VOL. 59, No. 24
Rules and Regulations
ENVIRONMENTAL PROTECTION AGENCY (EPA)
40 CFR Parts 52 and 81
Approval of Maintenance Plan and Designation of Areas for Air Quality Planning Purposes; OH
59 FR 5332
DATE: Friday, February 4, 1994
ACTION: Final rule.
SUMMARY: USEPA is approving a redesignation request and maintenance plan for Cuyahoga County, Ohio as a revision to Ohio's State Implementation Plan (SIP) for carbon monoxide.
The revision is based on a request from the State of Ohio to redesignate this area, and approve its maintenance plan, and on the supporting data the State submitted. Under the Clean Air Act, designations can be changed if sufficient data are available to warrant such change.
EFFECTIVE DATE: This final rulemaking becomes effective on March 7, 1994.
ADDRESSES: William Jones, Regulation Development Section, Air Enforcement Branch (AE-17J), United States Environmental Protection Agency, 77 West Jackson Boulevard, Region 5, Chicago, Illinois 60604, (312) 886-6058.
Copies of the redesignation request, public comments on the proposed rule, and other materials relating to this rulemaking are available for inspection at the following address: (It is recommended that you telephone William Jones at (312) 886-6058, before visiting the Region 5 Office.) U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Region 5, Chicago, Illinois 60604.
A copy of this redesignation is available for inspection: Jerry Kurtzweg (ANR-443), U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: William Jones at (312) 886-6058.
SUPPLEMENTARY INFORMATION: Under section 107(d) of the pre-amended Clean Air Act (CAA), the United States Environmental Protection Agency (USEPA) promulgated the carbon monoxide (CO) attainment status for each area of every State. For Ohio, Cuyahoga County was designated as a nonattainment area for CO, see 43 FR 8962 (March 3, 1978), and 43 FR 45993 (October 5, 1978). On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted. Public Law No. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. Pursuant to section 107(d)(1)(C) of the CAA, Cuyahoga County retained its designation of nonattainment for CO by operation of law, see 56 FR 56694 (November 6, 1991). At the same time the area was classified as a moderate CO nonattainment area based on a design value of 10.1 parts per million.
The Ohio Environmental Protection Agency requested that Cuyahoga County be redesignated to attainment in a letter dated October 16, 1992, and received by USEPA on October 21, 1992. On July 12, 1993 (58 FR 37453) USEPA proposed to approve Ohio's requested redesignation. The CO nonattainment area at issue consists of Cuyahoga County. The State of Ohio has met all of the CAA requirements for redesignation pursuant to section 107(d)(3)(E).
The State provided monitoring, modeling and emissions data to support its redesignation request. The 1992 CO attainment emissions inventory totals in tons per day are 98.55, 81.25, and 67.17, respectively, for the point, area, and mobile sources. The State relied on the existence of an approved Inspection and Maintenance (I/M) program as part of its maintenance demonstration.
The State of Ohio also provided the following schedule for implementing the contingency plan and committed to retain the existing monitoring network for carbon monoxide in the Cleveland area. The last column in the schedule is the amount of time that a specific activity must start ahead of the oxygenated fuels program start date for scheduling purposes. The completion time is the amount of time required to finish a specific activity in the table.
Cleveland Oxygenated Fuels Contingency Program Implementation Schedule fn 1 Activity Completion time Lead time needed before start date (months) Ohio EPA evaluates data from 1 month 13 network monitors when a violation is detected, and announces that a violation has been found and the oxygenated fuels program is needed Ohio EPA submits requests and Up to 12 months 12 obtains necessary program budget Petroleum industry secures 8 months 8 oxygenates and sets up tracking systems to comply with the requirements Ohio EPA reviews the existing 7 months 7 state rules requiring the program to determine if changes are needed/desired, and completes rulemaking Ohio EPA hires additional staff 7 months 7 needed to conduct the program and trains staff Ohio EPA purchases needed 5 months 5 equipment Ohio EPA secures lab contracts 4 months 4 Ohio EPA begins public awareness 4 months 4 program Ohio EPA prepares for and requires 3 months 3 Control Area Responsible parties (CARs) to register fn 1 Based upon this schedule, the oxygenated fuels program could be implemented the next winter season following the detection of a violation (depending upon budget lead time needed), or at maximum, would be implemented within 12 months of a violation.
