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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Parts 52 and 81
EPA ID: [EPA-R05-OAR-2006-0956; FRL-8328-9]
NOTICE: PROPOSED RULES
ACTION: Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY: Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio; Redesignation of Dayton-Springfield Area to Attainment for Ozone
DATES: Comments must be received on or before July 20, 2007.
DOCUMENT SUMMARY: EPA is proposing to make a determination under the Clean Air Act (CAA) that the nonattainment area of DaytonSpringfield, Ohio (Clark, Green, Miami, and Montgomery Counties) has attained the 8hour ozone National Ambient Air Quality Standard (NAAQS). This determination is based on complete, qualityassured ambient air quality monitoring data for the 20042006 seasons that demonstrate that the 8hour ozone NAAQS have been attained in the area. EPA is also proposing to approve, as a revision to the Ohio State Implementation Plan (SIP), the State's plan for maintaining the 8hour ozone NAAQS through 2018 in the area.
EPA is proposing to approve a request from the State of Ohio to redesignate the DaytonSpringfield area to attainment of the 8hour ozone NAAQS. The Ohio Environmental Protection Agency (OEPA) submitted this request on November 6, 2006 and supplemented it on November 29, 2006, December 4, 2006, December 13, 2006, January 11, 2007, March 9, 2007, March 27, 2007, and May 31, 2007. EPA is also proposing to approve the State's 2005 and 2018 Motor Vehicle Emission Budgets (MVEBs) for the DaytonSpringfield area.
SUMMARY: Ohio,
SUPPLEMENTAL INFORMATION
Throughout this document whenever ``we,'' ``us,'' or ``our'' is used, we mean EPA. This supplementary information section is arranged as follows:Table of Contents
I. What Should I Consider as I Prepare My Comments for EPA? II. What Actions Is EPA Proposing To Take?
III. What Is the Background for These Actions?
A. What Is the General Background Information?
B. What Is the Impact of the December 22, 2006 United States
Court of Appeals Decision Regarding EPA's Phase 1 Implementation Rule?
IV. What Are the Criteria for Redesignation?
V. Why Is EPA Proposing To Take These Actions?
VI. What Is the Effect of These Actions?
VII. What Is EPA's Analysis of the Requests?
A. Attainment Determination and Redesignation
B. Adequacy of Ohio's MVEBs
VIII. What Actions Is EPA Taking?
IX. Statutory and Executive Order Reviews
I. What Should I Consider as I Prepare My Comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
2. Follow directionsThe EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
II. What Actions is EPA Proposing To Take?
EPA is proposing to take several related actions. EPA is proposing
to make a determination that the DaytonSpringfield nonattainment area
has attained the 8hour ozone standard and that this area has met the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
EPA is thus proposing to approve Ohio's request to change the legal
designation of the DaytonSpringfield area from nonattainment to
attainment for the 8hour ozone NAAQS. EPA is also proposing to approve
Ohio's maintenance plan SIP revision for DaytonSpringfield (such
approval being one of the CAA criteria for redesignation to attainment
status). The maintenance plan is designed to keep the Dayton
Springfield area in attainment of the ozone NAAQS through 2018.
Additionally, EPA is proposing to approve the newlyestablished 2005
and 2018 MVEBs for the DaytonSpringfield area. The adequacy comment
period for the MVEBs began on November 14, 2006, with EPA's posting of
the availability of the submittal on EPA's Adequacy Web site (at http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm ). The adequacy
comment period for these MVEBs ended on December 14, 2006. EPA did not
receive any requests for this submittal, or adverse comments on this
submittal during the adequacy comment period. On April 3, 2007, EPA
published a Federal Register notice announcing the adequacy of the 2005
and 2018 MVEBs. Please see the Adequacy section of this rulemaking for
further explanation on this process. Therefore, we find adequate, and
are proposing to approve, the State's 2005 and 2018 MVEBs for transportation conformity purposes.
III. What Is the Background for These Actions?
A. What Is the General Background Information?
Groundlevel ozone is not emitted directly by sources. Rather,
emissions of nitrogen oxides (NO
The CAA establishes a process for air quality management through the NAAQS. Before promulgation of the current 8hour standard, the ozone NAAQS was based on a 1hour standard. On November 6, 1991 (56 FR 56693 and 56813), the DaytonSpringfield area was designated as a moderate nonattainment area under the 1hour ozone NAAQS. The area was subsequently redesignated to attainment of the 1hour standard on May 5, 1995 (60 FR 22289). At the time EPA revoked the 1hour ozone NAAQS, on June 15, 2005, the DaytonSpringfield area was designated as attainment under the 1hour ozone NAAQS.
On July 18, 1997, EPA promulgated a revised 8hour ozone standard of 0.08 parts per million (ppm). This new standard is more stringent than the previous 1hour standard. On April 30, 2004 (69 FR 23857), EPA published a final rule designating and classifying areas under the 8 hour ozone NAAQS. These designations and classifications became effective June 15, 2004. The CAA required EPA to designate as nonattainment any area that was violating the 8hour ozone NAAQS based on the three most recent years of air quality data, 20012003.
