Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio; Indiana; Redesignation of the Ohio and Indiana Portions of the Cincinnati-Hamilton Area to Attainment for Ozone, 8871-8888 [2010-3680]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 38 (Friday, February 26, 2010)]
[Proposed Rules]
[Pages 8871-8888]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3680]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2009-0928; EPA-R05-OAR-2010-0046; FRL-9116-7]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Ohio; Indiana; 
Redesignation of the Ohio and Indiana Portions of the Cincinnati-
Hamilton Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the requests of Ohio and Indiana 
to redesignate the Ohio and Indiana portions of the Cincinnati-
Hamilton, OH-KY-IN 8-hour ozone nonattainment area, ``the Cincinnati-
Hamilton area,'' to attainment for that standard, because these 
requests meet the statutory requirements for redesignation under the 
Clean Air Act (CAA). The Ohio Environmental Protection Agency (Ohio 
EPA) and the Indiana Department of Environmental Management (IDEM) 
submitted these requests on December 14, 2009, and January 21, 2010, 
respectively. (EPA will address the Kentucky portion of the Cincinnati-
Hamilton area in a separate rulemaking action.)
    These proposed approvals involve several related actions. EPA is 
proposing to determine that the Cincinnati-Hamilton area has attained 
the 8-hour ozone National Ambient Air Quality Standard (NAAQS). The 
Cincinnati-Hamilton area includes Butler, Clermont, Clinton, Hamilton, 
and Warren Counties in Ohio, Lawrenceburg Township in Dearborn County, 
Indiana, and Boone, Campbell, and Kenton Counties in Kentucky. This 
determination is based on three years of complete, quality-assured 
ambient air quality monitoring data for the 2007-2009 ozone seasons 
that demonstrate that the 8-hour ozone NAAQS has been attained in the 
area. EPA is also proposing to approve, as revisions to the Ohio and 
Indiana State Implementation Plans (SIPs), the States' plans for 
maintaining the 8-hour ozone NAAQS through 2020 in the area.
    EPA is proposing to approve the 2002 base year emissions inventory 
submitted by IDEM on June 13, 2007, as meeting the base year emissions 
inventory requirement of the CAA for the Indiana portion of the 
Cincinnati-Hamilton area. EPA is proposing to approve the 2005 base 
year emissions inventory submitted by Ohio EPA as part of its 
redesignation request as meeting the base year emissions inventory 
requirements of the CAA for the Ohio portion of the Cincinnati-Hamilton 
area. Finally, EPA finds adequate and is proposing to approve the 
States' 2015 and 2020 Motor Vehicle Emission Budgets (MVEBs) for the 
Ohio and Indiana portion of the Cincinnati-Hamilton area.

DATES: Comments must be received on or before March 29, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0928 and EPA-R05-OAR-2010-0046, by one of the following 
methods:
    1. https://www.regulations.gov: Follow the online instructions for 
submitting comments.
    2. E-mail: damico.genevieve@epa.gov.
    3. Fax: (312) 692-2511.
    4. Mail: Genevieve Damico, Acting Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand delivery: Genevieve Damico, Acting Chief, Criteria 
Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, 18th floor, Chicago, 
Illinois 60604. Such deliveries are only accepted during the Regional 
Office normal hours of operation, and special arrangements should be 
made for deliveries of boxed information. The Regional Office 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 Docket ID No. EPA-R05-OAR-
2009-0928 and EPA-R05-OAR-2010-0046. EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at https://www.regulations.gov, including any 
personal information provided, unless the comment includes information 
claimed to be Confidential Business Information (CBI) or other 
information

[[Page 8872]]

whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, 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 https://www.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 comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional instructions on submitting 
comments, go to section I of this document, ``What Should I Consider as 
I Prepare My Comments for EPA?''
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. We recommend that you telephone Kathleen D'Agostino, 
Environmental Engineer, at (312) 886-1767 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-1767, 
dagostino.kathleen@epa.gov.

SUPPLEMENTARY 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 Action Is EPA Proposing To Take?
III. What Is the Background for These Actions?
    A. What Is the General Background Information?
    B. What Are the Impacts of the December 22, 2006, and June 8, 
2007, United States Court of Appeals Decisions Regarding EPA's Phase 
1 Implementation Rule?
IV. What Are the Criteria for Redesignation?
V. What Is the Effect of These Actions?
VI. What Is EPA's Analysis of the Request?
    A. Attainment Determination and Redesignation
    B. Adequacy of the MVEBs
    C. 2005 Base Year Emissions Inventory for the Ohio Portion of 
the Cincinnati-Hamilton Area
    D. 2002 Base Year Emissions Inventory for the Indiana Portion of 
the Cincinnati-Hamilton Area
VII. What Action Is EPA Taking?
VIII. 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 directions--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 Action Is EPA Proposing To Take?

