[Federal Register Volume 62, Number 32 (Tuesday, February 18, 1997)]
[Proposed Rules]
[Pages 7194-7197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3925]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81

[OH78-2; FRL-5689-N]


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

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Proposed rule.

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SUMMARY: The Ohio Environmental Protection Agency (OEPA) has requested 
the redesignation of the Ohio portion of the Cincinnati-Hamilton area 
consisting of Hamilton, Clermont, Butler, and Warren Counties from 
moderate nonattainment to attainment for ozone. The request was 
received on November 15, 1994. USEPA proposed to approve the 
redesignation request on May 5, 1995. However, during July of 1995 an 
ozone monitor in the area recorded another exceedance of the ozone 
standard resulting in a violation of the standard. As a result of the 
violation the area is no longer attaining the ozone air quality 
standard and USEPA is proposing to disapprove the redesignation request 
for the area because it has not met all of the requirements for 
redesignation specified under section 107(d)(3)(E), of the Clean Air 
Act.
    The Cincinnati-Hamilton moderate nonattainment area also includes 
the Kentucky counties of Boone, Campbell, and Kenton. On September 27, 
1996, USEPA disapproved the redesignation request for the Kentucky 
portion of the Cincinnati-Hamilton moderate ozone nonattainment area.

DATES: Comments on this redesignation and on the proposed USEPA action 
must be received by March 20, 1997.

ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer, 
Chief, Regulation Development Section, Air Programs Branch (AR-18J), 
United States Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    Copies of the State's submittal and other information are available 
for inspection during normal business

[[Page 7195]]

hours at the following location: Regulation Development Section, Air 
Programs Branch (AR-18J), United States Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: William Jones, Environmental 
Scientist, Air Programs Branch, Regulation Development Section (AR-
18J), United States Environmental Protection Agency, Region 5, Chicago, 
Illinois 60604, (312) 886-6058.

SUPPLEMENTARY INFORMATION:

I. Background Summary

    The OEPA has requested the redesignation of the Ohio portion of the 
Cincinnati-Hamilton Area (consisting of the counties of Hamilton, 
Butler, Clermont and Warren) from nonattainment to attainment for 
ozone.
    Under Section 107(d) of the 1977 amended Clean Air Act (CAA), the 
USEPA promulgated the ozone attainment status for each geographic area 
of the country. All counties in the Cincinnati-Hamilton OH-KY area were 
designated as an ozone nonattainment area in March 1978 (43 FR 8962). 
On November 15, 1990, the Clean Air Act Amendments of 1990 were 
enacted. Pursuant to Section 107(d)(4)(A), Butler, Clermont, Hamilton, 
and Warren Counties, along with the Kentucky counties of Boone, 
Campbell, and Kenton were designated as the Cincinnati-Hamilton 
moderate ozone nonattainment area, as a result of monitored violations 
of the ozone National Ambient Air Quality Standard (NAAQS) during the 
1986-1988 time frame (56 FR 56694, November 6, 1991). A review of the 
redesignation request for the Ohio portion of the Cincinnati-Hamilton 
area was provided in a proposed rulemaking dated May 5, 1995 (60 FR 
22337). To the extent that any comments received on the May 5, 1995, 
proposed rulemaking are relevant to this proposed rulemaking, they will 
be addressed in any final rulemaking on this action.

II. Redesignation Review Criteria

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, Section 107(d)(3)(E) provides for 
redesignation if: (i) The Administrator determines that the area has 
attained the National Ambient Air Quality Standard (NAAQS); (ii) The 
Administrator has fully approved the applicable implementation plan for 
the area under Section 110(k); (iii) The Administrator determines that 
the improvement in air quality is due to permanent and enforceable 
reductions in emissions resulting from implementation of the applicable 
state implementation plan and applicable Federal air pollutant control 
regulations and other permanent and enforceable reductions; (iv) The 
Administrator has fully approved a maintenance plan for the area as 
meeting the requirements 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.
    The USEPA provided guidance on redesignation in the General 
Preamble for the Implementation of Title I of the Clean Air Act 
Amendments of 1990, 57 FR 13498 (April 16, 1992), supplemented at 57 FR 
18070 (April 28, 1992). The primary memorandum providing further 
guidance with respect to section 107(d)(3)(E) of the amended Act is 
dated September 4, 1992, and issued by the Director, Air Quality 
Management Division, Subject: Procedures for Processing Requests to 
Redesignate Areas to Attainment (Calcagni Memorandum).