The CAA contains two sets of provisions, subpart 1 and subpart 2, that address planning and control requirements for nonattainment areas. (Both are found in title I, part D, 42 U.S.C. 75017509a and 7511 7511f, respectively.) Subpart 1 contains general requirements for nonattainment areas for any pollutant, including ozone, governed by a NAAQS. Subpart 2 provides more specific requirements for ozone nonattainment areas.
Under EPA's 8hour ozone implementation rule, (69 FR 23951 (April
30, 2004)), an area was classified under subpart 2 based on its 8hour
ozone design value (i.e., the 3year average annual fourthhighest
daily maximum 8hour average ozone concentration), if it had a 1hour
design value at the time of designation at or above 0.121 ppm (the
lowest 1hour design value in Table 1 of subpart 2) (69 FR 23954). All
other areas are covered under subpart 1, based upon their 8 [[Page 33939]]
hour design values (69 FR 23958). The DaytonSpringfield area was
designated as a subpart 1, 8hour ozone nonattainment area by EPA on
April 30, 2004, (69 FR 23857, 23927) based on air quality monitoring data from 20012003 (69 FR 23860).
40 CFR 50.10 and 40 CFR Part 50, Appendix I provide that the 8hour ozone standard is attained when the 3year average of the annual fourthhighest daily maximum 8hour average ozone concentration is less than or equal to 0.08 ppm, when rounded. The data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90%, and no single year has less than 75% data completeness. See 40 CFR Part 50, Appendix I, 2.3(d).
On November 6, 2006, Ohio requested that EPA redesignate the
DaytonSpringfield area to attainment for the 8hour ozone standard.
Ohio supplemented its submittal on November 29, 2006, December 4, 2006,
December 13, 2006, January 11, 2007, March 9, 2007, March 27, 2007, and
May 31, 2007. The redesignation request included three years of
complete, qualityassured data for the period of 2004 through 2006,
indicating the 8hour NAAQS for ozone had been attained for the Dayton
Springfield area. Under the CAA, nonattainment areas may be
redesignated to attainment if sufficient complete, qualityassured data
are available for the Administrator to determine that the area has
attained the standard, and the area meets the other CAA redesignation requirements in section 107(d)(3)(E).
B. What Is the Impact of the December 22, 2006 United States Court of
Appeals Decision Regarding EPA's Phase 1 Implementation Rule? 1. Summary of Court Decision
On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8
hour Ozone Standard. (69 23951, April 30, 2004). South Coast Air
Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). The
Court held that certain provisions of EPA's Phase 1 Rule were
inconsistent with the requirements of the CAA. The Court rejected EPA's
reasons for implementing the 8hour standard in nonattainment areas
under Subpart 1 in lieu of subpart 2 of Title I, part D of the Act. The
Court also held that EPA improperly failed to retain four measures
required for 1hour nonattainment areas under the antibacksliding
provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1hour nonattainment
classification; (2) Section 185 penalty fees for 1hour severe or
extreme nonattainment areas; (3) Measures to be implemented pursuant to
section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an
area not making reasonable further progress toward attainment of the 1
hour NAAQS, or for failure to attain that NAAQS; and (4) certain
conformity requirements for certain types of federal actions. The Court
upheld EPA's authority to revoke the 1hour standard provided there were adequate antibacksliding provisions.
This section sets forth EPA's views on the potential effect of the Court's ruling on this redesignation action. For the reasons set forth below, EPA does not believe that the Court's ruling alters any requirements relevant to this redesignation action so as to preclude redesignation, and does not prevent EPA from finalizing this redesignation. EPA believes that the Court's decision, as it currently stands or as it may be modified based upon any petition for rehearing that has been filed, imposes no impediment to moving forward with redesignation of this area to attainment, because in either circumstance redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests.
2. Requirements Under the 8Hour Standard
With respect to the 8hour standard, the Court's ruling rejected EPA's reasons for classifying areas under Subpart 1 for the 8hour standard, and remanded that matter to the Agency. Consequently, it is possible that this area could, during a remand to EPA, be reclassified under Subpart 2. Although any future decision by EPA to classify this area under Subpart 2 might trigger additional future requirements for the area, EPA believes that this does not mean that redesignation cannot now go forward. This belief is based upon: (1) EPA's longstanding policy of evaluating State submissions in accordance with the requirements due at the time the request is submitted; and, (2) consideration of the inequity of applying retroactively any future requirements.
First, at the time the redesignation request was submitted, the DaytonSpringfield area was classified under Subpart 1 and was obligated to meet Subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. September 4, 1992, Calcagni memorandum (``Procedures for Processing Requests to Redesignate Areas to Attainment,'' Memorandum from John Calcagni, Director, Air Quality Management Division) See also Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 1246566 (March 7, 1995) (Redesignation of DetroitAnn Arbor). See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation. See, e.g. also 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis).
Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The D.C. Circuit has recognized the inequity in such retroactive rulemaking, See Sierra Club v. Whitman, 285 F. 3d 63 (D.C. Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: ``Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.'' Id. at 68. Similarly here it would be unfair to penalize the area by applying to it for purposes of redesignation additional SIP requirements under Subpart 2 that were not in effect at the time it submitted its redesignation request. 3. Requirements Under the 1Hour Standard
With respect to the requirements under the 1hour standard, the DaytonSpringfield area was an attainment area subject to a CAA section 175A maintenance plan under the 1hour standard. The Court's ruling does not impact redesignation requests for these types of areas.
First, there are no conformity requirements that are relevant for
redesignation requests for any standard, including the requirement to
submit a transportation conformity SIP. Under longstanding EPA policy,
EPA believes that it is reasonable to interpret the conformity SIP
requirement as not applying for purposes of evaluating a redesignation request under section
[[Page 33940]]
107(d) because state conformity rules are still required after
redesignation and federal conformity rules apply where state rules have
not been approved. 40 CFR 51.390. See Wall v. EPA, 265 F.3d 426 (6th
Cir. 2001), upholding this interpretation. See also 60 FR 62748 (December 7, 1995) (Tampa, FL redesignation).
Federal transportation conformity regulations apply in all States prior to approval of transportation conformity SIPs. The Dayton Springfield, Ohio 1hour ozone area was redesignated to attainment without approved State transportation conformity regulations because the federal regulations were in effect in Ohio. When challenged, these 1hour ozone redesignations, which were approved without state regulations, were upheld by the courts. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001). See also 60 FR 62748 (December 7, 1995) (Tampa, Florida). Although Ohio does not have approved state transportation conformity regulations, it has developed memoranda of understanding, signed by all parties involved in conformity, to address conformity consultation procedures. The federal transportation conformity regulations, which apply in Ohio, require the approved 1hour ozone budgets to be used for transportation conformity purposes prior to 8 hour ozone budgets being approved.
Second, with respect to the three other antibacksliding provisions for the 1hour standard that the Court found were not properly retained, the DaytonSpringfield area is an attainment area subject to a maintenance plan for the 1hour standard, and the NSR, contingency measure (pursuant to section 172(c)(9) or 182(c)(9)) and fee provision requirements no longer apply to an area that has been redesignated to attainment of the 1hour standard.
Thus, the decision in South Coast should not alter requirements that would preclude EPA from finalizing the redesignation of this area. IV. What Are the Criteria for Redesignation?
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation provided that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and, (5) the state containing such area has met all requirements applicable to the area under section 110 and part D.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:
``Ozone and Carbon Monoxide Design Value Calculations,'' Memorandum
from William G. Laxton, Director Technical Support Division, June 18, 1990;
``Maintenance Plans for Redesignation of Ozone and Carbon Monoxide
Nonattainment Areas,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in Response to
Clean Air Act (ACT) Deadlines,'' Memorandum from John Calcagni,
Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSD's) for Redesignation Ozone and
Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G.T. Helms,
Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
``State Implementation Plan (SIP) Requirements for Areas Submitting
Requests for Redesignation to Attainment of the Ozone and Carbon
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or
After November 15, 1992,'' Memorandum from Michael H. Shapiro, Acting
Assistant Administrator for Air and Radiation, September 17, 1993;
``Use of Actual Emissions in Maintenance Demonstrations for Ozone
and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting
Director, Air Quality Management Division, to Air Division Directors, Regions 110, dated November 30, 1993.
``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and
``Reasonable Further Progress, Attainment Demonstration, and
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard,'' Memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, May 10, 1995.'' V. Why Is EPA Proposing To Take These Actions?
On November 6, 2006, Ohio requested redesignation of the Dayton Springfield area to attainment for the 8hour ozone standard. Ohio supplemented its submittal on November 29, 2006, December 4, 2006, December 13, 2006, January 5, 2007, January 11, 2007, March 9, 2007, March 27, 2007, and May 31, 2007. EPA believes that the area has attained the standard and has met the requirements for redesignation set forth in section 107(d)(3)(E) of the CAA.
VI. What Is the Effect of These Actions?
Approval of the redesignation request would change the official
designation of the area for the 8hour ozone NAAQS found at 40 CFR part
81. It would also incorporate into the Ohio SIP a plan for maintaining
the 8hour ozone NAAQS through 2018. The maintenance plan includes
contingency measures to remedy future violations of the 8hour NAAQS.
It also establishes MVEBs of 29.19 and 14.73 tons per day (tpd) VOC and
63.88 and 21.42 tpd NO
VII. What Is EPA's Analysis of the Requests?
A. Attainment Determination and Redesignation
EPA is proposing to make a determination that the Dayton
Springfield area has attained the 8hour ozone standard and that the
area has met all other applicable section 107(d)(3)(E) redesignation criteria. The basis for EPA's determination is as follows:
1. The Area Has Attained the 8Hour Ozone NAAQS. (Section
107(d)(3)(E)(i))
EPA is proposing to make a determination that the Dayton
Springfield area has attained the 8hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8hour
[[Page 33941]]
ozone NAAQS if there are no violations, as determined in accordance
with 40 CFR 50.10 and part 50, Appendix I, based on three complete,
consecutive calendar years of qualityassured air quality monitoring
data. To attain this standard, the 3year average of the fourthhighest
daily maximum 8hour average ozone concentrations measured at each
monitor within an area over each year must not exceed 0.08 ppm. Based
on the rounding convention described in 40 CFR part 50, Appendix I, the
standard is attained if the design value is 0.084 ppm or below. The
data must be collected and qualityassured in accordance with 40 CFR
part 58, and recorded in the Aerometric Information Retrieval System
(AIRS). The monitors generally should have remained at the same
location for the duration of the monitoring period required for demonstrating attainment.