    EPA is proposing to take several related actions. EPA is proposing 
to determine that the Cincinnati-Hamilton nonattainment area has 
attained the 1997 8-hour ozone standard and that the Ohio and Indiana 
portions of this area have met the requirements for redesignation under 
section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve 
requests from Ohio EPA and IDEM to change the legal designation of the 
Ohio and Indiana portions of the Cincinnati-Hamilton area from 
nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also 
proposing to approve, as revisions to the Ohio and Indiana SIPs, the 
States' maintenance plans (such approval being one of the CAA criteria 
for redesignation to attainment status). The maintenance plans are 
designed to keep the Cincinnati-Hamilton area in attainment of the 
ozone NAAQS through 2020. EPA is proposing to approve the 2005 base 
year emissions inventory for the Ohio portion of the Cincinnati-
Hamilton area, and the 2002 base year emissions inventory for Dearborn 
County, Indiana, as meeting the requirements of section 172(c)(3) of 
the CAA. If EPA's determination of attainment is finalized, under the 
provisions of 40 CFR 51.918, the requirement to submit certain planning 
SIPs related to attainment (the Reasonably Available Control Measure 
(RACM) requirement of section 172(c)(1) of the CAA, the Reasonable 
Further Progress (RFP) and attainment demonstration requirements of 
sections 172(c)(2) and (6) of the CAA, and the requirement for 
contingency measures of section 172(c)(9) of the CAA) are not 
applicable to the area as long as it continues to attain the NAAQS and 
would cease to be applicable upon redesignation. In addition, as set 
forth in more detail below, in the context of redesignations, EPA has 
interpreted requirements related to attainment as not applicable for 
purposes of redesignation. Finally, EPA finds adequate and is proposing 
to approve the newly established 2015 and 2020 MVEBs for the Ohio and 
Indiana portion of the Cincinnati-Hamilton area. The adequacy comment 
period for the MVEBs began on December 10, 2009, with EPA's posting of 
the availability of the submittal on EPA's Adequacy Web site (at https://www.epa.gov/otaq/stateresources/transconf/adequacy.htm). The adequacy 
comment period for these MVEBs ended on January 11, 2010. EPA did not 
receive any requests for this submittal, or adverse comments on this 
submittal during the adequacy comment period. In letters dated January 
14, 2010, EPA informed Ohio EPA and IDEM that we had found the 2015 and 
2020 MVEBs to be adequate for use in transportation conformity 
analyses. Please see section VI. B. of this rulemaking, ``Adequacy of 
the MVEBs,'' for further explanation of

[[Page 8873]]

this process. Therefore, we find adequate, and are proposing to 
approve, the States' 2015 and 2020 MVEBs for transportation conformity 
purposes.

III. What Is the Background for These Actions?

A. What Is the General Background Information?

    Ground-level ozone is not emitted directly by sources. Rather, 
emissions of nitrogen oxides (NOX) and volatile organic 
compounds (VOCs) react in the presence of sunlight to form ground-level 
ozone. NOX and VOCs are referred to as precursors of ozone.
    The CAA establishes a process for air quality management through 
the NAAQS. Before promulgation of the 8-hour standard, the ozone NAAQS 
was based on a 1-hour standard. On November 6, 1991 (56 FR 56693 and 
56813), the Cincinnati-Hamilton area was designated as a moderate 
nonattainment area under the 1-hour ozone NAAQS. Dearborn County, 
Indiana, was not included as part of the Cincinnati-Hamilton area, and 
was designated as attainment/unclassifiable under the 1-hour standard. 
The Ohio portion of the Cincinnati-Hamilton area was subsequently 
redesignated to attainment of the 1-hour standard effective June 14, 
2005. (See 70 FR 35946, published June 21, 2005). This attainment 
designation was thus in effect at the time EPA revoked the 1-hour ozone 
NAAQS, on June 15, 2005.
    On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone 
standard of 0.08 parts per million parts (ppm). 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. EPA designated as nonattainment any 
area that was violating the 8-hour ozone NAAQS based on the three most 
recent years of air quality data, 2001-2003.
    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, of the CAA; 42 U.S.C. 7501-7509a 
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 implementation rule for the 1997 8-hour ozone standard, 
(69 FR 23951 (April 30, 2004)), an area was classified under subpart 2 
based on its 8-hour ozone design value (i.e. the three-year average 
annual fourth-highest daily maximum 8-hour average ozone 
concentration), if it had a 1-hour design value at the time of 
designation at or above 0.121 ppm (the lowest 1-hour design value in 
Table 1 of subpart 2) (69 FR 23954). All other areas were covered under 
subpart 1, based upon their 8-hour design values (69 FR 23958). The 
Cincinnati-Hamilton area was designated as a subpart 1, 8-hour ozone 
nonattainment area by EPA on April 30, 2004 (69 FR 23857, 23900, 23905, 
and 23926), based on air quality monitoring data from 2001-2003 (69 FR 
23860).
    40 CFR 50.10 and 40 CFR part 50, Appendix I provide that the 8-hour 
ozone standard is attained when the three-year average of the annual 
fourth-highest daily maximum 8-hour 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).
    The Ohio EPA and IDEM submitted requests to redesignate the Ohio 
and Indiana portions of the Cincinnati-Hamilton area to attainment for 
the 8-hour ozone standard on December 14, 2009, and January 21, 2010, 
respectively. The redesignation requests included three years of 
complete, quality-assured data for the period of 2007 through 2009, 
indicating the 8-hour NAAQS for ozone, as promulgated in 1997, had been 
attained for the Cincinnati-Hamilton area. Under the CAA, nonattainment 
areas may be redesignated to attainment if sufficient complete, 
quality-assured 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).
    On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour 
ozone standard of 0.075 ppm. In May 2008, States, environmental groups 
and industry groups filed petitions with the DC Circuit Court of 
Appeals for review of the 2008 ozone standards. In March 2009, the 
court granted EPA's request to stay the litigation so EPA could review 
the standards and determine whether they should be reconsidered. On 
September 16, 2009, we announced that we are reconsidering our 2008 
decision setting national standards for ground-level ozone. The 
designation process for that standard has been stayed. On January 6, 
2010, EPA proposed to set the level of the primary 8-hour ozone 
standard within the range of 0.060 to 0.070 ppm, rather than at 0.075 
ppm. We expect by August 2010 to have completed our reconsideration of 
the standard and also expect that thereafter we will proceed with 
designations. The actions addressed in today's proposed rulemaking 
relate only to the 1997 8-hour ozone standard.

