Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations 22289

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities. Moreover,

due to the nature of the federal-state

relationship under the CAA, preparation

of a regulatory flexibility analysis would

constitute federal inquiry into the

economic reasonableness of state action.

The CAA 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 (S.Ct. 1976); 42 U.S.C.

7410(a)(2).

List of Subjects in 40 CFR Part 52

Air pollution control, Incorporation

by reference, Intergovernmental

relations, Particulate matter.

Dated: April 12, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

Part 52 of chapter I, title 40, 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.

Subpart Z—Mississippi

2. Section 52.1270 is amended by

adding paragraph (c)(26) to read as

follows:

§ 52.1270 Identification of plan.

* * * * *

(c) * * *

(26) The Mississippi Department of

Environmental Quality has submitted

revision to Regulation APC-S–5. The

purpose of this regulation is to adopt by

reference Federal regulations for the

prevention of significant deterioration of

air quality as required by 40 CFR 51.166

and 52.21.

(i) Incorporation by reference.

(A) Regulations of the prevention of

significant deterioration of air quality—

Regulation APC–S–5 effective January 9,

1994.

(ii) Additional information—None.

[FR Doc. 95–11050 Filed 5–4–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Parts 52 and 81

[OH54–1–6164a; FRL–5201–2]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes: State of Ohio

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: USEPA is approving, through

‘‘direct final’’ procedure, a redesignation

request and maintenance plan for the

Dayton-Springfield, Ohio area as a

revision to Ohio’s State Implementation

Plan (SIP) for ozone. The revision is

based on a request from the State of

Ohio to redesignate Montgomery,

Greene, Clark, and Miami Counties from

nonattainment to attainment for ozone,

and to approve the maintenance plan for

the area. The State has met the

requirements for redesignation

contained in the Clean Air Act (CAA),

as amended in 1990. The redesignation

request is based on ambient monitoring

data that show no violations of the

ozone National Ambient Air Quality

Standard (NAAQS) during the threeyear period from 1990 through 1992. In

the proposed rules section of this

Federal Register, USEPA is proposing

approval of this requested redesignation

and SIP revision, and is now soliciting

public comments on this action. If

adverse comments are received on this

direct final rule, USEPA will withdraw

this final rule and address these

comments in a subsequent final rule

based on the proposed rule.

DATES: This final rule is effective July 5,

1995 unless adverse or critical

comments are received by June 5, 1995.

If the effective date is delayed, timely

notice will be published in the Federal

Register.

ADDRESSES: Copies of the SIP revision

request and USEPA’s analysis are

available for inspection at the following

address: (It is recommended that you

telephone Angela Lee at (312) 353–5142

before visiting the Region 5 Office.)

United States Environmental Protection

Agency, Region 5, Air and Radiation

Division, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

Written comments can be mailed to:

William MacDowell, Chief, Regulation

Development Section, Air Enforcement

Branch (AE–17J), United States

Environmental Protection Agency,

Region 5, 77 West Jackson Boulevard,

Chicago, Illinois, 60604.

FOR FURTHER INFORMATION CONTACT:

Angela Lee, Regulation Development

Section, Air Enforcement Branch (AE–

17J), United States Environmental

Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois

60604, (312) 353–5142.

SUPPLEMENTARY INFORMATION: On

November 8, 1993, Ohio submitted a

redesignation request and section 175A

maintenance plan for Montgomery,

Greene, Miami, and Clark Counties. The

USEPA reviewed these submittals

against the redesignation criteria set

forth by section 107(d)(3)(E) of the Act,

which are discussed in a September 4,

1992, memorandum from John Calcagni,

Director of the Air Quality Management

Division, Office of Air Quality Planning

and Standards, to Directors of Regional

Air Divisions, entitled, ‘‘Procedures for

Processing Requests to Redesignate

Areas to Attainment’’ (Calcagni

Memorandum). A second memorandum

dated September 17, 1993, signed by

Michael Shapiro, Acting Assistant

Administrator for Air and Radiation,

entitled, ‘‘State Implementation Plan

(SIP) Requirements for Areas Submitting

Requests for Redesignation to

Attainment of the Ozone and Carbon

Monoxide NAAQS on or after November

15, 1992’’ was also used to evaluate

Ohio’s request. An analysis of these

submittals is contained in a Technical

Support Document (TSD), dated January

17, 1995.

I. Background

The 1977 Act required areas that were

designated nonattainment based on a

failure to meet the ozone NAAQS, to

develop SIPs with sufficient control

measures to expeditiously attain and

maintain the standard. For Ohio,

Montgomery, Greene, Miami and Clark

Counties were designated

nonattainment for ozone, see 43 FR

8962 (March 3, 1978), 43 FR 45993

(October 5, 1978), and 40 CFR part 81.

After enactment of the amended Act

on November 15, 1990, the

nonattainment designation of the

Dayton-Springfield area continued by

operation of law according to section

107(d)(1)(C)(i) of the Act; furthermore, it

was classified by operation of law as

moderate for ozone pursuant to section

181(a)(1) (56 FR 56694, November 6,

1991), codified at 40 CFR 81.336.

More recently, ambient monitoring

data show no violations of the ozone

NAAQS in the Dayton-Springfield area

during the period from 1990 through

1992. Therefore, the area became

eligible for redesignation from

nonattainment to attainment consistent

with the amended Act. To ensure

continued attainment of the ozone

standard, Ohio submitted an ozone

maintenance SIP for the Dayton

Springfield area to USEPA on November

8, 1993. On November 8, 1993 Ohio

requested redesignation of the area to

attainment with respect to the ozone

NAAQS. On December 20, 1993, Ohio

held a public hearing on the

maintenance plan and redesignation

request.

