[Federal Register Volume 87, Number 111 (Thursday, June 9, 2022)]
[Rules and Regulations]
[Pages 35104-35112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12318]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2021-0949; FRL-9532-02-R5]


Air Plan Approval; Ohio; Redesignation of the Ohio Portion of the 
Cincinnati, Ohio-Kentucky Area to Attainment of the 2015 Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) finds that the 
Cincinnati, Ohio-Kentucky area (Area) is attaining the 2015 ozone 
National Ambient Air Quality Standard (NAAQS or standard) and is acting 
in accordance with a request from the Ohio Environmental Protection 
Agency (OEPA) to redesignate the Ohio portion of the Area to attainment 
for the 2015 ozone NAAQS because the request meets the statutory 
requirements for redesignation under the Clean Air Act (CAA). The Area 
includes Butler, Clermont, Hamilton, and Warren Counties in Ohio and 
parts of Boone, Campbell, and Kenton Counties in Kentucky. OEPA 
submitted the request for redesignation for the Ohio portion of the 
area (Butler, Clermont, Hamilton, and Warren Counties) on December 21, 
2021. EPA is also approving, as a revision to the Ohio State 
Implementation Plan (SIP), the state's plan for maintaining the 2015 
ozone standard through 2035 in the Area. Finally, EPA is approving the 
state's 2026 and 2035 volatile organic compound (VOC) and oxides of 
nitrogen (NOX) motor vehicle emission budgets for the Ohio 
portion of the Area for transportation conformity purposes. EPA 
received comments on its February 11, 2022, proposed rule. After 
considering comments received, EPA is finalizing this action as 
proposed.

DATES: This final rule is effective on June 9, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2021-0949. All documents in the docket are listed on 
the www.regulations.gov website. 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 
through www.regulations.gov or 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 and facility 
closures due to COVID-19. We recommend that you telephone Olivia 
Davidson, Environmental Scientist, at (312) 886-0266 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Olivia Davidson, Environmental 
Scientist, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0266, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. Background Information

    This rule takes final action on the December 21, 2021, submission 
from OEPA requesting redesignation of the Ohio portion of the 
Cincinnati area to attainment for the 2015 ozone standard. The 
background for this action is discussed in detail in EPA's Notice of 
Proposed Rulemaking (Proposal), dated February 11, 2022 (87 FR 7978). 
In the Proposal, we noted that, under EPA regulations at 40 CFR part 
50, the 2015 ozone NAAQS is attained in an area when the 3-year average 
of the annual fourth highest daily maximum 8-hour average ozone 
concentration is equal to or less than 0.070 parts per million, when 
truncated after the third decimal place, at all of the ozone monitoring

[[Page 35105]]

sites in the area. (See 40 CFR 50.19 and appendix U 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 if it meets the other CAA 
redesignation requirements in section 107(d)(3)(E). The Proposal 
provides a detailed discussion of how Ohio has met these CAA 
requirements.
    As discussed in the Proposal, quality-assured and certified 
monitoring data for 2019-2021 show that the Area has attained the 2015 
ozone standard. In the maintenance plan submitted for the Area, Ohio 
has demonstrated that the ozone standard will be maintained in the Area 
through 2035. Finally, Ohio has adopted 2026 and 2035 VOC and 
NOX motor vehicle emission budgets for the Area that are 
supported by Ohio's maintenance demonstration, which EPA is also 
approving in this action.