 B. What Are the Impacts of the December 22, 2006, and June 8, 2007, 
United States Court of Appeals Decisions Regarding EPA's Phase 1 
Implementation Rule?

1. Summary of Court Decision
    On December 22, 2006, in South Coast Air Quality Management Dist. 
v. EPA, 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 FR 23951, April 30, 2004). 472 F.3d 882 (D.C. Cir. 2006). On June 
8, 2007, in response to several petitions for rehearing, the DC Circuit 
Court clarified that the Phase 1 Rule was vacated only with regard to 
those parts of the rule that had been successfully challenged. Id., 
Docket No. 04 1201. Therefore, several provisions of the Phase 1 Rule 
remain effective: Provisions related to classifications for areas 
currently classified under subpart 2 of Title I, part D, of the CAA as 
8-hour nonattainment areas; the 8-hour attainment dates; and the timing 
for emissions reductions needed for attainment of the 8-hour ozone 
NAAQS. The June 8, 2007, decision also left intact the Court's 
rejection of EPA's reasons for implementing the 8-hour standard in 
certain nonattainment areas under subpart 1 in lieu of subpart 2. By 
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule 
that had not been successfully challenged. The June 8, 2007, decision 
reaffirmed the December 22, 2006, decision that EPA had improperly 
failed to retain four measures required for 1-hour nonattainment areas 
under the anti-backsliding provisions of the regulations: (1) 
Nonattainment area New Source Review (NSR) requirements based on an 
area's 1-hour nonattainment classification; (2) section 185 penalty 
fees for 1-hour severe or extreme nonattainment areas; (3) measures to 
be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, 
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 transportation conformity requirements for 
certain types of Federal actions. The June 8, 2007, decision

[[Page 8874]]

clarified that the Court's reference to conformity requirements was 
limited to requiring the continued use of 1-hour motor vehicle 
emissions budgets until 8-hour budgets were available for 8-hour 
conformity determinations.
    This section sets forth EPA's views on the potential effect of the 
Court's rulings on this proposed redesignation action. For the reasons 
set forth below, EPA does not believe that the Court's rulings alter 
any requirements relevant to this redesignation action so as to 
preclude redesignation or prevent EPA from proposing or ultimately 
finalizing this redesignation. EPA believes that the Court's December 
22, 2006, and June 8, 2007, decisions impose no impediment to moving 
forward with redesignation of this area to attainment, because even in 
light of the Court's decisions, redesignation is appropriate under the 
relevant redesignation provisions of the CAA and longstanding policies 
regarding redesignation requests.
2. Requirements Under the 8-Hour Standard
    With respect to the 8-hour standard, the Court's ruling rejected 
EPA's reasons for classifying areas under subpart 1 for the 8-hour 
standard, and remanded that matter to the Agency. In its January 16, 
2009, proposed rulemaking in response to the South Coast decision, EPA 
has proposed to classify Cincinnati-Hamilton under subpart 2 as a 
moderate area. 74 FR 2936, 2944. If EPA finalizes this rulemaking, the 
requirements under subpart 2 will become applicable when they are due, 
a deadline that EPA has proposed to be one year after the effective 
date of a final rulemaking classifying areas as moderate or marginal. 
74 FR 2940-2941. Although a future final decision by EPA to classify 
this area under subpart 2 would 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 requirements in accordance with the 
requirements due at the time the request is submitted; and, (2) 
consideration of the inequity of applying retroactively any 
requirements that might be applied in the future.
    First, at the time the redesignation request was submitted, the 
Cincinnati-Hamilton area was not classified under subpart 2, nor were 
there any subpart 2 requirements yet due for this area. 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. See 
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, 12465-66 
(March 7, 1995) (Redesignation of Detroit-Ann Arbor). See Sierra Club 
v. EPA, 375 F.3d 537 (7th Cir. 2004), which upheld EPA's redesignation 
rulemaking applying 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 DC Circuit has recognized the inequity in such 
retroactive rulemaking. In Sierra Club v. Whitman, 285 F. 3d 63 (D.C. 
Cir. 2002), the DC 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 or 
yet due at the time it submitted its redesignation request.
3. Requirements Under the 1-Hour Standard
    With respect to the 1-hour standard requirements, the Cincinnati-
Hamilton area was an attainment area subject to a CAA section 175A 
maintenance plan under the 1-hour standard. The DC Circuit's decisions 
with respect to 1-hour nonattainment anti-backsliding requirements do 
not impact redesignation requests for these types of areas, except to 
the extent that the Court in its June 8, 2007, decision clarified that 
for those areas with 1-hour motor vehicle emissions budgets in their 
maintenance plans, anti-backsliding requires that those 1-hour budgets 
must be used for 8-hour conformity determinations until replaced by 8-
hour budgets. To meet this requirement, conformity determinations in 
such areas must comply with the applicable requirements of EPA's 
conformity regulations at 40 CFR part 93.
    With respect to the three other anti-backsliding provisions for the 
1-hour standard that the Court found were not properly retained, the 
Cincinnati-Hamilton area is an attainment area subject to a maintenance 
plan for the 1-hour 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 1-hour standard.
    Thus, the decision in South Coast Air Quality Management Dist. 
would not 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,''

