

[Federal Register: August 9, 2007 (Volume 72, Number 153)]
[Rules and Regulations]               
[Page 44784-44787]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au07-19]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2007-0001; FRL-8451-9]

 
Determination of Attainment, Approval and Promulgation of 
Implementation Plans and Designation of Areas for Air Quality Planning 
Purposes; Ohio; Redesignation of the Toledo Area 8-Hour Ozone 
Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Ohio Environmental Protection Agency (Ohio EPA) submitted 
a request on December 22, 2006, and supplemented it on March 9, 2007, 
for redesignation of the Toledo, Ohio area (Lucas and Wood Counties) to 
attainment for the 8-hour ozone standard. The submission also includes 
a maintenance plan that provides for continued attainment through 2018. 
On June 12, 2007, EPA proposed to approve this submission. EPA provided 
a 30-day review and comment period. One comment, from BP Products, 
North America Inc., was received supporting EPA's proposal. Today, EPA 
is approving Ohio's request and corresponding State Implementation Plan 
(SIP) revision. In so doing, EPA is making a determination that the 
Toledo, Ohio area has attained the 8-hour ozone National Ambient Air 
Quality Standard (NAAQS). This determination is based on three years of 
complete, quality-assured ambient air quality monitoring data for the 
2004-2006 ozone seasons that demonstrate that the 8-hour ozone NAAQS 
has been attained in the area. Preliminary 2007 air quality data show 
that the area continues to attain the 8-hour ozone standard. EPA is 
approving the maintenance plan for this area and is redesignating the 
area to attainment. Finally, EPA is approving, for purposes of 
transportation conformity, the motor vehicle emission budgets (MVEBs) 
for the years 2009 and 2018.

DATES: This final rule is effective on August 9, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2007-0001. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, some 

information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://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 Michael

[[Page 44785]]

G. Leslie, Environmental Engineer, at (312) 353-6680 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, 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) 353-6680, 
leslie.michael@epa.gov.


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

Table of Contents

I. What Is the Background for This Rule?
II. What Comments Did We Receive on the Proposed Action?
III. What Are Our Final Actions?
IV. Statutory and Executive Order Review

I. What Is the Background for This Rule?

    The background for today's action is discussed in detail in EPA's 
June 12, 2007, proposal (72 FR 32246). In that rulemaking, we noted 
that, under EPA regulations at 40 CFR part 50, the 8-hour ozone 
standard is attained when the 3-year average of the annual fourth-
highest daily maximum 8-hour average ozone concentrations is less than 
or equal to 0.08 ppm. (See 69 FR 23857 (April 30, 2004) for further 
information). 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, as determined 
in accordance with Appendix I of part 50.
    Under the CAA, EPA may redesignate nonattainment areas to 
attainment if sufficient complete, quality-assured data are available 
to determine that the area has attained the standard and that it meets 
the other CAA redesignation requirements in section 107(d)(3)(E).
    The Ohio EPA submitted a request on December 22, 2006, and 
supplemented it on March 9, 2007, for redesignation of the Toledo, Ohio 
area, which includes Lucas and Wood Counties, to attainment for the 8-
hour ozone standard. The request included three years of complete, 
quality-assured data for the period of 2004 through 2006, indicating 
that the 8-hour NAAQS for ozone had been achieved. Preliminary 2007 air 
quality data show that the area continues to attain the 8-hour ozone 
standard. The data satisfy the applicable CAA requirements discussed 
above. The June 12, 2007, proposed rule provides a detailed discussion 
of how Ohio met these requirements.
    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air 
Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). On June 
8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No. 
04-1201, in response to several petitions for rehearing, the D.C. 
Circuit clarified that the Phase 1 Rule was vacated only with regard to 
those parts of the rule that had been successfully challenged. 
Therefore, the Phase 1 Rule 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, remain effective. The June 8 decision 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 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, 
contingent on 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 decision 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.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation, and do not 
prevent EPA from 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 Act and longstanding policies regarding redesignation 
requests.
    With respect to the requirement for transportation conformity under 
the 1-hour standard, the Court in its June 8 decision clarified that 
for those areas with 1-hour motor vehicle emissions budgets in their 
maintenance plans, anti-backsliding requires only 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.

II. What Comments Did We Receive on the Proposed Action?

    EPA provided a 30-day review and comment period. One comment, from 
BP Products, North America Inc., was received supporting EPA's 
proposal.