II. Evaluation Criteria

The 1990 Amendments revised

section 107(d)(3)(E) to provide five

specific requirements that an area must
22290 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations

1The Reid Vapor Pressure changed from 11.5 psi

in 1988 to 10.5 psi in 1990.

meet in order to be redesignated from

nonattainment to attainment.

1. The area must have attained the

applicable NAAQS.

2. The area has meet all relevant

requirements under section 110 and part

D of the Act.

3. The area has a fully approved SIP

under section 110(d) of the Act.

4. The air quality improvement must

be permanent and enforceable.

5. The area must have a fully

approved maintenance plan pursuant to

section 175A of the Act.

Each of these requirements are

addressed below.

A. Section 107(d)(3)(E)(i). The

Administrator determines that the area

has attained the National Ambient Air

Quality Standard (NAAQS). For ozone,

an area is considered in attainment of

the NAAQS if there are no violations, as

determined in accordance with 40 CFR

50.9, based on quality assured

monitoring data for three complete,

consecutive calendar years. A violation

of the NAAQS occurs when the annual

average number of expected

exceedances is greater than 1.0 at any

site in the area at issue. An exceedance

occurs when the maximum hourly

ozone concentration exceeds 0.124 ppm.

The data should be collected and

quality-assured in accordance with 40

CFR Part 58, and recorded in the

Aerometric Information Retrieval

System (AIRS) in order for it to be

available to the public for review.

Ohio submitted ozone monitoring

data recorded in the Dayton-Springfield

area during the years 1983 through June,

1993. The ozone monitoring network

consists of five monitors. Two are

located in Clark County, one in

Montgomery County, and the other in

Preble County. Two slight exceedances

of the ozone standard have been

monitored since 1989. One exceedance

of 0.125 ppm occurred in 1993 at the

Timberlane monitor in Montgomery

County. The other exceedance which

occurred at the Urbana Road monitor

(Clark County) in 1994 also measured

0.125 ppm. Data stored in AIRS was

used to determine the annual average

expected exceedances for the years

1990, 1991, 1992, 1993, and 1994. Data

contained in AIRS have undergone

quality assurance review by the State

and USEPA. Since the annual average

number of expected exceedances for

each monitor during the most recent

three years are less than 1.0, the DaytonSpringfield area is considered to have

attained the standard.

B. Section 107(d)(3)(iii). The

Administrator determines that the

improvement in air quality is due to

permanent and enforceable measures.

The State must be able to reasonably

attribute the improvement in air quality

to emission reductions which are

permanent and enforceable. To satisfy

this requirement, Ohio estimated

emission reductions from a

nonattainment year (1988) to an

attainment year (1990). Ohio submitted

documentation which showed that in

1990 VOC emissions dropped almost

ten percent from 1988 levels.

Most of the emission reductions

which occurred over this time period

resulted from federally mandated

controls on the volatility of gasoline 1

and air pollution controls installed on

new automobiles through the Federal

Motor Vehicle Emissions Control

Program (FMVCP). These controls

reduced mobile source emissions by

about 32 tons per day (tpd). Since these

reductions result from federally

mandated controls, the USEPA

considers these reductions to be

permanent and enforceable.

Stationary source shutdowns

accounted for a decrease of 3.2 tpd in

actual VOC emissions between 1988 and

1990. A 2.7 tpd increase in actual

stationary source VOC emissions was

estimated from permits to install (PTIs)

issued in the area between 1988 and

1990. Since the operating permits for

the shut down stationary sources have

been revoked, and have been

documented in the redesignation

request, the USEPA considers the

emission reductions to be permanent

and enforceable. Overall, stationary

source VOC emissions declined 0.5 tpd

between 1988 and 1990.

Ohio used economic indicators to

show that the area was not experiencing

an economic downturn during this time

period. Bureau of Economic Analysis

(BEA) projections for manufacturing

earnings from 1988 to 1995 indicate an

annual growth rate of one percent for all

Standard Industrial Classification (SIC)

codes. BEA regional projections of

population, personal income and

earnings, and employment by place of

work from 1973 to 1988 and from 1995

to 2040 increase from 1988 levels to

1995.

Ohio’s demonstration that the

improvement in air quality was due to

permanent and enforceable reductions

meets the requirements set forth in the

Calcagni Memorandum.

C. The Area must have a fully

approved maintenance plan meeting the

requirements of Section 175A. Section

175A of the CAA sets forth the elements

of a maintenance plan for areas seeking

redesignation from nonattainment to

attainment. The maintenance plan is a

SIP revision which provides for

maintenance of the relevant NAAQS in

the area for at least 10 years after

redesignation. The Calcagni

Memorandum provides further guidance

on the required content of a

maintenance plan.

An ozone maintenance plan should

address the following five areas: The

attainment inventory, maintenance

demonstration, monitoring network,

verification of continued attainment and

a contingency plan. The attainment

emissions inventory identifies the

emissions level in the area which is

sufficient to attain the ozone NAAQS,

and includes emissions during the time

period which had no monitored

violations. Maintenance is demonstrated

by showing that future emissions will

not exceed the level established by the

attainment inventory. Provisions for

continued operation of an appropriate

air quality monitoring network are to be

included in the maintenance plan. The

State must show how it will track and

verify the progress of the maintenance

plan. Finally, the maintenance plan

must include contingency measures

which ensure prompt correction of any

violation of the ozone standard.