[[Page 8875]]

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 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
    ``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. What Is the Effect of These Actions?

    Approval of the redesignation requests would change the official 
designation of the Ohio and Indiana portions of the Cincinnati-Hamilton 
area for the 1997 8-hour ozone NAAQS found at 40 CFR part 81. It would 
also incorporate into the Ohio and Indiana SIPs, plans for maintaining 
the 8-hour ozone NAAQS through 2020. The maintenance plans include 
contingency measures as required under CAA section 175A to remedy 
future violations of the 8-hour NAAQS. They also establish MVEBs for 
the Ohio and Indiana portions of the Cincinnati-Hamilton area of 31.73 
and 28.82 tons per day (tpd) VOC and 49.00 and 34.39 tpd NOX 
for the years 2015 and 2020, respectively.

 VI. What Is EPA's Analysis of the Request?

 A. Attainment Determination and Redesignation

    EPA is proposing to determine that the Cincinnati-Hamilton area has 
attained the 1997 8-hour ozone standard and that the area has met all 
other applicable redesignation criteria under CAA section 107(d)(3)(E). 
The basis for EPA's proposed approvals of the redesignation requests is 
as follows:
1. The Area Has Attained the 8-hour Ozone NAAQS (Section 
107(d)(3)(E)(i))
    EPA is proposing to make a determination that the Cincinnati-
Hamilton area has attained the 1997 8-hour ozone NAAQS. An area may be 
considered to be attaining the 8-hour 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 
quality-assured air quality monitoring data. To attain this standard, 
the three-year average of the fourth-highest daily maximum 8-hour 
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 quality-assured in accordance with 40 CFR part 58, and 
recorded in the EPA's Air Quality System (AQS). The monitors generally 
should have remained at the same location for the duration of the 
monitoring period required for demonstrating attainment.
    Ohio and Indiana included in their redesignation requests ozone 
monitoring data for the 2007 to 2009 ozone seasons. Monitoring data for 
2007 and 2008 have been certified by the States; 2009 data has not yet 
been certified. However, Ohio and Kentucky have quality-assured all of 
the ambient monitoring data in accordance with 40 CFR 58.10, and have 
recorded it in the AQS database. (There are no monitoring locations in 
Dearborn County, Indiana.) 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 are presented in Table 1 below.

     Table 1--Annual 4th High Daily Maximum 8-Hour Ozone Concentration and Three Year Averages of 4th High Daily Maximum 8-Hour Ozone Concentrations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           2007 4th high   2008 4th high   2009 4th high     2007-2009
                State                           County                   Monitor               (ppm)           (ppm)           (ppm)      average  (ppm)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ohio.................................  Butler.................  Hamilton................           0.091           0.071           0.073           0.078
                                                                39-017-0004.............
                                      ------------------------------------------------------------------------------------------------------------------
                                                                Middletown..............           0.091           0.079           0.076           0.082
                                                                39-017-1004.............
��������������������������������������
                                       Clermont...............  Batavia.................           0.086           0.071           0.069           0.075
                                                                39-025-0022.............
��������������������������������������
                                       Clinton................  Wilmington..............           0.082           0.076           0.070           0.076
                                                                39-027-1002.............
��������������������������������������
                                       Hamilton...............  Grooms Rd., Cincinnati..           0.089           0.086           0.072           0.082
                                                                39-061-0006.............
                                      ------------------------------------------------------------------------------------------------------------------