II. Public Comments

    EPA provided a 30-day review and comment period for this action in 
the Proposal. The comment period ended on March 14, 2022. EPA received 
adverse comments, which are summarized and addressed below.
    Comment: The commenter contends that EPA has not adequately 
demonstrated that the observed decrease in emissions is attributable to 
enforceable emission reductions. The commenter argues that some of the 
emission reduction measures that EPA relies on were in place well 
before 2019, i.e., that the measures themselves were insufficient to 
get the area to attainment because even after implementation of those 
measures in 2014 and 2017, the area continued to violate the NAAQS, and 
did not come into attainment until the 2019-2021 time period. The 
commenter cites the Cross State Air Pollution Rule (CSAPR) Update, Tier 
3 Emission Standards, Category 3 Marine Diesel Engine Standards, and, 
more generally, several mobile source control measures that were 
``fully implemented'' prior to 2014.
    Response: EPA disagrees with the commenter's contention that EPA 
has not adequately demonstrated that the observed decrease in emissions 
is attributable to permanent and enforceable reductions in emissions, 
per CAA section 107(d)(3)(E)(iii).\1\ As stated in EPA's long-standing 
guidance on redesignations (see ``Procedures for Processing Requests to 
Redesignate Areas to Attainment,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division, September 4, 1992), we 
interpret this provision to mean that ``[a]ttainment resulting from 
temporary reductions in emission rates (e.g., reduced production or 
shutdown due to temporary adverse economic conditions) or unusually 
favorable meteorology would not qualify as an air quality improvement 
due to permanent and enforceable emission reductions.'' Calcagni Memo 
at 4. EPA's guidance instructs that the showing under CAA section 
107(d)(3)(E)(iii) ``should estimate the percent reduction . . . 
achieved from Federal measures . . . as well as control measures that 
have been adopted and implemented by the State,'' and that overall, we 
must be able to ``reasonably attribute the improvement in air quality 
to emission reductions which are permanent and enforceable.'' Id. EPA's 
correlation of improvements in air quality with an identification of 
permanent and enforceable state and Federal measures, along with the 
estimated reductions in precursor emissions that cause ozone pollution 
which are attributable to each measure over the relevant time period, 
has long been one methodology to demonstrate compliance with CAA 
section 107(d)(3)(E)(iii) and has been upheld in court. See Sierra Club 
v. EPA, 774 F.3d 383, 393-95 (7th Cir. 2014). As noted by the court in 
Sierra Club, ``the CAA does not require EPA to prove causation to an 
absolute certainty. Rather in accord with its own internal guidance . . 
. EPA had to `reasonably attribute' the drops in ozone to permanent and 
enforceable measures. Only if EPA's path cannot `be reasonably 
discerned,' or if EPA relied on factors `that Congress did not intend 
it to consider' or `fail[ed] to consider an important aspect of the 
problem,' will we conclude that EPA acted arbitrarily or 
capriciously.'' Id. at 396.
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    \1\ The commenter states that it does not support EPA's proposal 
to redesignate the Area because OEPA has failed to demonstrate that 
CAA section 107(d)(3)(E)(iii) is met. However, as that statutory 
provision clearly states, the Administrator may not promulgate a 
redesignation of a nonattainment area unless ``the Administrator 
determines that the improvement in air quality is due to permanent 
and enforceable reductions in emissions resulting from 
implementation of the applicable implementation plan and applicable 
Federal air pollutant control regulations and other permanent and 
enforceable reductions.'' On its face, the statute permits EPA to 
not only consider Ohio's submittal and demonstration, but also any 
other information EPA has regarding emission reductions in the area.
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    The commenter is correct that some of the measures cited by EPA as 
contributing to the area's attainment, including the CSAPR Update, Tier 
3 Emissions Standards, and Category 3 Marine Diesel Engine Standards, 
were in place prior the area's attainment. However, that does not mean 
that these control measures did not contribute to and were not 
reasonably attributable to the area's attainment. Control measures do 
not achieve all emission reductions in the first year that those 
measures are implemented. State and Federal emission reduction 
requirements continue to apply well past the initial implementation 
year and continue to achieve reductions that contribute to improving, 
and in this case, attaining, air quality. Some mobile source measures 
in particular will continue to achieve cumulative emission reductions 
well past the initial implementation date because they achieve 
additional reductions with fleet turnover, i.e., as older on-road 
vehicles and non-road engines are replaced with newer ones that meet 
more stringent emission standards.
    On September 7, 2016, EPA finalized an update to CSAPR requiring 
further reductions in NOX emissions from electric generating 
units (EGUs) beginning in May 2017. This final rule was projected to 
result in a 20% reduction in ozone season NOX emissions from 
EGUs in the eastern United States, a reduction of 80,000 tons in 2017 
compared to 2015 levels, with continued EGU reductions each year. 
Emissions of NOX from EGUs in Ohio have reflected the 
continued emission reductions measures, as NOX emissions 
from EGUs in Ohio have been reduced by 29 percent statewide from 2016 
through 2020. The continued application of these reductions in Ohio and 
upwind states was a key contributor to improved and attaining air 
quality in Cincinnati. In addition, EPA finalized the revised CSAPR 
Update on April 30, 2021 (86 FR 23054), and that rule required 
additional reductions of almost 10,000 tons of ozone season 
NOX in Ohio,\2\ equivalent to a 50% reduction in EGU 
emissions, effective by the 2021 ozone season, i.e., one of the years 
in the design value period that shows attainment.
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    \2\ See OEPA's Redesignation Request and Maintenance Plan for 
the Ohio Portion of the Cincinnati, OH-KY 2015 Ozone Nonattainment 
Area, contained in docket EPA-OAR-R05-2021-0949 for the proposed 
rule that published February 11, 2022 (87 FR 7978) approving the 
redesignation request, page 43.
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    With respect to the mobile sources measures cited by the commenter, 
the commenter incorrectly states that the Tier 3 Emission Standards for 
Vehicles were fully implemented by 2017. In fact, the standards, which 
are expected to reduce NOX and VOC emissions by 80%, first 
took effect in 2017, and will continue to be phased in through 2025, 
after which additional reductions will continue to be achieved through 
fleet