1. Attainment Inventory

The State has developed an adequate

attainment emission inventory for 1990

that identifies the level of emissions in

the Dayton-Springfield area sufficient to

attain the ozone NAAQS. The 1990

attainment inventory was based on

comprehensive inventories of VOC and

NOX emissions from area, stationary,

and mobile sources for 1990. The 1990

base year emission inventory represents

1990 average summer day actual

emissions for the Dayton-Springfield

area, and was prepared in accordance

with USEPA guidance. USEPA’s TSD

prepared for the 1990 base year

emission inventory SIP revision

contains a detailed analysis of this

inventory. This inventory was approved

as satisfying the requirements of section

182(a)(1) for an emissions inventory on

March 22, 1995 (60 FR 15053).

2. Maintenance Demonstration

To demonstrate continued attainment,

Ohio projected point, area, and mobile

source VOC and NOX emissions from

the year 1990 to the year 2005. The

projections incorporate reductions from

existing controls, the enhanced vehicle

inspection and maintenance I/M

program (enhanced I/M) and Stage II

vapor recovery program (Stage II). The

Stage II Vapor Recovery program is

currently being implemented in the

Dayton-Springfield area. The enhanced
Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations 22291

I/M program is expected to be

operational in 1996. The emissions

reductions from Stage II and enhanced

I/M offset emissions increases during

the maintenance period. The projections

also provide for a growth cushion for

existing and new industrial sources.

These projections show that the level of

emissions established by the attainment

inventory will not be exceeded during

the maintenance period 1990–2005.

Table 1 lists the emissions for the years

1990, 1996, 2000, and 2005. All

emissions were converted to tons per

day for a typical summer day.

Area source emissions were projected

using population as a growth indicator

for all area source subcategories. This

method is acceptable since the

recommended growth factors for the

four largest area source subcategories in

terms of emissions in the DaytonSpringfield area are less than the

population growth factor. The

recommended growth factors for area

source subcategories are listed in Table

III.3 of USEPA’s guidance document

entitled ‘‘Procedures for Preparing

Emissions Projections’’, dated July 1991.

Projections of total population for the

period 1990 to 2005 were obtained

using data from the Ohio Data User’s

Center and population patterns. This

data yields a growth rate of less than

one percent. A one percent annual

growth rate was used because of

expected residential growth in Greene

and Miami Counties, and because point

source growth by SIC has been forecast

by the Ohio Environmental Protection

Agency (OEPA) to be about one percent

per year for any category.

Ohio projected point source emissions

by estimating changes in emissions

expected from source shutdowns,

growth from new sources and potential

growth from existing sources. Historical

data for point source growth from 1988

to 1992 indicate that PTIs averaged

about 700 tons per year (tpy).

Shutdowns from 1988 to 1992

accounted for a reduction of 300 tons

per year of actual emissions. Based on

this information, Ohio added 400 tons

of VOC emissions to each year out to the

year 2005 to account for new, non-offset

source growth. Existing companies were

assumed to expand their actual

emissions to permitted levels. The

difference between actual and allowable

emissions is 3250 tons. This was spread

equally, areawide, over the 15 year

period from 1990 to 2005. Ohio

accounted for known changes to sources

for each year between 1990 and 2005

and applied a growth factor based on

manufacturing employment data

provided by the Bureau of Economic

Analysis (BEA), United States

Department of Commerce, to derive

inventories for all ensuing years. (BEA

manufacturing employment growth for

the aggregate of source categories is one

percent.) To account for growth of

existing sources, Ohio added 217 TPY

each year to the total emissions from the

previous year.

Mobile source emissions were

projected by forecasting vehicle miles

travelled (VMT) from the year 1990 to

the year 2005. A 1.28 percent per year

VMT growth rate was used for the four

county area. This growth rate was

determined by considering the future

highway network, forecasts of socioeconomic data, and 1990 Highway

Performance Modeling System (HPMS)

data. Stage II and enhanced I/M were

accounted for in the MOBILE5a program

which was used to determine the

emission factors for the DaytonSpringfield area. Mobile source

emissions for the year 2005 were

produced by multiplying MOBILE5a

VOC and NOX emission factors by the

projected average weekday VMT for

each county.

TABLE 1.—MAINTENANCE

DEMONSTRATION

Source

category 1990 1996 2000 2005

VOC Emissions (tons per day)

Point .......... 37.4 61.6 77.7 97.4

Biogenic ..... 105.2 105.2 105.2 105.2

Area ........... 54.9 58.3 60.6 64.4

Mobile (onroad) ...... 103.6 45.5 39.4 31.7

Total 301.1 270.6 282.9 298.7

NOX Emissions (tons per day)

Point .......... 32.2 34.4 36.0 38.2

Area ........... 36.5 38.5 39.9 41.7

Mobile (onroad) ...... 60.9 42.7 41.2 39.4

Total 129.6 115.6 117.1 119.3

3. Maintenance Measures

Ohio chose to implement Stage II and

enhanced I/M in the Dayton-Springfield

area as maintenance measures. The

Ohio Stage II rule requires owners and

operators of gasoline dispensing

facilities that dispense greater than

10,000 gallons of fuel per month (50,000

gallons per month in the case of an

independent small business marketer) to

install and operate gasoline vehicle

refueling vapor recovery systems. Vapor

recovery systems control the release of

VOC, benzene, and toxics emitted

during the refueling process. Enhanced

I/M will be implemented in Green,

Montgomery and Clark Counties (Miami

County is excluded because its

population is less than 100,000). Ohio’s

emissions projections show that the

Stage II rule and enhanced I/M

requirements provide the necessary

VOC emissions reductions to offset

desired new source growth and allow

for maintenance of the ozone NAAQS.

