[Federal Register Volume 62, Number 221 (Monday, November 17, 1997)]
[Rules and Regulations]
[Pages 61241-61247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30136]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[OH107-3; KY94-9717a; FRL-5922-5]


Clean Air Act Promulgation of Extension of Attainment Date for 
Ozone Nonattainment Area; Ohio; Kentucky

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: On May 27, 1997, USEPA extended the attainment date for the 
Cincinnati-Hamilton interstate, moderate ozone nonattainment area from 
November 15, 1996 to November 15, 1997 utilizing ``direct final 
rulemaking'' procedures. On July 28, 1997, USEPA withdrew the direct 
final rule due to the receipt of adverse comments. In this action USEPA 
is responding to public comments received in response to the proposed 
rule and announcing that it is extending the attainment date for the 
Cincinnati-Hamilton interstate moderate ozone nonattainment area from 
November 15, 1996 to November 15, 1997. This extension is based in part 
on monitored air quality readings for the national ambient air quality 
standard (NAAQS) for ozone during 1996. The USEPA is also revising the 
table in the Code of Federal Regulations concerning ozone attainment 
dates in this area.

EFFECTIVE DATE: This extension becomes effective December 17, 1997.

ADDRESSES: The Kentucky SIP revision is available for inspection at the 
following addresses:

Environmental Protection Agency, Atlanta Federal Center, Region 4 Air 
Planning Branch, 61 Forsyth Street S.W., Atlanta, Georgia 30303-3104.
Natural Resources and Environmental Protection Cabinet, 803 Schenkel 
Lane, Frankfort, Kentucky 40601.

    The Ohio SIP revision is available for inspection at the following 
addresses:

Regulation Development Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois, 60604.
Ohio EPA, Division of Air Pollution Control, 1800 Watermark Drive, 
Columbus, OH 43215.

FOR FURTHER INFORMATION CONTACT: Joseph M. LeVasseur at the USEPA 
Region 4 address listed above or Randolph O. Cano at Region 5 at the 
address listed above. (It is recommended that you contact Joseph M. 
LeVasseur at (404) 562-9035 before visiting the Region 4 office.) (It 
is recommended that you contact Randolph O. Cano at (312) 886-6036 
before visiting the Region 5 office.)

SUPPLEMENTARY INFORMATION:

Request for Attainment Date Extension for the Cincinnati-Hamilton 
Metropolitan Moderate Ozone Nonattainment Area

    On November 7, 1996, the Ohio Environmental Protection Agency (Ohio 
EPA) requested a one-year attainment date extension for the Ohio 
portion of the Cincinnati-Hamilton moderate ozone nonattainment area 
which consists of Hamilton, Butler, Clermont and Warren Counties in 
Ohio. Similarly, on November 15, 1996, the Kentucky Natural Resources 
and Environmental Protection Cabinet (KNREPC) requested

[[Page 61242]]

a one-year attainment date extension for the Kentucky portion of the 
Cincinnati-Hamilton moderate ozone nonattainment area which consists of 
Kenton, Boone and Campbell Counties. Since this area was classified as 
a moderate ozone nonattainment area, the statutory ozone attainment 
date, as prescribed by section 181(a) of the Clean Air Act (CAA), is 
November 15, 1996. The submittals requested that the attainment date be 
extended to November 15, 1997. On May 27, 1997 (62 FR 28634), USEPA 
extended the attainment date for the Cincinnati-Hamilton interstate, 
moderate ozone nonattainment area from November 15, 1996 to November 
15, 1997 utilizing ``direct final rulemaking'' procedures. On July 28, 
1997 (62 FR 40280), USEPA withdrew the direct final rule due to the 
receipt of adverse comments. In this action USEPA is responding to 
public comments received in response to the proposed rule and 
announcing that it is extending the attainment date for the Cincinnati-
Hamilton interstate moderate ozone nonattainment area from November 15, 
1996 to November 15, 1997. This extension is based in part on monitored 
air quality readings for the ozone national ambient air quality 
standard (NAAQS) during 1996.

