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Citation: 61 Fed. Reg. 20458 1996

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### Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

40 CFR Parts 52and 81 [OH92-1 &OH79-3; FRL-5458-8] Approval and Promulgation of Implementation Plans and Designation ofAreas forAir QualityPlanning Purposes; Ohio

AGENCY: Environmental Protection Agency (USEPA). ACTION: Final rule.

SUMMARY: The USEPA is determining that the Cleveland-Akron-Lorain (CAL)

ozone nonattainment area (which includes the Counties ofAshtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit) has attained the public health-based National Ambient Air Quality Standard (NAAQS) for ozone. This determination is based upon three years ofcomplete, quality-assured, ambient air monitoring data for the 1993 to 1995 ozone seasons that demonstrate that the ozone NAAQS has been attained in each ofthese areas. On the basis ofthis determination, USEPA is also determining that certain reasonable-further-progress (RFP) and attainment demonstration requirements, alongwith certain otherrelated requirements, ofPart D ofTitle 1ofthe Clean Air Act (CAA) are not applicable to the Cleveland-Akron-Lorain area.

In anotherpart ofthisrulemaking, the USEPA is approving the Ohio Environmental Protection Agency (OEPA)request to revise the official designation ofthe Cleveland-AkronLorain (CAL) area as an area that is meeting the ozone air quality standard. The USEPA is also approving the CAL

area maintenance plan as a revision to Ohio's State Implementation Plan (SIP) for ozone. The purpose ofthe maintenance plan is to provide for continued good ozone air quality levels in the area over the next 10 years. EFFECTIVE DATE: This final rule is effective on May 7, 1996. ADDRESSES: Copies ofthe determination ofattainment, redesignation requests, public comments on the rulemaking, and other materials relating to this rulemaking are available for inspection
atthe following address: (Itis recommended that you telephone William Jones at (312) 886-6058, before visiting the Region 5 Office.) United States Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard (AR-18J), Chicago, Illinois 60604. FORFURTHER INFORMATION ON THISACTION CONTACT: William Jones, Air Programs Branch, Regulation Development Section (AR-18J), United States Environmental Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6058.
SUPPLEMENTARY INFORMATION:
Determination ofAttainment

I.Background Subpart 2 ofPart D ofTitle Iofthe CAA contains various air quality planning and state implementation plan (SIP) submission requirements for ozone nonattainment areas. The USEPA believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations, alongwith certain other related provisions, so as not to require SIP submissions if an

ozone nonattainment area subject to those requirements is monitoring attainment ofthe ozone standard (i.e., attainment ofthe NAAQS demonstrated with three consecutive years of complete, quality-assured, air quality monitoring data). As described below, USEPA has previously interpreted the general provisions ofsubpart 1ofpart D ofTitle I (sections 171 and 172) so as not to require the submission ofSIP revisions concerning RFP, attainment demonstrations, or contingency

measures. As explained in a memorandum from John S. Seitz, Director, Office ofAir 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, USEPA believes itis appropriate to interpret the more specific RFP, attainment demonstration and related provisions ofsubpart 2 in the same manner.

First, with respect to RFP, section 171(1) ofthe CAA states that, for purposes ofpart D ofTitle I, RFP

means such annual incremental reductions in emissions ofthe relevant air pollutant as arerequired bythis part

or may reasonably be required bythe Administrator for the purpose of ensuring attainment ofthe applicable NAAQS by the applicable date." Thus, whether dealing with the general RFP requirement ofsection 172(c)(2), or the

more specific RFP requirements of subpart 2 for classified ozone nonattainment areas (such as the 15 percent plan requirement ofsection 182(b)(1)), the stated purpose ofRFP is
to ensure attainment bythe applicable attainment date.' Ifan area has in fact

1USEPA notesthatparagraph (1)ofsubsection 182(b)is entitled "PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS" and that subparagraph (B)ofparagraph 182(c)(2) isentitled "REASONABLE FURTHER PROGRESS DEMONSTRATION," thereby makingitclear that attained the standard, the stated purpose ofthe RFP requirement will have already been fulfilled and USEPA does not believe that the area need submitrevisions providing for the further emission reductions described in the RFP provisions ofsection 182(b)(1).

The USEPA notes that it took this view with respect to the general RFP requirement ofsection 172(c)(2) in the General Preamble for the Interpretation ofTitle I ofthe Clean Air Act Amendments of 1990 (57 FR 13498 (April 16, 1992)), and it is now extending that interpretation to the specific provisions ofsubpart 2. In the General Preamble, USEPA stated, in the
context ofa discussion ofthe requirements applicable to the evaluation ofrequests to redesignate nonattainment areas to attainment, that the "requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the

area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning atthat point." (See 57 FRat 13564)2 Second, with respect to the attainment demonstration requirements ofSection 182(b)(1), an analogous rationale leads to the same result. Section 182(b)(1) requires that the plan provide for "such specific annual reductions in emissions * * * as necessary to attain the national primary ambient air quality standard bythe attainment date applicable under this Act." As with the RFP requirements, if

an area has in fact monitored attainment ofthe standard, USEPAbelieves 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 USEPA in the General Preamble to Title I. As USEPA stated in the Preamble, no othermeasures to provide for attainment would be needed by areas seeking redesignation to attainment since "attainment will have been reached." (57 FR at 13564; see also September 1992 Calcagni memorandum

both the 15 percentplan requirementofsection 182(b)(1) and the 3 percent peryear requirement of section 182(c)(2) arespecific varieties ofRFP requirements.

2Seealso"Procedures for Processing Requests to Redesignate Areas to Attainment," from John Calcagni, Director, Air QualityManagement Division, toRegional Air Division Directors, September 4, 1992, atpage 6 (stating thatthe "requirements forreasonable further progress willnot apply for redesignations because they only have meaning for areas not attaining the standard") (hereinafterreferred to as "September 1992 Calcagni memorandum"). 

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atpage 6). Upon attainment ofthe NAAQS, the focus ofstate planning efforts shifts to the maintenance ofthe NAAQS and the development ofa maintenance plan under Section 175A.

Similar reasoning applies to other related provisions ofsubpart 2. The first ofthese are the contingency measure requirements ofsection 172(c)(9) ofthe Act. The USEPA has previously interpreted the contingency measure requirement ofsection 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." (57FR at 13564; see also September 1992 Calcagni memorandum atpage 6).

The State must continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status ofthe area. The air quality datarelied upon to determine that the area is attaining the ozone standard must be consistent with 40 CFRpart 58 requirements and other relevant USEPA guidance and recorded in USEPA'sAerometric Information Retrieval System (AIRS).

The determinations made in this notice do not shield an area from future USEPA 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 USEPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) ofthe Act to require such emission reductions if necessary and appropriate to deal with transport situations. Analysis ofAir Quality Data

The USEPA has reviewed the ambient air monitoring data for ozone (consistent with therequirements contained in40 CFRpart 58 and recorded in AIRS) for the Cleveland-Akron-Lorain ozone nonattainment area in Ohio from the 1992 through 1995 ozone seasons. The following ozone exceedances were recorded for the period from 1993 to 1995 (and the average number of expected exceedances for this three-year period is also presented):

Cleveland -Akron-Lorain: Medina County, 6364 Deerview Lane (1994)- 0.127 parts per million (ppm); average expected exceedances: 0.3. Cuyahoga County, 891 E. 152 St. (1993)-0.126 ppm, (1994) 0.127 ppm and 0.125 ppm; average expected exceedances: 1.0. Data 

### for 1995 shows no new exceedances of the ozone NAAQS were monitored in the Cleveland-Akron-Lorain area.

On the basis ofthis review, USEPA determines thatthe area has attained the

ozone standard during the 1993-95 period, which isthe mostrecent threeyear time period ofairquality monitoring data, and therefore are not required to submit a 15% emissions reduction plan, attainment demonstration, and a section 172(c)(9) contingency measureplan. See theJune 29, 1995, proposed rulemaking published in the FederalRegister at 60 FR 31433.
Public Comment/USEPA Response

These arethe comments and responses that relateto the determination ofattainment forthe Cleveland-Akron-Lorain area. Comments thatwere received in support ofthedetermination arenot summarized below; only the adverse comments are summarized and responses areprovided to these comments. Nofurther action will be taken on the determination of attainment forthe Dayton and Toledo

areas since those areas have already been redesignated to attainment. In a later part ofthis rulemakingcomments and responses areprovided on the

ozone redesignation request forthe CAL

area. Because ofthepotential for overlap ofcomments received on the issue ofthe determination ofattainment and the redesignation, USEPA hereby incorporates by reference the responses contained in the section below on redesignation tothe extent thatthey bear on the issues involved in the determination ofattainment, and vice

versa. Tothe extent thatcomments can be construed tobearon both rulemaking actions, responses should be construed to pertain toboth. (1)Comment:Thedetermination action has been inappropriately segregated from the section 110(a)(2)(D) petition submitted by the StateofNew York which requested theFederal government to assess the implementation plans ofupwind states to determine their contribution to nonattainment in the State ofNew York. Regional Oxidant Modeling indicates that areas to thewest ofthe State ofNew York, including the StateofOhio, contribute to violations ofthe ozone NAAQS in the northeast United States, including the StateofNew York. Therefore these areas should continue to meet the statutoryreasonable further progress requirements setforth in the Clean AirAct, at leastuntil the Stateof New York's section 110(a)(2)(D) request has been acted on. (1) Response:The issue oftransported emissions is not relevant to this rulemaking action. The purpose ofthe requirements ofsection 182(b)(1) concerning reasonable furtherprogress and attainment demonstration and the contingency measure requirements of section 172(c)(9) as they apply to CAL is not to address emissions from that

area that maycause or contribute to air quality problems in downwind areas. The purpose ofthose requirements as they apply to CAL is to achieve attainment ofthe standard in that area. The issue oftransported emissions is dealt with byother provisions ofthe Act, provisions that are not the subject ofthis rulemaking action. USEPA has authority, and the state has an obligation, under section 110(a)(2)(A) (in the case ofintrastate areas) and section 110(a)(2)(D) (in the case of interstate areas), to address transported emissions from upwind areas that significantly contribute to air quality problems in downwind areas. The determination being made in this rulemaking is that, as CALhas attained the ozone standard, certain additional Actrequirements whosepurpose is to achieve attainment in the area do not apply to them. That determination does
notmean that the area might not have
to achieve additional reductions pursuant to otherprovisions ofthe Act ifitis determined in the future that such reductions are necessary to deal with transport from the CAL area to downwind areas.

Currently, the issue oftransported

ozone and ozone precursors is being addressed by the Ozone Transport Assessment Group (OTAG) which is composed ofIndustry, Environmental Groups, Federal Government, State Governments (including the State of Ohio), and Local Governments from the Midwest and Eastern Regions. OTAGis performing ozone modeling to determine how ozone transport can be addressed on aregional basis. After this assessment is completed, The United States Environmental Protection Agency (USEPA) anticipates using its authority under sections 110(a)(2)(A) and 110(a)(2)(D) ofthe Act to require emissions reductions where appropriate based on this assessment and any other relevant information. (2) Comment:The determination of attainment fails to meet the purpose, intent and spirit ofthe Clean Air Act by notprotecting and enhancing the quality ofthe Nation's air resources so
as to promote thepublic health and welfare and the productive capacity of its population. The ozone standard has been shown to be inadequate to protect public health. The American Lung 

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Association has provided ample evidence and new studies continue to confirm this. It is very clear to many people livinghere that the air is polluted and adversely affecting people's health. Furthermore, no one has demonstrated that the bad air and high pollution levels in Ohio's nonattainment areas are not adversely affectingthe health ofthose downwind.

