Approval and Promulgation of State Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio; Redesignation of Cincinnati to Attainment of the 1-Hour Ozone Standard; Removal of Vehicle Inspection and Maintenance Programs for the Cincinnati and Dayton Areas, 19895-19914 [05-7509]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 72 (Friday, April 15, 2005)]
[Proposed Rules]
[Pages 19895-19914]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-7509]



[[Page 19895]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[R05-OAR-2005-OH-0004; FRL-7899-9]


Approval and Promulgation of State Implementation Plans and 
Designation of Areas for Air Quality Planning Purposes; Ohio; 
Redesignation of Cincinnati to Attainment of the 1-Hour Ozone Standard; 
Removal of Vehicle Inspection and Maintenance Programs for the 
Cincinnati and Dayton Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The State of Ohio has requested the EPA to parallel process an 
ozone redesignation request and a number of revisions to Ohio's air 
quality control plan. We are proposing to determine that the 
Cincinnati-Hamilton area has attained the 1-hour ozone standard for the 
entire period of 1996-2004 based on 1-hour ozone monitoring data 
demonstrating attainment of the standard during that period. As a 
result, certain attainment demonstration requirements, along with 
certain other related requirements of part D of title I of the Clean 
Air Act, are not applicable to the Ohio portion of the Cincinnati-
Hamilton area. We are proposing to approve Ohio's request to 
redesignate the Ohio portion of the Cincinnati-Hamilton area to 
attainment of the 1-hour ozone National Ambient Air Quality Standard 
(NAAQS). We are proposing to approve Ohio's revision of the 1-hour 
ozone maintenance plan, previously approved by us on June 19, 2000, for 
the Ohio portion of the Cincinnati-Hamilton area. This update to the 
plan extends the timeframe for demonstrating continued maintenance of 
the 1-hour ozone standard through 2015, and demonstrates that the 1-
hour ozone standard may be maintained in this area even with the 
termination of the vehicle Inspection and Maintenance (I/M) program in 
the Ohio portion of the Cincinnati-Hamilton area. We are notifying the 
public that we believe that the revised motor vehicle emissions budgets 
for Volatile Organic Compounds (VOC) and Oxides of Nitrogen 
(NOX) for the Ohio portion of the Cincinnati-Hamilton area 
are adequate for conformity purposes and are approvable as part of the 
revised ozone maintenance plan for this area. We are proposing to 
approve new VOC emission control regulations for various sources in the 
Ohio portion of the Cincinnati-Hamilton area and to approve negative 
source declarations for some source categories for this area as long as 
the State meets certain conditions. We are proposing approval of 
periodic emission inventories for the Cincinnati area.
    Additionally, we are proposing to find that Ohio has demonstrated 
that termination of the I/M program in the Ohio portion of the 
Cincinnati-Hamilton area will not interfere with the attainment and 
maintenance of the 1-hour ozone NAAQS in this area. Similarly, we are 
proposing to find that Ohio has demonstrated that termination of the I/
M program in the Dayton area will not interfere with attainment and 
maintenance of the 1-hour ozone NAAQS in this area provided that the 
State meets certain conditions.

DATES: Written comments must be received on or before May 16, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID No. R05-OAR-2005-OH-0004, by one of the following 
methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    Agency Web site: https://docket.epa.gov/rmepub/. RME, EPA's 
electronic public docket and comments system, is EPA's preferred method 
for receiving comments. Once in the system, select ``quick search,'' 
then key in the appropriate RME docket identification number. Follow 
the on-line instructions for submitting comments.
    E-mail: mooney.john@epa.gov.
    Fax: (312) 886-5824.
    Mail: You may send written comments to: John Mooney, Chief, 
Criteria Pollutant Section (AR-18J), U.S. Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    Hand Delivery: Deliver your comments to: John Mooney, Chief, 
Criteria Pollutant Section, Air Programs Branch, U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, 18th Floor, 
Chicago, Illinois. Such deliveries are only accepted during the 
Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 a.m. to 4:30 
p.m., excluding Federal holidays.
    Instructions: Direct your comments to RME ID No. R05-OAR-2005-OH-
0004. EPA's policy is that all comments received will be included in 
the public docket without change, including any personal information 
provided, unless a comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov, 
or e-mail. The EPA RME Web site and the Federal regulations.gov Web 
site are ``anonymous access'' systems, which means EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comments and with any 
disk or CD-ROM you submit. If EPA cannot read your comments due to 
technical difficulties and cannot contact you for clarification or 
replacement of comments, EPA may not be able to consider your comments. 
Electronic files should avoid the use of special characters, any form 
of encryption, and should be free of any defects or viruses. For 
additional instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the electronic docket for this proposed 
rule are listed in the RME index at https://docket.epa.gov/rmepub/
index.jsp. Although listed in the index, some information is not 
publicly available, i.e., CBI or other information whose disclosure is 
restricted by statute. Publicly available docket materials are 
available either electronically in RME or in hard copy at Environmental 
Protection Agency, Region 5, Air and Radiation Division, 18th floor, 77 
West Jackson Boulevard, Chicago, Illinois 60604. (Please telephone 
Edward Doty at (312) 886-6057 or contact him through his e-mail, 
doty.edward@epa.gov, before visiting the Region 5 office).

FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist, 
Criteria Pollutant Section, Air Programs Branch (AR-18J), United States 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-6057, Doty.Edward@epa.gov.

SUPPLEMENTARY INFORMATION: In the following, whenever ``we,'' ``us,'' 
or ``our'' are used, we mean the United States Environmental Protection 
Agency.

Table of Contents

I. General Information

[[Page 19896]]

