[Federal Register Volume 63, Number 18 (Wednesday, January 28, 1998)]
[Rules and Regulations]
[Pages 4188-4195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2081]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH58-1a; FRL-5954-6]


Approval and Promulgation of State Implementation Plan; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In this action, EPA is approving as a revision to the Ohio 
State Implementation Plan (SIP) a rate-of-progress plan for the purpose 
of reducing volatile organic compounds (VOC) emissions in the Ohio 
portion of the Cincinnati-Hamilton area by 15 percent by November 15, 
1996. The plan and regulations will help to protect the public's health 
and welfare by reducing the VOC emissions that contribute to the 
formation of ground-level ozone, commonly known as urban smog. 
Elsewhere in this Federal Register, EPA is proposing approval and 
soliciting comment on this action; if written

[[Page 4189]]

adverse comments (not previously addressed) are received on the 
approval of the rate-of-progress plan, EPA will withdraw the direct 
final approval of the plan and address the comments received in a new 
final rule. Unless this direct final is withdrawn, no further 
rulemaking will occur on this requested SIP revision.

DATES: This rule is effective March 30, 1998 unless EPA receives 
adverse or critical comments by February 27, 1998. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Comments may be mailed to: J. Elmer Bortzer, Chief, 
Regulation Development Section, Air and Radiation Division, Air 
Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 
West Jackson Boulevard, Chicago, Illinois 60604.
    Copies of the documents relevant to this action are available at 
the above address for public inspection during normal business hours.

FOR FURTHER INFORMATION CONTACT: William Jones, Environmental Scientist 
at (312) 886-6058 and Francisco Acevedo, Environmental Protection 
Specialist at (312) 886-6061.

SUPPLEMENTARY INFORMATION:

I. Background on Rate-of-Progress and Contingency Plan Requirement

    On November 15, 1990, Congress enacted amendments to the 1977 Clean 
Air Act (CAA); Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 
7401-7671q.
    Section 182(b)(1) of the Clean Air Act requires moderate and above 
ozone nonattainment areas to submit plans to reduce their VOC emissions 
by 15 percent by 1996. These plans are referred to as 15 percent rate 
of progress (15% ROP) plans. These plans were due to be submitted to 
the Environmental Protection Agency (EPA) by November 15, 1993. In 
Ohio, these plans were due for the Toledo, Dayton-Springfield, 
Cleveland-Akron-Lorain areas, and the Ohio portion of the Cincinnati-
Hamilton Moderate ozone nonattainment area.
    On November 12, 1993, Ohio submitted 15% plans for the Toledo, 
Dayton-Springfield, Cleveland-Akron-Lorain, and the Ohio portion of the 
Cincinnati-Hamilton areas. EPA reviewed these plans to determine if 
they satisfied the completeness criteria so that the rulemaking process 
could begin. On January 21, 1994, EPA notified Ohio that EPA was making 
a finding of incompleteness on the 15% ROP plan submittals and starting 
a clock for imposing sanctions in these areas. In order to stop this 
clock the State had to submit a complete 15% ROP plan for the State's 
moderate ozone nonattainment areas.
    On March 14, 1994, OEPA Director Schregardus submitted Ohio's 15% 
ROP plans, along with several other State Implementation Plan 
revisions, to EPA. Only the 15% ROP plan for the Ohio portion of the 
Cincinnati-Hamilton area is subject to this approval. The requirements 
for a 15% ROP plan in the Toledo and Dayton-Springfield areas were no 
longer applicable after these areas were redesignated as ozone 
attainment areas, see 60 FR 39115 (dated August 1, 1995) and 60 FR 
22289 (dated May 5, 1995). The 15% ROP plan requirement for the 
Cleveland-Akron-Lorain area was determined to be fulfilled since the 
area reached attainment and, therefore, no further emissions reductions 
were necessary to reach attainment of the ozone air quality standard. 
See 61 FR 20458 (dated May 7, 1996).
    The 15% ROP plans submitted by OEPA on March 14, 1994, were found 
complete by EPA on August 8, 1994, in a letter to the State of Ohio. 
The completeness review of the plans is contained in an EPA memorandum 
dated May 12, 1994, a copy of which can be found in the docket.