[[Page 8876]]

 
                                                                Cleves..................           0.086           0.077           0.065           0.076
                                                                39-061-0010.............
                                      ------------------------------------------------------------------------------------------------------------------
                                                                250 Wm. Howard Taft,               0.086           0.080           0.074           0.080
                                                                 Cincinnati.
                                                                39-061-0040.............
��������������������������������������
                                       Warren.................  Lebanon.................           0.088           0.082           0.077           0.082
                                                                39-165-0007.............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kentucky.............................  Boone..................  KY 338 & Lower River               0.078           0.064           0.064           0.068
                                                                 Road.
                                                                21-015-0003.............
��������������������������������������
                                       Campbell...............  Highland Heights........           0.086           0.075           0.068           0.076
                                                                21-037-3002.............
��������������������������������������
                                       Kenton.................  Covington...............           0.085           0.073           0.074           0.077
                                                                21-117-0007.............
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In addition, as discussed below with respect to the Ohio 
maintenance plan, Ohio EPA has committed to continue to operate an EPA-
approved monitoring network as necessary to demonstrate ongoing 
compliance with the NAAQS. Ohio EPA commits to continue monitoring 
ozone at the sites indicated in Table 1 and to consult with EPA prior 
to making changes to the existing monitoring network, should changes 
become necessary in the future. Ohio EPA remains obligated to continue 
to quality assure monitoring data in accordance with 40 CFR part 58 and 
enter all data into AQS in accordance with Federal guidelines. Indiana 
does not operate any ozone monitors in Dearborn County, which contains 
Lawrenceburg Township, the Indiana portion of the Cincinnati-Hamilton 
area. In summary, EPA believes that the data show that the Cincinnati-
Hamilton area has attained the 8-hour 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 and Indiana have met all currently 
applicable SIP requirements for purposes of redesignation for the 
Cincinnati-Hamilton area under section 110 of the CAA (general SIP 
requirements). We are also proposing to determine that the Ohio and 
Indiana SIPs meet 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, with the exception of the 
base year emissions inventory, we have determined that the Ohio and 
Indiana SIPs are fully approved with respect to all applicable 
requirements for purposes of redesignation, in accordance with section 
107(d)(3)(E)(ii). As discussed below, in this action EPA is proposing 
to approve Ohio's 2005 base year emissions inventory and Indiana's 2002 
base year emissions inventory as meeting the section 172(c)(3) 
emissions inventory requirement.
    In proposing these determinations, we have ascertained which SIP 
requirements are applicable to the area for purposes of redesignation, 
and have determined that there are SIP measures meeting those 
requirements and that they are fully approved under section 110(k) of 
the CAA. As discussed more fully below, for purposes of evaluating a 
redesignation request, SIPs must be fully approved only with respect to 
requirements that became due prior to the submission of the 
redesignation request.
    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, 12465-12466 (March 7, 1995) (Redesignation 
of Detroit-Ann Arbor). 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 St. Louis).
    Since EPA is proposing here to determine that the area has attained 
the 1997 8-hour ozone standard, under 40 CFR 51.918, if that 
determination is finalized, the requirements to submit certain planning 
SIPs related to attainment, including attainment demonstration 
requirements (the RACM requirement of section 172(c)(1) of the CAA, the 
RFP and attainment demonstration requirements of sections 172(c)(2) and 
(c)(6) of the CAA, and the requirement for contingency measures of 
section 172(c)(9) of the CAA) would not be applicable to the area as 
long as it continues to attain the NAAQS and would cease to apply upon 
redesignation. In addition, in the context of redesignations, EPA has 
interpreted requirements related to attainment as not applicable for 
purposes of redesignation. For example, in the General Preamble EPA 
stated that:

    [t]he section 172(c)(9) requirements are directed at ensuring 
RFP and attainment by the applicable date. These requirements no 
longer apply when an area has attained the standard and is eligible 
for redesignation. Furthermore, section 175A for maintenance plans * 
* * provides specific requirements for contingency measures that 
effectively

[[Page 8877]]

supersede the requirements of section 172(c)(9) for these areas. 
``General Preamble for the Interpretation of Title I of the Clean 
Air Act Amendments of 1990,'' (General Preamble) 57 FR 13498, 13564 
(April 16, 1992).

