Tuesday,

June 21, 2005

Part IV

Environmental 

Protection Agency

40 CFR Parts 52 and 81

Approval and Promulgation of State 

Implementation Plans and Designation of 

Areas for Air Quality Planning Purposes 

in Ohio; Final Rule

35946 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

1The 1-hour ozone NAAQS is violated when the 

annual average expected number of daily peak 1-

hour ozone concentrations equaling or exceeding 

0.125 parts per million (ppm) (125 parts per billion 

(ppb)) is 1.05 or greater over a three-year period at 

any monitoring site in the area of interest.

2Section 107(d)(3)(E) of the CAA specifies five 

criteria for redesignation to attainment of the 

NAAQS, of which acceptable air quality is only one 

of the criteria. See 70 FR 19898 for a complete 

listing of all five criteria.

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[R05–OAR–2005–OH–0004; FRL–7925–3] 

Approval and Promulgation of State 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes in Ohio; Redesignation of 

Cincinnati to Attainment of the 1–Hour 

Ozone Standard and Approval of 

Ozone Maintenance Plan; Approval of 

Volatile Organic Compound Emissions 

Control Regulations; and Approval of 

Motor Vehicle Emissions Budgets

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving a request 

from the State of Ohio, submitted in 

draft on March 10, 2005 and in final on 

May 20, 2005, to redesignate the 

Cincinnati area (Butler, Clermont, 

Hamilton, and Warren Counties) from 

nonattainment to attainment for the 1–

hour ozone National Ambient Air 

Quality Standard (NAAQS). In 

conjunction with this approval, EPA is 

approving the State’s plan for 

maintaining the 1–hour ozone NAAQS 

in the Cincinnati area through 2015 as 

a revision to the Ohio State 

Implementation Plan (SIP). EPA is 

approving Volatile Organic Compound 

(VOC) emission control regulations for 

various source categories, thus 

completing Ohio’s obligation to adopt 

Reasonably Available Control 

Technology (RACT) regulations for the 

Cincinnati area. EPA is approving 

periodic VOC and Oxides of Nitrogen 

(NOx) emission inventories for the 

Cincinnati area. EPA finds as adequate 

and is approving the 2015 VOC and NOx

Motor Vehicle Emission Budgets 

(MVEBs) for the Cincinnati area as 

contained in the Cincinnati area ozone 

maintenance plan. 

EPA is not, at this time, taking action 

on Ohio’s demonstrations that 

termination of the vehicle Inspection 

and Maintenance (I/M) programs in the 

Cincinnati and Dayton areas will not 

interfere with the attainment and 

maintenance of the 1–hour ozone 

NAAQS in these areas, and is not taking 

action on the State’s requests for 

conversion of the vehicle I/M programs 

in these areas to contingency measures 

in the 1–hour ozone maintenance plans. 

The State did not submit a 

demonstration of non-interference with 

the 8–hour ozone or fine particulate 

(PM2.5) standards, or with any other 

applicable requirements of the Clean Air 

Act (CAA). Such actions, however, may 

be considered in subsequent 

rulemakings.

DATES: This rule is effective on June 14, 

2005, except 40 CFR 52.1870 which is 

effective on July 21, 2005.

ADDRESSES: EPA has established a 

docket for this action under Regional 

Material in EDocket (RME) Docket ID 

No. R05–OAR–2005–OH–0004. All 

documents in the docket are listed in 

the RME index at http://docket.epa.gov/

rmepub/, once in the system, select 

‘‘quick search,’’ then key in the 

appropriate RME Docket identification 

number. 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 RME or 

in hard copy at the Environmental 

Protection Agency, Region 5, Air and 

Radiation Division, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. We 

recommend that you telephone Edward 

Doty, Environmental Scientist, at (312) 

886–6057 before visiting the Region 5 

office. This facility is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Edward Doty, Environmental Scientist, 

Criteria Pollutant Section, Air Programs 

Branch (AR–18J), EPA Region 5, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604, (312) 886–6057, 

doty.edward@epa.gov.

SUPPLEMENTARY INFORMATION: In the 

following, whenever ‘‘we,’’ ‘‘us,’’ or 

‘‘our’’ are used, we mean the United 

States Environmental Protection 

Agency.

Table of Contents 

I. What Is The Background for This Rule? 

II. What Actions Are We Taking and When 

Are They Effective? 

A. Finding of Continued Attainment for 

Cincinnati

B. Redesignation of the Cincinnati Area to 

Attainment of the 1-Hour Ozone NAAQS 

C. Approval of Ohio’s Ozone Maintenance 

Plan for the Cincinnati Area 

D. Approval and Finding of Adequacy of 

VOC and NOX Motor Vehicle Emission 

Budgets for the Cincinnati Area 

E. Approval of VOC Emission Control 

Regulations for Various Sources in the 

Cincinnati Area and Approval of 

Negative Declarations for Some VOC 

Source Categories 

F. Approval of Periodic Emission 

Inventories for the Cincinnati Area 

G. Termination of the Vehicle Inspection 

and Maintenance Programs in the 

Cincinnati and Dayton Areas 

H. Effective Date of These Actions 

III. Why Are We Taking These Actions? 

IV. What Are the Effects of These Actions? 

V. What Comments Did We Receive and 

What Are Our Responses? 

A. Comments Related to Ohio’s VOC RACT 

Regulations 

B. Comments Related to the Termination of 

the Vehicle Inspection and Maintenance 

Programs in the Cincinnati and Dayton 

Areas 

C. Comments Received After the Close of 

the Comment Period 

VI. Did Ohio Adopt All of the Volatile 

Organic Compound Emission Control 

Regulations Needed To Comply With the 

Reasonably Available Control 

Technology Requirements of the Clean 

Air Act? 

A. Source Categories Not Requiring New 

VOC Regulations 

B. Source Categories for Which VOC RACT 

Regulations Have Been Proposed and 

Adopted 

VII. Statutory and Executive Order Review

I. What Is The Background for This 

Rule? 

In accordance with section 107(d) of 

the Clean Air Act (CAA) as amended in 

1977, EPA designated all counties in the 

Cincinnati-Hamilton area (the Ohio 

portion of this area includes Butler, 

Clermont, Hamilton, and Warren 

Counties, and the Kentucky portion of 

this area includes Boone, Campbell, and 

Kenton Counties) as an ozone 

nonattainment area for the 1-hour ozone 

NAAQS in March 1978 (43 FR 8962). 

On November 6, 1991 (56 FR 56694), 

pursuant to section 107(d)(4)(A) of the 

CAA as amended in 1990, EPA 

designated the Cincinnati-Hamilton area 

as a moderate ozone nonattainment area 

based on monitored violations of the 1-

hour ozone NAAQS recorded during the 

1987–1989 period. 

From 1996 through 1998, air quality 

monitors in Ohio and Kentucky in the 

vicinity of the Cincinnati-Hamilton area 

recorded three years of complete, 

quality-assured ambient ozone data that 

did not violate the 1-hour ozone 

NAAQS.1 Thus, the area met the air 

quality requirement 2 for redesignation 

to attainment of the 1-hour ozone 

NAAQS. This area has continued to 

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35947

3A state request for parallel processing is used 

when the state has not completed adoption of a SIP 

revision request, but anticipates doing so prior to 

EPA’s completion of final rulemaking for the 

requested SIP revision. Parallel processing of a 

state’s draft SIP revision request can only lead to 

a final EPA rulemaking (without additional 

proposed rulemaking by the EPA) if the state’s final, 

adopted SIP revision request is essentially the same 

as the initial drafted SIP revision request or is 

modified in a manner requested by the EPA and 

noted in EPA’s parallel processing proposed rule.

monitor attainment of the 1-hour ozone 

NAAQS from 1996 through the present.

In 1999, the Ohio Environmental 

Protection Agency (Ohio EPA) and the 

Commonwealth of Kentucky Natural 

Resources and Environmental 

Protection Cabinet (Cabinet) submitted 

separate requests for the redesignation 

of the State-specific portions of the 

Cincinnati-Hamilton area to attainment 

of the 1-hour ozone NAAQS. On January 

24, 2000 (65 FR 3630), EPA proposed 

approval of the Ohio and Kentucky 

ozone redesignation requests. EPA 

issued a final rulemaking (65 FR 37879) 

on June 19, 2000, effective July 5, 2000, 

determining that the CincinnatiHamilton area had attained the 1-hour 

ozone NAAQS and approving the Ohio 

and Kentucky ozone redesignation 

requests, the States’ plans for 

maintaining the 1-hour ozone NAAQS, 

and their NOX emission control 

exemption requests (NOX control waiver 

requests). 

On August 17, 2000, two Ohio 

residents and the Ohio chapter of the 

Sierra Club petitioned the United States 

Court of Appeals for the 6th Circuit 

(Court) for review of EPA’s final rule on 

the States’ ozone redesignation requests 

for the Cincinnati-Hamilton area. The 

petitioners urged the Court to find that 

the EPA had erred in a number of 

respects in approving the redesignation 

requests. In its September 11, 2001 

decision, the Court upheld EPA’s 

actions with respect to all requirements 

for redesignation that related to 

Kentucky. The Court also rejected the 

majority of the petitioners’ challenges 

with respect to EPA’s approval of the 

Ohio redesignation request, with the 

sole exception of EPA’s finding that it 

could approve Ohio’s redesignation 

request before Ohio had fully adopted 

all of the VOC emission control rules 

needed to comply with the RACT 

requirements of part D, subpart 2 of the 

CAA. The Court concluded that EPA 

exceeded its discretion by determining 

that Ohio did not need to fully adopt all 

of the VOC RACT rules required by the 

CAA as a prerequisite for EPA’s 

approval of Ohio’s ozone redesignation 

request for the Cincinnati area. The 

Court thus vacated EPA’s action in 

redesignating the Cincinnati-Hamilton 

area to attainment of the 1-hour ozone 

NAAQS and ‘‘remanded for further 

proceedings consistent with this 

opinion.’’ See Wall v. EPA (265 F.3d 

436, 6th Circuit 2001). 

On February 12, 2002 (67 FR 6411), in 

a direct final rule, the EPA took action 

to reinstate a designation of attainment 

of the 1-hour ozone NAAQS for the 

Kentucky portion of the CincinnatiHamilton area. A submittal of a negative 

comment, however, resulted in the 

withdrawal of this rule on April 8, 2002 

(67 FR 16646). The reinstatement of the 

attainment designation for the Kentucky 

portion of the Cincinnati-Hamilton area 

was subsequently completed through 

promulgation of a final rule responding 

to comments on July 31, 2002 (67 FR 

49600). 

On March 12, 2002 (67 FR 11041), 

through a technical amendment to its 

June 19, 2000 final rule, the EPA revised 

the ozone designation of the Ohio 

portion of the Cincinnati-Hamilton area 

to nonattainment of the 1-hour ozone 

NAAQS with a classification of 

moderate nonattainment. This technical 

amendment became effective on April 

11, 2002.

On April 30, 2004 (69 FR 23858), the 

Cincinnati area was designated as 

nonattainment for the 8-hour ozone 

NAAQS and classified as a subpart 1 

(subpart 1 of the CAA) or ‘‘Basic’’ area. 

This designation became effective on 

June 15, 2004. Please note, however, 

that today’s final action primarily deals 

with the designation of this area for the 

1-hour ozone NAAQS and not for the 8-

hour ozone NAAQS. 

On March 10, 2005, the Ohio EPA 

submitted a new ozone redesignation 

request and ozone maintenance plan, in 

draft, for the Cincinnati area. This 

submittal also included draft VOC 

emission control rules that Ohio was 

preparing to adopt to comply with the 

RACT requirements of the CAA. The 

submittal requested the EPA to parallel 

process 3 the ozone redesignation 

request, ozone maintenance plan, and 

VOC emission control rules, and noted 

that the State had scheduled a public 

hearing to address the submittal items.

On April 4, 2005, the Ohio EPA 

submitted additional information, 

including a negative declaration to 

avoid RACT for plastic parts coating, 

and demonstrations showing that 

terminating the vehicle inspection and 

maintenance (vehicle I/M) programs in 

the Cincinnati and Dayton areas will not 

interfere with the attainment and 

maintenance of the 1-hour ozone 

NAAQS in these areas. Consequently, 

the Ohio EPA proposed to revise the SIP 

and the ozone maintenance plans for 

these areas to move the vehicle I/M 

programs from the active portion of the 

SIP to the contingency measure portions 

of the area-specific maintenance plans. 

This submittal revised the ozone 

maintenance demonstrations for these 

areas and revised mobile source 

emission budgets to reflect the changes 

in mobile source VOC and NOX

emissions that will result when the I/M 

programs are terminated. Finally, this 

submittal included a committal from the 

State to complete and submit analyses 

in compliance with section 110(l) of the 

CAA to demonstrate that terminating 

the vehicle I/M programs will not 

interfere with the attainment of any 

NAAQS and with compliance with 

requirements of the CAA. 

On April 15, 2005, EPA published a 

proposed rule (70 FR 19895), proposing 

to: (1) Find that the Cincinnati-Hamilton 

area has continued to attain the 1-hour 

ozone NAAQS and to approve Ohio’s 

request for the redesignation of the 

Cincinnati area to attainment of the 1-

hour ozone NAAQS; (2) approve Ohio’s 

ozone maintenance plan for the 

Cincinnati area; (3) approve certain VOC 

emission control regulations as meeting 

the RACT requirements of the CAA; (4) 

approve periodic emission inventories 

for the Cincinnati area; and (5) notify 

the public that the mobile source VOC 

and NOX emission estimates projected 

through 2015 in the Cincinnati area 

maintenance plan are approvable and 

adequate for conformity purposes. In 

addition, we proposed to find that Ohio 

has demonstrated that termination of 

the vehicle I/M programs in the 

Cincinnati and Dayton areas will not 

interfere with the attainment and 

maintenance of the 1-hour ozone 

NAAQS in these areas. This proposed 

rule established a 30-day public 

comment period. 

This rule is EPA’s final action on the 

April 15, 2005 proposed rule as it 

relates to attainment and maintenance 

of the 1-hour ozone NAAQS in the 

Cincinnati area. Since the final, Stateadopted SIP revision request is 

substantially the same as that submitted 

for parallel processing by the EPA and 

contains only significant revisions as 

requested by the EPA and noted in our 

April 15, 2005 proposed rule, we will 

not publish an additional proposed rule 

on this State submittal. EPA is, 

however, not taking final action on 

certain portions of the April 15, 2005 

proposed rule as noted below. 

II. What Actions Are We Taking and 

When Are They Effective? 

After consideration of the comments 

received in response to the April 15, 

2005 proposed rule, as described in 

section V below, and the State’s final, 

35948 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

4Note that the contingency plan adopted by the 

State also includes VOC RACT for sources covered 

by new control technology guidelines issued in 

response to the 1990 CAA amendments. This 

contingency measure has become moot because the 

State has adopted such RACT rules and is in the 

process implementing these regulations.

5Prior to implementing lower RVP gasoline 

requirements, the State of Ohio would have to be 

granted a waiver to address preemption 

requirements under section 211(c)(4)(C) of the CAA.

adopted SIP revisions and supporting 

material (reviewed in draft form in the 

April 15, 2005 proposed rule), we are 

taking the following actions: 

A. Finding of Continued Attainment for 

Cincinnati 

In its June 19, 2000 rulemaking, EPA 

issued a final rule determining that the 

Cincinnati-Hamilton area had attained 

the 1-hour ozone NAAQS (65 FR 

37879). While the Court, in Wall v. EPA, 

vacated EPA’s action redesignating the 

area to attainment, it did not vacate 

EPA’s determination of attainment for 

the area. Therefore, the determination of 

attainment remains intact and in effect. 

67 FR 49600 (July 31, 2002). As a result 

of this determination of attainment, EPA 

also determined that certain attainment 

demonstration requirements, along with 

certain other related requirements of 

part D of title I of the CAA are not 

applicable to the area. In its April 15, 

2005 proposal, EPA proposed to find 

that the Cincinnati-Hamilton area has 

continued to attain the 1-hour NAAQS. 

70 FR 19899, 19901. In this notice we 

are finalizing this finding. In addition, 

since the Cincinnati-Hamilton area 

continues to attain the 1-hour ozone 

NAAQS, we note that a NOX emission 

control waiver pursuant to section 

182(f) of the CAA, approved on July 13, 

1995 (60 FR 36060) and extended on 

June 19, 2000 (65 FR 37879), continues 

in the Cincinnati area. 

The State must continue to operate an 

appropriate monitoring network, in 

accordance with 40 CFR part 58, to 

verify the attainment status of the area. 

The air quality data relied on to 

determine that the area is attaining the 

ozone NAAQS must be consistent with 

40 CFR part 58 requirements and other 

relevant EPA guidance and recorded in 

EPA’s Aerometric Information Retrieval 

System (AIRS). 