II. Review Criteria

    The requirements for a 15% ROP plan and its contents are found in 
Section 182(b)(1) of the CAA and the following EPA documents:
    1. Procedures for Preparing Emissions Projections, EPA-450/4-91-
019, July 1991.
    2. State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990; 
Proposed rule (57 FR 13498), Federal Register, April 16, 1992.
    3. ``November 15, 1992, Deliverables for RFP and modeling Emission 
Inventories,'' Memorandum from J. David Mobley, Edwin L. Meyer, and G. 
T. Helms, Office of Air Quality Planning and Standards, Environmental 
Protection Agency, August 7, 1992.
    4. Guidance on the Adjusted Base Year Emissions Inventory and the 
1996 Target for the 15 Percent Rate of Progress Plans, EPA-452/R-92-
005, October 1992.
    5. ``Quantification of Rule Effectiveness Improvements,'' 
Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs 
Branch, Office of Air Quality Planning and Standards, Environmental 
Protection Agency, October 1992.
    6. Guidance for Growth Factors, Projections, and Control Strategies 
for the 15 Percent Rate-of-Progress Plans, EPA-452/R-93-002, March 
1993.
    7. ``Correction to `Guidance on the Adjusted Base Year Emissions 
Inventory and the 1996 Target for the 15 Percent Rate of Progress 
Plans','' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide 
Programs Branch, Office of Air Quality Planning and Standards, 
Environmental Protection Agency, March 2, 1993.
    8. ``15 Percent Rate-of-Progress Plans,'' Memorandum from G.T. 
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air 
Quality Planning and Standards, Environmental Protection Agency, March 
16, 1993.
    9. Guidance on the Relationship Between the 15 Percent Rate-of-
Progress Plans and Other Provisions of the Clean Air Act, EPA-452/R-93-
007, Environmental Protection Agency, May 1993.
    10. ``Credit Toward the 15 Percent Rate-of-Progress Reductions from 
Federal Measures,'' G. T. Helms, Chief Ozone/Carbon Monoxide Programs 
Branch, May 6, 1993.
    11. Guidance on Preparing Enforceable Regulations and Compliance 
Programs for the 15 Percent Rate-of-Progress Plans, EPA-452/R-93-005, 
Environmental Protection Agency, June 1993.
    12. ``Correction Errata to the 15 Percent Rate-of-Progress Plan 
Guidance Series,'' G.T. Helms, Chief, Ozone and Carbon Monoxide 
Programs Branch, July 28, 1993.
    13. ``Early Implementation of Contingency Measures for Ozone and 
Carbon Monoxide (CO) Nonattainment Areas,'' G. T. Helms, Chief, Ozone/
Carbon Monoxide Programs Branch, August 13, 1993.
    14. ``Region III Questions on Emission Projections for the 15 
Percent Rate-of-Progress Plans,'' Memorandum from G.T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, Office of Air Quality Planning 
and Standards, Environmental Protection Agency, August 17, 1993.
    15. ``Guidance on Issues Related to 15 Percent Rate-of-Progress 
Plans,'' Michael H. Shapiro, Acting Assistant Administrator for Air and 
Radiation, August 23, 1993.
    16. ``Credit Toward the 15 Percent Requirements from Architectural 
and Industrial Maintenance Coatings,'' John S. Seitz, Director, Office 
of Air Quality Planning and Standards, September 10, 1993.
    17. ``Reclassification of Areas to Nonattainment and 15 Percent 
Rate-of-Progress Plans,'' John S. Seitz, Director, Office of Air 
Quality Planning and Standards, September 20, 1993.

[[Page 4190]]