    A. Does This Proposed Action Apply to me?
    B. How Can I Get Copies of This Document and Other Related 
Information?
    C. How and to Whom Do I Submit Comments?
    D. What Should I Consider as I Prepare my Comments for EPA?
II. Proposed Redesignation of the Cincinnati Area to Attainment of 
the 1-Hour Ozone NAAQS
    A. What Is the Background for This Proposed Action?
    B. What Are the Redesignation Review Criteria?
    C. Has the State of Ohio and the Cincinnati Area Complied With 
the Redesignation Review Criteria?
    1. Criterion (1): The Area Must Be Attaining the 1-Hour Ozone 
NAAQS
    2. Criteria (2) and (5): The Area Must Have a Fully Approved SIP 
Under Section 110(k); and the Area Must Meet All Applicable 
Requirements Under Section 110 and Part D
    a. Section 110 Requirements
    b. Transport of Ozone Precursors to Downwind Areas
    c. Part D General Requirements for Nonattainment Areas
    d. Section 172(c) Requirements
    e. Section 176 Conformity Requirements
    f. Subpart 2 Section 182 Requirements
    1. 1990 Base Year Emissions Inventory
    2. Periodic Emission Inventory Updates
    3. Emission Statement Requirements
    4. Fifteen Percent Rate-Of-Progress Plan Requirements
    5. VOC RACT Requirements
    6. Reasonably Available Control Measures (RACM)
    7. Stage II Vapor Recovery Requirements
    8. Vehicle Inspection/Maintenance (I/M) Requirements
    9. NOX Emission Control Requirements
    g. Conclusions Regarding Criteria (2) and (5)
    3. Criterion (3): The Improvement in Air Quality Must Be Due to 
Permanent and Enforceable Reductions in Emissions
    4. Criterion (4): The Area Must Have a Fully Approved 
Maintenance Plan Meeting the Requirements of Section 175A
III. Update of the Ohio Ozone Maintenance Plan for the Cincinnati 
Area
    A. How did EPA Evaluate the Maintenance Plan Update?
    B. How Were the Point and Area Sources Updated?
    C. How Were the Mobile Sources Updated?
    D. Does the Updated Maintenance Plan Reaffirm the Adequacy of 
the Maintenance Plan?
IV. Transportation Conformity Emission Budgets for the Cincinnati 
Area
    A. What Are the Motor Vehicle Emissions Budgets?
    B. What Is a Safety Margin?
    C. How Does This Action Change the Current Maintenance Plan?
    D. What Are Subarea Budgets?
    E. Why Is the Request Approvable?
    F. What Is the Adequacy and Approval Process for These Submitted 
Budgets?
V. Volatile Organic Compounds Emission Control Regulations
    A. Source Categories Not Requiring New VOC Regulations
    1. Industrial Cleaning Solvents
    2. Shipbuilding and Ship Repair Industry
    3. Automobile Refinishing
    4. Aerospace Manufacturing and Rework Facilities
    5. Volatile Organic Liquid Storage Tanks
    6. Lithographic Printing
    7. Plastic Parts Coating
    B. Source Categories for Which VOC RACT Regulations Have Been 
Proposed
    1. Bakeries
    2. Batch Processes
    3. Industrial Wastewater
    4. SOCMI Reactors/Distillation Units
    5. Wood Furniture Manufacturing
VI. Changes in the Ohio SIP To Support the Removal of Vehicle 
Inspection And Maintenance Programs in the Cincinnati and Dayton 
Areas
    A. What Changes in the Ohio SIP Have Been Submitted To Support 
the Removal of the I/M Programs in the Cincinnati and Dayton Areas?
    B. What Authorities Apply To Removing the Cincinnati and Dayton 
I/M Programs From Active Status and Moving Them to Contingency 
Measures in the Ohio SIP?
    C. What Is EPA's Analysis of Ohio's Demonstrations of No 
Interference With the 1-Hour Ozone NAAQS in the Cincinnati and 
Dayton Areas?
    D. Has Ohio Demonstrated That Terminating the I/M Programs in 
the Cincinnati and Dayton Areas Will Not Interfere With the 
Expeditious Attainment and Maintenance of the 8-Hour Ozone and Fine 
Particulate Matter NAAQS?
VII. Conclusions on the Redesignation of the Cincinnati Area to 
Attainment of the 1-Hour Ozone NAAQS And The Removal Of the Vehicle 
I/M Programs In The Cincinnati and Dayton Areas
    A. What Are Our Conclusions Regarding Ohio's Request for the 
Redesignation of the Cincinnati Area to Attainment of the 1-Hour 
Ozone NAAQS?
    B. What Are Our Conclusions Regarding Ohio's Ozone Maintenance 
Plan for the Cincinnati Area?
    C. What Are Our Conclusions Regarding the VOC and NOX 
Emission Inventories Used To Support Ohio's Ozone Redesignation 
Request?
    D. What Are Our Conclusions Regarding Ohio's Draft RACT Rules?
    E. What Are Our Conclusions Concerning the Elimination of I/M 
Programs in the Cincinnati and Dayton Areas?
VIII. Statutory and Executive Order Reviews

I. General Information

A. Does This Proposed Action Apply to Me?

    This proposed action pertains to the ground level ozone programs in 
place in the Cincinnati (Butler, Clermont, Hamilton, and Warren 
Counties) and Dayton (Clark, Greene, Miami, and Montgomery Counties) 
areas. If you own or operate a VOC or NOX emissions source 
in the Cincinnati area or live in the Cincinnati area, this proposed 
action may impact or apply to you. This proposed action may also apply 
to or impact you if you live in the Dayton area. Finally, this proposed 
action may impact you if you are involved in mobile source or 
transportation planning or implementation in the Cincinnati or Dayton 
areas. This action has impacts on pollution sources in these Counties, 
including industrial and mobile sources of air pollution.

B. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an electronic public 
rulemaking file available for inspection at RME ID No. R05-OAR-2005-OH-
0004, and a hard copy file which is available for inspection at the 
Regional Office. The official public file consists of the documents 
specifically referenced in this action, any public comments received, 
and other information related to this action. Although a part of the 
official docket, the public rulemaking file does not include CBI or 
other information whose disclosure is restricted by statute. The 
official public rulemaking file is the collection of materials that is 
available for public viewing at the Air Programs Branch, Air and 
Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.
    2. Electronic Access. You may access this Federal Register document 
electronically through the regulations.gov Web site located at https://
www.regulations.gov, where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and that are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in

[[Page 19897]]

the official public rulemaking file. The entire printed comment, 
including the copyrighted material, will be available at the Regional 
Office for public inspection.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking Region 5 Air Docket `R05-OAR-
2005-OH-0004' '' in the subject line on the first page of your comment. 
Please ensure that your comments are submitted within the specified 
comment period. Comments received after the close of the comment period 
will be marked ``late.'' EPA is not required to consider these late 
comments.

D. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit CBI to EPA through RME, 
regulations.gov, or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information on a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and identify electronically within the file(s) on the disk or CD 
ROM the specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedure set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject, heading, Federal Register date and page number);
    b. Follow directions--The EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number;
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your recommended changes;
    d. Describe any assumptions and provide any technical information 
and/or data that you used;
    e. If you estimate potential costs or burdens, please explain how 
you arrived at your estimates in sufficient detail to allow for them to 
be reproduced;
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives;
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats; and
    h. Make sure to submit your comments by the comment period deadline 
identified in this proposed rule.

