47414 Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Rules and Regulations 

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. 

SUMMARY: EPA is taking several related 

actions affecting the Cleveland-AkronLorain, 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 qualityassured 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 ClevelandAkron-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 ClevelandAkron-Lorain area, from the oxides of 

nitrogen (NOX) 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 

(NOX) Motor Vehicle Emission Budgets 

(MVEBs) for the Cleveland-AkronLorain 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, 

dagostino.kathleen@epa.gov. 

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 fourthhighest 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-AkronLorain 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 


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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 antibacksliding 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-AkronLorain area’s maintenance plan to the 

reductions currently required pursuant 

to the Clean Air Interstate Rule. This 

rule was remanded to EPA, and the 

process of developing a replacement 

rule is ongoing. However, the remand of 

CAIR does not alter the requirements of 

the NOX SIP Call and Ohio has now 

demonstrated that the area can maintain 

without any additional requirements 

(beyond those required by the NOX SIP 

Call). Therefore, EPA believes that 

Ohio’s demonstration of maintenance 

under sections 175A and 107(d)(3)(E) 

remains valid. 

The NOX SIP Call requires states to 

make significant, specific emissions 

reductions. It also provided a 

mechanism, the NOX Budget Trading 

Program, which states could use to 

achieve those reductions. When EPA 

promulgated CAIR, it discontinued 

(starting in 2009) the NOX Budget 

Trading Program, 40 CFR 51.121(r), but 

created another mechanism—the CAIR 

ozone season trading program—which 

states could use to meet their SIP Call 

obligations, 70 FR 25289–90. EPA notes 

that a number of states, when 

submitting SIP revisions to require 

sources to participate in the CAIR ozone 

season trading program, removed the 

SIP provisions that required sources to 

participate in the NOX Budget Trading 

Program. In addition, because the 

provisions of CAIR including the ozone 

season NOX trading program remain in 

place during the remand, EPA is not 

currently administering the NOX Budget 

Trading Program. Nonetheless, all 

states, regardless of the current status of 

their regulations that previously 

required participation in the NOX

Budget Trading Program, will remain 

subject to all of the requirements in the 

NOX SIP Call even if the existing CAIR 

ozone season trading program is 

withdrawn or altered. In addition, the 

anti-backsliding provisions of 40 CFR 

51.905(f) specifically provide that the 

provisions of the NOX SIP Call, 

including the statewide NOX emission 

budgets, continue to apply after 

revocation of the 1-hour standard. 

In the case of Ohio, the state has 

retained the SIP provisions requiring 

sources to participate in the NOX Budget 

Trading Program. Ohio EPA is in the 

process of promulgating a rule change 

stating that the NOX Budget Trading 

Program would not be applicable so 

long as CAIR remains in place. 

However, the drafted rule revision also 

provides that should CAIR requirements 

be removed, the NOX Budget Trading 

Program would once again apply, on 

condition that EPA maintains a NOX

Budget Trading Program. 

All NOX SIP Call states have SIPs that 

currently satisfy their obligations under 

the SIP Call, the SIP Call reduction 

requirements are being met, and EPA 

will continue to enforce the 

requirements of the NOX SIP Call even 

after any response to the CAIR remand. 

For these reasons, EPA believes that 

regardless of the status of the CAIR 

program, the NOX SIP call requirements 

can be relied upon in demonstrating 

maintenance. Here, the state has 

demonstrated maintenance based in part 

on those requirements. 

II. What Comments Did We Receive on 

the Proposed Rule? 

EPA provided a 30-day review and 

comment period. The comment period 

closed on July 13, 2009. EPA received 

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 Nonroad 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 NOX emissions 

between 2002 and 2006, since the 

correct numbers were used in 

calculating these values. 