    18. ``Clarification of `Guidance for Growth Factors, Projections 
and Control Strategies for the 15 Percent Rate of Progress Plans','' 
Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs 
Branch, Office of Air Quality Planning and Standards, Environmental 
Protection Agency, October 6, 1993.
    19. ``Review and Rulemaking on 15 Percent Rate-of-Progress Plans,'' 
Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs 
Branch, Office of Air Quality Planning and Standards, Environmental 
Protection Agency, October 6, 1993.
    20. ``Questions and Answers from the 15 Percent Rate-of-Progress 
Plan Workshop,'' G.T. Helms, Chief, Ozone/Carbon Monoxide Programs 
Branch, October 29, 1993.
    21. ``Rate-of-Progress Plan Guidance on the 15 Percent 
Calculations,'' D. Kent Berry, Acting Director, Air Quality Management 
Division, October 29, 1993.
    22. ``Clarification of Issues Regarding the Contingency Measures 
that are due November 15, 1993 for Moderate and Above Ozone 
Nonattainment Areas,'' D. Kent Berry, Acting Director, Air Quality 
Management Division, November 8, 1993.
    23. ``Credit for 15 percent Rate-of-Progress Plan Reductions from 
the Architectural and Industrial Maintenance (AIM) Coating Rule,'' John 
S. Seitz, Director, Office of Air Quality Planning and Standards, 
December 9, 1993.
    24. ``Guidance on Projection of Nonroad Inventories to Future 
Years,'' Memorandum from Philip A. Lorang, Director, Emission Planning 
and Strategies Division, Office of Air and Radiation, Environmental 
Protection Agency, February 4, 1994.
    25. ``Discussion at the Division Directors' Meeting on June 1 
Concerning the 15 Percent and 3 Percent Calculations,'' Memorandum from 
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air 
Quality Planning and Standards, Environmental Protection Agency, June 
2, 1994.
    26. ``Future Nonroad Emission Reduction Credits for Court-Ordered 
Nonroad Standards,'' Memorandum from Philip A. Lorang, Director, 
Emission Planning and Strategies Division, Office of Air and Radiation, 
Environmental Protection Agency, November 28, 1994.
    27. ``Credit for the 15 Percent Rate-of-Progress Plans for 
Reductions from the Architectural and Industrial Maintenance (AIM) 
Coating Rule and the Autobody Refinishing Rule,'' John S. Seitz, 
Director, Office of Air Quality Planning and Standards, November 29, 
1994.
    28. ``Transmittal of Rule Effectiveness Protocol for 1996 
Demonstrations,'' Memorandum from Susan E. Bromm, Director, Chemical, 
Commercial Services and Municipal Division, Office of Compliance, 
Environmental Protection Agency, December 22, 1994.
    29. ``Future Nonroad Emission Reduction Credits for Locomotives,'' 
Memorandum from Philip A. Lorang, Director, Emission Planning and 
Strategies Division, Office of Air and Radiation, Environmental 
Protection Agency, January 3, 1995.
    30. ``Credit for the 15 Percent Rate-of-Progress Plans for 
Reductions from the Architectural and Industrial Maintenance (AIM) 
Coating Rule,'' John S. Seitz, Director, Office of Air Quality Planning 
and Standards, March 22, 1995.
    31. ``Fifteen Percent Rate-of-Progress Plans--Additional 
Guidance,'' John S. Seitz, Director, Office of Air Quality Planning and 
Standards, May 5, 1995.
    32. ``Update on the credit for the 15 percent Rate-of-Progress 
Plans for Reductions from the Architectural and Industrial maintenance 
coatings rule,'' John S. Seitz, Director, Office of Air Quality 
Planning and Standards, March 7, 1996.
    33. ``Date by which States Need to Achieve all the Reductions 
Needed for the 15% Plan from Inspection and Maintenance (I/M) and 
Guidance for Recalculation,'' memorandum from Margo Oge, Director, 
Office of Mobile Sources, and John S. Seitz, Director, Office of Air 
Quality Planning and Standards, Environmental Protection Agency, August 
13, 1996.
    34. ``Modeling 15 Percent Volatile Organic Compound (VOC) 
Reduction(s) from I/M in 1999: Supplemental Guidance,'' memorandum from 
Gay MacGregor, Director, Regional and State Programs Division, and 
Sally Shaver, Director, Air Quality Strategies and Standards Division, 
Environmental Protection Agency, December 23, 1996.
    35. ``15% Volatile Organic Compound (VOC) State Implementation Plan 
(SIP) Approvals and the `As Soon As Practicable' Test,'' memorandum 
from John S. Seitz, Director, Office of Air Quality Planning and 
Standards, and Richard B. Ossias, Deputy Associate General Counsel, 
Division of Air and Radiation, Office of General Counsel, Environmental 
Protection Agency, February 12, 1997.
    Section 182(b)(1) requires that the ROP plan provide for a 15 
percent reduction in base line emissions of VOCs, accounting for any 
growth in emissions after 1990. Section 182(b)(1) also allows an area 
to reduce its emissions by a percentage less than 15 percent provided 
that (1) the State demonstrates that the area requires new source 
review provisions to the same extent as required in Extreme Areas, 
except that the definition of a major source is lowered to sources with 
a potential to emit 5 tons per day of VOCs; (2) Reasonably Available 
Control Technology (RACT) is required for all existing major stationary 
sources; and (3) the plan includes all measures that can feasibly be 
implemented in the area, in light of technological achievability. To 
qualify for a percentage less than 15 percent, a State must demonstrate 
to the satisfaction of the EPA that the plan for the area includes the 
measures that are achieved in practice by sources in the same source 
category in nonattainment areas of the next higher category.
    The CAA also provides details on calculating the 15 percent 
emissions reduction. The CAA defines the base line emissions to be the 
total amount of actual VOC emissions from all anthropogenic sources in 
the area during the calendar year of 1990, excluding emissions that 
would be eliminated under any Federal Motor Vehicle Emissions Control 
Program (FMVECP) measures promulgated by EPA by January 1, 1990, and 
any Reid Vapor Pressure (RVP) regulations promulgated by EPA by 
November 15, 1990 or required to be promulgated under section 211 of 
the Act. This is further explained in EPA's General Preamble at 57 FR 
13498.
    Section 182(b)(1) allows emissions reductions to be creditable 
except for the RVP and FMVECP programs mentioned above, any measures 
requiring corrections to motor vehicle inspection and maintenance 
programs required to be submitted immediately after enactment, and 
corrections to the States VOC RACT rules that were required by section 
182(a)(2)(A) concerning RACT fix-up requirements.
    In general, emissions reductions are creditable toward the ROP 
emissions reduction to the extent they have actually occurred, as of 6 
years after November 15, 1990, resulting from the implementation of 
measures required under the applicable implementation plan, rules 
promulgated by the Administrator, or a permit issued under Title V.
    In addition, section 172(C)(9) requires that the plan provide for 
the implementation of specific measures to be undertaken if the area 
fails to make reasonable further progress, or to attain the national 
primary ambient air quality standard by the applicable attainment date. 
Such measures shall be included

[[Page 4191]]

in the plan revision as contingency measures.