[[Page 35106]]

turnover. Similarly, the Category 3 Marine Diesel Engine Standards, 
which will reduce NOX emissions from new engines by 80%, 
began in 2016, and emission reductions will continue to occur at least 
through 2030 as older engines are replaced. These standards, in 
conjunction with rules reducing emissions from international and in-use 
vessels covered by MARPOL Annex VI, are estimated to result in 
NOX emissions reductions in the United States of 1.2 million 
tons per year (tpy). Reductions from both Tier 3 Emissions Standards 
and Category 3 Marine Diesel Engine Standards first took effect between 
the nonattainment period and the attainment period but have been 
achieving emission reductions every year since they were first 
implemented. EPA reasonably attributed the improved air quality in the 
Cincinnati area to these significant control measures, even if those 
measures did not immediately and independently cause the Area to attain 
the 2015 ozone NAAQS.
    In addition, there are numerous other permanent and enforceable 
control measures that resulted in emission reductions that contributed 
to and are reasonably attributable for the Area's attainment. These 
include the New Source Performance Standards (NSPS) for Residential 
Wood Heaters, of which Phase 2 began in 2020 and is projected by EPA to 
achieve 9,265 tons of VOC reductions annually when fully implemented; 
the Control of Hazardous Air Pollutants from Mobile Sources, which EPA 
estimates will reduce VOC emissions by over 1 million tons by 2030; and 
the Emissions Standards for Locomotives and Marine Compression-Ignition 
Engines, first promulgated in 2008, which EPA projected to reduce 
NOX emissions by 800,000 tons in 2030 which will continue to 
increase in later years as fleet turnover is completed.
    None of these control programs which rely upon the replacement of 
older, more polluting technology with newer technology that meets more 
stringent emissions standards can be considered fully implemented upon 
initial adoption of the emission standard. The rules are considered 
fully implemented when the fleet has turned over and the new technology 
is in widespread use. Additional reductions from these programs 
continue to be generated throughout the implementation period as newer 
units replace older, more polluting units.
    In reviewing Ohio's request, EPA applied the same methodology as it 
has for the many redesignated areas across the country over the last 
three decades. The Proposal discussed at length the various state and 
Federal promulgated measures and the estimated precursor emission 
reductions impacts attributable to each of those measures. The 
commenter does not dispute the permanence or enforceability of any of 
the measures listed by EPA, nor does the commenter refute that the 
measures obtained the estimated reductions cited by EPA.
    Comment: The commenter argues that EPA's determination that 
improved air quality during 2019-2021 was caused by permanent and 
enforceable emissions reductions program is unlawful, arbitrary, and 
capricious because EPA did not evaluate whether decreased economic 
activity from the COVID-19 pandemic caused improved air quality in the 
Area. The commenter contends that EPA should not rely solely on data 
from 2019, 2020 and 2021 when the Area came into attainment, due to 
COVID-19 effects on power plant emissions and automobile travel being 
the likely cause of the reductions rather than the cited enforceable 
reduction measures. Further, the commenter argues that the fact that 
EPA considered the impact of the pandemic in the Agency's proposal to 
redesignate Detroit, Michigan demonstrates that it was unreasonable for 