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TABLE 4—CLEVELAND-AKRON-LORAIN VOC AND NOx EMISSIONS FOR ATTAINMENT YEAR 2006 

[tpd] 

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

2002 2006 

Net change 

(2002– 

2006) 

2002 2006 

Net change 

(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 threeyear 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 threeyear 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 


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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 ClevelandAkron-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-AkronLorain 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 


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determined that it will not interfere 

with attainment or maintenance of the 

2008 ozone standard nor any other 

standard, since the area is attaining the 

1997 ozone standard, no control 

measures are being removed from the 

SIP, and no implementation ceased. See 

Id. (showing deference to EPA’s 

interpretation of section 110(l)). See also 

the discussion of 110(l) in the 

Cincinnati 1-hour ozone redesignation 

at 70 FR 35960. The rationale stated in 

the Cincinnati redesignation applies 

here as well: 

‘‘EPA does not believe that approving a 

maintenance plan containing existing control 

measures that the State has demonstrated 

will provide emission reductions sufficient to 

maintain the 1-hour ozone standard can in 

any way interfere with Ohio’s obligations 

under the PM2.5 and 8-hour ozone standards 

for Cincinnati. EPA is not approving any 

relaxation of the existing control measures so 

emissions of VOC and NOX will not increase 

as a consequence of this action. Morevoer, 

Ohio will still have to meet whatever 

obligations it may have regarding the 

implementation of the new standards and 

determining that existing control measures 

will provide for maintenance of the 1-hour 

standard does not impair nor interfere with 

the state’s obligations regarding the new 

standards. EPA does not believe that section 

110(l) transforms this redesignation action 

into an obligation for the state to comply 

with its SIP obligations for the new standards 

earlier than otherwise required, which is the 

implication of the assertion that this action 

cannot proceed without a demonstration that 

additional control measures are not necessary 

to prevent interference with attainment of the 

PM2.5 and 8-hour ozone standards. Moreover, 

the commenter does not present any 

evidence or even assert that there is anything 

about any of the control measures contained 

in the maintenance plan that would 

somehow interfere with PM2.5, 8-hour ozone 

attainment, or other requirements. EPA does 

not believe that approval of this maintenance 

plan would interfere with the 8-hour ozone 

or PM2.5 attainment or other obligations 

applicable to the Cincinnati area. As 

Cincinnati’s ability to implement those 

standards would be the same if this 

redesignation were not occurring, approval of 

the maintenance plan cannot interfere with 

the requirements applicable for those 

standards.’’ 

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 ClevelandAkron-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 NOX

emission offsets for new and modified 

major sources; VOC or NOX emission 

offsets for new and modified minor 

sources; VOC or NOX controls on new 

minor sources (less than 100 tons per 

year (tpy)); increase in the ratio of 

emission offsets required for new 

sources; and, NOX RACT for existing 

combustion sources. The state can 

choose to implement one or more of 

these measures as necessary to correct a 

violation of the standard. As set forth in 

the proposal, we find that the 

contingency measures included in the 

maintenance plan are adequate to assure 

that the state will promptly correct a 

future violation of the standard that 

occurs after redesignation. 

(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, 


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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 NOX

through enforcement actions, secured 

$1,248,917 in penalties and issued 41 

orders. In addition, the department 

resolved 96% of its enforcement cases 

older than 21 months and all verified 

complaints within two years. With 

respect to legal authority, Ohio Revised 

Code 3704.03 provides the Director of 

Ohio EPA with the authority to develop 

rules and regulations necessary to meet 

state and Federal ambient air quality 

standards and to implement the 

program. 

The Court found that EPA was 

entitled to rely on the state’s 

certification that the SIP was a valid 

exercise of its legal authority. See Ohio 

Envtl. Council v. EPA, 593 F.2d 24, 28 

(6th Cir. 1979). In BCCA v. EPA, the 

Fifth Circuit Court of Appeals found 

that the state had ‘‘provided a general 

assurance that its fiscal and manpower 

resources were adequate to implement 

the SIP as a whole.’’ The Court also 

determined that the Houston, Texas SIP 

‘‘provided a detailed discussion about 

the legal authority of state and local 

agencies to implement, maintain, and 

enforce the plan as a whole, including 

citations to applicable law.’’ 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 § 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 

NOX waiver. The NOX waiver 

provisions of section 182(f)(1)(A) are 

designed simply to ensure that NOX

reductions are not required in those 

limited circumstances where NOX

reductions can actually lead to 

increased ozone concentrations. There 

has been no showing of a NOX

disbenefit in this proceeding and, 

therefore, a NOX waiver is improper. 

