[Federal Register Volume 63, Number 18 (Wednesday, January 28, 1998)] [Rules and Regulations] [Pages 4188-4195] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-2081] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [OH58-1a; FRL-5954-6] Approval and Promulgation of State Implementation Plan; Ohio AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: In this action, EPA is approving as a revision to the Ohio State Implementation Plan (SIP) a rate-of-progress plan for the purpose of reducing volatile organic compounds (VOC) emissions in the Ohio portion of the Cincinnati-Hamilton area by 15 percent by November 15, 1996. The plan and regulations will help to protect the public's health and welfare by reducing the VOC emissions that contribute to the formation of ground-level ozone, commonly known as urban smog. Elsewhere in this Federal Register, EPA is proposing approval and soliciting comment on this action; if written [[Page 4189]] adverse comments (not previously addressed) are received on the approval of the rate-of-progress plan, EPA will withdraw the direct final approval of the plan and address the comments received in a new final rule. Unless this direct final is withdrawn, no further rulemaking will occur on this requested SIP revision. DATES: This rule is effective March 30, 1998 unless EPA receives adverse or critical comments by February 27, 1998. If the effective date is delayed, timely notice will be published in the Federal Register. ADDRESSES: Comments may be mailed to: J. Elmer Bortzer, Chief, Regulation Development Section, Air and Radiation Division, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Copies of the documents relevant to this action are available at the above address for public inspection during normal business hours. FOR FURTHER INFORMATION CONTACT: William Jones, Environmental Scientist at (312) 886-6058 and Francisco Acevedo, Environmental Protection Specialist at (312) 886-6061. SUPPLEMENTARY INFORMATION: I. Background on Rate-of-Progress and Contingency Plan Requirement On November 15, 1990, Congress enacted amendments to the 1977 Clean Air Act (CAA); Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. Section 182(b)(1) of the Clean Air Act requires moderate and above ozone nonattainment areas to submit plans to reduce their VOC emissions by 15 percent by 1996. These plans are referred to as 15 percent rate of progress (15% ROP) plans. These plans were due to be submitted to the Environmental Protection Agency (EPA) by November 15, 1993. In Ohio, these plans were due for the Toledo, Dayton-Springfield, Cleveland-Akron-Lorain areas, and the Ohio portion of the Cincinnati- Hamilton Moderate ozone nonattainment area. On November 12, 1993, Ohio submitted 15% plans for the Toledo, Dayton-Springfield, Cleveland-Akron-Lorain, and the Ohio portion of the Cincinnati-Hamilton areas. EPA reviewed these plans to determine if they satisfied the completeness criteria so that the rulemaking process could begin. On January 21, 1994, EPA notified Ohio that EPA was making a finding of incompleteness on the 15% ROP plan submittals and starting a clock for imposing sanctions in these areas. In order to stop this clock the State had to submit a complete 15% ROP plan for the State's moderate ozone nonattainment areas. On March 14, 1994, OEPA Director Schregardus submitted Ohio's 15% ROP plans, along with several other State Implementation Plan revisions, to EPA. Only the 15% ROP plan for the Ohio portion of the Cincinnati-Hamilton area is subject to this approval. The requirements for a 15% ROP plan in the Toledo and Dayton-Springfield areas were no longer applicable after these areas were redesignated as ozone attainment areas, see 60 FR 39115 (dated August 1, 1995) and 60 FR 22289 (dated May 5, 1995). The 15% ROP plan requirement for the Cleveland-Akron-Lorain area was determined to be fulfilled since the area reached attainment and, therefore, no further emissions reductions were necessary to reach attainment of the ozone air quality standard. See 61 FR 20458 (dated May 7, 1996). The 15% ROP plans submitted by OEPA on March 14, 1994, were found complete by EPA on August 8, 1994, in a letter to the State of Ohio. The completeness review of the plans is contained in an EPA memorandum dated May 12, 1994, a copy of which can be found in the docket. II. Review Criteria The requirements for a 15% ROP plan and its contents are found in Section 182(b)(1) of the CAA and the following EPA documents: 1. Procedures for Preparing Emissions Projections, EPA-450/4-91- 019, July 1991. 2. State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Proposed rule (57 FR 13498), Federal Register, April 16, 1992. 3. ``November 15, 1992, Deliverables for RFP and modeling Emission Inventories,'' Memorandum from J. David Mobley, Edwin L. Meyer, and G. T. Helms, Office of Air Quality Planning and Standards, Environmental Protection Agency, August 7, 1992. 4. Guidance on the Adjusted Base Year Emissions Inventory and the 1996 Target for the 15 Percent Rate of Progress Plans, EPA-452/R-92- 005, October 1992. 5. ``Quantification of Rule Effectiveness Improvements,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air Quality Planning and Standards, Environmental Protection Agency, October 1992. 