[Federal Register Volume 65, Number 15 (Monday, January 24, 2000)]
[Proposed Rules]
[Pages 3630-3642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1555]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH-132; KY-116; KY-84; FRL-6527-7]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Ohio and Kentucky

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

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SUMMARY:  The EPA proposes to determine that the Cincinnati-Hamilton 
moderate ozone nonattainment area (Cincinnati-Hamilton area) has 
attained the public health-based 1-hour ozone National Ambient Air 
Quality Standard (NAAQS). If EPA takes final action on this proposal, 
the Cincinnati-Hamilton area will be redesignated to attainment of the 
1-hour ozone NAAQS. The Cincinnati-Hamilton area includes the Ohio 
Counties of Hamilton, Butler, Clermont, and Warren and the Kentucky 
Counties of Boone, Campbell, and Kenton. This proposed determination is 
based on three years of complete, quality-assured, ambient air 
monitoring data for the 1996 to 1998 ozone seasons that demonstrate 
that the ozone NAAQS has been attained in the area. Preliminary ozone 
monitoring data for 1999 continue to show the area attaining the ozone 
NAAQS. On the basis of this determination, EPA is also determining that 
certain attainment demonstration requirements, along with certain other 
related requirements, of part D of Title 1 of the Clean Air Act (CAA) 
are not applicable to the Cincinnati-Hamilton area.
    The EPA is also proposing to approve the State of Ohio 
Environmental Protection Agency's (OEPA) and the Commonwealth of 
Kentucky Natural Resources and Environmental Protection Cabinet 
(Cabinet) requests to redesignate the Cincinnati-Hamilton

[[Page 3631]]

area to attainment of the 1-hour ozone NAAQS. The redesignation request 
from OEPA was received on July 2, 1999 and completed on December 22, 
1999. The Cabinet sent the redesignation request to EPA on October 29, 
1999. Approval of these redesignation requests would put into place a 
plan for maintaining the 1-hour ozone standard for the next 10 years.
    The EPA is also re-proposing to approve an exemption from the 
nitrogen oxides (NO<INF>X</INF>) requirements as provided for in 
section 182(f) for the Kentucky portion of the Cincinnati-Hamilton 
area. Section 182(f) establishes NO<INF>X</INF> requirements for ozone 
nonattainment areas. However, it provides that these requirements do 
not apply to an area if the Administrator determines that 
NO<INF>X</INF> reductions would not contribute to attainment. On 
November 11, 1994, the Cabinet submitted a request for a 182(f) 
NO<INF>X</INF> exemption and on May 10, 1995, EPA proposed approval for 
the exemption. Subsequently, since the area monitored an exceedance 
that constituted a violation of the ozone NAAQS, EPA did not publish a 
final notice approving the NO<INF>X</INF> exemption. Because the 
Cincinnati-Hamilton area is currently attaining the ozone NAAQS, EPA is 
proposing to grant the Kentucky portion a NO<INF>X</INF> exemption. If 
final action is taken, then the Kentucky portion of the Cincinnati-
Hamilton area would no longer be subject to NO<INF>X</INF> 
requirements, however, all controls previously approved by the Cabinet 
must continue to be implemented.

DATES:  Comments on EPA's proposed action must be received by February 
23, 2000.

ADDRESSES:  Written comments should be addressed to:
J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs 
Branch (AR-18J), United States Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
Kay Prince, Chief, Regulatory Planning Section, Air Planning Branch, 
U.S. Environmental Protection Agency, 61 Forsyth Street, SW, Atlanta, 
Georgia 30303.
    Copies of the OEPA's and the Cabinet's submittals and other 
information are available for inspection during normal business hours 
at the following locations. The interested persons wanting to examine 
these documents should make an appointment with the appropriate office 
at least 24 hours before the visiting day. Reference file OH 132, KY-
116 and KY 84. Regulation Development Section, Air Programs Branch (AR-
18J), United States Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. U.S. Environmental 
Protection Agency, Region 4, Air Planning Branch, Regulatory Planning 
Section, 61 Forsyth Street, SW, Atlanta, Georgia 30303.

FOR FURTHER INFORMATION CONTACT:  William Jones, Environmental 
Scientist, Regulation Development Section, Air Programs Branch (AR-
18J), United States Environmental Protection Agency, Region 5, Chicago, 
Illinois 60604, (312) 886-6058, (<a href="/cdn-cgi/l/email-protection#8be1e4e5eef8a5fce2e7e7e2eae6cbeefbeaa5ece4fd"><span class="__cf_email__" data-cfemail="711b1e1f14025f06181d1d18101c311401105f161e07">[email protected]</span></a>). Karla L. 
McCorkle, Environmental Scientist, Regulatory Planning Section, Air 
Planning Branch, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW, Atlanta, Georgia, 30303, 404-562-9043, 
(<a href="/cdn-cgi/l/email-protection#bfd2dcdcd0cdd4d3da91d4decdd3deffdacfde91d8d0c9"><span class="__cf_email__" data-cfemail="ec818f8f839e878089c2878d9e808dac899c8dc28b839a">[email protected]</span></a>).

Table of Contents

I. Determination of Attainment
    A. What action is EPA proposing to take?
    B. Why is EPA taking this action?
    C. What would be the effect of this action?
    D. What is the background for this action?
    E. Where is the public record and where do I send comments?
II. Redesignation Request
    A. What action is EPA proposing to take?
    B. Why is EPA taking this action?
    C. What would be the effect of the redesignation?
    D. What is the background for this action?
    E. What are the redesignation review criteria?
    F. What is EPA's analysis of the request?
    G. Where is the public record and where do I send comments?
III. 182(f) NO<INF>X</INF> Exemption for Kentucky
    A. What action is EPA proposing to take?
    B. Where is the public record and where do I send comments?
IV. Disclaimer Language Approving SIP Revisions in Audit Law States
V. What administrative requirements were considered?
    A. Executive Order 12866
    B. Executive Order 13132
    C. Executive Order 13045
    D. Executive Order 13084
    E. Regulatory Flexibility Act
    F. Unfunded Mandates Act
    G. National Technology Transfer and Advancement Act

I. Determination of Attainment

A. What Action Is EPA Proposing To Take?

    The EPA is proposing to determine that the Cincinnati-Hamilton 
moderate ozone nonattainment area has attained the NAAQS for ozone. The 
Cincinnati-Hamilton area includes the Ohio Counties of Hamilton, 
Butler, Clermont, and Warren and the Kentucky Counties of Boone, 
Campbell, and Kenton. On the basis of this determination, EPA is also 
determining that certain attainment demonstration requirements (section 
172(c)(1)), along with certain other related requirements, of Part D of 
Title 1 of the CAA, specifically the section 172(c)(9) contingency 
measure requirement, the section 182(b)(1) attainment demonstration 
requirement and the 182(j) multi-state attainment demonstration 
requirement are not applicable to the Cincinnati-Hamilton area as long 
as it continues to attain the ozone NAAQS.

B. Why Is EPA Taking This Action?

    The EPA proposes to redesignate the area because three years of 
ambient air monitoring data demonstrate that the ozone NAAQS has been 
attained and the area has satisfied the other requirements for 
redesignation. The EPA believes it is reasonable to interpret 
provisions regarding attainment demonstrations, along with certain 
other related provisions, so as not to require State Implementation 
Plan (SIP) submissions, as described further below, if an ozone 
nonattainment area subject to those requirements is monitoring 
attainment of the ozone standard (i.e., attainment of the NAAQS is 
demonstrated with three consecutive years of complete, quality-assured, 
air quality monitoring data). The EPA is basing this determination upon 
three years of complete, quality-assured, ambient air monitoring data 
for the 1996 to 1998 ozone seasons that demonstrate that the ozone 
NAAQS has been attained in the entire Cincinnati-Hamilton area. 
Preliminary ozone monitoring data for 1999 continue to show that the 
area is attaining the ozone NAAQS.

C. What Would Be the Effect of This Action?

    The requirements of section 172(c)(1), 182(b)(1) and 182(j) 
concerning the submission of the ozone attainment demonstration and the 
requirements of section 172(c)(9) concerning contingency measures for 
reasonable further progress (RFP) or attainment will not be applicable 
to the area. This proposal does not revoke the 1-hour standard (see 
discussion in II (A) of this document.)