(2)Response:The determination of attainment is based on ozone monitoring data collected in the Cleveland-Akron-Lorain area. These data continue to show that the area has attained the standard. In a separate part ofthisrulemaking the ozone redesignation request is discussed. This request contains a maintenance plan which willprovide for continued maintenance ofthe standard into the future. The maintenance plan is unaffected by the determination of attainment that finds that the 15% plan, attainment demonstration, and section 172(c)(9) contingency measures are no longer required.

USEPA is also reviewing the current

ozone standard to see whether it should be revised in order to better protect the public health. Until the current NAAQS is revised, the current NAAQS of .12 parts per million is the appropriate standard against which to assess plans and measure attainment.

(3) Comment:The piecemeal approach which USEPA is taking to

ozone attainment and redesignation is promotingbacksliding and encouraging doing the least possible to protectpublic health and actually clean up the air. A holistic approach to solving environmental problems is always needed. This is no exception. Reviewing emissions inventories in one rulemaking, NOx in another, the SIP in another, Reasonable Further Progress in another, transportation modeling in another, etc. is a methodology which effectively puts blinders on and prevents complete analysis of interdependence aspects. Furthermore this piecemeal approach is an out-ofsequence, illogical process.

USEPA must first determine if attainment hasbeen reached in accordance with the Clean Air Act's redesignation criteria given in section 107. Without ascertaining that attainment has actually been reached it is premature to alleviate the requirements for further controls or Reasonable Further Progress. It appears that USEPA is only applying the first redesignation requirement that the area has attained the NAAQS and ignoring the otherrequirements for redesignation and proceeding to relax the standards. (3) Response:Nothing requires that all ofthe SIPrevisions submitted by the State be reviewed together. The CAA has differing submittal dates for the SIPs and requires USEPA to act on each within a specific time period ofits submittal. This would probably not allow adequate time for USEPA to process all ofthe submittals atonce, given that some ofthe submittals were submitted years apart from each other. Where possible USEPA has sought to consolidate responses to submittals but the CAA is not always conducive to this approach. The determination of attainment is not the same as a redesignation to attainment, and therefore therequirements ofsection 107, which apply to redesignations to attainment arenot applicable. See also the response to comments below. The determination ofattainment is only based on the area's ozone monitoring data. USEPA has decided to address the determination ofattainment and the State's ozone redesignation request for Cleveland-Akron-Lorain together in this Federal Register action. This rulemaking does not circumvent the redesignation requirements. Seethe discussion in theredesignation rulemaking, below, and in USEPA's Responses to Comments in its Determination ofAttainment ofOzone Standard for Salt Lake and Davis Counties, Utah 60 FR36723 (July 18, 1995). USEPA in this portion ofthe rulemaking, its determination of attainment, is simply making afactual determination that since CAL is attaining the standard, certain provisions ofthe CAA, whose express purpose is to achieve attainment ofthe standard, do not require SIP revisions. In the redesignation portion ofthis rulemaking, USEPA explains its basis for concluding that CALhas met the requirements ofsection 107 for redesignation to attainment.

With respect to the determination of attainment, USEPA set forth in the June 29, 1995 notices on CAL its basis for interpreting certain CAA requirements

asinapplicable to an area that is attaining the ozone standard.

This interpretation is consistent with USEPA's General Preamble for the Implementation ofTitle I ofthe Clean Air Act Amendments of 1990 ("General Preamble"), 57 FR 13,498 (April 16, 1992), which directly addressed requirements for redesignations. Id. at 13,561-64. USEPA interpreted the general reasonable further progress requirement and contingency measures

asnot applying to redesignation requests because an area musthave attained the standard before it could be redesignated to attainment, making reasonable further progress and contingency measures, unnecessary.

USEPA's May 10 memorandum set forth USEPA's interpretation ofthe requirements ofCAA sections 172(c)(9) and 182(b)(1)(A), with respect to ozone nonattainment areas that have achieved the ozone NAAQS. USEPA explained that because the purpose ofthose requirements has already been fulfilled for areas that have attained the standard, the requirements do not apply to those

areas for as long as they stay in attainment. Itfurther explained that this interpretation is consistent with USEPA's interpretation ofthe general reasonable further progress requirements and section 172(c)(9) contingency measure requirements with respect to redesignation requests as set forth in its General Preamble, and with related USEPA guidance on the procedures to be used when USEPA is processing redesignation requests.

USEPA has concluded that Congress included the 15 percent plan as a specification of "reasonable further progress". Section 182(b)(1) is entitled "Plan provisions forreasonable further progress." The heading's reference to "reasonable further progress" indicates Congress' overall intentin enacting the provision. The term "reasonable further progress" is defined as "such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by (USEPA)for the purpose of ensuring attainment ofthe applicable (NAAQS) by the applicable date." 42 U.S.C. section 7501(1). This definition applies for "thepurposes of* * * part" DofTitle Iofthe CAA, which includes section 182(b). Id. Thus, the term "reasonable further progress" requires only such reductions in emissions as are necessary to attain the NAAQS bythe attainment date and no more.42 U.S.C. section 7501(1). Accordingly, USEPA has interpreted section 182(b)(1)(A)(I) consistent with the statutory definition of "reasonable furtherprogress" and with section 182(b)(1)(A)(I)'s express purpose ofassuring progress to bring violating areas into attainment. Ifan

area has in fact attained the standard, the stated purpose ofthe RFP requirement willhave already been fulfilled and USEPA does not believe that the area need submitrevisions providing forthe further emissions reductions described in section 182(b)(1).

The legislative history expressly supports USEPA's interpretation of section 182(b)(1)(A)(I). In describing the 15 percent plan, the House Report stated: 

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The emissions reductions called forin this subsection* * * provide a concrete translation ofhow much an area mustdo to achieve "reasonable further progress" toward attainment ofthe standards, as required in section 172 and defined in section 171. Areas that fail, as determined by USEPA, to achieve reasonable furtherprogress are in violation of the Act.
H.R. Rep. no. 490, 101st Cong., 2d Sess., pt. 1(1990) at 236. Thus, Congress contemplated that therequirements of section 182(b)(1)(A)(I) were simply a specification ofthe more general reasonable furtherprogress requirements ofthe Act, with the same goals and definition.

Moreover, USEPA's interpretation of the requirements ofsection 182(b)(1)(A)(I) is consistent with its interpretation ofthe general reasonable further progress requirements ofCAA section 172.

USEPA has also determined that section 172 (c)(9), 42 U.S.C. section 7502(c)(9) does notrequire a contingency measures plan for an area such as CAL, which has attained the standard. The contingency measures plan is required for an area which "fails
to make reasonable furtherprogress, or to attain the (NAAQS) by the attainment
date * * *" 42 U.S.C. section 7502(c)(9). If,as USEPAhas determined with respect to CAL, an area has already attained the standard, then by definition such an area is not one to which contingency measures apply. There simply is no failure to attain or make progress for which additional measures need be contingent. However, as with section 182(b)(1)(A)(I), USEPA interprets section 172(c)(9)'s requirements to be applicable to areas that lapseback into violation prior to redesignation, and which therefore need additional progress toward attainment. Moreover, USEPA's interpretation of 172(c)(9) is consistent with its interpretation ofthese requirements in the context ofredesignation requests. 57 FR 13564. USEPA's interpretation also vindicates the policy objective of reducing the burden on states and

sources ofadopting and implementing additional control measures that are not necessary to attain the standard.

(4) Comment:The number of "close calls" and the use ofvoluntary measures to reduce ozone raises real questions about the overall air quality. Modeling would answer some ofthese questions and give a truer picture ofwhat the air is really like. Some initial analysis of the weather patterns in 1995 indicates that they may be similar to 1988, a supposedly "unusually hot, dry summer" when numerous exceedances

were recorded. In fact, the weather in Ohio in 1988 or thus far in 1995 is not allthat unusual. Even higher temperature have been recorded. It can be expected that there will be more exceedances, unless there arereductions in ozone precursor emissions.

USEPA policy (September 4, 1992, procedures for processingrequests to redesignate areas to attainment, from John Calcagni) states that data from the monitors be from areas ofhighest concentration and that modeling may be necessary to determine the representativeness ofthe monitor data. (4)Response:While voluntary

measures were used in Cleveland during the summer of 1995 to involve the community in keeping their air clean, the Ohio Environmental Protection Agency (OEPA) did not claim that this

measure was responsible for the Cleveland area attaining the NAAQS. Ohio's request claimed that the improvement in air quality was due to permanent and enforceable measures, namely the Federal Motor Vehicle Emissions Control Program and the Federal fuel volatility requirements that reduced the emissions from gasoline. In addition, the basic automobile inspection and maintenance program, required as a part ofthe carbon monoxide SIP, would also have provided volatile organic compound (VOC), and oxide ofnitrogen (NOx) emissions reductions in the area, as a side benefit. These measures resulted in the area's VOC emissions decreasing by about 14percent from 1990to 1994, enabling the area to reach attainment of the ozone NAAQS.

USEPA policy on the determination of attainment is provided in aMay 10, 1995, memorandum from John S. Seitz, Director ofthe Office ofAir Quality Planning and Standards. This memorandum sets forth USEPA's interpretation ofcertain requirements of subpart 2 ofpart D oftitle I ofthe Clean Air Act asthey relate to ozone nonattainment areas that are meeting the ozone NAAQS. The USEPAbelieves it is reasonable to interpret provisions regarding RFP and attainment demonstrations, alongwith the related requirements, so asnot to require SIP submissions if an ozone nonattainment

area subject to those requirements is in fact attaining the ozone standard (i.e., attainment ofthe NAAQS is demonstrated with 3 consecutive years ofcomplete, quality-assured air quality monitoring data). The USEPA has previously interpreted the general provisions ofsubpart 1 ofpart D oftitle I (section 171 and 172) so as not to require the submissions ofSIP revisions concerning RFP, attainment demonstrations, or contingency measures, and USEPA believes it is appropriate to interpret the ozonespecific provisions ofsubpart 2 in the

same manner. Thisis further discussed under section I covering the background

on the determination ofattainment.

The determination of attainment is based onlyon ozone monitoring data for the area. The datafor atleast the last four years show that the area has achieved attainment. We believe that the monitoring data is adequate and representative ofthe area and that modeling is not necessary to show attainment. These data show that the

area is in attainment and the monitoring data for 1995 show that no exceedances

were monitored in the entire ClevelandAkron-Lorain area. This shows that the provisions related to submitting a SIP revision to bring an area into attainment ofthe ozone NAAQS, such as the attainment demonstration, RFP, and contingency measures requirements are notnecessary since the area is already in attainment ofthe ozone NAAQS.

The weather in 1995 was more conducive toward formingozone in many parts ofthe Country. Even though this was the case no exceedances were monitored at any ofthe monitors in the CAL area showing that the area has reduced its emissions to a level that has brought the CAL area into attainment of the ozone NAAQS.