III. Analysis of Cincinnati Area Redesignation Request

    For ozone, an area may be considered attaining the NAAQS if there 
are no violations, as determined in accordance with 40 CFR 50.9 and 
Appendix H, based on three complete, consecutive calendar years of 
quality assured monitoring data. A violation of the NAAQS occurs when 
the annual average number of expected daily exceedances is equal to or 
greater than 1.05 at a monitoring site. A daily exceedance occurs when 
the maximum hourly ozone concentration during a given day is 0.125 
parts per million (ppm) or higher. The data should be collected and 
quality-assured in accordance with 40 CFR 58, and recorded in the 
Aerometric Information Retrieval System (AIRS). The monitors should 
have remained at the same location for the duration of the monitoring 
period required for demonstrating attainment.
    The OEPA submitted ozone monitoring data for the April through 
October ozone season from 1976 to 1994. In addition USEPA has reviewed 
the most recent ambient air quality monitoring data that is recorded in 
USEPA's AIRS. The table below summarizes the air quality data from 
1994-1996.

             Table 1.--Peak 1-Hour Ozone Concentrations in the Cincinnati-Hamilton Area 1994 to 1996            
----------------------------------------------------------------------------------------------------------------
                                                                                        Exceedances    Expected 
               Site                           County                     Year             measured   exceedances
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Oxford............................  Butler....................  1994..................            0          0.0
Middletown........................  Butler....................  1994..................            0          0.0
Middletown........................  Butler....................  1995..................            2          2.0
Middletown........................  Butler....................  1996..................            1          1.0
Hamilton..........................  Butler....................  1994..................            0          0.0
Hamilton..........................  Butler....................  1995..................            1          1.0
Hamilton..........................  Butler....................  1996..................            0          0.0
4430 SR 222.......................  Clermont..................  1994..................            1          1.0
4430 SR 222.......................  Clermont..................  1995..................            1          1.0
4430 SR 222.......................  Clermont..................  1996..................            0          0.0
11590 Grooms Rd...................  Hamilton..................  1994..................            0          0.0
11590 Grooms Rd...................  Hamilton..................  1995..................            0          0.0
11590 Grooms Rd...................  Hamilton..................  1996..................            0          0.0
6950 Ripple Road..................  Hamilton..................  1994..................            0          0.0
6950 Ripple Road..................  Hamilton..................  1995..................            1          1.0
6950 Ripple Road..................  Hamilton..................  1996..................            0          0.0
Cincinnati........................  Hamilton..................  1994..................            0          0.0
Cincinnati........................  Hamilton..................  1995..................            1          1.0
Cincinnati........................  Hamilton..................  1996..................            0          0.0
Lebanon...........................  Warren....................  1994..................            2          2.0
Lebanon...........................  Warren....................  1995..................            2          2.0

[[Page 7196]]

                                                                                                                
Lebanon...........................  Warren....................  1996..................            0          0.0
KY 338............................  Boone.....................  1994..................            0          0.0
KY 338............................  Boone.....................  1995..................            0          0.0
KY 338............................  Boone.....................  1996..................            0          0.0
Dayton............................  Campbell..................  1994..................            0          0.0
Dayton............................  Campbell..................  1995..................            0          0.0
Dayton............................  Campbell..................  1996..................            1          1.0
Covington.........................  Kenton....................  1994..................            0          0.0
Covington.........................  Kenton....................  1995..................            1          1.0
Covington.........................  Kenton....................  1996..................            1          1.0
----------------------------------------------------------------------------------------------------------------