OEPA submitted ozone monitoring data for the 2004 to 2006 ozone
seasons. The OEPA qualityassured the ambient monitoring in accordance
with 40 CFR 58.10, and recorded it in the AIRS database, thus making
the data publicly available. The data meet the completeness criteria in
40 CFR 50, Appendix I, which requires a minimum completeness of 75
percent annually and 90 percent over each three year period. Monitoring
data is presented in Table 1 below. Data completeness information is presented in Table 2 below.
Table 1.Annual 4th High Daily Maximum 8Hour Ozone Concentration and 3Year Averages of 4th High Daily Maximum
8Hour Ozone Concentrations
20042006
2004 4th 2005 4th 2006 4th average
County Monitor high (ppm) high (ppm) high (ppm) 4th high
(ppm)
Clark........................... Springfield, 39023001... 0.079 0.086 0.076 0.080
Mud Run, 390230003...... 0.073 0.081 0.074 0.076
Greene.......................... Xenia, 390570006........ 0.075 0.083 0.079 0.079
Miami........................... Miami, 391090005........ 0.075 0.079 0.073 0.076
Montgomery...................... Webster, 391130033...... 0.067 0.082 0.071 0.073
Table 2.Data Completeness in Percent (%)
20042006
County Monitor 2004 (%) 2005 (%) 2006 (%) average (%)
Clark........................... Springfield, 39023001... 100 99 100 100
Mud Run, 390230003...... 99 99 100 99
Greene.......................... Xenia, 390570006........ 100 100 100 100
Miami........................... Miami, 391090005........ 99 100 99 99
Montgomery...................... Webster, 391130033...... 98 100 100 99
In addition, as discussed below with respect to the maintenance
plans, OEPA has committed to continue operating the ozone monitors
listed above. OEPA has also committed to consult with EPA prior to
making changes to the existing monitoring network, should changes
become necessary in the future. OEPA will continue to quality assure
and report monitoring data in accordance with 40 CFR part 58 and all
other federal requirements. In summary, EPA believes that the data
submitted by Ohio provide an adequate demonstration that the Dayton Springfield area has attained the 8hour ozone NAAQS.
2. The Area Has Met All Applicable Requirements Under Section 110 and
Part D; and the Area Has a Fully Approved SIP Under Section 110(k). (Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
We have determined that Ohio has met all currently applicable SIP requirements for purposes of redesignation for the DaytonSpringfield area under Section 110 of the CAA (general SIP requirements). We have also determined that the Ohio SIP meets all SIP requirements currently applicable for purposes of redesignation under part D of Title I of the CAA (requirements specific to Subpart 1 nonattainment areas), in accordance with section 107(d)(3)(E)(v). In addition, we have determined that the Ohio SIP is fully approved with respect to all applicable requirements for purposes of redesignation, in accordance with section 107(d)(3)(E)(ii). In making these determinations, we have ascertained what SIP requirements are applicable to the area for purposes of redesignation, and have determined that the portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. As discussed more fully below, SIPs must be fully approved only with respect to currently applicable requirements of the CAA. a. The DaytonSpringfield Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA
The September 4, 1992 Calcagni memorandum (see ``Procedures for Processing Requests to Redesignate Areas to Attainment,'' Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) of the CAA. Under this interpretation, a state and the area it wishes to redesignate must meet the relevant CAA requirements that are due prior to the state's submittal of a complete redesignation request for the area. See also the September 17, 1993 Michael Shapiro memorandum and 60 FR 12459, 1246566 (March 7, 1995) (redesignation of DetroitAnn Arbor, Michigan to attainment of the 1hour ozone NAAQS). Applicable requirements of the CAA that come due subsequent to the state's submittal of a complete request remain applicable until a redesignation to attainment is approved, but are not required as a prerequisite to redesignation. See section 175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis area to attainment of the 1hour ozone NAAQS).
General SIP requirements. Section 110(a) of title I of the CAA contains the general requirements for a SIP. Section
[[Page 33942]]
110(a)(2) provides that the implementation plan submitted by a state
must have been adopted by the state after reasonable public notice and
hearing, and that, among other things, it includes enforceable emission
limitations and other control measures, means or techniques necessary
to meet the requirements of the CAA; provides for establishment and
operation of appropriate devices, methods, systems and procedures
necessary to monitor ambient air quality; provides for implementation
of a source permit program to regulate the modification and
construction of any stationary source within the areas covered by the
plan; includes provisions for the implementation of part C, Prevention
of Significant Deterioration (PSD) and part D, NSR permit programs;
includes criteria for stationary source emission control measures,
monitoring, and reporting; includes provisions for air quality
modeling; and provides for public and local agency participation in planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain measures
to prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants (NO
\1\ On October 27, 1998 (63 FR 57356), EPA issued a
NO
As discussed above, we believe that section 110 elements which are not linked to the area's nonattainment status are not applicable for purposes of redesignation. Because there are no section 110 requirements linked to the part D requirements for 8hour ozone nonattainment areas that have become due, as explained below, there are no part D requirements applicable for purposes of redesignation under the 8hour standard.