II. Proposed Redesignation of the Cincinnati Area to Attainment of the 
1-Hour Ozone NAAQS

A. What Is the Background for This Proposed Action?

    In accordance with section 107(d) of the Clean Air Act (CAA or Act) 
as amended in 1977, EPA designated all counties in the Cincinnati-
Hamilton area (the Ohio portion of this area includes Butler, Clermont, 
Hamilton, and Warren Counties, and the Kentucky portion of this area 
includes Boone, Campbell, and Kenton Counties) as an ozone 
nonattainment area for the 1-hour ozone NAAQS in March 1978 (43 FR 
8962). On November 6, 1991 (56 FR 56694), pursuant to section 
107(d)(4)(A) of the CAA as amended in 1990, EPA designated the 
Cincinnati-Hamilton area as a moderate ozone nonattainment area based 
on monitored violations of the 1-hour ozone NAAQS during the 1987-1989 
period.
    From 1996 through 1998, air quality monitors located in Ohio and 
Kentucky recorded three years of complete, quality-assured ambient 
ozone monitoring data in the Cincinnati-Hamilton area that did not 
violate the 1-hour ozone NAAQS.\1\ Thus, the area was eligible for 
consideration of a redesignation to attainment of the 1-hour ozone 
NAAQS. As noted below, this area has continued to monitor attainment of 
the 1-hour ozone NAAQS from the 1996-1998 period through the present.
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    \1\ The 1-hour ozone NAAQS is violated when the annual average 
expected number of daily peak 1-hour ozone concentrations equaling 
or exceeding 0.125 parts per million (ppm) (125 parts per billion 
(ppb)) is 1.05 or greater over a three-year period at any monitoring 
site in the area of interest.
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    In 1999, the Ohio Environmental Protection Agency (Ohio EPA) and 
the Commonwealth of Kentucky Natural Resources and Environmental 
Protection Cabinet (Cabinet) submitted separate requests for the 
redesignation of the State-specific portions of the Cincinnati-Hamilton 
area to attainment of the 1-hour ozone NAAQS. EPA received a request 
from Ohio EPA on July 2, 1999 to redesignate the Cincinnati area as an 
attainment/maintenance area for the 1-hour ozone NAAQS. Ohio EPA 
submitted additional supporting information on August 16, 1999, and 
completed its redesignation request by submitting a summary of public 
hearing results and comments on December 22, 1999. The Cabinet 
submitted a prehearing redesignation request on October 28, 1999, and 
requested that the EPA parallel process this submittal. The Cabinet 
completed its redesignation request, including an adopted ozone 
maintenance plan and public hearing information, in a submittal to the 
EPA on December 13, 1999.
    On January 24, 2000 (65 FR 3630), EPA proposed approval of the Ohio 
and Kentucky ozone redesignation requests. This rulemaking also 
proposed to determine that the Cincinnati-Hamilton area had attained 
the 1-hour ozone NAAQS by its extended attainment data, and proposed to 
approve an exemption for the area from NOX emission control 
requirements contained in section 182(f) of the CAA. EPA issued a final 
rulemaking (65 FR 37879, June 19, 2000), effective July 5, 2000, 
determining that the Cincinnati-Hamilton area had attained the 1-hour 
ozone NAAQS and approving the Ohio and Kentucky ozone redesignation 
requests, including the States' plans for maintaining the 1-hour ozone 
NAAQS in their respective portions of the Cincinnati-Hamilton area, as 
well as their NOX exemption requests.
    On August 17, 2000, two Ohio residents and the Ohio chapter of the 
Sierra Club petitioned the United States Court of Appeals for the 6th 
Circuit (Court) for review of EPA's final rule on the States' ozone 
redesignation requests for the Cincinnati-Hamilton area. The 
petitioners urged the Court to find that the EPA had erred in a number 
of respects in approving the redesignation requests. In its September 
11, 2001 decision in this case, the Court upheld EPA's actions with 
respect to all requirements for redesignation that related to Kentucky. 
The Court also rejected the petitioners' challenges with respect to 
EPA's approval of the Ohio redesignation request, with the sole 
exception of EPA's finding that it could approve Ohio's redesignation 
request before Ohio had fully adopted all of the VOC emission control 
rules needed to comply with the RACT requirements of part D, subpart 2 
of the CAA. Specifically, the Court rejected the petitioners' 
challenges to, and upheld EPA's approvals of the Ohio and Kentucky 
ozone maintenance plans and EPA's conclusions with respect to 
transportation conformity requirements.

[[Page 19898]]

The Court concluded that EPA exceeded its discretion by determining 
that Ohio did not need to fully adopt all of the RACT rules required by 
part D, subpart 2 of the CAA. The Court vacated EPA's action in 
redesignating the Cincinnati-Hamilton area to attainment of the 1-hour 
ozone NAAQS and ``remanded for further proceedings consistent with this 
opinion.'' See Wall v. EPA (265 F.3d 436, 6th Circuit 2001).
    On February 12, 2002 (67 FR 6411), in a direct final rule in 
response to the Court's findings, the EPA took action to reinstate 
EPA's redesignation to attainment for the 1-hour ozone NAAQS for the 
Kentucky portion of the Cincinnati-Hamilton area. This rulemaking 
action was withdrawn on April 8, 2002 (67 FR 16646), as the result of 
the submittal of a public comment on the direct final rule. The 
reinstatement of the attainment designation for the Kentucky portion of 
the Cincinnati-Hamilton area was subsequently completed through a final 
rule on July 31, 2002 (67 FR 49600).
    On March 12, 2002 (67 FR 11041), through a technical amendment to 
its June 19, 2000 final rule, the EPA revised the ozone designation of 
the Ohio portion of the Cincinnati-Hamilton area to nonattainment of 
the 1-hour ozone NAAQS with a classification of moderate nonattainment. 
The technical amendment of the original final rule became effective on 
April 11, 2002. The final rule technical amendment, coupled with EPA's 
July 31, 2002 final rule, created separate designations for the Ohio 
and Kentucky portions of the Cincinnati-Hamilton area with regard to 
attainment of the 1-hour ozone NAAQS. The Kentucky portion of the area 
is designated as attainment for the 1-hour ozone NAAQS, while the Ohio 
portion of the area continues to be a nonattainment area. As noted 
elsewhere in this notice, today's proposed action applies only to the 
Ohio portion of the Cincinnati-Hamilton area (only to the Cincinnati 
area).
    On March 10, 2005, the Ohio EPA submitted a new redesignation 
request and ozone maintenance plan revision for the Cincinnati area. 
This request notes that the Cincinnati-Hamilton area has monitored 
attainment of the 1-hour ozone NAAQS continuously from the 1996-1999 
period through the present. This submittal also includes VOC emission 
control rules that Ohio was preparing to adopt to comply with the RACT 
requirements of the Clean Air Act. This submittal notes that Ohio is 
scheduling a public hearing on the redesignation request, maintenance 
plan, and VOC RACT rules, and requests EPA to parallel process these 
submittal elements.
    On April 4, 2005, the Ohio EPA submitted additional information 
including, a negative source declaration for plastic parts coating, and 
a demonstration that terminating the vehicle I/M programs in the 
Cincinnati and Dayton areas will not interfere with the attainment and 
maintenance of the 1-hour ozone NAAQS in these areas. Ohio EPA proposes 
to revise the ozone maintenance plans for these areas to move the I/M 
programs to the contingency measure portions of the maintenance plans. 
This submittal further revises the ozone maintenance demonstrations for 
these areas and revises mobile source emission budgets to reflect the 
increases in mobile source VOC and NOX emissions that will 
result when the I/M programs are terminated in these areas. Ohio EPA 
requests the EPA to rule on the air quality impacts of removing these 
emission control programs, and commits to completing analyses in 
compliance with section 110(l) of the CAA to demonstrate that dropping 
these emission reduction programs will not interfere with attainment of 
other air quality standards and air quality control requirements 
covered by the CAA. Other than removing the emission impacts of the I/M 
programs from the maintenance plans' emission projections and moving 
the I/M programs to the contingency measures portions of the Cincinnati 
and Dayton maintenance plans, Ohio EPA requests that the remainder of 
the Cincinnati and Dayton maintenance plans remain the same as those 
previously approved by the EPA.