The Stage II and enhanced I/M SIP

revisions must be fully approved before

USEPA can consider the maintenance

plan to be fully approved. On October

20, 1994, the USEPA partially approved

and partially disapproved Ohio’s SIP

revision for implementation of the Stage

II program (58 FR 52911). As stated in

that rulemaking action, with the

exception of paragraph 3745–21–09

(DDD)(5), USEPA considers Ohio’s Stage

II program to fully satisfy the criteria set

forth in the USEPA guidance document

for such programs entitled

‘‘Enforcement Guidance for Stage II

Vehicle Refueling Control Programs.’’

Only those Stage II provisions

previously approved by USEPA are part

of the Dayton-Springfield maintenance

plan. Ohio’s I/M SIP revision, which

allows an area to opt into enhanced I/

M, was approved on April 4, 1995 (60

FR 16989). (The approval of the

redesignation is contingent upon the

approval of the I/M SIP revision.

Consequently, should the direct final

notice approving the I/M SIP Revision

be withdrawn as a result of adverse

comment, this direct final notice

approving the redesignation will also be

withdrawn and final action will be

taken on the redesignation at a later

date.)

All existing VOC RACT controls

required in the ozone SIP for the

Dayton-Springfield area and new RACT

controls incorporated in the VOC RACT

SIP revision approved on March 23,

1995, remain in effect after

redesignation of the region to

attainment.

4. Tracking Maintenance

The OEPA and Regional Air Pollution

Control Agency (RAPCA) will regularly

monitor ozone air quality. In the

redesignation request, RAPCA

committed to continue operating and

maintaining the five existing ozone

monitors consistent with the

requirements of Federal and State

monitoring guidelines. Backup

monitoring equipment will also be

maintained.

The OEPA and RAPCA will develop

comprehensive mobile, point, and area

emissions inventories every 3 years

beginning with the year 1993. Updates

will be provided for intervening years.
22292 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations

The point source inventory will be

updated annually with facility and

permit data. The area source inventory

will be updated using new data and

estimation procedures. The mobile

source inventory will be updated to

incorporate new VMT estimates and

revised USEPA mobile emissions

models. OEPA will submit annual

progress reports to USEPA which

summarize available VOC emissions

data.

5. Emission Budgets

The mobile source emissions budgets

for purposes of determining the

conformity status of transportation

plans and transportation improvement

plans in the Dayton-Springfield

maintenance area are 31.7 tons VOC/day

and 39.4 tons NOX/day. Ohio obtained

this emissions budget by calculating

emissions for each county. The

emissions budget for Clark County is 7.8

tons NOX/day and 4.31 tons VOC/day.

6. Contingency Plan

If a violation is monitored, Ohio has

committed to adopt and implement new

Control Technology Guideline (CTG)

VOC RACT rules and NOX RACT rules

according to schedules shown in Table

2. If the sum of point, area, and mobile

source VOC emissions exceed the 1990

attainment inventory level, Ohio has

committed to adopt and implement new

CTG VOC RACT rules according to the

schedule shown in Table 2. The new

VOC RACT rules that will serve as a

contingency measure include rules for

the following 11 Control Technology

Guideline (CTG) categories found in

section 183(a) of the amended CAA:

Synthetic Organic Chemicals

Manufacturing Industry (SOCMI)

distillation, SOCMI reactors, wood

furniture, plastic parts coating (business

machines), plastic parts coating (other),

offset lithography, industrial

wastewater, autobody refinishing,

SOCMI batch processing, VOL storage

tanks, and clean up solvents.

The maintenance plan for

Montgomery, Greene, Clark and Miami

Counties contains all the necessary

elements and is acceptable.

TABLE 2.—CONTINGENCY MEASURE IMPLEMENTATION SCHEDULE

Control measure Triggering Event Action

Completion

date (from

trigger)

New CTG VOC RACT

rules.

violation of ozone NAAQS or exceedance of

1990 attainment inventory.

Identify and verify ambient violation or

exceedance of attainment inventory.

1 month.

Survey potential VOC categories or specific

sources.

3 months.

Propose revised rules for the Dayton-Springfield

area.

6 months.

Adopt rule revisions for the Dayton-Springfield

area.

9 months.

Source demonstration of compliance or submittal

of schedule to achieve.

12 months.

Achieve compliance with revised requirements of

OAC 3745–21.

24 months.

NOx RACT rules ............. Violation of ozone NAAQS ................................... Identify and verify ambient violation and issue Director’s Orders.1 month.

Adoption of NOx RACT rules ................................ 9 months.

Achieve compliance with requirements of OAC

2745–14–03 or request extension.

18 months.

D. The Area must have met all

applicable requirements under Section

110 and Part D. Section 107(d)(3)(E)

requires that, for an area to be

redesignated, the area must have met all

applicable requirements under section

110 and Part D. The USEPA interprets

section 107(d)(3)(E)(v) to mean that for

a redesignation to be approved, the State

must have met all requirements that

applied to the subject area prior to or at

the time of the submission of a complete

redesignation request. Requirements of

the Act that come due subsequently

continue to be applicable to the area at

those later dates (see section 175A(c))

and, if the redesignation of the area is

disapproved, the State remains

obligated to fulfill those requirements.

1. Section 110 Requirements

General SIP elements are delineated

in section 110(a)(2) of Title I, Part A.

These requirements include but are not

limited to the following: submittal of a

SIP that has been adopted by the State

after reasonable notice and public

hearing, provisions for establishment

and operation of appropriate apparatus,

methods, systems and procedures

necessary to monitor ambient air

quality, implementation of a permit

program, provisions for Part C (PSD)

and D (NSR) permit programs, criteria

for stationary source emission control

measures, monitoring, and reporting,

provisions for modeling, and provisions

for public and local agency

participation. For purposes of

redesignation, the Ohio SIP was

reviewed to ensure that all requirements

under the amended Act were satisfied.