III. Review of the 15% ROP Plan

    EPA compared the State's submittal for consistency with the 
requirements of the CAA and Agency policy and guidance. A summary of 
this analysis is provided below.

A. Emission Inventory

    Sections 172(c)(3) and 182(a)(1) of the Act require that 
nonattainment plan provisions include a comprehensive, accurate, 
current inventory of actual emissions from all sources of relevant 
pollutants in the nonattainment area. This inventory provides an 
estimate of the amount of VOC, carbon monoxide and oxides of nitrogen 
produced by emissions sources such as automobiles, powerplants, and the 
use of consumer solvents in the household. On December 7, 1995, EPA 
approved Ohio's 1990 base year inventory for the Cincinnati-Hamilton 
area. For specific details of the final rulemaking, see 60 FR 62737. 
Therefore, the Cincinnati-Hamilton area has a comprehensive, accurate, 
current inventory of actual emissions from all sources of relevant 
pollutants in the nonattainment area.
    The 1990 base year emissions inventory required by section 182(a) 
was submitted to EPA at the same time that the 15 percent ROP plan was 
submitted for the Cincinnati-Hamilton area, in March of 1994. The base 
year emissions inventory was later modified by the State based on EPA 
comments. The modified inventory resulted in a higher level of 
estimated VOC emissions in 1990. The State based its 15% ROP plan on 
its emissions inventory that was submitted in March of 1994. The State 
will not be required to revise the 15% ROP plan at this time to account 
for a revised 1990 base year level of VOC emissions. If the State were 
required to go back and adjust its 15% ROP plan whenever something 
changes in the base year emissions inventory, it would result in a 
moving emissions reduction target that the State would have to try to 
meet by continually adjusting the control measures being relied on. 
This would result in a significant delay in developing 15% ROP plans. 
This is not a reasonable expectation for areas that are required to 
prepare the 15% ROP plans, and, accordingly, EPA is not requiring that 
the State change its 15% ROP plan at this time.

B. Calculation of the Adjusted Base Year Inventory

    The Act specifies the emission baseline from which the 15 percent 
reduction is calculated. This baseline value is termed the 1990 
adjusted base year inventory. Section 182(b)(1)(D) excludes from the 
baseline the emissions that would be eliminated by FMVECP regulations 
promulgated by January 1, 1990, and RVP regulations (55 FR 23666, June 
11, 1990) promulgated by EPA prior to November 15, 1990, which limit 
the volatility of gasoline in nonattainment areas during the peak ozone 
season. The FMVECP provides requirements that automobile manufacturers 
must meet in building new automobiles. These requirements result in 
automobiles being manufactured today that produce less pollution 
compared to cars manufactured years ago.
    The adjusted base year inventory is determined by starting with the 
base year 1990 emission inventory (which is described under A. above), 
and then removing all biogenic emissions as well as emissions from 
sources located outside of the designated nonattainment boundary. The 
resulting inventory is termed the 1990 rate-of-progress base year 
inventory. The 1990 rate-of-progress base year inventory is then 
adjusted by removing the expected FMVECP and RVP reductions in order to 
derive the adjusted base year inventory. As specified by EPA's General 
Preamble, see 57 FR 13507, emission credits banked preenactment were 
not included in the emissions inventories.
    Ohio used EPA's MOBILE5a emission factor model to calculate its 
adjusted base year inventory. The documentation includes actual 1990 
motor vehicle emissions using 1990 vehicle miles traveled (VMT) and 
MOBILE5a emission factors, and the adjusted emissions using 1990 VMT 
and the MOBILE5a emission factors in calendar year 1996 with the 
appropriate RVP for the nonattainment area as required by EPA.
    Provided in table 1 is a summary of the results of the emissions 
calculations used to determine the required 15 percent ROP plan 
reduction.