(5) Comment:The Southwestern Pennsylvania Growth Alliance (Growth Alliance) is concerned thatthe redesignation ofthe Cleveland-AkronLorain area could adversely affect both the economy and air quality in southwestern Pennsylvania, and it feels that action on the applications from theseregions should be suspended until

a more comprehensive national solution
to interstate transport ofozone and

ozone precursors is developed and implemented. The Growth Alliance believes that Southwestern Pennsylvania is being unfairly disadvantaged compared to neighboring
states by the requirements created by the Clean Air Act, by USEPA, and by the Northeast Ozone Transport Commission.

(5)Response:USEPA's proposed action to determine that the ClevelandAkron-Lorain area has reached attainment and that it is not necessary for itto have an attainment demonstration, 15% rate ofreduction plan, and a contingency plan is different from redesignating the ClevelandAkron-Lorain area as an attainment area for ozone. In order forUSEPA to make

a determination concerning the 15% plan and other requirements, it is only necessary to show that the area has attained the ozone standard through 

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monitoring data. In order to be redesignated from nonattainment to attainment the area must meet the five redesignation requirements ofsection 107 ofthe CAA. One ofthe five redesignation requirements is that the

area have met all ofthe SIP requirements applicable to the area. A determination ofattainment renders

some ofthose requirements as inapplicable, based on the area attaining the standard, but the area would still have to meet the remaining applicable SIPrequirements before itcould satisfy part oftherequirements for redesignation. The ozone redesignation request for Cleveland-Akron-Lorain is being addressed in a separate part of this same FederalRegister action. A discussion ofthe comments and responses received on the redesignation is given in that part ofthis action. In order for the CAL area to be redesignated from nonattainment to attainment it would have to meet all of the applicable redesignation requirements. Ifan area meets the criteria for redesignation nothing in the CAA suggests that redesignations should be delayed. Any issue regarding transport ofozone and its precursors

can and is expected to be dealtwith through the Ozone Transport and Assessment Group (OTAG) and USEPA's authority under section 110 (a)(2)(A) and (a)(2)(D) ofthe Act. See also Response to comment 2.

Determination Conclusion

The USEPA has determined that the Cleveland -Akron-Lorain (which includes the Counties ofAshtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit) has attained the ozone standard and continues to attain the standard at this time.

As a consequence ofthis determination that the ClevelandAkron-Lorain ozone nonattainment area has attained the ozone standard, the 

### requirements ofsection 182(b)(1) concerning the submission ofthe 15 percent plan and ozone attainment demonstration and the requirements of section 172(c)(9) concerning contingency measures arenot applicable
to the Cleveland-Akron-Lorain area. Additionally since this determination is occurring simultaneously with the

ozone redesignation to attainment, the determination will not be revoked in the
event ofa violation. Rather, in the event ofa violation, the contingency measures in the approved maintenance plan would be triggered by a violation. 

### Ozone Redesignation Request

I. Background

On November 14, 1994, the OEPA submitted to the USEPA arequest for redesignation to attainment for ozone for the CAL area ofLorain, Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit and Portage. Additional information on the State public hearing and response to comments was submitted to USEPA on February 22, 1995. The redesignation requests were supported bytechnical information demonstrating that the requirements of section 107(d)(3)(E) ofthe Clean Air Act Amendments (CAAA) were met. On June 15, 1995, anotice was published in the Federal Register (60 FR 31433) which proposed approval ofthe redesignation requests to attainment for

ozone and the maintenance plans for the Ohio CAL moderate ozone nonattainment area counties.

I. Summary ofProposedRulemaking

The proposed rulemaking detailed how the State submittal fulfilled the redesignation requirements ofthe CAAA. Specifically, section 107(d)(3)(E) provides for redesignation if: (i) The Administrator determines that the area has attained the National Ambient Air 

### Quality Standards (NAAQS); (ii)The Administratorhas fully approved the applicable implementation plan forthe

area under section 110(k); (iii) The Administrator determines that the improvement in airquality is due to permanent and enforceable reductions in emissions resultingfrom implementation ofthe applicable implementation plan and applicable Federal airpollutant control regulations and otherpermanent and enforceable reductions; (iv)The Administratorhas fully approved a maintenance plan for the area asmeeting therequirements of section 175(A); and (v) the State containing such area has met all requirements applicable to the area under section 110 and Part D.

Included in the State submittal was a maintenance plan. Acomponent ofthe maintenance plan is themaintenance demonstration which shows thatthe levelofemissions projected out 10 years will notexceed the attainment year inventory.The proposed rulemaking presented summary tables ofVolatile Organic Compounds (VOC) emissions, and NOx emissions projections for the CAL area counties. The OEPA has revised thebase year and projected year inventories numbers in response to comments made by Region 5. TheVOC and NOx point source emissions projections for the year 2000 were estimated by USEPAbased on an average growth rate for the 1996to 2006 period. These estimates show thatthe totalemissions in the area are expected toremain below the attainment level of emissions. In addition, theNOxpoint

source emission projections do not account for emission reductions due to theTitle IVAcid Rain requirements of the CAA, which would furtherreduce NOx emissions inthe area. Thechanges did not affect the State's ability to demonstrate maintenance. Therevised tables are presented below.

SUMMARY OF

### VOC EMISSIONS [Tons/day]

1990 base 1993 attain 1996 pro- 2000 pro- 2006 pro- jected jected jected

Point

.......................................................................................................... 82.22 75.75 78.55 82.44 88.63 Area

.......................................................................................................... 201.05 201.37 201.45 201.63 200.86 M

obile

....................................................................................................... 248.4 181.4 131.2 78.4 48.8 T

otals

........................................................................................................ 531.7 458.5 411.2 362.5 338.3

SUMMARY OF 

### NO× EMISSIONS [Tons/day]

1990 base 1993 attain 1996 pro- 2000 pro- 2006 pro- jected jected jected 

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Poin t
.......................................................................................................... I 245.59 1 254.61 1 263.91 1 277.05 1 298.00

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SUMMARY OF NOx EMISSIONS-Continued [Tons/day]

Area .......................................................................................................... M

obile

....................................................................................................... T

otals

........................................................................................................

Additionally, the VOC and NOx emissions projected for the year 2006 in the above tables are considered emission budgets for purposes of transportation conformity.

The proposal stated that final approval ofthe CAL moderate nonattainment area counties was contingent upon final approval ofVOC reasonably available control technology (RACT)rules, the 1990 Base-year inventory, the section 182(f) NOx waiver request, the 182(b)(1) reasonable further progress plan (15% plan), the 182(b)(4) inspection and maintenance plan, the attainment demonstration, and the 172(c)(9) contingency measures. All oftheserequirements have eitherbeen
met through full approval ofstate submittals or havebeen determined in this rulemaking to be no longer applicable. The final approval ofmost of the VOC RACT rules were published on March 23, 1995 (60 FR 15235), and became effective on May 22, 1995. Final approval ofRACT rules for major stationary sources not specifically covered by a USEPA Control Technique Guideline for RACT became effective on October 31, 1995, in aletter notice action from Regional Administrator Adamkus to the individual companies. A formal announcement ofthis was 

### made in the Federal Register. The Baseyear inventories were approved on December 7, 1995 (60 FR 62737) and effective on January 8, 1996. The NOx waiver request was approved on July 13, 1995 (60 FR 36051) and became effective on August 14, 1995. The I/M plan was approved on April 4, 1995 (60 FR 16989) and became effective on June 3, 1995.

A May 10, 1995, memorandum from John S. Seitz, Director, Office ofAir Quality Planning and Standards, entitled "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the OzoneNational Ambient Air Quality Standard", states that upon a determination madeby USEPA that an area has attained the NAAQS for ozone, that area need not submit SIPrevisions concerning reasonable furtherprogress (15%) plan, 182(b)(1) attainment demonstrations, and 172(c)(9) contingency measures for aslong as the area continues to meet the standard. Such a determination is made for the CAL area in a separate part of this rulemaking. Consequently, final approval ofthe redesignation request for the CAL counties ofLorain, Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit, and Portage is no longer dependent upon approval ofthe 15% plan, attainment demonstration, or section 172(c)(9) contingency measures.
Public Comment/USEPA Response

In response to the request for written
comments on the proposed rulemaking, USEPA received about 50 comment letters. Letters were received from concerned citizens, environmental groups, and industry. Over 30 ofthese letters were adverse comments on the propose rulemaking. The remaining comments were in support ofthe proposed rule. The following summarizes the adverse comments received and responds to them. The
comments in support ofthe rule are not summarized below, but are available for public review in USEPA's docket. In an earlier part ofthis rulemaking
comments and responses areprovided

on the determination ofattainment for the CAL area. To the extent that any comments under the determination section also apply to the ozone redesignation action for the CAL area they are also incorporated into the comments/responses under this section covering the ozone redesignation action for the CAL area. (1) Comment:Many ofthe
commenters are opposed to the redesignation ofthe Cleveland-AkronLorain area to attainment on the grounds that they believe that more stringent emission control requirements and sanctions are needed to avoid unsafe pollution levels. These
commenters believe that the benefits of health and environmental improvements to be achieved through stricter standards outweigh the increased costs ofemission controls on industry and on the public. Several
commenters state that the ozone standard itselfshould be tightened, expressing concerns over longterm health impacts, impacts on children and the elderly, and impacts on smog levels still visible in the area.

(1) Response:The NAAQS were established to protect the public's health and welfare with an adequate margin of safety. Although additional reductions in VOCs mayprovide further health improvements, it is noted that the issue here is attainment ofthe ozone standard. The State ofOhio has met the requirements for the redesignation of the Cleveland-Akron -Lorain area to attainment ofthe ozone standard, including attainment ofthe ozone NAAQS. It is not clear that further reduction in ozone levels will provide significant health improvements.

With regard to arevised ozone standard, it should be noted that the USEPA alongwith States and science advisors, is the process ofreconsidering the ozone standard. Ifthe ozone standard is revised a number ofozone attainment and nonattainment areas maybe affected. A redesignation of Cleveland-Akron-Lorain to attainment at this timewill not prevent this area from being redesignated to nonattainment ifit is subsequently found to be in violation ofa revised ozone standard. Until the NAAQS is revised, however, the 0.12 ppm NAAQS for ozone is the only appropriate standard against which to judge attainment. (2) Comment:People in the Cleveland-Akron-Lorain area suffer from sinus problems, and increased

occurrence ofasthma and other lifethreatening respiratory illnesses that are directly attributable to airpollution. The air is often oppressive and really unbreathable, especially in the kind of hot, humid weather that the area has experienced this summer. Infants and the elderly are affected by the higher tolerance ofozone levels now in force. We see people who become ill from polluted air whenever the ozone level rises. The current ozone standard is not health based. We wantto breathe cleaner air. We are opposed to the redesignation ofCleveland-AkronLorain because ofthe asthma epidemic and increasingnumber ofasthma deaths. The pervasiveness ofthe health threat posed far outweighs the inhibition ofindustrial expansion and limits on smokestack pollution. 

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(2)Response:The current ozone standard is a health based standard. It

was recently reviewed and reaffirmed,

see 58 FR 13008 (March 9, 1995). However, the ozone NAAQS is currently being reviewed to see ifthe standard should be changed and what the new standard would be, see 59 FR5164 (February 3, 1994). A staffreport was recently released that discusses this review ofthe ozone NAAQS. But unless and until the ozone NAAQS is changed

- itremains the standard to use for comparison against ozone monitoring data in the area. Those data indicates attainment ofthe ozone standard.

