VOL. 59, No. 182
Rules and Regulations
ENVIRONMENTAL PROTECTION AGENCY (EPA)
40 CFR Parts 52 and 81
Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio
59 FR 48403
DATE: Wednesday, September 21, 1994
ACTION: Final rule.
SUMMARY: The Environmental Protection Agency is approving maintenance plans and redesignation of Morgan and Washington Counties, Ohio, from nonattainment to attainment for sulfur dioxide (SO2), and is deferring action on the maintenance plans and redesignation request for Gallia and Coshocton Counties. This action for Morgan and Washington Counties is based on Ohio's request, and provides that the new source review requirements for nonattainment areas will no longer apply for SO2 in these two counties.
EFFECTIVE DATE: This final rule is effective on October 21, 1994.
ADDRESSES: Copies of the maintenance plan and redesignation request, public comments on the rulemaking, and other materials relating to this rulemaking are available for inspection at the following address: (It is recommended that you telephone John Summerhays at (312) 886-6067 before visiting the Region 5 Office.) United States Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard (AE-17J), Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: John Summerhays at (312) 886-6067.
I. Summary of Proposed Rulemaking
A subsequent submittal provided stack test data for one of the relevant facilities. On March 18, 1994, at 59 FR 12886, USEPA proposed to approve maintenance plans and redesignation of Morgan and Washington Counties, Ohio, from nonattainment to attainment for sulfur dioxide (SO2). In that document, USEPA did not propose to take action on the maintenance plans and redesignation request for Gallia and Coshocton Counties. The notice of proposed rulemaking (NPR) included a background synopsis of the State's submittals and the applicable criteria, a full review of the State's submittals, and a summary of the proposed action. The NPR contained five subsections corresponding to the five criteria for redesignation from nonattainment to attainment given in section 107(d)(3)(E) of the Clean Air Act. In the NPR, USEPA made the following proposed findings: (i) All four counties are attaining the 24-hour air quality standard, Morgan and Washington Counties are attaining the 3-hour standard, and USEPA did not evaluate whether Coshocton and Gallia Counties are attaining the 3-hour standard; (ii) USEPA considered approval of the Morgan and Washington County plans under section 110(a)(2) to satisfy section 107(d)(3)(E)(ii) for these counties, but "based on questions as to whether (Federal Implementation Plans (FIPs)) satisfy the requirements of section 107(d)(3)(E)(ii)," USEPA deferred action on Ohio's request for Coshocton and Gallia Counties; (iii) USEPA judged all four counties to have permanent and enforceable emission reductions; (iv) USEPA judged the maintenance plans for Morgan and Washington Counties adequate, and did not evaluate the maintenance plans for Coshocton and Gallia Counties; and (v) USEPA judged that Ohio had satisfied the requirements of section 110 and part D of title I for Morgan and Washington Counties, and did not evaluate whether these requirements were satisfied for Coshocton and Gallia Counties. On the basis of this review, USEPA proposed to approve the maintenance plans and redesignation request for Morgan and Washington Counties and did not propose action for Coshocton and Gallia Counties.
II. Public Comments/USEPA Responses
One letter commenting on the proposed rulemaking was received, submitted by the Ohio Environmental Protection Agency (OEPA). This letter included as an attachment a letter commenting on the same issues, sent from Ohio Governor Voinovich to Administrator Carol Browner prior to publication of the notice of proposed rulemaking. The comments in these letters and USEPA's responses follow:
Comment: Ohio supports the proposed action with respect to Morgan and Washington Counties.
Response: USEPA received no adverse comments on this part of its proposal, and, for the reasons provided in the proposal, concludes that the maintenance plans and redesignation request for these counties should be approved.