D. What Is the Background for This Action?

    Subpart 2 of part D of Title I of the CAA contains various air 
quality planning and SIP submission requirements for ozone 
nonattainment areas. The EPA believes it is reasonable to interpret 
provisions regarding RFP and attainment demonstrations, along with 
certain other related provisions, so as not to require SIP submissions 
if an

[[Page 3632]]

ozone nonattainment area subject to those requirements is monitoring 
attainment of the ozone standard (i.e., attainment of the NAAQS 
demonstrated with three consecutive years of complete, quality-assured, 
air quality monitoring data). EPA has interpreted the general 
provisions of subpart 1 of part D of Title I (sections 171 and 172) so 
as not to require the submission of SIP revisions concerning RFP, 
attainment demonstrations, or contingency measures. As explained in a 
memorandum from John S. Seitz, Director, Office of Air Quality Planning 
and Standards, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone National Ambient Air Quality Standard,'' dated May 
10, 1995, EPA believes it is appropriate to interpret the more specific 
attainment demonstration and related provisions of subpart 2 in the 
same manner. (See Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996))
    The attainment demonstration requirements of section 182(b)(1) are 
that the plan provide for ``such specific annual reductions in 
emissions * * * as necessary to attain the national primary ambient air 
quality standard by the attainment date applicable under the CAA.'' If 
an area has in fact monitored attainment of the relevant NAAQS, EPA 
believes there is no need for an area to make a further submission 
containing additional measures to achieve attainment. This is also 
consistent with the interpretation of certain section 172(c) 
requirements provided by EPA in the General Preamble to Title I. As EPA 
stated in the Preamble, no other measures to provide for attainment 
would be needed by areas seeking redesignation to attainment since 
``attainment will have been reached'' (57 FR 13564). Upon attainment of 
the NAAQS, the focus of state planning efforts shifts to the 
maintenance of the NAAQS and the development of a maintenance plan 
under section 175A.
    Similar reasoning applies to other related provisions of subpart 2. 
The first of these are the contingency measure requirements of section 
172(c)(9) of the CAA. The EPA has previously interpreted the 
contingency measure requirement of section 172(c)(9) as no longer being 
applicable once an area has attained the standard since those 
``contingency measures are directed at ensuring RFP and attainment by 
the applicable date'' (57 FR 13564).
    The state must continue to operate an appropriate air quality 
monitoring network, in accordance with 40 CFR part 58, to verify the 
attainment status of the area. The air quality data relied upon to 
determine that the area is attaining the ozone standard must be 
consistent with 40 CFR part 58 requirements and other relevant EPA 
guidance and recorded in EPA's Aerometric Information Retrieval System 
(AIRS).
    The determinations made in this notice do not shield an area from 
future EPA action to require emissions reductions from sources in the 
area where there is evidence, such as photochemical grid modeling, 
showing that emissions from sources in the area contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other states with respect to the NAAQS (see section 110(a)(2)(D)). 
The EPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of 
the CAA to require such emission reductions if necessary and 
appropriate to deal with transport situations.
    The EPA has reviewed the ambient air monitoring data for ozone 
(consistent with the requirements contained in 40 CFR part 58 and 
recorded in AIRS) for the Cincinnati-Hamilton moderate ozone 
nonattainment area from the 1996 through 1998 ozone seasons. This data 
is summarized in Table 1 covering EPA's analysis of the redesignation 
request. Preliminary monitoring data for 1999 show the area continues 
to attain the 1-hour ozone NAAQS. On the basis of this review, EPA 
determines that the area has attained the 1-hour ozone standard during 
the 1996-98 period, which is the most recent three-year time period of 
air quality monitoring data, and therefore is not required to submit an 
attainment demonstration, and a section 172(c)(9) contingency measure 
plan.

E. Where Is the Public Record and Where Do I Send Comments?

    The official record for this proposed rule is located at the 
addresses in the ADDRESSES section at the beginning of this document. 
The addresses for sending comments are also provided in the ADDRESSES 
section at the beginning of this document. Public comments are 
solicited on EPA's proposed rulemaking action. Public comments received 
by February 23, 2000, will be considered in the development of EPA's 
final rulemaking action.

II. Redesignation Request

A. What Action Is EPA Proposing To Take?

    The EPA is proposing approval of the maintenance plan submitted by 
the OEPA and the Cabinet and redesignation of the Cincinnati-Hamilton 
moderate ozone nonattainment area to attainment of the 1-hour ozone 
NAAQS. The Cincinnati-Hamilton area consists of the Ohio Counties of 
Butler, Warren, Clermont, and Hamilton and the Kentucky Counties of 
Boone, Campbell, and Kenton.

B. Why Is EPA Taking This Action?

    The Cincinnati-Hamilton area meets the redesignation and 
maintenance plan requirements of the CAA.
    EPA issued a proposal to determine the 1-hour ozone NAAQS 
inapplicable to the Cincinnati-Hamilton area in light of the new 8-hour 
ozone NAAQS on June 10, 1999 (64 FR 110), when the U.S. Court of 
Appeals for the D.C. Circuit issued its opinion in American Trucking 
Ass'ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) and modified in 
rehearing on October 29, 1999, WL 979463, which created uncertainty 
regarding the 8-hour ozone standard. Thus, EPA proposed to rescind 
findings of inapplicability of the 1-hour ozone standard on October 25, 
1999 (64 FR 57424). Therefore, the 1-hour ozone standard remains 
applicable in the Cincinnati-Hamilton area.

C. What Would Be the Effect of the Redesignation?

    The redesignation would change the official designation of the Ohio 
Counties of Butler, Warren, Clermont, and Hamilton and the Kentucky 
Counties of Boone, Campbell, and Kenton from nonattainment to 
attainment for the 1-hour ozone standard. It would also put into place 
a plan for maintaining the 1-hour ozone standard for the next 10 years. 
This plan includes contingency measures to correct any future 
violations of the 1-hour ozone standard.

D. What Is the Background for This Action?

    The OEPA and the Cabinet submitted requests on August 16, 1999 and 
October 29, 1999, respectively, to redesignate the Ohio and Kentucky 
portions of the Cincinnati-Hamilton area from nonattainment to 
attainment for ozone.
    Under section 107(d) of the 1977 amended CAA, the EPA promulgated 
the ozone attainment status for each geographic area of the country. 
All counties in the Cincinnati-Hamilton area were designated as an 
ozone nonattainment area in March 1978 (43 FR 8962). On November 15, 
1990, the CAA Amendments of 1990 were enacted. Pursuant to section 
107(d)(4)(A), on November 6, 1991 (56 FR 56694), the Ohio Counties of 
Butler,

[[Page 3633]]

Clermont, Hamilton, and Warren and the Kentucky Counties of Boone, 
Campbell, and Kenton were designated as the Cincinnati-Hamilton 
moderate ozone nonattainment area, as a result of monitored violations 
of the ozone NAAQS during the 1987-1989 time frame. On November 14, 
1994, OEPA submitted a redesignation request for the Ohio portion of 
the Cincinnati-Hamilton area and EPA published a proposed redesignation 
rulemaking on May 5, 1995 (60 FR 22337), for the Ohio portion of the 
Cincinnati-Hamilton area. On November 11, 1994, the Cabinet submitted a 
redesignation request for the Kentucky portion of the Cincinnati-
Hamilton area and revised the request on July 19, 1995.
    During July of 1995, an ozone monitor in the area recorded an 
exceedance of the ozone standard resulting in a violation of the 1-hour 
ozone NAAQS. As a result of the violation the area was no longer 
attaining the ozone air quality standard. On September 27, 1996 (61 FR 
50718), EPA disapproved the redesignation request for the Kentucky 
portion of the Cincinnati-Hamilton area and on February 18, 1997 (62 FR 
7194), EPA proposed to disapprove the redesignation request for the 
Ohio portion based on the area's violation of the ozone NAAQS. Both 
Ohio and Kentucky were not meeting the requirements for redesignation 
specified under section 107(d)(3)(E) of the CAA during the time period 
when these actions were taken by EPA. The EPA will not respond to 
comments received on the February 18, 1997, proposed rulemaking, since 
that request is now moot, having been superseded by a new request. This 
subsequent request is the subject of this proposed rulemaking.
    The Cincinnati-Hamilton area has since recorded three years of 
complete, quality-assured, ambient air quality monitoring data for the 
1996 to 1998 ozone seasons, thereby demonstrating that the area has 
attained the 1-hour ozone NAAQS. Preliminary ozone monitoring data for 
1999 continue to show the area is attaining the ozone NAAQS. On July 2, 
1999, EPA received a redesignation request from OEPA which supersedes 
its request submitted on November 14, 1994. On August 16, 1999, OEPA 
submitted additional information for the request and on December 22, 
1999, EPA received the results of OEPA's public hearing on the proposed 
revision which was the final portion of the initial request. On October 
29, 1999, EPA received a request from the Cabinet to parallel process 
the prehearing redesignation submittal. On December 13, 1999, the 
Cabinet submitted to EPA the final redesignation request including the 
Cabinet's public hearing results.