(3) Comment:In Cleveland-AkronLorain the air smells. There are also foul odors coming from factories during the early morning hours that are waking us up and makingus nauseated.

(3) Response:At the Federal level the Clean Air Act (CAA) does not provide specificrequirements for companies to control odors. Odor is not an issue pertinent to the ozone standard or the attainment ofthat standard. We have, however, made ourenforcement group
aware ofthese complaints to see what

can be done. Further, existing facilities
must continue to operate existing air pollution control equipment in accordance with applicable rules, regulations and permits, and sources that areproblematic in terms ofposing

anuisance to area residents maybe referred to the State and local environmental enforcement stafffor investigation.

(4) Comment:Several commenters expressed concern that trucks and buses pollute the airbyblowing outblack smoke and that cleaning up emissions from cars is not sufficient.

(4)Response:The USEPA agrees that cleaning up emissions from cars is not enough. Trucks and buses also produce significant pollution. The USEPA has
set stringent standards for new heavy duty diesel engines beginning with the 1988 model year, with additional improvements to be made with the 1991 and 1994 model year engines. The black smoke from diesel trucks and buses is particulate matter which is a visible air pollutant. Trucks and buses also contribute to ozone air pollution because they produce hydrocarbons and NOx. The NOxemission standard has been tightened from 10.7 grams per brake horsepower per hour (g/bhp-hr) in 1985 to 6.0 in 1988 and 5.0 in 1991. The hydrocarbon emission rate for diesel engines is set at 1.3 g/bhp-hr. Particulate emission standards have been tightened from 0.60 g/bhp-hr in 1988 to 0.10 g/ bhp-hr in 1994 for all new heavy duty engines. As the older trucks and buses

arereplaced by the newer, cleaner engines the pollution from these vehicles will be significantly reduced.

In October 1993, the USEPA required the useofa cleaner diesel fuel throughout the country. Diesel fuel used in on-highway compression ignition engines contains less sulphur than earlier fuels. Lower sulphur reduces the
amount ofindirect particulate and improves the operation ofnew diesel engines using particulate trap oxidizers
to control direct particulate emissions. It is estimated that the use oflow-sulphur diesel fuel reduces direct and indirect particulate by approximately 28 percent from the baseline fuel. Air quality impacts offuel controls areprojected to reduce particulate by 2.3 to 8.3 micrograms per cubic meter and sulphurdioxide by 7 to 16 micrograms per cubic meter in a metropolitan area the size ofCleveland-Akron-Lorain.

The State ofOhio will implement its inspection and maintenance (JIM) program beginning in 1996. The authorizing State legislation for the IM program requires the testing ofdiesel powered vehicles up to 10,000 pounds for opacity (smoke). Buses are also required to meet emission standards for smoke, hydrocarbons and carbon monoxide.

The reductions in hydrocarbon, and NOx emissions from trucks and buses will contribute to maintaining the ozone standard and protecting the public's health. Particulate issues are separate from ozone issues and are not relevant for consideration here. While the standards for particulate emissions will greatly reduce the amount ofsmoke emitted from trucks and busses, it is not expected to have a significant effect on
ozone levels and as a result is not pertinent to an ozone redesignation request. (5) Comment:Several commenters have expressed confusion over the relationship between the proposed redesignation and theprotection ofthe "ozone layer." One commenter in particular requests that the USEPA explain the "whole ozone picture." (5)Response:At the very outset of this response, itmust be noted that "ozone" referred to in the proposed redesignation is chemically identical to the "ozone" referred to in the term "ozone layer." In both situations ozone refers to agas composed ofmolecules with three oxygen atoms each.

In the case ofthe "ozone layer", one is referring to the layer ofthe Earth's stratosphere where ozone is found in relatively high concentrations. Ozone in this layer is formed through the reaction ofoxygen molecules (two oxygen atoms each) and high energy electromagnetic radiation from the Sun. Oxygen atoms are freed when oxygen molecules are impacted by the high energy radiation. Some ofthese freed oxygen atoms combine with oxygen molecules to form

ozone molecules. Within this layer of the atmosphere, ozone is a significant absorber ofhigh energy ultraviolet radiation from the Sun. Ifthis ultraviolet radiation reached the surface ofthe earth in sufficient intensity, significant, undesirable biological damage could result to surface organisms. Concerns over potential damage to the protective ozone layer has led to efforts to reduce the emissions of gasses which are believed to directly or indirectly eliminate ozone molecules.

In the case ofthe proposed of Cleveland-Akron-Lorain, one is dealing with ozone found in the lowest levels of the atmosphere. At this level ofthe atmosphere, high ozone levels are not typically found (naturalprocesses can lead to peak ozone levels of0.04 to 0.06 parts per million, well below the ozone standard of0.12parts per million). Manmade (anthropogenic) emissions of volatile organic compounds, oxides of nitrogen, and other gases, in the presence ofsunlight and relatively

warm temperatures, can lead to ozone formation ofconsiderably higher concentrations. This chemical formation process involves hundreds ofchemical reactions and differs significantly from the process that forms ozone in the stratosphere. There is no significant exchange ofozone between the lower atmosphere, where high ozone levels are undesirable, and the stratosphere, where high ozone levels are desirable for the protection oflife on earth.

Ozone concentrations in excess ofthe

ozone standard are shown, based on

numerous health studies and correlation ofhealth data and monitored ozone concentrations, to be damaging to human health, particularly causing problems with the human respiratory system. For thisreason, ozone has been listed as a primary pollutant with a defined health-based standard.

(6)Comment:The air quality in Cleveland-Akron-Lorain is lousy and there has been noimprovement in the quality ofour air. Ifanything, Iwould say things are worse.

(6)Response:With respect to ozone levels in the CAL, the air quality has improved significantly since the late 1980's. During 1988 there were a number ofmonitored readings above .150 parts per million in the area. During the last four years the highest concentration monitored was .127 ppm. CAL achieved attainment ofthe ozone standard at the end of 1994, by monitoring attainment ofthe ozone NAAQS during the three previous years 

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(which are 1992, 1993, and 1994). The

area continued to attain the standard since that time.

Section 107(d)(3)(E)(iii) requires that, for the USEPA to approve a redesignation, it must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions. The September Calcagni memorandum, at page 4, clarifies this requirement by stating that "[a]ttainment resulting from temporary reductions in emission rates (e.g., reduced production or shutdown due to temporary adverse economic conditions) or unusually favorable meteorology would not qualify as an air quality improvement due to permanent and enforceable emission reductions." As discussed in the June 15, 1995 Federal Register proposed rulemaking, the State ofOhio demonstrated that permanent and enforceable emission reductions are responsible for therecent improvement in air quality. This demonstration was accomplished through an estimate ofthe reductions (from 1990 to 1993) ofVOC achieved through Federal measures such as the Federal Motor Vehicle Emissions Control Program (FMVECP) and fuel volatility rules implemented from 1990- 1993, as suggested by the September Calcagni memorandum.

Volatile Organic Compound (VOC) emissions are one ofthe precursors that help to form ozone. The total emission reductions achieved from 1990 to 1993

were 65 tons ofVOCper day. This is a 14 percent reduction in VOCs, which corresponds to the drop in ozone concentrations in the area. These emission reductions were primarily the result ofthe FMVECP, Automobile Inspection and Maintenance program, and Gasoline Reid Vapor Pressure (RVP) reductions from 10.5 pounds per square inch (psi) in 1989, to 9.0psi in 1992. The VOC emissions are expected to continue to decrease in the future due
to the Federal Motor Vehicle Emissions Control Program, Stage II vapor recovery program, and the Enhanced Automobile Inspection and Maintenance Program. The NOxemissions are also expected to decrease in the future due to the Federal Motor Vehicle Emissions Control Program and the Enhanced Automobile Inspection and Maintenance Program.

(7) Comment:I am sure you are being bombarded with requests to change the designation to attainment, on the grounds that the region willbe hurt economically if this is not done. To me, such arguments ignore two fundamental points. First, there is not evidence that stricter environmental regulations hurt the economy. A clean environment does
not mean lessjobs, it can mean more jobs. In fact, there is evidence that indicates the opposite. Second, even if this is true, we would be selling our health, and the health ofourworld and

our children, for economic benefit. This does not seem agood trade. There is entirely too much emphasis on business economic considerations overhealth considerations. The cost to industry may be high, but what about the cost to pay for increased health problems? Air pollution results in hundreds of thousands ofdollars worth ofasthma illnesses and deaths each week. This should be spent on pollution controls instead.

It would be reprehensible ifthe agency charged with the protection of health and the environment capitulated
to vested, self-serving interests that place the almighty dollar ahead of human health and welfare. The redesignation request should not be approved.

(7)Response:The approval ofthe

ozone redesignation request for Cleveland-Akron-Lorain is based on the

area meeting the five requirements of section 107 ofthe CAA. Itis notbased

on economic grounds. The first ofthe five requirements ofsection 107 is that the area has attained the National Ambient Air Quality Standard for
ozone, which it has. The NAAQS for

ozone is set at a level designed to protect the public's health and monitoring data show that the area is meeting the standard. (8) Comment:One commenter, although not expressing opposition to the proposed redesignation, does express opposition to the approach used in the Cleveland-Akron-Lorain area of trying to get the public to reduce emissions only during critical high

ozone potential periods. The commenter favors a permanent curtailment of emissions so that people with related health risks, such as asthma, will not have to seek the shelter ofairconditioned places during such periods. (8)Response:It is agreed that, where possible, permanent emission controls should be implemented to minimize

ozone levels and to attain the ozone standard. It should be recognized that many permanent emission controls, such asreasonably available control technology, transportation control
measures, and vehicle inspection/ maintenance, have been implemented in the Cleveland-Akron-Lorain area. The maintenance plan takes into account that these emission controls will be maintained despite the redesignation of the area as an area in attainment ofthe

ozone standard. The permanent and enforceable emissions reductions are discussed under comment number six, and in comment 4 in the determination ofattainment section.

(9) Comment:A number of
commenters believed the air monitoring in the area was inadequate. Several

concerns were noted: Commenters stated that there is presently insufficient monitoring both in terms ofwhat is monitored and the number of monitoring stations (specifically, a lack ofozone monitoring in Geauga County

was cited by several commenters).

(9)Response:The requirements for ambient air quality monitoring are detailed in 40 CFRpart 58. The federal requirements include: The use of approved air monitoring equipment; quality assurance ofmonitoring data; appropriate network design; operating schedule; and siting ofindividual monitors. In determining attainment or nonattainment status ofan area for the NAAQS for ozone, only air monitors sampling for ozone are relevant. Monitoring forprecursors ofozone (such as VOCs and NOx) can be beneficial in understanding ozone formation. For determining the air quality concentrations ofozone in an

area and determining attainment ofthe

ozone standard, ambient ozone monitors

are considered.

The Cleveland-Akron -Lorain ozone monitoring network consists often ambient ozone monitors: three in Cuyahoga County, two in Lake County, and one each in Ashtabula, Lorain, Medina, Portage and Summit Counties. The monitoring network is reviewed by the USEPA. The individual monitoring sites meet the federal monitoring requirements. The commenters are correct in notingthat Geauga County is downwind ofthe urban area and in a location that would be expected to receive high ozone concentrations. However, the USEPA believes that decisions on the air quality can be made with the current network because the monitors cover an adequate geographic

area to be representative ofthe nonattainment area. Ozone monitors are located in every county that is contiguous to Geauga County. All of these monitors are in attainment ofthe

ozone NAAQS, including Lake County which is also downwind ofthe main urban area and would be expected to have similar air quality to Geauga County. Based on this USEPA believes that Geauga County is also in attainment ofthe ozone NAAQS.