CAA Requirements and USEPA Actions Concerning Designation and 
Classification

    Section 107(d)(4) of the CAA requires the States and USEPA to 
designate areas as attainment, nonattainment, or unclassifiable for 
ozone as well as other pollutants for which national ambient air 
quality standards (NAAQS) have been set. Section 181(a)(1) requires 
that ozone nonattainment areas be classified as marginal, moderate, 
serious, severe, or extreme, depending on their air quality. In a 
series of Federal Register documents, USEPA completed this process by 
designating and classifying all areas of the country for ozone. See, 
e.g., 56 FR 58694 (Nov. 6, 1991); 57 FR 56762 (Nov. 30, 1992).
    Areas designated nonattainment for ozone are required to meet 
attainment dates specified under the CAA. The Cincinnati-Hamilton ozone 
nonattainment area was designated nonattainment and classified moderate 
for ozone pursuant to 56 FR 58694 (Nov. 6, 1991). By this 
classification, its attainment date became November 15, 1996. A 
discussion of the attainment dates is found in 57 FR 13498 (April 16, 
1992) (the General Preamble).

CAA Requirements and USEPA Actions Concerning Meeting the Attainment 
Date

    Section 181(b)(2)(A) requires the Administrator, within six months 
of the attainment date, to determine whether ozone nonattainment areas 
attained the NAAQS. For ozone, USEPA determines attainment status on 
the basis of the expected number of exceedances of the NAAQS over the 
most recent three-year period. See General Preamble, 57 FR 13506. In 
the case of moderate ozone nonattainment areas, the three-year period 
is 1994-1996. CAA section 181(b)(2)(A) further states that, for areas 
classified as marginal, moderate, or serious, if the Administrator 
determines that the area did not attain the standard by its attainment 
date, the area must be reclassified upward (bumped-up).
    A review of the actual ambient air quality ozone data from the 
USEPA Aerometric Information Retrieval System (AIRS), shows that a 
number of air quality monitors located in the Cincinnati-Hamilton ozone 
nonattainment area recorded exceedances of the NAAQS for ozone during 
the three-year period from 1994 to 1996. At one of these monitors, 
Warren County, OH, the number of expected exceedances was 2.0 per year, 
for 1994 and 1995. Because these exceedances averaged more than 1.0 
over the three-year period, they constitute a violation of the ozone 
NAAQS for the Cincinnati-Hamilton area during this three-year period. 
Thus, the area did not meet the November 15, 1996 attainment date.
    However, CAA section 181(a)(5) provides an exemption from these 
bump-up requirements. Under this exemption, USEPA may grant up to two, 
one-year extensions of the attainment date under specified conditions:
    Upon application by any State, the Administrator may extend for one 
additional year (hereinafter referred to as the ``Extension Year'') the 
date specified in table 1 of paragraph (1) of this subsection if--
    (A) The State has complied with all requirements and commitments 
pertaining to the area in the applicable implementation plan, and
    (B) No more than one exceedance of the NAAQS level for ozone has 
occurred in the area in the year preceding the Extension Year.
    No more than two one-year extensions may be issued for a single 
nonattainment area.
    The USEPA interprets this provision to authorize the granting of a 
one-year extension under the following minimum conditions:
    (1) The State requests a one-year extension,
    (2) All requirements and commitments in the USEPA-approved SIP for 
the area have been complied with, and
    (3) The area has no more than one measured exceedance of the NAAQS 
at each monitor in the area during the year that includes the 
attainment date (or the subsequent year, if a second one-year extension 
is requested).