E. What Are the Redesignation Review Criteria?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) allows for 
redesignation providing that: (1) The Administrator determines that the 
area has attained the NAAQS; (2) The Administrator has fully approved 
the applicable implementation plan for the area under Section 110(k); 
(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 and 
applicable Federal air pollutant control regulations and other 
permanent and enforceable reductions; (4) The Administrator has fully 
approved a maintenance plan for the area as meeting the requirements of 
section 175(A); and, (5) The State containing such area has met all 
requirements applicable to the area under section 110 and part D.
    The EPA provided guidance on redesignation in the General Preamble 
for the Implementation of Title I of the CAA Amendments of 1990, on 
April 16, 1992 (57 FR 13498) and supplemented on April 28, 1992 (57 FR 
18070). The EPA has provided further guidance on processing 
redesignation requests in the following documents:
    1. ``Part D New Source Review (part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Mary D. Nichols, Assistant 
Administrator for Air and Radiation, October 14, 1994. (Nichols, 
October 1994)
    2. ``Use of Actual Emissions in Maintenance Demonstrations for 
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' D. Kent Berry, 
Acting Director, Air Quality Management Division, November 30, 1993.
    3. ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on 
or after November 15, 1992,'' Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation, September 17, 1993.
    4. ``State Implementation Plan (SIP) Actions Submitted in Response 
to Clean Air Act Deadlines,'' John Calcagni, Director, Air Quality 
Management Division, October 28, 1992. (Calcagni, October 1992)
    5. ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' John Calcagni, Director, Air Quality Management Division, 
September 4, 1992.
    6. ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' G.T. Helms, Chief, Ozone/Carbon Monoxide Programs 
Branch, June 1, 1992.
    7. State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990 (57 
FR 13498), April 16, 1992.

F. What Is EPA's Analysis of the Request?

1. The Area Must Be Attaining the 1-Hour Ozone NAAQS
    For ozone, an area may be considered attaining the 1-hour ozone 
NAAQS if there are no violations, as determined in accordance with 40 
CFR 50.9 and appendix H, based on three complete, consecutive calendar 
years of quality assured monitoring data. A violation of the 1-hour 
ozone NAAQS occurs when the annual average number of expected daily 
exceedances is equal to or greater than 1.05 per year at a monitoring 
site. A daily exceedance occurs when the maximum hourly ozone 
concentration during a given day is 0.125 parts per million (ppm) or 
higher. The data must be collected and quality-assured in accordance 
with 40 CFR part 58, and recorded in AIRS. The monitors should have 
remained at the same location for the duration of the monitoring period 
required for demonstrating attainment.
    The OEPA and the Cabinet submitted ozone monitoring data for the 
April through October ozone season from 1996 to 1998. Table 1 below 
summarizes the air quality data from 1996-1998.

[[Page 3634]]



   Table 1.--1-Hour Ozone NAAQS Exceedances in the Cincinnati-Hamilton, Ohio--Kentucky Area From 1996 to 1998
----------------------------------------------------------------------------------------------------------------
                                                                                       Exceedances    Expected
                   Site                               County                Year        measured     exceedances
----------------------------------------------------------------------------------------------------------------
Middletown...............................  Butler.....................         1996             1           1.0
Middletown...............................  Butler.....................         1997             1           1.0
Middletown...............................  Butler.....................         1998             0           0.0
Hamilton.................................  Butler.....................         1996             0           0.0
Hamilton.................................  Butler.....................         1997             0           0.0
Hamilton.................................  Butler.....................         1998             0           0.0
4430 SR 222..............................  Clermont...................         1996             0           0.0
4430 SR 222..............................  Clermont...................         1997             0           0.0
4430 SR 222..............................  Clermont...................         1998             1           1.0
11590 Grooms Rd..........................  Hamilton...................         1996             0           0.0
11590 Grooms Rd..........................  Hamilton...................         1997             1           1.0
11590 Grooms Rd..........................  Hamilton...................         1998             1           1.0
6950 Ripple Road.........................  Hamilton...................         1996             0           0.0
6950 Ripple Road.........................  Hamilton...................         1997             0           0.0
6950 Ripple Road.........................  Hamilton...................         1998             0           0.0
Cincinnati...............................  Hamilton...................         1996             0           0.0
Cincinnati...............................  Hamilton...................         1997             0           0.0
Cincinnati...............................  Hamilton...................         1998             0           0.0
Lebanon..................................  Warren.....................         1996             0           0.0
Lebanon (230 Cook Road)..................  Warren.....................         1997             1           1.0
Lebanon (230 Cook Road)..................  Warren.....................         1998             1           1.0
KY 338...................................  Boone......................         1996             0           0.0
KY 338...................................  Boone......................         1997             0           0.0
KY 338...................................  Boone......................         1998             0           0.0
Dayton...................................  Campbell...................         1996             1           1.0
Dayton...................................  Campbell...................         1997             0           0.0
Dayton...................................  Campbell...................         1998             0           0.0
Covington................................  Kenton.....................         1996             1           1.0
Covington................................  Kenton.....................         1997             0           0.0
Covington................................  Kenton.....................         1998             1           1.0
----------------------------------------------------------------------------------------------------------------

    This data has been quality assured and is recorded in AIRS. During 
the 1996 to 1998 time period, the Middletown, Grooms Road, Lebanon, and 
Covington monitors each recorded a total of 2.0 expected exceedances. 
This equates to 0.67 average expected exceedances per year and shows 
that the monitoring sites with the most exceedances are attaining the 
1-hour ozone NAAQS. In addition, preliminary 1999 ambient air quality 
monitoring data indicate that the area continues to attain the 1-hour 
ozone standard. As a result, the Cincinnati-Hamilton area is currently 
meeting the air quality requirement for redesignation to attainment of 
the ozone NAAQS.
2. The Area Must Have a Fully Approved SIP Under Section 110(k); and 
the Area Must Have Met All Applicable Requirements Under Section 110 
and Part D
    Before the Cincinnati-Hamilton area may be redesignated to 
attainment for ozone, it must have fulfilled the applicable 
requirements of section 110 and part D. The Calcagni memorandum dated 
September 4, 1992, states that areas requesting redesignation to 
attainment have to fully adopt rules and programs that come due prior 
to the submittal of a complete redesignation request. If unimplemented 
and not necessary, these rules/programs may be moved into the area's 
maintenance plan as contingency measures rather than fully approved 
into the SIP. As described below in the section of this notice 
addressing Volatile Organic Compounds (VOC) reasonably available 
control technology (RACT) rules, however, the EPA is allowing an 
exception to this policy. While all requirements that come due prior to 
the submission of the redesignation request remain applicable 
requirements, the EPA believes it is appropriate, in this instance, to 
allow an exception to policy (Calcagni, September 4, 1992) to provide 
that the requirement for certain VOC RACT rules may be complied with 
simply through their incorporation among the contingency measures in 
the maintenance plan. For reasons described later in this action, these 
measures need not be fully adopted and approved prior to redesignation. 
Furthermore, requirements of the CAA that come due subsequent to the 
area's submittal of a complete redesignation request would continue to 
be applicable to the area until a redesignation is approved, but are 
not required as a prerequisite for redesignation (see section 175A(c)). 
If the redesignation is disapproved, the States remain obligated to 
fulfill those requirements.
    Section 110 Requirements. General SIP elements are delineated in 
section 110(a)(2) of Title I, part A. These requirements include but 
are not limited to the following: submittal of a SIP that has been 
adopted by the state after reasonable notice and public hearing, 
provisions for establishment and operation of appropriate apparatus, 
methods, systems and procedures necessary to monitor ambient air 
quality, implementation of a permit program, provisions for part C, 
Prevention of Significant Deterioration (PSD), and Part D, New Source 
Review (NSR) permit programs, criteria for stationary source emission 
control measures, monitoring and reporting, provisions for modeling, 
and provisions for public and local agency participation. For purposes 
of redesignation, the Ohio and Kentucky SIPs were reviewed to ensure 
that all requirements under the amended CAA were satisfied through 
approved SIP provisions.
    Transport of Ozone Precursors to Downwind Areas. Modeling results 
utilizing EPA's regional oxidant model (ROM) indicate that ozone 
precursor