(10)Comment:One commenter believed that the original readings that brought about the "bad rating" were taken in an industrial area surrounded by freeways inundated with Cleveland Browns fans. The commenter believed 

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the monitoring readings to be unrepresentative.

(10)Response:The highest ozone readings are not typically found in industrial areas or near freeways. Industries and traffic produce hydrocarbons (also called volatile organic compounds) and NOx pollution that react in the presence ofsunlight to form ozone. Thisreaction takes place

over aperiod ofseveral hours and thus the highest ozone concentrations are typically found 20 to 40 miles in the downwind direction. The USEPA considers allvalid, quality assured monitoring data in the area in assessing the air quality. The moderate ozone nonattainment designation was based

on 3 years ofozone monitoring data (1987-1989) and was based on the fourth highest reading (.157 the design value) at the monitoring site in Akron, Ohio. Other ozone monitoring sites in the area also had ozone concentrations in the range ofamoderate classification. For example, the site at Jefferson Elementary School in Eastlake, Ohio had adesign value of .152 for the 1987- 1989 time period. The ozone monitoring data now shows an improvement in air quality that demonstrates attainment of the health based ozone standard. All air monitoring data is available to the public from the national USEPA Aerometric Information and Retrieval System (AIRS) databank.

(11) Comment:The fact that this region did not adopt reformulated, less ozone-producing gasoline with fewer VOC's for summertime use clearly demonstrates the lack ofcommitment to clean air.

(11) Response:While the ClevelandAkron-Lorain area was notrequired to adopted reformulated gasoline in order
to be redesignated, they did choose an Enhanced Automobile Inspection and Maintenance program (I/M) as a maintenance measure to be implemented in the area. This program

was chosen asthe most cost effective program that the area could use for maintaining the standard while still providing room for growth in the area.

(12) Corn ment:Several commenters expressed dissatisfaction with the inspection and maintenance program for automobiles. Some were concerned about gaps in the I/M program that reduced the effectiveness. One commenter suggested other pollution reduction measures. A commenter believed that the vehicle inspection and maintenance program was not effective. The commenter believed that the I/M funds would be better spent on enforcing the speed limit, gettingrid of high polluting vehicles, doing more on "Ozone Action Days" or making these mandatory, and giving incentives for sharingrides. One commenter was against the more stringent IM program.

(12)Response:The IM program for automobiles is a very cost-effective program for reducing pollution. Studies show that a smallpercentage ofvehicles

areproducing alarge portion ofthe pollution in ametropolitan area. Automobiles that are not wellmaintained or that have pollution control equipment that has been disabled emit airpollution that can increase ozone concentrations. The I/M program will identify these automobiles and require repairs. Compared to other forms ofpollution control, the IM program is a low-cost alternative. The enhanced IM program is estimated to cost between $500 to $900 dollars per ton ofVOC pollution reduced. This compares to a cost ofapproximately $5,000 per ton for abasic program, $5,000 to $10,000 dollars per ton of VOC reduced for additional stationary

source controls beyond the current RACT required in the Cleveland-AkronLorain area. The USEPA agrees that an effective IM program is important. The enhanced IM program adopted by Ohio and which began in January 1996, is the best and most cost effective testing program recommended bythe USEPA.

An additional feature ofthe State's enhanced IM program, designed to improve repair-effectiveness, is the requirement that automobile technicians become certified to repair vehicles which fail the test. The auto technician training program requires technicians to undergo a training program to ensure they are able to perform repairs on current new-technology vehicles and vehicles ofthe future. Technicians and repair facilities will be graded on the effectiveness ofrepairs and this information will be available to the public in order to make informed decisions on where to take their vehicle for repairs. This technician training and certification program began implementation in October 1995, and is being supervised bythe OEPA. (13) Comment:A commenter expresses the concern that control of emissions from aircraft as they travel

over the area (and overthe United States in general) have notbeen given enough consideration. The commenter believes aircraft emissions must be considered alongwith emissions from industries and automobiles in the control ofair pollution. (13)Response:It should be noted that States, under the requirements of section 182(a)(1) ofthe Clean Air Act, have included aircraft emissions in a base year emissions inventory for each

ozone nonattainment area. These aircraft emissions were projected to the 10-year maintenance period in Ohio's maintenance plan for the ClevelandAkron-Lorain area, and were shown, along with emissions from other
sources, to not cause aprojected violation ofthe ozone standard.

(14) Comment:A number of
commenters were concerned that the redesignation would affect transportation choices and transportation planning and would contribute to more pollution. Concerns

were expressed about: The need for

more bike paths, the need forimproved public transit, the need to discourage driving. Specific concern was expressed about express lanes on 1-271 which would impact the environment. Another
commenterhad concerns about a subway being dropped from the transportation planning, a lack of bicycle facilities, more interchanges and freeways and new lane additions. There

was concern about a tollway from Toledo to Portsmouth instead oflight rail that would be upwind ofthe populated current nonattainment areas and would add pollution to the areas. The commenter wanted pollution prevention through better transportation choices.

(14)Response:The redesignation to attainment does not negate the need for the area to make smart transportation choices. The transportation conformity requirements still apply to the area as a maintenance area. The area will need to demonstrate that emissions are not exceeding the mobile source emission budget in the maintenance plan. The Northeast Ohio Area wide Coordinating Agency (NOACA) is the local metropolitan planning organization for the Cleveland-Akron -Lorain area and performs the conformity analysis on the transportation plan. Conformity to the emission budget is designed to prevent the area from increasing mobile source emissions to the point where the air quality standards are exceeded. Conformity will also provide assurance that a project will not be done ifit would cause or contribute to a violation ofthe ozone NAAQS in the CAL area.

The commenters are correct in noting that transportation measures such as improvements inbicycle paths and facilities and improved public transit will contribute to better air quality by reducing the number ofautomobiles and the number ofvehicle miles oftravel. The commenters are also correct in their

concerns about increasing freeway capacity and tollways, asthese types of projects will encourage additional vehicular traffic. The USEPA believes that the conformity requirements will allow the area to make local decisions 

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on transportation planning while assuringthat mobile source emissions will not increase. Increases to the mobile source budget are only allowed if there is an excess in the total projected emissions for the area.

Projects such as tollways that are built in the maintenance area would also be subject to conformity. Tollways that are in attainment areas are not currently required to meet any conformity tests. It is possible that projects ofthis type could affect air quality downwind; however, the USEPA believes that the cleaner vehicle standards will contribute to preventing degradation of the air. See also theresponse to comment 18.

(15) Corn m ent:OverLake Erie there is

agray and yellow mass ofpollution. There is also a trail ofsmoke that rises from the smoke stacks ofthe EastLake Electric Power plant, and the trucks and buses are also emitting smoke. When I

am at ahigh point on ahill looking down atdowntown Cleveland, Ican barely see the buildings. It's as if they

arebehind a cloud ofdirt, smoke, and other pollution. We need to change this.

(15)Response:USEPA has avariety of programs addressing the commenter's

concerns. The "trail of smoke" from the East Lakepower plant is particulate matter, which is regulated both by limits

on the mass ofparticulate matter and by limits on the opacity oftheplume. Smoke from trucks and buses is being limited bynew emissions standards that have been made achievable by new limitations on the sulfur content of diesel fuel. USEPA is updating its visibility regulations to reduce the impairment ofvisibility due to air pollution. Nevertheless, USEPA evaluates attainment ofthe air quality standards based on quantitative
measurements ofair pollutant concentration. Since these
measurements indicate that the ozone standard is being attained, USEPA must conclude that this criterion for redesignation is satisfied.

(16) Comment:Several commenters

are opposed to the redesignation because they believe it will lead to less USEPA oversight ofexisting emission control regulations and, therefore, to increased air pollution.

(16)Response:All volatile organic compound emission controlregulations in place at the time oftheredesignation ofthe Cleveland-Akron-Lorain area will remain in place unless it is ultimately shown through photochemical dispersion modeling that such control

measures are not necessary for continued attainment ofthe ozone standard. These regulations will continue to be enforced by the State and will remain federally enforceable. (17)Corment:One commenter asserted that section 107(d)(e)(E)(v) requires that a state meet all applicable requirements under section 110 and Part D. While claiming that Cleveland satisfies all 172(c) requirements, USEPA acknowledges that some components have not yet completed regulatory review. 60 FR 31437. (17)Response:All applicable components, including those were referred to in the proposal as pending regulatory review, have now completed regulatory review. The Clean Air Act requires that the Cleveland-AkronLorain area meet all applicable requirements before the area is redesignated. USEPA approved the 1990 base year emissions inventory in a final rulemaking published on December 7, 1995 (60 FR 62737). The remaining VOC RACT rules for the area were approved in letter notice rulemakings dated October 31, 1995 and announced in the Federal Register. In a separate part of this final rulemaking USEPA determined that the 15% plan and contingency measures requirements are

no longer applicable to the ClevelandAkron-Lorain area. USEPA's rational for this action is contained in the rulemakings dated August 25, 1995 (60 FR44277), June 29, 1995 (60 FR 33742, and 60 FR 33781), and this final rulemaking. As a result ofthese actions the Cleveland-Akron-Lorain area has
met allofthe fully approved SIP requirements. These requirements were met before USEPA published this final rulemaking taking action on the redesignation requests.

In response to the comment on the protection ofthe public health. The public's health is protected as evidenced by the monitoring data collected in the area. The data show that the air quality levels are meeting the NAAQS for ozone. These standards

were set to protect thepublic health and welfare. (18)Comment:By this proposed approval, USEPA claims the redesignation request relieves Ohio from submitting SIP revisions providing transportation and general conformity criteria guidance. (18)Response:USEPA in this notice does not relieve Ohio from conformity requirements. Rather, USEPA has determined that those requirements will continue to apply after the area is redesignated, and therefore need not be fulfilled as acondition ofredesignation. Section 176(c) ofthe Act requires States
to revise their SIPs to establish criteria and procedures to ensure that Federal actions, before they aretaken, 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. orthe Federal Transit Act ("transportation conformity"), as well as to all other Federal actions ("general conformity"). Section 176 further provides that the conformity revisions to be submitted by the States must be consistent with Federal conformity regulations that the Actrequired the USEPA to promulgate. Congress provided for the State revisions to be submitted one year after the date ofpromulgation offinal USEPA conformity regulations.

The USEPA promulgated final transportation conformity regulations on November 24, 1993 (58 FR 62188), and general conformity regulations on November 30, 1993 (58 FR 63214). These conformity rules require that States adoptboth transportation and general conformity provisions in the SIP for areas designated nonattainment or subject to a maintenance plan approved under section 175A ofthe Act. Pursuant to 40CFR 51.396 ofthe transportation conformity rule and 40 CFR 51.851 of the general conformity rule, the State of Ohio is required to submit a SIP revision containing transportation conformity criteria and procedures consistent with those established in the Federal rule byNovember 25, 1994, and November 30, 1994, respectively. Ohio submitted transportation and general conformity SIP revisions on August 17, 1995. The USEPA has not yet approved the transportation conformity rules as part ofthe SIP. Final rulemaking on the general conformity rules is expected

soon.