      Table 1.--Exceedances of the Ozone Air Quality Standard in the Cincinnati-Hamilton Area 1994 to 1996      
----------------------------------------------------------------------------------------------------------------
                                                                                        Exceedances    Expected 
                   Site                              County/state              Year       measured    exeedances
----------------------------------------------------------------------------------------------------------------
Oxford\1\.................................  Butler, OH...................         1994            0          0.0
Middletown................................  Butler, OH...................         1994            0          0.0
Middletown................................  Butler, OH...................         1995            2          2.0
Middletown................................  Butler, OH...................         1996            1          1.0
Hamilton..................................  Butler, OH...................         1994            0          0.0
Hamilton..................................  Butler, OH...................         1995            1          1.0
Hamilton..................................  Butler, OH...................         1996            0          0.0
4430 SR 222...............................  Clermont, OH.................         1994            1          1.0
4430 SR 222...............................  Clermont, OH.................         1995            1          1.0
4430 SR 222...............................  Clermont, OH.................         1996            0          0.0
11590 Grooms Rd...........................  Hamilton, OH.................         1994            0          0.0
11590 Grooms Rd...........................  Hamilton, OH.................         1995            0          0.0
11590 Grooms Rd...........................  Hamilton, OH.................         1996            0          0.0
6950 Ripple Rd............................  Hamilton, OH.................         1994            0          0.0
6950 Ripple Rd............................  Hamilton, OH.................         1995            1          1.0
6950 Ripple Rd............................  Hamilton, OH.................         1996            0          0.0

[[Page 61243]]

                                                                                                                
Cincinnati................................  Hamilton, OH.................         1994            0          0.0
Cincinnati................................  Hamilton, OH.................         1995            1          1.0
Cincinnati................................  Hamilton, OH.................         1996            0          0.0
Lebanon...................................  Warren, OH...................         1994            2          2.0
Lebanon...................................  Warren, OH...................         1995            2          2.0
Lebanon...................................  Warren, OH...................         1996            0          0.0
KY 338....................................  Boone, KY....................         1994            0          0.0
KY 338....................................  Boone, KY....................         1995            0          0.0
KY 338....................................  Boone, KY....................         1996            0          0.0
Dayton....................................  Campbell, KY.................         1994            0          0.0
Dayton....................................  Campbell, KY.................         1995            0          0.0
Dayton....................................  Campbell, KY.................         1996            1          1.0
Covington.................................  Kenton, KY...................         1994            0          0.0
Covington.................................  Kenton, KY...................         1995            1          1.0
Covington.................................  Kenton, KY...................         1996            1         1.0 
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\1\ This site was shutdown after 1994, so no data are available for 1995 and 1996.                              

    In both extension requests Ohio and Kentucky indicated that they 
satisfied the attainment date extension criteria in as much as no 
monitors in the Cincinnati-Hamilton area monitored more than one 
exceedance each during 1996. The 1996 monitoring data has been quality 
controlled and quality assured, as has been the data for 1994 and 1995. 
These data are summarized in Table 1. An examination of the data 
indicates that three of the ten monitors recorded one exceedance each 
during 1996.
    Both Ohio and Kentucky certified that they are implementing the 
ozone State Implementation Plans (SIPs) for the area. USEPA conducted a 
review of the ozone SIPs, as contained in 40 CFR part 52 and USEPA's 
electronic version of the SIP, and believes that the States are 
implementing the USEPA approved ozone SIPs. Additionally, USEPA has not 
made a finding of failure to implement the SIPs for the area. This 
supports the States' certification that the area is implementing its 
SIPs.
    Ohio is implementing the requirements of the approved Ozone SIP. 
Regarding implementation of the vehicle inspection and maintenance (I/
M) program, Ohio enacted legislation authorizing the I/M program and 
adopted regulations for the operation of the program. The USEPA 
approved the program on April 4, 1995 (see 60 FR 16989). The State of 
Ohio awarded a contract for program operations, and on January 2, 1996, 
Ohio began testing vehicles in the Cincinnati area. The enactment of 
legislation, adoption of regulations, and the capital investment in 
structures and equipment to perform testing meets the implementation 
test. While the Cincinnati program has been suspended due to program 
performance problems, Ohio is in compliance with CAA implementation 
requirements. The Ohio Stage II vapor recovery program is being 
implemented in the Cincinnati area. The State is also collecting 
emissions statements from sources in the area. The State is 
implementing its SIP for conformity. Also, the area is implementing its 
approved SIP which includes a program for controlling volatile organic 
compound (VOC) emissions from stationary sources. This includes the 
Non-Control Technique Guideline Reasonably Available Control Technique 
requirements approved within the past several years for the following 
plants in the Ohio portion of the area: Steelcraft Manufacturing Co., 
Chevron USA Inc., International Paper Co., Morton Thiokol, Armco Steel 
Co., Formica Corp., PMC Specialties Group, Hilton Davis Co., Monsanto 
Co., and Proctor and Gamble.
    Kentucky is implementing the requirements of its approved ozone SIP 
for the Cincinnati-Hamilton interstate area. The Kentucky portion of 
the area is implementing its program for controlling oxides of nitrogen 
(NO<INF>X</INF>) and VOC emissions from stationary sources.