6. Guidance for Growth Factors, Projections, and Control Strategies for the 15 Percent Rate-of-Progress Plans, EPA-452/R-93-002, March 1993. 7. ``Correction to `Guidance on the Adjusted Base Year Emissions Inventory and the 1996 Target for the 15 Percent Rate of Progress Plans','' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air Quality Planning and Standards, Environmental Protection Agency, March 2, 1993. 8. ``15 Percent Rate-of-Progress Plans,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air Quality Planning and Standards, Environmental Protection Agency, March 16, 1993. 9. Guidance on the Relationship Between the 15 Percent Rate-of- Progress Plans and Other Provisions of the Clean Air Act, EPA-452/R-93- 007, Environmental Protection Agency, May 1993. 10. ``Credit Toward the 15 Percent Rate-of-Progress Reductions from Federal Measures,'' G. T. Helms, Chief Ozone/Carbon Monoxide Programs Branch, May 6, 1993. 11. Guidance on Preparing Enforceable Regulations and Compliance Programs for the 15 Percent Rate-of-Progress Plans, EPA-452/R-93-005, Environmental Protection Agency, June 1993. 12. ``Correction Errata to the 15 Percent Rate-of-Progress Plan Guidance Series,'' G.T. Helms, Chief, Ozone and Carbon Monoxide Programs Branch, July 28, 1993. 13. ``Early Implementation of Contingency Measures for Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' G. T. Helms, Chief, Ozone/ Carbon Monoxide Programs Branch, August 13, 1993. 14. ``Region III Questions on Emission Projections for the 15 Percent Rate-of-Progress Plans,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air Quality Planning and Standards, Environmental Protection Agency, August 17, 1993. 15. ``Guidance on Issues Related to 15 Percent Rate-of-Progress Plans,'' Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, August 23, 1993. 16. ``Credit Toward the 15 Percent Requirements from Architectural and Industrial Maintenance Coatings,'' John S. Seitz, Director, Office of Air Quality Planning and Standards, September 10, 1993. 17. ``Reclassification of Areas to Nonattainment and 15 Percent Rate-of-Progress Plans,'' John S. Seitz, Director, Office of Air Quality Planning and Standards, September 20, 1993. [[Page 4190]] 18. ``Clarification of `Guidance for Growth Factors, Projections and Control Strategies for the 15 Percent Rate of Progress Plans','' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air Quality Planning and Standards, Environmental Protection Agency, October 6, 1993. 19. ``Review and Rulemaking on 15 Percent Rate-of-Progress Plans,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air Quality Planning and Standards, Environmental Protection Agency, October 6, 1993. 20. ``Questions and Answers from the 15 Percent Rate-of-Progress Plan Workshop,'' G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, October 29, 1993. 21. ``Rate-of-Progress Plan Guidance on the 15 Percent Calculations,'' D. Kent Berry, Acting Director, Air Quality Management Division, October 29, 1993. 22. ``Clarification of Issues Regarding the Contingency Measures that are due November 15, 1993 for Moderate and Above Ozone Nonattainment Areas,'' D. Kent Berry, Acting Director, Air Quality Management Division, November 8, 1993. 23. ``Credit for 15 percent Rate-of-Progress Plan Reductions from the Architectural and Industrial Maintenance (AIM) Coating Rule,'' John S. Seitz, Director, Office of Air Quality Planning and Standards, December 9, 1993. 24. ``Guidance on Projection of Nonroad Inventories to Future Years,'' Memorandum from Philip A. Lorang, Director, Emission Planning and Strategies Division, Office of Air and Radiation, Environmental Protection Agency, February 4, 1994. 25. ``Discussion at the Division Directors' Meeting on June 1 Concerning the 15 Percent and 3 Percent Calculations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, Office of Air Quality Planning and Standards, Environmental Protection Agency, June 2, 1994. 26. ``Future Nonroad Emission Reduction Credits for Court-Ordered Nonroad Standards,'' Memorandum from Philip A. Lorang, Director, Emission Planning and Strategies Division, Office of Air and Radiation, Environmental Protection Agency, November 28, 1994. 27. ``Credit for the 15 Percent Rate-of-Progress Plans for Reductions from the Architectural and Industrial Maintenance (AIM) Coating Rule and the Autobody Refinishing Rule,'' John S. Seitz, Director, Office of Air Quality Planning and Standards, November 29, 1994. 28. ``Transmittal of Rule Effectiveness Protocol for 1996 Demonstrations,'' Memorandum from Susan E. Bromm, Director, Chemical, Commercial Services and Municipal Division, Office of Compliance, Environmental Protection Agency, December 22, 1994. 29. ``Future Nonroad Emission Reduction Credits for Locomotives,'' Memorandum from Philip A. Lorang, Director, Emission Planning and Strategies Division, Office of Air and Radiation, Environmental Protection Agency, January 3, 1995. 30. ``Credit for the 15 Percent Rate-of-Progress Plans for Reductions from the Architectural and Industrial Maintenance (AIM) Coating Rule,'' John S. Seitz, Director, Office of Air Quality Planning and Standards, March 22, 1995. 31. ``Fifteen Percent Rate-of-Progress Plans--Additional Guidance,'' John S. Seitz, Director, Office of Air Quality Planning and Standards, May 5, 1995. 