III. What Are Our Final Actions?

    EPA is taking several related actions for the Toledo, Ohio area. 
First, EPA is making a determination that the Toledo, Ohio area has 
attained the 8-hour ozone standard. EPA is approving Ohio's maintenance 
plan SIP revision for the Toledo, Ohio area (such approval being one of 
the CAA criteria for redesignation to attainment status). The 
maintenance plan is designed to keep the Toledo, Ohio area in 
attainment of the 8-hour ozone NAAQS through 2018 by ensuring that the 
2018 Volatile Organic Compounds (VOC) and Oxides of Nitrogen 
(NOX) emissions are less than 2004 emissions, the attainment 
year. EPA is also approving the State's request to change the legal 
designation of the Toledo, Ohio area from nonattainment to attainment 
of the 8-hour ozone NAAQS. Finally, as supported by and consistent with 
the ozone maintenance plan, EPA is approving the 2009 and the 2018 VOC 
and NOX MVEBs for the Toledo, Ohio area. The 2009 MVEBs are 
18.99 tons/day of VOC and 33.75 tons/day for NOX. The 2018 
MVEBs are 11.20 tons/day of VOCs and 14.11 tons/day for NOX.
    In accordance with 5 U.S.C. 553(d), EPA finds that there is good 
cause for these actions to become effective immediately upon 
publication. This is because a delayed effective date is unnecessary 
due to the nature of a redesignation to attainment, which relieves the 
area from certain CAA requirements that would otherwise

[[Page 44786]]

apply to it. The immediate effective date for this action is authorized 
under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions 
may become effective less than 30 days after publication if the rule 
``grants or recognizes an exemption or relieves a restriction,'' and 
section 553(d)(3) which allows an effective date less than 30 days 
after publication ``as otherwise provided by the agency for good cause 
found and published with the rule.'' The purpose of the 30-day waiting 
period prescribed in 553(d) is to give affected parties a reasonable 
time to adjust their behavior and prepare before the final rule takes 
effect. Today's rule, however, does not create any new regulatory 
requirements such that affected parties would need time to prepare 
before the rule takes effect. Rather, today's rule relieves the State 
of planning requirements for these 8-hour ozone nonattainment areas. 
For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for 
these actions to become effective on the date of publication of these 
actions.

IV. Statutory and Executive Order Review

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review by the Office of Management and Budget.

Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

    This action merely approves state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Redesignation of an area to attainment under 
section 107(d)(3)(E) of the Clean Air Act does not impose any new 
requirements on small entities. Redesignation is an action that affects 
the status of a geographical area and does not impose any new 
regulatory requirements on sources. Accordingly, the Administrator 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). Redesignation is an action that merely affects the status of 
a geographical area, and does not impose any new requirements on 
sources, or allows a state to avoid adopting or implementing additional 
requirements, and does not alter the relationship or distribution of 
power and responsibilities established in the Clean Air Act.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.

National Technology Transfer Advancement Act

    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Redesignation is an 
action that affects the status of a geographical area but does not 
impose any new requirements on sources. Thus, the requirements of 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under Section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 9, 2007. 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 force its requirements. (See Section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Volatile 
organic compounds.

[[Page 44787]]

40 CFR Part 81

    Air pollution control, Environmental protection, National parks, 
Wilderness areas.

    Dated: July 31, 2007.
Steve Rothblatt,
Acting Regional Administrator, Region 5.

0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart 1885--Ohio

0
2. Section 52.1885 is amended by adding paragraph (ff)(6) to read as 
follows:


Sec.  52.1885  Control strategy: Ozone.

* * * * *
    (ff) * * *
    (6) On December 22, 2006, and supplemented on March 9, 2007, the 
State of Ohio submitted a redesignation request and maintenance plan 
for the Toledo area, including Lucas and Wood Counties. The maintenance 
plan for this area establishes motor vehicle emission budgets (MVEB) 
for 2009 and 2018. The 2009 MVEBs are 18.99 tons/day of Volatile 
Organic Compounds (VOC) and 33.75 tons/day for Oxides of Nitrogen 
(NOX). The 2018 MVEBs are 11.20 tons/day of VOCs and 14.11 
tons/day for NOX.

PART 81--[AMENDED]

0
3. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

0
4. Section 81.336 is amended by revising the entry for Toledo, Ohio 
area: Lucas and Wood Counties in the table entitled ``Ohio--Ozone (8-
Hour Standard)'' to read as follows:


Sec.  81.336  Ohio.

* * * * *

                                          Ohio--Ozone (8-Hour Standard)
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                                               Designation \a\                         Classification
         Designated area          ------------------------------------------------------------------------------
                                     Date \1\              Type              Date \1\             Type
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                                                  * * * * * * *
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Toledo Area:
    Lucas County.................     08/09/07  Attainment                 ...........  ........................
    Wood County

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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *
 [FR Doc. E7-15474 Filed 8-8-07; 8:45 am]

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