Proposed Rule and Responses to Comments

    The USEPA published a direct final rule to approve the attainment 
date extension request for the Cincinnati-Hamilton moderate ozone 
nonattainment area in the May 27, 1997 (62 FR 28634), Federal Register. 
This action was accompanied by a proposed rule (62 FR 28650). Because 
USEPA received comments adverse to this action, the direct final rule 
was withdrawn. The comments received are summarized below along with 
USEPA's responses. Copies of all comments have been placed in the 
docket file and are available for public review.
    Comment 1: Ohio has failed to comply with the CAA implementation 
requirements under sec. 181 (a)(5)(B): ``no more than one exceedance of 
the NAAQS level for ozone has occurred in the area in the year 
preceding the Extension Year.'' The USEPA's proposal states that ``a 
review of the ozone data for the area indicates the area has monitored 
no more than one exceedance of the NAAQS at any monitor during 1996.'' 
Section 181 (a)(5)(B) states that one exceedance be allowed in the 
area, not one exceedance be allowed per monitor.
    USEPA Response: Appendix H to Part 50.9 of Title 40 of the Code of 
Federal Regulations provides for review of the data from each monitor 
individually as opposed to adding up all of the individual monitor 
exceedances across the region to determine whether or not the area 
meets the air quality test for an extension. This is consistent with 
the process that USEPA uses to evaluate whether or not an area attained 
the ozone standard by its attainment date. For instance in the 
Cincinnati/Northern Kentucky area, USEPA reviewed the monitoring data 
collected for 1994 through 1996 at each of the ten monitors in the 
seven county multi-state area to determine whether or not the area 
attained the ozone standard by November 15, 1996. This review showed 
that the Lebanon monitor located in Warren County was in violation of 
the ozone standard. This resulted in the entire multi-state area having 
failed to attain the ozone standard by 1996.
    In determining whether or not to extend the attainment date from 
1996 to 1997, USEPA reviewed the ozone

[[Page 61244]]