EPA has reviewed the ambient air 

monitoring data for ozone for the 

Cincinnati-Hamilton area from the 2002 

to 2004 ozone seasons (for the 

Cincinnati-Hamilton area, the ozone 

season is April 1 through October 31 of 

each year, when the highest 1-hour 

ozone concentrations are typically 

recorded). On the basis of this review, 

EPA has determined that the area has 

continued to attain the 1-hour ozone 

NAAQS during the 2002–2004 period. 

Therefore, the State of Ohio is not 

required to submit an ozone attainment 

demonstration, Reasonably Available 

Control Measures (RACM) regulations, a 

Reasonable Further Progress (RFP) plan, 

and a section 172(c)(9) contingency 

measure plan, nor does it need any 

other measures (other measures 

mandated by the CAA) to attain the 1-

hour ozone NAAQS in the CincinnatiHamilton area. 

B. Redesignation of the Cincinnati Area 

to Attainment of the 1-Hour Ozone 

NAAQS 

As just explained, EPA has 

determined that the entire CincinnatiHamilton area has attained the 1-hour 

ozone standard. In this final rule, EPA 

is taking action on Ohio’s request to 

redesignate the Ohio portion (the 

Cincinnati area) of the CincinnatiHamilton area to attainment of the 1-

hour ozone NAAQS. As noted above, on 

February 12, 2002 (67 FR 6411), EPA 

reinstated its approval of a 

redesignation to attainment of the 1-

hour NAAQS for the Kentucky portion 

of the Cincinnati-Hamilton area. Also as 

noted above, on remand from the Court, 

Wall v. EPA, 265 F.3d 436 (6th Cir. 

2001), on March 12, 2002 (67 FR 11041), 

EPA reinstated a designation of 

nonattainment of the 1-hour ozone 

NAAQS for the Ohio portion of the 

Cincinnati-Hamilton area. Thus, only 

the Ohio portion of the CincinnatiHamilton area was left with a 

designation of nonattainment for the 1-

hour ozone NAAQS in this area. Thus, 

this final rule only affects the Ohio 

portion of the Cincinnati-Hamilton area.

EPA is approving the request from the 

State of Ohio to redesignate the 

Cincinnati area to attainment of the 1-

hour ozone NAAQS. With our approval 

of Ohio’s VOC RACT rules, as discussed 

below, the Cincinnati area has complied 

with all CAA criteria for redesignation 

to attainment of the NAAQS, as set forth 

in section III below. 

C. Approval of Ohio’s Ozone 

Maintenance Plan for the Cincinnati 

Area 

EPA is approving Ohio’s plan for 

maintaining the 1-hour ozone NAAQS 

in the Cincinnati area through 2015 as 

a revision to the Ohio SIP. The adopted 

maintenance plan contains triggering 

mechanisms and contingency measures 

designed to promptly correct a violation 

of the 1-hour ozone NAAQS that occurs 

after redesignation of the Cincinnati 

area to attainment of the NAAQS. 

Section 175A of the CAA requires that 

a maintenance plan include such 

contingency measures as EPA deems 

necessary to assure that the State will 

promptly correct a violation of the 

NAAQS that occurs after redesignation. 

The VOC contingency measures listed 

in the adopted maintenance plan are the 

following: 4

1. Lower Reid Vapor Pressure (RVP) 

gasoline; 5

2. Reformulated gasoline; 

3. Broader geographic coverage of 

existing regulations; 

4. Application of RACT to smaller 

existing sources; 

5. Implementation of one or more 

transportation control measures 

sufficient to achieve at least a 0.5 

percent reduction in area wide VOC 

emissions; 

6. Alternative fuel programs for fleet 

vehicle operations; 

7. Controls on consumer products 

consistent with those adopted elsewhere 

in the United States; 

8. VOC offsets for new or modified 

major sources; 

9. VOC offsets for new or modified 

minor sources; 

10. Increased ratio of VOC offsets 

required for new sources; and 

11. Requirements of VOC controls on 

new minor sources. 

Ohio also requested that the vehicle I/

M program, known as E-Check in Ohio, 

be converted to a contingency measure 

in the maintenance plan. However, Ohio 

offered EPA the option of first 

approving a maintenance plan in which 

E-Check remains an active measure and 

later approving a revision to the 

maintenance plan to convert E-Check to 

a contingency measure. For reasons 

described below, EPA is approving a 

maintenance plan in which the 

projected emission estimates take no 

credit for the operation of E-Check, even 

though E-Check would remain an active 

measure in the SIP. 

Consideration and selection of one or 

more of the contingency measures will 

take place in the event that it is verified 

that the 1-hour ozone NAAQS is 

violated after the redesignation of the 

Cincinnati area to attainment of the 

NAAQS. The selected contingency 

measure(s) will be implemented within 

12 months, after verification of a 

NAAQS violation. If the NAAQS 

continues to be violated after the 

implementation of the VOC contingency 

control measure, NOX RACT will be 

adopted and implemented. As noted 

above, the list of contingency measures 

is made up entirely of VOC emission 

control measures. Ohio’s first preference 

for the selection of an emissions control 

measure as a contingency measure is to 

pursue a VOC emissions reduction 

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35949

measure. The State wants to pursue 

NOX RACT as an additional, 

contingency emissions control measure 

only if the implementation of the VOC 

emissions control measure fails to 

prevent additional violations of the 1-

hour ozone NAAQS. 

The maintenance plan estimates 

emissions 10 years into the future from 

the anticipated year of the redesignation 

as required by section 175A of the CAA. 

These emission estimates are for point, 

area, and mobile sources in the Ohio 

portion of the Cincinnati-Hamilton area. 

The emissions estimates demonstrate 

continued maintenance of the 1-hour 

ozone standard through 2015. The latest 

information was used to project these 

emissions. The mobile source emissions 

estimates were developed using the 

MOBILE6 model. As noted above, the 

mobile source emission estimates do not 

include the emission reductions 

resulting from the continued 

implementation of the E-Check program. 

The maintenance plan demonstrates 

that the 1-hour standard can be 

maintained without taking credit for the 

E-Check program. The State continues 

to implement the E-Check program in 

the Cincinnati area in compliance with 

the current SIP, but anticipates it will 

submit a request for its future 

termination and retention as a 

contingency measure. In this request, 

the State will demonstrate that 

termination of the E-Check program will 

not interfere with the attainment of any 

NAAQS and with compliance with any 

requirement of the CAA. In addition, the 

State will demonstrate compliance with 

40 CFR 51.372(c). 

Despite the fact that Ohio is 

continuing with the implementation of 

the E-Check program, we believe we can 

approve the ozone maintenance plan 

even though Ohio has not taken credit 

for the emissions reductions resulting 

from the E-Check program in the 

maintenance demonstration. Ohio’s 

approach provides a conservative 

demonstration that shows that 

maintenance of the 1-hour ozone 

standard will occur in the Cincinnati 

area even if the E-Check program is 

terminated. 

D. Approval and Finding of Adequacy 

of VOC and NOX Motor Vehicle 

Emission Budgets for the Cincinnati 

Area

EPA finds as adequate and approves 

the 2015 Motor Vehicle Emission 

Budgets (MVEBs) of 26.2 tons per day 

for VOC and 39.5 tons per day for NOX

for the Ohio portion of the CincinnatiHamilton area in the State-adopted 

maintenance plan. These MVEBs are 

subarea budgets for the Ohio portion of 

the Cincinnati-Hamilton area and will 

be used for future transportation 

conformity determinations. 

Although these budgets do not 

include emissions reductions from the 

E-Check program, the emissions 

estimates continue to decline from 

current estimates (from 1996 and 2005 

levels, see Tables 4 and 5 in our April 

15, 2005 proposed rule, 70 FR 19911) 

and demonstrate that the 1-hour ozone 

standard will be maintained. These 

MVEBs have been through the 

appropriate public involvement and 

comment period requirements without 

receiving adverse comment. The 

budgets meet the adequacy criteria, 40 

CFR 93.118(e)(4), and are approvable as 

part of the 1-hour ozone maintenance 

plan. These budgets set a tighter limit 

(the budgets are lower) than the current 

2010 Cincinnati area emissions budgets, 

which are currently being used for 

transportation conformity purposes. The 

current 2010 budgets are: 37.9 tons per 

day of VOC and 62.3 tons per day of 

NOX. The approved 2015 budgets will 

replace the current 2010 budgets, as 

detailed in our April 15, 2005 proposed 

rule, upon the effective date of this rule 

so that the maintenance plan, as 

approved, will extend 10 years past the 

redesignation date as required by 

section 175A of the CAA. The newer 

budgets, which are being approved as 

part of the 1-hour maintenance plan, are 

consistent with the goals of section 

110(l) of the CAA because they set a 

tighter cap on mobile source VOC and 

NOX emissions for transportation 

conformity purposes, thereby limiting 

growth in mobile source emissions 

allowed in the transportation plan. 

Subsequent to the effective date of 

this rule, the State of Ohio and local 

planning agencies in the Cincinnati area 

will have to use the 2015 emissions 

budgets in all transportation conformity 

analyses and demonstrations. 

E. Approval of VOC Emission Control 

Regulations for Various Sources in the 

Cincinnati Area and Approval of 

Negative Declarations for Some VOC 

Source Categories 

As noted below, EPA is approving 

VOC emission control regulations that 

the State has adopted for the following 

source categories: (1) Bakeries; (2) batch 

chemical operations; (3) industrial 

wastewater; (4) synthetic organic 

chemical manufacturing industry 

reactor and distillation units; and (5) 

wood furniture manufacturing as 

meeting the VOC RACT requirements of 

the CAA. EPA is also approving 

negative declarations (determinations 

that there are no applicable sources in 

the Cincinnati area requiring the 

implementation of RACT emission 

control measures) for the following 

source categories: (1) Industrial cleaning 

solvents; (2) shipbuilding and ship 

repair industry; (3) automobile 

refinishing; (4) aerospace manufacturing 

and rework facilities; (5) volatile organic 

liquid storage tanks; (6) lithographic 

printing; and (7) plastic parts coating. 

These adopted VOC RACT rules and 

negative declarations complete Ohio’s 

obligations to meet the VOC RACT 

requirements of the CAA. 

F. Approval of Periodic Emission 

Inventories for the Cincinnati Area 

EPA approves Ohio’s emission 

inventories for 1996, 1999, and 2002 

documented in Ohio’s July 2, 1999, 

December 22, 1999, March 8, 2005, and 

April 4, 2005 submittals, as meeting the 

requirements for such periodic emission 

inventories contained in section 

182(a)(3)(A) of the CAA. 

G. Termination of the Vehicle 

Inspection and Maintenance Programs 

in the Cincinnati and Dayton Areas 

As noted above, EPA is approving 

Ohio’s maintenance plan for the 

Cincinnati area as demonstrating that 

the area will maintain the 1-hour ozone 

standard even without taking credit for 

emissions reductions due to the E-Check 

program. This, however, does not mean 

that EPA is approving the termination of 

the E-Check program in this area. As 

explained in detail below, in response 

to public comments on our April 15, 

2005 proposed rule, EPA is not taking 

action on the conversion of E-Check to 

contingency measures in the Cincinnati 

and Dayton areas until the State has 

submitted, and EPA has approved 

certain demonstrations and other 

information in compliance with 40 CFR 

51.372(c) and section 110(l) of the CAA. 

In our April 15, 2005 proposed rule at 

70 FR 19912, we requested the State of 

Ohio to project VOC and NOX emissions 

for the Dayton area through 2015 to 

demonstrate that attainment of the 1-

hour NAAQS could be maintained 

without the emissions reductions 

resulting from the E-Check program. In 

response to our request, the Ohio EPA 

has provided projected emissions data 

demonstrating that the 1-hour ozone 

NAAQS can be maintained through 

2015 even if the E-Check program is 

terminated in the Dayton area. As noted 

here, however, we are not taking action 

on the conversion of the E-Check 

program to a contingency measure in 

the Dayton 1-hour ozone maintenance 

plan at this time. Further, we are not 

discussing the details of Ohio’s 

projected VOC and NOX emissions in 

this final action. We are deferring this 

35950 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

discussion until we review Ohio’s 

section 110(l) demonstrations of noninterference with attainment of other 

NAAQS and with compliance with the 

requirements of the CAA for this area. 

Through that future rulemaking, the 

public will be given an opportunity to 

review and comment on Ohio’s new 

emission projections for 2010 and 2015. 

H. Effective Date of These Actions 

EPA finds that there is good cause for 

this redesignation to attainment and 

approval of the ozone maintenance 

plan, motor vehicle emission budgets 

for the Cincinnati area, and periodic 

emissions inventories as revisions to the 

SIP to become effective on June 14, 2005 

after signature and transmittal of a rule 

report, including a copy of the rule, to 

the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States in 

accordance with the Congressional 

Review Act, 5 U.S.C. 801 et seq. This is 

because a delayed effective date is 

unnecessary due to the nature of a 

redesignation to attainment, which 

confirms monitored attainment of the 

NAAQS over a number of years and 

relieves the area from certain CAA 

requirements that otherwise would 

apply to it. The immediate effective date 

for this action is authorized under both 

5 U.S.C. 553(d)(1), which provides that 

a rulemaking action may become 

effective less than 30 days after 

publication if the rule ‘‘grants or 

recognizes an exemption or relieves a 

restriction’’ and 5 U.S.C. 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.’’

With respect to its approval of the VOC 

emissions control regulations for 

various source categories, these rules are 

effective 30 days after publication in the 

Federal Register.

III. Why Are We Taking These Actions? 

EPA has determined that the 

Cincinnati-Hamilton area has continued 

to attain the 1-hour ozone standard. EPA 

has determined that the State of Ohio 

has adopted all VOC RACT rules 

required by the CAA, for all source 

categories covered by Control 

Techniques Guidelines (CTGs), with the 

exception of source categories lacking 

applicable sources in the Cincinnati 

area and addressed through negative 

declarations, and for all major non-CTG 

sources for the Cincinnati area. Finally, 

EPA has determined that the State of 

Ohio has demonstrated that all other 

criteria for the redesignation of the 

Cincinnati area from nonattainment to 

attainment of the 1-hour ozone NAAQS 

have been met. EPA is fully approving 

a maintenance plan meeting the 

requirements of sections 175A and 

107(d) of the CAA. 

In the April 15, 2005 proposed rule at 

70 FR 19898, EPA described the 

applicable criteria for redesignation to 

attainment. Specifically, section 

107(d)(3)(E) allows for redesignation 

provided that: (1) The Administrator 

determines that the area has attained the 

applicable NAAQS; (2) the 

Administrator has fully approved the 

applicable implementation plan for the 

area under section 110(k) of the CAA; 

(3) The Administrator determines that 

the improvement in air quality is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the applicable state 

implementation plan, applicable 

Federal air pollution control 

regulations, and other permanent and 

enforceable emission reductions; (4) the 

Administrator has fully approved a 

maintenance plan for the area as 

meeting the requirements of section 

175A of the CAA; and, (5) the State 

containing such area has met all 

requirements applicable to the area 

under section 110 and part D of the 

CAA. 

EPA has determined that the 

Cincinnati-Hamilton area has continued 

to attain the applicable NAAQS. EPA is 

fully approving the applicable 

implementation plan for the Cincinnati 

area under section 110(k) of the CAA. 

EPA has determined that the 

improvement in air quality in the 

Cincinnati-Hamilton area is due to 

permanent and enforceable emission 

reductions resulting from 

implementation of the applicable 

implementation plan and applicable 

Federal air pollution control 

regulations. EPA is fully approving a 

maintenance plan for the Cincinnati 

area as meeting the requirements of 

section 175A of the CAA. EPA is 

approving VOC RACT rules completing 

Ohio’s VOC RACT rule adoption 

requirements under the CAA. EPA is 

approving periodic emission inventories 

for the Cincinnati area, meeting the 

CAA requirements for such emission 

inventory updates. Finally, EPA 

concludes that Ohio has met all 

requirements applicable to the 

Cincinnati area for purposes of 

redesignation to attainment of the 1-

hour ozone NAAQS under section 110 

and part D of the CAA. 

By finding that the maintenance plan 

provides for maintenance of the 1-hour 

ozone NAAQS through 2015, EPA is 

hereby finding adequate and approving 

the 2015 VOC and NOX MVEBs 

contained within the maintenance plan. 

The MVEB for VOC in the Cincinnati 

area is 26.2 tons per day. The MVEB for 

NOX in the Cincinnati area is 39.5 tons 

per day. 

The rationale for these findings and 

actions are as stated in this rulemaking 

and in the April 15, 2005 proposed rule, 

found at 70 FR 19895. 