32. ``Update on the credit for the 15 percent Rate-of-Progress Plans for Reductions from the Architectural and Industrial maintenance coatings rule,'' John S. Seitz, Director, Office of Air Quality Planning and Standards, March 7, 1996. 33. ``Date by which States Need to Achieve all the Reductions Needed for the 15% Plan from Inspection and Maintenance (I/M) and Guidance for Recalculation,'' memorandum from Margo Oge, Director, Office of Mobile Sources, and John S. Seitz, Director, Office of Air Quality Planning and Standards, Environmental Protection Agency, August 13, 1996. 34. ``Modeling 15 Percent Volatile Organic Compound (VOC) Reduction(s) from I/M in 1999: Supplemental Guidance,'' memorandum from Gay MacGregor, Director, Regional and State Programs Division, and Sally Shaver, Director, Air Quality Strategies and Standards Division, Environmental Protection Agency, December 23, 1996. 35. ``15% Volatile Organic Compound (VOC) State Implementation Plan (SIP) Approvals and the `As Soon As Practicable' Test,'' memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, and Richard B. Ossias, Deputy Associate General Counsel, Division of Air and Radiation, Office of General Counsel, Environmental Protection Agency, February 12, 1997. Section 182(b)(1) requires that the ROP plan provide for a 15 percent reduction in base line emissions of VOCs, accounting for any growth in emissions after 1990. Section 182(b)(1) also allows an area to reduce its emissions by a percentage less than 15 percent provided that (1) the State demonstrates that the area requires new source review provisions to the same extent as required in Extreme Areas, except that the definition of a major source is lowered to sources with a potential to emit 5 tons per day of VOCs; (2) Reasonably Available Control Technology (RACT) is required for all existing major stationary sources; and (3) the plan includes all measures that can feasibly be implemented in the area, in light of technological achievability. To qualify for a percentage less than 15 percent, a State must demonstrate to the satisfaction of the EPA that the plan for the area includes the measures that are achieved in practice by sources in the same source category in nonattainment areas of the next higher category. The CAA also provides details on calculating the 15 percent emissions reduction. The CAA defines the base line emissions to be the total amount of actual VOC emissions from all anthropogenic sources in the area during the calendar year of 1990, excluding emissions that would be eliminated under any Federal Motor Vehicle Emissions Control Program (FMVECP) measures promulgated by EPA by January 1, 1990, and any Reid Vapor Pressure (RVP) regulations promulgated by EPA by November 15, 1990 or required to be promulgated under section 211 of the Act. This is further explained in EPA's General Preamble at 57 FR 13498. Section 182(b)(1) allows emissions reductions to be creditable except for the RVP and FMVECP programs mentioned above, any measures requiring corrections to motor vehicle inspection and maintenance programs required to be submitted immediately after enactment, and corrections to the States VOC RACT rules that were required by section 182(a)(2)(A) concerning RACT fix-up requirements. In general, emissions reductions are creditable toward the ROP emissions reduction to the extent they have actually occurred, as of 6 years after November 15, 1990, resulting from the implementation of measures required under the applicable implementation plan, rules promulgated by the Administrator, or a permit issued under Title V. In addition, section 172(C)(9) requires that the plan provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the applicable attainment date. Such measures shall be included [[Page 4191]] in the plan revision as contingency measures. III. Review of the 15% ROP Plan EPA compared the State's submittal for consistency with the requirements of the CAA and Agency policy and guidance. A summary of this analysis is provided below. A. Emission Inventory Sections 172(c)(3) and 182(a)(1) of the Act require that nonattainment plan provisions include a comprehensive, accurate, current inventory of actual emissions from all sources of relevant pollutants in the nonattainment area. This inventory provides an estimate of the amount of VOC, carbon monoxide and oxides of nitrogen produced by emissions sources such as automobiles, powerplants, and the use of consumer solvents in the household. On December 7, 1995, EPA approved Ohio's 1990 base year inventory for the Cincinnati-Hamilton area. For specific details of the final rulemaking, see 60 FR 62737. Therefore, the Cincinnati-Hamilton area has a comprehensive, accurate, current inventory of actual emissions from all sources of relevant pollutants in the nonattainment area. The 1990 base year emissions inventory required by section 182(a) was submitted to EPA at the same time that the 15 percent ROP plan was submitted for the Cincinnati-Hamilton area, in March of 1994. The base year emissions inventory was later modified by the State based on EPA comments. The modified inventory resulted in a higher level of estimated VOC emissions in 1990. The State based its 15% ROP plan on its emissions inventory that was submitted in March of 1994. The State will not be required to revise the 15% ROP plan at this time to account for a revised 1990 base year level