monitoring data for 1996 at each monitoring site in the area to see if 
any of the sites recorded more than one exceedance of the ozone 
standard during 1996 (see table 1). The results of this review showed 
that while three of the monitors recorded an exceedance during 1996, 
none of the monitors recorded more than one exceedance. The monitors' 
exceedances were not added up to see if they were more than one, which 
is consistent with how USEPA evaluates data to determine if an area 
attained the standard by 1996. Therefore, the Cincinnati/Northern 
Kentucky area meets the monitoring requirements for an extension to 
November 15, 1997.
    Comment 2: A fourth exceedance in three years was monitored at the 
Middletown monitoring site. Therefore, the area is in violation of the 
NAAQS for ozone and now qualifies for serious nonattainment so it does 
not meet the requirements for an extension.
    USEPA Response: The criteria in section 181(a)(5) of the CAA 
requires that in order for an area to be eligible for an extension not 
more than one exeedance of the NAAQS for ozone may be monitored in the 
year prior to the extension year. The year prior to the extension year, 
in this case, is 1996. The ambient air monitoring data for the area 
shows that not more than one exeedance occurred in 1996 at any 
monitoring site in the area (see table 1). Therefore, the area 
satisfies the air quality requirements for an extension. The 
preliminary air monitoring data for 1997 shows no indication that any 
monitor recorded more than one exceedance.
    Comment 3: Section 181 (a)(5) states that an extension may be 
granted if ``(A) the State has complied with all requirements and 
commitments pertaining to the area in the applicable implementation 
plan.'' The State committed to an I/M program in their submitted SIP. 
The I/M program began, but was suspended on August 20, 1996, and is not 
expected to resume until at least after the 1997 ozone season. 
Additionally, the I/M program has not yet made a full cycle (a full 
cycle takes two years to complete). No program was implemented that 
would take the place of the 18 ton/day reduction which the I/M program 
was to provide.
    USEPA Response: Ohio is implementing the I/M requirements of the 
SIP. The State of Ohio awarded a contract for program operations, and 
on January 2, 1996, Ohio began testing vehicles in the Cincinnati area. 
The enactment of legislation, adoption of regulations, and the capital 
investment in structures and equipment to perform testing meets the 
implementation test.
    The State of Ohio has been working to resume automobile testing in 
the Cincinnati area. The program was suspended, due to program 
performance requirements. However, the State has been actively working 
to get the program back up and running in the area. It is reasonable to 
allow the State the opportunity to improve the performance of the 
program and to allow sufficient time to get the program operational 
again. It is expected that the program will be operational in January 
1998.
    Comment 4: The extension proposal states that Stage II vapor 
recovery program is fully implemented, however, according to the 
Hamilton County Department of Environmental Services approximately 225 
warning letters are issued annually to facilities whose vapor recovery 
devices were delinquent upon inspection. Since the area only has about 
500 facilities, it is likely not achieving the required reductions.
    USEPA Response: Ohio has implemented the Stage II gasoline vapor 
control program in the Ohio portion of the Cincinnati ozone 
nonattainment area. Subsequent to the beginning of the program, 
inspections have been carried out by the local Department of 
Environmental Services (DOES). These inspections have uncovered a 
number of deficiencies at some of the facilities inspected prompting 
warning letters to facility owners. The warning letters represent a 
concerted effort on the part of the DOES to encourage full compliance 
with requirements of the Stage II program. The DOES sent 291 warning 
letters to gasoline dispensing facilities for a number of different 
deficiencies. The warning letters do not necessarily mean that the 
facility is not complying with all of the required elements of the 
Stage II rule. Of all of the letters sent, 143 letters were sent to 
stations because of recordkeeping deficiencies as opposed to a control 
equipment problem. Of the remaining 148 letters, there were 431 
physical problems such as a leaking nozzle or damaged hoses, cited out 
of approximately 10,000 gasoline dispensing nozzles in the four Ohio 
counties. Some of the nozzles, for example, were cited for multiple 
defects. These deficiencies represent 4.3 percent or less of the 
nozzles having some type of problem. This indicates that for the vast 
majority of the facilities visited, the Stage II control equipment is 
operational and the stage II program is being adequately implemented in 
the area.
    Comment 5: The interstate area continues to violate the standard 
while claiming its Transportation Improvement Program (TIP) will meet 
the standards. The Ohio Indiana Kentucky Regional Planning Commission 
predicts that the area's TIP will conform, but fails to meet the 
standard each year. This is perhaps due to the use of outdated data and 
modeling (from the 1960's) for determining conformity with the TIP.
    USEPA Response: The CAA requires the TIP to conform to the SIP. For 
the Cincinnati/Northern Kentucky area this means that the area must 
perform a build/no build analysis on its transportation plan to show 
that its volatile organic compound (VOC) and oxides of nitrogen 
emissions (NOx) will not increase if the transportation projects are 
built. Additionally as part of this conformity demonstration the 
emissions resulting from building projects outlined in the TIP must be 
shown not to exceed the emissions levels that are planned for in the 
SIP. For Cincinnati/Northern Kentucky this calls for comparing the 
projected TIP emissions to the emissions in the 15% rate of progress 
(ROP) plan submitted by the State of Ohio to USEPA. The ROP plan 
provides for an emissions reduction in VOC that the area is required to 
meet on its way toward achieving the NAAQS. This level of emissions 
will result in improved air quality, but not necessarily air quality 
that will attain the NAAQS. The current SIP does not provide for the 
reductions or a specific emissions level (attainment target) in order 
to reach attainment of the NAAQS. Until this level is set the TIP is 
only required to meet the Rate of Progress (ROP) emissions targets and 
the build/no build test. The State has been implementing its SIP for 
conformity in the Cincinnati area by ensuring that the TIP meets the 
ROP test. Therefore, the area satisfied the SIP implementation 
requirement for receiving an attainment date extension.
    While the interstate area is in violation of the standard, it is 
eligible for an attainment date extension because it meets the air 
quality test of no more than one exceedance at each monitor in the 
area.
    Comment 6: The proposed extension does not include any requirements 
that will bring the area into compliance. Therefore, it is not 
reasonable to expect that a one-year extension will improve the area's 
air quality.
    USEPA Response: Section 181(a)(5) of the CAA authorizes the 
Administrator to provide a one-year extension of time to attain the 
ozone NAAQS upon State application as long as two requirements are met. 
The State must have complied with all requirements and commitments 
pertaining to the area in the applicable