Part D Requirements. EPA has determined that the Ohio SIP meets applicable SIP requirements under part D of the CAA, since no requirements applicable for purposes of redesignation became due for the 8hour ozone standard prior to OEPA's submission of the redesignation request for the DaytonSpringfield area. Under part D, an area's classification determines the requirements to which it will be subject. Subpart 1 of part D, found in sections 172176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Section 182 of the CAA, found in subpart 2 of part D, establishes additional specific requirements depending on the area's nonattainment classification. The DaytonSpringfield area was classified as a subpart 1 nonattainment area, and, therefore, subpart 2 requirements do not apply.
Part D, Subpart 1 applicable SIP requirements. For purposes of evaluating these redesignation requests, the applicable part D, subpart 1 SIP requirements for the DaytonSpringfield area are contained in sections 172(c)(1)(9). A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
No requirements applicable for purposes of redesignation under part D became due prior to submission of the redesignation request, and, therefore, none are applicable to the areas for purposes of redesignation. Since the State of Ohio has submitted a complete ozone redesignation request for the DaytonSpringfield area prior to the deadline for any submissions required for purposes of redesignation, we have determined that these requirements do not apply to the Dayton Springfield area for purposes of redesignation.
Furthermore, EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, ``Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.'' Ohio has demonstrated that the area to be redesignated will be able to maintain the standard without part D NSR in effect; therefore, EPA concludes that the State need not have a fully approved part D NSR program prior to approval of the redesignation request. The State's PSD program will become effective in the DaytonSpringfield area upon redesignation to attainment. See rulemakings for Detroit, Michigan (60 FR 1246712468, March 7, 1995); ClevelandAkronLorain, Ohio (61 FR 20458, 2046920470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834 31837, June 21, 1996).
Section 176 conformity requirements. Section 176(c) of the CAA
requires states to establish criteria and procedures to ensure that
federallysupported or funded activities, including highway projects,
conform to the air quality planning goals in the applicable SIPs. The
requirement to determine conformity applies to transportation plans,
programs and projects developed, funded or approved under Title 23 of the U.S. Code and the Federal Transit Act (transportation
[[Page 33943]]
conformity) as well as to all other federallysupported or funded
projects (general conformity). State conformity revisions must be
consistent with federal conformity regulations relating to
consultation, enforcement and enforceability, which EPA promulgated pursuant to CAA requirements.
EPA believes that it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) for two reasons. First, the requirement to submit SIP revisions to comply with the conformity provisions of the CAA continues to apply to areas after redesignation to attainment since such areas would be subject to a section 175A maintenance plan. Second, EPA's federal conformity rules require the performance of conformity analyses in the absence of federallyapproved state rules. Therefore, because areas are subject to the conformity requirements regardless of whether they are redesignated to attainment and, because they must implement conformity under federal rules if state rules are not yet approved, EPA believes it is reasonable to view these requirements as not applying for purposes of evaluating a redesignation request. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748, 6274962750 (Dec. 7, 1995) (Tampa, Florida).
EPA approved Ohio's general and transportation conformity SIPs on
March 11, 1996 (61 FR 9646) and May 30, 2000 (65 FR 34395),
respectively. Ohio has submitted onhighway motor vehicle budgets for
the DaytonSpringfield area of 29.19 and 14.73 tpd VOC and 63.88 and
21.42 tpd NO
b. The DaytonSpringfield Area Has a Fully Approved Applicable SIP Under Section 110(k) of the CAA
EPA has fully approved the Ohio SIP for the DaytonSpringfield area
under section 110(k) of the CAA for all requirements applicable for
purposes of redesignation. EPA may rely on prior SIP approvals in
approving a redesignation request (See the September 4, 1992 John
Calcagni memorandum, page 3, Southwestern Pennsylvania Growth Alliance
v. Browner, 144 F.3d 984, 989990 (6th Cir. 1998), Wall v. EPA, 265
F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve
in conjunction with a redesignation action. See 68 FR 25413, 25426 (May
12, 2003). Since the passage of the CAA of 1970, Ohio has adopted and
submitted, and EPA has fully approved, provisions addressing the
various required SIP elements applicable to the DaytonSpringfield area
under the 1hour ozone standard. No DaytonSpringfield area SIP
provisions are currently disapproved, conditionally approved, or partially approved.
3. The Improvement in Air Quality Is Due to Permanent and Enforceable
Reductions in Emissions Resulting From Implementation of the SIP and
Applicable Federal Air Pollution Control Regulations and Other
Permanent and Enforceable Reductions. (Section 107(d)(3)(E)(iii))
EPA finds that Ohio has demonstrated that the observed air quality improvement in the DaytonSpringfield area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other stateadopted measures.
