77308 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. As required by

section 3 of Executive Order 12988 (61

FR 4729, February 7, 1996), in issuing

this rule, EPA has taken the necessary

steps to eliminate drafting errors and

ambiguity, minimize potential litigation,

and provide a clear legal standard for

affected conduct. EPA has complied

with Executive Order 12630 (53 FR

8859, March 15, 1988) by examining the

takings implications of the rule in

accordance with the ‘‘Attorney

General’s Supplemental Guidelines for

the Evaluation of Risk and Avoidance of

Unanticipated Takings’’ issued under

the executive order. This rule does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit 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 United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by February 9, 2001.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Ozone, Reporting and recordkeeping

requirements, Volatile organic

compounds.

Dated: November 1, 2000

Felicia Marcus,

Regional Administrator, Region IX.

Part 52, Chapter I, Title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart F—California

2. Section 52.220 is amended by

adding paragraphs (c)(262)(i)(B)(3) to

read as follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * *

(262) * * *

(i) * * *

(B) * * *

(3) Rule 74.6, revised on November

10, 1998.

* * * * *

[FR Doc. 00–31330 Filed 12–8–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[OH–138–2; FRL–6914–7]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; Ohio

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is redesignating

Cuyahoga and Jefferson Counties, Ohio,

to attainment for particulate matter

nominally 10 microns in aerodynamic

diameter and smaller (PM10). EPA is

also approving Ohio’s plan for

maintaining air quality at levels below

the applicable air quality standards.

EPA proposed these actions on July

10, 2000. One commenter submitted

numerous comments, generally taking

the position that the criteria for

redesignation to attainment given in

Clean Air Act section 107(d)(3)(E) are

not met. EPA has reviewed these

comments and, for the reasons set forth

below, continues to believe that the

redesignation criteria have been met and

that these areas may be redesignated

and their maintenance plans approved.

The Steubenville area includes

portions of Brooke County, West

Virginia, as well as Jefferson County,

Ohio. For administrative convenience

EPA is taking action only on the Ohio

portion of this area. Nevertheless, the

action reflects review of air quality for

the entire area and Ohio’s fulfillment of

its portion of an area-wide attainment

plan that it developed jointly with West

Virginia. In the future, if the standard is

violated in either portion of the area,

such that redesignation back to

nonattainment is warranted, EPA will

propose to reinstate nonattainment

status for the entire area.

EFFECTIVE DATE: This action will be

effective on January 10, 2001.

ADDRESSES: Copies of the Ohio’s

submittals and other information are

available for inspection during normal

business hours at the following address:

(We recommend that you telephone

John Summerhays at (312) 886–6067,

before visiting the Region 5 Office)

United States Environmental Protection

Agency, Region 5, Air Programs Branch

(AR–18J), Regulation Development

Section, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John

Summerhays, Environmental Scientist,

United States Environmental Protection

Agency, Region 5, Air Programs Branch

(AR–18J), Regulation Development

Section, 77 West Jackson Boulevard,

Chicago, Illinois 60604, (312) 886–6067,

(summerhays.john@epa.gov).

SUPPLEMENTARY INFORMATION: The terms

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ in this notice

signify EPA. This notice is organized as

follows:

Table of Contents

I. What actions did EPA propose, and why?

II. What comments did EPA receive and what

are our responses?

III. What actions is EPA taking, and why?

IV. Administrative requirements.

A. Executive Order 12866

B. Executive Order 13045

C. Executive Order 13084

D. Executive Order 13132

E. Executive Order 12898

F. Regulatory Flexibility

G. Unfunded Mandates

H. Submission to Congress and the

Comptroller General

I. National Technology Transfer and

Advancement Act

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77309

J. Petitions for Judicial Review

I. What Actions Did EPA Propose, and

Why?

On July 10, 2000, EPA published

rulemaking proposing to approve a

maintenance plan and redesignation of

Cuyahoga and Jefferson Counties, Ohio,

to attainment for particulate matter,

specifically for particles known as PM10.

(See 65 FR 43212.) This proposal was

based on a request from the State of

Ohio submitted in preliminary form on

May 22, 2000. This action pertains to

the PM10 standards promulgated in 1987

at 40 CFR 50.6, for which designations

are published at 40 CFR 81. This action

does not pertain to the PM10 standards

promulgated in 1997 at 40 CFR 50.7,

which have been vacated by the District

of Columbia Circuit Court of Appeals

and for which no designations have

been published.

Ohio’s maintenance plan relies

predominantly on the emissions limits

already included in its State

Implementation Plan (SIP) that have

been shown to limit emissions from the

significant sources in these areas

sufficiently to assure attainment. The

attainment plan addresses maximum

allowable emissions, so the plan

provides for continued attainment even

if source production rates grow to

maximum capacity. Ohio’s maintenance

plan supplements this with evidence of

declining impacts from other,

unregulated sources, which contribute

to the background concentration

included in the attainment

demonstration. Specifically, Ohio cited

population declines in the two counties,

which will lead to reduced emissions

from consumer activities, and federal

regulations requiring reduced emissions

from diesel engines. Ohio further cited

emission regulations which will reduce

emissions below attainment levels at the

coke batteries found in the two areas.

EPA proposed to conclude on the basis

of these plan elements that these

counties can be expected to continue

attaining the applicable PM10 standards

for the requisite 10 years.

EPA reviewed Ohio’s redesignation

request on the basis of five criteria given

in section 107(d)(3)(E) of the Clean Air

Act. The first criterion is attainment of

the air quality standards. All monitors

have annual average concentrations

below the annual standard. The 24-hour

standard is met if the expected

frequency of values above 150 μg/m3 is

1.0 day per year or less. All the monitors

in the Steubenville area and most of the

monitors in Cuyahoga County have

recorded no recent exceedances of this

air quality standard. These monitors

clearly indicate attainment of these

standards. Two monitors in Cleveland

have recorded values above 150 μg/m3,

requiring analysis of expected

exceedances at these locations

consistent with the provisions of

Appendix K of 40 CFR 50. EPA found

a sufficiently low expected frequency of

exceedances to propose to conclude that

these locations, like the rest of

Cuyahoga County, are attaining the

standards.

The second criterion is that EPA has

fully approved the necessary air quality

control plans. EPA has previously

concluded that relevant requirements

were met, as stated in rulemakings

published on May 27, 1994, at 59 FR

27464, and June 12, 1996, at 61 FR

29662, supplementing earlier

rulemakings. In acting on redesignation

requests, EPA has consistently

interpreted section 107(d)(3) as

permitting the Agency to rely on prior

approvals of SIP provisions when

reviewing redesignation requests. See

Memorandum from John Calcagni,

Director of the Air Quality Management

Division dated September 4, 1992. For

a recent discussion of redesignation

requirements see 65 FR 37879 (June 19,

2000) (redesignation to attainment for

ozone of the Cincinnati-Hamilton

moderate ozone nonattainment area).