[[Page 61245]]

implementation plan. No more than one exceedance of the NAAQS level may 
have occurred in the extension area in the year proceeding the 
extension year. A second one-year extension may be granted if the 
requirements can be met the following year.
    Congress likely intended the extension year as a period to evaluate 
the effectiveness of the control strategy prior to developing 
additional emission control measures. Over the course of the extension 
year, the Federal Motor Vehicle Emissions Control Program (FMVECP) will 
reduce mobile source emissions as older, more polluting motor vehicles 
were replaced by newer, less polluting motor vehicles. Providing an 
additional year for the FMVECP to operate will provide sufficient 
additional emission reductions bringing the area closer toward 
achieving attainment.
    Comment 7: The scientific and medical evidence shows that levels of 
ozone in the area are unhealthy. The purpose of the CAA is to protect 
the environment and public health, and to prevent damage from air 
pollution. If the USEPA grants the area an extension, it would fail to 
enforce the CAA, and betray its mission to protect human health and the 
environment.
    USEPA Response: As stated above, section 181(a)(5) authorizes the 
Administrator to grant a one-year extension of the ozone attainment 
date upon application by the State if the two conditions discussed 
above are met. In granting such an extension, the Administrator is 
clearly within the scope of authority granted him by the CAA. In as 
much as the extension is authorized by the CAA, it should be considered 
consistent with the goals and objectives of the CAA. The extension may 
allow the area to reach attainment without incurring the additional 
costs that would result from reclassification to a serious area.
    Comment 8: The commenter states that an extension can only be 
granted upon state submittal of an approvable 15% plan. The areas 
current 15% plan is no longer valid because its I/M program has been 
suspended. The commenter requests further explanation of the suspension 
and a schedule for reimplementing the I/M program prior to any final 
action on the attainment date extension.
    USEPA Response: In order to be granted an extension, the States are 
required to implement their SIPs for the Cincinnati/Northern Kentucky 
area. Neither Ohio nor Kentucky has 15% plans that are federally 
approved into the State Implementation Plans for the area. Therefore, 
the status of the 15% plan is not relevant to the question of whether 
or not the States are implementing their SIP since it is not part of 
the federally approved SIP. In regards to the I/M program, which is a 
part of the federally approved SIP for Ohio, it is expected that the 
program will be operational in January 1998. The State is actively 
working to improve the performance of the program and to restart the I/
M program.
    Comment 9: Implementation of NO<INF>X</INF> Reasonably Available 
Control Technology (RACT) for major sources in the Ohio portion of the 
nonattainment area is over a year late. Concerns regarding this 
tardiness have been repeatedly expressed in letters addressed to USEPA. 
New York State Department of Environmental Conservation requests that 
pertinent NO<INF>X</INF> requirements of the CAA be addressed 
expeditiously through revisions to the Ohio SIP.
    USEPA Response: USEPA responded to the letters from the State of 
New York in three letters dated October 10, 1996, October 30, 1996, and 
January 17, 1997. In USEPA's correspondence with the State of New York, 
USEPA stated that it would publish a proposed rule in the Federal 
Register to provide the community with an opportunity to comment on 
removing the Cincinnati area's monitoring-based NO<INF>X</INF> waiver 
and to comment on what ``reasonable time'' may be necessary to allow 
major stationary sources subject to the reasonably available control 
technology requirements to purchase install and operate the required 
controls.
    Along with the USEPA's efforts in this regard, it should be noted 
that on October 10, 1997, USEPA Administrator Carol Browner signed a 
proposed rulemaking to require emissions reductions, including 
NO<INF>X</INF>, in Ohio and twenty-one other states in order to reduce 
the effects on attainment caused by the interstate transport of ozone, 
which is clearly the issue that New York in its correspondence sought 
to have the USEPA address. The proposal reiterates USEPA's view that 
ozone pollution is a regional as well as a local problem. As USEPA has 
pointed out to New York in it's response letters, the State's concerns 
are more appropriately addressed through a process dealing with 
resolving the regional ozone pollution problem, particularly long-range 
transport. However, section 182(f), which authorizes the granting of 
NO<INF>X</INF> waivers, focuses only on the effects of reducing 
NO<INF>X</INF> in local nonattainment areas, like Cincinnati, while the 
provisions of section 110(a)(2)(D), the main statutory basis for the 
proposed action, are specifically intended to address the kinds of 
interstate problems exemplified by long-range ozone transport. The 
USEPA notes that the requirements of the proposed ``SIP call'' action 
if finalized would apply both to areas with approved NO<INF>X</INF> 
waiver petitions and areas without such petitions. That is, any 
nonattainment area with NO<INF>X</INF> waiver petitions approved by 
USEPA in the past or in the future are not proposed to be exempt from 
that action.
    Comment 10: A commenter stated that the area should not be granted 
an extension because of existing air pollution problems that cause 
adverse health effects. Emission controls should be more strict. The 
area should not be given more time to comply because it is not 
enforcing current rules, and is not doing anything to solve current air 
pollution problems.
    USEPA Response: As stated above, the one-year extension is 
authorized by the CAA for areas that meet the extension requirements. 
This gives the area an additional year to realize the benefits of the 
controls that are currently in place and the effects FMVECP on reducing 
automobile emissions. The CAA allows areas that qualify for an 
extension to request an attainment date extension instead of being 
reclassified upward to serious and implementing more emission controls. 
The area is enforcing its current controls as described in the above 
responses.