of VOC emissions. If the State were required to go back and adjust its 15% ROP plan whenever something changes in the base year emissions inventory, it would result in a moving emissions reduction target that the State would have to try to meet by continually adjusting the control measures being relied on. This would result in a significant delay in developing 15% ROP plans. This is not a reasonable expectation for areas that are required to prepare the 15% ROP plans, and, accordingly, EPA is not requiring that the State change its 15% ROP plan at this time. B. Calculation of the Adjusted Base Year Inventory The Act specifies the emission baseline from which the 15 percent reduction is calculated. This baseline value is termed the 1990 adjusted base year inventory. Section 182(b)(1)(D) excludes from the baseline the emissions that would be eliminated by FMVECP regulations promulgated by January 1, 1990, and RVP regulations (55 FR 23666, June 11, 1990) promulgated by EPA prior to November 15, 1990, which limit the volatility of gasoline in nonattainment areas during the peak ozone season. The FMVECP provides requirements that automobile manufacturers must meet in building new automobiles. These requirements result in automobiles being manufactured today that produce less pollution compared to cars manufactured years ago. The adjusted base year inventory is determined by starting with the base year 1990 emission inventory (which is described under A. above), and then removing all biogenic emissions as well as emissions from sources located outside of the designated nonattainment boundary. The resulting inventory is termed the 1990 rate-of-progress base year inventory. The 1990 rate-of-progress base year inventory is then adjusted by removing the expected FMVECP and RVP reductions in order to derive the adjusted base year inventory. As specified by EPA's General Preamble, see 57 FR 13507, emission credits banked preenactment were not included in the emissions inventories. Ohio used EPA's MOBILE5a emission factor model to calculate its adjusted base year inventory. The documentation includes actual 1990 motor vehicle emissions using 1990 vehicle miles traveled (VMT) and MOBILE5a emission factors, and the adjusted emissions using 1990 VMT and the MOBILE5a emission factors in calendar year 1996 with the appropriate RVP for the nonattainment area as required by EPA. Provided in table 1 is a summary of the results of the emissions calculations used to determine the required 15 percent ROP plan reduction. Table 1.--Calculations Summary ------------------------------------------------------------------------ Rate of progress summary for the Ohio portion of the Cincinnati-Hamilton area ------------------------------------------------------------------------- VOC emissions Calculation of reduction needs by 1996 (tons/day) ------------------------------------------------------------------------ 1990 Cincinnati-Hamilton VOC Emissions............... 383.40 1990 Rate-of-Progress Base Year Emissions Inventory (Anthropogenic Only)................................ 273.51 Noncreditable Emission Reductions from FMVECP and RVP expected by 1996.................................... 58.57 1990 Adjusted Base Year Inventory (minus RVP and FMVECP)............................................. 214.94 15 percent of Adjusted Base Year Emissions........... 32.24 1990-1996 Noncreditable Emission Reductions from corrections to VOC RACT rules and the required Basic Automobile Inspection/Maintenance program........... 4.80 Total expected emissions reductions by 1996.......... 95.61 1996 Target Level of Emissions....................... 177.90 Estimated 1996 Emissions (Anthropogenic), including growth.............................................. 225.89 REQUIRED REDUCTIONS BY 1996 TO MEET THE 15 PERCENT RATE OF PROGRESS REQUIREMENTS....................... 47.99 Control Measures Used to Meet ROP VOC emissions (tons/day) Stage II Gasoline Vapor Recovery..................... 4.29 Enhanced Automobile Inspection and Maintenance (E- Check).............................................. 18.80 NESHAP for reducing coke by product Benzene emissions 20.06 Enforcement Cases.................................... 0.85 Architectural Coatings............................... 4.00 TOTAL EMISSIONS REDUCTIONS........................... 48.00 CONTINGENCY EMISSIONS REDUCTION...................... 7.01 ------------------------------------------------------------------------ [[Page 4192]] C. Required VOC Emission Reductions The 1990 adjusted base year inventory is multiplied by 0.15 to calculate 15% of the adjusted base year emissions. Therefore, to meet the rate-of-progress requirement, Ohio's plan must provide for at least a 32.24 tons per day (TPD) reduction in VOC emissions, in addition to the reduction needed to offset growth. Under section 182(b)(1)(D) of the Act, the following reductions are not creditable toward the rate-of-progress reductions: (1) FMVECP regulations promulgated by January 1, 1990; (2) RVP regulations promulgated by EPA before enactment of the 1990 Clean Air Act amendments; (3) certain corrections to VOC RACT rules (which require controls on certain industrial operations); and (4) corrections to basic automobile inspection and maintenance programs. Thus, the total expected reductions are comprised of the