In our April 15, 2005 proposed rule, 

we proposed to approve the 

redesignation of the Cincinnati area and 

to approve Ohio’s new VOC emission 

control regulations through parallel 

processing. Our proposed rulemaking 

was completed during the same period 

that Ohio itself was completing its 

adoption of the maintenance plan for 

the Cincinnati area and of needed VOC 

emission control regulations. This 

parallel processing was done at Ohio’s 

request to expedite rulemaking on 

Ohio’s redesignation and SIP revision 

requests. Such parallel rulemaking can 

only be completed through final 

rulemaking without additional proposed 

rulemaking if Ohio makes a final 

submittal of adopted plans and VOC 

emission control regulations that do not 

significantly differ from the versions 

described and reviewed by the EPA in 

its proposed rulemaking (including, 

where applicable, prospective revisions 

described and requested by EPA in the 

proposed rulemaking). The State has in 

fact here provided a final submittal that 

matches the draft submittal described 

and reviewed in the notice of proposed 

rulemaking, except that the final 

submittal includes the revisions to 

RACT rules that EPA described as 

necessary in its notice of proposed 

rulemaking. Therefore, we believe that 

the public has had suitable opportunity 

to comment on the substance of our 

April 15, 2005 proposed rule and 

today’s final rule, and that EPA may 

properly proceed with final action on 

the State’s submittal. 

IV. What Are the Effects of These 

Actions? 

EPA concludes that the Cincinnati 

area has continued to attain the 1-hour 

ozone NAAQS, and, thus, the ozone 

attainment demonstration, RFP plan, 

and certain other related requirements 

of part D of title I of the CAA, including 

the section 172(c)(9) contingency 

measure requirements (measures needed 

to mitigate a state’s failure to achieve 

reasonable further progress toward, and 

attainment of a NAAQS), the section 

182 attainment demonstration and rate 

of progress requirements, and the 

section 182(j) multi-state attainment 

demonstration requirements continue to 

be inapplicable to the Cincinnati area. 

Approval of the Ohio redesignation 

request changes the official designation 

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35951

6Although the commenter does not specifically 

reference sections 182(b)(2)(B) and (C), these 

provisions are subject to the same interpretation. 

Subsection (B) uses the same phrasing as subsection 

(A)—requiring RACT for sources ‘‘covered by any 

[pre-1990] CTG.’’ Subsection (C), when read in 

conjunction with the opening paragraph of section 

182(b)(2), requires RACT rules for major stationary 

sources in the area that are not covered by a CTG. 

Thus, RACT rules are not needed for sources that 

do not meet the definition of a ‘‘major stationary 

source,’’ which is 100 tpy for the Cincinnati area, 

which is a 1-hour moderate ozone nonattainment 

area.

for the 1-hour ozone NAAQS found at 

40 CFR part 81 for the Ohio portion of 

the Cincinnati-Hamilton area from 

nonattainment to attainment. It also 

incorporates into the Ohio SIP a plan for 

maintaining the 1-hour ozone NAAQS 

through 2015. The maintenance plan 

includes contingency measures to 

remedy any future violations of the 1-

hour ozone NAAQS, and includes VOC 

and NOX MVEBs for 2015 for the 

Cincinnati area. 

As noted above, Ohio has submitted 

projected VOC and NOX emissions for 

2015 to revise the Dayton area 1-hour 

ozone maintenance plan. We are not 

taking action on these projected 

emissions in this final rule, but will 

address them in a future rulemaking 

when we address Ohio’s section 110(l) 

demonstrations showing that 

terminating the E-Check program in the 

Dayton area will not interfere with the 

attainment of any NAAQS and with 

compliance with the requirements of the 

CAA. This future rulemaking will 

establish revised MVEBs for the Dayton 

area, and will provide for public 

comment on the new MVEBs. 

EPA’s final Phase 1 rule to implement 

the 8-hour ozone NAAQS (69 FR 23951, 

April 30, 2004) provided that the 1-hour 

ozone standard would be revoked for an 

area one year after the effective date of 

the area’s designation for the 8-hour 

ozone NAAQS (June 15, 2004). 40 CFR 

50.9(b). The Phase 1 rule also provided 

that an area’s attainment status for the 

1-hour ozone standard, as of the area’s 

date of designation for the 8-hour ozone 

standard, establishes the 1-hour 

emissions control obligations that must 

remain in place for purposes of 

preventing anti-backsliding. 40 CFR 

51.905. For purposes of the antibacksliding provisions of the Phase 1 

rule, the Cincinnati area remains a 1-

hour nonattainment/8-hour 

nonattainment area subject to the 

requirements of 40 CFR 51.905(a)(1).

Today’s action to approve VOC RACT 

rules incorporates these rules into the 

Ohio SIP and makes the rules federally 

enforceable. 

Today’s action does not affect the 

status of the E-Check program in either 

the Cincinnati or Dayton areas. This 

program remains an active measure in 

the Ohio SIP for these areas, and Ohio 

is continuing to implement this 

program. As discussed below, before 

Ohio can convert E-Check to a 

contingency measure for either area, 

Ohio has to modify its legislation to 

assure that the State has provided for 

legislative authority to restart E-Check 

on a contingency basis in compliance 

with 40 CFR 51.372(c). As noted in the 

proposed rulemaking, EPA also expects 

Ohio to provide replacement measures 

or otherwise demonstrate noninterference to assure that a 

discontinuation of E-Check would not 

interfere with attainment of any 

NAAQS, including the 8-hour ozone 

and PM2.5 standards, or interfere with 

meeting other requirements of the CAA, 

as mandated under section 110(l) of the 

CAA. EPA must complete rulemaking 

finding that 40 CFR 51.372(c) and 

section 110(l) of the CAA have been 

satisfied before Ohio discontinues the ECheck program and converts E-Check to 

contingency measures in the ozone 

maintenance plans for the Cincinnati 

and Dayton areas. 

V. What Comments Did We Receive and 

What Are Our Responses? 

We received four letters commenting 

on the April 15, 2005 proposed rule. All 

four of the letters contained comments 

critical of various portions of our 

proposed rule. The first letter was sent 

by the American Lung Association 

(ALA) on April 6, 2005. ALA, in 

conjunction with the Natural Resources 

Defense Council, sent additional 

comments on April 25, 2005. ALA, in 

conjunction with the American Lung 

Association of Ohio, the Ohio 

Environmental Council, Earthjustice, 

and the Natural Resources Defense 

Council, sent more extensive comments 

on May 16, 2005. Earthjustice also sent 

comments on May 16, 2005. A summary 

of the comments and EPA’s responses to 

them are provided below. 

A. Comments Related to Ohio’s VOC 

RACT Regulations 

Earthjustice is critical of EPA’s 

approval of Ohio’s negative declarations 

for certain VOC source types for RACT 

purposes and EPA’s conclusion that 

Ohio has met all of the VOC RACT 

requirements of the CAA for the 

Cincinnati area. 

Comment 1: The plain language of 

182(b)(2)(A) mandates that each 

moderate area SIP shall require 

implementation of RACT for each 

category of VOC sources covered by a 

CTG document issued between 

November 15, 1990 and the date of 

attainment. The State’s duty to adopt 

these RACT provisions is not waived 

merely because no individual sources 

are big enough to trigger the RACT 

control requirements. 

Response 1: Ohio EPA submitted 

negative declarations for seven source 

categories. Of these seven categories, 

Shipbuilding and Ship Repair 

Operations and Aerospace 

Manufacturing and Rework facilities are 

covered by a post-1990 CTG (subject to 

CAA section 182(b)(2)(A)) and each CTG 

contains specific applicability cutoffs. 

The remaining 5 categories of sources 

are considered ‘‘non-CTG’’ source 

categories subject to section 182(b)(2)(C) 

of the CAA, and a RACT rule would be 

required for any of these source 

categories if any source within the 

source category has greater than 100 

tons VOC per year of potential non-CTG 

emissions (either by itself or combined 

with other non-CTG sources at a facility) 

and is not subject to federally 

enforceable operating and/or production 

restrictions limiting the facility to less 

than 100 tons per year of non-CTG VOC 

emissions. Non-CTG emissions include 

emissions from source categories for 

which there is not a CTG document, and 

also include unregulated emissions from 

source categories covered by a CTG 

category. Potential emissions or 

potential to emit (PTE) represents the 

emissions from a source if it were at 

maximum production and operating 

8,760 hours per year (i.e., 24 hours/day, 

7 days/week), essentially a physical 

emissions ceiling. 

We disagree with the commenter that 

section 182(b)(2)(A) requires the State to 

adopt RACT rules where there are no 

sources in the area that have the 

potential to emit VOC above the cut-off 

levels specified in the relevant CTGs. 

Section 182(b)(2)(A) requires the State 

to adopt RACT rules for ‘‘[e]ach category 

of VOC sources in the area covered by 

a CTG document issued by the 

Administrator between the date of 

enactment of the Clean Air Act 

Amendments of 1990 and the date of 

attainment.’’ Thus, a State must adopt 

RACT rules for categories of sources 

‘‘covered by a CTG document.’’ Each 

CTG document establishes a source cutoff for applicability of RACT. Sources 

with emissions at or above the cut-off 

are ‘‘covered by the CTG document,’’

and sources that are below the cut-off 

are not ‘‘covered by the CTG 

document.’’ Thus, where a state can 

demonstrate that there are no sources in 

an area that meet the requirements for 

RACT as set forth in a specific CTG, 

then the State is not required under 

section 182(b)(2)(A) to adopt a RACT 

rule for that category of sources. 6 This 

35952 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

7Coatings are materials, such as paint, that are 

used to coat another surface. Solvents are frequently 

used at coating facilities to clean the coating 

material from the instruments and other surfaces 

that were not intended to be coated.

interpretation of the Act by EPA is longstanding and was in fact set forth in the 

April 16, 1992, General Preamble for the 

implementation of title I of the CAA of 

1990. In that notice, we stated: ‘‘All 

States should submit negative 

declarations for those source categories 

for which they are not adopting CTGbased regulations (because they have no 

sources above the CTG recommended 

threshold)* * *’’ (57 FR 13512, April 

16, 1992).

For the reasons provided elsewhere in 

this notice, we believe that Ohio EPA 

has thoroughly documented that there 

are, in fact, no sources in the Cincinnati 

ozone nonattainment area that are above 

the applicability cutoff and thus the 

State was not required to submit RACT 

rules for those two CTG categories.

Comment 2: Neither the State nor EPA 

have documented that all sources 

within each of the seven categories do 

in fact have potential to emit at levels 

below the relevant thresholds (aside 

from those sources that are subject to 

enforceable emission caps). Aside from 

those sources that are subject to 

enforceable emission caps that keep 

them below the threshold, the State has 

not explained how it calculated or 

estimated potential to emit at all of the 

relevant sources. For example, for 

Industrial Cleaning Solvents, the State’s 

negative declaration consists of a letter 

with a table showing emission figures 

for each company but does not explain 

how the emission figures were derived. 

An entry of 184.65 tons of VOC 

emissions for coatings was difficult to 

reconcile with the state’s assertion that 

no facilities with Industrial Cleaning 

Solvent operations have combined nonCTG PTE of 100 Tons per year or more. 

Response 2: The State has fully 

documented that there are no sources in 

each of the seven source categories with 

potential emissions above the applicable 

cut-off levels. In the negative 

declaration for each source-category, the 

State first explained how it searched the 

area for any sources that potentially 

could be subject to the relevant CTG or 

to non-CTG RACT. Once the State 

developed the list of sources potentially 

subject to RACT, it then evaluated the 

individual sources to determine 

whether the sources had potential 

emissions above the applicable cut-off. 

If a source had a federally-enforceable 

permit limiting emissions below the cutoff (i.e., an ‘‘emissions cap’’), the State 

did not need to analyze the source 

further. For the remaining sources, the 

State analyzed whether the potential 

emissions of the sources were above the 

cut-off level. There were two methods 

for performing this analysis. First, the 

State could use the results of test 

methods—where the emissions of a 

specific source are derived based on a 

test of actual emissions from the facility. 

Where the State used this method of 

analysis, the test methods in OAC rule 

3745–21–10, which have been approved 

by EPA, were used. Second, where test 

data are unavailable, EPA has 

established emission calculation 

procedures based upon the source 

characteristics. For source categories 

involving evaporative emissions, such 

as cleaning solvents, potential emissions 

are based on determining the weight of 

volatile organic material that would be 

used with the source operating at 

maximum capacity. This is the most 

direct way of estimating emissions. 

During the State hearing process, the 

State made available for public 

comment the detailed information about 

(1) how it determined whether there 

were sources potentially subject to 

RACT in each category; (2) which of 

those sources had federally enforceable 

permit limits ‘‘capping’’ their emissions 

below the applicable cut-off; (3) the 

potential emissions for sources that do 

not have their emissions capped; and (4) 

the source-specific calculations for each 

source (the Hamilton County 

Department of Environmental Services 

(HAMCO—a local air agency) maintains 

files which document the emissions of 

the sources listed in the tables attached 

to the negative declaration letters). The 

State submitted items (1), (2) and (3) as 

part of the SIP revision, and that 

information was available during the 

comment period on this rule. In 

addition, in response to questions from 

EPA, the State submitted: (1) In a May 

2, 2003 email by HAMCO, additional 

information regarding how the State 

calculated industrial cleaning solvent 

emissions and examples of those 

calculations; and, (2) in a January 9, 

2003, letter from HAMCO, the State 

provided example calculations for a 

storage tank at the Valvoline Oil 

Company terminal. 

The following summarizes the more 

detailed information that was available 

to the public for each of the seven 

categories for which negative 

declarations were documented by the 

Ohio EPA: 

(1) The applicability cutoff for 

industrial cleaning solvents is a PTE of 

100 tons VOC per year, and Ohio EPA 

has documented that all of the 

industrial cleaning solvent sources have 

less than 50 tons VOC per year of 

potential emissions; 

(2) Ohio EPA has adequately 

documented that there are no ship 

building and repair facilities; 

(3) The applicability cutoff for auto 

refinishing is 100 tons VOC per year, 

and Ohio EPA has documented that all 

of the auto refinishing facilities have 

potential emissions of less than 25 tons 

VOC per year or have a federallyenforceable Permit to Install (PTIs) 

limiting emissions to less than 25 tons 

VOC per year; 

(4) The applicability cutoff for 

aerospace manufacturing and rework 

facilities is a PTE of 25 tons VOC per 

year, and Ohio EPA has documented 

that all such sources have potential 

emissions below this cutoff or have a 

federally-enforceable PTI restricting 

emissions to less than 25 TPY; 

(5) The applicability cutoff for VOL 

storage tanks is 100 tons VOC per year, 

and Ohio EPA has documented that all 

VOL storage tanks (a) are already subject 

to an existing RACT rule or are below 

RACT control requirement cutoffs; (b) 

have a federally-enforceable PTI 

limiting actual VOC emissions to below 

100 tons per year; or, (c) have a 

potential to emit less than this cut-off; 

(6) The applicability cut-off for offset 

lithographic printing is 100 tons VOC 

per year. Ohio EPA has documented all 

such sources have potential emissions 

below this cut-off or have a federallyenforceable PTI restricting emissions to 

less than 100 TPY; and, 

(7) The applicability cut-off for 

automotive plastic parts coating is 100 

tons VOC per year. Ohio EPA has 

documented all such sources have 

potential emissions below this cut-off or 

have a federally-enforceable PTI 

restricting emissions to less than 100 

TPY. 

The commenter raises a specific 

concern with respect to a table in the 

negative declaration for the Industrial 

Cleaning Solvents source category. The 

commenter claims that because the 

source cut-off for RACT is 100 tpy, the 

commenter does not understand why 

the 184.65 tons of VOC emissions for 

coatings does not subject the source to 

RACT. As stated on the referenced table, 

the 184.65 tpy emission is for coatings. 

These emissions are not part of the 

cleanup solvent emissions,7 and, 

because these emissions are already 

subject to RACT under the EPAapproved State coating rule in OAC rule 

3745–21–09, they are not non-CTG 

emissions. Thus, for purposes of 

whether the source is a major source for 

the industrial cleaning solvents 

category, those emissions are not 

considered.

Comment 3: The negative declarations 

are substantially out of date, e.g. July 

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35953

2003 for lithographic printing and 

October 2003 for aerospace. 

Response 3: The negative declarations 

are not substantially out of date. States 

must first develop SIP revisions, which 

are then submitted and which EPA must 

process through rulemaking. Section 

110 of the CAA provides for up to 18 

months for EPA to process a SIP 

revision. Thus, it is not unusual for EPA 

to be acting on a SIP that has 

components that were adopted and 

submitted by the State one or two years 

before EPA takes final action on the 

submission. Furthermore, the rate of 

industrial growth during the past two 

years is not expected to have added any 

sources above the applicability cutoff 

for any of the seven negative declaration 

categories. 

As explained by HAMCO, any permit 

application for the construction or 

modification of a source subsequent to 

its applicable negative declaration letter 

would have been reviewed by HAMCO 

and identified if its potential to emit or 

allowable emissions exceeded the RACT 

applicability cutoff for that category. No 

such permit applications were 

identified by HAMCO since the negative 

declaration letters were submitted by 

Ohio EPA. 