In making this demonstration, the State has calculated the change in emissions between 2002 and 2005, one of the years the Dayton Springfield area monitored attainment. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that Ohio and upwind areas have implemented in recent years. The DaytonSpringfield is impacted by the transport of ozone and ozone precursors from upwind areas. Therefore, local controls as well as controls implemented in upwind areas are relevant to the improvement in air quality in the DaytonSpringfield area.
a. Permanent and Enforceable Controls Implemented
The following is a discussion of permanent and enforceable measures that have been implemented in the areas:
NOX rules. In compliance with EPA's NO
Federal Emission Control Measures. Reductions in VOC and
NO
Control Measures in Upwind Areas. On October 27, 1998 (63 FR
57356), EPA issued a NO
b. Emission Reductions
Ohio is using 2002 for the nonattainment inventory and 2005, one of
the years used to demonstrate monitored attainment of the NAAQS, for
the attainment inventory. OEPA developed a 2002 base year inventory
which they provided to the Lake Michigan Air Directors Consortium
(LADCO). The base year inventory was processed by LADCO to develop
summer day emissions for use in regional air quality analyses and
attainment demonstration modeling. Area source emissions data were
taken from the Ohio 2002 periodic inventory submitted to EPA. Onroad
mobile source emissions were calculated using MOBILE6.2. Point source
emissions data was compiled from Ohio's STARShip annual emissions
inventory database and EPA's 2002 Air Markets acid rain database.
Nonroad mobile emissions were generated using EPA's National Mobile
Inventory Model (NMIM), with the following exceptions. Recreational
motorboat populations and spatial surrogates were updated and emissions
estimates were developed for aircraft, commercial marine vessels, and
railroads, three nonroad categories not included in NMIM. For 2005, OEPA
[[Page 33944]]
estimated point, area, and nonroad mobile source emissions by
interpolating between the 2002 inventory and the 2009 inventory
described below. Onroad emissions were generated using MOBILE6.2.
Based on the inventories described above, Ohio's submittal
documents changes in VOC and NO
Table 3.DaytonSpringfield Area: Total VOC and NOX Emissions for Nonattainment Year 2002 (tpd)
Clark Greene Miami Montgomery Total
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
Point..................................... 0.55 0.11 0.05 9.30 0.29 0.05 2.61 29.32 3.50 38.78
Area...................................... 10.40 0.70 5.98 0.67 6.34 0.53 22.35 2.43 45.07 4.33
Nonroad................................... 1.94 3.56 1.79 3.70 1.74 3.49 8.62 12.17 14.09 22.92
Onroad.................................... 6.62 14.54 6.22 12.26 4.95 9.88 20.80 41.77 38.59 78.45
Total................................. 19.51 18.91 14.04 25.93 13.32 13.95 54.38 85.69 101.25 144.48
Table 4.DaytonSpringfield Area: Total VOC and NOX Emissions for Attainment Year 2005 (tpd)
Clark Greene Miami Montgomery Total
VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
Point..................................... 0.50 0.11 0.05 8.75 0.30 0.05 2.60 27.69 3.45 36.60
Area...................................... 11.02 0.75 6.08 0.72 6.46 0.56 22.67 2.62 46.23 4.65
Nonroad................................... 1.68 3.16 1.60 3.37 1.55 3.07 7.33 10.64 12.16 20.24
Onroad.................................... 4.98 11.82 4.74 10.04 3.81 8.17 15.66 33.85 29.19 63.88
Total................................. 18.18 15.84 12.47 22.88 12.12 11.85 48.26 74.80 91.03 125.37
Table 5.DaytonSpringfield Area: Comparison of 2002 and 2005 VOC and NOX Emissions (tpd)
VOC NOX
Sector Net change Net change
2002 2005 (20022005) 2002 2005 (20022005)
Point................................................... 3.50 3.45 0.05 38.78 36.60 2.18
Area.................................................... 45.07 46.23 1.16 4.33 4.65 0.32
Nonroad................................................. 14.09 12.16 1.93 22.92 20.24 2.68
Onroad.................................................. 38.59 29.19 9.4 78.45 63.88 14.57
Total............................................... 101.25 91.03 10.22 144.48 125.37 19.11
Table 5 shows that the DaytonSpringfield area reduced VOC
emissions by 10.22 tpd and NO
4. The Areas Have Fully Approved Maintenance Plans Pursuant to Section 175a of the CAA. (Section 107(d)(3)(E)(iv))
In conjunction with its requests to redesignate the Dayton Springfield nonattainment area to attainment status, Ohio submitted a SIP revision to provide for the maintenance of the 8hour ozone NAAQS in the area through 2018.
a. What is required in a maintenance plan?
Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for ten years following the initial tenyear maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future 8hour ozone violations.