The USEPA believes it is reasonable to interpret the conformity requirements

as notbeing applicable requirements for purposes ofevaluating the redesignation request under section 107(d).The rationale for this is based on a combination oftwo factors. First, the requirement to submit SIP revisions to comply with the conformity provisions ofthe Act continue to apply to areas afterredesignation to attainment, since such areas would be subject to a section 175A maintenance plan. Therefore, the Stateremains obligated to adopt the transportation and general conformity rules even afterredesignation and would risk sanctions for failure to do so. While redesignation ofan area to attainment enables the area to avoid further compliance with most requirements ofsection 110 and part D, since those requirements are linked to the nonattainment status ofan area, the conformity requirements apply to both 

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nonattainment and maintenance areas. Second, USEPA's federal conformity rules require theperformance of conformity analyses in theabsence of state-adopted rules. Therefore, a delay in adopting Staterules does notrelieve

an area from the obligation to implement conformity requirements.

Because areas are subject to the conformity requirements regardless of whether they are redesignated to attainment and must implement conformity under Federal rules ifState rules are not yet adopted, theUSEPA believes it isreasonable to view these requirements as notbeing applicable requirements for purposes ofevaluating

aredesignation request.

For thereasonsjustdiscussed, the USEPA believes that the ozone redesignation request for the CALarea may be approved notwithstanding the lack offully approved State transportation and general conformity rules. Thispolicy was also exercised in the Tampa, Florida ozoneredesignation finalized on December 7, 1995 (60FR 62748).

(19) Comments:Acommenter argued that the submission isdefective under section 107(d)(3) because ofthe absence ofa complete and fully approved implementation plan. The commenter asserted that USEPA cannot excuse Ohio's failure to submitrequired SIP revisions coming due afterthe November 15, 1994 filingofthe redesignation request. Thecommenter complained thatUSEPA in itsproposal

was illegally attempting torectify gaps by waiving applicability ofnecessary SIPrequirements, including the requirements of 15percent RFP, attainment demonstration, and contingency measures. Under section 107(d)(3)(E)(ii), anonattainment area may beredesignated only after USEPA has fully approved the applicable implementation plan forthe area under section 110(k).

Under theAPA, theAdministrator may not suspend applicability ofSIP requirements except byredesignation pursuant to 107(d)(e)(E). This canbe done only ifUSEPA has fully approved the SIPunder 110(k). See 107(d)(3)(E)(iii). Congress allotted USEPA no discretion in determining what constitutes the applicableplan, but directed itto lookat section l10(k), which does not give theAdministrator authority todecide what constitutes the "applicable requirements ofthis Act." Under section 107(d),the Administrator

can only grant a request toredesignate to attainment ifthe state has met all applicablerequirements under section 110 and Part D,and after the state has adopted acomplete implementation plan. (19)Response:USEPA has not suspended orgranted the CAL an exemption from any applicable requirements. Rather, USEPA has interpreted the requirements ofsection 182(b)(1)(A)(i) and 172 (c)(9) asnot being applicable once an area has attained the standard, as long as itcontinues to do

so. This is not a waiver ofrequirements that bytheir terms clearly apply; itis a determination that certain requirements

are written so asto be operative only if the area is not attaining the standard.

The May 10 Policy was clear about the consequences ofthe policy for redesignations. First, it made plain that

adetermination ofattainment is not tantamount to a redesignation ofan area to attainment. Attainment is only one of the criteria set forth in 107(d)(3)(E). To be redesignated, the State must satisfy allofthe criteria of 107(d)(3)(E), including the requirement ofa demonstration that the improvement in the area's air quality is due to permanent and enforceable reductions, and the requirements that the area have

afully-approved SIP which meets all of the applicable section 110 and part D requirements, and a fully approved maintenance plan.

Upon a determination of attainment, however, the 182(b)(1)(A)(i) requirements ofRFP and attainment plans, and the 172(c)(9) requirement of contingency plans are no longer considered applicable requirements under section 107(d)(3)(E). They would

no longer be included amongthose

measures whose approval is part ofthe requirement ofhaving afully approved SIP.

A commenter contended that, by relying upon its determination of attainment, USEPA is avoiding the redesignation requirements of 107(d). This is not the case. What USEPA has done is make adetermination that since the area is attaining the standard, which is a factual determination, certain provisions ofthe CAA, whose express purpose is to achieve attainment ofthe standard, do not require SIP revisions to be made by the State for so longas the

area continues to attain the standard. This has longbeen USEPA's policy with respect to the section 172(c)(9) contingency measures and section 172(c)(2) RFP requirement. See general preamble at 57 FR 13498. USEPA has also made determinations regarding section 182(f) NOx waivers at or before the redesignation ofan area and therefore not required NOx RACT submissions to approve such redesignations. Seethe Bay Area redesignation at 59 FR49361. USEPA disagrees with the commentor's analysis ofthe language and structure ofthe CAA. USEPA's statutory analysis was explained in detail in the June 8, 1995 direct final rule and in the May 10, 1995 memorandum from John Seitz. USEPA further elaborated upon this analysis, and responded to many ofthe concerns raised bythe plaintiffs, in its final determination ofattainment ofOzone Standard for Salt Lake and Davis Counties, Utah, and Determination Regarding Applicability ofCertain Reasonable Further Progress and Attainment Demonstration Requirements. See 60 FR 36,723 (July 18, 1995). To the extent here pertinent, such portions ofthat notice, including the responses to comments, are incorporated herein byreference.

Thus, USEPA disagrees with the commentors' view that USEPAis not complying with allthe redesignation requirements of 107(d)(3)(E). The area has a fully approved plan for and has
met all applicable requirements. USEPA has interpreted SIP submission requirements ofsection 182(b)(1) regarding reasonable further progress and attainment demonstration plans, and ofsection 172(c)(9) regarding contingency measures to be implemented in the event an area fails
to make reasonable further progress or attain the standard by the attainment date, not to apply for so long asthe area continues to attain the standard. Since they are not applicable, fulfillment of theserequirements is not necessary to meet theredesignation criteria of 107(d)(3)(E).

The commenter challenges USEPA's authority to determine certain SIP requirements inapplicable, and then bootstraps that argument to complain that since CAL has notmet these requirements, the redesignation request onlypartially fulfills 107(d)(E)(v). The
commenter argues that this is because the state has not met all "applicable" requirements under section 110 and Part D;but therequirements it points to are the very ones that USEPA has determined are inapplicable.

USEPA rejects thiskind ofcircular argument. Since USEPA has determined that the statute does not require certain submissions so long as the area is in attainment, those inapplicable requirements cannot serve as the basis for concludingthat theredesignation request is defective. Under the criteria ofsection 107(d)(E)(3) itself, a state need onlymeet all applicablerequirements, and have afully approved plan that contains all requiredelements. Thus USEPA's interpretation is fully consistent with the criteria ofsection 

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107(d)(3). Since USEPA has determined that the 15%, attainment demonstration, and contingency plan requirements are not applicable to CAL, and has found the SIP to be fully approvable without them, the CAL area has fairly met the criteria ofsection 107(d)(3). Certainly USEPA, after determining that these requirements are inapplicable, could not in good faith conclude that the redesignation request is defective because it fails to meet them.

Thus USEPA concludes that, where it has made a determination ofattainment that results in the suspension of requirements, it may rely on that determination and its consequences in considering the approvability ofa redesignation request.

For the reasons stated above and elsewhere in this Notice, in the June 29, 1995 FederalRegister notices (60 FR 3372, 33781), in the May 10, 1995 memorandum, and in the 60 FR 36,723 (July 18, 1995) Utah notice, USEPA does not believe that therulemaking violates any section ofthe CAA, nordoes it circumvent the redesignation requirements under section 107(d)(3)(E).

(20) Comment:Citizens Commissions for Clean Air in the Lake Michigan Area stated that USEPA's action is not a reasonable interpretation ofUSEPA's nondiscretionary mandate "to protect and enhance the quality ofthe Nation's air resources so as to promote the public health and welfare and theproductive capacity ofits population[.]}. section 101(b)(1).

(20)Response:The USEPA disagrees with the commentor's statement that its action violates section 101(b)(1). Section 101(b)(1) does not establish a nondiscretionary duty; it is a statement ofpurpose-a purpose that USEPA is
not disregarding in this action. the area has attained theprimary ozone standard, a standard designed to protect public health with an adequate margin ofsafety. (see section 109(b)(1)). USEPA's action does not relax any of the requirements that have led to the attainment ofthe standard. Rather, its action has the effect ofsuspending requirements, for additional pollution reductions, above and beyond those that have resulted in the attainment ofthe health-based standard.

(21) Comm ent:A commentor asserts that USEPA's action violates the Administrative Procedure Act and the CAA through its reliance on unpublished memoranda ofJohn Calcagni and John Seitz and the General Preamble for the Implementation of Title I ofthe Clean Air Act Amendments of 1990, 57 FR 13498 (April 16, 1992). According to the commentor,reliance

on those documents is inappropriate and illegal since those documents were issued without opportunity for notice and comment and arenot enforceable regulations. (21)Response:USEPA's reference to and reliance on those documents, all of which are either published or publicly available and a part ofthe record ofthis rulemaking, is in no way illegal under provisions ofeither the CAA or the Administrative Procedures Act. (The
commentor cited no specific provisions ofeither act).USEPA agrees that such documents do not establish enforceable regulations; they do not purport to be anythingbut guidance. That is precisely why USEPA has performed this rulemaking-a notice-and-comment rulemaking to take comment on its statutory interpretations and factual determinations in order to make a binding and enforceable determination regarding the CAL area. The June 29, 1995 Federal Register notice referred to USEPA's prior policy memoranda not as binding the Agency to adopt the interpretations being proposed therein, but rather as a useful description ofthe rationale underlying those proposed interpretations. USEPA has explained the legal and factual basis for its rulemaking in the June 29, 1995 Federal Register notice and afforded thepublic

afull opportunity to comment on USEPA's proposed interpretation and determination fully consistent with the applicable procedural requirements of the Administrative Procedures Act. (The procedural requirements ofsection 307(d) ofthe CAA do not apply to this rulemaking since it is not among the rulemakings listed in section 307(d)(1).) (22) Comment:USEPA claims that, in accordance with the October 1994 Nichols memorandum, "that areas being redesignated need not comply with the requirement that a NSRprogram be approved prior to redesignation so [long] as they have an approved Prevention ofSignificant Deterioration (PSD) SIP or delegated PSD authority." 60 FRat 31439. USEPA apparently believes it can replace NSR with PSD, but the CAA does not grant the Administrator such discretion. (22) Response:The USEPA believes that the CAL area may be redesignated to attainment notwithstanding the lack ofa fully-approved NSRprogram meeting the requirements ofthe 1990 Act amendments and the absence of such an NSRprogram from the contingency plan. This view, while a departure from pastpolicy, has been set forth bythe USEPA as its new policy in

amemorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled Part DNew SourceReview (part DNSR) Requirements forAreas RequestingRedesignationto Attainment.

The USEPA believes that its decision
notto insist on a fully-approved NSR program as aprerequisite to redesignation isjustifiable as an exercise ofthe Agency's general authority to establish de minimis exceptions to statutory requirements. SeeAlabamaPowerCo. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under AlabamaPowerCo. v. Costle,the USEPAhas the authority to establish de minimis exceptions to statutory requirements where the application of the statutory requirements would be of trivial or no value environmentally.