See also Calcagni memorandum at 6 (``The requirements for reasonable 
further progress and other measures needed for attainment will not 
apply for redesignations because they only have meaning for areas not 
attaining the standard'').
a. The Ohio and Indiana Portions of the Cincinnati-Hamilton Area Have 
Met All Applicable Requirements for Purposes of Redesignation Under 
Section 110 and Part D of the CAA
i. Section 110 General SIP Requirements
    Section 110(a) of Title I of the CAA contains the general 
requirements for a SIP. Section 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 (NOX SIP Call \1\ and Clean Air Interstate 
Rule (CAIR) (70 FR 25162, May 12, 2005)). However, the section 
110(a)(2)(D) requirements for a State are not linked with a particular 
nonattainment area's designation and classification. 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 
believe that these requirements should not be construed to be 
applicable requirements for purposes of redesignation.
---------------------------------------------------------------------------

    \1\ On October 27, 1998 (63 FR 57356), EPA issued a 
NOX SIP Call requiring the District of Columbia and 22 
States to reduce emissions of NOX in order to reduce the 
transport of ozone and ozone precursors. In compliance with EPA's 
NOX SIP Call, both Ohio EPA and IDEM have developed rules 
governing the control of NOX emissions from Electric 
Generating Units (EGUs), major non-EGU industrial boilers, major 
cement kilns, and internal combustion engines. EPA approved Ohio's 
rules as fulfilling Phase I of the NOX SIP Call on August 
5, 2003 (68 FR 46089) and June 27, 2005 (70 FR 36845), and as 
meeting Phase II of the NOX SIP Call on February 4, 2008 
(73 FR 6427). EPA approved Indiana's rules as fulfilling 
requirements of Phase I of the NOX SIP Call on November 
8, 2001 (66 FR 56465) and December 11, 2003 (68 FR 69025), and as 
meeting Phase II of the NOX SIP Call on October 1, 2007 
(72 FR 55664).
---------------------------------------------------------------------------

    Further, we believe that the other section 110 elements described 
above that are not connected with nonattainment plan submissions and 
not linked with an area's attainment status are also not applicable 
requirements for purposes of redesignation. A State remains subject to 
these requirements after an area is redesignated to attainment. We 
conclude that only the section 110 and part D requirements which are 
linked with a particular area's designation and classification are the 
relevant measures which we may consider in evaluating a redesignation 
request. This approach is consistent with EPA's existing policy on 
applicability of conformity and oxygenated fuels requirements for 
redesignation purposes, as well as with section 184 ozone transport 
requirements. See Reading, Pennsylvania, proposed and final rulemakings 
(61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); 
Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 
1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 
1995). See also the discussion on this issue in the Cincinnati, Ohio 1-
hour ozone redesignation (65 FR 37890, June 19, 2000), and in the 
Pittsburgh, Pennsylvania 1-hour ozone redesignation (66 FR 50399, 
October 19, 2001).
    We have reviewed Ohio's SIP and have concluded that it meets the 
general SIP requirements under section 110 of the CAA to the extent 
they are applicable for purposes of redesignation. EPA has previously 
approved provisions of the Ohio SIP addressing section 110 elements 
under the 1-hour ozone standard (40 CFR 52.1870). Further, in 
submittals dated December 5, 2007 and September 19, 2008, Ohio 
confirmed that the State continues to meet the section 110 requirements 
for the 8-hour ozone standard. EPA has not yet taken rulemaking action 
on these submittals; however, such approval is not necessary for 
redesignation.
    We have also reviewed Indiana's SIP and have concluded that it 
meets the general SIP requirements under section 110 of the CAA to the 
extent they are applicable for purposes of redesignation. EPA has 
previously approved provisions of the Indiana SIP addressing section 
110 elements under the 1-hour ozone standard (40 CFR 52.773). Further, 
in a submittal dated December 10, 2007, Indiana confirmed that the 
State continues to meet the section 110 requirements for the 8-hour 
ozone standard. EPA has not yet taken rulemaking action on this 
submittal; however, such approval is not necessary for redesignation.
ii. Part D Requirements
    EPA has determined that, if EPA finalizes the approval of the base 
year emissions inventories discussed in section VI.C. and D. of this 
rulemaking, the Ohio and Indiana SIPs will meet the applicable SIP 
requirements for their portions of the Cincinnati-Hamilton area 
applicable for purposes of redesignation under part D of the CAA. 
Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth 
the basic nonattainment requirements applicable to all nonattainment 
areas. Subpart 2 of part D, which includes section 182 of the CAA, 
establishes additional specific requirements depending on the area's 
nonattainment classification.
    Since the Cincinnati-Hamilton area was not classified under subpart 
2 of Part D at the time its redesignation request was submitted, the 
subpart 2 requirements do not apply for purposes of evaluating the 
States' redesignation requests. The applicable subpart 1 requirements 
are contained in sections 172(c)(1)-(9) and in section 176.
Subpart 1 Section 172 Requirements
    For purposes of evaluating this redesignation request, the 
applicable section 172 SIP requirements for the Cincinnati-Hamilton 
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).