Furthermore, the commenter did not 

identify any specific facilities in any of 

the seven negative declaration 

categories that, subsequent to the State’s 

negative declaration letter, have VOC 

emissions above the RACT applicability 

cutoff. 

Comment 4: Even if the State’s 

estimates of current potential to emit 

were credible, they would not support 

waiver of RACT requirements where the 

State does not and cannot claim that 

PTE will be capped at current levels. 

Except for sources with PTE restrictions, 

sources below the RACT applicability 

cutoffs could increase their emissions 

above the threshold in the future. 

Response 4: As provided in Response 

1, above, we believe that section 

182(b)(2) of the CAA requires that the 

State adopt RACT rules for source 

categories where there are sources that 

currently meet the applicability 

threshold for imposition of RACT. In 

addition, we note, as further explained 

below, that the State has assured EPA 

that it would require RACT-level 

controls through its permitting process 

for any new source that would have the 

potential to emit above the applicability 

cut-off or for any existing source that 

was modified such that potential 

emissions exceeded the applicability 

cutoff. 

As discussed previously, certain 

sources in the seven negative 

declaration categories are subject to a 

source-specific federally enforceable 

permit to install, that limits emissions to 

below the appropriate RACT 

applicability cutoff for its source 

category. Any change in a permit to 

install resulting in an increase in 

emissions would be subject to EPA and 

public review and would require RACT 

level controls if the revised limit 

exceeds the RACT applicability cutoff. 

Other sources in the seven negative 

declaration categories have permits with 

allowable emissions below each 

source’s applicability cutoff. As stated 

by HAMCO, if a facility increases its 

emissions above its present allowable 

emissions level, the definition of 

modification in OAC rule 3745–31–

01(PPP) would be triggered. By 

triggering the modification definition, 

the facility would have to apply for a 

permit to install which requires 

implementation of best available 

technology. In order to satisfy the 

requirement of best available 

technology, Ohio EPA would require 

any facility in one of the seven negative 

declaration categories to meet RACT. 

The remaining sources are exempted 

by the de minimis levels in OAC 3745–

15–05 and/or exempted from the 

requirement to obtain a permit to install 

and regulatory requirements in OAC 

3745–31–03. The de minimis levels are 

below the RACT applicability cutoffs for 

all source categories. Similarly, any 

source that increased its emissions 

above the de minimis level would need 

a permit that would be reviewed by 

HAMCO to determine whether it 

exceeded a RACT applicability cutoff 

and, if so, the source would be required 

to comply with best available 

technology by complying with RACT 

limits. 

Comment 5: EPA’s proposed waiver of 

RACT requirements for Cincinnati 

conflicts with the Agency’s antibacksliding rules for implementing the 

8-hour ozone standard. The antibacksliding rules expressly list RACT 

among the applicable requirements that 

cannot be relaxed in 8-hour 

nonattainment areas, where the same 

area was obligated (due to its 1-hour 

nonattainment status) to adopt and 

implement RACT at the time of 8-hour 

designation. The Cincinnati area is 

plainly covered by these provisions 

with respect to RACT. EPA’s 

redesignation proposal would allow the 

State to waive RACT requirements that 

plainly applied to the area as of its 8-

hour designation. Existing sources could 

increase their potential to emit in the 

future above the applicability cutoff, in 

which case the Act and EPA’s antibacksliding rules expect that the source 

be subject to the CTG control 

requirements. 

Response 5: Section 51.905(a)(1)(i) 

merely states that the area remains 

subject to the obligation to adopt and 

implement the applicable requirements 

in section 51.900(f), including RACT, 

after revocation of the 1-hour NAAQS. 

Therefore, this anti-backsliding 

provision does not add any new control 

requirements. Under the antibacksliding provisions, if a negative 

declaration is adequate to meet an area’s 

obligation for the 1-hour NAAQS, then 

the anti-backsliding provisions are 

satisfied. For the reasons provided 

elsewhere in this notice, we have 

concluded that the State has met the 

RACT obligation that applied for 

purposes of its 1-hour nonattainment 

designation and moderate classification. 

B. Comments Related to The 

Termination of the Vehicle Inspection 

and Maintenance Programs in the 

Cincinnati and Dayton Areas 

ALA, et al., submitted extensive 

comments on our proposal to approve 

the conversion of the vehicle I/M 

program in the Cincinnati area from an 

active element of the 1-hour ozone SIP 

to a contingency measure in the 1-hour 

ozone maintenance plan for this area. 

The comment letters also included 

comments dealing with the termination 

of the I/M programs in the Cincinnati 

and Dayton areas and the section 110(l) 

demonstrations needed to support these 

program terminations. Although we are 

not at this time approving termination 

of the vehicle I/M program in either 

Cincinnati or Dayton for the reasons 

explained further below, these 

comments are addressed here. 

The summary of comments and 

responses below also includes 

comments made by the ALA on April 6, 

2005, and by the ALA and the Natural 

Resources Defense Council on April 25, 

2005. In general, these comments are 

subsumed in the more extensive 

comments of ALA, et al., dated May 16, 

2005. 

Comment 6: Ohio has not met the 

criteria that would allow the Cincinnati 

area to be redesignated to attainment of 

the 1-hour ozone standard because, 

among other things:

(a) Ohio does not have legal authority 

to implement an I/M program after 

December 2005; and 

(b) Ohio has not made the required 

demonstration that removal of the I/M 

program in Cincinnati will not interfere 

with attainment of the 8-hour ozone and 

fine particulates (PM2.5) standards. Ohio 

has made no attempt to make the 

necessary showing, promising only that 

35954 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

it will do so, without specifics of any 

sort. 

Response 6: EPA believes that Ohio 

has met the necessary criteria to allow 

the Cincinnati area to be redesignated to 

attainment of the 1-hour ozone NAAQS. 

Specifically, section 107(d)(3)(E) of the 

CAA allows for redesignation provided 

that: (1) The Administrator determines 

that the area has attained the applicable 

NAAQS; (2) the Administrator has fully 

approved the applicable 

implementation plan for the area under 

section 110(k) of the CAA; (3) the 

Administrator determines that the 

improvement in air quality is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the applicable state 

implementation plan, applicable 

Federal air pollution control 

regulations, and other permanent and 

enforceable emission reductions; (4) the 

Administrator has fully approved a 

maintenance plan for the area as 

meeting the requirements of section 

175A of the CAA; and, (5) the State 

containing such area has met all 

requirements applicable to the area 

under section 110 and part D of the 

CAA. As discussed above, and in more 

detail in our April 15, 2004 proposed 

rule (70 FR 19900), we believe that Ohio 

has met all of these requirements. 

EPA does not believe that Ohio’s lack 

of legal authority to implement a vehicle 

I/M program after 2005 or the lack of a 

non-interference demonstration with the 

attainment of the 8-hour ozone and 

PM2.5 NAAQS has any impact on EPA’s 

ability to approve Cincinnati’s 

redesignation request. An implemented 

vehicle I/M program is currently 

required by the approved SIP and, 

should Ohio terminate the vehicle I/M 

program without the submittal and EPA 

approval of a SIP revision, it would be 

in violation of the SIP. Furthermore, the 

actions EPA is taking today are not 

dependent on Ohio demonstrating that 

removal of the vehicle I/M program in 

Cincinnati will not interfere with the 

attainment of the 8-hour ozone and fine 

particulate standard. 

EPA has determined that Ohio’s 

current vehicle I/M authority does not 

satisfy the requirements set forth in 40 

CFR 51.372(c) authorizing the 

conversion of Ohio’s E-Check program 

in the Cincinnati and Dayton areas to a 

contingency measure. 

EPA believes that a basic I/M area 

which is designated nonattainment for 

the 8-hour ozone NAAQS, and which is 

not required to have a vehicle I/M 

program based on its 8-hour ozone 

designation, and which has been 

redesignated to attainment for the 1-

hour ozone NAAQS continues to have 

the option to move its vehicle I/M 

program to a contingency measure 

under 40 CFR 51.372(c) as long as the 

8-hour nonattainment area can 

demonstrate that doing so will not 

interfere with its ability to comply with 

any affected NAAQS or any other 

applicable CAA requirement pursuant 

to section 110(l) of the Act. This issue 

is discussed in more detail in 

subsequent responses. 

In order to satisfy the requirements 

outlined in 40 CFR 51.372(c), the State’s 

submittal must contain the legal 

authority to implement a basic vehicle 

I/M program (or enhanced if the State 

chooses to opt-up) that allows the 

adoption of implementing regulations 

without requiring further legislation. 

This authority must continue for the full 

term of the maintenance plan. 

Based on EPA’s determination 

regarding legal authority, EPA is not 

approving conversion of Ohio’s E-Check 

program in the Cincinnati and Dayton 

areas to contingency measures in the 

maintenance plans for these areas in 

today’s final action. EPA also reiterates, 

as noted in the proposal, that 

satisfactory compliance with section 

110(l) relating to non-interference must 

be completed before the E-Check 

program can be terminated. Until Ohio 

makes the required demonstrations with 

respect to legal authority under 40 CFR 

51.372(c) and non-interference under 

section 110(l) and EPA approves the 

conversion of the vehicle I/M program 

to contingency measures in the 

Cincinnati and Dayton 1-hour ozone 

maintenance plans, an implemented 

vehicle I/M program will remain as an 

applicable requirement in the SIP for 

these two areas. EPA fully approved 

Ohio’s vehicle I/M program as a revision 

to the ozone SIP on April 4, 1995 (60 FR 

16989). 

Today’s action does not approve the 

discontinuation of the vehicle I/M 

program in either the Cincinnati or 

Dayton area. The State has not fully met 

its demonstration obligations under 

section 110(l) of the CAA, and Ohio 

must continue to operate the vehicle

I/M program in the Cincinnati and 

Dayton areas until all obligations are 

addressed. However, the fact that such 

a demonstration has not been submitted 

is not germane to today’s action 

regarding satisfaction of requirements 

relative to redesignation under the 1-

hour ozone standard. 

EPA believes that Ohio has met the 

necessary criteria to allow the 

Cincinnati area to be redesignated to 

attainment of the 1-hour ozone NAAQS. 

In addition, EPA believes that Ohio has 

made a successful demonstration 

showing continued maintenance of the 

1-hour NAAQS. EPA is proceeding with 

final approval of the redesignation of 

the Ohio portion of the CincinnatiHamilton area and the area’s 

maintenance plan with projected 

emissions not taking credit for the 

vehicle I/M program even though the 

SIP provides for continued 

implementation of the vehicle I/M 

program in the Cincinnati area. 

Comment 7: The need for expeditious 

attainment of a NAAQS is the central 

principle of title I of the CAA. 

Cincinnati and Dayton continue to have 

serious air quality problems, as 

evidenced by their nonattainment status 

for the 8-hour ozone and PM2.5

standards. EPA promulgated the 8-hour 

ozone standard because the 1-hour 

ozone standard was insufficient to 

protect public health. The EPA 

committed through its anti-backsliding 

policy that the transition between the 1-

hour ozone standard and the 8-hour 

ozone standard would not lead to 

compromises in air quality. That is, 

however, what EPA’s proposal would 

do. 

The anti-backsliding provisions 

applicable to the transition from the 1-

hour ozone standard to the 8-hour ozone 

standard prohibit removal of the vehicle 

I/M programs for the Cincinnati and 

Dayton areas. The provisions provide 

that the requirements that apply to an 8-

hour ozone nonattainment area are the 

requirements that applied under the 1-

hour ozone standard at the time the 

areas were designated to nonattainment 

of the 8-hour ozone standard. Both 

Cincinnati and Dayton were designated 

to nonattainment of the 8-hour ozone 

standard on April 15, 2004, when 

vehicle I/M was still required for both 

areas. Vehicle I/M must continue to be 

implemented in these areas until these 

areas come into attainment with the 8-

hour ozone standard. 

Response 7: Although this comment is 

not specific about which action 

proposed by the EPA in the April 15, 

2005 proposed rule is of concern, it is 

assumed here that the commenter is 

referring to EPA’s discussion concerning 

the termination of the vehicle I/M (ECheck) programs in the Cincinnati and 

Dayton areas. See 70 FR 19910.

On April 30, 2004 (69 FR 23996), the 

EPA promulgated revisions to 40 CFR 

part 51 subpart X to establish provisions 

for implementation of the 8-hour ozone 

NAAQS. Included in these provisions 

were sections 51.900(f), the definition of 

‘‘Applicable requirements,’’ and 51.905, 

which establishes provisions for the 

transition between the 1-hour ozone 

NAAQS and the 8-hour ozone NAAQS, 

including specifying which 

requirements that applied to an area for 

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35955

the 1-hour ozone NAAQS remain in 

place after EPA revokes the 1-hour 

standard (expected to occur for the 

Cincinnati and Dayton areas on June 15, 

2005). The latter section is subdivided 

depending on the attainment status of 

an area for both ozone NAAQS (1-hour 

and 8-hour) on the date when the 8-hour 

ozone designations became effective 

(June 15, 2004). Since the Cincinnati 

area was designated as a nonattainment 

area for the 1-hour ozone NAAQS when 

the 8-hour ozone nonattainment 

designation became effective, subsection 

(a)(1) of section 51.905 applies to the 

Cincinnati area. Since the Dayton area 

was a maintenance area for the 1-hour 

ozone NAAQS on June 15, 2004 and is 

an 8-hour ozone nonattainment area, the 

transition requirements for this area are 

covered by subsection 51.905(a)(2). Both 

of these rule subsections require these 

areas to continue to implement all of the 

applicable requirements specified in 

51.900(f) that applied to the areas based 

on their 1-hour ozone status as of June 

15, 2004. Vehicle I/M is one of the listed 

applicable requirements and both the 

Cincinnati area and the Dayton area 

were subject to this requirement on June 

15, 2004. 

The preamble to the anti-backsliding 

rule made it clear that any applicable 

requirement that was retained would 

apply in the same manner as it applied 

for purposes of the 1-hour standard. We 

specifically noted the example of an 

enhanced vehicle I/M program and 

stated that, while an area classified as 

serious nonattainment for the 1-hour 

standard would need to retain an 

enhanced I/M program, it could modify 

such a program consistent with our 

enhanced I/M regulations. 69 FR 23972. 

On May 12, 2004, the EPA issued a 

policy memorandum (‘‘1-Hour Ozone 

Maintenance Plans Containing Basic

I/M Programs,’’ from Tom Helms, Group 

Leader, Ozone Policy and Strategies 

Group, Office of Air Quality Planning 

and Standards, and Leila H. Cook, 

Group Leader, State Measures and 

Conformity Group, Office of 

Transportation and Air Quality, to Air 

Program Managers) (hereafter referred to 

as the Helms-Cook memorandum) 

clarifying how our basic I/M regulations 

applied for purposes of an area that was 

being or had been redesignated to 

attainment of the 1-hour ozone NAAQS. 

This memorandum notes that, for 1-

hour ozone maintenance areas, special 

provisions regarding vehicle I/M that 

were published by the EPA on January 

5, 1995 (60 FR 1735) continue to define 

the applicable vehicle I/M program. For 

a 1-hour ozone maintenance area subject 

only to basic vehicle I/M, 40 CFR 

51.372(c) provides a mechanism for a 

State to convert a basic vehicle I/M 

program to a contingency measure in 

the area’s maintenance plan. For areas 

designated as nonattainment for the 8-

hour ozone NAAQS, application of this 

provision is limited to areas with 8-hour 

ozone classifications that do not trigger 

the I/M requirement, and this provision 

only applies to areas that were required 

to adopt basic I/M programs (to areas 

that were classified as moderate or 

marginal nonattainment under the 1-

hour ozone NAAQS) and not thus 

required to have an enhanced vehicle I/

M program. However, a marginal 

nonattainment area that opted to 

implement an enhanced vehicle I/M 

programs can also convert the vehicle I/

M programs to contingency measures in 

the 1-hour ozone maintenance plans 

provided they continue to show 

maintenance of the 1-hour ozone 

standard. Finally, the Helms-Cook 

memorandum notes that, to convert a 

vehicle I/M program to a contingency 

measure under the 1-hour maintenance 

plan, the State must also demonstrate 

that such conversion will not interfere 

with the area’s ability to comply with 

any affected NAAQS or any other 

applicable CAA requirement in order to 

comply with section 110(l) of the CAA. 

Under section 110(l) of the CAA, Ohio 

must demonstrate that conversion of the 

vehicle I/M programs in the Cincinnati 

and Dayton areas to contingency 

measures in the 1-hour ozone 

maintenance plans in these areas will 

not interfere with attainment of any 

NAAQS or with compliance with any 

other CAA requirements, most notably 

with attainment of the 8-hour ozone 

NAAQS and PM2.5 NAAQS. Until Ohio 

makes the required demonstrations and 

EPA approves the conversion of the 

vehicle I/M programs to contingency 

measures in the Cincinnati and Dayton 

1-hour ozone maintenance plans, the 

SIP will still require implementation of 

the vehicle I/M program in these areas. 