Public Comment/USEPA Response
The following comments were received on the July 12, 1993, notice of proposed rulemaking. USEPA's response follows each comment.
Comment: The air quality in the Cleveland area is unhealthy and the area should remain nonattainment and the requirements not be relaxed. If nothing is done now, the problem will get worse.
Response: The State of Ohio submitted air quality modeling and monitoring data as a part of their redesignation request. These data show that the area is currently in attainment of the primary National Ambient Air Quality Standards (NAAQS) for carbon monoxide (CO) and is expected to remain in attainment for at least the next 10 years. The primary NAAQS are established to protect public health. Since, the State has met the redesignation requirement to demonstrate that the air quality meets the NAAQS, USEPA believes the air quality is sufficient to protect the public health. USEPA cannot reject the redesignation request on this basis.
Comment: If the redesignation is approved, it would discourage the public transportation system in the area from making improvements to its fleet.
Response: The Intermodal Surface Transportation Efficiency Act (ISTEA) has provisions for Congestion Mitigation and Air Quality Improvement Programs. Under these provisions, funding has been made available for ozone and CO nonattainment areas for certain actions that can improve air quality. Since the air quality in Cuyahoga County remains nonattainment for ozone, they can apply for these funds.
Comment: Oxygenated gasoline creates less pollution and should be mandated in the area.
Response: While oxygenated fuel lowers CO levels, the State has shown that the CO levels are below the standard and are expected to remain below the standard for at least the next 10 years in the County, without using oxygenated fuels. Since the State has demonstrated maintenance without the measure and an oxygenated fuels program is not an applicable requirement for purposes of redesignation, EPA cannot mandate the program in this area. However, if a violation were to occur the State has committed to implement oxygenated fuels in the area.
Comment: The area should not be redesignated because it would then be required to use reformulated gasoline during the winter.
Response: Reformulated fuels are required in certain ozone nonattainment areas, and oxygenated fuels are required in certain CO nonattainment areas. These are two distinct requirements. The redesignation of the area to attainment for CO will not result in the county having a reformulated fuels requirement for controlling CO. Furthermore, under the CAA none of the areas in Ohio are currently subject to the reformulated fuels requirement.
The remaining public comments received (over 120) were all in support of the redesignation and, therefore, will not be addressed here.
The amended Clean Air Act established new submittal requirements with respect to various programs. Therefore, USEPA reviewed the State's submittal, to determine whether the State met the applicable requirements of the amended Act.
Section 187(a)(4) of the Act establishes the I/M requirements applicable to moderate CO nonattainment areas. Section 187(a)(4) requires the State to have submitted an I/M program immediately upon enactment of the Clean Air Act Amendments of 1990. USEPA has interpreted this provision to require submittal of a commitment to USEPA by November 15, 1992, see 57 FR 52950 (Nov. 5, 1992). This commitment would commit to the submittal of an actual program by November 15, 1993. Therefore, November 15, 1992, is the date on which the I/M requirement became applicable. Although Ohio is not required to submit an approvable I/M program in order for USEPA to determine that the State has met the applicable requirements of part D, the State must have an approved I/M program prior to redesignation because it has relied on such a program to demonstrate maintenance of the NAAQS.
The redesignation request can now be approved as meeting conditions of the CAA in section 107(d)(3)(E) for redesignation, since: (1) The I/M regulations have recently been fully approved as a part of the CO SIP; (2) the State has submitted a schedule for implementing the contingency plan; and (3) the State has committed to maintain an acceptable CO monitoring network in the maintenance area. The State has also met the terms of the May 26, 1988, SIP call for the Cleveland area.
The applicable New Source Review (NSR) requirements for moderate CO areas are in section 172(c)(5) of the Act. Section 172(b) establishes a date no later than November 15, 1993, for submittal of the section 172(c) requirements. Since USEPA has not established an earlier date for submittal, the NSR requirement does not become an applicable requirement until November 15, 1993. Since Ohio submitted the redesignation request for Cuyahoga County prior to November 15, 1993, and the area is now designated attainment, there is no longer a requirement for nonattainment area CO NSR.