USEPA Final Action

    USEPA has determined that the requirements for a one-year extension 
of the attainment date have been fulfilled as follows:
    (1) Ohio and Kentucky have formally submitted the attainment date 
extension requests.
    (2) Ohio and Kentucky are implementing the USEPA-approved SIPs.
    (3) A review of actual ozone ambient air quality data for the 
Cincinnati-Hamilton area indicates that the area has monitored no more 
than one exceedance of the NAAQS at any monitor during 1996. Therefore, 
USEPA is approving the attainment date extension requests for the 
Cincinnati-Hamilton moderate ozone nonattainment area from November 15, 
1996 to November 15, 1997.
    Therefore, USEPA approves the Ohio and Kentucky attainment date 
extension requests for the Cincinnati-Hamilton ozone nonattainment 
area. As a result, the Kentucky Control Strategy for Ozone which is 
codified at 40 CFR 52.930 and the Ohio Control Strategy for Ozone which 
is codified at 40 CFR 52.1885 are being amended to record these 
attainment date extensions. The chart in

[[Page 61246]]

40 CFR 81.318 entitled ``Kentucky-Ozone'' is being modified to reflect 
USEPA's approval of Kentucky's attainment date extension request. The 
chart in 40 CFR 81.336 entitled ``Ohio-Ozone'' is also being modified 
to reflect USEPA's approval of Ohio's attainment date extension 
request.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    Extension of an area's attainment date under the CAA does not 
impose any new requirements on small entities. Extension of an 
attainment date is an action that affects a geographical area and does 
not impose any regulatory requirements on sources. USEPA certifies that 
the approval of the attainment date extension will not affect a 
substantial number of small entities.