reductions necessary to meet the ROP requirement and the expected emissions reductions from the four noncreditable programs just described. The total expected emissions reductions are 95.61 TPD. The amount of reduction necessary to meet the contingency plan requirement is 3 percent of the adjusted base year inventory. Therefore, the adjusted base year inventory is multiplied by 0.03 to calculate the amount of required reduction for the contingency plan requirement. Therefore, to meet the contingency requirement, the State's plan must provide for at least a 6.45 TPD reduction in VOC emissions, in addition to the other emissions reduction measures. Ohio has documented the correct amount for the total expected reductions in the nonattainment area by showing each step used in the calculations. The 1996 target level of VOC emissions is the 1990 ROP base year inventory minus the total expected emission reductions. D. Projected Emission Inventory Emission projections for sources within an air basin are needed to determine if the rate-of-progress requirements in the Act are met and to determine if the area will attain the National Ambient Air Quality Standards (NAAQS) by the applicable attainment date. The purpose of projecting the emission inventories into the future is not solely to predict what is likely to happen without additional controls, but also to gauge the ability of the regulations in the control strategy to meet the ROP goals. Growth factors are not included in the calculations of the 1990 adjusted base year inventory or the 1996 target level of emissions. Growth factors are needed, however, to project emissions to 1996 for the ROP demonstration as part of the ROP plan. The State calculated the point source emissions growth based on earnings data obtained from the Bureau of Economic Analysis. The point source growth factors ranged from a 4 percent decrease to a 5 percent increase per year. Area source emissions were projected based on population, industrial employment, and state gasoline consumption growth. The annual population growth factors for the four Ohio counties range from 0.1 percent to 1.6 percent. Industrial employment is projected to decrease by about 0.1 percent per year. The State gasoline consumption is estimated to decrease by about 8 percent from 1990 to 1996. The VMT were projected to grow from 25,671,581 miles per day in 1990 to 27,586,074 miles per day in 1996. This is a 7.46 percent increase in VMT over 6 years. These are acceptable growth estimates. Total estimated 1996 VOC emissions including growth was calculated as 225.89 TPD. Mobile source emissions account for 80.32 TPD of the total emissions. E. Required Emissions Reduction The required VOC emissions reduction to meet the 15% ROP requirements is 47.99 TPD. This is the difference between the estimated 1996 emissions with growth and no additional controls and the 1996 target level of emissions. F. Control Measures The revision submitted by the State lists a series of control measures projected to achieve a 48.0 TPD reduction in VOC emissions. See the table below for a list of the measures and their status. The table does not include any Federal measures used to reduce the mobile source emissions. These reductions are already accounted for in the MOBILE5a emissions model that in combination with the projected VMT for the area was used to estimate the future emissions for the area. Enhanced I/M Program Of the 15% ROP plans originally submitted to EPA, most contain enhanced I/M programs because they achieve more VOC emission reductions than most, if not all, other control strategies. However, because most States experienced substantial difficulties implementing enhanced I/M programs, only a few States are currently actually testing cars using the original enhanced I/M protocol. On September 18, 1995 (60 FR 48029), EPA finalized revisions to its enhanced I/M rule allowing States significant flexibility in designing I/M programs appropriate for their needs. Further, Congress enacted the National Highway Systems Designation Act of 1995 (NHSDA), which provides States with more flexibility in determining the design of enhanced I/M programs. The substantial amount of time needed by States to re-design enhanced I/M programs in accordance with the final enhanced I/M rules and/or the guidance contained within the NHSDA, to secure State legislative approval when necessary, and set up the infrastructure to perform the testing program has precluded States from obtaining emission reductions from enhanced I/M by November 15, 1996. Given the heavy reliance by many States on enhanced I/M programs to help satisfy 15% ROP plan requirements, and the recent NHSDA and regulatory changes regarding enhanced I/M programs, EPA has recognized that it is not possible for many States to achieve the portion of the 15% ROP reductions that are attributed to enhanced I/M by November 15, 1996. Under these circumstances, disapproval of the 15% ROP plan State Implementation Plans (SIPs) would serve no purpose. Consequently, under certain circumstances, EPA will allow States that pursue re-design of enhanced I/M programs to receive emission reduction credit from these programs in their 15% ROP plans, even though the emission reductions from the I/M program will occur after November 15, 1996. Specifically, the EPA will approve 