B. What Are the Redesignation Review Criteria?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment of a NAAQS. Specifically, section 107(d)(3)(E) of 
the CAA allows for redesignation of an area to attainment provided 
that: (1) The Administrator of the EPA determines that the area has 
attained the applicable NAAQS; (2) the Administrator has fully approved 
the applicable state implementation plan for the area under section 
110(k) of the CAA; (3) the Administrator determines that the 
improvement in air quality is due to permanent and enforceable emission 
reductions resulting from implementation of the applicable SIP, 
applicable Federal air pollution control regulations, and other 
permanent and enforceable emission reductions; (4) the Administrator 
has fully approved a maintenance plan for the area as meeting the 
requirements of section 175A of the CAA; and (5) the State containing 
the area has met all requirements applicable to the area under section 
110 and part D of the CAA.
    EPA provided guidance on redesignations for the 1-hour ozone 
standard 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 
provided further guidance on processing redesignation requests in 
documents including the following:
    ``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 of 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 1-10, 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

[[Page 19899]]

    ``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.

C. Has the State of Ohio and the Cincinnati Area Complied With the 
Redesignation Review Criteria?

    We believe that Ohio has demonstrated that the Cincinnati-Hamilton 
area has attained the 1-hour ozone standard and has demonstrated that 
the Ohio portion of this area has met all of the applicable section 
107(d)(3)(E) redesignation criteria as discussed below.
1. Criterion (1): The Area Must Be Attaining the 1-Hour Ozone NAAQS
    In its June 19, 2000 rulemaking, EPA issued a final rule 
determining that the Cincinnati-Hamilton area had attained the 1-hour 
ozone NAAQS. 65 FR 37879. While the Court, in Wall v. EPA, vacated 
EPA's action redesignating the area to attainment, it did not vacate 
EPA's determination of attainment for the entire area. Therefore, the 
determination remains intact and in effect. See EPA's final rule 
reinstating the redesignation of the Kentucky portion of the 
Cincinnati-Hamilton area. 67 FR 49600 (July 31, 2002). As a result of 
the determination of attainment, EPA also determined that certain 
attainment demonstration requirements, along with certain other related 
requirements of part D of title I of the CAA are not applicable to the 
area. See 65 FR 37883-3884. See Memorandum of John Seitz, ``Reasonable 
Further Progress, Attainment Demonstration, and Related Requirements 
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air 
Quality Standard,'' dated May 10, 1995. EPA has interpreted the 
provisions of subparts 1 and 2 of part D of title I of the CAA so as 
not to require the submission of State Implementation Plan (SIP) 
revisions concerning attainment demonstrations, Reasonably Available 
Control Measures (RACM), Reasonable Further Progress (RFP), or sections 
172(c)(9) and 182(c)(9) contingency measures, and other related 
requirements for so long as an area is attaining the relevant NAAQS. 
EPA explained its rationale in its prior rulemakings on the Cincinnati 
area, as well as in other rulemaking actions. See for example 61 FR 
20458 (May 7, 1996) Cleveland-Akron-Lorain), 66 FR 53094 (October 19, 
2001) (Pittsburgh-Beaver Valley, Pennsylvania); 60 FR 36723 (July 18, 
1995) (Salt Lake and Davis Counties, Utah), 68 FR 4847,4747, 4751, 4855 
(January 30, 2003), 68 FR 25418 (May 12, 2003 (St. Louis, Missouri), 60 
FR 37366 (July 20, 1995), 61 FR 31832-33 (Grand Rapids, Michigan). The 
United States Court of Appeals for the Tenth Circuit has upheld this 
interpretation, Sierra Club v. EPA, 99 F. 3d 1551 (10th Cir. 1996), and 
the U.S. Court of Appeals for the Seventh Circuit has also affirmed 
EPA's redesignation actions based on this interpretation. Sierra Club 
v. EPA, 375 F. 3d 537 (7th Cir. 2004).
    As a result of EPA's determination of attainment, certain 
attainment demonstration requirements, section 172(c)(1), section 
182(b)(1), 182(j), the RACM requirement for reasonable further 
progress, and the requirement for contingency measures under sections 
172(c)(9) are not applicable as long as the Cincinnati-Hamilton area 
continues to attain the NAAQS.
    We propose to find that the Cincinnati-Hamilton area has continued 
to attain the 1-hour ozone standard and we propose to approve the 
redesignation request submitted by Ohio for the Cincinnati area as 
meeting this requirement. Complete, quality-assured ambient monitoring 
data for the 2002-2004 ozone seasons (April through October, when the 
highest ozone concentrations are expected to occur in this area) 
demonstrate that the 1-hour ozone NAAQS continues to be attained in 
this area. In fact, based on monitoring data, the Cincinnati-Hamilton 
area has been attaining the 1-hour ozone standard continuously from the 
1996-1998 period though 2004.
    For ozone, an area may be considered to be attaining the 1-hour 
ozone NAAQS if there are no violations of the NAAQS, as determined in 
accordance with 40 CFR 50.9 and Appendix H, based on three complete, 
consecutive calendar years of quality-assured air quality monitoring 
data. A violation of the 1-hour ozone NAAQS occurs when the annual 
average number of expected daily exceedances is equal to or greater 
than 1.05 per year at any monitoring site in the area or in its 
immediate downwind environs. A daily exceedance occurs at a monitoring 
site when the recorded maximum hourly ozone concentration during a 
given day is 0.125 parts per million of air (ppm) (125 parts per 
billion of air (ppb)) or higher. The data must be collected and 
quality-assured in accordance with 40 CFR part 58, and recorded in the 
Aerometric Information Retrieval System (AIRS). The monitors used to 
support a redesignation to attainment of the NAAQS should have remained 
at the same location for the duration of the monitoring period required 
to demonstrate attainment of the NAAQS (three years for ozone).
    The Ohio EPA and the Cabinet have continued to submit ozone data 
for all monitors operated in the Cincinnati-Hamilton area. Review of 
the ozone data contained in AIRS shows that both States have maintained 
ozone monitoring in the area, with complete quality-assured monitoring 
data being supplied to AIRS from the 1996-1998 period, when the 
Cincinnati-Hamilton area first monitored attainment of the 1-hour ozone 
NAAQS, through the present. Our January 24, 2000 proposed rule (65 FR 
3634) documented the lack of ozone standard violations for the 1996-
1998 period. In Table 1, we summarize the data obtained from AIRS and 
demonstrate that the ozone monitoring data continue to show attainment 
of the 1-hour ozone NAAQS during the 2002-2004 period. As we have 
noted, the Cincinnati-Hamilton area did not experience a monitored 
violation of the 1-hour ozone NAAQS during the entire 1996-2004 period, 
demonstrating attainment of the 1-hour ozone NAAQS in this area.