[[Page 3635]]

emissions from various states west of the ozone transport region (OTR) 
in the northeastern United States contribute to increases in ozone 
concentrations in the OTR. The EPA issued a SIP call on October 27, 
1998, (63 FR 57356) requiring the District of Columbia (DC) and 22 
states, including Ohio and Kentucky to reduce their emissions of oxides 
of nitrogen in order to reduce the transport of ozone and ozone 
precursors. The SIP Call submittal date of September 1999 has been 
stayed by the DC Circuit Court. Because of the stay of the submittal 
date, this is not an applicable requirement and thus, need not be met 
for purposes of redesignation.
    EPA has determined that the Ohio and Kentucky SIPs for the 
Cincinnati-Hamilton 1-hour ozone nonattainment area satisfy all of the 
section 110 SIP requirements of the CAA.
    Part D: General Provisions for Nonattainment Areas. Before the 
Cincinnati-Hamilton area may be redesignated to attainment, it must 
have fulfilled the applicable requirements of part D. Under part D, an 
area's classification determines the requirements to which it is 
subject. Subpart 1 of part D sets forth the basic nonattainment 
requirements applicable to all nonattainment areas. Subpart 2 of part D 
establishes additional requirements for nonattainment areas classified 
under Table 1 of section 181(a). As described in the General Preamble 
for the Implementation of Title 1, specific requirements of subpart 2 
may override subpart 1's general provisions (57 FR 13501, April 16, 
1992). The Cincinnati-Hamilton area was classified as moderate ozone 
nonattainment. Therefore, in order to be redesignated, the State must 
meet the applicable requirements of subpart 1 of part D--specifically 
sections 172(c) and 176, as well as the applicable requirements of 
subpart 2 of part D.
    Section 172(c) Requirements. EPA has determined that the 
redesignation request received from the OEPA and the Cabinet for the 
Cincinnati-Hamilton area has satisfied all of the relevant submittal 
requirements under section 172(c) necessary for the area to be 
redesignated to attainment. In the first part of this proposed 
rulemaking, EPA is proposing to determine that the requirement for a 
SIP revision providing an attainment demonstration to meet section 
172(c)(1), 182(b)(1), and 182(j) is not applicable. The RFP requirement 
under section 172(c)(2) is defined as progress that must be made toward 
attainment. Section 182(b)(1)(A) sets forth the specific requirements 
for RFP. On March 14, 1994, Ohio submitted an RFP plan for Cincinnati 
and on January 28, 1998 (63 FR 4188) EPA approved the RFP plan as 
meeting the 15 percent RFP requirements of section 182(b)(1)(A). By 
meeting the specific 15% RFP requirements of section 182(b)(1)(A), 
Cincinnati is also meeting the RFP requirement of section 172(c)(2). 
Section 172(c)(3) requires submission and approval of a comprehensive, 
accurate, and current inventory of actual emissions. The OEPA submitted 
an actual emission inventory under section 182(a)(1) and EPA approved 
it on December 7, 1995 (60 FR 62737). The Cabinet submitted on 
September 11, 1998, a 15 Percent VOC Reduction Plan and the 1990 base 
year inventory for the Kentucky Counties of Boone, Campbell, and Kenton 
and EPA approved the submittal on December 8, 1998 (63 FR 67586). EPA 
has determined that the RFP and actual emission inventory requirement 
for Ohio and Kentucky is satisfied.
    Section 172(c)(5) requires permits for the construction and 
operation of new and modified major stationary sources anywhere in the 
nonattainment area. Section 182(b)(5) requires all major new sources or 
modifications in a moderate nonattainment area to achieve offsetting 
reductions of VOCs at a ratio of at least 1.15 to 1.0. The EPA has 
determined that areas being redesignated do not need to comply with the 
requirement that a NSR program be approved prior to redesignation 
provided that the area demonstrates maintenance of the standard without 
part D NSR in effect. The rationale for this decision is described in a 
memorandum from Mary Nichols dated October 14, 1994. See discussion in 
the Grand Rapids, Michigan document published on June 21, 1996 (61 FR 
31831). The States have demonstrated that the Cincinnati-Hamilton area 
will be able to maintain the standard without part D NSR in effect, 
and, therefore, the States need not have fully approved part D NSR 
programs prior to approval of the redesignation request for the 
Cincinnati-Hamilton area. The OEPA's federally delegated PSD program 
will become effective in the Cincinnati area upon redesignation to 
attainment. The Cabinet has a statewide NSR rule. EPA approved the 
latest version of the NSR rule on June 23, 1994 (59 FR 32343) and the 
latest version of the statewide PSD rule on June 24, 1998 (63 FR 
39741). Kentucky's PSD requirements will remain enforceable after the 
redesignation of the Cincinnati-Hamilton area.
    Section 176 Conformity Requirements. Section 176(c) of the CAA 
requires states to establish criteria and procedures to ensure that 
Federally supported or funded projects conform to the air quality 
planning goals in the applicable SIP. The requirement to determine 
conformity applies to transportation plans, programs and projects 
developed, funded or approved under title 23 U.S.C. of the Federal 
Transit Act (``transportation conformity''), as well as to all other 
Federally supported or funded projects (``general conformity''). 
Section 176 further provides that state conformity revisions must be 
consistent with Federal conformity regulations that the CAA required 
the EPA to promulgate. The EPA believes it is reasonable to interpret 
the conformity requirements as not applying for purposes of evaluating 
the redesignation request under section 107(d). The rationale for this 
is based on a combination of two factors. First, the requirement to 
submit SIP revisions to comply with the conformity provisions of the 
CAA continues to apply to areas after redesignation to attainment, 
since such areas would be subject to a section 175A maintenance plan. 
Second, EPA's Federal conformity rules require the performance of 
conformity analyses in the absence of Federally approved state rules. 
Therefore, because areas are subject to the conformity requirements 
regardless of whether they are redesignated to attainment and must 
implement conformity under Federal rules if state rules are not yet 
approved, the EPA believes it is reasonable to view these requirements 
as not applying for purposes of evaluating a redesignation request. 
Consequently, EPA may approve the ozone redesignation request for the 
Ohio and Kentucky portion of the Cincinnati-Hamilton area without a 
fully approved conformity SIP. See Detroit, Michigan, carbon monoxide 
redesignation published on June 30, 1999 (64 FR 35017), Cleveland-
Akron-Lorain ozone redesignation published on May 7, 1996 (61 FR 
20458), and Tampa, Florida, published on December 7, 1995 (60 FR 
52748).
    Subpart 2 Section 182 Requirements. The Cincinnati-Hamilton area is 
classified moderate nonattainment; therefore, part D, subpart 2, 
section 182(b) requirements apply. In accordance with the September 17, 
1993, EPA guidance memorandum, the requirements which came due prior to 
the submission of the request to redesignate the area must be fully 
approved into the SIP before or at the time of the request to 
redesignate the area to attainment. Those requirements are discussed 
below:
    1990 Base Year Inventory. The 1990 base year emission inventory was 
due on November 15, 1992. OEPA submitted