The third criterion for redesignation is

that attainment be attributable to

permanent and enforceable emission

reductions. EPA found that permanent

and enforceable emission limits have

yielded permanent emission reductions

that satisfied this criterion at numerous

facilities in the two counties. The fourth

criterion is that EPA has approved a

maintenance plan that assures

continued attainment. As discussed

above, EPA proposed to approve Ohio’s

maintenance plan. Final approval of this

plan, which is part of today’s action,

completes the satisfaction of this

criterion. The fifth criterion is that the

State be found to have met applicable

requirements of section 110 and Part D

of the Clean Air Act. Based on various

rulemakings, starting with rulemaking

of April 15, 1974 (39 FR 13539) up to

and including EPA’s rulemaking of June

12, 1996 (61 FR 29662), EPA finds that

the State met these requirements. In

summary, EPA proposed to find that

Ohio had met all five criteria for

redesignation for PM 10 in Cuyahoga and

Jefferson Counties, and so EPA

proposed to redesignate these counties

to attainment.

II. What Comments Did We Receive and

What Are Our Responses?

EPA received comments from one

commenter, the Earthjustice Legal

Defense Fund, representing the Ohio

Chapter of the Sierra Club. These

comments are organized according to

the five criteria for redesignation listed

above. The following comment

summaries and EPA responses are

organized accordingly.

1. Attainment

Comment: The commenter cites EPA’s

Air Information Retrieval System (AIRS)

database as showing that one of the

monitoring sites, at East 14th Street and

Orange Avenue in Cleveland, ‘‘had 6

expected exceedances of the 24 hour

PM 10 standard in 1999. Moreover, AIRS

data shows that the same monitor has

recorded 6 expected exceedances so far

in the year 2000.’’ The commenter states

that the total of 12 expected

exceedances at this site means that the

area has not attained the standard.

The commenter further states that

‘‘EPA seeks to discount the 6 expected

exceedances in 1999 at [the above site]

by citing data from other monitors that

did not exceed the standard that year.’’

The commenter states that disregarding

violations based on data at other sites is

not authorized in Appendix K, and EPA

may not use guidance documents to

amend Appendix K to grant itself this

authority.

Response: The commenter

summarizes air quality at the East 14th

Street site by reporting a statistic from

a summary of air quality data that EPA

provides on the internet. By its nature,

this summary statistic is derived by an

oversimplified approach, and thus

inaccurately reflects what the data

show. This statistic in this context is

derived by automated, default

procedures that cannot make the caseby-case judgments involved in assessing

attainment status for regulatory

purposes. For example, the statistic that

the commenter cites does not reflect

judgments that must be made by EPA,

such as whether to exempt the site from

expected exceedance adjustments

pursuant to Appendix K section 3.1(f)

and 40 CFR 58.13. A more appropriate

evaluation of the 1999 data at this site

is presented in the notice of proposed

rulemaking. This evaluation indicates

that only approximately one exceedance

is expected at that location. A similar

evaluation of the 2000 data at this site,

as described further below, also

indicates approximately one exceedance

is expected. Based on these data, EPA is

determining that the 3-year average

number of expected exceedances at this

site is less than the 1.0 level, and thus

the site is in attainment consistent with

section 2.1 of Appendix K.

It is also apparent that the commenter

may have misunderstood the discussion

in the proposal relating to the

77310 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

historically worst-case site that adjoins

the East 14th Street site. Contrary to the

assertion in the comment, EPA is not

using data from other monitors to

discount a violation at the East 14th

Street site. Instead, EPA is assessing

whether a violation in fact occurred at

the East 14th Street site.

The East 14th Street site has two

instruments—a high volume sampler,

taking samples once every six days, and

an instrument that takes continuous

concentration readings. The high

volume sampler recorded an exceedance

of the 24-hour PM10 standard at this site

in 1999 (as well as an exceedance in

2000). EPA’s evaluation of these high

volume sampler data appropriately

considers data from the collocated

continuous instrument as well as data

from another nearby location.

Specifically, EPA is using the additional

data to evaluate the likelihood of

exceedances on the other five out of six

days on which the high volume sampler

did not take measurements.

One element of EPA’s evaluation is

based on Appendix K section 3.1(f), for

which EPA must consider whether

everyday sampling has been conducted

in accordance with 40 CFR 58.13. In 40

CFR 58.13, as it applies to sampling for

this PM10 standard, EPA calls for

everyday sampling at the area of

maximum concentration. Accordingly,

the notice of proposed rulemaking

describes an assessment in which the

application of Appendix K section 3.1(f)

to the East 14th Street site is contingent

on daily sampling at a nearby,

maximum concentration site. As

discussed in the notice of proposed

rulemaking, application of Appendix K

section 3.1(f) contingent on daily

sampling at the East 14th Street site

yields the same result. Both methods

lead to treating the measured

exceedance as one expected exceedance,

which leads to a finding that the

standard is being attained.

When EPA promulgated Appendix K,

it was concerned, in part, about how to

appropriately interpret data from

monitors taking measurements one day

out of six days when they measure just

one exceedance. EPA recognized that

the occasional measurement of one

exceedance by such monitors often does

not signify that five other exceedances

would be expected to occur on the

unmonitored days. Therefore, section

3.1(f) of Appendix K provides that an

adjustment, that entails treating one

exceedance as reflecting six (or more)

expected exceedances (which is

otherwise required to account for

missing or incomplete data), need not be

done if complete daily, representative

sampling is performed and related

conditions are met. If complete daily,

representative sampling then shows few

or no exceedances, this would validate

the view that the exceedance measured

during one-in-six-day sampling is better

interpreted as reflecting one rather than

six (or more) expected exceedances.

(Conversely, if daily sampling indicates

frequent exceedances, EPA would have

a more solid basis for concluding that

the site is not attaining.)

The monitoring at the East 14th Street

site poses unique circumstances not

directly addressed in Appendix K.

Appendix K does not specify how to

interpret data from two instruments

which measure air quality at the same

location. EPA has issued guidance

explaining how to assess expected

exceedances for both instruments in

such cases. However, neither Appendix

K nor EPA’s guidance specifies how to

conduct this assessment in cases where

the sampling frequencies of the two

instruments differ.

The history of Appendix K helps

clarify why it does not directly address

the situation found at the East 14th

Street site. Appendix K was

promulgated in 1987, at a time when

reliable continuous instruments for

measuring particulate matter

concentrations were not available. Since

high volume sampling and filter

collection and analysis on a daily basis

is resource intensive, EPA encouraged

States to conduct sampling once every

six days at numerous sites, with only a

small number of critical sites sampling

on a daily basis. When it encouraged

this approach, EPA did not intend that

any sampler measuring once every six

days that happened to record an

exceedance would automatically be

treated as showing nonattainment,

which is the approach reflected in the

commenter’s interpretation of the air

quality data summary posted on the

internet. EPA intended instead that such

sampling sites be identified as critical

sites warranting the dedication of

resources necessary to conduct daily

sampling, in order to determine whether

the exceedance recurs with a frequency

of more than once per year.