The September 4, 1992 John Calcagni memorandum provides additional
guidance on the content of a maintenance plan. The memorandum clarifies
that an ozone Maintenance Plan Should Address The Following Items: The
attainment VOC and NO
b. Attainment Inventory
The OEPA developed an emissions inventory for 2005, one of the
years Ohio used to demonstrate monitored attainment of the 8hour
NAAQS, as described above. The attainment level of emissions is summarized in Table 4, above.
[[Page 33945]]
c. Demonstration of Maintenance
Ohio submitted with the redesignation request a revision to the 8
hour ozone SIP to include a maintenance plan for the DaytonSpringfield
area, in compliance with section 175A of the CAA. This demonstration
shows maintenance of the 8hour ozone standard through 2018 by assuring
that current and future emissions of VOC and NO
Ohio is primarily using inventories developed by LADCO for the
years 2009 and 2018. Point and area source emissions were projected
from the 2002 base year to 2009 and 2018 using growth factors. LADCO
point source estimates have been supplemented with point source
emissions projections based upon data compiled from Ohio's STARShip
annual emissions inventory database and statewide EGU NO
Table 6.DaytonSpringfield Area: Comparison of 20052018 VOC and NOX Emissions (tpd)
VOC NOX
Sector Net change Net change
2005 2009 2018 20052018 2005 2009 2018 20052018
Point........................................... 3.45 3.47 3.72 0.27 36.60 36.24 37.94 1.34
Area............................................ 46.23 47.76 52.75 6.52 4.65 5.09 5.45 0.80
Nonroad......................................... 12.16 9.62 7.91 4.25 20.24 16.68 9.84 10.40
Onroad.......................................... 29.19 20.50 11.66 17.53 63.88 46.78 18.50 45.38
Total....................................... 91.03 81.35 76.04 14.99 125.37 104.79 71.73 53.64
The emission projections show that OEPA does not expect emissions
in the DaytonSpringfield area to exceed the level of the 2005
attainment year inventory during the maintenance period. In the Dayton
Springfield area, OEPA projects that VOC and NO
As part of its maintenance plan, the State elected to include a
``safety margin'' for the area. A ``safety margin'' is the difference
between the attainment level of emissions (from all sources) and the
projected level of emissions (from all sources) in the maintenance plan
which continues to demonstrate attainment of the standard. The
attainment level of emissions is the level of emissions during one of
the years in which the area met the NAAQS. The DaytonSpringfield area
attained the 8hour ozone NAAQS during the 20042006 time period. Ohio
used 2005 as the attainment level of emissions for the area. In the
maintenance plan, OEPA projected emission levels for 2018. For Dayton
Springfield, the emissions from point, area, nonroad, and mobile
sources in 2005 equaled 91.03 tpd of VOC. OEPA projected VOC emissions
for the year 2018 to be 76.04 tpd of VOC. The SIP submission
demonstrates that the DaytonSpringfield area will continue to maintain
the standard with emissions at this level. The safety margin for VOC is
calculated to be the difference between these amounts or, in this case,
14.99 tpd of VOC for 2018. By this same method, 53.64 tpd (i.e., 125.37
tpd less 71.73 tpd) is the safety margin for NO
d. Monitoring Network
Ohio currently operates two ozone monitors in Clark County, and one ozone monitor each in Greene, Miami, and Montgomery Counties. OEPA has committed to continue operating the ozone monitors located in these counties. OEPA has also committed to consult with EPA prior to making changes to the existing monitoring network, should changes become necessary in the future. OEPA will continue to quality assure and report monitoring data in accordance with 40 CFR part 58 and all other federal requirements.
e. Verification of Continued Attainment
Continued attainment of the ozone NAAQS in the DaytonSpringfield area depends, in part, on the State's efforts toward tracking indicators of continued attainment during the maintenance period. The State's plan for verifying continued attainment of the 8hour standard in the DaytonSpringfield area consists of plans to continue ambient ozone monitoring in accordance with the requirements of 40 CFR part 58. f. Contingency Plan
The contingency plan provisions are designed to promptly correct or
prevent a violation of the NAAQS that might occur after redesignation
of an area to attainment. Section 175A of the CAA requires that a
maintenance plan include such contingency measures as EPA deems
necessary to assure that the state will promptly correct a violation of
the NAAQS that occurs after redesignation. The maintenance plan should
identify the contingency measures to be adopted, a schedule and procedure for adoption and
[[Page 33946]]
implementation of the contingency measures, and a time limit for action
by the state. The state should also identify specific indicators to be
used to determine when the contingency measures need to be adopted and
implemented. The maintenance plan must include a requirement that the
state will implement all measures with respect to control of the
pollutant(s) that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA.
As required by section 175A of the CAA, Ohio has adopted a contingency plan for the DaytonSpringfield area to address possible future ozone air quality problems. The contingency plan adopted by Ohio has two levels of response, depending on whether a violation of the 8 hour ozone standard is only threatened (Warning Level Response) or has occurred (Action Level Response).