                     Table 1.--Calculations Summary                     
------------------------------------------------------------------------
Rate of progress summary for the Ohio portion of the Cincinnati-Hamilton
                                  area                                  
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                                                         VOC emissions  
        Calculation of reduction needs by 1996             (tons/day)   
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1990 Cincinnati-Hamilton VOC Emissions...............             383.40
1990 Rate-of-Progress Base Year Emissions Inventory                     
 (Anthropogenic Only)................................             273.51
Noncreditable Emission Reductions from FMVECP and RVP                   
 expected by 1996....................................              58.57
1990 Adjusted Base Year Inventory (minus RVP and                        
 FMVECP).............................................             214.94
15 percent of Adjusted Base Year Emissions...........              32.24
1990-1996 Noncreditable Emission Reductions from                        
 corrections to VOC RACT rules and the required Basic                   
 Automobile Inspection/Maintenance program...........               4.80
Total expected emissions reductions by 1996..........              95.61
1996 Target Level of Emissions.......................             177.90
Estimated 1996 Emissions (Anthropogenic), including                     
 growth..............................................             225.89
REQUIRED REDUCTIONS BY 1996 TO MEET THE 15 PERCENT                      
 RATE OF PROGRESS REQUIREMENTS.......................              47.99
                                                                        
          Control Measures Used to Meet ROP              VOC emissions  
                                                           (tons/day)   
                                                                        
Stage II Gasoline Vapor Recovery.....................               4.29
Enhanced Automobile Inspection and Maintenance (E-                      
 Check)..............................................              18.80
NESHAP for reducing coke by product Benzene emissions              20.06
Enforcement Cases....................................               0.85
Architectural Coatings...............................               4.00
TOTAL EMISSIONS REDUCTIONS...........................              48.00
CONTINGENCY EMISSIONS REDUCTION......................               7.01
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[[Page 4192]]

C. Required VOC Emission Reductions

    The 1990 adjusted base year inventory is multiplied by 0.15 to 
calculate 15% of the adjusted base year emissions. Therefore, to meet 
the rate-of-progress requirement, Ohio's plan must provide for at least 
a 32.24 tons per day (TPD) reduction in VOC emissions, in addition to 
the reduction needed to offset growth.
    Under section 182(b)(1)(D) of the Act, the following reductions are 
not creditable toward the rate-of-progress reductions: (1) FMVECP 
regulations promulgated by January 1, 1990; (2) RVP regulations 
promulgated by EPA before enactment of the 1990 Clean Air Act 
amendments; (3) certain corrections to VOC RACT rules (which require 
controls on certain industrial operations); and (4) corrections to 
basic automobile inspection and maintenance programs. Thus, the total 
expected reductions are comprised of the reductions necessary to meet 
the ROP requirement and the expected emissions reductions from the four 
noncreditable programs just described. The total expected emissions 
reductions are 95.61 TPD.
    The amount of reduction necessary to meet the contingency plan 
requirement is 3 percent of the adjusted base year inventory. 
Therefore, the adjusted base year inventory is multiplied by 0.03 to 
calculate the amount of required reduction for the contingency plan 
requirement. Therefore, to meet the contingency requirement, the 
State's plan must provide for at least a 6.45 TPD reduction in VOC 
emissions, in addition to the other emissions reduction measures. Ohio 
has documented the correct amount for the total expected reductions in 
the nonattainment area by showing each step used in the calculations. 
The 1996 target level of VOC emissions is the 1990 ROP base year 
inventory minus the total expected emission reductions.

D. Projected Emission Inventory

    Emission projections for sources within an air basin are needed to 
determine if the rate-of-progress requirements in the Act are met and 
to determine if the area will attain the National Ambient Air Quality 
Standards (NAAQS) by the applicable attainment date. The purpose of 
projecting the emission inventories into the future is not solely to 
predict what is likely to happen without additional controls, but also 
to gauge the ability of the regulations in the control strategy to meet 
the ROP goals.
    Growth factors are not included in the calculations of the 1990 
adjusted base year inventory or the 1996 target level of emissions. 
Growth factors are needed, however, to project emissions to 1996 for 
the ROP demonstration as part of the ROP plan.
    The State calculated the point source emissions growth based on 
earnings data obtained from the Bureau of Economic Analysis. The point 
source growth factors ranged from a 4 percent decrease to a 5 percent 
increase per year. Area source emissions were projected based on 
population, industrial employment, and state gasoline consumption 
growth. The annual population growth factors for the four Ohio counties 
range from 0.1 percent to 1.6 percent. Industrial employment is 
projected to decrease by about 0.1 percent per year. The State gasoline 
consumption is estimated to decrease by about 8 percent from 1990 to 
1996. The VMT were projected to grow from 25,671,581 miles per day in 
1990 to 27,586,074 miles per day in 1996. This is a 7.46 percent 
increase in VMT over 6 years. These are acceptable growth estimates. 
Total estimated 1996 VOC emissions including growth was calculated as 
225.89 TPD. Mobile source emissions account for 80.32 TPD of the total 
emissions.

E. Required Emissions Reduction

    The required VOC emissions reduction to meet the 15% ROP 
requirements is 47.99 TPD. This is the difference between the estimated 
1996 emissions with growth and no additional controls and the 1996 
target level of emissions.