In promulgating Appendix K, EPA did

not anticipate the possibility that States

might simultaneously operate one

sampler on a once in six days basis and

operate a second sampler at the same

site on a daily basis. Even today, sites

with instruments measuring air quality

once every six days almost never have

a collocated instrument simultaneously

taking daily or continuous

measurements. Therefore, the one-insix-day data are ordinarily the only

basis on which to estimate the

likelihood that exceedances would have

been observed on the other five days. In

such cases, if the site does not meet the

criteria in section 3.1(f) of Appendix K

that qualifies it to be exempt from

expected exceedance adjustment, then

EPA would view the five unmonitored

days as days with missing data. Under

Appendix K, for such cases, EPA takes

a protective approach by assuming that

the likelihood of exceedances for those

five out of six days equals the likelihood

of exceedances for the one in six days

with actual observations. (See section

3.1(a).)

In the case of the East 14th Street site,

the continuous instrument provides

extensive data with potential to help

EPA evaluate the likelihood that the

high volume sampler would have

recorded exceedances on the five out of

six days it was not sampling. EPA

therefore examined whether the

continuous instrument data would

reliably indicate whether the high

volume sampler would have recorded

an exceedance.

EPA compared 24-hour averages from

the two instruments for days in 1998 to

2000 when both instruments had valid

data. Then EPA developed what is

known as a ‘‘best fit’’ equation, which

attempts to describe, as accurately as

possible, the relationship between sameday readings of the two instruments. On

average, the high volume sampler

reading equaled 1.05 times the

continuous instrument reading plus 0.2

micrograms per cubic meter (μg/m3),

with a variance (r2) of 0.78. In no case

did the high volume sampler record any

value more than 27 μg/m3 higher than

the continuous instrument. Thus, from

a sampling perspective, readings from

the two instruments would be

considered quite similar.

Consequently, EPA concluded that

data from the continuous instrument is

reliable for use in assessing expected

exceedances for the high volume

sampler. Specifically, given the

excellent agreement between the

measurements produced by the two

instruments, EPA believes the days with

continuous instrument measurements

but no high volume sampler

measurements should be treated as days

with valid data indicating high volume

sampler concentrations. That is,

consistent with the provisions of

Appendix K, the best assessment of

expected exceedances under these

circumstances would be to consider all

days with data from either instrument as

days with valid data, and to treat as

days with missing data only those days

in which neither the high volume

sampler nor the continuous instrument

was operating. For purposes of this

assessment, a day with only continuous

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77311

instrument data is considered by EPA as

having a value below the standard only

if the maximum difference in

instrument readings added to the

continuous instrument value indicates a

high volume sampler value below the

level of the standard.

EPA described its assessment of the

1999 data in its notice of proposed

rulemaking. Briefly, the high volume

sampler recorded an exceedance during

the first quarter. This first quarter

included 14 days with high volume

sampler values and 74 additional days

with only continuous instrument

values. Two days had no value from

either instrument and, under Appendix

K, should be considered days with

missing data. The 14 days with high

volume sampler values included one

day with a measured exceedance and 13

days with values below the standard.

For the 74 additional days with only

continuous instrument values, the

highest such value was 75 μg/m3. This

continuous instrument value leads to a

best estimated peak value for the high

volume sampler of 79 μg/m3 (using the

best fit equation), and leads to a worst

case peak estimate of 102 μg/m3

(applying the maximum difference in

instrument values). Based on the

explanation above, the data from all of

these 74 days will be treated by EPA as

valid data. In total, then, for the high

volume sampler in the first quarter of

1999, one day had an exceedance, 87

days have concentrations that are well

below the standard of 150 μg/m3, and

two days are lacking data. According to

Appendix K, the proposed rulemaking

therefore calculated an estimate of

expected exceedances to be 1 +

(2 * 1/88) or 1.02. Since no exceedances

were measured at the site in any other

quarter of 1999 or in 1998 or 1997, the

total expected exceedances for 1999 is

1.02, and the three-year average of

expected exceedances is 0.3.

A second unique feature of the

situation at the East 14th Street site is

the occurrence of a second exceedance

measured by the instrument sampling

once in six days. In ordinary

circumstances, i.e., in the absence of

collocated daily sampling data, EPA

assumes that the first measured

exceedance often reflects only about one

expected exceedance, but EPA would

generally assume that a second

exceedance measured by a one-in-six

day sampler represents multiple

expected exceedances. However, EPA

does not need to rely on such

assumptions at the East 14th Street site,

since in this case EPA has a wealth of

actual data with which to assess the

likelihood of exceedances at the site.

EPA therefore estimated expected

exceedances for 2000 according to the

same method it used to evaluate the

1999 data. An exceedance was observed

by the high volume sampler in the first

quarter of 2000. The high volume

sampler provided values for 15 of the 91

days. The continuous sampler provided

valid data for an additional 73 days. The

highest 24-hour average for these 73

days was 84 μg/m3, suggesting a best

estimated peak high volume sampler

value of 88 μg/m3 and a worst case

estimated high volume sampler value of

111 μg/m3. Three days have missing

values. These data indicate that only 1

out of 88 days with valid data had an

exceedance. Consequently, expected

exceedances for the quarter are

estimated at 1 + (3 * 1⁄88) or 1.03. The

second quarter had no observed

exceedances. Thus, the available data

for 2000 at this site indicate 1.03

expected exceedances.

Appendix K does not provide for us

to include a half year’s worth of data

results in calculating the three year

average of expected exceedances. Thus,

consideration of data for the first half of

2000 by necessity involves projecting

likely air quality in the second half of

2000. EPA examined data at the East

14th Street site to judge the most

plausible such projection. In the past,

the East 14th Street site has not been

prone to observe exceedances in the

second half of the year. In the 71⁄2 year

history at this site, all three days with

recorded exceedances have been in

March. Therefore, EPA has good reason

to anticipate that no further exceedances

will be measured at this site in 2000.

Assuming no further exceedances for

the remainder of 2000 is equivalent to

using data from a previous July to

December period, for example

constructing an assessment for 1998 to

2000 by using data from the second half

of 1997 as a surrogate for projected data

for the second half of 2000. This

suggests a total of 1.03 expected

exceedances for 2000. This result, in

combination with the 1.02 expected

exceedances for 1999 and zero expected

exceedances for 1998, indicates a 3-year

average of 0.7 expected exceedances.

The above presents EPA’s evaluation

of the frequency with which the high

volume sampler at the East 14th Street

site would have recorded exceedances

had it been operating every day. One

may do a similar evaluation for the

continuous instrument at this site. This

continuous instrument recorded no

exceedances from the day it began

operating in April 1998 to the present.

This instrument was not operating on

March 31, 1999, when the high volume

sampler recorded an exceedance, but

the high volume sampler data for that

date suggest treating that day as a day

the continuous instrument would be

expected to have had an exceedance.

Considering missing data according to

Appendix K, this suggests 1.02 expected

exceedances for the first quarter of 1999.

While data are not available for a proper

3-year average of expected exceedances,

the data that are available clearly

suggest an average of less than 1.0

expected exceedances for this

instrument. Thus, both instruments at

the East 14th Street site indicate that

this site is attaining the standard.

The commenter provided no rationale

for using the computer-generated

statistic he cited rather than applying

the judgments and procedures described

in the notice of proposed rulemaking,

even though the two methods clearly

give different results. For reasons given

here and in the notice of proposed

rulemaking, EPA believes that the

evaluation described here is more

consistent with applicable PM 10

regulations and reflects more reasoned

judgments about the air quality at the

site in question. EPA is determining on

the basis of this evaluation that this site,

like the remainder of Cuyahoga County,

is attaining the standard.