C. Unfunded Mandates

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

D. Audit Privilege and Immunity Law

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Ohio's audit 
privilege and immunity law (Sections 3745.70--3745.73 of the Ohio 
Revised Code.) The USEPA will be reviewing the effect of the Ohio audit 
privilege and immunity law on various Ohio environmental programs, 
including those under the CAA. The USEPA will take appropriate 
action(s), if any, after thorough analysis and opportunity for Ohio to 
state and explain its views and positions on the issues raised by the 
law. The action taken herein does not express or imply any viewpoint on 
the question of whether there are legal deficiencies in this or any 
Ohio CAA program resulting from the effect of the audit privilege and 
immunity law. As a consequence of the review process, the regulations 
subject to the action taken herein may be disapproved, Federal approval 
for the CAA program under which they are implemented may be withdrawn, 
or other appropriate action may be taken, as necessary.

E. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, USEPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in this 
Federal Register. This rule is not a ``major rule'' as defined by 
section 804(2).

F. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 16, 1998. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action to grant Ohio and Kentucky an extension to attain the ozone 
NAAQS in the Cincinnati-Hamilton ozone nonattainment area as defined in 
40 CFR 81.318 and 40 CFR 81.336 may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Ozone.

40 CFR Part 81

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

    Dated: November 5, 1997.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    Dated: November 6, 1997.
Gail C. Ginsberg,
Acting Regional Administrator, Region 5.

    Parts 52 and 81 of chapter I, title 40 of the Code of Federal 
Regulations are amended as follows:

PART 52--[AMENDED]

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

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

Subpart S--Kentucky

    2. Section 52.930 is amended by adding paragraph (d) to read as 
follows:


Sec. 52.930  Control strategy: Ozone.

* * * * *
    (d) Kentucky's November 15, 1996, request for a one-year attainment 
date extension for the Kentucky portion of the Cincinnati-Hamilton 
metropolitan moderate ozone nonattainment area which consists of 
Kenton, Boone, and Campbell Counties is approved. The date for 
attaining the ozone standard in these counties is November 15, 1997.

Subpart KK--Ohio

    3. Section 52.1885 is amended by adding paragraph (bb) to read as 
follows:


Sec. 52.1885  Control strategy: Ozone.

* * * * *
    (bb) Ohio's November 7, 1996, request for a one-year attainment 
date extension

[[Page 61247]]

for the Ohio portion of the Cincinnati-Hamilton metropolitan moderate 
ozone nonattainment area which consists of Hamilton, Butler, Clermont 
and Warren Counties is approved. The date for attaining the ozone 
standard in these counties is November 15, 1997.

PART 81--[AMENDED]

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

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

    2. In Sec. 81.318, the ``Kentucky--Ozone'' table is amended by 
revising the entry for the ``Cincinnati-Hamilton Area'' to read as 
follows:


Sec. 81.318  Kentucky.

* * * * *

                                                                     Kentucky--Ozone                                                                    
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Designation                                           Classification                    
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cincinnati-Hamilton Area:                                                                                                                               
    Boone County........................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
    Campbell County.....................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
    Kenton County.......................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.                                                                                             
\2\ Attainment date extended to November 15, 1997.                                                                                                      

* * * * *
    3. In Section 81.336, the ``Ohio--Ozone'' table is amended by 
revising the entry for the ``Cincinnati-Hamilton Area'' to read as 
follows:


Sec. 81.336  Ohio.

* * * * *

                                                                       Ohio--Ozone                                                                      
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Designation                                           Classification                    
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Cincinnati-Hamilton Area:                                                                                                                               
    Butler County.......................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
    Clermont County.....................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
    Hamilton County.....................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
    Warren County.......................  ...........  Nonattainment............................  ...........  Moderate.\2\                             
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.                                                                                             
\2\ Attainment date extended to November 15, 1997.                                                                                                      

* * * * *
[FR Doc. 97-30136 Filed 11-14-97; 8:45 am]
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