EPA to ignore the potential impact of the pandemic on Cincinnati's 
attainment.
    Response: EPA does not agree that our determination that the Area's 
attainment is due to permanent and enforceable reductions is arbitrary 
and capricious. As previously discussed, we think that OEPA's 
submission and the rationale provided in EPA's Proposal establishes 
that the Area's attainment is due to the cited permanent and 
enforceable reductions. However, in response to this comment, EPA has 
performed an additional analysis focused on emission trends in point 
sources and mobile sources in the Cincinnati area. That analysis, 
discussed in detail below, confirms our determination.
    The commenter highlighted nationally decreased power plant 
emissions during the COVID-19 pandemic recession beginning in 2020. 
Therefore, EPA evaluated the point source emissions from Butler, 
Clermont, Hamilton, and Warren Counties in Ohio, the counties that make 
up the Ohio portion of the Area, based on data from EPA's Emissions 
Inventory System (EIS) \3\ Gateway. The point source reductions 
achieved from the nonattainment year 2014 through the attainment year 
of 2019 show NOX and VOC emission reductions of 22 and 12 
percent, respectively. Between 2019 (pre-pandemic) and 2020 (pandemic), 
NOX point source emission were reduced by 0.4 percent. The 
vast majority of the emission reductions did not occur as a result of 
the pandemic.
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    \3\ See https://www.epa.gov/air-emissions-inventories/emissions-inventory-system-eis-gateway, last accessed 3/24/2022.
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    EPA also analyzed the pandemic's impact on passenger and truck 
traffic in response to the commenter's assertion that automobile travel 
``plunged'' in 2020 as a result of the pandemic. We found that, 
consistent with statewide trends, car traffic did decrease during the 
pandemic, but truck traffic increased. From mid-March 2019 to mid-March 
2020, passenger and truck traffic in Hamilton County, the county which 
contains the Cincinnati city limits, were down 12 percent and 4 
percent, respectively.\4\ From mid-March 2019 to mid-March 2021, 
passenger traffic was down 19 percent, while truck traffic was up by 5 
percent. Expanding this further, from mid-March 2019 to mid-March 2022, 
passenger traffic was down 12 percent while truck traffic was up by 9 
percent. This pattern highlights several components of the United 
States' `new normal' since the arrival of the COVID-19 pandemic. An 
Ohio statewide analysis by the Ohio-Kentucky-Indiana Regional Council 
of Governments (OKI) assesses the `new normal' including monthly 
traffic impacts after the state of emergency was lifted on June 6, 
2021, concluded overall traffic conditions in 2021 were decreased by a 
range of 3 to 7 percent, from June 2021 through January 2022, 
considering a monthly average. Separating between car and truck 
traffic, over the same time period, car traffic was decreased ranging 
from 5 to 9 percent, while truck traffic was increased from June 2021 
through January 2022, ranging from 9 to 14 percent. In EPA's 2017 
National Emissions Inventory (NEI), there were 31,762 tpy of 
NOX attributed to heavy duty vehicles (HDV) in Clermont, 
Butler, Hamilton, and Warren counties and 38,564 tpy of NOX 
attributed to light duty vehicles (LDV). Thus a 10% decrease in LDV 
Vehicle Miles Travelled (VMT) and a 10% increase in HDV VMT would be 
expected to lead to a small net decrease in onroad NOX 
emissions for these counties of less than 1,000 tpy and corresponding 
to a change of less than 1 percent. Thus, assuming that vehicle traffic 
scales linearly with NOX emissions, decreases in LDV VMT