There is no evidence suggesting that 

NOX controls did not contribute to the 

purported attainment. Instead, the 


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evidence is clear that they did 

contribute and, therefore, a NOX waiver 

is inappropriate. 

Response: As described in EPA’s 

January 14, 2005 policy, Guidance on 

Limiting Nitrogen Oxides (NOX) 

Requirements Related to 8-Hour Ozone 

Implementation, section 182(f)(1) of the 

CAA provides that the new NOX

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 

NOX reductions from the sources 

concerned; 

(2) in nonattainment areas not within 

an ozone transport region, additional 

NOX reductions would not contribute to 

ozone attainment in the area; or 

(3) in nonattainment areas within an 

ozone transport region, additional NOX

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 NOX

exemption. Only the first test listed 

above is based on a showing that NOX

reductions result in a ‘‘disbenefit.’’ If 

any one of the tests is met, the section 

182(f) NOX requirements would not 

apply. 

In areas monitoring attainment of the 

ozone standard where section 182(f) 

NOX 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 NOX

reductions could not improve the area’s 

attainment status and, therefore, the 

NOX exemption request can be 

approved. 

The Cleveland-Akron-Lorain area is 

monitoring attainment of the 1997 8- 

hour ozone standard and, over the threeyear period used to demonstrate 

attainment with the NAAQS (2006– 

2008), NOX RACT emissions reduction 

requirements were not yet implemented 

in the area. Therefore, the ClevelandAkron-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 NOX 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 NOX RACT requirements, 

not the other NOX reductions required 

by section 182(f). In addition, EPA must 

make clear that any NOX waiver is only, 

as Ohio EPA requested, ‘‘for the interim 

period between approval of this 

redesignation request and approval of 

Ohio’s NOX RACT rules,’’ and does not 

imply that NOX 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 NOX RACT requirements 

for the Cleveland-Akron-Lorain area. In 

this final action, EPA is approving a 

waiver from only the NOX 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 NOX RACT rules as a prerequisite 

for redesignation with respect to the 

1997 8-hour ozone standard, EPA may 

in the future determine that NOX 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-AkronLorain 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-AkronLorain area as meeting the requirements 

of section 182(a)(1) of the CAA. EPA is 

approving a waiver from the section 

182(f) NOX 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 preexisting requirements under state law, 


jlentini on DSKJ8SOYB1PROD with RULES3
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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. 

■ Parts 52 and 81, chapter I, 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 KK—Ohio 

■ 2. Section 52.1885 is amended by 

adding paragraphs (ff)(9), (hh)(2), (ii) 

and (jj) to read as follows: 

§ 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 NOX. The 2020 motor vehicle 

emissions budgets for the area are 31.48 

tpd for VOC and 42.75 tpd for NOX. 

* * * * * 

(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 ClevelandAkron-Lorain 1-hour ozone area, 

submitted by Ohio on June 15, 2007, 

and February 22, 2008, satisfies the 


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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] 

■ 3. The authority citation for part 81 

continues to read as follows: 

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

■ 4. Section 81.336 is amended by 

revising the entry for Cleveland-AkronLorain, OH in the table entitled ‘‘OhioOzone (8-Hour Standard)’’ to read as 

follows: 

§ 81.336 Ohio. 

* * * * * 

OHIO-OZONE

[8–Hour Standard] 

Designated area 

Designation a Classification 

Date1 Type Date1 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. 

1This date is June 15, 2004, unless otherwise noted. 

* * * * * 

[FR Doc. E9–21818 Filed 9–14–09; 8:45 am] 

BILLING CODE 6560–50–P 


jlentini on DSKJ8SOYB1PROD with RULES3