[[Page 8878]]

    Section 172(c)(1) requires the plans for all nonattainment areas to 
provide for the implementation of all RACM as expeditiously as 
practicable and to provide for attainment of the national primary 
ambient air quality standards. The EPA interprets this requirement to 
impose a duty on all nonattainment areas to consider all available 
control measures and to adopt and implement such measures as are 
reasonably available for implementation in each area as components of 
the area's attainment demonstration. On June 15, 2007 and April 22, 
2008, Ohio EPA submitted an attainment demonstration and identified the 
control measures necessary to attain the NAAQS in the Cincinnati-
Hamilton area. Indiana submitted an attainment demonstration for the 
Cincinnati-Hamilton area on June 13, 2007. However, because attainment 
has been reached, no additional measures are needed to provide for 
attainment, and section 172(c)(1) requirements are no longer considered 
to be applicable as long as the area continues to attain the standard 
until redesignation. 40 CFR 51.918. If EPA finalizes approval of the 
redesignation of the Ohio and Indiana portions of the Cincinnati-
Hamilton area, EPA will take no further action on the attainment 
demonstrations submitted by Ohio and Indiana for the area.
    The RFP requirement under section 172(c)(2) is defined as progress 
that must be made toward attainment. This requirement is not relevant 
for purposes of redesignation because the Cincinnati-Hamilton area has 
monitored attainment of the ozone NAAQS. (General Preamble, 57 FR 
13564). See also 40 CFR 51.918. In addition, because the Cincinnati-
Hamilton area has attained the ozone NAAQS and is no longer subject to 
an RFP requirement, the requirement to submit the section 172(c)(9) 
contingency measures is not applicable for purposes of redesignation. 
Id.
    Section 172(c)(3) requires submission and approval of a 
comprehensive, accurate and current inventory of actual emissions. As 
part of Ohio's redesignation request for the Cincinnati-Hamilton area, 
the State submitted a 2005 base year emissions inventory. As discussed 
below in section VI.C., EPA is proposing to approve the 2005 base year 
inventory that Ohio submitted with the redesignation request as meeting 
the section 172(c)(3) emissions inventory requirement. As part of 
Indiana's June 13, 2007, attainment demonstration submittal for the 
Cincinnati-Hamilton area, IDEM included a 2002 base year emissions 
inventory. As discussed below in section VI.D., EPA is proposing to 
approve Indiana's 2002 base year inventory as meeting the section 
172(c)(3) emissions inventory requirement.
    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. 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 and Indiana have demonstrated that 
the Cincinnati-Hamilton area will be able to maintain the standard 
without part D NSR in effect; therefore, EPA concludes that the States 
need not have fully approved part D NSR programs prior to approval of 
the redesignation request. The States' PSD programs will become 
effective in the Cincinnati-Hamilton area upon redesignation to 
attainment. See rulemakings for Detroit, Michigan (60 FR 12467-12468, 
March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, 
May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and 
Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
    Section 172(c)(6) requires the SIP to contain control measures 
necessary to provide for attainment of the standard. Because attainment 
has been reached, no additional measures are needed to provide for 
attainment.
    Section 172(c)(7) requires the SIP to meet the applicable 
provisions of section 110(a)(2). As noted above, we believe the Ohio 
and Indiana SIPs meet the requirements of section 110(a)(2) applicable 
for purposes of redesignation.
Subpart 1 Section 176 Conformity Requirements
    Section 176(c) of the CAA requires States to establish criteria and 
procedures to ensure that Federally-supported 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 conformity) as well as to all other Federally-supported 
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 Federally-approved 
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, 62749-62750 (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. Section 176(c) of the CAA was amended by provisions 
contained in the Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users (SAFETEALU), which was signed into law 
on August 10, 2005 (Pub. L. 109-59). Among the changes Congress made to 
this section of the CAA was to streamline the requirements for State 
conformity SIPs. Ohio is in the process of updating its transportation 
conformity SIP to meet these new requirements. EPA approved Indiana's 
general conformity SIP on January 14, 1998 (63 FR 2146). Indiana does 
not have a Federally-approved transportation conformity SIP. However, 
conformity analyses are performed pursuant to EPA's Federal conformity 
rules. Ohio and Indiana have submitted onroad motor vehicle budgets for 
the Ohio and Indiana portion of the

[[Page 8879]]