     Table 1.--1-Hour Ozone NAAQS Exceedances in the Cincinnati-Hamilton, Ohio-Kentucky Area From 2002-2004
----------------------------------------------------------------------------------------------------------------
                                                                  Expected 1-hour ozone standard exceedances
                                                             ---------------------------------------------------
                Site                          County                                                    Annual
                                                                  2002         2003         2004       average
----------------------------------------------------------------------------------------------------------------
Hamilton............................  Butler................          1.0          0.0          0.0          0.3
Middletown..........................  Butler................          0.0          1.0          0.0          0.3
2400 Clermont.......................  Clermont..............          2.0          0.0          0.0          0.7
11590 Grooms Rd.....................  Hamilton..............          1.0          0.0          0.0          0.3

[[Page 19900]]

 
6950 Ripple Road....................  Hamilton..............          0.0          0.0          0.0          0.0
250 William Howard..................  Hamilton..............          0.0          0.0          0.0          0.0
Lebanon 230 Cook Rd.................  Warren................          1.0  ...........  ...........           **
Lebanon 416 Southeast Street........  Warren................  ...........          1.0          0.0          0.5
KY 338..............................  Boone.................          0.0          0.0          0.0          0.0
700 Alexandria......................  Campbell..............          0.0          0.0          0.0          0.0
Covington...........................  Kenton................          0.0          0.0          0.0         0.0
----------------------------------------------------------------------------------------------------------------
** It is not appropriate to calculate an annual average expected exceedance rate based on a single year of ozone
  data.

    These data have been quality-assured. These data show that the 
Cincinnati-Hamilton area, as a whole, is currently attaining the 1-hour 
ozone NAAQS.
2. Criteria (2) and (5): The Area Must Have a Fully Approved SIP Under 
Section 110(k); and the Area Must Meet All Applicable Requirements 
Under Section 110 and Part D
    Before the Cincinnati area may be redesignated to attainment of the 
1-hour ozone NAAQS, the State of Ohio must have fulfilled the 
applicable requirements of section 110 and part D of the Act. We 
address here the status of Ohio with regard to these requirements. 
Since the Kentucky portion of the Cincinnati-Hamilton area has been 
redesignated to attainment of the 1-hour ozone NAAQS, we do not here 
address the status of the Kentucky portion of the area. You are 
referred to our discussion of these criteria in our January 24, 2000 
proposed rule (65 FR 3634).
    The September 4, 1992 Calcagni memorandum confirms that areas 
requesting redesignation to attainment have to fully adopt rules and 
programs that come due prior to the submittal of a complete 
redesignation request. See also 60 FR 12459, 12465-66 (March 7, 1995). 
(Redesignation of Detroit-Ann Arbor, MI), 68 FR 15424, 25427 (May 12, 
2003) (St. Louis NFR). Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 
2004). Furthermore, requirements of the CAA that come due subsequent to 
the State's submittal of a complete redesignation request would 
continue to be applicable to the area until a redesignation to 
attainment is approved, but are not required as a prerequisite for 
redesignation (see section 175A(c) of the CAA). If the redesignation is 
disapproved, the State remains obligated to fulfill those requirements.
    The Court in Wall v. EPA, after reviewing EPA's prior action 
redesignating Cincinnati, upheld EPA's actions with respect to 
redesignation requirements with the exception of EPA's determination 
that Ohio did not need to fully adopt all of the RACT rules of part D, 
subpart 2, before being redesignated. In this notice, as discussed 
below, we propose to find that Ohio has submitted these remaining RACT 
rules for processing by the EPA, and that, following their adoption by 
the State and final approval as a SIP revision by the EPA, Ohio has 
complied with the RACT requirements of the CAA.
a. Section 110 Requirements
    General SIP requirements are delineated in section 110(a)(2) of 
title I, part A of the CAA. These requirements include, but are not 
limited to, the following: Submittal of a SIP that has been adopted by 
the State after reasonable notice and public hearing; provisions for 
the establishment and operation of appropriate apparatus, methods, 
systems, and procedures necessary to monitor ambient air quality; 
implementation of a source permit program; provision for part C, 
Prevention of Significant Deterioration (PSD), and part D, New Source 
Review (NSR) permit programs; criteria for stationary source emission 
control measures, monitoring, and reporting; provisions for air quality 
modeling; and provisions for public and local agency participation. As 
noted in our January 24 2000 proposed rule (65 FR 3634), the Ohio SIP 
was reviewed to ensure that all applicable requirements under the CAA 
were satisfied through SIP provisions. We have concluded that Ohio's 
SIP complies with the general SIP requirements under section 110 of the 
CAA. See also EPA's June 19, 2000 final rulemaking action.
b. Transport of Ozone Precursors to Downwind Areas
    As noted in our January 24, 2000 proposed action (65 FR 3634), 
modeling results using EPA's Regional Oxidant Model (ROM) indicate that 
ozone precursor emissions from various states west of the Ozone 
Transport Region (OTR) in the Northeastern United States contribute to 
increases in ozone concentrations in the OTR. The EPA issued a SIP call 
under section 110(a)(2)(D) of the CAA on October 27, 1998 (63 FR 57356) 
(the NOX SIP call) requiring the District of Columbia (DC) 
and 22 states, including Ohio, to reduce their NOX emissions 
in order to reduce the transport of ozone and ozone precursors. Ohio 
submitted applicable statewide NOX emission control rules as 
a requested SIP revision, which the EPA approved on August 5, 2003 (68 
FR 12590). The redesignation of this area to attainment of the 1-hour 
ozone NAAQS does not remove Ohio's obligation to implement its 
NOX emission control rules. However, the section 
110(a)(2)(D) requirements for a state are not linked with a particular 
nonattainment area's designation and classification in that state. EPA 
believes that the requirements linked with a particular nonattainment 
area's designation and classification are the relevant measures to 
evaluate in reviewing a redesignation request. The transport SIP 
submittal requirements, where applicable, continue to apply to a state 
regardless of the designation of any one particular area in the state. 
Thus we do not believe that these requirements should be construed to 
be applicable requirements for purposes of redesignation. This policy 
is consistent with EPA's existing conformity and oxygenated fuels 
requirements, as well as with section 184 ozone transport requirements. 
See discussion in the prior Cincinnati redesignation notice 65 FR 37890 
(June 19, 2000); Reading Pennsylvania, proposed and final rulemakings 
(61 FR 53174-53176,( October 10, 1996), 62 FR 24826 (May 7, 1997); 
Cleveland-Akron-Lorrain, Ohio 61 FR 20458 (May 7, 1996); Tampa, 
Florida, 60 FR 62748 (December 7, 1995). See also the