In this context, the issue presented is whether the USEPA has the authority to establish an exception to the requirements ofsection 107(d)(3)(E) that the USEPA have fully-approved a SIP meeting all ofthe requirements applicable to the area under section 110 and part Doftitle Iofthe Act. Plainly, the NSRprovisions ofsection 110 and part D arerequirements that were applicable to the Ohio area seeking redesignation at the timeofthe submission ofthe request for redesignation. Thus, on its face, section 107(d)(3)(E) would seem to require that the State have submitted and the USEPAhave fully-approved apart D NSRprogram meeting therequirements ofthe Actbefore the areas could be redesignated to attainment.

Under the USEPA's de minimis authority, however, it mayestablish an exception to an otherwise plain statutory requirement ifits fulfillment would be oflittle or no environmental value. In this context, it is necessary to determine what would be achieved by insisting that there be afully-approved part DNSRprogram in place prior to the redesignation ofthe CAL area. Forthe followingreasons, the USEPA believes that requiringthe adoption and fullapproval ofa part D NSRprogram prior to redesignation would notbe of significant environmental value in this

case.

Ohio has demonstrated that maintenance ofthe ozone National Ambient Air Quality Standards (NAAQS) will occur even ifthe emission reductions expected to result from the part D NSRprogram do not

occur.The emission projections made by Ohio to demonstrate maintenance of the NAAQS considered growth in point

source emissions (alongwith growth for other source categories) and were premised on the assumption that the Prevention ofSignificant Deterioration (PSD)program, rather than thepart D NSR, would be in effect, during the 

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maintenance period. Under NSR, significant point source emissions growth would not occur. Michigan assumed that NSR would not apply after redesignation to attainment, and therefore, assumed source growth factors based on projected growth in the economy and in the area's population. (It should be noted that the growth factors assumed maybe overestimates under PSD, which would restrain source growth through the application ofbest available control techniques.) Thus, contrary to the assertion ofthe commentor, Ohio has demonstrated that there is no need to retain the part D NSR

as an operative program in the SIP during the maintenance period in order
to provide for continued maintenance of the NAAQS. (Ifthis demonstration had
not been made, NSR would have had to have been retained in the SIP as an operative program since it would have been needed to maintain the ozone standard.)

The otherpurpose that requiring the full-approval ofapart D NSRprogram might serve would be to ensure that NSR would become a contingency provision in the maintenance plan required for these areas by section 107(d)(3)(E)(iv) and 175A(d). These provisions require that, for an area to be redesignated to attainment, it must receive full approval ofa maintenance plan containing "such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation ofthe standard which occurs after the redesignation ofthe area as an attainment area. Such provisions shall include a requirement that the State will implement all measures with respect to the control ofthe airpollutant concerned which were contained in the SIP for the area before redesignation of the area as an attainment area." Based

on this language, itis apparent that whether an approved NSRprogram must be included as a contingency provision depends on whether it is a "measure" for the control ofthe pertinent airpollutants.

As the USEPA noted in theproposal regarding thisredesignation request, the
term "measure" is not defined in section 175A(d) and Congress utilized that term differently in different provisions ofthe Act with respect to the PSD and NSRpermitting programs. For example, in section 110(a)(2)(A), Congress required that SIPs include "enforceable emission limitations and other control measures, means, or techniques

. . . as may be necessary or appropriate to meet the applicable requirements ofthe Act." In section 110(a)(2)(C), Congress required that SIPs include "a program to provide for the enforcement ofthe measuresdescribed in subparagraph (A), andregulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to

assure thatNAAQS are achieved, including a permit program as required in parts C and D." (Emphasis added.) If the term measures as used in section 110 (a)(2)(A) and (c) had been intended
to include PSD and NSRthere would have been no point to requiring that SIPs include both measures and preconstruction review under parts C and D (PSDor NSR). Unless "measures" referred to something other than preconstruction review under parts C and D, thereference to preconstruction review programs in section 110(a)(2)(C) would be rendered mere surplusage. Thus, in section 110(a)(2) (A) and (C), it is apparent that Congress distinguished "measures" from preconstruction review. On the other hand, in other provisions ofthe Act, such as section 161, Congress appeared to include PSD within the scope ofthe term "measures."

The USEPA believes that the fact that Congress used the undefined term "measure" differently in different sections ofthe Act is germane. This indicates that the term is susceptible to

more than one interpretation and that the USEPA has the discretion to interpret itin areasonable manner in the context ofsection 175A. Inasmuch

as Congress itselfhas used the term in

amanner that excluded PSD and NSR from its scope, the USEPA believes itis reasonable to interpret "measure," as used in section 175A(d), not to include NSR. That this is areasonable interpretation is further supported by the fact that PSD, aprogram that is the corollary ofpart D NSRfor attainment
areas, goes into effect in lieu ofpart D NSR.3 This distinguishes NSRfrom other required programs under the Act, such asinspection and maintenance and

3The USEPA is not suggesting that NSR and PSD

are equivalent, butmerely that they arethe same type ofprogram. The PSD program is arequirement in attainment areas and designed to allow new

source permitting, yet contains adequate provisions
to protect the NAAQS. If anyinformation including preconstruction monitoring, indicates that an area is not continuing to meet the NAAQS after redesignation to attainment, 40 CFR part 51 appendix S (Interpretive Offset Rule) or a40 CFR 51.165(b) program would apply. The USEPA believes that in any area that is designated or redesignated as attainment under section 107, but experiences violations of theNAAQS, these provisions should beinterpreted as requiring major

new ormodified sources to obtain VOC emission offsets ofat least a 1:1 ratio, and as presumingthat 1:1 NOx offsets are necessary. See October 14, 1994 memorandum fromMary Nichols entitled Part D New Source Review (part DNSR)Requirements for AreasRequestingRedesignationtoA ttainment. Reasonably Available Control Technology (RACT) programs, which have no corollary for attainment areas. Moreover, the USEPAbelieves that those other required programs are clearly within the scope ofthe term "measure." 4

The USEPA's logic in treating part D NSRin this mannerdoes not mean that other applicable part Drequirements, including those that have been previously met and previously relied upon in demonstrating attainment, could be eliminated without an analysis demonstrating that maintenance would be protected. As noted above, Ohio has demonstrated that maintenance would be protected with PSD in effect, rather than part D NSR. Thus, the USEPA is
notpermitting part D NSRto be removed without a demonstration that maintenance ofthe standard will be achieved. Moreover, the USEPAhas not amended its policy with respect to the conversion ofother SIP elements to contingency provisions, which is that they may be converted to contingency provisions only upon a showing that maintenance will be achieved without them being in effect. Finally, as noted above, the USEPA believes that the NSR requirement differs from other requirements, and does not believe that the rationale for the NSRexception extends to other required programs.

As the USEPAhas recently changed its policy, the position taken in this action is consistent with the USEPA's
current national policy. That policy permits redesignation to proceed without otherwise required NSR programs having been fully approved and converted to contingency provisions provided that the area demonstrates, ashas been done in this
case, that maintenance will be achieved with the application ofPSDrather than part DNSR. (23) Comment:A violation does not

occur until the third "exceedance", this is deceptive and doesn't help people get information that the air is polluted. Even though .124 ppm is above the "standard" of0.12ppm; because of rounding that terrible air wouldn't even be counted as an exceedances or violation.

4The USEPA also notes that in the case ofthe Cleveland, Ohio area, allpermits to install formajor volatile organic compound (VOC) emission sources and major VOC emission sourcemodifications issued by the State in the moderate ozone nonattainment areas sinceNovember 15, 1992have complied with the 1.15 to 1.0 VOC emissions offset ratio. In addition, permits to install cannot be issued under the Prevention ofSignificant Deterioration (PSD)program unless the applicant

can demonstrate that theincreased emissions from thenew ormodified source will not result in a violation ofthe NAAQS. 

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Cleveland -Akron-Lorain's ozone monitors are not on all year. We should be monitoring year-round. We get unusual weather in northeast Ohio. We've had temperatures in the 80's during every month when we are not required bylaw to monitor. Ifwe had

aviolation during these months (we have had extreme haze then and lots of emergency room visits from respiratory patients), we have no way ofknowing,

so these days don't count, either. Iam against the redesignation ofClevelandAkron-Lorain for these reasons.

(23)Response:Published guidance (Guideline fortheInterpretationof OzoneAir QualityStandards, January 1979, EPA-450/4-79-003), which is part ofthe ozone standard by reference in 40 CFRpart 50, appendix H, notes that the stated level ofthe standard is determined by defining the number of significant figures to be used in comparison with the standard. For example, a standard level of0.12ppm
means that measurements are to be rounded to two decimal places (0.005 rounds up), and therefore, 0.125 ppm is the smallest three-decimal concentration value in excess ofthe level ofthe standard that is considered

an exceedance.

Since ozone levels decrease significantly in the colder parts ofthe year in many areas, ozone is required to be monitored at monitors only during the "ozone season" which is listed in Appendix D to 40 CFRpart 58 forOhio

as April through October. This seasonal definition was initially set in 1986 based on temperature data. Months where the monthly mean daily maximum temperature is less than 55 degrees Fahrenheit were generally excluded from the season. In ClevelandAkron-Lorain, this occurs from November through March. In different

areas ofthe country where months are cooler than 55 degrees Fahrenheit,

ozone concentrations greater than .08 ppm are unlikely to occur. In addition actual ozone monitoring data for the Cleveland-Akron-Lorain area collected from 1987 though 1994 for the months ofApril and October show only three recorded concentrations above .100 parts per million. The highest monitored concentration was .109 parts per million during October 1992. The

ozone NAAQS of.12 ppm was not exceeded in the Cleveland-Akron-Lorain

area for the months ofApril and October from 1987 though 1994. Given the generally lower temperatures ofthe other winter months compared to April and October, it is expected that these months would nothave monitored an exceedance ofthe ozone NAAQS. (24)Comment:A commenter was concerned that because ofthe redesignation to attainment the area would become exempt from congestion mitigation and air quality (CMAQ) funds which local transit agencies relied

on for new buses and expanded service thus increasing airpollution. (24)Response:The federal CMAQ program is designed to give additional money for air quality nonattainment

areas to use on transportation projects that will improve the air quality and bring the area into attainment ofthe air quality standards. The United States Department ofTransportation (USDOT) revised their CMAQ guidance on July 13, 1995, to allow redesignated areas to have a2 year transition period to insure continuity in CMAQ funding for projects which are programmed in the first 2 years ofthe transportation improvement program atthe time the

area is redesignated to attainment. Although Cleveland-Akron-Lorain will lose the additional CMAQ funds after the 2-year transitional period, the projects already programmed for funding will now be able to continue implementation. Airpollution is not expected to increase because the stricter standards for new cleaner cars, trucks and buses will help to decrease pollutant emissions. The USEPA believes the air pollution emissions will thus continue to decrease or atleast maintain the levels that have brought the area into attainment. (25)Comment:The 15% plan approved for Greater Cleveland-AkronLorain fell short ofthe required reduction because the area did not choose to do reformulated gasoline. The

area has not met this requirement and should not be redesignated.

(25)Response:USEPA determined that, based on USEPA's determination ofattainment, the requirement for a 15% reduction in volatile organic emissions in the area is no longer applicable. See the final action also contained in this final rulemaking. Since this is no longer an applicable requirement, the area is not required to meet itbefore the CAL area can be redesignated. The 15% reduction plan that was submitted for the CAL area did
not rely on reformulated gasoline to achieve the emissions reduction.