F. Control Measures

    The revision submitted by the State lists a series of control 
measures projected to achieve a 48.0 TPD reduction in VOC emissions. 
See the table below for a list of the measures and their status. The 
table does not include any Federal measures used to reduce the mobile 
source emissions. These reductions are already accounted for in the 
MOBILE5a emissions model that in combination with the projected VMT for 
the area was used to estimate the future emissions for the area.
Enhanced I/M Program
    Of the 15% ROP plans originally submitted to EPA, most contain 
enhanced I/M programs because they achieve more VOC emission reductions 
than most, if not all, other control strategies. However, because most 
States experienced substantial difficulties implementing enhanced I/M 
programs, only a few States are currently actually testing cars using 
the original enhanced I/M protocol.
    On September 18, 1995 (60 FR 48029), EPA finalized revisions to its 
enhanced I/M rule allowing States significant flexibility in designing 
I/M programs appropriate for their needs. Further, Congress enacted the 
National Highway Systems Designation Act of 1995 (NHSDA), which 
provides States with more flexibility in determining the design of 
enhanced I/M programs. The substantial amount of time needed by States 
to re-design enhanced I/M programs in accordance with the final 
enhanced I/M rules and/or the guidance contained within the NHSDA, to 
secure State legislative approval when necessary, and set up the 
infrastructure to perform the testing program has precluded States from 
obtaining emission reductions from enhanced I/M by November 15, 1996.
    Given the heavy reliance by many States on enhanced I/M programs to 
help satisfy 15% ROP plan requirements, and the recent NHSDA and 
regulatory changes regarding enhanced I/M programs, EPA has recognized 
that it is not possible for many States to achieve the portion of the 
15% ROP reductions that are attributed to enhanced I/M by November 15, 
1996. Under these circumstances, disapproval of the 15% ROP plan State 
Implementation Plans (SIPs) would serve no purpose. Consequently, under 
certain circumstances, EPA will allow States that pursue re-design of 
enhanced I/M programs to receive emission reduction credit from these 
programs in their 15% ROP plans, even though the emission reductions 
from the I/M program will occur after November 15, 1996.
    Specifically, the EPA will approve 15% ROP SIPs if the emission 
reductions from the revised, enhanced I/M programs, as well as from the 
other 15% ROP plan measures, will achieve the 15% level as soon after 
November 15, 1996, as practicable. To make this ``as soon as 
practicable'' determination, the EPA must determine that the 15% ROP 
plan contains all VOC control strategies that are practicable for the 
nonattainment area in question and that meaningfully accelerate the 
date by which the 15% level is achieved. The EPA does not believe that 
measures meaningfully accelerate the 15% date if they provide only a 
relatively small amount of reductions.
    The Enhanced I/M program (E-Check) began operation in the 
Cincinnati-Hamilton area in January 1996. The program is a biennial 
testing program which requires two years of testing to complete one 
test cycle. The program will not achieve its full emissions reduction 
potential until the cycle is

[[Page 4193]]

complete. The 15% ROP plan anticipated that the program would start up 
in January 1995, but the program actually started in January 1996. The 
emissions reduction benefits of E-Check have been delayed beyond 
November 15, 1996.
    Ohio implemented E-Check in the Cincinnati area in January 1996. In 
August 1996 vehicle testing was suspended due to technical and 
operational problems. On January 5, 1998, OEPA resumed the E-Check 
program in the Cincinnati area. EPA performed a modeling analysis to 
determine if the emission reduction credits claimed in the 15% plan 
from enhanced I/M would be achieved by November 1999.<SUP>1</SUP> EPA 
modeled the emission reductions from the program, with an enhanced I/M 
start date of January 1996, out to November 1999, as provided for in 
EPA policy. EPA subtracted emissions for the period of time the testing 
program was suspended (from August 1996 to December 1997). Other 
program characteristics modeled included actual I/M emission cutpoints 
in place at the time of evaluation, and projected 1996 vehicle miles 
traveled information for the Cincinnati area. EPA's analysis showed 
that the E-Check program would provide the necessary VOC emissions 
reductions for the 15% plan by November 1999.
---------------------------------------------------------------------------

    \1\ This analysis was based on the methodology specified in 
EPA's policy memoranda, ``Date by Which States Need to Achieve All 
the Reductions Needed for the 15% Plan from I/M and Guidance for 
Recalculation,'' August 13, 1996, and ``Modeling 15% VOC 
Reduction(s) from I/M in 1999--Supplemental Guidance,'' December 23, 
1996. EPA policy provides that credit in 15% plans can be claimed 
from the I/M start date to November 1999.
---------------------------------------------------------------------------