Comment: The State objects to USEPA's decision to defer action on the redesignation of Coshocton and Gallia Counties, and in particular presents arguments that areas subject to FIP limits (promulgated under section 110(c) of the Clean Air Act) rather than SIP limits (approved under section 110(k) or its equivalent) may be redesignated. Ohio argues that FIP limits are equivalent to SIP limits. The State cites language previously in section 110(d) (essentially moved to section 302(q) by the Clean Air Act Amendments of 1990) that the "implementation plan" includes both approved State submittals and federally promulgated measures. The State comments that if areas with FIPs could not be redesignated, then "U.S. EPA could never promulgate a FIP because such a plan would not provide for attainment redesignations and thus would be incomplete," and "nonattainment areas would be frozen, even though air quality may be demonstrably improved."
Also, the Governor commented that designations are based on air quality and that FIPs provide for permanent air quality improvement. The Governor concluded that Coshocton and Gallia Counties have been exhibiting attainment for 14 years, and that obstruction to the attainment status of these counties is based on a narrow interpretation of the Clean Air based on "periodic changes in review requirements," and is inappropriate and unnecessary.
Response: Section 107(d)(3)(E) of the Act, as amended in 1990, precludes USEPA from redesignating areas subject to FIPs, such as Coshocton and Gallia Counties to attainment. That section of the Act prohibits USEPA from redesignating a nonattainment area to attainment unless the area satisfies certain explicit statutory criteria. It provides that:
The Administrator may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless-
(i) The Administrator determines that the area has attained the national ambient air quality standard;
(ii) The Administrator has fully approved the applicable implementation plan for the area under section 110(k);
(iii) The Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;
(iv) The Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and
(v) The State containing such area has met all requirements applicable to the area under section 110 and part D.
As is evident, several criteria must be satisfied for an area to be redesignated to attainment apart from attaining the national ambient air quality standard and the determination that improvements in air quality are due to permanent and enforceable reductions in emissions. It is those criteria, especially that in clauses (ii), (iv) and (v), that are pertinent with respect to the issue of whether a nonattainment area may be redesignated to attainment if there is FIP, rather than a SIP, in place.
First, the language of clause (ii) requires that for USEPA to redesignate an area, USEPA must have "fully approved the applicable implementation plan for the area under section 110(k)." This clause clearly requires that a SIP be in place. Only SIPs are approved by USEPA; FIPs are not approved, but promulgated. More importantly, the clause refers to approval under section 110(k), the provision of the Act setting forth the procedure for USEPA to act on SIP revisions submitted to the Agency by states. Thus, a FIP does not qualify as a plan approved under section 110(k). In contrast, the language of section 302(q) defines the term "applicable attainment plan" as meaning a FIP or a SIP. Thus, it defines "applicable implementation plan" as "the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under section 110 (a SIP, which is referred to in section 107(d)), or promulgated under section 110(c) (a FIP, which is not referred to in section 107(d)(3)(E)(ii))."
Second, clause (iv) requires that USEPA have fully approved a maintenance plan as meeting the requirements of section 175A. Section 175A(a) requires that each State that submits a redesignation request to submit "a revision of applicable State implementation plan to provide for maintenance of the national primary ambient air quality standard," and thus clearly presupposes that a SIP, not a FIP, will be in place prior to redesignation.
Third, clause (v) requires that, in order to have an area redesignated to attainment, the State containing the area must meet "all requirements applicable to the area under section 110 and part D." As these requirements concern various SIP submissions, this clause also implicitly means that USEPA cannot approve a redesignation request for an area that is subject to a FIP.
Thus, the language of section 107(d)(3) plainly prohibits USEPA from redesignating an area to attainment if that area is subject to a FIP. This outcome is fully consistent with a fundamental policy underlying the law-that the states have primary responsibility for attaining and maintaining air quality standards and that FIPs are intended to be only short-term measures to fill gaps in control strategies. Further evidence of this policy is provided by the fact that sanctions imposed under section 179 due to a state's failure to comply with its SIP obligations are not suspended or lifted due to USEPA's promulgation of a FIP pursuant to its obligations under section 110(c).