15% ROP SIPs if the emission reductions from the revised, enhanced I/M programs, as well as from the other 15% ROP plan measures, will achieve the 15% level as soon after November 15, 1996, as practicable. To make this ``as soon as practicable'' determination, the EPA must determine that the 15% ROP plan contains all VOC control strategies that are practicable for the nonattainment area in question and that meaningfully accelerate the date by which the 15% level is achieved. The EPA does not believe that measures meaningfully accelerate the 15% date if they provide only a relatively small amount of reductions. The Enhanced I/M program (E-Check) began operation in the Cincinnati-Hamilton area in January 1996. The program is a biennial testing program which requires two years of testing to complete one test cycle. The program will not achieve its full emissions reduction potential until the cycle is [[Page 4193]] complete. The 15% ROP plan anticipated that the program would start up in January 1995, but the program actually started in January 1996. The emissions reduction benefits of E-Check have been delayed beyond November 15, 1996. Ohio implemented E-Check in the Cincinnati area in January 1996. In August 1996 vehicle testing was suspended due to technical and operational problems. On January 5, 1998, OEPA resumed the E-Check program in the Cincinnati area. EPA performed a modeling analysis to determine if the emission reduction credits claimed in the 15% plan from enhanced I/M would be achieved by November 1999.1 EPA modeled the emission reductions from the program, with an enhanced I/M start date of January 1996, out to November 1999, as provided for in EPA policy. EPA subtracted emissions for the period of time the testing program was suspended (from August 1996 to December 1997). Other program characteristics modeled included actual I/M emission cutpoints in place at the time of evaluation, and projected 1996 vehicle miles traveled information for the Cincinnati area. EPA's analysis showed that the E-Check program would provide the necessary VOC emissions reductions for the 15% plan by November 1999. --------------------------------------------------------------------------- \1\ This analysis was based on the methodology specified in EPA's policy memoranda, ``Date by Which States Need to Achieve All the Reductions Needed for the 15% Plan from I/M and Guidance for Recalculation,'' August 13, 1996, and ``Modeling 15% VOC Reduction(s) from I/M in 1999--Supplemental Guidance,'' December 23, 1996. EPA policy provides that credit in 15% plans can be claimed from the I/M start date to November 1999. --------------------------------------------------------------------------- To determine whether there are other available potential control measures which can meaningfully accelerate the date by which 15% emission reduction in the Cincinnati-Hamilton area can be achieved, EPA compared the area's 15% Rate of Progress (ROP) and contingency plans with control measures included in 15% ROP plans nation-wide, which are listed in EPA's report, ``Sample City Analysis: Comparison of Enhanced I/M Reductions Versus Other 15 Percent ROP Plan Measures,'' December 12, 1996, referenced in EPA's policy document ``15% VOC SIP Approvals and the `As Soon As Practicable' Test,'' February 12, 1997. The report listed several possible control measures which were not included in the Cincinnati-Hamilton 15% plan. Some of these control measures have the potential to achieve significant emission reductions. These control measures include the federal reformulated gasoline program, federal Transfer, Storage, and Disposal Facility (TSDF) regulations, and federal consumer/commercial products regulations. The federal reformulated gasoline program (RFG) (40 CFR part 80, subpart D) requires that gasoline providers in certain areas sell only gasoline which meets certain blending requirements to reduce pollution. Areas not already subject to these requirements, such as the Cincinnati-Hamilton area, can, under section 211(k)(6) of the Act, ``opt-in'' to the program, upon request to EPA by the Governor. In the Cincinnati area there is not enough lead time to get a fuels program selected, approved, and in place for this summer's ozone season and by the next ozone season (the summer of 1999) the E-Check program will be about three quarters of the way through testing. In Phoenix, Arizona, for example, the Governor established an Air Quality Strategies Task Force in May 1996 to develop a report describing ozone reduction measures. In January 1997 the Governor requested to opt into the Reformulated Gasoline program. USEPA approved the program on June 3, 1997, with an effective date of August 4, 1997 for retailers and wholesale purchase-consumers. It took about 15 months, on an extremely expedited schedule from the time the task force was formed, for the program to become effective in the Phoenix area. In addition, phase II RFG will be required in nonattainment areas using RFG in the year 2000, instead of the current phase I RFG used in certain nonattainment areas across the country. Given the short lead time, the start up of the E-Check program, and the national change over to phase II of RFG in areas using RFG, it is not practical to implement phase I RFG in place of E-Check in an effort to achieve the 