As such, at this time, no adverse air 

quality impacts are expected to occur in 

these areas through this process. Thus, 

the commenters’ concerns about adverse 

impacts on air quality relating to the 

new standards will be addressed in 

future rulemakings should Ohio provide 

the necessary demonstrations. 

Comment 8: Besides ozone reduction 

benefits, I/M benefits air quality for 

other pollutants, for example, benzene, 

formaldehyde, 1,3-butadiene, and fine 

particulates, PM2.5. It would be shortsighted to eliminate the I/M programs. 

Response 8: As noted above, we agree 

that vehicle I/M remains an applicable 

requirement, but we believe that it is 

consistent with our anti-backsliding rule 

and the vehicle I/M rule to allow a 

maintenance area to move a basic I/M 

program to the contingency portion of 

the SIP if certain conditions are met. 

Before we can approve the conversion of 

the vehicle I/M programs to 1-hour 

ozone contingency measures in the 

Cincinnati and Dayton maintenance 

plans, Ohio must demonstrate that the 

conversion will not interfere with 

compliance with all of the requirements 

of the CAA. This demonstration must 

include a demonstration of noninterference with the CAA requirements 

related to air toxics as well as to 

attainment of all of the NAAQS. 

As noted elsewhere in this final 

rulemaking, Ohio has not made the 

requisite section 110(l) demonstration. 

Therefore, we are not approving a 

conversion of the vehicle I/M programs 

to contingency measures nor 

termination of such programs for the 

Cincinnati and Dayton areas in this final 

rulemaking. 

Comment 9: In its haste to redesignate 

the Cincinnati area to attainment of the 

1-hour ozone standard, the EPA has 

seemed to have missed the essential 

points: That the ozone redesignation, 

however speedy, does not pave the way 

for ending the vehicle I/M programs; 

and, that its proposal stands to set 

Cincinnati and Dayton back on efforts to 

improve air quality. 

Response 9: EPA agrees with the 

commenter that the redesignation of the 

Cincinnati area to attainment of the 1-

hour ozone NAAQS, by itself, does not 

meet the requirements for approving the 

conversion of the vehicle I/M program 

in the Cincinnati area to a contingency 

measure in the maintenance plan for 

this area. As noted elsewhere in this 

final rulemaking, Ohio must meet other 

requirements before EPA can approve 

such a conversion. It is noted, however, 

that the redesignation of the Cincinnati 

area to attainment of the 1-hour ozone 

NAAQS does allow Ohio to meet one of 

the crucial requirements for such a 

conversion as detailed here.

Redesignation of the Cincinnati area 

to attainment of the 1-hour ozone 

NAAQS makes the Cincinnati area an 

area for which the approach in 40 CFR 

51.372(c) is available. However, 40 CFR 

51.372(c) provides that additional 

elements must first be met, including: 

(1) Legal authority to implement a 

basic vehicle I/M program (enhanced if 

the State chooses to opt-up) without 

requiring further legislation; 

(2) A request to place the vehicle I/M 

program/plan into the contingency 

measures portion of the maintenance 

plan upon redesignation; and 

(3) A contingency measure consisting 

of a commitment by the Governor or the 

Governor’s designee to adopt or 

35956 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

consider adopting regulations to 

implement a vehicle I/M program to 

correct a violation of the ozone standard 

(or carbon monoxide standard [not 

applicable for the Cincinnati area]) or 

other air quality problem in accordance 

with the provisions of the maintenance 

plan. Although 40 CFR 51.372(c) refers 

to redesignation requests and 

maintenance plans for areas that are 

currently designated as nonattainment 

areas for ozone (in nonattainment of the 

1-hour ozone NAAQS), we believe that 

40 CFR 51.372(c) also applies to 1-hour 

ozone maintenance areas, where the 

State chooses to revise the ozone 

maintenance plan to include vehicle I/

M as a contingency measure. 

As noted in the Helms-Cook 

memorandum, the anti-backsliding 

provisions of 40 CFR 51.905 do not 

modify the basic vehicle I/M program. 

Thus, the requirements and application 

of 40 CFR 51.372(c) remain in place and 

available to areas that meet the criteria 

of that rule and also meet the 

requirements of section 110(l) of the 

CAA, demonstrating that converting the 

vehicle I/M program to a contingency 

measure will not interfere with the 

attainment of all affected NAAQS and 

requirements of the CAA. 

The State of Ohio has not complied 

with the requirements of 40 CFR 

51.372(c) in that the State has not 

demonstrated that it has the legal 

authority to restart a vehicle I/M 

program in the Cincinnati area (and in 

the Dayton area) without additional 

legislation. In addition, the State has not 

made a demonstration under section 

110(l) of the CAA that the conversion of 

the vehicle I/M program in the 

Cincinnati area (and in the Dayton area) 

to a contingency measure will not 

interfere with attainment of the affected 

NAAQS or with compliance with other 

requirements of the CAA. Therefore, we 

cannot approve, at this time, the State’s 

request to make vehicle I/M a 

contingency measure in the Cincinnati 

area 1-hour ozone maintenance plan. In 

addition, we cannot approve the State’s 

request to make vehicle I/M a 

contingency measure in the Dayton area 

1-hour ozone maintenance plan for the 

same reason. 

Comment 10: The State of Ohio does 

not have legal authority to implement a 

vehicle I/M program after December 

2005. 40 CFR 51.372(c), with respect to 

redesignation requests, provides:

Any nonattainment area that EPA 

determines would otherwise qualify for 

redesignation from nonattainment to 

attainment shall receive full approval of a 

State Implementation Plan (SIP) submittal 

under Sections 182(a)(2)(B) or 182(b)(4) if the 

submittal contains the following elements: 

(1) Legal authority to implement a basic

I/M program * * * as required by this 

subpart. The legislative authority for an I/M 

program shall allow the adoption of 

implementing regulations without requiring 

further legislation.

Ohio legislation, in ORC Ann. (Ohio 

Revised Code Annotated) section 

3704.143(C) provides that:

Notwithstanding * * * [sections of the 

Revised Code] that require[s] emissions 

inspections to be conducted * * * upon the 

expiration or termination of all contracts that 

are in existence on September 5, 2001, the 

director of environmental protection shall 

terminate all motor vehicle inspection and 

maintenance programs in this state and shall 

not implement a new motor vehicle 

inspection and maintenance program unless 

this section is repealed and such a program 

is authorized by the general assembly.

The State has noted, through a press 

release, that the vehicle I/M programs in 

the Cincinnati and Dayton areas will 

expire on December 31, 2005. In 

addition, in a letter to the EPA, dated 

April 4, 2005, the Ohio EPA 

acknowledges that:

Under 3704–14(b), Ohio EPA retains the 

legislative authority to conduct an 

automobile inspection maintenance program 

in moderate nonattainment areas as part of 

the attainment or maintenance demonstration 

as well as the contingency portion of the 

maintenance plan. It must be understood, 

though, the specifics of restarting the 

program should a contingency arise, would 

involve negotiating a new operator contract 

and obtaining approval from the legislature 

to execute that contract.

This indicates that the Ohio EPA 

acknowledges that the State would need 

new legislative authority to restart the I/

m program. 

Response 10: As discussed above, 

EPA has determined that Ohio’s current 

vehicle I/M authority does not satisfy 

the requirements set forth in 40 CFR 

51.372(c) with respect to redesignation 

requests. 

Based in part on EPA’s determination 

regarding legal authority, EPA is not 

taking action on the conversion of 

Ohio’s E-Check program in the 

Cincinnati and Dayton areas to 

contingency measures in this final rule. 

In order to satisfy the requirements 

outlined in 40 CFR 51.372(c), the State 

will, in part, need to demonstrate that 

the State has sufficient legal authority to 

implement a vehicle I/M program that 

allows the adoption of implementing 

regulations without requiring further 

legislation. Until Ohio makes the 

required demonstrations and EPA 

approves the conversion of the vehicle 

I/M program to contingency measures in 

the Cincinnati and Dayton 1-hour ozone 

maintenance plans, vehicle I/M will 

remain as an applicable requirement in 

the SIP for these two areas. 

Comment 11: The State has not made 

the required demonstration that removal 

of the I/M program in Cincinnati will 

not interfere with attainment of the 8-

hour ozone and PM2.5 standards. EPA 

acknowledges this in the April 15, 2005 

proposed rule. The non-interference 

demonstration is also required for the 

purposes of the redesignation of the 

Cincinnati area to attainment. 

Section 107(d)(3)(E) of the CAA 

provides:

The Administrator may not promulgate a 

redesignation of a nonattainment area * * * 

to attainment unless * * * 

(ii) The Administrator has fully approved 

the applicable implementation [plan] for the 

area under section 7410(k) [i.e., section 

110(k)] of this title * * * and 

(v) The State containing such area has met 

all requirements applicable to the area under 

section 7410 [i.e., section 110] of this title 

* * *.

The State has met neither of these 

requirements. EPA has not approved a 

revised SIP, nor could it without a 

showing of legal authority for an I/M 

program, which the State cannot make 

following the termination of the 

program. And, as EPA’s proposal 

concedes, the State has not met all 

applicable requirements under section 

110, which includes the demonstration 

required under section 110(l) that 

removing the I/M programs for 

Cincinnati and Dayton will not interfere 

with the 8-hour ozone and PM2.5

standards.

It is difficult to see how the EPA can 

argue that either of the section 

107(d(3)(E) requirements have been met 

in light of the fact that the SIP revision 

does not qualify for approval on a 

conditional basis. EPA acknowledges 

that the State has done no more than 

promise to complete the required 

demonstration without specifics of any 

sort. The Court of Appeals for the 

District of Columbia Circuit has 

admonished EPA at least twice for 

conditionally approving SIP revisions 

that contain nothing more than a mere 

promise to take appropriate but 

unidentified measures in the future. 

Sierra Club v. EPA, 356 F.3d 296, 303 

(DC Cir. 2004), slip opinion at 10, citing 

NRDC v. EPA, 22 F.3d 1125 (DC Cir. 

1994). 

Response 11: As we have discussed 

elsewhere in this final rule, we agree 

with the commenter that Ohio has not 

made the demonstration that conversion 

of the vehicle I/M programs in the 

Cincinnati and Dayton areas to 

contingency measures in the 

maintenance plans will not interfere 

with the attainment of the 8-hour ozone, 

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35957

PM2.5, or any other applicable NAAQS 

in these areas. Therefore, we are not 

approving these conversions in this 

final rule. 

We disagree with the commenter that 

this fact leads to the conclusion that 

Ohio has not met the necessary 

requirements for redesignation of the 

Cincinnati area to attainment of the 1-

hour ozone NAAQS. As we noted in our 

April 15, 2004 proposed rule, at 70 FR 

19900, Ohio has a fully approved SIP 

under section 110(k) of the CAA, and 

Ohio has met all applicable 

requirements under section 110 and part 

D of the CAA, including a fully 

approved vehicle I/M SIP (60 FR 16989, 

April 4, 1995). Our discussion in the 

proposed rulemaking thoroughly 

documents how Ohio has complied 

with these requirements. Therefore, we 

are approving the ozone redesignation 

request for the Cincinnati area in this 

final rule. EPA is not conditionally 

approving this redesignation nor the 

maintenance plan. We are fully 

approving these SIP revisions, with 

vehicle I/M remaining as an 

implemented requirement of the 

approved SIP. 

With regard to the vehicle I/M 

program in the Cincinnati area, this 

remains an applicable requirement for 

this area under Ohio’s SIP. We will not 

approve conversion of the vehicle I/M 

program to a contingency measure until 

Ohio has made all required 

demonstrations discussed in this final 

rule and we have approved the State’s 

demonstrations of non-interference in 

subsequent rulemaking. Should Ohio 

fail to make these demonstrations, 

vehicle I/M will remain a fully 

enforceable requirement of the SIP. 

Comment 12: The anti-backsliding 

provisions applicable to the transition 

from the 1-hour to the 8-hour ozone 

standard prohibit removal of vehicle I/

M programs for the Cincinnati and 

Dayton areas. EPA proposes to terminate 

the vehicle I/M programs for the 

Cincinnati and Dayton areas and to 

retain I/M only as contingency measures 

in the maintenance plans for these 

areas. This is not acceptable for the 

following reasons even if the Cincinnati 

area is redesignated as an attainment 

area for the 1-hour ozone standard: 

(1) The anti-backsliding provisions, 

40 CFR 51.900(f) and 51.905, are 

absolutely unambiguous, and provide 

that the requirements that apply to an 8-

hour nonattainment area are the 

requirements that applied under the 1-

hour standard at the time of designation 

for the 8-hour ozone standard. At the 

time the Cincinnati and Dayton areas 

were designated as nonattainment for 

the 8-hour ozone standard, these areas 

were under the requirement to continue 

implementation of vehicle I/M 

programs; 

(2) EPA argues that 40 CFR 51.372(c) 

creates an exception to the antibacksliding provisions for I/M purposes. 

All that 40 CFR 51.372(c) does is to 

allow a nonattainment area to become 

eligible for redesignation if the area’s 

SIP contains certain provisions 

(including legal authority) for I/M. This 

provision has no bearing on the antibacksliding issue in question. 

Redesignation of the Cincinnati area to 

attainment now has no bearing on the 

issue because the only date that counts 

for anti-backsliding purposes is the date 

of designation for the 8-hour ozone 

standard; and

(3) Even if there were some legal 

justification for removing the vehicle I/

M programs for the Cincinnati and 

Dayton areas, Ohio would be required to 

have the legal authority to trigger the 

programs should the need arrive. The 

State does not have such legal authority. 

Response 12: Since we are not 

approving the conversion of vehicle I/M 

to a contingency measure, these issues 

are not relevant here. However, for the 

reasons we have discussed above, we 

believe that our anti-backsliding rule 

does not modify the basic I/M 

regulations nor the availability of the 

approach under 40 CFR 51.372(c). 

Comment 13: The anti-backsliding 

provisions applicable to the transition 

from the 1–hour ozone standard to the 

8–hour ozone standard are absolutely 

clear that it would be illegal to remove 

the I/M programs for the Cincinnati and 

Dayton areas. The anti-backsliding 

provisions applicable to the transition 

from the 1–hour ozone standard to the 

8–hour ozone standard are 40 CFR 

51.900(f) and 51.905. 

Section 51.900(f) provides that 12 

separately enumerated requirements are 

‘‘applicable requirements’’ for an area if 

they applied to the area under the 1–

hour standard at the time of the area’s 

designation for the 8–hour ozone 

standard. Vehicle I/M is one of the 12 

enumerated applicable requirements. 

When the Cincinnati area was 

designated as an 8–hour ozone 

nonattainment area, vehicle I/M was an 

applicable requirement for this area. 

40 CFR 51.905 provides:

(a)(1) 8-Hour NAAQS Nonattainment/1-

Hour Nonattainment. The following 

requirements apply to an area designated 

nonattainment for the 8–hour NAAQS and 

designated nonattainment for the 1–hour 

NAAQS at the time of designation for the 8–

hour NAAQS for that area. 

(i) The area remains subject to the 

obligation to adopt and implement the 

applicable requirements as defined in section 

51.900(f), except as provided in paragraph 

(a)(1)(iii) of this section, and except as 

provided in paragraph (b) this section.

Paragraph (a)(1)(iii) is not relevant to 

this issue. Paragraph (b) provides:

A State remains subject to the obligations 

under paragraphs (a)(1)(i) and (a)(2) of this 

section until the area attains the 8–hour 

NAAQS. After the area attains the 8–hour 

NAAQS, the State may request such 

obligations be shifted to contingency 

measures * * *.

Therefore, Cincinnati is required to 

retain its I/M program until it comes 

into attainment with the 8–hour ozone 

standard, when the State can request 

that I/M become a contingency measure. 

Unlike Cincinnati, Dayton was a 

maintenance area for the 1–hour ozone 

standard when this area was designated 

as an 8–hour ozone nonattainment area. 

At that time, Ohio’s SIP required Dayton 

to maintain a basic I/M program. 

40 CFR 51.905 further provides:

(a)(2) An area designated nonattainment for 

the 8–hour NAAQS that is a maintenance 

area for the 1–hour NAAQS at the time of 

designation for the 8–hour NAAQS for that 

area remains subject to the obligation to 

implement the applicable requirements as 

defined in section 51.900(f) to the extent 

such obligations are required by the 

approved SIP, except as provided in 

paragraph (b) of this section. Applicable 

measures in the SIP must continue to be 

implemented; however, if these measures 

were shifted to contingency measures prior to 

designation for the 8–hour NAAQS for the 

area, they may remain as contingency 

measures * * *.

Therefore, the conclusion for Dayton 

is almost the same as for Cincinnati. The 

Dayton area is also required to retain its 

I/M program until it comes into 

attainment with the 8–hour ozone 

standard. 