Cincinnati-Hamilton area of 31.73 and 28.82 tpd VOC and 49.00 and 34.39 
tpd NOX for the years 2015 and 2020, respectively. The area 
must use the MVEBs from the maintenance plan in any conformity 
determination that is effective on or after the effective date of the 
maintenance plan approval.
b. The Ohio and Indiana Portions of the Cincinnati-Hamilton Area Have 
Fully Approved Applicable SIPs Under Section 110(k) of the CAA
    If EPA issues a final approval of the base year emissions 
inventories, EPA will have fully approved the Ohio and Indiana SIPs for 
the Cincinnati-Hamilton 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 page 3 of 
the September 4, 1992, John Calcagni memorandum; Southwestern 
Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (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 and Indiana have adopted and submitted, and EPA has 
fully approved, provisions addressing various required SIP elements 
under the 1-hour ozone standard. In this action, EPA is proposing to 
approve Ohio's 2005 base year emissions inventory and Indiana's 2002 
base year emissions inventory for the Cincinnati-Hamilton area as 
meeting the requirement of section 172(c)(3) of the CAA. No Cincinnati-
Hamilton 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 and Indiana have demonstrated that the observed 
air quality improvement in the Cincinnati-Hamilton area is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the SIPs, Federal measures, and other State-adopted 
measures.
    In making this demonstration, Ohio EPA and IDEM have calculated the 
change in emissions between 2005 and 2008. Ohio and Indiana are using 
2005 base year emissions inventories developed in conjunction with the 
Lake Michigan Air Directors Consortium (LADCO) as the nonattainment 
inventories. The States developed an attainment inventory for 2008, one 
of the years the Cincinnati-Hamilton 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 Cincinnati-Hamilton and upwind areas have 
implemented in recent years.
a. Permanent and Enforceable Controls Implemented
    The following is a discussion of permanent and enforceable measures 
that have been implemented in the areas:
i. Stationary Source NOX Rules
    Ohio EPA and IDEM have developed rules governing the control of 
NOX emissions from Electric Generating Units (EGUs), major 
non-EGU industrial boilers, major cement kilns, and internal combustion 
engines. EPA approved Ohio's rules as fulfilling Phase I of the 
NOX SIP Call on August 5, 2003 (68 FR 46089), and June 27, 
2005 (70 FR 36845), and as fulfilling Phase II of the SIP Call on 
February 4, 2008 (73 FR 6427). EPA approved Indiana's rules as 
fulfilling requirements of Phase I of the NOX SIP Call on 
November 8, 2001 (66 FR 56465), and December 11, 2003 (68 FR 69025), 
and as meeting Phase II of the NOX SIP Call on October 1, 
2007 (72 FR 55664). Ohio and Indiana began complying with Phase I of 
this rule in 2004. Compliance with Phase II of the SIP Call, which 
requires the control NOX emissions from large internal 
combustion engines, began in both Ohio and Indiana in 2007, and was 
projected to result in an 82 percent NOX reduction from 1995 
levels.
ii. Federal Emission Control Measures
    Reductions in VOC and NOX emissions have occurred 
statewide and in upwind areas as a result of Federal emission control 
measures, with additional emission reductions expected to occur in the 
future. Federal emission control measures include the following.
    Tier 2 Emission Standards for Vehicles and Gasoline Sulfur 
Standards. These emission control requirements result in lower VOC and 
NOX emissions from new cars and light duty trucks, including 
sport utility vehicles. The Federal rules were phased in between 2004 
and 2009. The EPA has estimated that, by the end of the phase-in 
period, the following vehicle NOX emission reductions will 
occur nationwide: Passenger cars (light duty vehicles) (77 percent); 
light duty trucks, minivans, and sports utility vehicles (86 percent); 
and, larger sports utility vehicles, vans, and heavier trucks (69 to 95 
percent). VOC emission reductions are expected to range from 12 to 18 
percent, depending on vehicle class, over the same period. Some of 
these emission reductions occurred by the attainment years (2007-2009) 
and additional emission reductions will occur during the maintenance 
period.
    Heavy-Duty Diesel Engine Rule. EPA issued this rule in July 2000. 
This rule includes standards limiting the sulfur content of diesel 
fuel, which went into effect in 2004. A second phase took effect in 
2007 which further reduced the highway diesel fuel sulfur content to 15 
parts per million, leading to additional reductions in combustion 
NOX and VOC emissions. This rule is expected to achieve a 95 
percent reduction in NOX emissions from diesel trucks and 
busses.
    Non-Road Diesel Rule. EPA issued this rule in 2004. This rule 
applies to diesel engines used in industries, such as construction, 
agriculture, and mining. It is estimated that compliance with this rule 
will cut NOX emissions from non-road diesel engines by up to 
90 percent. This rule is currently achieving emission reductions, but 
will not be fully implemented until 2010.
iii. Control Measures in Upwind Areas
    On October 27, 1998 (63 FR 57356), EPA issued a NOX SIP 
Call requiring the District of Columbia and 22 States to reduce 
emissions of NOX. Affected States were required to comply 
with Phase I of the SIP Call beginning in 2004, and Phase II beginning 
in 2007. The reduction in NOX emissions has resulted in 
lower concentrations of transported ozone entering the Cincinnati-
Hamilton area. Emission reductions resulting from regulations developed 
in response to the NOX SIP Call are permanent and 
enforceable.
b. Emission Reductions
    Ohio and Indiana are using 2005 base year emissions inventories 
developed in conjunction with the LADCO as the nonattainment 
inventories. The main purpose of LADCO is to provide technical 
assessments for and assistance to its member States on problems of air 
quality. LADCO's primary geographic focus is the area encompassed by 
its member States (Illinois, Indiana, Michigan, Ohio and Wisconsin) and 
any areas which affect air quality in its member States. In developing 
the 2005 nonattainment year inventory, Ohio EPA and IDEM provided point 
and area source inventories to LADCO. LADCO processed these inventories 
through the Emission Modeling Sy