[[Page 35107]]

of between 3 and 19% paired with changes in truck VMT ranging from a 4% 
decrease to a 14% increase could lead to net NOX change 
ranging from a decrease of approximately 8,600 tpy to an increase of 
approximately 3,300 tpy corresponding to a 12% decrease and a 5% 
increase respectively. As a result of these light duty and heavy duty 
VMT trends in opposite directions in the Cincinnati area it is not 
clear whether the COVID-19 lockdowns led to any significant net mobile 
NOX reductions in this nonattainment area.
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    \4\ The data was acquired by the Ohio Department of 
Transportation (ODOT) Statewide Traffic Analysis website, see 
https://app.powerbigov.us/view?r=eyJrIjoiZDRjZWRiNTktZGI2Ny00MzdjLTk1ZTYtNjAwNjUzZThlYjBlIiwidCI6IjUwZjhmY2M0LTk0ZDgtNGYwNy04NGViLTM2ZWQ1N2M3YzhhMiJ9.
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    A similar analysis by OKI of the Ohio counties in the Area 
(Clermont, Butler, Hamilton, and Warren) included average weekday daily 
traffic in the OKI region from 2019 to 2021, from 20 (directional) Ohio 
Department of Transportation (ODOT) permanent traffic count stations 
(Table 1). The results highlight 2021 car traffic levels higher than 
2020, but remaining approximately 7 percent below 2019 traffic levels, 
while truck traffic increased by 13 percent from 2019 to 2021, which 
OKI characterizes as the `new normal'. Truck traffic did not experience 
the marked decrease beginning in March of 2020 at the outbreak of 
COVID-19 to the degree car traffic experienced, and by late June of 
2020, truck traffic counts equaled June 2019 truck traffic counts, and 
exceeded them throughout the rest of 2020. This distinction is 
pertinent because EPA has found that in the upper Midwest, the majority 
of ozone exceedances occur in late May though late July. In the Area in 
particular, through the 2011-2021 time period, as ozone design values 
have decreased, ozone exceedances are more likely to occur later in the 
ozone season, and most likely in the months of June or July.\5\ This 
time period would be within the same time frame that 2020 truck traffic 
returned to and exceeded 2019 truck traffic and hence, would have 
entered the `new normal' conditions by the time the Area experiences 
its highest ozone values.
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    \5\ See https://www.epa.gov/outdoor-air-quality-data/air-data-ozone-exceedances, last accessed 3/29/2022.

   Table 1--Average Weekday Daily Traffic Counts in Clermont, Butler, Hamilton, and Warren Counties, 2019-2021
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                                                                 2019 Average     2020 Average     2021 Average
                         Vehicle type                           weekday daily    weekday daily    weekday daily
                                                                   traffic          traffic          traffic
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Car..........................................................          526,880          440,190          487,522
Truck........................................................           54,429           56,461           61,560
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    An analysis performed by OKI showed that VMT values are projected 
to increase throughout the maintenance period in the Area.\6\ While EPA 
recognizes COVID-19 led to decreases in traffic and mobile source 
emissions, EPA would like to emphasize that the Area has continued to 
model decreases in on-road emissions despite modeled VMT increases, 
leaving the Area with an even larger margin when comparing on-road 
emissions in 2019 and emissions in 2026 and 2035 if the `new normal' 