Response 13: Our anti-backsliding 

rule retains the obligations that applied 

to the area under the CAA, not as the 

commenter implies, the obligations 

contained in the SIP. The preamble to 

the final anti-backsliding rule 

specifically noted that a state may 

modify its SIP consistent withy the 

existing relevant regulations. See 69 FR 

23972. 40 CFR 372(c) is part of our 

existing basic vehicle I/M rule, and it 

remains in place. We interpret this 

provision to mean that Ohio may revise 

the Cincinnati and Dayton ozone 

maintenance plans to convert the 

vehicle I/M programs in these areas to 

contingency measures in the ozone 

maintenance plans provided that Ohio 

meets the requirements of 40 CFR 

51.372(c) and section 110(l) of the CAA. 

We are, however, at this time not 

approving the conversion of the vehicle 

I/M programs to contingency measures 

in the Cincinnati and Dayton areas 

35958 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

because the State has not made the 

requisite demonstrations in compliance 

with section 110(l) of the CAA and with 

40 CFR 51.372(c). 

Comment 14: Allowing Ohio to drop 

I/M while the Cincinnati and Dayton 

areas remain in nonattainment with the 

8–hour ozone standard conflicts with 

section 172(e) of the CAA, which 

requires that EPA rules ‘‘provide for 

controls which are not less stringent 

than the controls applicable to areas 

designated nonattainment’’ for ozone 

before adoption of the 8–hour standard. 

Allowing states to drop I/M while areas 

remain in 8–hour nonattainment further 

conflicts with the stated rationale and 

intent underlying EPA’s antibacksliding rule. 

Response 14: Section 172(e) of the 

CAA does not apply where EPA has 

promulgated a more stringent NAAQS, 

as EPA did when it promulgated the 8–

hour ozone NAAQS. As discussed 

above, since EPA is not approving a 

conversion of the vehicle I/M program 

to a contingency measure, this comment 

is not relevant for this final action. 

Additionally, for the reasons provided 

above, EPA believes 40 CFR 51.372(c) 

remains available under the antibacksliding rules in 40 CFR 51.905. 

Furthermore, EPA did look to section 

172(e) when establishing the antibacksliding regulations. These 

regulations require that areas remain 

subject to their 1–hour ozone 

nonattainment control obligations once 

that standard no longer applies and thus 

retain controls at the same level of 

stringency that they applied for 

purposes of the 1–hour NAAQS. In this 

case that level of control includes the 

provisions of 40 CFR 51.372(c). 

Comment 15: The EPA understands 

the preamble to the anti-backsliding 

provisions as reflecting the view that, if 

a SIP could have been modified to 

remove a measure for the purposes of 

the 1–hour ozone NAAQS, it may be 

removed for 8–hour nonattainment 

purposes. This understanding of the 

preamble cannot contradict the language 

of the anti-backsliding provisions for at 

least three reasons: 

(1) The language of the antibacksliding regulations is unambiguous, 

leaving no room for a directly 

conflicting interpretation in the 

preamble; 

(2) The language of the preamble itself 

is ambiguous; and, 

(3) Portions of the preamble are, in 

fact, entirely consistent with the 

language of the anti-backsliding 

regulations; in other words, while the 

regulations themselves are 

unambiguous, the preamble is internally 

consistent. 

Response 15: Since we are not 

approving the conversion of vehicle I/M 

to a contingency measure, these issues 

are not relevant here. However, we 

disagree with the commenter. The 

preamble to the Phase 1 implementation 

rule was our contemporaneous 

interpretation of the Phase 1 regulations. 

It clearly states that areas remain subject 

to the 1–hour obligations in the same 

manner it was subject to that obligation 

for the 1–hour standard. See 69 FR 

23972. As an example, the preamble 

specifically noted that an area subject to 

an enhanced I/M program could modify 

its SIP consistent with our enhanced I/

M regulations. Similarly, as here, an 

area subject to basic I/M can modify its 

SIP consistent with our basic I/M 

regulations, which include 40 CFR 

51.372(c). 

The Helms-Cook memorandum 

explains how 40 CFR 51.372(c) 

continues to apply in light of the antibacksliding rules and would allow Ohio 

to demonstrate that I/M in the 

Cincinnati and Dayton areas may be 

converted to contingency measures in 

the Cincinnati and Dayton ozone 

maintenance plans. As noted elsewhere 

in this final rule, Ohio must make a 

number of demonstrations in 

compliance with 40 CFR 51.372(c) and 

section 110(1) of the CAA to 

successfully support these conversions 

and receive EPA approval. 

Comment 16: 40 CFR 51.372(c) does 

not create an exception to the antibacksliding provisions for vehicle I/M. 

EPA has concluded that 40 CFR 

51.372(c), adopted nine years before the 

adoption of the anti-backsliding 

provisions, creates an exception to the 

anti-backsliding provisions for I/M. 

There is nothing in 40 CFR 51.372(c) to 

suggest this interpretation. 40 CFR 

51.372(c) provides:

Redesignation requests. Any 

nonattainment area that EPA determines 

would otherwise qualify for redesignation 

from nonattainment to attainment shall 

receive full approval of a State 

Implementation Plan (SIP) submittal under 

Sections 182(a)(2)(B) or 182(b)(4) if the 

submittal contains the following elements 

* * *.

The ‘‘following elements’’ refer to a 

variety of provisions for an I/M 

program, including the necessity of legal 

authority.

EPA can redesignate a nonattainment 

area to an attainment area if the SIP 

makes certain provisions for I/M. This is 

irrelevant to the anti-backsliding issue 

at hand. What counts for antibacksliding purposes in the context of 

the transition from the 1-hour ozone 

standard to the 8-hour ozone standard is 

the area’s I/M obligations at the time of 

the 8-hour ozone nonattainment 

designation. The Cincinnati and Dayton 

areas were obligated to continue the 

implementation of vehicle I/M when 

these areas were designated to 

nonattainment for the 8-hour ozone 

standard. Therefore, these areas remain 

obligated to implement vehicle I/M 

programs, even if the Cincinnati area is 

redesignated to attainment of the 1-hour 

ozone standard. 

Response 16: Since we are not 

approving the conversion of vehicle I/M 

to a contingency measure, these issues 

are not relevant here. However, 

although we agree with the commenter 

that 40 CFR 51.372(c) does not create an 

‘‘exception’’ to the anti-backsliding 

rules, we disagree that the antibacksliding provisions do not allow 

Cincinnati and Dayton to take advantage 

of this provision. As provided in 

previous responses, our anti-backsliding 

rules kept in place our current 

regulations for I/M (and the other 

‘‘applicable requirements’’ under 40 

CFR 51.900(f)) and that includes 40 CFR 

51.372(c). Under the anti-backsliding 

rules both Cincinnati and Dayton 

remain subject to the basic I/M 

requirement and can meet that 

requirement in any way acceptable 

under our basic I/M regulations. 

Comment 17: Ohio does not have the 

necessary legal authority to maintain 

vehicle I/M as a contingency measure in 

Ohio’s maintenance plan for the 

Cincinnati and Dayton areas. Ohio 

needs such legal authority to trigger the 

implementation of I/M if needed as a 

contingency measure in these areas. 

Such legal authority is a prerequisite to 

the redesignation of the Cincinnati area. 

It is also a requirement for antibacksliding purposes, for both the 

Cincinnati and Dayton areas. Section 

175 of the CAA provides as well:

Such [contingency] provisions shall 

include a requirement that the State will 

implement all measures with respect to the 

control of the air pollutant concerned which 

were contained in the State implementation 

plan for the area before redesignation of the 

area as an attainment area.

Ohio does not have the necessary 

legal authority to maintain I/M as a 

contingency measure for the Cincinnati 

and Dayton areas. 

Response 17: As discussed above, 

EPA agrees with the comment that Ohio 

does not have sufficient legal authority 

to implement a vehicle I/M program in 

the Cincinnati and Dayton areas after 

December 2005 without further 

legislative action. EPA has determined 

that Ohio’s current vehicle I/M 

authority does not satisfy the 

requirements set forth in 40 CFR 

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35959

51.372(c) with respect to redesignation 

requests. Based on EPA’s determination 

regarding legal authority, EPA is not 

taking action on conversion of Ohio’s ECheck program in the Cincinnati and 

Dayton areas to contingency measures 

in this final rule. 

For the reasons provided in earlier 

responses to comments, we believe that 

Ohio meets the anti-backsliding 

requirements for Cincinnati and Dayton 

so long as its SIP meets our basic I/M 

regulations. Because we are not 

approving I/M as a contingency 

measure, the language quoted from 

section 175A(d) regarding contingency 

measures is not relevant here. 

Comment 18: EPA may not approve a 

SIP revision eliminating the I/M 

programs in Cincinnati and Dayton until 

Ohio demonstrates that the revision 

would not interfere with 8-hour ozone 

and PM2.5 attainment. Ohio has failed to 

make the required showing that 

removing the I/M programs from the SIP 

will not interfere with attainment of the 

8-hour ozone and PM2.5 standards. Both 

the Cincinnati and Dayton areas have 

been designated as nonattainment for 

both standards. 

Response 18: As we have discussed 

elsewhere in this final rule, we agree 

with the commenter that Ohio has not 

made the demonstration that conversion 

of the vehicle I/M programs in the 

Cincinnati and Dayton areas to 

contingency measures in the 

maintenance plans will not interfere 

with the attainment of the 8-hour ozone 

and PM2.5 NAAQS in these areas. 

Therefore, we are not taking action on 

these conversions in this final rule. 

With regard to the vehicle I/M 

program in the Cincinnati area, the State 

of Ohio remains obligated to implement 

the vehicle I/M program for this area as 

required in the approved SIP. We will 

not approve conversion of the I/M 

program to a contingency measure until 

Ohio has made all applicable 

demonstrations discussed in this final 

rule. If the State makes such a 

submission, we will undertake 

subsequent notice and comment 

rulemaking. 

Comment 19: EPA has re-written the 

law as it applies to non-interference 

and, in so doing, has used the transition 

from the 1-hour ozone standard to the 

8-hour ozone standard as a basis for 

weakening air quality standards. In the 

proposed rule, 70 FR 19911, EPA says 

in its proposal for Cincinnati and 

Dayton:

In accordance with the Act and EPA 

redesignation guidance * * * states are free 

to adjust control strategies in the 

maintenance plan as long as they can 

demonstrate that overall emissions remain 

below the attainment level of emissions.

In its proposed rule entitled 

‘‘Approval and Promulgation of 

Implementation Plans for Kentucky: 

Inspection and Maintenance Program 

Removal for Jefferson County, KY; 

Source Specific Nitrogen Oxides 

Emission Rate for Kosmos Cement 

Kiln,’’ 70 FR 53, January 3, 2005, the 

EPA explains:

[A] strict interpretation of the requirement 

in section 110(l) of the Act would allow EPA 

to approve a SIP revision removing a SIP 

requirement only after determining based on 

a completed attainment demonstration that it 

would not interfere with applicable 

requirements concerning attainment and 

reasonable further progress.

EPA continues with the observation 

that the strict interpretation would 

prevent changes to SIP control measures 

before areas are required to submit 

attainment demonstrations for the new 

NAAQS, at a time when it is unknown 

what suite of control measures are 

needed for a given area to attain these 

standards. EPA concludes that states 

should be allowed to substitute 

equivalent emission reductions to 

compensate for the control measure 

being removed as long as the actual 

emissions in the area are not increased, 

70 FR 57.

This line of reasoning is unlawful and 

arbitrary for a number of reasons. First, 

the construction that EPA characterizes 

as ‘‘strict’’ is in fact the only one that is 

consistent with both the plain language 

of the statute and common sense. 

Second, the fact that a plain reading of 

section 110(l) of the CAA prevents 

removal of a SIP requirement prior to a 

complete attainment demonstration is 

the very reason for the existence of both 

anti-backsliding and non-interference 

requirements. Third, EPA’s reference to 

changes in the SIP when the exact 

control measures that will be required to 

attain the new NAAQS are unknown is 

a point well taken. It is unlawful, 

arbitrary, and capricious to eliminate 

effective control measures from the SIP 

when the State has not shown that these 

measures will not be needed for timely 

progress toward and timely attainment 

of the new standards. The State has not 

shown that control measures apart from 

I/M are available to meet all of the 

emission reductions that will be 

required. Finally, the EPA proposal for 

Ohio refers to ‘‘EPA redesignation 

guidance,’’ as does the Helms/Cook 

memo referenced in the anti-backsliding 

context:

EPA is currently developing guidance on 

what areas need to include in a section 110(l) 

demonstration of non-interference.

The redesignation guidance has not 

yet been published. Thus, states with 8-

hour and PM2.5 nonattainment areas are 

being allowed to remove effective 

control programs from their SIPs, which 

were required for the purposes of the 1-

hour standard, at a time when the 

guidance applicable to attainment of the 

new standards has not been provided. 

The 8-hour ozone standard was 

promulgated because the 1-hour ozone 

standard is insufficiently protective of 

human health. The transition between 

these standards should not provide an 

opportunity to weaken air quality 

standards. 

Response 19: EPA is the Agency 

responsible for implementing the CAA 

and is accorded deference in 

interpreting ambiguous provisions of 

the CAA when it does so through notice 

and comment rulemaking. Through the 

April 15, 2005, proposed rule (70 FR 

19895), EPA sought public comment on 

its current interpretation of section 

110(l) of the CAA. EPA has evaluated 

the comments and continues to believe 

its interpretation to be reasonable. 

Section 110(l) of the CAA requires the 

State to demonstrate that the removal of 

an emissions control measure from the 

SIP will not interfere with the 

attainment of any NAAQS or with 

compliance with any other requirement 

of the CAA. EPA believes the 

appropriate interpretation of this section 

would allow states to substitute 

equivalent (or greater) emission 

reductions to compensate for the 

removal of emission control measures 

from the SIPs. As long as actual 

emissions in the air are not increased, 

EPA believes that equivalent (or greater) 

emissions reductions would be 

acceptable to demonstrate noninterference because ambient air quality 

levels will not change. EPA does not 

believe that areas must wait to produce 

a complete attainment demonstration 

(or be required to produce one when not 

otherwise required based on the area’s 

classification) to make any revisions to 

the SIP, provided the status quo air 

quality is preserved (emissions will not 

be allowed to increase in an area 

through the removal of an emissions 

control from the SIP). EPA believes such 

an approach will not interfere with an 

area’s ability to develop a timely 

attainment demonstration. A state 

seeking to remove an emission control 

requirement from the SIP would not be 

granted an extension for attainment of 

NAAQS as a result of such an action. 

Although EPA believes this 

interpretation to be reasonable, we are 

not taking final action invoking the use 

of this interpretation in this final action 

because, as noted elsewhere in this final 

35960 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

rulemaking, we are not acting on a 

section 110(l) demonstration of noninterference at this time.

D. Comments Received After the Close 

of the Comment Period 

On June 9, 2005, a commenter 

submitted late comments. 

Notwithstanding the facts that the 

comments were submitted more than 

three weeks after the close of the 

comment period and that EPA is not 

obligated to take into account or 

respond to such late comments, EPA is 

responding to the comments in this 

notice. 

Comment 20: The commenter 

contends that EPA may not redesignate 

the Cincinnati area as attainment 

because Ohio did not prove that its 

maintenance plan for the Cincinnati 

area will not interfere with attainment 

of the 8-hour ozone standard and 

because ‘‘the nature of non-interference, 

which requires states to prove a 

negative, means that not only was Ohio 

required to demonstrate that the control 

measures in its SIP would not interfere 

with attainment of the PM2.5 and 8-hour 

ozone standards, but also that additional 

control measures are not necessary to 

prevent interference with attainment of 

the PM2.5 and 8-hour ozone standards.’’

Response 20: EPA believes that the 

commenter misunderstands the nature 

of section 110(l). The commenter 

appears to contend that, even though 

the maintenance plan for Cincinnati 

does not relax any existing control 

measures, the State must somehow 

demonstrate that additional control 

measures are not necessary to prevent 

interference with attainment of the 

PM2.5 and 8-hour ozone standards. 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. 

Comment 21: The commenter also 

asserts that the redesignation may not 

occur because Ohio has not met the 

section 110(a)(2)(D) requirement 

concerning interstate transport. It cites 

EPA’s recent finding of failure to submit 

regarding the section 110(a)(2)(D) 

requirement. 

Response 21: EPA’s recent finding 

concerning section 110(a)(2)(D) 

concerned SIPs for the 8-hour ozone and 

PM2.5 standards. It did not concern the 

1-hour ozone standard, the standard 

pertinent for this redesignation to 

attainment for the 1-hour ozone 

standard. Consequently, EPA’s recent 

finding is simply irrelevant for the 

standard at issue in this redesignation. 