[[Page 3636]]

the 1990 base year emission inventory on March 14, 1994, for the Ohio 
portion and EPA approved it on December 7, 1995 (60 FR 62737). The 
Cabinet submitted the 1990 base year emission inventory on September 
11, 1998, and EPA approved it on December 8, 1998 (63 FR 67586).
    Periodic Emissions Inventory. Periodic inventories were required to 
be submitted on November 15, 1995, and November 15, 1998, providing an 
estimate of emissions for 1993 and 1996, respectively. This inventory 
is not considered a SIP requirement for the Cincinnati-Hamilton area, 
therefore they do not need to be approved into the SIP. Ohio provided 
its most recent estimates of emissions for 1993 and 1996 in its 
redesignation request and these emissions are summarized in the tables 
provided in this proposed action. Kentucky also provided EPA with 
periodic emissions for 1993 and 1996.
    Emission Statements. The emission statement SIP was due on November 
15, 1992. The OEPA submitted an emission statement SIP for Ohio on 
March 18, 1994 and EPA approved it on October 13, 1994 (59 FR 51863). 
The Cabinet submitted the emission statement SIP for Kentucky on 
January 15, 1993 and supplemented the submittal on December 29, 1994 to 
satisfy the federal requirements. EPA published approval of the 
Kentucky emission statement on May 2, 1995 (60 FR 21445).
    15 Percent Plan. The 15 percent RFP plan for VOC reductions was 
required to be submitted by November 15, 1993, and, therefore, is 
applicable to the Cincinnati-Hamilton moderate ozone nonattainment 
area. The OEPA submitted the 15 percent RFP plan on March 14, 1994 and 
EPA approved it on January 28, 1998 (63 FR 4188). The Cabinet 
originally submitted a 15 percent plan in November 1993 and revised the 
plan in March 1994. By the end of the 1994 ozone season, air quality 
monitoring data for the entire Cincinnati area showed attainment of the 
1-hour ozone NAAQS. Therefore, on June 29, 1995, the Cabinet requested 
that EPA take no further action on the submitted 15 percent plan. 
Subsequently, during the 1995 ozone season the area monitored a 
violation making the 15 percent plan again an applicable requirement 
for the area. On September 11, 1998, the Cabinet submitted a revised 15 
percent VOC Reduction Plan and EPA approved it on December 8, 1998 (63 
FR 67586).
    VOC RACT Requirements. SIP revisions requiring RACT for three 
classes of VOC sources are required under section 182(b)(2). The 
categories are: (1) All sources covered by a Control Technique 
Guideline (CTG) document issued between November 15, 1990 and the date 
of attainment; (2) All sources covered by a CTG issued prior to 
November 15, 1990; (3) All other major non-CTG stationary sources. The 
non-CTG rules were due by November 15, 1992, and apply to the Ohio and 
Kentucky submittal. The EPA approved Ohio's VOC RACT rules on April 25, 
1996 (61 FR 18255), September 7, 1994 (59 FR 46182) and October 23, 
1995 (60 FR 54308). EPA approved Kentucky's VOC RACT rules on January 
25, 1980 (45 FR 6092), August 7, 1981 (46 FR 40188), February 7, 1990 
(55 FR 4169), June 23, 1994, (59 FR 32344), and June 28, 1996 (61 FR 
33674). Upon redesignation of the area, all new major VOC sources 
locating in Kentucky and all major modifications to existing major VOC 
sources will continue to be subject to the RACT requirements. These 
actions satisfy requirements (2) and (3) above for the Ohio and 
Kentucky portion of the Cincinnati-Hamilton area. Since November 15, 
1990, EPA has issued CTG documents for the VOC source categories of 
aerospace, synthetic organic compound manufacturing industry (SOCMI) 
reactor and distillation processes, shipbuilding, and wood furniture. 
To satisfy the requirement of (1) above, the Cabinet submitted a 
negative declaration on December 14, 1999 for the CTG categories of 
aerospace, SOCMI reactor and distillation processes, shipbuilding, and 
wood furniture. Ohio has satisfied requirement (1) above by including 
these CTG categories as contingency measures in their maintenance plan. 
This is discussed below.
    In regards to requirement (1) above, EPA's policy on redesignations 
would require full adoption, submission and approval of these rules 
prior to approval of the redesignation request. Since the due date for 
the CTG RACT rules at issue preceded the submission of the 
redesignation request, EPA believes, however, that, in the context of 
the particular circumstances of this redesignation, that it is 
permissible to depart from that policy and instead accept a commitment 
to implement these RACT rules as contingency measures in the 
maintenance plan rather than require full adoption and approval of the 
rules prior to approval of the redesignation. See Grand Rapids, 
Michigan, redesignation (61 FR 31831, June 21, 1996). The State of Ohio 
has included these RACT rules as contingency measures in its 
maintenance plan for Cincinnati. The reasons justifying this exception 
to EPA's general policy are explained in the above cited Grand Rapids, 
Michigan, redesignation and as explained below. The EPA believes that 
several factors in combination justify this approach with respect to 
the Cincinnati-Hamilton redesignation. First, the RACT rules at issue 
in this redesignation were not needed to bring about attainment of the 
standard in Cincinnati. Second, Ohio has demonstrated continued 
maintenance of the ozone standard through 2010 without the 
implementation of these measures. Third, Ohio has placed other 
contingency measures in the maintenance plan that would bring about far 
greater emission reductions than the RACT rules and would therefore be 
substantially more effective in terms of correcting violations 
attributable to local emissions from the Cincinnati area that may occur 
after redesignation. An analysis of emission reduction estimates, based 
on documentation contained in Ohio's 15 percent RFP Plan, shows that 
the implementation of low Reid Vapor Pressure (RVP) or Reformulated 
Gasoline programs would bring about greater reductions than the CTG VOC 
RACT rules issued since 1990. As a consequence, EPA believes that the 
other, more effective contingency measures, should and would be 
implemented first even if the RACT rules were to be fully adopted prior 
to redesignation. The EPA emphasizes that even under the exception to 
its policy proposed herein, the requirement for these RACT rules 
remains an applicable requirement for purposes of evaluating the 
redesignation request since it predated the submission of the request. 
The requirement, however, would be met in the form of the submission 
and full approval of a commitment to adopt and implement these rules as 
contingency measures in the maintenance plan. (Under EPA's existing 
policy, contingency measures in maintenance plans may consist of 
commitments to adopt and implement measures upon a violation of the 
standard (Calcagni, September 1992)).
    The EPA further notes that even without this exception to its 
general policy, the State would have been able to have the RACT rules 
become a part of the contingency measures in the maintenance plan upon 
approval of the redesignation. That could have occurred only after or 
upon EPA's full approval of the adopted RACT rules, however. Thus, the 
only difference between EPA's general policy and the exception to that 
policy described in this proposal is that a commitment to adopt and 
implement the RACT rules in an expeditious

[[Page 3637]]