(26)Comment:Several commenters believed there was a potential conflict of interest when the same entity (i.e. the City ofCleveland) does the monitoring and also applies for redesignation.

(26)Response:The ambient air data collected by State and local agencies are required to meet very specific quality

assurance measures that are detailed in 40 CFR 58.10 and appendix A. The 

### USEPAQuality Assurance manual gives

more detailed guidance on operation of ambient airmonitors. The USEPA auditsthe State and local agencies on a regular basis to ascertain thatthe appropriate quality assurance measures
arebeingimplemented. In the case of the Cleveland local agency, the State air agency (OhioEnvironmental Protection Agency) isresponsible for conducting accuracy audits on the airmonitoring equipmentbeing operated bythe Cleveland localagency. In addition, the USEPAconducts audits ofthe air monitoringnetwork. Precision and Accuracy audits are reported on a regular basis to the USEPA and recorded in thenational AIRS data bank.This information is available tothe public. Thisoversight ensures thequality ofthe datarelied upon forredesignation.
III.RulemakingAction

On June 29, 1995, USEPAproposed to determine thatthe 15% plan, attainment demonstration, and contingency

measures plan forthe Cleveland-AkronLorain area areno longer applicable requirements, since the area has attained the ozone NAAQS. The USEPA received several comments pertaining to theproposed rulemaking. These comments were considered and responses aredetailed in the above section oftherulemaking on the determination ofattainment. USEPA believes thatthe determination of attainment is stillwarranted and is takingfinal action todetermine thatthe requirements for a 15% emissions reduction plan, attainment demonstration, and contingency

measures plan arenot applicable at this time.

On June 15, 1995, USEPAproposed to approve the OEPA request for redesignation to attainment and the maintenance plan forozone for theCAL moderate nonattainment area counties ofLorain, Cuyahoga, Lake, Ashtabula, Geauga,Medina, Summit, and Portage. TheUSEPA received about 50 comment letterspertaining to theproposed rulemaking. The comments were considered and responses aredetailed in the above section oftherulemaking

on the ozone redesignation request. The USEPAbelieves that theredesignation requirements ofSection 107(d) are satisfied and istakingfinal action to approve therequests forredesignation to attainment and the maintenance plan for the CAL counties ofLorain, Cuyahoga, Lake,Ashtabula, Geauga, Medina, Summit, and Portage.
IV. BoilerplateRegulatoryLanguage

USEPA finds that there isgood cause for thisredesignation, SIPrevision, and 

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determination ofattainment tobecome effective immediately upon publication because a delayed effective date is unnecessary due tothe nature ofa redesignation to attainment, determination ofattainment, which exempts the areas from certain Clean Air Act requirements that would other wise apply toit. The immediate effective date for thisredesignation is authorized underboth 5 U.S.C. 553(d)(1), which provides that rulemaking actions maybecome effective less than 30 days after publication iftherule "grants or recognizes an exemption orrelieves a restriction" and section 553(d)(3), which allows an effective date less than 30 days after publication "as otherwise provided by the agency for good cause found and published with therule."

Nothingin this action should be construed as permitting, allowing or establishing a precedent forany future request forrevision toany SIP. USEPA shall consider each request forrevision to the SIP in lightofspecific technical, economic, and environmental factors and in relation torelevant statutory and regulatory requirements.

This action has been classified as a Table 3action for signature by the Regional Administratorunder the procedures published in theFederal Register on January 19, 1989 (54FR 2214-2225), asrevised by aJuly 10, 1995, memorandum from MaryNichols, Assistant Administrator forAir and Radiation. The Office ofManagement and Budget (OMB) has exempted this regulatory action fromExecutive Order 12866 review.

Under theRegulatory Flexibility Act, 5 U.S.C.600 etseq., USEPA must prepare a regulatory flexibility analysis assessing theimpact ofanyproposed or finalrule on small entities (5 U.S.C. 603 and 604).Alternatively, USEPA may certify that therule will not have a significant impact on a substantial number ofsmall entities. Small entities include small businesses, small not-forprofit enterprises, and government entities withjurisdiction over populations ofless than 50,000.

Redesignation ofan area to attainment under section 107(d)(3)(E) ofthe CAA does not impose any newrequirements

on smallentities. Redesignation is an action that affects the status ofa geographical area and does not impose anyregulatory requirements on sources. The Administrator certifies that the approval oftheredesignation request will not affect a substantial numberof smallentities.

SIP approvals under section 110and subchapter I,Part Dofthe CAA do not create any newrequirements, but simply approve requirements that the State is already imposing.Therefore, because the federal SIP-approval does
not impose any new requirements, I certify that itdoes not have a significant impact on any small entities affected. Moreover, due to the nature ofthe federal-state relationship under the CAA, preparation ofaregulatory flexibility analysis would constitute federal inquiry into the economic reasonableness ofstate action. The CAA forbids USEPA to base its actions concerning SIPs on such grounds. UnionElectricCo. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42U.S.C. 7410(a)(2).

Under sections 202, 203, and 205 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, USEPA
must undertake various actions in association with proposed or final rules that include a Federal mandate that may result in estimated costs of$100 million

or more to the private sector, or to State, local, or tribal governments in the aggregate.

Through submission ofthe state implementation plan or plan revisions approved in this action, the State and any affected local or tribal governments have elected to adopt theprogram provided for under section 175A ofthe Clean Air Act. The rules and commitments being proposed for approval in this action may bind State, local and tribal governments to perform certain actions and also may ultimately lead to the private sector being required to perform certain duties. To the extent that the rules and commitments being proposed for approval by this action will impose or lead to the imposition of any mandate upon the State, local or tribal governments either as the owner
or operator ofa source or as aregulator,

or would impose or lead to the imposition of any mandate upon the private sector, USEPA's action will impose no new requirements; such

sources are already subject to these requirements under State law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. The USEPA has also determined that this action does not include a mandate that may result in estimated
costs of$100 million or more to State, local, or tribal governments in the aggregate or to the private sector.

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by July 8, 1996. Filing apetition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicialreview 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).)

ListofSubjects in 40 CFRPart52

Air pollution control, Nitrogen Oxides, Ozone, Volatile organic compounds.

40 CFRPart81

Air pollution control.
Dated:April 4, 1996. Valdas V. Adamkus, RegionalAdministrator.

Chapter I,Title 40 ofthe Code of Federal Regulations is amended as follows:



### PART52-[AMENDED]

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

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

2. Section 52.1885 is amended by addingparagraphs (b)(10) and (w) to read as follows: 

### §52.1885 Control Strategy: Ozone.

(b)* * * (9) Lorain, Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit, and Portage Counties.

(w) Determination-USEPA is determining that, as ofMay 7, 1996, the Cleveland-Akron-Lorain ozone nonattainment area (which includes the Counties ofAshtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit) have attained the ozone standard and that the reasonable further progress and attainment demonstration requirements ofsection 182(b)(1) and related requirements ofsection 172(c)(9) ofthe Clean Air Actdo not apply to the

area.



### PART81-DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES-OHIO

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

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

2. In §81.336 the ozone table is amended by revising the entry forthe Cleveland-Akron-Lorain Area to read as follows: 

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## 20473

§81.336 Ohio.

OHIO-OZONE
Designation Classification Designated area Date 1 Type Date 1 Type

Cleveland-Akron-Lorain Area

................................................................... M ay 7, 1996

....... Attainment. Ashtabula County Cuyahoga County Geauga County Lake County Lorain County Medina County Portage County Summit County

This date is November 15, 1990 unlessotherwise noted.

[ERDoc. 96 11133 Filed 5 6 96; 8:45 am]

BILLING CODE 6560-50-P



### 40 CFR Part 300 [FRL-5468-7]

National Oiland Hazardous Substances Contingency Plan; National PrioritiesList Update

AGENCY: Environmental Protection 

### Agency. ACTION: Notice ofDeletion ofthe East 

### Bethel Demolition Landfill Superfund Site from theNational Priorities List (NPL).

SUMMARY: The Environmental Protection 

### Agency (EPA) announces the deletion of theEast Bethel Demolition Landfill site in Anoka, Minnesota from theNational Priorities List (NPL). TheNPL is Appendix B of40 CFRPart 300 which is theNational Oil and Hazardous Substances Contingency Plan (NCP), which EPA promulgated pursuant to Section 105 ofthe Comprehensive Environmental Response, Compensation, and Liability Act of1980 (CERCLA), as amended. EPA and the StateofMinnesota have determined that all appropriate Fund-financed responses under CERCLA have been implemented and that no further responseby responsible parties under CERCLA is appropriate. EFFECTIVE DATE:May 7, 1996. FOR FURTHER INFORMATION CONTACT: Rita 

### Garner-Davis at (312) 886-2440, Associate Remedial Project Manager, Superfund Division, U.S.EPA-Region V, 77West Jackson Blvd., Chicago, IL 60604. Information on the siteis available at: EPA Region V docket room atthe above address and atthe East Bethel City Hall and the Minnesota Pollution Control Agency Public Library, 520 Lafayette RD. St. Paul, MN 55155-4194. 

### SUPPLEMENTARY INFORMATION: The site to be deleted from the NPLis the East Bethel Demolition Landfill Site in Anoka County, Minnesota. A Notice of Intent to Delete was published March 13, 1996, (61 FR 10298) for this site. The closing date for comments on the Notice ofIntent to Delete was April 12, 1996. EPA received no comments.

The EPA identifies sites which appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL asthe list ofthose sites. Sites on the NPLmay be the subject ofHazardous Substance Response Trust Fund-financed remedial actions. Any site deleted from the NPL remains eligible for Fund-financed remedial actions in the unlikely event that conditions atthe site warrant such action. Section 300.425(e)(3) ofthe NCP
states that Fund-financed actions may be taken at sites deleted from the NPL in the unlikely event that conditions at the site warrant such action. Deletion of

a site from the NPL does not affect responsible party liability or impede Agency efforts to recover costs associated with response efforts.


### ListofSubjects in 40 CFRPart300

Environmental protection, Hazardous Waste, Chemicals, Hazardous substances, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Dated:April 22, 1996. David A. Ulirich, ActingRegionalAdministrator,U.S. EPA, Region V.

40 CFRpart 300 is amended as follows:



### PART300-[AMENDED]

1. The authority citation for part 300 continues to read as follows:

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601 9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp.; p.351; E.O. 12580, 52 FR 2923, 3CFR, 1987 Comp.;p. 193. Appendix B-[Amended]

2. Table 1ofappendix B to part 300 is amended by removing the EastBethel Demolition Landfill Site, East Bethel Township, Minnesota.P [ER Doc. 96 11218 Filed 5 6 96; 8:45 am]

BILLING CODE 6560-50-P



### 40CFR Part 355 [Docket300 PQ-R2; FRL-5468-5] RIN 2050-AD50 Extremely Hazardous Substances

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: Today, EPA is implementing

one ofits regulatory reform commitments set forth in its June 1, 1995, Report to the President. EPA is takingfinal action on two proposed rules that modify the extremely hazardous substances (EHS) list and reportable quantities under section 302 ofthe Emergency Planning and Community Right-to-Know Act of 1986

HeinOnline -- 61 Fed. Reg. 20473 1996