(EPA notes that Ohio has complied with 

section 110(a)(2)(D) for the 1-hour ozone 

standard by virtue of having received 

EPA approval of its SIP to address the 

NOX SIP Call. See 68 FR 46089 (August 

5, 2003)) 

Furthermore, even if the recent 

finding of failure to submit a section 

110(a)(2)(D) SIP had been for a pertinent 

standard, it would still not prevent 

redesignation of the area. EPA has 

repeatedly interpreted such SIP 

requirements as not being applicable 

requirements for purposes of a 

redesignation since the states remain 

obligated to make such submissions 

even after redesignation to attainment, 

i.e., they remain applicable 

requirements notwithstanding the 

redesignation. See 65 FR37879, 37890 

(June 19, 2000) (Cincinnati 

redesignation), 66 FR 53097, 53099 

(October 19, 2001) (Pittsburgh 

redesignation), 68 FR 25418, 25426–27 

(May 12, 2003) (St. Louis redesignation). 

Comment 22: The same commenter 

also contends that EPA may not 

redesignate the Cincinnati area as 

attainment since the State has failed to 

meet all applicable part D requirements 

‘‘because Ohio does not have legal 

authority for the I/M program until it is 

no longer necessary.’’ The commenter 

contends that EPA requires that states 

have legal ‘‘authority for I/M program 

operation until such time as it is no 

longer necessary (i.e., until a Section 

175 maintenance plan without an I/M 

program is approved by EPA).’’ 40 CFR 

51.372(a)(6). According to the 

commenter, this requirement is not met 

since the legislative authorization for 

the I/M program expires at the end of 

2005 while Ohio is currently required to 

have legislative authority passed the 

end of 2005. 

Response 22: EPA believes that it may 

approve the redesignation at this time 

because Ohio has a fully approved I/M 

program for the Cincinnati area with 

legal authority. As noted previously, the 

existing federally enforceable SIP 

includes a fully approved I/M program. 

Should Ohio fail to reauthorize this 

program or otherwise terminate the 

program prior to receiving EPA approval 

of a subsequent SIP revision that 

satisfies section 110(l) then Ohio would 

be in violation of the federally approved 

SIP and subject to potential enforcement 

and sanctions. Furthermore, since the 

new maintenance plan for Cincinnati 

demonstrates that the area can maintain 

the 1-hour ozone standard for the 

requisite 10 years without the I/M 

program, even though the I/M program 

currently remains an enforceable part of 

the Ohio SIP EPA is in fact today 

approving a section 175 maintenance 

demonstration without an I/M program. 

Therefore, EPA believes that the 

legislative authority of the current I/M 

program is in fact sufficient to support 

the maintenance plan, although as 

previously noted it is not sufficient to 

satisfy 40 CFR 51.372(c). Thus, although 

EPA concludes that it could not at this 

time approve termination of the I/M 

program nor conversion of the I/M 

program to a contingency measure, EPA 

believes that it can approve the 

maintenance plan and redesignation of 

the area consistent with the 

requirements of section 175 and 40 CFR 

51.372(a)(6). 

VI. Did Ohio Adopt All Of the Volatile 

Organic Compound Emission Control 

Regulations Needed To Comply With 

the Reasonably Available Control 

Technology Requirements of the Clean 

Air Act?

Since the Cincinnati area is 

nonattainment for the 1-hour ozone 

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35961

NAAQS, Ohio is required to ensure that 

all major VOC sources and all VOC 

sources that meet the applicability 

criteria in any of EPA’s Control 

Technique Guideline (CTG) documents 

in the Cincinnati area are subject to 

RACT regulations. In prior SIP approval 

actions, EPA approved into the SIP 

Ohio’s VOC RACT regulations covering 

all pre-1990 CTG categories and ‘‘nonCTG’’ RACT for most categories of major 

VOC sources. Today, EPA is acting on 

RACT rules and negative declarations 

for the remaining CTG categories and for 

remaining non-CTG RACT sources. 

To qualify for a redesignation of the 

Cincinnati area to attainment of the 1-

hour ozone NAAQS, Ohio was required 

to fully comply with the RACT 

requirement of section 182(b)(2) of the 

CAA. An analysis of how this RACT 

requirement is satisfied for these 

additional source categories (source 

categories in addition to those covered 

by VOC emission control regulations 

that had been previously approved into 

the SIP) is presented on a category-bycategory basis below. 

New VOC RACT regulations were 

required for any facilities exceeding the 

applicability criteria specified in the 

Synthetic Organic Chemical 

Manufacturing Industry (SOCMI) 

Reactor/Distillation, Wood Furniture 

Manufacturing, Ship Building and Ship 

Repair and Aerospace Manufacturing 

CTG documents. For the other source 

categories (i.e., non-CTG categories 

including bakeries), VOC RACT 

regulations were required if a facility in 

the Cincinnati area has the potential to 

emit greater than 100 tons VOC per year 

of non-CTG VOC emissions. A facility is 

not subject to RACT if it is subject to 

federally enforceable operating and/or 

production restrictions limiting the 

facility emissions to a level below the 

applicable cutoff (e.g., for non-CTG 

RACT to less than 100 tons per year of 

non-CTG emissions). 

A. Source Categories Not Requiring New 

VOC Regulations 

The following VOC source categories 

do not require any additional 

regulations because there are no sources 

in the Cincinnati area that exceed the 

CTG or non-CTG applicability criteria; 

there are no major sources in the 

category; and/or any such sources are 

subject to federally enforceable 

operating and/or production restrictions 

limiting the facility’s VOC emissions to 

less than the applicable cutoff. Non-CTG 

emissions include emissions from 

source categories for which there is not 

a CTG document and also unregulated 

emissions from source categories 

covered by a CTG category. PTE 

emissions are the emissions at 

maximum production levels and 8760 

hours per year and represent the 

maximum emissions that can occur 

without a modification. 

1. Industrial Cleaning Solvents 

On May 23, 2003, the Ohio EPA 

submitted to EPA a Negative Declaration 

letter for Industrial Cleaning Solvents, 

which adequately documented that 

there are no sources in this category in 

the Ohio portion of the CincinnatiHamilton area with non-CTG potential 

emissions of equal to or greater than 100 

tons VOC/year. 

Ohio EPA made a thorough search to 

ensure that it considered all sources 

with solvent clean-up emissions. This 

included looking at the Standard 

Industrial Classification (SIC) Manual, 

the local Yellow Pages, a database 

associated with the Ohio EPA 

permitting system, as well as 

information from several trade 

associations and web sites. Based on 

that review, 122 facilities were 

identified that are normally associated 

with solvent clean-up emissions. None 

of these facilities were found to have 

solvent clean-up potential VOC 

emissions of over 50 Tons Per Year 

(TPY), and there are no facilities with 

solvent cleaning operations that have 

combined non-CTG potential VOC 

emissions of 100 TPY or more. EPA 

reviewed the negative declaration 

submitted by the State and concluded 

that Ohio EPA has adequately 

documented that there are no major 

non-CTG sources with potential 

emissions of 100 TPY or more and, 

therefore, there are no sources in this 

category in the Cincinnati area with 

emissions that are subject to RACT for 

this source category. 

2. Shipbuilding and Ship Repair 

Industry 

On May 23, 2003, the Ohio EPA 

submitted to EPA a Negative Declaration 

letter for the Ship Building and Ship 

Repair Industry which adequately 

documented that there are no sources 

for this CTG category in the Ohio 

portion of the Cincinnati-Hamilton area. 

Ohio EPA made a thorough search to 

determine whether any ship building or 

ship repair facilities were located within 

the Cincinnati area. This included 

reviewing the Ohio EPA air pollution 

control permitting system, contacting 

the local office of the United States 

Coast Guard, reviewing ship building 

trade association information identified 

on the web and, in addition, the Harris 

Directory, which provides SIC 

information for more than 800,000 

companies across the country, was 

investigated for those categories related 

to ship building and repair. None of the 

above sources of information resulted in 

the identification of any ship building 

and repair facilities. In addition, staff 

from the Hamilton County Department 

of Environmental Services confirmed 

that there are no military or commercial 

ship building and repair operations 

along the Ohio River, the only plausible 

location for such operations in the 

ozone nonattainment area. EPA 

reviewed the negative declaration and 

concludes that Ohio EPA has adequately 

documented that there are no ship 

building and repair facilities located in 

the Ohio portion of the CincinnatiHamilton area. 

3. Automobile Refinishing 

On May 23, 2003 the Ohio EPA 

submitted to EPA a Negative Declaration 

letter for Automobile Refinishing which 

adequately documented that there are 

no automobile refinishing major sources 

(also referred to as auto body shops)in 

the Ohio portion of the CincinnatiHamilton area with non-CTG potential 

VOC emissions of equal to or greater 

than 100 tons/year. 

In order to determine whether there 

were any major automobile refinishing 

sources within the Cincinnati area, Ohio 

EPA searched the SIC Code Manual for 

automobile refinishing in conjunction 

with the Harris Directory, the local and 

business to business Yellow Pages for 

automobile refinishing companies, the 

Ohio EPA permitting system, and Ohio 

EPA’s Small Business Assistance 

Program. After reviewing all of the 

above sources of information, 142 

automobile refinishing facilities were 

identified. Of the 142 facilities, 103 are 

each subject to a federally enforceable 

Permit to Install which limits VOC 

emissions to less than 25 tons/year. A 

review of each of the remaining 39 

facilities established that the potential 

VOC emissions from each of them was 

less than 25 tons VOC/year. EPA 

reviewed the negative declaration and 

concludes that Ohio EPA has adequately 

documented that there are no 

automobile refinishing facilities with 

potential emissions of 100 TPY or more 

and, therefore, there are no such 

facilities for which a RACT rule is 

required. 

4. Aerospace Manufacturing and 

Rework Facilities 

On October 14, 2003, the Ohio EPA 

submitted to EPA a Negative Declaration 

letter for Aerospace Manufacturing and 

Rework Facilities which adequately 

documented that there are no major 

sources (sources with potential 

emissions equal to or greater than 25 

35962 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

tons VOC/year for this source category) 

in the Cincinnati area.

Ohio EPA made a thorough search to 

determine what aerospace 

manufacturing and/or rework facilities 

were located within the Cincinnati area. 

Ohio EPA searched the Ohio EPA 

permitting system, the local and 

business Yellow Pages for aerospace 

manufacturing and rework facilities, 

they utilized the web and found a 

number of trade associations, and used 

the Harris Directory, which provides 

SIC information for more than 800,000 

companies across the country. 

After reviewing all of the above 

sources of information, Ohio EPA 

identified 22 facilities in the Cincinnati 

area that are generally associated with 

aerospace manufacturing and rework 

operations. These 22 facilities are listed 

in a table attached to the October 14, 

2003, letter. In reviewing the status of 

those 22 facilities, it was determined 

that 14 facilities do not have aerospace 

manufacturing or rework operations. 

Two facilities, CTL Aerospace and 

Gayston Corporation have federally 

enforceable Permits to Install which 

limit the allowable VOC emissions to 

less than 25 TPY for each facility. One 

facility has shut down all coating 

operations. The individual files were 

reviewed for the remaining 5 facilities 

and it was determined that the potential 

VOC emissions for operations subject to 

the CTG were less than 25 TPY at each 

of the facilities. EPA reviewed the 

negative declaration submitted by the 

State and concludes Ohio EPA has 

adequately documented that there are 

no aerospace manufacturing and rework 

operations located in the Ohio portion 

of the Cincinnati-Hamilton area with 

potential emissions that exceed the 

applicability criteria for this CTG 

category and therefore there are no such 

facilities for which a RACT regulation is 

needed. 

5. Volatile Organic Liquid Storage Tanks 

On January 27, 2004, the Ohio EPA 

submitted to EPA a Negative Declaration 

letter for volatile organic liquid (VOL) 

storage tanks, which adequately 

documented that there are no sources in 

this category in the Ohio portion of the 

Cincinnati-Hamilton area with potential 

non-CTG emissions of 100 TPY that are 

not already subject to RACT level 

controls on their VOL storage tanks. 

Ohio EPA performed the following 

searches to identify all VOL storage 

tanks in the Cincinnati ozone 

nonattainment area. Ohio EPA checked 

the Harris Directory for those SICs 

which may have VOL storage tanks. 

They also checked the local Yellow and 

business Yellow Pages for petroleum, 

oils and solvent storage facilities, their 

permitting system for storage tanks and 

on the web, information was obtained 

from several trade associations. 

Ohio EPA identified 151 facilities in 

the four county Cincinnati area with a 

total of 1363 storage tanks of various 

sizes, that contained materials having a 

wide range of vapor pressures. Only 

VOL storage tanks with a capacity of 

greater than 40,000 gallons and storing 

material with a vapor pressure greater 

than 0.5 pounds per square inch 

absolute (psia) are subject to RACT 

controls. Of those 151 facilities, only 12 

were potentially subject to RACT 

because total potential non-CTG 

emissions from the facility were above 

100 TPY. However, 7 of those facilities 

have no storage tanks with a capacity 

greater than 40,000 gallons and storing 

a material with a vapor pressure greater 

than 0.5 pounds psia. Thus, those 

facilities had no tanks required to have 

RACT-level controls. As documented in 

Ohio EPA’s January 27, 2004 letter, one 

facility is subject to a federally 

enforceable Permit to Install limiting 

facility emissions to less than 100 tons 

per year. At the remaining four 

facilities, the storage tanks over 40,000 

gallons and with a vapor pressure 

greater than 0.5 pounds psia are subject 

to either existing petroleum liquid 

RACT control requirements or National 

Emission Standards for Hazardous Air 

Pollutant (NESHAP) regulations with 

control requirements that are at least as 

stringent as RACT. EPA reviewed the 

negative declaration submitted by the 

State and concludes Ohio EPA has 

adequately documented that, except for 

the four adequately controlled facilities 

described above, there are no major nonCTG sources with potential emissions of 

100 TPY or more and VOL storage tanks 

over 40,000 gallons and with a vapor 

pressure greater than 0.5 pounds psia. 

Therefore, there are no VOL storage 

tanks in the Cincinnati-Hamilton area 

for which a RACT regulation is 

necessary. 

6. Lithographic Printing 

On July 31, 2003, the Ohio EPA 

submitted to EPA a Negative Declaration 

letter for Lithographic Printing, which 

adequately documented that there are 

no major lithographic printing sources 

(sources with potential emissions equal 

to or greater than 100 tons per year for 

this source category) in the Cincinnati 

area. 

Ohio EPA made a thorough search to 

determine what lithographic printing 

facilities were located in the Cincinnati 

area. Ohio EPA searched their 

permitting system, the local and 

business Yellow Pages for Lithographic 

printing, utilized the web and reviewed 

trade association information, used the 

Small Business Assistance program, and 

also used the Harris Directory, which 

provides SIC information for more than 

800,000 companies. 

After reviewing the above sources of 

information, Ohio EPA determined that 

there are seven facilities which perform 

web offset lithographic printing. The 

potential to emit for three of these 

facilities is less than 12 tons of VOC per 

year. The other four facilities have 

federally enforceable Permits to Install 

limiting emissions to less than 100 tons 

per year for each facility. EPA reviewed 

the negative declaration submitted by 

the State and concludes that Ohio EPA 

has adequately documented that there 

are no lithographic printing facilities in 

the Cincinnati area for which a RACT 

regulation is needed. 

7. Plastic Parts Coating 

On March 31, 2005, the Ohio EPA 

submitted to EPA a Negative Declaration 

letter for the coating of Automotive 

Plastic Parts, which adequately 

documented that there are no major 

automotive plastic parts coating sources 

(sources with potential VOC emissions 

equal to or greater than 100 tons per 

year for this source category) in the 

Cincinnati area. 

Ohio EPA made a thorough search to 

determine what automotive plastic parts 

coating facilities were located in the 

Cincinnati area. Ohio EPA searched 

their permitting system, the local and 

business Yellow Pages for automotive 

plastic parts coating, utilized the web 

and reviewed trade association 

information, used the small business 

assistance program, and also used the 

Harris Directory which provides SIC 

information on more than 800,000 

companies. 

After reviewing the above sources of 

information, Ohio EPA determined that 

there are three facilities which coat 

automotive plastic parts in the 

Cincinnati area. The potential to emit 

for one of these facilities is less than 10 

tons VOC per year, and the other two 

automotive plastic parts coating 

facilities have federally enforceable 

Permits to Install limiting emissions to 

less than 100 tons per year for each 

facility. EPA reviewed the negative 

declaration submitted by the State and 

concludes that Ohio EPA has adequately 

documented that there are no 

automotive plastic parts coating 

facilities with potential emissions of 100 

TPY or more in the Cincinnati area. 

Therefore, there are no automotive 

plastic parts coating facilities for which 

a RACT rule is required.

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35963

B. Source Categories for Which VOC 

RACT Regulations Have Been Proposed 

and Adopted 

On March 8, 2005, Ohio EPA 

requested that EPA parallel process 

VOC regulations for five source 

categories that are discussed below. 