manner, rather than fully adopted RACT rules, would be among the 
contingency measures in the maintenance plan. In light of the 
combination of factors discussed above, including in particular the 
presence of other, significantly more effective, contingency measures 
in the maintenance plan, EPA believes that this difference has no 
significant environmental consequence and that it is legally 
permissible to approve the Cincinnati-Hamilton redesignation on this 
basis.
    Stage II Vapor Recovery. Section 182(b)(3) requires states to 
submit Stage II rules no later than November 15, 1992. The Ohio Stage 
II rules were submitted as a SIP revision on June 7, 1993 and on 
October 20, 1994. The EPA partially approved and partially disapproved 
Ohio's SIP revision for implementation of Stage II (58 FR 52911). As 
stated in that rulemaking action, with the exception of paragraph 3745-
21-09 (DDD)(5), EPA considers Ohio's Stage II program to fully satisfy 
the criteria set forth in the September 17, 1993, EPA guidance document 
for such programs entitled ``Enforcement Guidance for Stage II Vehicle 
Refueling Control Programs.'' On February 3, 1998 the Cabinet submitted 
Stage II controls and EPA approved the rule on December 8, 1998 (63 FR 
67586).
    Only those Stage II provisions previously approved by EPA are part 
of the Cincinnati-Hamilton area maintenance plan. The September 17, 
1993, guidance memorandum listed above states that once onboard vapor 
recovery regulations are promulgated, the Stage II regulations are no 
longer applicable for moderate ozone nonattainment areas. The EPA 
promulgated onboard vapor recovery rules in February 1994. Therefore, 
pursuant to section 202(a)(6) of the CAA, Stage II would no longer be 
required. However, both Ohio and Kentucky have opted to include 
reductions in VOCs from the Stage II program as part of the submitted 
maintenance plan and the previously approved 15 percent RFP plans (63 
FR 4188 and 63 FR 67586).
    Vehicle Inspection and Maintenance (I/M). The EPA's final I/M 
regulations in 40 CFR Part 85 require the States to submit a fully 
adopted I/M program by November 15, 1993. Ohio submitted rules for an 
enhanced I/M program (E-Check), on May 26, 1994 and EPA published 
approval of the rules on April 4, 1995 (60 FR 16989). On September 11, 
1998, the Cabinet submitted the Kentucky I/M program and EPA approved 
the program rule on December 8, 1998 (63 FR 67586).
    NO<INF>X</INF> Requirement. Section 182(f) establishes 
NO<INF>X</INF> requirements for ozone nonattainment areas. However, it 
provides that these requirements do not apply to an area if the 
Administrator determines that NO<INF>X</INF> reductions would not 
contribute to attainment. The Administrator made such a determination 
for the Ohio portion of the Cincinnati-Hamilton nonattainment area on 
July 13, 1995 (60 FR 36060). After this waiver was approved, the 
Cincinnati-Hamilton area monitored a violation of the 1-hour ozone 
standard. Since that time the area has returned to monitoring 
attainment and continues to do so. EPA is leaving the NO<INF>X</INF> 
waiver in place based on the area returning to attainment. Since the 
NO<INF>X</INF> waiver is approved as a final rule, OEPA is not required 
to impose NO<INF>X</INF> control measures pursuant to section 182(f) 
for the Cincinnati-Hamilton area to be redesignated. OEPA has committed 
to adopt NO<INF>X</INF> RACT rules as a contingency measure to be 
implemented upon a violation of the ozone NAAQS which occurs after 
initial contingency measures are in place for the Cincinnati-Hamilton 
area.
    On May 10, 1995, EPA proposed approval for an exemption from 
NO<INF>X</INF> requirements for the Kentucky portion of the Cincinnati-
Hamilton area. Subsequently, since the area monitored an exceedance 
that constituted a violation of the ozone NAAQS, EPA did not publish a 
final notice approving the NO<INF>X</INF> exemption. As discussed 
below, EPA is also re-proposing to approve a request from the Cabinet 
for a section 182(f) NO<INF>X</INF> exemption for the Kentucky portion 
of the Cincinnati-Hamilton area. This proposal is based on the area 
attaining the ozone NAAQS. Therefore, upon redesignation the Kentucky 
portion of the Cincinnati-Hamilton area would no longer be subject to 
NO<INF>X</INF> requirements. However, all controls previously approved 
by the Cabinet must continue to be implemented, but no additional 
NO<INF>X</INF> measures would be required.
    Ohio and Kentucky have satisfied the requirement that the area must 
have a fully approved SIP under section 110(k) and the area must have 
met all applicable requirements under section 110 and part D.
3. The Improvement in Air Quality Must Be Due to Permanent and 
Enforceable Reductions in Emissions
    The improvement in air quality must be due to permanent and 
enforceable reductions in emissions resulting from the SIP, Federal 
measures, and other state adopted measures. The improvement in air 
quality in the Ohio portion of the Cincinnati-Hamilton area is due to 
emissions reductions from the Federal Motor Vehicle Emissions Control 
Program (FMVECP), Stage II vapor recovery program, VOC RACT controls, 
and the partial implementation of E-Check. Between 1993 and 1996, the 
Ohio area's VOC emissions were reduced by 6.7 percent. Kentucky 
attributes the improvement in air quality to emission reductions 
achieved prior to the attainment year of 1996 through the following 
programs: FMVECP; VOC RACT; fleet turnover of automobiles; low Reid 
Vapor Pressure (RVP) gasoline; reformulated gasoline; and ceased 
operation and improved technology at facilities in the area. Between 
1990 and 1996, the Kentucky area's VOC emissions were reduced by 2.93 
tons per day. Additional programs have been implemented in the Kentucky 
area since the 1996 attainment year which have provided substantial 
emission reductions for Kentucky. These programs include: Stage II 
vapor recovery; vehicle emission testing program, increased rule 
effectiveness of Stage I vapor control; Architectural Coatings, Traffic 
Paints, Auto Body Refinishing, and Commercial/Consumer Products rules; 
and Open Burning controls. The State control programs listed above have 
been approved into the Ohio and Kentucky SIP. Based on the listed 
programs, Ohio and Kentucky have shown that the improvement in air 
quality is based on permanent and enforceable reductions in emissions 
and meets this requirement.
4. The Area Must Have a Fully Approved Maintenance Plan Meeting the 
Requirements of Section 175A
    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
The maintenance plan is a SIP revision which provides for maintenance 
of the relevant NAAQS in the area for at least 10 years after 
redesignation. The Calcagni memorandum dated September 4, 1992, 
provides additional guidance on the required content of a maintenance 
plan. An ozone maintenance plan should address the following five 
areas: the attainment emissions inventory, maintenance demonstration, 
monitoring network, verification of continued attainment and, a 
contingency plan. The attainment emissions inventory identifies the 
emissions level in the area which is sufficient to attain the 1-hour 
ozone NAAQS, and includes emissions during the time period which had no 
monitored violations. Maintenance is demonstrated by showing that 
future

[[Page 3638]]

emissions will not exceed the level established by the attainment 
inventory. Provisions for continued operation of an appropriate air 
quality monitoring network are to be included in the maintenance plan. 
The state must show how it will track and verify the progress of the 
maintenance plan. Finally, the maintenance plan must include a list of 
potential contingency measures which ensure prompt correction of any 
violation of the ozone standard.
    The OEPA and the Cabinet included a 1996 emissions inventory as the 
attainment inventory. Both of the maintenance plans for Ohio and 
Kentucky portion of the Cincinnati-Hamilton area provide emissions 
estimates from 1990 to 2010 for VOCs, NO<INF>X</INF>, and carbon 
monoxide. The emissions in the Cincinnati-Hamilton area are projected 
to decrease from 1996 levels. The results of this analysis show that 
the area is expected to maintain the air quality standard for at least 
10 years into the future after redesignation. Table 2 and Table 3 
provide the emissions summary for VOCs and NO<INF>X</INF> for the Ohio 
portion and Table 4 and Table 5 provide the emission summary for VOCs 
and <INF>X</INF> for the Kentucky portion of the Cincinnati-Hamilton 
area. Table 6 and Table 7, respectively provides the emissions summary 
for VOCs and NO<INF>X</INF> for the entire Cincinnati-Hamilton area. 
Although carbon monoxide levels were provided, there is no requirement 
to evaluate these for an ozone area.

    Table 2.--VOC Emissions in Tons Per Summer Day for Ohio Counties (Hamilton, Butler, Clermont, and Warren)
----------------------------------------------------------------------------------------------------------------
                                                         1996        1999        2002        2005        2010
                               1990 base     1993     attainment   projected   projected   projected   projected
----------------------------------------------------------------------------------------------------------------
Point.......................      70.9        72.8        74.9        77.0        79.2        81.4        83.0
Area........................      69.0        69.8        70.7        71.4        72.3        73.1        75.0
Mobile......................     125.8        85.3        67.1        49.6        41.6        36.8        37.9
                             -----------------------------------------------------------------------------------
    Totals..................     265.7       227.9       212.7       198.0       193.1       191.3       195.9
----------------------------------------------------------------------------------------------------------------


    Table 3.--NO<INF>X</INF> Emissions in Tons Per Summer Day for Ohio Counties (Hamilton, Butler, Clermont, and Warren)
----------------------------------------------------------------------------------------------------------------
                                                         1996        1999        2002        2005        2010
                               1990 base     1993     attainment   projected   projected   projected   projected
----------------------------------------------------------------------------------------------------------------
Point.......................     280.0       279.4       279.0       278.6       278.3       277.6       277.4
Area........................      29.8        30.3        30.9        31.4        32.1        32.2        34.0
Mobile......................     130.7       115.6       101.3        84.4        72.0        65.5        52.3
                             -----------------------------------------------------------------------------------
    Totals..................     440.5       425.3       411.2       394.4       382.4       375.3       363.7
----------------------------------------------------------------------------------------------------------------


