[Federal Register Volume 73, Number 192 (Thursday, October 2, 2008)]
[Rules and Regulations]
[Pages 57246-57248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23245]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1100; FRL-8723-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; Removal of Vehicle Inspection and Maintenance Programs for 
Cincinnati and Dayton

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Ohio which allows the State to discontinue 
the vehicle inspection and maintenance (I/M) program in the Cincinnati-
Hamilton and Dayton-Springfield areas, also known as the E-Check 
program. The revision specifically requests that the E-Check program 
regulations be moved from the active control measures portion of the 
SIP to the contingency measures portion of the Cincinnati-Hamilton and 
Dayton-Springfield ozone maintenance plans. The Ohio Environmental 
Protection Agency (Ohio EPA) submitted this request on April 4, 2005, 
and supplemented it on May 20, 2005, February 14, 2006, May 9, 2006, 
October 6, 2006, and February 19, 2008. EPA is approving Ohio's request 
because the State has demonstrated that discontinuing the I/M program 
in the Cincinnati-Hamilton and Dayton-Springfield areas will not 
interfere with the attainment and maintenance of the 8-hour ozone 
National Ambient Air Quality Standard (NAAQS) and the fine particulate 
NAAQS or with the attainment and maintenance of other air quality 
standards.

DATES: This final rule is effective on November 3, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2007-1100. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, will be 
publicly available only in hard copy. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the U.S. Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 
60604. This Facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. We recommend that you 
telephone Francisco J. Acevedo at (312) 886-6061 before visiting the 
Region 5 office.

FOR FURTHER INFORMATION CONTACT: Francisco J. Acevedo, Environmental 
Protection Specialist, Criteria Pollutant Section, Air Programs Branch 
(AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6052.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is the background for this action?
II. What is our response to comments received on the notice of 
proposed rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

    The Cincinnati-Hamilton and Dayton-Springfield areas were required 
to implement ``basic'' I/M programs under section 182(b)(4) of the 
Clean Air Act (CAA) because they were originally designated as moderate 
1-hour ozone nonattainment areas. In order to maximize nitrogen oxides 
(NO<INF>X</INF>), volatile organic compound (VOC), and carbon monoxide 
(CO) emissions reductions from the I/M program, Ohio EPA chose to 
implement an ``enhanced'' program in those areas and incorporated an 
on-board diagnostic (OBD) component into the programs. EPA fully 
approved Ohio's I/M programs on April 4, 1995 (60 FR 16989). The E-
Check programs began operation on January 2, 1996, to meet 
nonattainment area requirements for the ozone NAAQS effective at the 
time.\1\ The Cincinnati ozone nonattainment area also includes three 
counties (Boone, Campbell, and Kenton Counties) in northern Kentucky.
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    \1\ Although the E-Check program began on January 1, 1996, there 
was a vehicle I/M program operating in the Cincinnati-Hamilton area 
prior to that date, and prior to November 15, 1990.
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    Both the Cincinnati-Hamilton area and the Dayton-Springfield area 
have since been redesignated to attainment with respect to the 1-hour 
ozone NAAQS. The Cincinnati-Hamilton area was redesignated to 
attainment of the 1-hour ozone NAAQS on June 21, 2005 (70 FR 35946). 
The Dayton-Springfield area was redesignated to attainment of the 1-
hour ozone NAAQS on May 5, 1995 (60 FR 22289). On August 13, 2007 (72 
FR 45169), EPA approved the redesignation of the Dayton-Springfield 
area to attainment with respect to the 8-hour ozone NAAQS.
    EPA approved maintenance plans for each of these areas in 
connection with these redesignations. These approved maintenance plans 
show that control measures in place in these areas are sufficient for 
overall emissions to remain beneath the attainment level of emissions 
until the end of the maintenance period. In both cases, the conformity 
budget in the maintenance plans reflects mobile source emissions 
without E-Check, and the maintenance plans demonstrate that the 
applicable standard will continue to be met without E-Check. In 
accordance with the CAA and EPA redesignation guidance, states are free 
to adjust control strategies in the maintenance plan as long as they 
can satisfy section 110(l). With such a demonstration of non-
interference with attainment or other applicable requirements, control 
programs may be discontinued and removed from the SIP.
    Ohio EPA submitted a revision to the Cincinnati-Hamilton and 
Dayton-Springfield portions of the Ohio SIP on April 4, 2005, and 
supplemented it on May 20, 2005, February 14, 2006, May 9, 2006, 
October 6, 2006, and February 19, 2008. This revision requested that 
the Ohio I/M programs in the Cincinnati-Hamilton and Dayton-Springfield 
areas be moved from the active control measures portion of the ozone 
SIP to the contingency measures portion of the Cincinnati-Hamilton and 
Dayton-Springfield Maintenance Plans.
    As part of its submittal, Ohio EPA demonstrated continued 
maintenance of the 1-hour ozone standard without taking credit for 
reductions from the Cincinnati-Hamilton E-Check program,