2. Fully Approved SIP

Comment: The second prerequisite for

redesignation to attainment is that EPA

has fully approved the applicable SIP

for the area. The commenter states that

this prerequisite has not been met

because EPA has not fully approved

either the state’s new source review

(NSR) programs or the motor vehicle

emission budget for these areas. With

respect to NSR, the commenter states

that this program is ‘‘not an optional

program that the state and EPA can

simply waive based on claims that it is

not ‘needed’ for attainment.’’ With

respect to conformity, the commenter

cites Section 176(c) of the Clean Air Act

and states that the absence of a motor

vehicle emissions budget and

conformity procedures means that EPA

has not met all SIP requirements

applicable to the area.

Response: EPA continues to believe

that it has fully approved the applicable

SIP for Cuyahoga and Jefferson

Counties. For the requirements added in

the Clean Air Act Amendments of 1990,

in Subpart 4 of Part D of the Clean Air

Act, EPA approved Ohio’s attainment

demonstration and other related plan

elements on June 12, 1996, at 61 FR

29662. EPA has published several

earlier rulemakings approving Ohio’s

SIP as meeting the various requirements

enacted earlier.

77312 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

With respect to NSR, EPA believes

that Cuyahoga and Jefferson Counties

may be redesignated to attainment

notwithstanding the lack of a fullyapproved NSR program meeting the

requirements of the 1990 Clean Air Act

Amendments. This view has been set

forth by EPA in a memorandum from

Mary Nichols, Assistant Administrator

for Air and Radiation, dated October 14,

1994, entitled ‘‘Part D New Source

Review (part D NSR) Requirements for

Areas Requesting Redesignation to

Attainment.’’ Also, see CincinnatiHamilton redesignation (65 FR 37879,

June 19, 2000) and Grand Rapids,

Michigan redesignation (61 FR 31834–

31837, June 21, 1996). This policy has

also been applied in ozone

redesignations of Youngstown-Warren,

Columbus, Canton, Cleveland-AkronLorain, Dayton-Springfield, Toledo,

Preble County, Columbiana County, and

Clinton County, Ohio, as well as Detroit,

Michigan.

EPA believes that its decision not to

insist on a fully approved NSR program

as a prerequisite to redesignation is

justifiable as an exercise of the Agency’s

general authority to establish de

minimis exceptions to statutory

requirements. See Alabama Power Co. v.

Costle, 636 F.2d 323, 360–61 (D.C. Cir.

1979). Under Alabama Power Co. v.

Costle, EPA has 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 EPA has

the authority to establish an exception

to the requirements of section

107(d)(3)(E) that EPA must fully

approve a SIP meeting all of the

requirements applicable to an area

under section 110 and part D of title I

of the Clean Air Act before

redesignating the area. Plainly, the NSR

provisions of section 110 and part D are

requirements that were applicable to

Cuyahoga and Jefferson Counties at the

time of the submission of the request for

redesignation. Thus, on its face, section

107(d)(3)(E) would seem to require that

the State submit and EPA fully approve

a part D NSR program meeting the

requirements of the Clean Air Act before

an area could be redesignated to

attainment. Under EPA’s de minimis

authority, however, the agency may

establish an exception to an otherwise

plain statutory requirement if its

fulfillment would be of little or no

environmental value. Therefore, it is

necessary to determine what would be

achieved by insisting that there be a

fully-approved part D NSR program in

place prior to the redesignation of

Cuyahoga and Jefferson Counties.

EPA believes that requiring the

adoption and full approval of a part D

NSR program prior to redesignation

would not be of significant

environmental value in this case. When

an area is redesignated to attainment, a

new source must satisfy prevention of

significant deterioration (PSD)

requirements rather than nonattainment

new source review. PSD requires that

new sources demonstrate that their

construction will not increase ambient

concentrations significantly and will not

result in concentrations above the air

quality standard. This may be compared

to requirements under nonattainment

area new source review for new sources

to secure emission reductions to offset

their new emissions. EPA believes that

there would be trivial if any

environmental value of applying

nonattainment new source requirements

in Cuyahoga and Jefferson Counties

rather than PSD requirements.

The other purpose that requiring the

full approval of a part D NSR program

might serve is 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

of a maintenance plan containing ‘‘such

contingency provisions as the

Administrator deems necessary to

assure that the State will promptly

correct any violation of the standard

which occurs after the redesignation of

the area as an attainment area. Such

provisions shall include a requirement

that the State will implement all

measures with respect to the control of

the air pollutant concerned which were

contained in the SIP for the area before

redesignation of the area as an

attainment area.’’ Based on this

language, it is apparent that whether an

approved NSR program must be

included as a contingency provision

depends on whether it is a ‘‘measure’’

for the control of the pertinent air

pollutants.

The term ‘‘measure’’ is not defined in

section 175A(d) and Congress utilized

that term differently in different

provisions of the Clean Air Act with

respect to the PSD and NSR permitting

programs. For example, in section

110(a)(2)(A), Congress requires that SIPs

include ‘‘enforceable emission

limitations and other control measures,

means, or techniques * * * as may be

necessary or appropriate to meet the

applicable requirements of the Act.’’ In

section 110(a)(2)(C), Congress requires

that SIPs include ‘‘a program to provide

for the enforcement of the measures

described in subparagraph (A), and

regulation of the modification and

construction of any stationary source

within the areas covered by the plan as

necessary to assure that NAAQS are

achieved, including a permit program as

required in parts C and D.’’ If the term

‘‘measures’’ as used in section 110

(a)(2)(A) and (C) had been intended to

include PSD and NSR there would have

been no point to requiring that SIPs

include both measures and

preconstruction review under parts C

and D (PSD or NSR). Unless ‘‘measures’’

referred to something other than

preconstruction review under parts C

and D, the reference 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 of the Clean Air Act, such as

section 161, Congress appeared to

include PSD within the scope of the

term ‘‘measures.’’

EPA believes that the fact that

Congress used the undefined term

‘‘measure’’ differently in different

sections of the Clean Air Act is germane.

This indicates that the term is

susceptible to more than one

interpretation and that EPA has the

discretion to interpret it in a reasonable

manner in the context of section 175A.

Inasmuch as Congress itself has used the

term in a manner that excluded PSD and

NSR from its scope, EPA believes it is

reasonable to interpret ‘‘measure,’’ as

used in section 175A(d), not to include

NSR. That this is a reasonable

interpretation is further supported by

the fact that PSD, a program that is the

corollary of part D NSR for attainment

areas, goes into effect in lieu of part D

NSR when an area is redesignated to

attainment. This distinguishes NSR

from other required programs under the

Clean Air Act, such as inspection and

maintenance programs, which have no

corollary for attainment areas.

Moreover, EPA believes that those other

required programs are clearly within the

scope of the term ‘‘measure.’’

EPA is not suggesting that NSR and

PSD are equivalent, but merely that they

are the same type of program. The PSD

program is a requirement in attainment

areas and is designed to allow new

source permitting, yet contains adequate

provisions to protect the NAAQS. If any

information, including preconstruction

monitoring, indicates that an area is not

continuing to meet the NAAQS after

redesignation to attainment, the

requirements of 40 CFR part 51,

appendix S (Interpretive Offset Rule) or

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77313

a 40 CFR 51.165(b) program would

apply.