conditions prove to be temporary and traffic again rises beyond what is 
forecast in the maintenance plan.
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    \6\ See OEPA's December 21, 2021, submittal contained in the 
docket for this action.
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    Additionally, NEI trends data shows consistent decreases in both 
NOX and VOC emissions in Ohio from highway vehicles since 
2011, and off-highway NOX and VOC emissions since 2002. With 
the many mobile source reduction measures in place in Ohio, EPA has no 
reason to believe that the reductions achieved are based on a brief 
period of decreased VMT in 2020 due to the COVID-19 pandemic.
    As suggested by the commenter, EPA also performed an analysis 
similar to the one performed by Michigan's Environment, Great Lakes and 
Energy agency in their submittal requesting redesignation of the 
Detroit area for the 2015 ozone standard,\7\ to evaluate whether the 
improvement in air quality was caused by temporary adverse economic 
conditions, especially the economic conditions associated with the 
COVID-19 pandemic which first impacted Ohio in 2020. EPA first 
considered point source reduction trends, noting that between 2005 and 
2017, OEPA provided that Ohio's NOX and VOC emissions 
decreased by 57 percent and 33 percent, respectively. Further, EPA 
compared the maximum 8-hour ozone concentrations against VMT and 
employment from 2014 through 2021. This highlighted that while 
employment levels were affected by COVID-19 and saw a decrease of 
employed individuals of almost 12,000 comparatively from the average 
2019 levels to April of 2020, employment returned to 2019 levels by 
July 2020, according to Bureau of Labor and Statistics (BLS) Quarterly 
Census of Employment and Wages.\8\ Employment levels continued to 
increase through 2021, and while the analysis showed a correlation 
between VMT and employment in the Area, no direct correlation between 
these economic indicators and the high ozone values was identified. The 
VMT and emissions values generated by OKI using EPA's MOVES3 model 
indicate increasing VMT and decreasing emissions from the nonattainment 
year of 2014, through the attainment year of 2019, the interim year of 
2026, and the end year of 2035. Further, under section 176(c) of the 
CAA, new transportation plans, programs, or projects that receive 
Federal funding or support, such as the construction of new highways, 
must ``conform'' to (i.e., be consistent with) the SIP. Conformity to 
the SIP means that transportation activities will not cause or 
contribute to any new air quality violations, increase the frequency or 
severity of any existing air quality problems, or delay timely 
attainment or any required interim emissions reductions or any other 
milestones.
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    \7\ The proposed approval to redesignate the Detroit, Michigan 
area to attainment of the 2015 Ozone Standards published on March 
14, 2022 (87 FR 14210).
    \8\ See www.bls.gov/cew/. Last accessed March 22, 2022.
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    Ohio's maintenance plan includes NOX and VOC motor 
vehicle emissions budgets (budgets) for the Area for 2026, the interim 
year, and 2035, the last year of the maintenance period (Table 2). The 
budgets are the portion of the total allowable emissions that are 
allocated to highway and transit vehicle use that, together with 
emissions from other sources in the Area, will provide for attainment 
or maintenance. These budgets represent the projected 2026 and 2035 on-
road emissions plus a safety margin and are consistent with maintenance 
of the 2015 ozone NAAQS, which is described below. Detailed information 
on the transportation