15% ROP reduction requirement as soon as practicable. The Greater Cincinnati area will experience immediate benefits from the E-Check program, and these benefits will increase as more cars are tested and repaired. A significant portion of the automobiles will be tested and repaired by this summer in time for this year's ozone season. These benefits will help the area to make progress toward attaining the ozone standard as soon as practicable. Therefore, for all of these reasons, USEPA believes the reformulated gasoline program could not be implemented in the Ohio portion of the Cincinnati-Hamilton area significantly faster than E-check. The federal TSDF regulations, promulgated pursuant to the Resource Conservation and Recovery Act (RCRA) as amended, require air pollution controls on certain facilities which manage hazardous wastes containing VOC and hazardous air pollutants. These regulations were promulgated in two phases, one on June 21, 1990 (55 FR 25454), and the other on December 6, 1994 (59 FR 62896). The final compliance date for the second phase of control was December 8, 1997. These Federal regulations are expected to provide significant emissions reduction in the Cincinnati area and will assist the area in making progress towards attainment of the ozone standard. The February 12 EPA memorandum from Seitz and Ossias provides a report listing a cutback asphalt ban and open burning ban as measures the State could potentially adopt to achieve emission reductions. However, the report overestimates the emission reduction potential of a cutback asphalt ban because the use of cutback asphalt is prohibited in Ohio by OAC 3745-21-09(N). The State of Ohio also has an open burning ban that has been in place for a number of years. As for other control measures, such as regulating industrial adhesives reformulation and/or solvent cleaning substitution/equipment, these measures are not expected to achieve reductions significantly faster than E-check, because it would take Ohio one to two years to develop, adopt, and implement these measures. It is not reasonable to implement other controls to make up for the delay in implementing the E-check program and the emissions reduction is expected to be met by 1999 with the help of Federal emissions control programs. Federal Architectural Coatings Rule The State estimated that the anticipated Federal rule for architectural coatings would provide for a 25 percent emission reduction in that category. An EPA policy memorandum issued after the State had submitted its plan to EPA stated that only 20 percent is allowed. In addition there have been delays in proposing the rule, and the compliance date is not expected to occur until 1998. This change in policy would revise the emission reduction estimated downward by 0.8 TPD. The State did not take credit in its plan for the Federal Nonroad engine emissions standards rule. This rule sets standards for new engines and will reduce emissions in the future. In addition, the State did not take credit for the automobile refinishing rule which is estimated to provide a 1.6 TPD emissions reduction. This assumes a 30 percent reduction in VOC emissions from the national automobile refinishing rule EPA is developing. These factors will help to offset the change in [[Page 4194]] emissions reduction credit for architectural coatings. The State's plan provides a table of cost effectiveness estimates for the various control measures considered by the State for its plan. Table 2.--Status of Emissions Control Measures in the Cincinnati- Hamilton Area 15 Percent ROP Plan ------------------------------------------------------------------------ Control measure Status of rules ------------------------------------------------------------------------ Stage II Vapor Recovery...... Approved on October 20, 1994, at 59 FR 52911. Enhanced Automobile Approved on April 4, 1995, at 60 FR Inspection and Maintenance. 16989. NESHAP for reducing coke by Federal Regulation (see 40 CFR part 61). product Benzene emissions. Enforcement Cases............ Sources brought in to compliance since 1990 with preexisting rule. Architectural Coatings....... Federal Regulation for which Ohio may take credit (see memorandum dated March 7, 1996 from John Seitz, Director, Office of Air Quality Planning and Standards to Regional Division Directors). CONTINGENCY EMISSIONS Lower RVP rule to be addressed in REDUCTION. subsequent rulemaking action. ------------------------------------------------------------------------ G. Rate-of-Progress and Contingency Plan Demonstrations Overall, Ohio's ROP plan provides for a 48.0 TPD emissions reduction, which meets the ROP requirements. The contingency plan provides for the necessary 3 percent emission reduction and both the contingency measure and the contingency plan will be addressed in a subsequent rulemaking action. EPA can address the contingency plan in a subsequent rulemaking action because it is not a prerequisite to approving the 15% ROP plan. H. Enforceability Each rule developed by the State for the Ohio portion of the Cincinnati-Hamilton area 15% ROP plan has been independently reviewed and approved by EPA as part of the State's SIP. Part of this review process includes a review of the enforceability of the rule. The remaining rules that the State is taking credit for are Federal rules or