Section 110 was amended in 1990, and

the Dayton area SIP meets the

requirements of the amended section

110(a)(2). A number of the requirements

did not change in substance and,

therefore, USEPA believes that the pre1990 amendment SIP meets those

requirements. Many of the requirements

that were amended in 1990 are

duplicative of other requirements in the

Act, and USEPA has determined that

the Dayton SIP is consistent with the

requirements of section 110 of the

amended Act.

2. Part D Requirements

Before the Dayton area may be

redesignated to attainment, it must have

fulfilled the applicable requirements of

part D. Under part D, an area’s

classification determines the

requirements to which it is subject.

Subpart 1 of part D sets forth the basic

nonattainment requirements applicable

to all nonattainment areas. Subpart 2 of

part D establishes additional

requirements for nonattainment areas

classified under table 1 of section

181(a). As described in the General

Preamble for the Implementation of

Title 1, specific requirements of subpart

2 may override subpart 1’s general

provisions (57 FR 13501 (April 16,

1992)). The Dayton area was classified

as moderate (56 FR 56694). Therefore, in

order to be redesignated, the State must
Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations 22293

meet the applicable requirements of

subpart 1 of part D—specifically

sections 172(c) and 176, as well as the

applicable requirements of subpart 2 of

part D.

a. Section 172(c) Requirements

Section 172(c) sets forth general

requirements applicable to all

nonattainment areas. Under section

172(b), the section 172(c) requirements

are applicable as determined by the

Administrator, but no later than 3 years

after an area has been designated as

nonattainment under the amended Act.

Furthermore, as noted above, some of

these section 172(c) requirements are

superseded by more specific

requirements in subpart 2 of part D. The

State has satisfied all of the section

172(c) requirements necessary for the

Dayton area to be redesignated upon the

basis of the November 8, 1993,

redesignation request.

USEPA has determined that the

section 172(c)(2) reasonable further

progress (RFP) requirement (with

parallel requirements for a moderate

ozone nonattainment area under subpart

2 of part D, due November 15, 1993) was

not applicable, as the State of Ohio

submitted this redesignation request on

November 8, 1993, and RFP was not due

until November 15, 1993. Also the

section 172(c)(9) contingency measures

and additional section 172(c)(1) nonRACT reasonable available control

measures (RACM) beyond those

required in the SIP, are no longer

necessary, since no earlier date was set

for requirement of these measures.

The section 172(c)(3) emissions

inventory requirement has been met by

the submission and approval (60 FR

15053) of the 1990 base year inventory

required under subpart 2 of part D,

section 182(a)(1).

As for the section 172(c)(5) NSR

requirement, USEPA has determined

that areas being redesignated need not

comply with the NSR requirement prior

to redesignation provided that the area

demonstrates maintenance of the

standard without part D NSR in effect.

The rationale for this view is described

fully and 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’’ and is based on the

Agency’s 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). As discussed below, the State of

Ohio has demonstrated that the Dayton

area will be able to maintain the

standard without part D NSR in effect

and, therefore, the State need not have

a fully-approved part D NSR program

prior to approval of the redesignation

request for Dayton. Ohio’s part C PSD

program will become effective in the

Dayton area upon redesignation to

attainment.

Finally, for purposes of redesignation,

the Dayton SIP was reviewed to ensure

that all requirements of section

110(a)(2), containing general SIP

elements, were satisfied. As noted

above, USEPA believes the SIP satisfies

all of those requirements.

b. Section 176 Conformity Plan

Provisions

Section 176(c) of the Act requires

States to revise their SIPs to establish

criteria and procedures to ensure that,

before they are taken, Federal actions

conform to the air quality planning

goals in the applicable State SIP. The

requirement to determine conformity

applies to transportation plans,

programs and projects developed,

funded or approved under Title 23

U.S.C. or the Federal Transit Act

(transportation conformity), as well as to

all other Federal actions (general

conformity).

The USEPA promulgated final

transportation conformity regulations on

November 24, 1993 (58 FR 62188) and

general conformity regulations on

November 30, 1993 (58 FR 63214).

Pursuant to section 51.396 of the

transportation conformity rule and

section 51.851 of the general conformity

rule, the State of Ohio is required to

submit a SIP revision containing

transportation conformity criteria and

procedures consistent with those

established in the Federal rule by

November 25, 1994, and November 30,

1994, respectively. Because the

deadlines for these submittals did not

come due prior to the date the Dayton

redesignation request was submitted,

however, they are not applicable

requirements under section

107(d)(3)(E)(v) and, thus, do not affect

approval of this redesignation request.

3. Subpart 2 Requirements

The Dayton-Springfield area is

classified moderate nonattainment;

therefore, part D, subpart 2, section

182(b) requirements apply. The

requirements which came due prior to

the submission of the request to

redesignate the Dayton-Springfield area

must be fully approved into the SIP

prior to redesignating the area to

attainment. These requirements are

discussed below:

(i) 1990 Base Year Emission Inventory

The 1990 base year emission

inventory was due on November 15,

1992. It was submitted to the USEPA on

March 15, 1994. The USEPA approved

this submittal on March 22, 1995 (60 FR

15053).

(ii) Emission Statements

The emissions statement SIP was due

on November 15, 1992. It was submitted

to the USEPA on March 15, 1994. The

USEPA approved this SIP revision

through a direct final rulemaking action

published on October 13, 1994 (59 FR

51863).

(iii) VOC RACT Requirements

Sections 182(a)(2)(A) and 182(b)(2)

establish VOC RACT requirements

applicable to moderate ozone

nonattainment areas such as Dayton.