With respect to conformity, the

requirements cited by the commenter do

not apply to PM10 in these areas. As

stated in EPA’s conformity regulations,

at 40 CFR 93.102(b), the conformity

requirements apply in ‘‘nonattainment

and maintenance areas for

transportation-related criteria

pollutants’’ [emphasis added}. Within

that section of the conformity

regulations, 40 CFR 93.102(b)(2)(iii)

specifies that conformity requirements

apply ‘‘in PM10 areas [only] if the EPA

Regional Administrator or the director

of the State air agency has made a

finding that transportation-related

precursor emissions within the

nonattainment area are a significant

contributor to the PM10 nonattainment

problem and has so notified the MPO

and DOT, or if the applicable

implementation plan (or

implementation plan submission

established a budget for such emissions

as part of the reasonable further

progress, attainment or maintenance

strategy.’’

Transportation-related emissions do

not contribute significantly to PM10

concentrations in Cuyahoga and

Jefferson Counties. Stationary sources

are the predominant contributors to

high concentrations in these areas. The

attainment demonstration that EPA

approved for these areas on June 12,

1996, at 61 FR 29662, documents this

finding, and documents that mobile

sources contribute only a few

micrograms per cubic meter to airborne

concentrations, i.e. only a few percent of

the air quality standards. EPA and the

Ohio Environmental Protection Agency

agreed during the 1994 conformity

consultation process that transportation

sources are insignificant contributors to

the nonattainment problem in Cuyahoga

County and the Steubenville area. As

appropriate, the SIP does not establish

a budget for these emissions. EPA

approved conformity rules for Ohio on

May 16, 1996 (61 FR 24702) and May

30, 2000 (65 FR 34395). In accordance

with applicable EPA regulations,

conformity requirements under the

state’s rules do not apply to PM10 in

Cuyahoga or Jefferson Counties. Rules

establishing such requirements and

approval of an emissions budget are not

prerequisites for full SIP approval or

redesignation.

Furthermore, EPA believes it is

reasonable to interpret the conformity

requirements as not applying for

purposes of evaluating a redesignation

request under section 107(d). The

rationale for this interpretation has been

set forth in a number of notices

redesignating areas to attainment for

ozone. See, for example, the CincinnatiHamilton redesignation at 65 FR 37879

(June 19, 2000), the Grand Rapids

redesignation at 61 FR 31835–31836

(June 21, 1996), and the ClevelandAkron-Lorain redesignation at 61 FR

20458 (May 7, 1996).

3. Permanent and Enforceable

Reductions

Comment: The commenter believes

that Section 107(d)(3)(E)(iii) requires

that EPA or the State conduct modeling

to demonstrate that air quality

improvements are attributable to

permanent and enforceable emission

reductions rather than weather patterns,

reduction in production, or other

factors.

Response: When Ohio developed its

attainment plan, it began by modeling

existing emissions, to identify where

existing air quality was problematic.

This modeling identified problems

consistent with the nonattainment

problems identified at that time by

monitoring. Ohio then conducted

numerous model runs to assess

alternative control strategies. The final

modeling analysis demonstrated that the

permanent and enforceable emission

reductions which were added as

requirements in the attainment plan

regulations were sufficient to bring PM10

concentrations down to attainment

levels. Since this modeling reflected

emissions at allowable levels assuming

full capacity plant operations,

attainment is not dependent on reduced

production or other transient factors.

While EPA does not concede that

modeling must be done to demonstrate

that air quality improvements are due to

permanent and enforceable reductions,

in this case the type of modeling

requested by the commenter was in fact

done. This modeling demonstrated that

the air quality improvement is due to

permanent and enforceable reductions.

4. Maintenance

Due to the length and variety of

comments on Ohio’s maintenance plan,

these comments are addressed in three

parts.

Comment: The commenter states that

Ohio has failed to submit a SIP revision

that provides for maintenance. The

commenter observes that Ohio ‘‘has

merely submitted a letter asserting that

the standard will be maintained. There

is no SIP revision comprising the

maintenance plan, and no commitment

to implement or continue control

strategies necessary for maintenance.’’

The commenter further believes that

‘‘neither the state nor EPA has

demonstrated that the standard will in

fact be maintained for [the necessary]

ten years’’.

The commenter acknowledges that

‘‘EPA presumes’’ that declining

population, cleaner new vehicles, and

recent regulations on coke oven

emissions will maintain the standards

by keeping emissions at or below levels

found in the SIP to assure attainment.

However, the commenter states that

Cuyahoga County ‘‘violated the [air

quality standards] in 1995, again in

1999, and again in 2000,’’ demonstrating

that ‘‘holding emissions to those

assumed in the attainment plan most

certainly does not assure attainment.’’

The commenter believes that the above

‘‘indicators’’ have not been shown to be

good indicators of regional emissions,

and observes that ‘‘other factors—e.g.,

increased production, construction of

new pollution sources, increased per

capita vehicle ownership—[may] cause

emissions to rise.’’ The commenter cites

EPA rules as requiring modeling to

demonstrate maintenance, ‘‘rather than

the intuitive approach proposed here,’’

and states that without ‘‘such a

modeling demonstration, [EPA] cannot

approve maintenance demonstrations

for these areas.’’

Response: A maintenance plan must

provide sufficient assurances that

attainment of the air quality standard

will continue for at least 10 years after

the area is redesignated to attainment. A

maintenance plan is not required to add

to the set of enforceable emission

limitations in the SIP. If the State can

show that the air quality standard will

be maintained without any additional

measures beyond those that are already

part of the SIP, then the maintenance

plan need not add any additional

measures. Also, if the maintenance plan

relies in part on a previously submitted

attainment demonstration, then the

State need not resubmit that attainment

demonstration.

Ohio’s maintenance plan is in fact

based on its previously submitted

attainment demonstration, which EPA

approved on June 12, 1996, at 61 FR

29662. This analysis assesses the sum of

the impacts of significant industrial

sources at their maximum allowable

emissions plus other, background

sources at actual emission levels. Ohio

demonstrated that the sum of these

impacts is concentrations below the

standard.

Emissions from the significant sources

will be maintained at or below

maximum allowable levels. Therefore,

Ohio can demonstrate maintenance

simply by demonstrating that

background impacts will remain at or

below current levels.

77314 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

Maintenance planning for PM10

differs from maintenance planning for

ozone in this respect. Attainment plans

for PM10 for areas like Cuyahoga and

Jefferson Counties must demonstrate

that attainment will occur even if

sources emit their maximum allowable

amount. As a result, attainment and

maintenance do not depend on

maintaining preexisting levels of

production by facilities in the area.

Since the modeled industrial sources in

the area are the principal contributors to

high PM10 levels in these counties, the

maintenance plan will consist

principally of the limits on these

industrial sources provided in the

attainment plan. The only remaining

question pertains to future background

concentrations. If the State can

demonstrate that background

concentrations will decline over the

next ten years, then the maintenance

demonstration will consist of that

demonstration in conjunction with the

previously approved attainment

demonstration, and the maintenance

plan’s control measures will consist of

the control measures in the attainment

plan.