[[Page 19901]]

Pittsburgh redesignation 66 FR 50399 (October 19, 2001).
c. Part D General Requirements for Nonattainment Areas
    Before the Cincinnati area can be redesignated to attainment, Ohio 
must have fulfilled the applicable requirements of part D of the CAA. 
Under part D, an area's ozone nonattainment classification determines 
the requirements to which the area and the State are subject. Subpart 1 
of part D sets forth the basic nonattainment requirements applicable to 
all nonattainment areas. Subpart 2 of part D establishes additional 
requirements for ozone nonattainment areas classified under table 1 of 
section 181(a) of the Act. As described in the General Preamble for the 
implementation of title I, specific requirements of subpart 2 may 
override subpart 1's general provisions (57 FR 13501, April 16, 1992). 
The Cincinnati-Hamilton area was classified as a moderate ozone 
nonattainment area. Therefore, to qualify for redesignation to 
attainment, the State must meet the applicable requirements of subpart 
1 of part D--specifically sections 172(c) and 176, as well as the 
applicable requirements of subpart 2 of part D of the Act.
d. Section 172(c) Requirements
    As noted in our January 24, 2000 proposed action (65 FR 3635), we 
determined that the original redesignation request received from the 
Ohio EPA for the Ohio portion of the Cincinnati-Hamilton area was 
supported by Ohio's compliance with the plan requirements of section 
172(c). We continue to determine that Ohio has met the plan 
requirements of section 172(c) as discussed here.
    As noted above, in the January 24, 2000 proposed action, EPA 
proposed to find that the requirements for SIP revisions providing 
ozone attainment demonstrations meeting the requirements of sections 
172(c)(1), 182(b)(1), and 182(j) were not applicable for the 
Cincinnati-Hamilton area because the area had attained the ozone 
standard based on monitoring data and because the requirements for 
attainment demonstrations can be waived for areas attaining the ozone 
standard as confirmed in the May 10, 1995 Seitz memorandum. This 
determination was finalized in our June 19, 2000 final rulemaking (65 
FR 37879). The Court, in Wall v. EPA, did not vacate this finding and 
it remains in effect. 64 FR 49601 (July 31, 2002).
    Since the area has continued to attain the 1-hour ozone NAAQS, the 
requirements for ozone attainment demonstrations, reasonable further 
progress, RACM, and contingency measures and related requirements have 
continued to not be applicable to this area. For a further discussion 
of the basis of this determination and EPA's relevant policy, please 
refer to our discussions in the June 19, 2000 final rule (65 FR 37895).
    The RFP requirement under section 172(c)(2) of the CAA is defined 
as progress that must be made toward attainment. Section 182(b)(1)(A) 
sets forth the specific requirements for RFP applicable to the 
Cincinnati-Hamilton area. On March 14, 1994, Ohio submitted a RFP plan 
for the Ohio portion of the Cincinnati-Hamilton area. On January 28, 
1998 (63 FR 4188) EPA approved this RFP plan as meeting the 15 percent 
RFP VOC emission reduction requirements of section 182(b)(1)(A). By 
meeting the specific RFP requirements of section 182(b)(1)(A), Ohio and 
the Cincinnati area are also meeting the RFP requirements of section 
172(c)(2).
    Section 172(c)(3) requires submission and approval of a 
comprehensive, accurate, and current inventory of actual emissions. The 
Ohio EPA submitted a 1990 base year emissions inventory under section 
182(a)(1) and EPA approved it on December 7, 1995 (60 FR 62737). Since 
Ohio has met the more definitive emissions inventory requirements of 
section 182(a)(1), we have determined that Ohio has also met the more 
general emissions inventory requirements of section 172(c)(3).
    Section 172(c)(4) requires the identification and quantification of 
allowable emissions for major new and modified stationary sources to be 
allowed in an area, and section 172(c)(5) requires source permits for 
the construction and operation of new and modified major stationary 
sources anywhere in the nonattainment area. Section 182(b)(5) requires 
all major new sources or major source modifications in a moderate 
nonattainment area to achieve offsetting reductions of existing VOC 
emissions at a ratio of at least 1.15 to 1.0. The EPA has determined 
that areas redesignated to attainment do not need to comply with the 
requirement that a NSR program be approved prior to redesignation 
provided that the State demonstrates maintenance of the standard 
without part D NSR in effect. The rationale for this decision is 
described in a October 14, 1994 memorandum from Mary Nichols. See 61 FR 
31831, June 21, 1996. Nonetheless, Ohio's NSR program was fully 
approved by the EPA on January 10, 2003 (68 FR 1366). Ohio's Federally 
delegated PSD program will become effective in the Cincinnati area upon 
redesignation to attainment.
    In accordance with EPA's determination of attainment, the 
requirement for contingency measures under section 172(c)(9) is not 
applicable.
e. Section 176 Conformity Requirements
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally supported or funded projects 
conform to the air quality planning goals in the applicable SIP. The 
requirement to determine conformity applies to transportation plans, 
programs and projects developed, funded or approved under Title 23 
U.S.C. of the Federal Transit Act (``transportation conformity''), as 
well as to all other Federally supported or funded projects (``general 
conformity''). Section 176 further provides that state conformity 
revisions must be consistent with Federal conformity regulations that 
the CAA required the EPA to promulgate.
    EPA believes that it is reasonable to interpret the conformity 
requirements as not applying for purposes of evaluating the 
redesignation requests under section 107(d). The rationale for this is 
based on a combination of two factors. 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 Federally approved state rules. Therefore, 
because areas are subject to the conformity requirements regardless of 
whether they are redesignated to attainment and 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, 439 (6th Cir. 2001) upholding this interpretation. See 
also 60 FR 62748 (December 7, 1995) (Tampa, Florida).
    Ohio submitted transportation conformity regulations as a revision 
to the SIP on August 17, 1995. The State adopted State rules to meet 
the requirements of 40 CFR Part 51, subpart T, as published on November 
24, 1993. EPA conditionally approved the revision to the SIP on May 16, 
1996, (61 FR 24702) effective on July 15, 1996. The revision was 
conditionally approved because the Federal transportation conformity 
rule had been amended twice since the original 1993 publication and the 
Ohio SIP needed to