Section 182(a)(2)(A) required the

submission to USEPA of all rules and

corrections to existing VOC RACT rules

that were required under the RACT

provision of the pre-1990 CAA (referred

to as RACT ‘‘fix-ups’’). Section 182(b)(2)

required the submission to USEPA of (1)

VOC RACT rules for all VOC sources

covered by a CTG issued before the date

of enactment of the 1990 CAA

amendments (a requirement that the

State has previously met), (2) VOC

RACT for each VOC source covered by

a CTG issued between the enactment of

the 1990 CAAA and the attainment date

(which is not an applicable requirement

for purposes of this redesignation since

the due date for these rules is November

15, 1994, a date after the submission of

the redesignation request), and (3) VOC

RACT for all other major stationary

sources of VOC located in the area.

On June 9, 1988, August 24, 1990, and

June 7, 1993, Ohio submitted VOC

RACT rules to USEPA for approval. In

a final rulemaking action, the USEPA

partially approved, partially

disapproved, and granted partial limited

approval/limited disapproval to

portions of Ohio’s VOC RACT rules on

May 9, 1994 (see 58 FR 49458). Ohio

submitted negative declarations for

source categories which must be subject

to RACT but for which there are no

sources in the Dayton-Springfield area.

The USEPA has reviewed revised VOC

RACT rules which addressed identified

deficiencies. Ohio’s VOC RACT rules

submittals have now been approved in

a direct final notice published on March

23, 1995 (60 FR 15235). Thus, the State

has now satisfied all of the VOC RACT

requirements applicable to the Dayton

area. (The approval of this redesignation

is contingent upon the approval of the

VOC RACT rules and the 1990 Base-
22294 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations

Year Emissions Inventory. Thus, this

redesignation will not become effective

until the approval of the VOC RACT

rules and the 1990 Base-Year Emissions

Inventory become effective.

Consequently, should the direct final

notice approving the VOC RACT rules

or 1990 Base-Year Inventory be

withdrawn as a consequence of adverse

comment, this direct final notice

approving the redesignation will also be

withdrawn and final action will be

taken on the redesignation at a later

date.)

(iv) Stage II Vapor Recovery (Stage II)

Section 182(b)(3) required States to

submit Stage II rules to USEPA for

moderate ozone nonattainment areas by

November 15, 1992. Ohio submitted

Stage II regulations as a SIP revision on

June 7, 1993. However, as the USEPA

promulgated onboard rules on April 6,

1994 (59 FR 16262), Stage II is no longer

required for moderate ozone

nonattainment areas (see section

202(a)(b). Thus, a Stage II program is not

an applicable requirement for purposes

of determining if the area has met all the

section 110 and part D requirements.

However, Ohio is implementing Stage II

as a maintenance measure.

(v) Vehicle Inspection and Maintenance

(I/M)

The USEPA’s final I/M regulations in

40 CFR Part 85 require the State to

submit to the USEPA a fully adopted

I/M program by November 15, 1992.

Ohio submitted the I/M rules on May

26, 1994. This submittal was approved

on April 4, 1995, at 60 FR 16989. (The

approval of this redesignation is

contingent upon the approval of the I/

M SIP revision. Consequently, should

the direct final notice approving the I/

M SIP Revision be withdrawn as a

consequence of adverse comment, this

direct final notice approving the

redesignation will also be withdrawn

and final action will be taken on the

redesignation at a later date.)

(vi) 1.15:1 VOC and NOX Offsets

Requirement for NSR

As explained above, USEPA has

determined that areas need not comply

with the part D NSR requirements of the

Act in order to be redesignated,

provided that the area is able to

demonstrate maintenance without part

D NSR in effect. As maintenance has

been demonstrated for the Dayton area

without part D NSR in effect, USEPA is

not requiring that the area have a fullyapproved part D NSR plan meeting the

requirements of sections 182 (a) and (b)

prior to redesignation.

(vii) NOX Requirement

Section 182(f) establishes NOX

requirements for ozone nonattainment

areas. However, such requirement does

not apply to an area such as Dayton if

the Administrator determines that NOX

reductions would not contribute to

attainment. The Administrator has made

such a determination based upon three

years of clean air quality data and has

approved the State of Ohio’s request to

exempt the Dayton area from the section

182(f) NOX requirements (60 FR 3760).

Thus, the State of Ohio need not comply

with the NOX requirements of section

182(f) for Dayton to be redesignated. If

a violation is monitored in the DaytonSpringfield area, Ohio has committed to

adopt and implement NOX RACT rules

as a contingency measure.

E. Section 107(d)(3)(E)(ii). The

Administrator has fully approved the

applicable implementation plan for the

area under Section 110(k). USEPA has

reviewed the SIP to ensure that it

contains all measures that were due

under the amended 1990 Act. Based on

the approval of submittals under the

pre-amended CAA, and USEPA’s

approval of SIP revisions under the

amended CAA, USEPA has determined

that the Dayton-Springfield area has a

fully approved SIP under section 110(k),

which also meets the applicable

requirements of section 110 and part D

as discussed below. (45 FR 72122, 60 FR

3760, 60 FR 15035, 60 FR 15235, and 60

FR 16989.

III. Transport of Ozone Precursors to

Downwind Areas

Preliminary modeling results utilizing

USEPA’s regional oxidant model (ROM)

indicate that ozone precursor emissions

from various States west of the ozone

transport region (OTR) in the

northeastern United States contribute to

increases in ozone concentrations in the

OTR. The State of Ohio has provided

documentation that VOC and NOX

emissions in the Dayton-Springfield

area will remain below attainment

levels for the next eleven years. Should

emissions exceed attainment levels, the

contingency plan will be triggered. In

addition, Ohio is required to submit a

revision to the maintenance plan eight

years after redesignation to attainment

which demonstrates that the NAAQS

will be maintained until the year 2015.