Ozone maintenance plans are

different because ozone attainment

plans address actual production levels.

This means first that ozone maintenance

plans must project any increases or

decreases in future production. Such

projections must consider all significant

source types, and cannot be restricted to

addressing background contributors.

Thus, maintenance plans for PM10 for

areas like Cuyahoga and Jefferson

County are considerably less

complicated and have much less

potential to require additional controls

than maintenance plans for ozone.

The commenter expressed concern

that the ‘‘indicators’’ that Ohio cites are

not indicative of regional PM10

emissions. In fact, Ohio should not be

seeking to indicate trends in regional

emissions. Ohio is properly relying on

existing SIP limits to address the most

significant regional emissions, and

focusing its additional trend analyses on

sources affecting ‘‘background’’

concentrations. Ohio need not address

increased production at important

industrial facilities, because all

increases up to maximum production

are already accommodated in the

attainment/maintenance demonstration.

Ohio need not address construction of

new pollution sources, because PSD

regulations require any significant new

source to demonstrate that its emissions

will not cause violations of the

standards. Ohio needs to address

increased vehicle ownership, but only

as part of an assessment of trends in

background concentrations.

Despite the relative insignificance of

motor vehicle emissions, EPA has

examined detailed assessments

pertinent to motor vehicle emissions in

Cuyahoga County. Ohio submitted

extensive detail on current and

projected traffic volumes in the

Cleveland area as part of its

maintenance plan for this area for

ozone. Between 1996 and 2010, traffic

volumes are projected to increase by

less than one percent per year. Most of

this growth is occurring in the outer

counties of the area; Cuyahoga County

traffic is projected to grow by less than

1⁄3 percent per year. Meanwhile,

emissions per vehicle are declining as a

result of previous regulations plus the

tighter fuel and emission standards of

the Tier 2 rules discussed below.

Between now and 2010, emissions per

vehicle are expected to decline an

average of 2.5 percent per year, not

including the significant emission

reductions that will result from the Tier

2 rules. The net projected effect is a

significant decline in motor vehicle

emissions in Cuyahoga County over the

next ten years. Similar information

indicates a less than one percent traffic

growth rate in the Steubenville area as

well, so this area too will likely witness

declining motor vehicle emissions.

EPA believes that Ohio has addressed

important elements of the background

concentrations. EPA believes that the

net reduction in motor vehicle

emissions plus the reduction in other

emissions associated with population

will yield a net decline in background

concentrations. According to the

attainment demonstration that EPA has

approved, these background

concentrations in combination with

maximum allowable impacts from

significant sources add up to

concentrations below the standard.

Consequently, EPA believes that Ohio’s

maintenance plan provides for

maintenance of the PM10 standards.

Ohio does not explicitly address

whether maintenance is assured for 10

years. However, Ohio’s approved

attainment demonstration shows that

the standard will be maintained,

principally due to permanent emission

limits on significant sources, so long as

background emissions remain at or

below current levels. Ohio provided

evidence that background emissions

will remain at or below current levels

throughout the next 10 years.

Consequently, EPA is satisfied that Ohio

has assured maintenance for the

requisite 10 years.

Comment: The commenter cites

results of an EPA analysis conducted in

conjunction with adoption of Tier 2

motor vehicle emission standards,

discussed in the Federal Register of

February 10, 2000 (65 FR 6698 and

6719). The commenter states that ‘‘EPA

identified Cuyahoga County as an area

with a ’significant risk of failing to

attain and maintain the PM10 [air

quality standards] without further

reductions in emissions.’’’ The

commenter acknowledges future

reductions from the Tier 2 standards but

states that ‘‘EPA has not shown that

these reductions will be sufficient or

will occur soon enough to prevent

NAAQS violations’’ throughout the next

10 years.

Response: In preparation for adopting

its Tier 2 motor vehicle emission

standards, EPA attempted a national

analysis of prospective attainment with

and without these standards. EPA

identified eight areas as areas of ‘‘high

risk of failing to attain or maintain the

PM10 NAAQS’’. These areas had

monitored violations in 1996 to 1998

and were projected to have continued

violations in 2030 without the Tier 2

standards. These areas were all in

California or neighboring States. EPA

then identified five additional counties,

including Cuyahoga County, as having a

risk of future violations of the PM10

NAAQS. These counties were defined as

attaining the NAAQS based on 1996 to

1998 data but projected to violate the

standards in 2030 in the absence of Tier

2 regulations. The rulemaking cited by

the commenter states, ‘‘There is a

substantial risk that at least some of

[these latter five counties] would fail to

maintain without further emission

reductions. The emission reductions

from the Tier 2/Gasoline Sulfur program

will help to keep them in 40

attainment.’’ EPA in fact adopted the

Tier 2 regulations, so projections of

possible future nonattainment without

these regulations are irrelevant.

Contrary to the commenter’s statements,

EPA’s analysis for the relevant scenario

(with Tier 2 standards) shows continued

maintenance. In addition, a projection

that vehicle emissions without Tier 2

standards could reach levels sufficient

to help cause violations by 2030 does

not necessarily mean that violations

would occur by 2010, the timeframe that

is germane here. In any case, the Tier 2

rulemaking notes that ‘‘[a]fter reviewing

public comments on our presentation of

these modeling results, [EPA] concluded

that [its analysis is] suitable for

estimating PM concentration reductions

for economic benefits estimation, [but] it

is not a tool we can use with high

confidence for predicting that

individual areas that are now in

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77315

attainment will become nonattainment

in the future.’’ Thus the most relevant

analysis is Ohio’s attainment modeling

and maintenance plan information,

which considers local data on the

significance of motor vehicle emissions

and on the population (and thus the

number of drivers). This information,

like the Tier 2 analysis, supports EPA’s

conclusion that Cuyahoga County will

maintain the PM10 NAAQS over the

next ten years.

Comment: The commenter objects

that what EPA calls a maintenance plan

‘‘lacks enforcement programs and

commitments of resources’’ as well as

‘‘legal authority.’’ In addition, the

commenter states that PM10 motor

vehicle emissions budget is ‘‘required

not only for purposes of the attainment

plan, but also for a maintenance plan as

well.’’ Finally, the commenter states

that ‘‘the state lacks adequate

contingency plans for maintenance’’

pursuant to Section 175A(d). The

commenter acknowledges that Ohio has

contingency measures ‘‘designed to

produce limited annual progress toward

attainment in the event of a shortfall,’’

but the commenter believes that these

measures fail to meet a different

requirement applicable to maintenance

plans ‘‘to assure that the State will

promptly correct any violation of the

standard.’’

Response: The requirements under

Section 110(a)(2)(E) that the commenter

cites were addressed in general by Ohio

in its initial SIP, submitted on January

31, 1972, and ultimately approved on

April 15, 1974 (39 FR 13539). EPA’s

conclusion in that rulemaking remains

valid, that Ohio’s enforcement program,

commitment of resources, and legal

authority are adequate and assure that

measures in the SIP (including

maintenance plan measures) will be

implemented. See Calcagni

Memorandum cited above and

Southwestern Pennsylvania Growth

Alliance v. Browner, 144 F.3d 984 (6th

Cir. 1998). See also discussion in

Cincinnati-Hamilton redesignation

notice at 65 FR 37882. If EPA were to

find that SIP measures were not being

implemented, for lack of the above or

for any other reason, the process leading

to sanctions under Section 179(a)(4)

would commence.