A Warning Level Response will occur when an annual (1year) fourth high monitored daily peak 8hour ozone concentration of 0.88 ppm is monitored within the maintenance area. A Warning Level Response will consist of a study to determine whether the high ozone value indicates a trend toward higher ozone concentrations and whether emissions appear to be increasing. The study will evaluate whether the trend, if any, is likely to continue. If so, control measures necessary to reverse the trend will be selected by the State for evaluation and possible adoption. Implementation of necessary controls in response to a Warning Level Response triggering will occur as expeditiously as possible, but in no event later than 12 months from the conclusion of the most recent ozone season (September 30).
An Action Level Response will be triggered whenever a twoyear average fourthhigh monitored value of 0.85 ppm or greater is monitored within the area, or a violation of the NAAQS (threeyear average fourthhigh value of 0.85 ppm or greater) is monitored within the area. When an Action Level Response is triggered, OEPA, in conjunction with the metropolitan planning organization or regional council of governments, will determine what control measures are needed to assure future attainment of the NAAQS. Measures that can be implemented in a short time will be selected in order to be in place within 18 months from the close of the ozone season that prompted the Action Level.
The State will select contingency measures for consideration from a
comprehensive list of measures deemed appropriate and effective at the
time the selection is made. In its maintenance plan, OEPA included the following list of possible contingency measures:
i. Lower Reid vapor pressure gasoline program;
ii. Tighten RACT on existing sources covered by U.S. EPA Control Technique Guidelines issued in response to the 1990 CAA;
iii. Apply RACT to smaller existing sources;
iv. Alternative fuel and diesel retrofit programs for fleet vehicle operations;
v. Controls on consumer products consistent with those adopted elsewhere in the United States;
vi. Require VOC or NO
vii. Require VOC or NO
viii. Increase the ratio of emission offsets required for new sources; and
ix. Require VOC or NO
It should be noted that a lower Reid vapor pressure gasoline program would only be creditable as a contingency measure to the extent that it goes beyond the program currently approved and included in the maintenance plan emissions estimates.
g. Provisions for Future Updates of the Ozone Maintenance Plan
As required by section 175A(b) of the CAA, Ohio commits to submit
to the EPA updated ozone maintenance plans eight years after
redesignation of the DaytonSpringfield area to cover an additional 10
year period beyond the initial 10year maintenance period. As required
by section 175(A) of the CAA, Ohio has committed to maintaining the
existing controls after redesignation unless the State demonstrates
that the standard can be maintained without one or more controls. Ohio
commits that any changes to its rules or emission limits applicable to
VOC and/or NO
EPA has concluded that the maintenance plan adequately addresses
the five basic components of a maintenance plan: attainment inventory,
maintenance demonstration, monitoring network, verification of
continued attainment, and a contingency plan. The maintenance plan SIP
revision submitted by Ohio for the DaytonSpringfield area meets the requirements of section 175A of the CAA.
B. Adequacy of Ohio's MVEBs
1. How Are MVEBs Developed and What Are the MVEBs for the Dayton Springfield Area?
Under the CAA, states are required to submit, at various times, control strategy SIP revisions and ozone maintenance plans for ozone nonattainment areas and for areas seeking redesignations to attainment of the ozone standard. These emission control strategy SIP revisions (e.g., reasonable further progress SIP and attainment demonstration SIP revisions) and ozone maintenance plans create MVEBs based on onroad mobile source emissions for criteria pollutants and/or their precursors to address pollution from cars and trucks. The MVEBs are the portions of the total allowable emissions that are allocated to highway and transit vehicle use that, together with emissions from other sources in the area, will provide for attainment or maintenance.
Under 40 CFR Part 93, a MVEB for an area seeking a redesignation to attainment is established for the last year of the maintenance plan. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and how to revise the MVEB if needed.
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the SIP that addresses emissions from cars
and trucks. Conformity to the SIP means that transportation activities
will not cause new air quality violations, worsen existing air quality violations, or delay timely attainment of the NAAQS. If a
transportation plan does not conform, most new transportation projects
that would expand the capacity of roadways cannot go forward.
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and
procedures for demonstrating and assuring conformity of such transportation activities to a SIP.
When reviewing SIP revisions containing MVEBs, including attainment
strategies, rateofprogress plans, and maintenance plans, EPA must
affirmatively find that the MVEBs are ``adequate'' for use in
determining transportation conformity. Once EPA affirmatively finds the
submitted MVEBs to be adequate for transportation conformity purposes,
the MVEBs are used by state and federal agencies in determining whether proposed
[[Page 33947]]
transportation projects conform to the SIP as required by section
176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4).
EPA's process for determining adequacy of a MVEB consists of three
basic steps: (1) Providing public notification of a SIP submission; (2)
providing the public the opportunity to comment on the MVEB during a
public comment period; and, (3) EPA's finding of adequacy. The process
of determining the adequacy of submitted SIP MVEBs was initially
outlined in EPA's May 14, 1999 guidance, ``Conformity Guidance on
Implementation of March 2, 1999, Conformity Court Decision.'' This
guidance was codified in the Transportation Conformity Rule Amendments
for the ``New 8Hour Ozone and PM
The DaytonSpringfield area's maintenance plan contains new VOC and
NO
FOR FURTHER INFORMATION CONTACT Kathleen D'Agostino, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 8861767, dagostino.kathleen@epa.gov.
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