The USEPA is currently developing

policy which will address long range

impacts of ozone transport. The USEPA

is working with the States and other

organizations to design and complete

studies which consider upwind sources

and quantify their impacts. The USEPA

intends to address the transport issue

through Section 110 based on a domainwide modeling analysis.

The USEPA notified Environment

Canada of this action. The redesignation

is not expected to have any adverse

impact on Canada since emissions are

expected to remain below levels

associated with attainment conditions

in the Dayton area.

IV. Final Rulemaking Action

The State of Ohio has met the

requirements of the Act for revising the

Ohio ozone SIP. The USEPA approves

the redesignation of Montgomery,

Greene, Miami, and Clark Counties to

attainment areas for ozone. In addition,

the USEPA approves the maintenance

plan into the ozone SIP for these

Counties. As noted earlier, this approval

is contingent upon the direct final

approval of Dayton’s VOC RACT rules,

Ohio’s I/M SIP revision, and Dayton’s

1990 Base-Year Emissions Inventory

becoming effective.

The USEPA is publishing this action

without prior proposal because USEPA

considers this action as a

noncontroversial revision and

anticipates no adverse comments.

However, USEPA is publishing a

separate document in this Federal

Register publication, which constitutes

a ‘‘proposed approval’’ of the requested

SIP revision and clarifies that the

rulemaking will not be deemed final if

timely adverse or critical comments are

filed. The ‘‘direct final’’ approval shall

be effective on July 5, 1995, unless

USEPA receives adverse or critical

comments on this redesignation by June

5, 1995, or by April 21, 1995, regarding

the 1990 Base-Year Emissions inventory

published at 60 FR 15053, or by April

24, 1995, regarding the VOC RACT

notice published at 60 FR 15235, or by

May 4, 1995, regarding Ohio’s I/M SIP

revision published at 60 FR 16989. If

USEPA receives comments adverse to or

critical of any of these approvals,

USEPA will withdraw this

redesignation approval before its

effective date by publishing a

subsequent Federal Register notice

which withdraws this final action. All

public comments received will then be

addressed in a subsequent rulemaking

notice(s).

Any parties interested in commenting

on this action should do so at this time.

If no such comments are received,

USEPA hereby advises the public that

this redesignation will be effective on

July 5, 1995.

The Office of Management and Budget

has exempted this regulatory action

from Executive Order 12866 review.

Nothing in this action should be

construed as permitting or allowing or
Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations 22295

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to any SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

This action has been classified as a

Table 2 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation. The Office of

Management and Budget exempted this

regulatory action from Executive Order

12866 review.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., USEPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, USEPA may

certify that the rule will not have a

significant impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

The SIP approvals under section 110

and subchapter I, part D, of the Act do

not create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, I

certify that it does not have a significant

impact on small entities affected.

Moreover, due to the nature of the

Federal-State relationship under the

Act, preparation of a regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of State action. The Act

forbids USEPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. USEPA, 427 U.S.

246, 256–66 (1976).

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 July 5, 1995.

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

40 CFR Part 52

Air pollution control, Environmental

protection, Hydrocarbons,

Intergovernmental relations, Motor

vehicle pollution, Ozone, Volatile

organic compounds, Reporting and

recordkeeping requirements.

40 CFR Part 81

Air pollution control, Environmental

protection, National parks, and

Wilderness areas.

Dated: March 14, 1995.

Valdas V. Adamkus,

Regional Administrator.

Title 40 of the Code of Federal

Regulations, chapter I, is amended as

follows:

PART 52—APPROVAL AND

PROMULGATION OF

IMPLEMENTATION PLANS

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

removing paragraph (a)(5) and revising

paragraph (b) to read as follows:

§ 52.1885 Control strategy: Ozone.

* * * * *

(b) The maintenance plans for the

following counties are approved:

(1) Preble County.

(2) Columbiana County.

(3) Jefferson County.

(4) Montgomery, Greene, Miami, and

Clark Counties. This plan includes

implementation of Stage II vapor

recovery and an enhanced vehicle

inspection and maintenance program.

(5) Lucas and Wood Counties.

* * * * *

PART 81—DESIGNATION OF AREAS

FOR AIR QUALITY PURPOSES

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. Section 81.336 is amended by

revising the entry in the ozone table for

the Dayton-Springfield area to read as

follows:

§ 81.336 Ohio.

* * * * *

OHIO—OZONE

Designated area

Designation Classification

Date 1 Type Date 1 Type

* * * * * * *

Dayton-Springfield Area:

Clark County ............................... July 5, 1995 ........................ Attainment.

Greene County ............................ July 5, 1995 ........................ Attainment.

Miami County .............................. July 5, 1995 ........................ Attainment.

Montgomery ................................ July 5, 1995 ........................ Attainment.

* * * * * * *

1This date is November 15, 1990, unless otherwise noted.
22296 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations

[FR Doc. 95–10972 Filed 5–4–95; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Public Health Service

42 CFR Part 2

Substance Abuse and Mental Health

Services Administration;

Confidentiality of Alcohol and Drug

Abuse Patient Records

RIN: 0905–AD97

AGENCY: Substance Abuse and Mental

Health Services Administration, PHS,

HHS.

ACTION: Final rule.

SUMMARY: The Department published a

notice of proposed rulemaking in the

Federal Register at 59 FR 42561 (August

18, 1994) with corresponding

corrections at 59 FR 45063 (August 31,

1994), which proposed a clarification to

the ‘‘Confidentiality of Alcohol and

Drug Abuse Patient Records’’

regulations codified at 42 CFR part 2.