The amended Act also specifies new requirements-i.e., requirements not established under the pre-amended Act-for CO nonattainment areas. These include an oxygenated fuels program and an emissions inventory. These requirements were due on November 15, 1992. Since Ohio submitted the redesignation request prior to November 15, 1992, the State was not required to submit these plan elements for purposes of redesignation. Further, since the area is now designated attainment for CO, the CO emissions inventory and oxygenated fuels SIPs are no longer required. However, a CO emissions inventory was submitted as the attainment emissions inventory and is being approved as part of this redesignation action.
Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to the SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.
Today's action makes final the action proposed on July 12, 1993 (58 FR 37453) to approve Ohio's requested redesignation of Cuyahoga County to attainment for CO. This action has been reclassified from a Table 1 to a Table 2 action by the Regional Administrator 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 Tables 2 and 3 SIP revisions (54 FR 222) from the requirements of section 3 of Executive Order 12291 for a period of 2 years. USEPA has submitted a request for a permanent waiver for Table 2 and Table 3 SIP revisions. The OMB has agreed to continue the 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 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-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, because the federal SIP-approval does not impose any new requirements, I certify that it 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 a regulatory flexibility analysis would constitute federal inquiry into the economic reasonableness of state action. The CAA forbids USEPA 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); 42 U.S.C. 7410(a)(2).
Redesignation of an area to attainment under section 107(d)(3)(E) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. I certify that the approval of the redesignation request will not affect a substantial number of small entities.
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 April 5, 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 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
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations.
40 CFR Part 81
Air pollution control.
Note-Incorporation by reference of the State Implementation Plan for the State of Ohio was approved by the Director of the Federal Register on July 1, 1982.
Dated: December 2, 1993.
Valdas V. Adamkus, Regional Administrator.
Chapter I, title 40 of the Code of Federal Regulations 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 52.1870 is amended by adding a new paragraph (c) (93) to read as follows:
@ 52.1870 -- Identification of plan.
* * * * *
(c) * * *
(93) In a letter dated October 16, 1992, the OEPA submitted a revision to the Carbon Monoxide State Implementation Plan for Cuyahoga County. This revision contains a maintenance plan that the area will use to maintain the CO NAAQS. The maintenance plan contains an oxygenated fuels program as a contingency measure to be implemented if the area violates the CO NAAQS.
(i) Incorporation by reference. (A) Letter dated October 16, 1992, from Donald R. Schregardus, Director, Ohio Environmental Protection Agency to Valdas Adamkus, Regional Administrator, U.S. Environmental Protection Agency, Region 5 and its enclosures entitled "Table 1 Cuyahoga County Carbon Monoxide Emission Inventory", Enclosure B "Cuyahoga County carbon monoxide SIP submittal", and section 6.0 of Enclosure C "Cuyahoga County Carbon Monoxide Modeling Study Final Report."
(ii) Additional information.
(A) Letter dated January 14, 1993, from Donald R. Schregardus, Director, Ohio Environmental Protection Agency to Valdas Adamkus, Regional Administrator, U.S. Environmental Protection Agency, Region 5.
(B) Letter dated February 10, 1993, from Robert F. Hodanbosi, Chief, Division of Air Pollution Control, Ohio Environmental Protection Agency to David Kee, Director, Air and Radiation Division, U.S. Environmental Protection Agency, Region 5.
(C) Letter dated July 29, 1993, from Robert F. Hodanbosi, Chief, Division of Air Pollution Control, Ohio Environmental Protection Agency to David Kee, Director, Air and Radiation Division, U.S. Environmental Protection Agency, Region 5.
PART 81-DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
1. The authority citation of part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In @ 81.336 the carbon monoxide table is amended by revising the entry of "Cuyahoga County" to read as follows:
@ 81.336 -- Ohio. * * * * * Ohio-Carbon Monoxide Designated area Designation Classification Date fn 1 Type Date fn 1 Type * * * * * Cuyahoga March 7 Attainment County * * * * * fn 1 This date is November 15, 1990, unless otherwise noted. * * * * * [FR Doc. 94-2521 Filed 2-3-94; 8:45 am] BILLING CODE 6560-50-P