       Table 4.--VOC Emissions in Tons Per Summer Day for Kentucky Counties (Boone, Campbell, and Kenton)
----------------------------------------------------------------------------------------------------------------
                                             1996        1999        2002        2005        2008        2010
                               1990 base  attainment   projected   projected   projected   projected   projected
----------------------------------------------------------------------------------------------------------------
Point.......................       3.9         4.14        3.96        4.07        4.19        4.33        4.4
Area........................      12.6        13.57       10.27       10.45       10.76       11.13       11.35
Mobile......................      17.54       12.69       12.07        8.25        7.38        6.47        5.83
Non-Highway.................       8.6         9.31        9.58        9.82       10.23       10.65       10.97
                             -----------------------------------------------------------------------------------
    Total...................      42.64       39.71       35.88       32.59       32.56       32.58       32.55
----------------------------------------------------------------------------------------------------------------


       Table 5.-- NO<INF>X</INF> Emissions in Tons Per Summer Day for Kentucky Counties (Boone, Campbell, and Kenton)
----------------------------------------------------------------------------------------------------------------
                                             1996        1999        2002        2005        2008        2010
                               1990 base  attainment   projected   projected   projected   projected   projected
----------------------------------------------------------------------------------------------------------------
Point.......................      43.59       29.06       29.47       29.9        30.34       30.77       31.07
Area........................       0.42       12.07        0.33        0.34        0.34        0.35        0.37
Mobile......................      15.4        24.90       25.55       22.73       20.14       16.99       15.13
Non-Highway.................       9.23        0.51       12.87       13.27       13.95       14.69       15.2
                             -----------------------------------------------------------------------------------
    Total...................      68.64       66.54       68.22       66.24       64.77       62.8        61.77
----------------------------------------------------------------------------------------------------------------


             Table 6.--VOC Emissions in Tons Per Summer Day for the Entire Cincinnati-Hamilton Area
----------------------------------------------------------------------------------------------------------------
                                                         1996        1999        2002        2005        2010
                                           1990 base  attainment   projected   projected   projected   projected
----------------------------------------------------------------------------------------------------------------
Point...................................      74.8        79.04       80.96       83.27       85.59       87.4
Area....................................      90.2        93.58       91.25       92.57       94.09       97.32
Mobile..................................     143.34       79.79       61.67       49.85       44.18       43.73
                                         -----------------------------------------------------------------------

[[Page 3639]]

 
    Total...............................     308.34      252.41      233.88      225.69      223.86      228.45
----------------------------------------------------------------------------------------------------------------


             Table 7.--NO<INF>X</INF> Emissions in Tons Per Summer Day for the Entire Cincinnati-Hamilton Area
----------------------------------------------------------------------------------------------------------------
                                                         1996        1999        2002        2005        2010
                                           1990 base  attainment   projected   projected   projected   projected
----------------------------------------------------------------------------------------------------------------
Point...................................     323.59      308.06      308.07      308.2       307.94      308.47
Area....................................      39.45       43.48       44.6        45.71       46.49       49.57
Mobile..................................     146.1       126.2       109.95       94.73       85.64       67.43
                                         -----------------------------------------------------------------------
    Total...............................     509.14      477.74      462.62      448.64      440.07      425.47
----------------------------------------------------------------------------------------------------------------

    The OEPA and the Cabinet commit to continue the operation of the 
monitors in the area in accordance with 40 CFR part 58. The States will 
also track maintenance by regularly updating the emissions inventory 
for the area. The emission projections for 2010 are the budgets for 
transportation conformity.
    The contingency plan for the Cincinnati-Hamilton area contains 
three major components: Attainment tracking, contingency measures to be 
implemented in the event that a violation of the ozone NAAQS occurs in 
the Cincinnati-Hamilton area, and a mechanism with which to trigger the 
implementation of the contingency measures.
    Two methods of attainment tracking will be utilized in the Ohio 
portion of the Cincinnati-Hamilton area: (1) Air quality monitoring 
using the existing ozone monitoring network, and (2) inventory updates 
on a regular schedule. Stationary, mobile, and area source inventories 
will be updated at a minimum of once every three years beginning with 
1996. Area emission inventories will be updated using revised census 
data. Mobile source emission inventories will be updated using new 
vehicle miles traveled (VMT) estimates and any new EPA mobile emission 
models. Annual progress reports will summarize available VOC and 
NO<INF>X</INF> emissions data.
    The contingency measures to be considered for implementation for 
the Ohio portion of the Cincinnati-Hamilton area are listed below.
    1. Lower RVP gasoline.
    2. Reformulated gasoline.
    3. Broader geographic coverage of existing regulations.
    4. Application of RACT on sources covered by new control technology 
guidelines issued in response to the 1990 CAA Amendments.
    5. Application of RACT to smaller existing sources.
    6. Implementation of one or more transportation control measures 
sufficient to achieve at least a 0.5 percent reduction in actual area 
wide VOC emissions. The transportation control measures to be 
considered would include: (1) Trip reductions programs, including but 
not limited to employer-based transportation management programs, area 
wide rideshare programs, work schedule change, and telecommuting; (2) 
transit improvements; (3) traffic flow improvements; and, (4) other 
measures.
    7. Alternative fuel programs for fleet vehicle operations.
    8. Controls on consumer products consistent with those adopted 
elsewhere in the United States.
    9. VOC offsets for new or modified major sources.
    10. VOC offsets for new or modified minor sources.
    11. Increased ratio of VOC offsets required for new sources.
    12. Requirements of VOC controls on new minor sources.
    Selection of one or more of the contingency measures will be based 
on various considerations including cost-effectiveness, VOC reduction 
potential, economic and social consideration, and other factors the 
State determines to be appropriate.
    Consideration and selection of one or more of the contingency 
measures will take place in the event the ozone NAAQS is violated. 
Initially, the State of Ohio will conduct an analysis to determine the 
level of control measures needed to assure expedient future attainment. 
If a subsequent violation of the ozone NAAQS occurs after 
implementation of the VOC controls measures, NO<INF>X</INF> RACT will 
be activated. Contingency measures on the Ohio portion of the area will 
be implemented according to the following schedule:

             Table 8.--Contingency Measure Schedule for Ohio
------------------------------------------------------------------------
 
------------------------------------------------------------------------
  Activity--VOC measure implementation        Completion time after
                                                 triggering event
------------------------------------------------------------------------
Verify a violation has occurred........  1 month.
Identify VOC plan and submit schedule    3 months.
 for implementation.
Implement VOC control program..........  12 months.
------------------------------------------------------------------------
  Activity--NO<INF>X</INF> measure implementation      Completion time for second
                                              triggering event after
                                             implementation of the VOC
                                                contingency measure
------------------------------------------------------------------------
Verify a violation has occurred........  1 month.
Submit schedule for implementation of    3 months.
 NO<INF>X</INF> RACT.
Implement NO<INF>X</INF> RACT.....................  18 months.
------------------------------------------------------------------------


[[Page 3640]]