    To determine whether there are other available potential control 
measures which can meaningfully accelerate the date by which 15% 
emission reduction in the Cincinnati-Hamilton area can be achieved, EPA 
compared the area's 15% Rate of Progress (ROP) and contingency plans 
with control measures included in 15% ROP plans nation-wide, which are 
listed in EPA's report, ``Sample City Analysis: Comparison of Enhanced 
I/M Reductions Versus Other 15 Percent ROP Plan Measures,'' December 
12, 1996, referenced in EPA's policy document ``15% VOC SIP Approvals 
and the `As Soon As Practicable' Test,'' February 12, 1997. The report 
listed several possible control measures which were not included in the 
Cincinnati-Hamilton 15% plan. Some of these control measures have the 
potential to achieve significant emission reductions. These control 
measures include the federal reformulated gasoline program, federal 
Transfer, Storage, and Disposal Facility (TSDF) regulations, and 
federal consumer/commercial products regulations.
    The federal reformulated gasoline program (RFG) (40 CFR part 80, 
subpart D) requires that gasoline providers in certain areas sell only 
gasoline which meets certain blending requirements to reduce pollution. 
Areas not already subject to these requirements, such as the 
Cincinnati-Hamilton area, can, under section 211(k)(6) of the Act, 
``opt-in'' to the program, upon request to EPA by the Governor.
    In the Cincinnati area there is not enough lead time to get a fuels 
program selected, approved, and in place for this summer's ozone season 
and by the next ozone season (the summer of 1999) the E-Check program 
will be about three quarters of the way through testing. In Phoenix, 
Arizona, for example, the Governor established an Air Quality 
Strategies Task Force in May 1996 to develop a report describing ozone 
reduction measures. In January 1997 the Governor requested to opt into 
the Reformulated Gasoline program. USEPA approved the program on June 
3, 1997, with an effective date of August 4, 1997 for retailers and 
wholesale purchase-consumers. It took about 15 months, on an extremely 
expedited schedule from the time the task force was formed, for the 
program to become effective in the Phoenix area.
    In addition, phase II RFG will be required in nonattainment areas 
using RFG in the year 2000, instead of the current phase I RFG used in 
certain nonattainment areas across the country. Given the short lead 
time, the start up of the E-Check program, and the national change over 
to phase II of RFG in areas using RFG, it is not practical to implement 
phase I RFG in place of E-Check in an effort to achieve the 15% ROP 
reduction requirement as soon as practicable. The Greater Cincinnati 
area will experience immediate benefits from the E-Check program, and 
these benefits will increase as more cars are tested and repaired. A 
significant portion of the automobiles will be tested and repaired by 
this summer in time for this year's ozone season. These benefits will 
help the area to make progress toward attaining the ozone standard as 
soon as practicable. Therefore, for all of these reasons, USEPA 
believes the reformulated gasoline program could not be implemented in 
the Ohio portion of the Cincinnati-Hamilton area significantly faster 
than E-check.
    The federal TSDF regulations, promulgated pursuant to the Resource 
Conservation and Recovery Act (RCRA) as amended, require air pollution 
controls on certain facilities which manage hazardous wastes containing 
VOC and hazardous air pollutants. These regulations were promulgated in 
two phases, one on June 21, 1990 (55 FR 25454), and the other on 
December 6, 1994 (59 FR 62896). The final compliance date for the 
second phase of control was December 8, 1997. These Federal regulations 
are expected to provide significant emissions reduction in the 
Cincinnati area and will assist the area in making progress towards 
attainment of the ozone standard.
    The February 12 EPA memorandum from Seitz and Ossias provides a 
report listing a cutback asphalt ban and open burning ban as measures 
the State could potentially adopt to achieve emission reductions. 
However, the report overestimates the emission reduction potential of a 
cutback asphalt ban because the use of cutback asphalt is prohibited in 
Ohio by OAC 3745-21-09(N). The State of Ohio also has an open burning 
ban that has been in place for a number of years. As for other control 
measures, such as regulating industrial adhesives reformulation and/or 
solvent cleaning substitution/equipment, these measures are not 
expected to achieve reductions significantly faster than E-check, 
because it would take Ohio one to two years to develop, adopt, and 
implement these measures. It is not reasonable to implement other 
controls to make up for the delay in implementing the E-check program 
and the emissions reduction is expected to be met by 1999 with the help 
of Federal emissions control programs.
Federal Architectural Coatings Rule
    The State estimated that the anticipated Federal rule for 
architectural coatings would provide for a 25 percent emission 
reduction in that category. An EPA policy memorandum issued after the 
State had submitted its plan to EPA stated that only 20 percent is 
allowed. In addition there have been delays in proposing the rule, and 
the compliance date is not expected to occur until 1998. This change in 
policy would revise the emission reduction estimated downward by 0.8 
TPD.
    The State did not take credit in its plan for the Federal Nonroad 
engine emissions standards rule. This rule sets standards for new 
engines and will reduce emissions in the future. In addition, the State 
did not take credit for the automobile refinishing rule which is 
estimated to provide a 1.6 TPD emissions reduction. This assumes a 30 
percent reduction in VOC emissions from the national automobile 
refinishing rule EPA is developing. These factors will help to offset 
the change in

[[Page 4194]]

emissions reduction credit for architectural coatings.
    The State's plan provides a table of cost effectiveness estimates 
for the various control measures considered by the State for its plan.