[[Page 19902]]

be amended to accommodate the changes. On October 6, 1999, Ohio EPA 
submitted a SIP revision with adopted State rules to meet the 
requirements of 40 CFR Part 51, subpart T as published on August 15, 
1997. The revised State regulations were approved effective July 31, 
2000, in a notice published on May 30, 2000, (65 FR 34395).
f. Subpart 2 Section 182 Requirements
    The Cincinnati-Hamilton area was classified as a moderate 
nonattainment area for the 1-hour ozone NAAQS. Therefore, part D, 
subpart 2, section 182(b) requirements apply. As set forth in the 
September 4, 1992 and September 17, 1993 EPA guidance memoranda, the 
requirements which came due prior to Ohio's request to designate the 
Cincinnati area must be fully approved into the SIP before or at the 
time EPA approves the redesignation of the Cincinnati area to 
attainment of the 1-hour ozone NAAQS. Those requirements are discussed 
below.
1. 1990 Base Year Emissions Inventory
    The 1990 base year emissions inventory was due for submittal by the 
State by November 15, 1992. Ohio EPA submitted the Cincinnati 1990 base 
year VOC and NOX emissions inventory on March 14, 1994, and 
EPA approved the emissions inventory on December 7, 1995 (60 FR 62737).
2. Periodic Emission Inventory Updates
    Periodic VOC and NOX emission inventories were required 
to be submitted every three years, beginning in November 15, 1995. Ohio 
provided its most recent estimates of emissions for the years 1993, 
1996, 1999 and 2002 in its July 2, 1999, December 22, 1999, March 8, 
2005 and April 4, 2005 redesignation request submittals. These emission 
inventory updates were discussed in our January 24, 2000 proposed 
action (65 FR 3638, Tables 2 and 3). A summary of the 1996, 1999 and 
2002 emission inventories can also be found in Tables 2 and 3 of this 
action. EPA is proposing to approve these emission inventory updates as 
meeting the section 182(a)(3)(A) requirement of the CAA for periodic 
emission inventory submissions.
3. Emission Statement Requirements
    The emission statement SIP revision was due for submittal by 
November 15, 1992. The Ohio EPA submitted an emission statement SIP 
revision for Ohio on March 18, 1994, and EPA approved it on October 13, 
1994 (59 FR 51863).
4. Fifteen Percent Rate-of-Progress Plan Requirements
    The 15 percent VOC emission reduction RFP plan was required to be 
submitted by November 15, 1993. This plan requirement was applicable to 
the Cincinnati-Hamilton area. The Ohio EPA submitted the 15 percent RFP 
plan on March 14, 1994, and EPA approved it on January 28, 1998 (63 FR 
4188).
5. VOC RACT Requirements
    VOC RACT rules for three classes of VOC sources are required under 
section 182(b)(2) to be included in the Ohio SIP. The VOC source 
categories are: (a) All VOC sources covered by Control Technique 
Guidelines (CTGs) issued between November 15, 1990 and the date the 
Cincinnati area attained the 1-hour ozone standard; (b) all VOC sources 
covered by a CTG issued prior to November 15, 1990; and (c) all other 
major non-CTG stationary sources in the Cincinnati area. The EPA 
approved Ohio's VOC RACT rules on April 25, 1996 (61 FR 18255), 
September 7, 1994 (59 FR 46182), and October 23, 1995 (60 FR 54308). 
These VOC RACT rules, however, did not complete Ohio's obligation, 
under the CAA, to adopt RACT rules for all applicable source categories 
and sources.
    As noted above, in our June 19, 2000 final rule (65 FR 37879), we 
determined that Ohio did not need to fully adopt all of the RACT rules 
required by part D of the CAA for the Cincinnati area to qualify for a 
redesignation to attainment of the 1-hour ozone NAAQS. The Court, in 
Wall v. EPA, concluded that EPA exceeded its discretion in making this 
determination and vacated our approval of the redesignation of the 
Cincinnati-Hamilton area to attainment of the 1-hour ozone NAAQS.
    Below, we address new RACT rules, permits-to-install restricting 
some sources to VOC emission levels below RACT applicability levels, 
and negative source declarations met to complete Ohio's compliance with 
the RACT requirements of the CAA. Assuming that these State rules and 
negative source declarations are approved in final, Ohio will have 
complied with the RACT requirements of part D of the CAA, eliminating 
the sole basis for the Court's decision to vacate our prior approval of 
the redesignation of the Cincinnati-Hamilton area.
6. Reasonably Available Control Measures (RACM)
    The General Preamble, 57 FR 13560 (April 16, 1992), states that EPA 
interprets section 172(c)(1) so that the RACM requirements are a 
``component'' of an area's attainment demonstration. Thus, since the 
attainment demonstration is no longer an applicable requirement, RACM 
is no longer an applicable requirement. EPA has consistently 
interpreted this provision to require only implementation of potential 
RACM measures that could contribute to reasonable progress or 
attainment. General Preamble, 57 FR 13498 (April 16, 1992). Thus, where 
an area has already attained the standard, no additional RACM measures 
are required. See prior Cincinnati redesignation, 65 FR 37883-84 (June 
19, 2000); Pittsburgh-Beaver Valley, Pennsylvania, 66 FR 53096 (October 
19, 2001) and St. Louis rulemaking, 68 FR 25428 (May 12, 2003).
7. Stage II Vapor Recovery Requirements
    Section 182(b)(3) requires states to submit State II gasoline vapor 
recovery rules no later than November 15, 1992. The Ohio Stage II rules 
were submitted as a SIP revision on June 7, 1993 and on October 20, 
1994. The EPA partially approved and partially disapproved Ohio's SIP 
revision for implementation of Stage II (58 FR 52911). As stated in 
that rulemaking action, with the exception of paragraph 3745-21-09 
(DDD)(5), EPA considers Ohio's Stage II program to fully satisfy the 
criteria set forth in a September 17, 1993 EPA guidance document for 
such programs titled ``Enforcement Guidance for Stage II Vehicle 
Refueling Control Programs.''
    Only those Stage II provisions previously approved by EPA are part 
of the Cincinnati maintenance plan. The September 17, 1993 guidance 
memorandum states that once onboard vapor recovery regulations are 
promulgated, the Stage II regulations are no longer applicable for 
moderate ozone nonattainment areas. The EPA promulgated onboard vapor 
recovery rules in February 1994. Therefore, pursuant to section 
202(a)(6) of the CAA, Stage II is no longer required. Ohio, however, 
has opted to include reductions in VOC from the Stage II program as 
part of the submitted maintenance plan and the previously approved 15 
percent RFP plan (63 FR 4188 or 63 FR 67586).
8. Vehicle Inspection/Maintenance (I/M) Requirements
    Section 182(b)(4) of the CAA requires States to submit I/M 
regulations for ozone nonattainment areas classified as moderate and 
above. Under EPA's I/M rule in 40 CFR part 51, States are required to 
submit these regulations by November 15, 1993. Ohio submitted 
regulations for an I/M program (E-