    To demonstrate monitored attainment with the standard, the OEPA 
submitted ozone air quality data for the years 1992 through 1994. This 
data has been quality assured and is recorded in AIRS. During the 1994 
to 1996 time period, the Lebanon monitor recorded a total of 4.0 
expected exceedances. This averages out to 1.33 average expected 
exceedances per year and as a result is a violation of the ozone 
standard.
    All five of the redesignation criteria given under section 
107(d)(3)(E) of the CAA must be satisfied in order for USEPA to 
redesignate an area from nonattainment to attainment. Under the first 
criterion, the Administrator of USEPA is prohibited from redesignating 
an area to attainment when that area has not attained the NAAQS. 
Furthermore, section 107(d)(1)(A) defines a nonattainment area as ``any 
area that does not meet'' NAAQS and an attainment area as ``any area * 
* * that meets the'' NAAQS. Consequently, if a violation occurs prior 
to USEPA's final action, the area is no longer in attainment and USEPA 
cannot redesignate the area to attainment status because, at the time 
of that action, the area would not meet the definition of an attainment 
area under section 107.
    At the time of the OEPA's redesignation submittal in 1994, the 
Cincinnati-Hamilton moderate nonattainment area appeared to have 
attained the NAAQS, based on air quality data monitored from 1992 
through 1994. However, during USEPA's review of the public comments 
received on the proposal, ambient air quality data indicated that the 
area had registered a violation of the ozone NAAQS in 1995. This 
ambient data has been quality assured according to established 
procedures for validating such monitoring data. As a result, the 
Cincinnati-Hamilton area does not meet the statutory criterion for 
redesignation to attainment of the ozone NAAQS found in section 
107(d)(3)(E)(i) of the CAA.
    USEPA notes that it has previously disapproved redesignation 
requests on the basis of violations occurring after the submission of 
the redesignation request. In particular, USEPA has already disapproved 
the redesignation request for the Kentucky portion of the Cincinnati-
Hamilton nonattainment area on the basis of the same violations that 
are the basis for this proposal. See 61 FR 50718 (September 27, 1996). 
See also 61 FR 19193 (May 1, 1996) (disapproval of redesignation 
request for Pittsburgh, Pennsylvania).
    The maintenance plan State Implementation Plan (SIP) revision is 
not approvable because its demonstration is based on a level of ozone 
precursor emissions in the ambient air thought to represent an 
inventory of emissions that would provide for attainment and 
maintenance. That underlying basis of the maintenance plan's 
demonstration is no longer valid due to the violation of the NAAQS that 
occurred during the 1995 ozone season, a season in which the emissions 
inventory was at or below the level of the emissions inventory in the 
base year.

IV. Proposed Rulemaking Action and Solicitation of Public Comment

    The Cincinnati-Hamilton area does not meet the redesignation and 
maintenance plan requirements of the CAA. Therefore, the USEPA is 
proposing disapproval of the maintenance plan and the redesignation of 
the Ohio portion of the Cincinnati moderate ozone nonattainment area, 
consisting of the counties of Butler, Warren, Clermont, and Hamilton, 
to attainment for ozone.
    Public comments are solicited on USEPA's proposed rulemaking 
action. Public comments received by March 20, 1997 will be considered 
in the development of USEPA's final rulemaking action. To the extent 
that any comments received on the May 5, 1995, proposed approval are 
relevant to this proposed rulemaking, they will be addressed in any 
final rulemaking on this action.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. Each request for revision to any SIP shall be considered 
separately in light of specific technical, economic, and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from Executive Order 12866 review.
    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.
    USEPA's disapproval of the State request under Section 110 and 
subchapter I, Part D of the CAA would not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements would remain in place after this disapproval. Moreover, 
USEPA's disapproval of the submittal would not impose any new Federal 
requirements. Furthermore, the direct affects of the designation status 
of a nonattainment area fall on a State, not a small entity. Therefore, 
USEPA certifies that this proposed disapproval action does not have a 
significant impact on a substantial number of small entities because it 
does not remove

[[Page 7197]]

existing requirements and impose any new Federal requirements.
    USEPA's denial of the State's redesignation request under section 
107(d)(3)(E) of the CAA does not affect any existing requirements 
applicable to small entities nor does it impose new requirements. The 
area retains its current designation status and continues to be subject 
to the same statutory requirements. To the extent that the area must 
adopt regulations, based on its nonattainment status, USEPA will review 
the effect of those actions on small entities at the time the State 
submits those regulations. Therefore, the Administrator certifies that 
any disapproval of the redesignation request will not affect a 
substantial number of small entities.
    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 of this state implementation plan or plan revision, the 
State and any affected local or tribal governments have elected to 
adopt the program provided for under Section 110 of the CAA. These 
rules may bind State, local and tribal governments to perform certain 
actions and also require the private sector to perform certain duties. 
USEPA has examined whether the rules being disapproved by this action 
would impose any new requirements. Since such sources are already 
subject to these regulations under State law, no new requirements would 
be imposed by a disapproval. Moreover, as this action would merely 
leave the area with its current designation, it imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, would result from this 
action, and therefore there will be no significant impact on a 
substantial number of small entities.

 List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Environmental protection, Air pollution control.

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

    Dated: February 6, 1997.
Michelle D. Jordan,
Acting Regional Administrator.
[FR Doc. 97-3925 Filed 2-14-97; 8:45 am]
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