USEPA also notes that areas subject to FIPs are not frozen in place as nonattainment areas. Assuming that the area continued to satisfy the national ambient air quality standards, the area would be eligible for redesignation to attainment once the state submitted approvable SIP revisions as required by the Act, and submitted an approvable state maintenance plan.
Comment: In another argument for redesignating areas with FIP-based plans, the State interprets section 110(n)(1), the "Savings Clause," as providing that "[t]he authority of USEPA to redesignate nonattainment areas under a section 110(c) plan would remain unchanged as a result of the 1990 Amendments." The State believes that former section 110(d) provided this authority prior to the 1990 amendments.
Response: Section 110(n)(1) authorizes the enforcement of plan elements approved prior to 1990. It does not authorize USEPA to ignore post-1990 Clean Air Act criteria in judging the acceptability of States' requests. The requirement now in section 107(d)(3)(E)(ii) requiring a plan approved under section 110(k) was not included in the pre-1990 Clean Air Act or in USEPA's guidance. However, this requirement is applicable now under the Act.
Comment: The Governor commented that "[a]reas with FIPs have been redesignated in Ohio in the past," indicating that USEPA agreed that FIPs provide for permanent air quality improvement, and indicating further that Gallia and Coshocton Counties should be redesignated.
Response: Regardless of the situation prior to the enactment of the Clean Air Act Amendments of 1990, the requirements of section 107(d)(3)(E) are applicable under the Act now, and must be satisfied as a prerequisite for redesignating an area from nonattainment to attainment.
Comment: The State comments that USEPA should not use 1.95 as the conversion factor from coal sulfur content to sulfur dioxide emissions, but should instead use the factor of 1.9 given in Supplement F of AP-42 (dated July 1993).
Response: USEPA agrees with the State's comment. Since the fuel quality information indicated the air quality standards being met using a 1.95 conversion factor, the fuel quality information also indicates the air quality standards being met using a 1.9 conversion factor.
III. Rulemaking Action
USEPA has reviewed the State's submittals and other related material and, for the reasons stated in the proposal, has concluded that the maintenance plan and redesignation request for Morgan and Washington Counties satisfy the applicable criteria for approval. Consequently, USEPA approves the maintenance plan for SO2 for Morgan and Washington Counties, and redesignates these two counties to attainment. USEPA continues to defer action with respect to Ohio's maintenance plans and redesignation requests for Coshocton and Gallia Counties.
Nothing in this action should be construed as permitting, allowing or establishing a precedent for any future request for revision to any SIP. USEPA 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.
This action has been classified as a Table 2 action under the processing 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. On January 6, 1989, the Office of Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions (54 FR 2222) from the requirements of section 3 of Executive Order 22291 for a period of 2 years. The USEPA has submitted a request for a permanent waiver for Table 2 and 3 SIP revisions. The OMB has agreed to continue the temporary waiver until such time as it rules on USEPA's request. This request continues in effect under Executive Order 12866 which superseded Executive Order 12291 on September 30, 1993.
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 November 21, 1994. 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, Intergovernmental relations, Sulfur oxides.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: August 25, 1994.
Valdas V. Adamkus, Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1881 is amended by adding paragraph (a)(12) to read as follows:
SS 52.1881 -- Control strategy: Sulfur oxides (sulfur dioxide).
(a) * * *
(12) In a letter dated June 25, 1992, Ohio submitted a maintenance plan for sulfur dioxide in Morgan and Washington Counties.
* * * * *
1. The authority citation of part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In SS 81.336 the "Ohio-SO2" table is amended by revising the entries for "Morgan County" and "Washington County" to read as follows:
SS 81.336 -- Ohio. * * * * * Ohio-SO2 Designated Does not Does not Cannot be Better than area meet meet classified national primary secondary standards standards standards * * * * * * * Morgan County ......... ......... .......... X * * * * * * * Washington County ......... ......... .......... X * * * * * * *
[FR Doc. 94-23109 Filed 9-20-94; 8:45 am]
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