    Table 2.--Status of Emissions Control Measures in the Cincinnati-   
                    Hamilton Area 15 Percent ROP Plan                   
------------------------------------------------------------------------
       Control measure                      Status of rules             
------------------------------------------------------------------------
Stage II Vapor Recovery......  Approved on October 20, 1994, at 59 FR   
                                52911.                                  
Enhanced Automobile            Approved on April 4, 1995, at 60 FR      
 Inspection and Maintenance.    16989.                                  
NESHAP for reducing coke by    Federal Regulation (see 40 CFR part 61). 
 product Benzene emissions.                                             
Enforcement Cases............  Sources brought in to compliance since   
                                1990 with preexisting rule.             
Architectural Coatings.......  Federal Regulation for which Ohio may    
                                take credit (see memorandum dated March 
                                7, 1996 from John Seitz, Director,      
                                Office of Air Quality Planning and      
                                Standards to Regional Division          
                                Directors).                             
CONTINGENCY EMISSIONS          Lower RVP rule to be addressed in        
 REDUCTION.                     subsequent rulemaking action.           
------------------------------------------------------------------------

G. Rate-of-Progress and Contingency Plan Demonstrations

    Overall, Ohio's ROP plan provides for a 48.0 TPD emissions 
reduction, which meets the ROP requirements. The contingency plan 
provides for the necessary 3 percent emission reduction and both the 
contingency measure and the contingency plan will be addressed in a 
subsequent rulemaking action. EPA can address the contingency plan in a 
subsequent rulemaking action because it is not a prerequisite to 
approving the 15% ROP plan.

H. Enforceability

    Each rule developed by the State for the Ohio portion of the 
Cincinnati-Hamilton area 15% ROP plan has been independently reviewed 
and approved by EPA as part of the State's SIP. Part of this review 
process includes a review of the enforceability of the rule. The 
remaining rules that the State is taking credit for are Federal rules 
or are expected to soon be issued as Federal rules.

IV. Final Rulemaking Action

    EPA is approving the 15% rate of progress plan for the Ohio portion 
of the Cincinnati-Hamilton ozone nonattainment area. The plan will 
provide for a 15% emissions reduction by 1999, which is as soon as 
practicable.
    For the purposes of transportation conformity determinations, final 
approval of this ROP plan revision also approves the 1996 mobile source 
emission budget of 57.23 TPD of VOC for the Ohio portion of the 
Cincinnati-Hamilton area. This budget is the projected 1996 emissions 
including growth and the reductions expected from E-Check and stage II 
gasoline vapor recovery. For years later than 1996, conformity 
determinations addressing VOCs must demonstrate consistency with this 
plan revision's motor vehicle emissions budget. Final approval of this 
ROP plan revision does not eliminate the need for a build/no-build test 
for oxides of nitrogen.
    Because EPA considers this action noncontroversial and routine, we 
are approving it without prior proposal. This action will become 
effective on March 30, 1998. However, if EPA receives significant 
adverse comments on the approval of the rate-of-progress plan in 
writing by February 27, 1998, which have not already been addressed by 
the State or EPA, EPA will withdraw the direct final approval of the 
plan and address the comments received in a new final rule.

V. Miscellaneous

A. Applicability to Future SIP Decisions

    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. The EPA shall consider each request for revision to the SIP in 
light of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

B. Ohio Audit Privilege and Immunity Law

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

C. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

D. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
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, EPA 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.
    SIP approvals under section 110 and subchapter I, part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, the Administrator 
certifies that this action does not have a significant impact on any 
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the CAA, preparation of the regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of the State action. The Act forbids EPA to base its 
actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
E.P.A., 427 U.S. 246, 256-66 (1976).

E. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must

[[Page 4195]]

undertake various actions in association with 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. This Federal action approves 
pre-existing requirements under state or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to state, local, 
or tribal governments, or the private sector, result from this action.

F. Submission to Congress and the General Accounting Office

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

G. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeal for 
the appropriate circuit by March 30, 1998. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review, nor does 
it extend the time within which a petition for judicial review may be 
filed and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements (see section 307(b)(2)).

VII. List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Ozone.

    Dated: January 9, 1998.
Michelle D. Jordan,
Acting Regional Administrator.

    For the reasons stated in the preamble, 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. 7401-7671q.

    2. Section 52.1885 is amended by adding paragraph (z) to read as 
follows:


Sec. 52.1885  Control Strategy: Ozone.

* * * * *
    (z) The 15 percent rate-of-progress requirement of section 182(b) 
of the Clean Air Act, as amended in 1990, is satisfied for the Ohio 
portion of the Cincinnati-Hamilton ozone nonattainment area.

[FR Doc. 98-2081 Filed 1-27-98; 8:45 am]
BILLING CODE 6560-50-P