A response above clarifies that motor

vehicle emission budgets are not

required for PM10 in areas where motor

vehicles do not contribute significantly

to PM10 nonattainment. Thus, neither

the attainment plans nor the

maintenance plans for Cuyahoga and

Jefferson Counties need to have a motor

vehicle emissions budget.

The commenter acknowledges that

the Ohio SIP includes contingency

measures. These measures, approved on

May 6, 1996 (61 FR 20142), are triggered

on the basis of air quality monitoring

data irrespective of attainment status.

That is, these measures are valid

maintenance plan contingency measures

because they take effect if violations

recur for any reason after redesignation

of the areas to attainment. The question

of interest here, then, is whether these

contingency measures are adequate to

satisfy Section 175A(d).

The commenter’s quote from Section

175A(d) omits a key qualifier that

invokes EPA’s judgment in assessing

contingency measure adequacy for

maintenance plan purposes. The full

sentence in Section 175A(d) reads:

‘‘Each plan revision submitted under

this section shall contain such

contingency provisions as the

Administrator deems necessary

[emphasis added] to assure that the

State will promptly correct any

violation of the standard which occurs

after the redesignation of the area as an

attainment area.’’ Section 175A(d) does

not dictate that the maintenance plan

contingency measures be sufficient by

themselves to correct any violation of

the standard. Instead, these measures

need only be sufficient in EPA’s

judgment to help assure that the State

will promptly correct any future

violation.

A variety of sources emit PM10, so

nonattainment can occur for a variety of

reasons. EPA cannot reasonably expect

maintenance plan contingency measures

by themselves to address all possible

future violations. Instead, EPA must

judge the contingency measures in the

context of the types of future violations

that it views as most likely and in the

context of other factors which help

assure that the State will correct any

future violations.

Additional factors that help assure

prompt correction of any future PM10

violation in Cuyahoga County or the

Steubenville area include provisions in

Ohio’s regulations that allow the State

to impose additional source controls if

violations occur and provisions in the

Clean Air Act Section 110(h) (provisions

for SIP Calls). EPA is satisfied that the

contingency measures that are included

in Ohio’s maintenance plan for

Cuyahoga and Jefferson Counties, in

combination with other factors, assure

that Ohio will promptly correct any

future violations in these areas.

III. What Actions Is EPA Taking, and

Why?

EPA is redesignating Cuyahoga and

Jefferson Counties in Ohio to attainment

for PM10 and is approving Ohio’s PM10

maintenance plan for these counties.

The redesignation action reflects EPA’s

judgment of Ohio’s request, focusing on

the five criteria given in Clean Air Act

Section 107(d)(3)(E) for redesignations

from nonattainment to attainment.

The first criterion is that the areas are

in fact attaining the standards. The

standards in question are the PM10

standards given in 40 CFR 50.6,

promulgated in 1987. Although EPA

promulgated new standards for PM10

into 40 CFR 50.7, these new standards

have been vacated by the District of

Columbia Circuit Court of Appeals, no

designations have been promulgated for

these new standards, and this rule

addresses only the older standards.

No concentrations exceeding the

applicable standards have been

recorded in Jefferson County or in most

of Cuyahoga County. Exceedances

occurred at two sites in Cleveland. One

site was found to have 2 exceedances of

the 24-hour standard over 3 years,

which was found to translate to 0.7

expected exceedances per year. EPA

proposed this finding, no commenter

challenged this finding, and EPA now

concludes that the standard is being

attained at this site. A second site

observed 1 exceedance of the 24-hour

standard in 1997 to 1999, which was

found to translate to 0.3 expected

exceedances per year. A commenter

challenged this view, noting that EPA’s

AIRS database indicates 6 expected

exceedances in 1999 as well as 6

expected exceedances in 2000. As

discussed above in response to

comments, EPA finds that the more

sophisticated methods of data

interpretation described in the proposed

rulemaking give a better assessment of

expected exceedances at this site. These

methods indicate that the site had

approximately one expected exceedance

for 1999. A similar assessment of the

data so far in 2000 also indicate

approximately one expected

exceedance. While it is problematic to

average in data for only half of 2000,

these data support a conclusion that

expected exceedances averaged over 3

years is less than 1.0. Consequently,

EPA finds that these two sites, as well

as the rest of Cuyahoga County, are

attaining the applicable PM10 standards.

As noted in the proposed rulemaking,

Jefferson County is part of a two-state

area that also includes a portion of

Brooke County, West Virginia.

Satisfaction of the attainment criterion

requires that air quality throughout this

two-state Steubenville area be attaining

the standards. The West Virginia

portion of this area has one monitor,

which has shown no recent

77316 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

exceedances. Thus, this criterion is met

because the entire Steubenville area is

attaining the standards.

The second criterion is that EPA has

fully approved the applicable

implementation plan for the areas. The

most recent approval, including

approval of Ohio’s attainment

demonstrations, was published on June

12, 1996, at 61 FR 29662. Other

applicable plan elements were approved

on prior occasions. EPA does not

require full approval of new source

review rules or conformity as a

prerequisite for redesignation, and,

moreover, the conformity regulations do

not apply to these areas for PM10. While

approval of the SIP for the West Virginia

portion of the Steubenville area was

published separately, both SIPs have

been approved on the basis of the same,

jointly developed attainment strategy.

The third criterion is that the air

quality improvement be due to

permanent and enforceable reductions.

EPA finds that air quality has

significantly improved as a result of

emission reductions that limits in the

SIP make permanent and enforceable.

The fourth criterion is that EPA has

fully approved a maintenance plan. This

rule approves Ohio’s maintenance plan

for Cuyahoga and Jefferson Counties.

Ohio held a public hearing on its

maintenance plan and otherwise

satisfied the procedural requirements

for adopting and submitting this plan.

The most important part of this plan is

the continuation of SIP emission limits

on major industrial sources which have

been shown by modeling to assure

attainment even if the sources operate at

maximum capacity. Additional factors

will assure that the remaining,

background concentrations will remain

at attainment levels, including ongoing

plus forthcoming mobile source control

requirements as well as population

declines in the two areas. Although a

commenter expressed numerous

concerns about Ohio’s maintenance

plans, the review of those concerns

discussed in the previous section lead

EPA to conclude that the maintenance

plans fully meet applicable

requirements. With today’s approval of

Ohio’s maintenance plans, the fourth

criterion for redesignation of the two

counties is satisfied.

The fifth criterion for redesignation is

that the State has met all requirements

under Section 110 and Part D of the

Clean Air Act that apply to the areas.

This criterion is similar to the second

criterion, and EPA finds that Ohio has

met all relevant requirements.

For the Steubenville area, EPA is

taking action today only on the Ohio

portion of this area. This approach is for

administrative convenience and in no

way signifies any splitting of the area

into separate air quality planning areas.