[[Page 19903]]

Check) on May 26, 1994, and EPA approved these rules on April 4, 1995 
(60 FR 16989).
    As noted below, Ohio EPA has requested that the E-Check program be 
discontinued in the future. Ohio has demonstrated that the VOC and 
NOX emission reductions obtained through the E-Check program 
are not needed for maintenance of the 1-hour ozone NAAQS. Ohio has 
requested that E-Check, upon termination, be considered to be a 
contingency measure in Ohio's ozone maintenance plan for the Cincinnati 
area. This issue is dealt with in section VI of this proposed action.
9. NOX Emission Control Requirements
    Section 182(f) of the CAA establishes NOX emission 
control requirements for ozone nonattainment areas. It provides that 
these emission control requirements, however, do not apply to an area 
if the Administrator determines that NOX emission reductions 
would not contribute to attainment of the ozone standard. The 
Administrator made such a determination for the Ohio portion of the 
Cincinnati-Hamilton ozone nonattainment area on July 13, 1995 (60 FR 
36060). This NOX emission control waiver was based on the 
fact that the Cincinnati-Hamilton area was currently not violating the 
1-hour ozone NAAQS. On June 19, 2000 (65 FR 37879), we extended the 
NOX emission control waiver to the entire Cincinnati-
Hamilton area based on a clean air determination.
    Since the NOX emission control waiver is approved as a 
final rule, Ohio EPA is not required to adopt and implement 
NOX emission control regulations pursuant to section 182(f) 
for the Cincinnati area to be redesignated. Ohio EPA has committed to 
adopt NOX RACT rules as a contingency measure to be 
considered and possibly implemented upon a violation of the 1-hour 
ozone NAAQS subsequent to the redesignation of the Cincinnati area to 
attainment of the 1-hour ozone NAAQS.
g. Conclusions Regarding Criteria (2) and (5)
    EPA concludes that, after Ohio has adopted the RACT rules reviewed 
here and we have approved these RACT rules as a SIP revision, Ohio and 
the Cincinnati area will have satisfied the requirement that the State 
and the area have a fully approved SIP meeting all applicable 
requirements under section 110(k), section 110, and part D of the CAA.
3. Criterion (3): The Improvement in Air Quality Must Be Due to 
Permanent and Enforceable Reductions in Emissions
    The improvement in air quality must be due to permanent and 
enforceable reductions in emissions resulting from the SIP, Federal 
measures, and other State adopted measures. The improvement in air 
quality in the Ohio portion of the Cincinnati-Hamilton area is due to 
emissions reductions from the Federal Motor Vehicle Emissions Control 
Program (FMVECP), Stage II gasoline vapor recovery program, VOC RACT 
controls, and the partial implementation of E-Check. Between 1993 and 
1996, the VOC emissions in the Ohio portion of the Cincinnati-Hamilton 
area were reduced by 6.7 percent. The emission control programs noted 
here have been adopted by the State and have been approved into the 
Ohio SIP by the EPA. Based on this conclusion, it is concluded that 
Ohio has complied with Criteria (3). It is further noted that, 
subsequent to 1996, Ohio has continued to implement these emission 
controls and has adopted statewide NOX emission control 
rules in compliance with EPA's NOX SIP call, further 
improving the air quality in the Cincinnati-Hamilton area. See the 
documentation of 1990, 1993, and 1996 VOC and NOX emissions 
for the Cincinnati area in Tables 2 and 3 of our January 24, 2000 
proposed rule for the Cincinnati-Hamilton ozone redesignation (65 FR 
3638).
4. Criterion (4): The Area Must Have a Fully Approved Maintenance Plan 
Meeting the Requirements of Section 175A
    EPA is proposing to approve the updated maintenance plan and to 
determine that it meets the requirements of the CAA.
    In its January 24, 2000 proposed rule (65 FR 3630), the EPA 
documented and proposed to approve a maintenance plan for the Ohio 
portion of the Cincinnati-Hamilton area as meeting the requirements of 
section 175A. This maintenance plan was approved in EPA's June 19, 2000 
final rule (65 FR 37879). Although the Court, in Wall v. EPA, vacated 
EPA's approval of the redesignation of the Cincinnati-Hamilton area due 
to the lack of VOC RACT rules in Ohio, the Court upheld EPA's approval 
of Ohio's ozone maintenance plan for the Cincinnati area.
    Due to passage of time, Ohio's original maintenance demonstration, 
which projected maintenance of the ozone standard through 2010, no 
longer satisfies the requirement that the maintenance plan demonstrate 
maintenance for 10 years after EPA approval of the ozone redesignation 
request. Based on this fact, Ohio EPA has updated the maintenance plan 
to demonstrate maintenance through 2015. Below we review this updated 
maintenance plan.
    Please note that besides updating the maintenance plan to 
demonstrate maintenance of the 1-hour ozone standard through 2015, Ohio 
EPA has also revised the maintenance plan to demonstrate that the 1-
hour ozone standard can be maintained even if the E-Check program is 
terminated in the Cincinnati area. Ohio EPA has also requested that the 
E-Check program be moved to the contingency portion of the maintenance 
plan. All other aspects of the contingency portion of the plan, as 
approved on June 19, 2000 remain in place. See our January 24, 2000 
proposed rule (65 FR 3639) for a discussion of Ohio's contingency plan.
    Also please note that the ozone maintenance plan approved by EPA on 
June 19, 2000 included the adoption of additional RACT rules as a 
contingency measure. Since Ohio is in the process of adopting the 
additional RACT rules to meet the requirements of the CAA, the 
consideration of RACT adoption as a contingency measure is no longer 
warranted. Should a need for the implementation of contingency measures 
be subsequently triggered, the State would have to consider other 
contingency measures since this contingency measure is no longer 
available. Even though the State has not removed this contingency 
measure from the maintenance plan, we do not see this as a basis for 
disapproving Ohio's ozone redesignation request. The maintenance plan 
is not corrupted by this issue since Ohio would be forced to consider 
alternate contingency measures if triggered, and the presence of the 
RACT adoption contingency measure in the maintenance plan does not 
prevent Ohio from doing so.
    The contingency plan provisions of the maintenance plan are 
designed to promptly correct a violation of the NAAQS that occurs after 
redesignation. Section 175A of the Ac