are expected to soon be issued as Federal rules. IV. Final Rulemaking Action EPA is approving the 15% rate of progress plan for the Ohio portion of the Cincinnati-Hamilton ozone nonattainment area. The plan will provide for a 15% emissions reduction by 1999, which is as soon as practicable. For the purposes of transportation conformity determinations, final approval of this ROP plan revision also approves the 1996 mobile source emission budget of 57.23 TPD of VOC for the Ohio portion of the Cincinnati-Hamilton area. This budget is the projected 1996 emissions including growth and the reductions expected from E-Check and stage II gasoline vapor recovery. For years later than 1996, conformity determinations addressing VOCs must demonstrate consistency with this plan revision's motor vehicle emissions budget. Final approval of this ROP plan revision does not eliminate the need for a build/no-build test for oxides of nitrogen. Because EPA considers this action noncontroversial and routine, we are approving it without prior proposal. This action will become effective on March 30, 1998. However, if EPA receives significant adverse comments on the approval of the rate-of-progress plan in writing by February 27, 1998, which have not already been addressed by the State or EPA, EPA will withdraw the direct final approval of the plan and address the comments received in a new final rule. V. Miscellaneous A. Applicability to Future SIP Decisions Nothing in this action should be construed as permitting, allowing or establishing a precedent for any future request for revision to any SIP. The EPA shall consider each request for revision to the SIP in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements. B. Ohio Audit Privilege and Immunity Law Nothing in this action should be construed as making any determination or expressing any position regarding Ohio's audit privilege and immunity law (sections 3745.70-3745.73 of the Ohio Revised Code). EPA will be reviewing the effect of the Ohio audit privilege and immunity law on various Ohio environmental programs, including those under the Clean Air Act, and taking appropriate action(s), if any, after thorough analysis and opportunity for Ohio to state and explain its views and positions on the issues raised by the law. The action taken herein does not express or imply any viewpoint on the question of whether there are legal deficiencies in this or any Ohio CAA program resulting from the effect of the audit privilege and immunity law. As a consequence of the review process, the regulations subject to the action taken herein may be disapproved, federal approval for the Clean Air Act program under which they are implemented may be withdrawn, or other appropriate action may be taken, as necessary. C. Executive Order 12866 The Office of Management and Budget has exempted this regulatory action from Executive Order 12866 review. D. Regulatory Flexibility Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities (5 U.S.C. 603 and 604). Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. SIP approvals under section 110 and subchapter I, part D of the CAA do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, the Administrator certifies that this action does not have a significant impact on any small entities affected. Moreover, due to the nature of the Federal- State relationship under the CAA, preparation of the regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of the State action. The Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976). E. Unfunded Mandates Under section 202 of the Unfunded Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA must [[Page 4195]] undertake various actions in association with any proposed or final rule that includes a Federal mandate that may result in estimated costs to state, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. This Federal action approves pre-existing requirements under state or local law, and imposes no new Federal requirements. Accordingly, no additional costs to state, local, or tribal governments, or the private sector, result from this action. F. Submission to Congress and the General Accounting Office Under section 801(a)(1)(A) of the Administrative Procedure Act (APA) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of the rule in today's Federal Register. This rule is not a ``major rule'' as defined by section 804(2) of the APA as amended. G. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeal for the appropriate circuit by March 30, 1998. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)). VII. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Hydrocarbons, Intergovernmental relations, Ozone. Dated: January 9, 1998. Michelle D. Jordan, Acting Regional Administrator. For the reasons stated in the preamble, part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52--[AMENDED] 1. The authority citation for Part 52 continues to read as follows: Authority: 42 U.S.C. 7401-7671q. 2. Section 52.1885 is amended by adding paragraph (z) to read as follows: Sec. 52.1885 Control Strategy: Ozone. * * * * * (z) The 15 percent rate-of-progress requirement of section 182(b) of the Clean Air Act, as amended in 1990, is satisfied for the Ohio portion of the Cincinnati-Hamilton ozone nonattainment area. [FR Doc. 98-2081 Filed 1-27-98; 8:45 am] BILLING CODE 6560-50-P