------------------------
                                             Designation \a\                           Classification
        Designated area        ---------------------------------------------------------------------------------
                                     Date\1\                Type                 Date\1\              Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Cleveland-Akron-Lorain, OH:
    Ashtabula County..........
    Cuyahoga County...........          9/15/2009  Attainment.
    Geauga County.............
    Lake County...............
    Lorain County.............
    Medina County.............
    Portage County............
    Summit County.............
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *
[FR Doc. E9-21818 Filed 9-14-09; 8:45 am]
BILLING CODE 6560-50-P


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