Specifically, the Department proposed

to clarify that, as to general medical care

facilities, these regulations cover only

specialized individuals or units in such

facilities that hold themselves out as

providing and provide alcohol or drug

abuse diagnosis, treatment or referral for

treatment and which are federally

assisted, directly or indirectly. The

Secretary has considered the comments

received during the comment period,

and is amending the regulations.

EFFECTIVE DATE: June 5, 1995.

FOR FURTHER INFORMATION CONTACT:

Sue Martone, SAMHSA, Room 12C15,

5600 Fishers Lane, Rockville, Maryland

20857, tel. (301) 443–4640.

SUPPLEMENTARY INFORMATION: The

‘‘Confidentiality of Alcohol and Drug

Abuse Patient Records’’ regulations, 42

CFR part 2, implement section 543 of

the Public Health Service Act, 42 U.S.C.

§ 290dd–2, as amended by section 131

of the ADAMHA Reorganization Act,

Pub. L. 102–321 (July 10, 1992). The

regulations were promulgated as a final

rule on July 1, 1975 (40 FR 27802) and

amended on June 9,1987 (52 FR 21798).

After considering the comments, the

Department is revising the regulations to

clarify the definition of ‘‘program.’’

Background of the Interim Final Rule

and Summary of and Responses to

Public Comments

A. Notice of Proposed Rulemaking

The notice of proposed rulemaking

published at 59 FR 42561 (August 18,

19940 proposed to revise 42 CFR part 2

to clarify the ambiguity in the

regulations regarding the definition of

‘‘program.’’ This ambiguity was

identified in the case United States v.

Eide, 875 F. 2d 1429, 1438 (9th Cir.

1989), where the court held that the

Veterans Administration Medical

Center’s (VAMC) general emergency

room is a ‘‘program’’ as defined by the

regulations. In reaching this conclusion,

the court relied on the clause that

‘‘[p]rogram means a person which in

whole or in part holds itself out as

providing, and provides, alcohol or drug

abuse diagnosis, treatment, or referral

for treatment.’’ Id. The court ruled that

the VAMC was a ‘‘person’’ which is

defined at section 2.12 to mean ‘‘an

individual, * * * Federal, State or local

government or any other legal entity,’’

and concluded that ‘‘[a] hospital

emergency room, while obviously also

performing functions unrelated to drug

abuse, serves as a vital first link in drug

abuse diagnosis, treatment and referral.’’

Id.

As indicated in the NPRM, the

Department believed this interpretation

too broadly defined the term ‘‘program’’

in the regulations. See 59 FR 42561,

42562. Accordingly, the Department

proposed to clarify the definition of

‘‘program’’ in the regulations to ensure

that it encompasses only (1) an

individual or entity (other than a

general medical facility) who holds

itself out as providing, and provides,

alcohol or drug abuse diagnosis,

treatment or referral for treatment; or (2)

an identified unit within a general

medical facility which holds itself out

as providing, and provides, alcohol or

drug abuse diagnosis, treatment or

referral for treatment; or 93) medical

personnel or other staff in a general

medical care facility whose primary

function is the provision of alcohol or

drug abuse diagnosis, treatment or

referral for treatment and who are

identified as such providers.

B. Public Comments

Two commenters believed that the

revised definition of ‘‘program’’ was too

narrow. One of these commenters

believed that the definition of

‘‘program’’ should include all

physicians and other hospital and

emergency room personnel who treat

substance abusers. The other commenter

believed that emergency room personnel

should be covered by the regulations

because they serve as an important

source of referrals for substance abuse

treatment. Both commenters believed

that relief from the confidentiality rules

could discourage persons who abuse

substances from seeking services for

other medical problems.

It should be noted that the

clarification which was proposed was

the intent of the revisions made to the

regulations in 1987. See 52 FR 21796,

21797 (June 9, 1987). As indicated in

the NPRM, prior to the 1987

amendments, the regulations applied to

any record relating to substance abuse

whether the information was obtained

from an emergency room, a general

medical unit or a general practitioner so

long as there was a Federal nexus. In

1987, however, it was the intent of the

Department to limit the applicability of

the regulations to specialized programs

and personnel so as to simplify

administration of the regulations. It was

the Department’s position that this

limitation would not significantly affect

the incentive to seek treatment provided

by the confidentiality protection. See 52

FR at 21797. Furthermore, the

Department questioned whether

applicability of the regulations to

general medical care facilities addressed

the intent of Congress to enhance

treatment incentives for alcohol and

drug abuse, since many substance abuse

patients are treated in a general medical

care facility not because they have made

a decision to seek substance abuse

treatment, but because they have

suffered a trauma or have an acute

condition with a primary diagnosis of

something other than substance abuse.

Id.

The Department is not aware of any

evidence that the narrowing of the

applicability of the regulations in 1987

(at least for jurisdictions other than the

Ninth Circuit) has adversely affected

substance abusers from seeking

treatment whether for substance abuse

or other medical problems. The

Department is also not persuaded that

encompassing all health care facilities

and providers who provide alcohol and

drug abuse treatment only as an

incident to the provision of general

medical care is warranted in light of the

economic impact such a regulation

would have on a substantial number of

facilities which do not specialize in

substance abuse treatment, referral or

diagnosis.

One Federal agency believed that the

proposed definition of ‘‘program’’ does

not provide sufficient guidance to law

enforcement, particularly the phrase

‘‘holds itself out as * * *.’’ That agency

believed that the definition presents an

opportunity for a practitioner who does

not engage in substance treatment or

referral for treatment, to designate

himself or herself as a ‘‘program,’’

thereby avoiding regulatory or

investigative scrutiny.