    Reformulated gasoline and low RVP gasoline would not be able to be 
implemented as contingency measures by the State of Ohio unless the 
State first requested and received from EPA a waiver of federal 
preemption under section 211(c)(4) of the CAA. However, in light of the 
State's listing of other potential contingency measures and the State's 
commitment to implement contingency measures within 12 months of a 
violation, the identification of reformulated gasoline and low RVP 
gasoline does not detract from the approvability of the contingency 
plan.
    The Cabinet commits to perform triennial reviews of actual 
emissions for the redesignated area using the latest emission factors, 
models, and methodologies. The Cabinet will begin the triennial 
assessments in 2000 for calendar year 1999. At the time of this 
periodic inventory, the Cabinet will review the assumptions made for 
the purpose of the maintenance demonstration concerning projected 
growth in activity levels. If any of these assumptions appear to have 
changed substantially, then the Cabinet will re-project emissions.
    In the event that exceedances of the 1-hour ozone standard are 
measured in any portion of the nonattainment area, or if periodic 
emission inventory updates reveal excessive or unanticipated growth 
greater than 10 percent in ozone precursor emissions, the Cabinet will 
evaluate existing control measures to determine the further emission 
reduction measures that should be implemented at that time.
    In the event of a monitored violation of the 1-hour ozone standard, 
the Cabinet commits to adopt, within nine months, one or more of the 
following contingency measures to achieve reductions sufficient to 
bring the area back into attainment with the 1-hour ozone NAAQS. All 
regulatory programs will be implemented within 18 months. The Cabinet 
will also evaluate existing control measures to see if any further 
emission reductions should be implemented at that time.
    1. Implementation of a program to require additional emission 
reductions on stationary sources.
    2. New Source Review.
    3. Implementation of a more frequent, or more stringent vehicle 
emissions testing program.
    4. Restriction of certain roads or lanes to, or construction of 
such roads or lanes for use by, passenger buses or high-occupancy 
vehicles.
    5. Trip-reduction ordinances.
    6. Employer based transportation management plans, including 
incentives.
    7. Programs to limit or restrict vehicle use in downtown areas, or 
other areas of emission concentration, particularly during periods of 
peak use.
    8. Programs for new construction and major construction of paths or 
tracks for use by pedestrians or by non-motorized vehicles when 
economically feasible and in the public interest.
    The OEPA and the Cabinet submittals adequately address the five 
basic components which comprise a maintenance plan (attainment 
inventory, maintenance demonstration, monitoring network, verification 
of continued attainment, and a contingency plan) and therefore, satisfy 
the maintenance plan requirement.
    The CAA section 175A(b) also requires the OEPA and the Cabinet to 
submit a revision of the SIP eight years after the original 
redesignation request is approved to provide for maintenance of the 
NAAQS for an additional 10 years following the first-10 year period. 
The Cabinet has committed to submit the revision to the SIP 8 years 
after redesignation of the Cincinnati-Hamilton area. Ohio did not 
formally commit to submit this revision in the redesignation request, 
however, OEPA is still required to submit a revision to the SIP 8 years 
after this request is approved.

G. Where Is the Public Record and Where Do I Send Comments?

    The official record for this proposed rule has been established 
under OH-132 and KY-116 and is located at the addresses in the 
ADDRESSES section at the beginning of this document. The addresses for 
sending comments are also provided in the ADDRESSES section at the 
beginning of this document.
    Public comments are solicited on EPA's proposed rulemaking action. 
Public comments received by February 23, 2000, will be considered in 
the development of EPA's final rulemaking action. EPA will not respond 
to comments received on the February 18, 1997 (62 FR 7194), proposed 
rulemaking, since a new request has been submitted and is the subject 
of this proposed rulemaking.

III. 182(f) NO<INF>X</INF> Exemption for Kentucky

A. What Action Is EPA Proposing To Take?

    EPA is also re-proposing to approve an exemption from the 
NO<INF>X</INF> requirement as provided for in Section 182(f) for the 
Kentucky portion of the Cincinnati-Hamilton area. Section 182(f) 
establishes NO<INF>X</INF> requirements for ozone nonattainment areas 
which require the same provisions for major stationary sources of 
NO<INF>X</INF> as apply to major stationary sources of VOCs. One of the 
requirements of major sources of VOCs is RACT. Therefore, pursuant to 
section 182 of the CAA, RACT is a requirement for major sources of 
NO<INF>X</INF> in an ozone nonattainment area. However, it provides 
that these requirements do not apply to a nonattainment area outside an 
ozone transport region if the Administrator determines that 
NO<INF>X</INF> reductions would not contribute to attainment. A 
NO<INF>X</INF> exemption request must be based upon the most recent 
three years of monitoring data, and demonstrate that additional 
reductions of NO<INF>X</INF> would not contribute to attainment of the 
NAAQS.
    The EPA memorandum from John S. Seitz, Director, Office of Air 
Quality Planning and Standards, dated February 8, 1995, entitled, 
``Section 182(f) Nitrogen Oxides (NO<INF>X</INF>) Exemptions-Revised 
Process Criteria,'' decouples the section 182(f) exemptions from 
NO<INF>X</INF> transport issues. The memorandum states that for an area 
that did not implement section 182(f) NO<INF>X</INF> requirements, but 
did attain the ozone standard as demonstrated by ambient air monitoring 
data (consistent with 40 CFR part 58 and recorded in the AIRS), it is 
apparent that additional NO<INF>X</INF> reductions required by section 
182(f) would not contribute to attainment of the NAAQS in the area.
    On November 11, 1994, the Cabinet submitted a request for a 182(f) 
NO<INF>X</INF> RACT exemption for the Kentucky portion of the 
Cincinnati-Hamilton area and on May 10, 1995 (60 FR 24813), EPA 
proposed approval of the exemption. Subsequently, since the area 
monitored an exceedance that constituted a violation of the ozone 
NAAQS, EPA did not publish a final notice approving the NO<INF>X</INF> 
exemption.
    Based on evidence that the area is currently demonstrating 
compliance with the ozone NAAQS, EPA is re-proposing approval of 
Kentucky's request to exempt the Kentucky portion of the Cincinnati-
Hamilton area from the 182(f) NO<INF>X</INF> requirement. Discussed in 
detail above, the EPA is also proposing to determine the Cincinnati-
Hamilton area has attained the 1-hour ozone NAAQS. This proposed 
determination of attainment is based on three years of complete, 
quality-assured, ambient air monitoring data for the 1996 to 1998 ozone 
seasons that demonstrate that the ozone NAAQS has been attained in the 
area. Because the Cincinnati-Hamilton area has presently attained the 
ozone NAAQS, this

[[Page 3641]]

exemption request for the area meets the applicable requirements. If 
final action is taken on this proposal to exempt the Kentucky portion 
from 182(f) requirements, upon redesignation it would no longer be 
subject to NO<INF>X</INF> requirements for moderate nonattainment 
areas. However, all controls previously approved by the Cabinet must 
continue to be implemented, but no additional NO<INF>X</INF> measures 
would be required. If there is a violation of the ozone NAAQS in any 
portion of the Cincinnati-Hamilton area, the exemption would no longer 
be applicable.

B. Where Is the Public Record and Where Do I Send Comments?

    The official record for this proposed rule has been established 
under KY-84 and is located only at the EPA Region 4 address in the 
ADDRESSES section at the beginning of this document. The address for 
sending comments to EPA Region 4 is also provided in the ADDRESSES 
section at the beginning of this document.
    Public comments are solicited on EPA's proposed rulemaking action. 
Public comments received by February 23, 2000, will be considered in 
the development of EPA's final rulemaking action.

IV. Disclaimer Language Approving SIP Revisions in Audit Law States

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Kentucky's audit 
privilege and penalty immunity law Kentucky--``KRS 224.01-040'' or its 
impact upon any approved provision in the SIP, including the revision 
at issue here. The action taken herein does not express or imply any 
viewpoint on the question of whether there are legal deficiencies in 
this or any other Clean Air Act program resulting from the effect of 
Kentucky's audit privilege and immunity law. A state audit privilege 
and immunity law can affect only state enforcement and cannot have any 
impact on federal enforcement authorities. EPA may at any time invoke 
its authority under the Clean Air Act, including, for example, sections 
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions 
of the state plan, independently of any state enforcement effort. In 
addition, citizen enforcement under section 304 of the Clean Air Act is 
likewise unaffected by a state audit privilege or immunity law.

V. What Administrative Requirements Were Considered?

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing 
the Intergovernmental Partnership). Executive Order 13132 requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies that have 
federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
it does not involve decisions intended to mitigate environmental health 
or safety risks.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.'' Today's proposed rule does not 
significantly or uniquely affect the communities of Indian tribal 
governments. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This proposed rule will not have a significant impact on a 
substantial

[[Page 3642]]

number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP approval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The CAA 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).
    Redesignation of an area to attainment under section 107(d)(3)(E) 
of the CAA does not impose any new requirements on small entities. 
Redesignation is an action that affects the status of a geographical 
area and does not impose any regulatory requirements on sources. The 
Administrator certifies that the approval of the redesignation request 
will not affect a substantial number of small entities.

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing new regulations. To comply with 
NTTAA, the EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this proposed action. 
Today's action does not require the public to perform activities 
conducive to the use of VCS.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Ozone, Reporting 
and recordkeeping requirements, Volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: January 12, 2000.
Francis X. Lyons,
Regional Administrator, Region 5.
    Dated: January 7, 2000.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 00-1555 Filed 1-21-00; 8:45 am]
BILLING CODE 6560-50-U


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