Parallel processing includes proposing 

action (by EPA) on draft rules submitted 

by the State with EPA’s final rulemaking 

taking place subsequent to the State 

rules being finally adopted. Subsequent 

to submittal of their draft rules on 

March 8, 2005, Ohio EPA agreed to 

make some revisions to their rules, at 

EPA’s request, so that they are 

consistent with EPA VOC RACT 

requirements and, therefore, approvable. 

Ohio’s final rules incorporate these (and 

no other substantive) changes and 

represent RACT. The following 

discussion of the five VOC rules that 

EPA is approving includes a discussion 

of the changes made by Ohio EPA. 

The RACT rules for these five 

categories were adopted by Ohio on 

May 16, 2005 and became effective on 

May 27, 2005. 

1. Bakeries 

On March 8, 2005, Ohio EPA 

submitted draft rule 3745–21–12 

‘‘Control of Volatile Organic Compound 

Emissions from Commercial Bakery 

Oven Facilities’’ and the accompanying 

definitions in 37–45–21–01(U). This 

draft rule applies to any commercial 

bakery oven facility in the Cincinnati 

ozone nonattainment area with a 

potential VOC emissions equal to or 

greater than 100 tons per year. Each 

bakery oven subject to these control 

requirements must install and operate a 

VOC emission control system with an 

overall control efficiency of at least 95 

percent by weight. A bakery oven is 

exempted from the control requirements 

of this rule if, as established by the 

recordkeeping requirements in this rule, 

it has annual VOC emissions of less 

than 25.0 tons and average daily VOC 

emissions of less than 192 pounds. This 

is consistent with the exemption levels 

that were approved by EPA in the 

Maricopa County (Arizona) bakery rule. 

This rule contains a calculation 

procedure to determine uncontrolled 

potential to emit, a requirement to 

achieve compliance within 12 months, 

as well as compliance testing 

requirements, monitoring and 

inspection requirements, and 

recordkeeping and reporting 

requirements. At EPA’s request, Ohio 

EPA deleted the last sentence in the 

draft definition of ‘‘Commercial bakery 

oven facility’’ which improperly 

exempts establishments that produce 

bakery products primarily for direct sale 

on the premises to household 

consumers and that utilize only batch 

bakery ovens. This adopted rule, with 

the revised definition, is consistent with 

RACT and is, therefore, being approved. 

2. Batch Processes 

On March 8, 2005, Ohio EPA 

submitted draft rule 3745–21–14 

‘‘Control of Volatile Organic Compound 

Emissions from Process Vents in Batch 

Operations’’ and the accompanying 

definitions in 3745–21–01(W). This 

draft rule applies to any batch process 

train for a variety of chemical 

manufacturing operations at facilities in 

the Cincinnati area with over 100 tons 

per year of potential VOC emissions. A 

batch operation is a non-continuous 

operation in which chemicals are added 

to the process in discrete intervals as 

opposed to on a continuous basis. A 

batch process train is a collection of 

equipment (e.g., reactors, filters, 

distillation columns, extractors, 

crystallizers, blend tanks, neutralizer 

tanks, digesters, surge tanks and product 

separators) configured to produce a 

specific product or intermediate by a 

batch operation. 

Exempted from the VOC control 

requirements of this rule are any unit 

operation with uncontrolled annual 

VOC emissions of less than 500 pounds 

per year and any batch process train 

containing process vents that have, in 

the aggregate, uncontrolled total annual 

mass emissions of less than 30,000 

pounds per year. 

For those process vents of batch 

process trains and unit operations 

within batch process trains subject to 

the control requirements of this rule, 

compliance can be achieved by: (1) 

Reducing uncontrolled VOC emissions 

by an overall efficiency of at least 90 

percent, or to 20 parts per million 

volume, per batch cycle; (2) using a 

boiler or process heater to comply with 

the above by requiring that the vent 

stream be introduced into the flame 

zone of the boiler or process heater; or 

(3) using a flare, provided that it meets 

Ohio’s approved flare requirements in 

3745–21–09(DD)(10)(d). In addition, 

suitable recordkeeping, reporting, and 

test methods have been included. 

Compliance with these control 

requirements is required within 12 

months of the effective date of this rule. 

In order to eliminate ambiguity in 3714–

21–14(A)(4), which deals with 

compliance deadlines, Ohio EPA 

eliminated (at EPA’s request) the last 

sentence in 3714–21–14(A)(4) and 

added ‘‘1990’’ after baseline year in 

order to specify the year after which 

actual emissions could not have 

exceeded 100 tons per year of VOC to 

make the source eligible for avoiding 

applicability to the batch rule by 

restricting emissions to less than 100 

tons VOC per year through federally 

enforceable operating restrictions. 

This adopted batch rule is consistent 

with EPA VOC RACT guidance and is, 

therefore, being approved. 

3. Industrial Wastewater 

On March 8, 2005, Ohio EPA 

submitted draft rule 3745–21–16 

‘‘Control of Volatile Organic Compound 

Emissions from Industrial Wastewater’’

and the accompanying definitions in 

3745–21–01(Y). This draft rule applies 

to facilities in the Cincinnati area with 

the potential to emit over 100 tons VOC 

per year and that have operations in one 

of several industrial categories, such as 

organic chemicals, pesticides and 

pharmaceutical manufacturing, and that 

generate process wastewater.

The proposed industrial wastewater 

rule contains the following control 

requirements: Each individual drain 

system shall be covered and, if vented, 

be routed through a closed vent system 

to an emissions control device, or each 

drain shall be equipped with water seal 

controls or a tightly fitting cap or plug; 

each surface impoundment that 

receives, manages or treats an affected 

VOC wastewater stream must be 

equipped with a cover and a closed-vent 

system which routes the VOC vapors to 

an emissions control device or the 

surface impoundment must be equipped 

with a floating flexible membrane cover; 

each oil-water separator shall be 

equipped with a fixed roof and a closed 

vent system that routes the vapors to an 

emissions control device or a floating 

roof; each portable container must be 

covered; each wastewater tank shall 

have a fixed roof and a closed-vent 

system that routes the VOC vapors to a 

control device, a fixed roof and an 

internal floating roof, or an external 

floating roof; and each treatment process 

must meet the applicable requirements 

described above along with other 

requirements, such as venting the gases 

from the treatment process to an 

emissions control device designed and 

operated to reduce wastewater VOC 

emissions by 90%. There is also an 

alternative control option requiring EPA 

approval. 

There are inspection and monitoring 

requirements, a list of approved test 

methods, recordkeeping requirements, 

and a requirement that compliance be 

achieved within 12 months from the 

effective date of the rule. 

At EPA’s request, Ohio EPA made the 

following agreed upon changes to its 

draft rule: It revised the definition of 

35964 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

‘‘Affected VOC’’ in 3745–21–01(Y)(3) to 

‘‘means VOC with a Henry’s Law 

Constant greater than * * *,’’ because 

VOCs with a higher Henry’s Law 

Constant have a greater potential to be 

emitted; in order to eliminate ambiguity 

in 3745–21–16(A)(4) it deleted the last 

sentence in this section; Ohio EPA 

added ‘‘1990’’ before ‘‘baseline year’’

(for the reason described in the prior 

section); and deleted the phrase ‘‘or 

(D)(8)’’from 3745–21–16(D)(1), as (D)(8) 

is a control option for treatment 

processes and was not intended to be an 

alternative to the control requirements 

in (D)(3) through (D)(7). The adopted 

rule is consistent with RACT and is 

being approved. 

4. SOCMI Reactors/Distillation Units 

On March 8, 2005, Ohio EPA 

submitted draft rule 3745–21–13 

‘‘Control of Volatile Organic Compound 

Emissions from Reactors and 

Distillation Units Employed in SOCMI 

Chemical Production’’ and the 

accompanying definitions in 3745–21–

01(V). This rule applies to any reactor 

or distillation unit within a process unit 

that produces a SOCMI chemical and 

that is located in the Cincinnati area. 

Any reactor or distillation unit in a 

process unit with a design capacity of 

less than 1,100 tons per year of 

chemicals produced is (consistent with 

the CTG) exempt from the control 

requirements of this rule. This rule also 

exempts any reactor or distillation unit 

that is regulated by either of two of 

Ohio’s existing VOC RACT rules or 

three new source performance 

standards, each of which have federally 

enforceable control requirements that 

are at least as stringent as the control 

requirements for this SOCMI rule. Each 

process vent is classified according to 

characteristics of the process vent 

stream (VOC concentration, flow rate, 

and the total resource effectiveness 

(TRE))prior to a control device. The TRE 

is a cost-effectiveness tool established 

by EPA to determine if the annual cost 

of controlling a gas stream is reasonable 

based on the emission reduction that 

can be achieved by a combustion-type 

emissions control device. 

One of the following controls is 

required for those process vents for 

which control is required: Discharge to 

a properly operating flare; discharge to 

the flame zone of a boiler or process 

heater with a heat input capacity of over 

150 million BTU per hour; discharge to 

a boiler or process heater as the primary 

fuel or with the primary fuel; discharge 

to a control device that reduces VOC 

emissions by at least 98 percent or emits 

VOC at a concentration less than 20 

ppmv; achieve and maintain a TRE 

index value greater than 1.0 (for which 

no additional control is warranted); or 

discharge to an existing combustion 

device with a 90 percent emission 

reduction efficiency. 

Compliance is required within 12 

months of the effective date of the rule. 

This rule also includes compliance 

testing, TRE determination testing and 

monitoring requirements, as well as 

recordkeeping and reporting 

requirements. 

At EPA’s request, Ohio EPA revised 

3714–21–13(A)(2) and added a new 

(A)(3) that specifies that sources exempt 

from the requirements of the SOCMI 

rule because they are subject to another 

rule must be subject to the limits of such 

other rule. Ohio EPA also deleted 

(F)(1)(f), which allows emission 

reduction credit for a recovery device 

that is part of the process. 

With the revisions made by Ohio EPA 

this adopted rule is consistent with EPA 

RACT guidance and is being approved. 

5. Wood Furniture Manufacturing 

On March 8, 2005, Ohio EPA 

submitted draft rule 3745–21–15 

‘‘Control of Volatile Organic Compound 

Emissions from Wood Furniture 

Manufacturing Operations’’ and the 

accompanying definitions in 3745–21–

01(X). This draft rule applies to any 

facility that has wood furniture 

manufacturing operations with a 

potential to emit 25 tons VOC per year 

and is located in the Cincinnati area. 

The five compliance options for wood 

finishing operations are: (1) A VOC 

content limit of 0.8 pound VOC per 

pound of solids for topcoats only; (2) 

VOC content limits for topcoats and 

sealers, wherein topcoats are subject to 

1.8 pounds VOC per gallon of solids or 

2.0 pounds VOC per gallon of solids for 

an acid-cured alkyd amino conversion 

topcoat, and sealers are subject to 1.9 

pounds VOC per gallon of solids or 2.3 

pounds VOC per gallon of solids for an 

acid-cured alkyd amino sealer; (3) a 

VOC emission control system for 

topcoats and/or sealers that is 

equivalent to the VOC content limits of 

the above options; (4) daily VOC 

emissions limits for topcoats; and (5) 

daily VOC emissions limit for topcoats, 

sealers, and other finishing materials. 

The compliance options associated with 

daily VOC emissions are based on a 

daily summation of actual VOC 

emissions not exceeding 90 percent of 

the daily summation of VOC emissions 

allowed under compliance options (1) 

or (2). This rule also allows 30-day 

averaging for dip coaters.

This rule also requires a work practice 

implementation plan that develops 

environmentally desirable work 

practices including: An operator 

training course; a leak inspection and 

maintenance plan; a cleaning and 

washoff accounting system, spray booth 

cleaning restrictions; storage 

requirements for coatings; coating 

application requirements; line cleaning 

and spray gun cleaning procedures; and 

emission control practices from washoff 

operations. 

This rule also includes compliance 

testing and monitoring requirements for 

a VOC emission control system, as well 

as recordkeeping and reporting 

requirements. Compliance is required 

12 months after the effective date of this 

rule. Ohio EPA revised its viscosity 

provisions, as was previously agreed 

between the State and EPA, so that 

viscosity cannot, by itself, be used to 

establish the VOC content for dip 

coaters. This rule is consistent with 

VOC RACT requirements and is being 

approved. 

VII. Statutory and Executive Order 

Reviews 

Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. 

Executive Order 13211: Actions 

Concerning Regulations 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). 

Regulatory Flexibility Act 

This action merely approves state law 

as meeting federal requirements and 

imposes no additional requirements 

beyond those imposed by state law. 

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 

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 

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 35965

described in the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4). 

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 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). This action merely 

approves a state rule implementing a 

federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. 

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. 

National Technology Transfer 

Advancement Act 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the state to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. 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. 

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.). 

Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. By June 14, 2005, 

EPA will submit a report containing 

these rules and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States. 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 Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by August 22, 2005. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See Section 

307(b)(2).)

List of Subjects in 40 CFR Parts 52 and 

81 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds.

Dated: June 10, 2005. 

Norman Niedergang, 

Acting Regional Administrator, Region 5.

■ For the reasons stated in the preamble, 

parts 52 and 81, chapter I, title 40 of the 

Code of Federal Regulations are 

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 52.1870 is amended by 

adding paragraph (c)(133) to read as 

follows:

§ 52.1870 Identification of plan.

* * * * *

(c) * * * 

(133) On May 20, 2005, the Ohio 

Environmental Protection Agency 

submitted volatile organic compound 

(VOC) regulations for five source 

categories in the Cincinnati ozone 

nonattainment area. These regulations 

complete the requirement that all VOC 

reasonably available control technology 

(RACT) regulations, for which there are 

eligible sources, have been approved by 

EPA into the SIP for the Cincinnati 

ozone nonattainment area. 

(i) Incorporation by Reference. The 

following sections of the Ohio 

Administrative Code (OAC) are 

incorporated by reference. 

(A) OAC rule 3745–21–01(U), 

(definitions for commercial bakery oven 

facilities), effective May 27, 2005. 

(B) OAC rule 3745–21–01(V), 

(definitions for reactors and distillation 

units employed in SOCMI chemical 

production), effective May 27, 2005. 

(C) OAC rule 3745–21–01(W), 

(definitions for batch operations), 

effective May 27, 2005. 

(D) OAC rule 3745–21–01(X), 

(definitions for wood furniture 

manufacturing operations), effective 

May 27, 2005. 

(E) OAC rule 3745–21–01(Y), 

(definitions for industrial wastewater), 

effective May 27, 2005. 

(F) OAC rule 3745–21–12: ‘‘Control of 

Volatile Organic Compound Emissions 

from Commercial Bakery Oven 

Facilities’’, effective May 27, 2005. 

(G) OAC rule 3745–21–13: ‘‘Control of 

Volatile Organic Compound Emissions 

from Reactors and Distillation Units 

Employed in SOCMI Chemical 

Production’’, effective May 27, 2005. 

(H) OAC rule 3745–21–14: ‘‘Control of 

Volatile Organic Compound Emissions 

from Process Vents in Batch 

Operations’’, effective May 27, 2005. 

(I) OAC rule 3745–21–15: ‘‘Control of 

Volatile Organic Compound Emissions 

from Wood Furniture Manufacturing 

Operations’’, effective May 27, 2005. 

(J) OAC rule 3745–21–16: ‘‘Control of 

Volatile Organic Compound Emissions 

from Industrial Wastewater’’, effective 

May 27, 2005.

* * * * *

■ 2. Section 52.1885 is amended by 

revising paragraph (a)(14) to read as 

follows:

§ 52.1885 Control strategy: Ozone. 

(a) * * * 

(14) Approval-EPA is approving the 1-

hour ozone maintenance plan for the 

Ohio portion of the Cincinnati-Hamilton 

area submitted by Ohio on May 20, 

35966 Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / Rules and Regulations 

2005. The approved maintenance plan 

establishes 2015 mobile source budgets 

for the Ohio portion of the area (Butler, 

Clermont, Hamilton, and Warren 

Counties) for the purposes of 

transportation conformity. These 

budgets are 26.2 tons per day for volatile 

organic compounds and 39.5 tons per 

day for nitrogen oxides for the year 

2015.

* * * * *

PART 81—[AMENDED]

■ 1. The authority citation for part 81 

continues to read as follows:

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

■ 2. Section 81.336 is amended by 

revising the 1-hour ozone table entry for 

the Cincinnati-Hamilton Area to read as 

follows:

§ 81.336 Ohio.

* * * * *

OHIO—OZONE (1–HOUR STANDARD) 

Designated area 

Designation Classification 

Date Type Date Type 

* * * * * * * 

Cincinnati-Hamilton Area: 06/14/2005 Attainment.

Butler County.

Clermont County.

Hamilton County.

Warren County.

* * * * * * * 

[FR Doc. 05–12016 Filed 6–20–05; 8:45 am] 

BILLING CODE 6560–50–P