[[Page 57247]]

and continued maintenance of the 1-hour and 8-hour ozone standards 
without taking credit for reductions from the Dayton-Springfield E-
Check program.
    In addition, Ohio adopted several measures to assure that the 
discontinuation of E-Check, which occurred starting January 1, 2006, 
does not interfere with timely attainment of the ozone air quality 
standard. All the replacement measures are currently in effect and 
establish obligatory requirements applicable to affected groups.
    The various measures adopted by Ohio to reduce VOC emissions 
include a rule requiring use of lower emitting solvents in cold cleaner 
degreasers, a rule requiring the use of more efficient paint 
application techniques for auto refinishing, and a rule requiring that 
portable fuel containers be designed for less volatilization and fuel 
spillage. EPA approved these rules on March 30, 2007 (72 FR 15045).
    Ohio also adopted a rule requiring use of low volatility gasoline 
in the Cincinnati-Hamilton and Dayton-Springfield areas. EPA approved 
Ohio's low vapor pressure gasoline rule on May 25, 2007 (72 FR 29269). 
Because of a delay in the implementation of Ohio's low vapor pressure 
gasoline program in 2006, Ohio adopted a further rule to provide the 
necessary reductions in 2006 and help compensate for the 
discontinuation of Ohio's E-Check program. This rule retired 240 
allowances from the new source set aside for the ``NO<INF>X</INF> SIP 
Call'' trading program and EPA approved this rule on February 13, 2008 
(73 FR 8197).
    EPA concludes that the combination of discontinuing E-Check and use 
of low volatility gasoline and the other control measures Ohio adopted 
will result in total emissions levels which will not interfere with 
attainment of the ozone standard. In addition, EPA believes that 
discontinuation of E-Check will clearly not interfere with the fine 
particulate NAAQS or with the attainment and maintenance of other air 
quality standards.

II. What is our response to comments received on the notice of proposed 
rulemaking?

    The notice proposing to approve Ohio's request to discontinue 
operation of the I/M programs in the Cincinnati-Hamilton and Dayton-
Springfield areas was published in the Federal Register on July 24, 
2008, and the public comment period for this notice closed on August 
25, 2008. EPA received comments from two parties on the proposal. The 
first set of comments were sent by the Regional Air Pollution Control 
Agency of Dayton, Ohio fully supporting the proposal, and the second 
set of comments were from representatives of the Environmental 
Committee of the Ohio Utility Institute representing Buckeye Power, 
Inc., Columbus Southern Power Company, Dayton Power & Light Company, 
Duke Energy Ohio, Ohio Power Company, and Ohio Valley Electric 
Corporation. The utility comments do not contain objections to EPA's 
proposed approval of the shutdown request per se, but instead object to 
the statement that the retirement of 240 allowances from the utility 
oxides of nitrogen trading program helped in temporarily compensating 
for emission increases resulting from I/M discontinuation. The 
utilities reiterated objections raised during the approval process of 
an earlier EPA action approving the retirement of the 240 allowances, a 
notice that was approved by EPA on February 13, 2008 (73 FR 8197), and 
has been formally challenged by the utilities. Because EPA addressed 
these comments in this earlier rulemaking and the issues relating to 
the merits of the allowance rulemaking are currently being addressed 
through a separate petition for review process, and the utilities are 
not directly objecting to the merits of the I/M program shutdown, EPA 
is not elaborating further on its response to these comments.

III. What action is EPA taking?

    EPA is approving Ohio's demonstration that eliminating the I/M 
programs in the Cincinnati-Hamilton and Dayton-Springfield areas will 
not interfere with the attainment and maintenance of the ozone NAAQS 
and the fine particulate NAAQS and with the attainment and maintenance 
of other air quality standards and requirements of the CAA. We are 
further approving Ohio's request to modify the SIP such that I/M is no 
longer an active program in these areas and is instead a contingency 
measure in these areas' maintenance plans.
    As noted in the proposed notice, the Cincinnati area is currently 
designated nonattainment for ozone but is not classified. Pursuant to a 
decision of the Court of Appeals for the District of Columbia Circuit 
in the case of South Coast Air Quality Management Dist. v. EPA (472 
F.3d 882 (D.C. Cir. 2006)), EPA will be reevaluating the classification 
of ozone nonattainment areas that were formerly classified as ``basic'' 
for the .08 parts per million (ppm) standard. One possible outcome 
could be the reestablishment of a requirement for I/M for the 
Cincinnati area.\2\ However, for the reasons stated in the proposed 
notice, EPA believes that Ohio has satisfied currently applicable 
criteria for discontinuing I/M in the Cincinnati and Dayton areas.
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    \2\ Because the Dayton area is designated attainment for the 
0.08 ppm 8-hour ozone standard, EPA's future classification rule for 
that standard would not apply to that area.
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IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

[[Page 57248]]

    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 1, 2008. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Particulate matter, Volatile organic compounds.

    Dated: September 24, 2008.
Walter W. Kovalick Jr,
Acting Regional Administrator, Region 5.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart KK--Ohio

0
2. Section 52.1885 is amended by adding paragraph (gg) to read as 
follows:


Sec.  52.1885  Control strategy: Ozone.

* * * * *
    (gg) Approval--EPA is approving requests submitted by the State of 
Ohio on April 4, 2005, and supplemented on May 20, 2005, February 14, 
2006, May 9, 2006, October 6, 2006, and February 19, 2008, to 
discontinue the vehicle inspection and maintenance (I/M) program in the 
Cincinnati-Hamilton and Dayton-Springfield areas. The submittal also 
includes Ohio's demonstration that eliminating the I/M programs in the 
Cincinnati-Hamilton and Dayton-Springfield areas will not interfere 
with the attainment and maintenance of the ozone NAAQS and the fine 
particulate NAAQS and with the attainment and maintenance of other air 
quality standards and requirements of the CAA. We are further approving 
Ohio's request to modify the SIP such that I/M is no longer an active 
program in these areas and is instead a contingency measure in these 
areas' maintenance plans.

[FR Doc. E8-23245 Filed 10-1-08; 8:45 am]
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