EPA’s action today reflects a review of

the air quality for the full Steubenville

area as well as Ohio’s fulfillment of its

portion of an attainment plan that Ohio

and West Virginia jointly developed.

EPA has received no redesignation

request for the West Virginia portion of

the Steubenville area. EPA anticipates

receiving and rulemaking on such a

request in the near future. If in the

future the standard is violated in either

portion of the area, such that

redesignation back to nonattainment is

warranted, EPA will reinstate

nonattainment status for the entire area.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled ‘‘Regulatory Planning and

Review.’’

B. Executive Order 13045

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) Is

determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to Executive

Order 13045 because it does not involve

decisions intended to mitigate

environmental health or safety risks that

may have disproportionate effects on

children.

C. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly

affects or uniquely affects the

communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. This action

does not involve or impose any

requirements that affect Indian Tribes.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

D. Executive Order 13132

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612 (Federalism) and 12875

(Enhancing the Intergovernmental

Partnership). Executive Order 13132

requires EPA to develop an accountable

process to ensure ‘‘meaningful and

timely input by State and local officials

in the development of regulatory

policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’ Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This rule will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations 77317

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, because it

merely affects the status of a

geographical area, does not impose any

new requirements on sources, or allows

a state to avoid adopting or

implementing other requirements, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

E. Executive Order 12898

Executive Order 12898 (59 FR 7629,

February 16, 1994) instructs EPA to

address, as appropriate,

disproportionately high and adverse

health or environmental effects on

minority and low-income populations.

EPA has found that this rulemaking is

consistent with Executive Order 12898

and does not impose any

disproportionately high and adverse

human health or environmental effects

on minority and low-income

populations.

F. Regulatory Flexibility

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This rule will not have a significant

impact on a substantial number of small

entities because SIP approvals under

section 110 and subchapter I, part D of

the Clean Air Act do not create any new

requirements but simply approve

requirements that the State is already

imposing. In addition, redesignation of

an area to attainment under section

107(d)(3)(E) of the Clean Air Act does

not impose any new requirements on

small entities. Redesignation is an

action that affects the status of a

geographical area and does not impose

any new requlatory requirements on

sources. Therefore, because the Federal

SIP approval does not create any new

requirements, I certify that this action

will not have a significant economic

impact on a substantial number of small

entities. Moreover, due to the nature of

the Federal-State relationship under the

Clean Air Act, preparation of flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA,

427 U.S. 246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

G. Unfunded Mandates

Under sections 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

H. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit 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 United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2). This rule

will be effective January 10, 2001.

I. National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use ‘‘voluntary

consensus standards’’ (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, and

in the absence of a prior existing

requirement for the State to use

voluntary consensus standards (VCS),

EPA has no authority to disapprove a

SIP submission for failure to use VCS.

It would thus be inconsistent with

applicable law for EPA, when it reviews

a SIP submission, to use VCS in place

of a SIP submission that otherwise

satisfies the provisions of the Clean Air

Act. Redesignation is an action that

affects the status of a geographical area

but does not impose any new

requirements on sources. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply.

J. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by February 9, 2001.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

Nothing in this action should be

construed as permitting or 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 regulatory requirements.

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Particulate matter,

Reporting and recordkeeping

requirements.

77318 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Rules and Regulations

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: November 29, 2000.

Elissa Speizman,

Acting Regional Administrator, Region 5.

Chapter I, title 40 of the Code of

Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart KK—Ohio

2. Section 52.1880 is amended by

removing and reserving paragraph (d)

and adding paragraph (j) to read as

follows:

§ 52.1880 Control strategy: Particulate

matter.

(j) Approval—EPA is approving the

PM10 maintenance plan for Cuyahoga

and Jefferson Counties that Ohio

submitted on May 22, 2000, and July 13,

2000.

PART 81—[AMENDED]

1. The authority citation for part 81

continues to read as follows:

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

2. Section 81.336 is amended by

revising the table ‘‘Ohio—PM–10’’ to

read as follows:

§ 81.336 Ohio.

* * * * *

OHIO—PM–10

Designated Area

Designation Classification

Date Type Date Type

Cuyahoga County ..................................................................................................... 1/10/01 Attainment.

Jefferson County

The area bounded by Market Street (State Route 43) from the West Virginia/

Ohio border west to Sunset Blvd. (U.S. Route 22), Sunset Blvd. west to

the Steubenville Township/Cross Creek Township boundary, the Township

boundary south to the Steubenville Corporation limit, the corporation

boundary east to State Route 7, State Route 7 South to the Steubenville

Township/Wells Township boundary, the Township boundary

Unclassifiable east to the West Virginia/Ohio border, and North on the border to Market Street

1/10/01 Attainment.

Rest of State ............................................................................................................. 11/15/90 Unclassifiable.

* * * * *

[FR Doc. 00–31329 Filed 12–8–00; 8:45 am]

BILLING CODE 6560–50–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

(DA 00–2713, MM Docket No. 94–29, RM–

8416)

Radio Broadcasting Services; Willows

and Dunnigans, California

AGENCY: Federal Communications

Commission.

ACTION: Final rule: petition for

reconsideration.

SUMMARY: This document denies the

petition for reconsideration filed by

Marysville Radio, Inc. and Roseville

Radio, Inc., of our Report and Order, 60

FR 55332 (October 31, 1995) which

substituted Channel 288B1 for Channel

288A and reallotted Channel 288B1

from Willows to Dunnigan, California

and modified the license for Station

KIQS–FM accordingly. The Commission

determined that a new engineering

study can not be relied upon and that

the Report and Order properly

compared the existing and proposed

arrrangement of allotments under the

FM Priorities. With this action, this

proceeding is terminated.

FOR FURTHER INFORMATION CONTACT:

Arthur D. Scrutchins, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s

Memorandum Opinion and Order, MM

Docket No. 94–29, adopted November

22, 2000 and released December 1, 2000.

The full text of this Commission

decision is available for inspection and

copying during normal business hours

in the FCC Reference Information Center

(Room CY–A257), at its headquarters,

445 12th Street, S.W. Washington, D.C.

The complete text of this decision

may also be purchased from the

Commission’s copy contractors,

International Transcription Service,

Inc., (202) 857–3800, 1231 20th Street,

N.W. Washington, D.C. 20036.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 00–31398 Filed 12–8–00; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[DA 00–2711, MM Docket No. 99–58; RM–

9461 RM–9611]

Radio Broadcasting Services;

Strattanville and Farmington

Township, PA

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission, at the

request of West Wind Broadcasting,

allots Channel 267A at Strattanville,

Pennsylvania, as the community’s first

local aural transmission service (RM–

9461). See 64 FR 8782, February 23,

1999. At the request of Clarion County

Broadcasting, Inc., we also allot Channel

291A at Farmington Township,

Pennsylvania, as the community’s first

local aural transmission service (RM–

9611). Channel 267A can be allotted at

Strattanville in compliance with the

Commission’s minimum distance

separation requirements with a site

restriction of 15.1 kilometers (9.4 miles)

northeast to avoid a short-spacing to the

licensed site of Station WORD-FM,

Channel 268B, Pittsburgh,

Pennsylvania. The coordinates for