[[Page 35108]]

conformity program can be found in our Proposal.

 Table 2--2026 and 2035 Budgets for the Ohio Portion for the 2015 Ozone
                         NAAQS Maintenance Area
                       [Tons per summer day, TPSD]
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                                                          2026     2035
                       Pollutant                         Budget   Budget
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NOX...................................................    14.15    10.58
VOC...................................................    25.30    18.98
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    A ``safety margin'' is the difference between the attainment level 
of emissions (from all sources) and the projected level of emissions 
(from all sources) in the maintenance plan. Further, the transportation 
conformity regulations allow states to allocate all or a portion of a 
documented safety margin to the motor vehicle emissions budgets for an 
area (40 CFR 93.124(a)). Ohio is allocating a portion of that safety 
margin to the mobile source sector. Specifically, in 2026, Ohio is 
allocating 1.85 TPSD and 3.30 TPSD of the VOC and NOX safety 
margins, respectively. In 2035, Ohio is allocating 1.38 TPSD and 2.48 
TPSD of the VOC and NOX safety margins, respectively. Since 
only a part of the safety margin is being used, maintenance 
requirements are still easily met. Once allocated to on-road mobile 
sources, these safety margins will not be available for use by other 
sources.
    EPA recognizes the difficulties in assessing the impacts of the 
COVID-19 pandemic on ozone precursor emissions and ozone design values 
and the economic disparities from the COVID-19 pandemic, but we do not 
agree that the Area's attainment is due to a temporary economic 
downturn associated with the COVID-19 pandemic. To the contrary, our 
analysis of the available data regarding point source emissions in the 
Cincinnati area and trends in vehicular traffic do not indicate that 
the Area's attainment was driven by temporary conditions. The effect of 
the pandemic on point source emissions in the Area was insignificant in 
comparison to the effect of enforceable control measures, and the 
decrease in passenger vehicle VMT during the pandemic is not only 
largely offset by an increase in truck traffic but likely does not have 
a strong correlation with maximum ozone design values. OKI's mobile 
source modeling performed for the Area indicates that vehicular 
emission control measures will continue to drive emissions down even as 
VMT is projected to increase.
    Comment: The commenter asserts that ozone concentrations from the 
design value period 2017-2019 (i.e., before the COVID-19 pandemic) 
undermines EPA's finding that the reduced ambient ozone concentrations 
observed in 2019-2021 are in fact attributable to permanent and 
enforceable regulations that took effect between 2004 and 2017. The 
commenter points out that during the 2017-2019 time period, several 
monitors in the Area recorded annual 4th high daily maximum 8-hour 
ozone concentrations that exceeded the level of the NAAQS. The 
commenter contends that EPA's failure to consider this earlier period 
(i.e., 2017-2019) as a relevant set of data for assessing the relative 
impact of enforceable emission reductions and the impact of the COVID-
19 pandemic on reduced ozone levels in 2020-2021 was arbitrary and 
capricious and calls into question the reasonableness of EPA's proposed 
redesignation to attainment. The commenter also notes that EPA looked 
at precursor emissions from 2014 and 2019 but only analyzed ozone 
concentrations during the 2019-2021 period.
    Response: EPA disagrees with the commenter's suggestion that the 
fact that the Cincinnati area was not attaining the 2015 ozone NAAQS in 
2017-2019 (i.e., before the COVID-19 pandemic) undermines our 
conclusion that the Area has attained due to permanent and enforceable 
measures, as opposed to decreases in emissions associated with the 
pandemic. As discussed in the previous comment responses, many of the 
permanent and enforceable measures applicable to the sources in the 
Area or to sources upwind of the Area impose continued, and in some 
cases additional, emission reductions with each year of implementation 
(e.g., phased-in mobile source standards in addition to fleet 
turnover). Control measures do not obtain all emission reductions in 
the first year of their implementation, and not all impacts from a 
control measure are necessarily reflected in ozone concentrations in 
that year. Ozone formation and measured concentrations are dependent on 
a host of factors, including emissions and meteorology, and the 
continued application of many control measures across many source 
categories over a period of time has a significant impact on decreasing 
ozone concentration trends.
    We therefore do not think that violating data from 2017-2019 
necessarily means that attaining data from 2019-2021 was caused by a 
reduction in emissions due to the pandemic. However, in response to the 
commenter's suggestion, we analyzed emissions information for point 
sources in the Area and for mobile sources in the Area during pre-
pandemic periods and from the years 2020 and 2021 (i.e., during the 
pandemic). Our conclusion, discussed in the comment response above, is 
that while the pandemic likely had some impact on emissions in the 
Area, that impact does not appear to have been the primary driver of 
decreased ozone concentrations in the Area.
    To further support OEPA's demonstration that the improvement in air 
quality between the year violations occurred and the year attainment 
was achieved, is due to permanent and enforceable emission reductions 
and not on favorable meteorology, the state included a classification 
and regression tree (CART) analysis to demonstrate that the improvement 
in air quality was not due to unusually favorable meteorology, which 
was performed by the Lake Michigan Air Directors Consortium (LADCO). 
The goal of the analysis was to determine the meteorological and air 
quality conditions associated with ozone episodes, and construct trends 
for the days identified as sharing similar meteorological conditions in 
ozone nonattainment areas in the LADCO region. Regression trees were 
developed for the Cincinnati area ozone data to classify each summer 
day by its ozone concentration and associated meteorological 
conditions. By grouping days with similar meteorology, the influence of 
meteorological variability on the underlying trend in ozone 
concentrations is partially removed and the remaining trend is presumed 
to be due to trends in precursor emissions or other non-meteorological 
influences. The CART analysis showed the resulting trends in ozone 
concentrations declining over the period examined, 2005 through 2020, 
supporting the conclusion that the improvement in air quality was not 
due to unusually favorable meteorology.
    The CART analysis shows that ozone concentrations for all five 
high-ozone day types have decreased over the last 16 years, 
demonstrating that on days with similar meteorology, ozone 
concentrations on high-ozone days at Cincinnati monitors have decreased 
substantially since 2005. Overall, OEPA concluded that average summer 
temperatures have remained steady and average ozone concentrations have 
decreased from 2005 through 2021, providing a strong basis to conclude 
that reductions in precursors are responsible for the reductions in 
elevated ozone concentrations in the Area, and that these emission 
reductions were not

[[Page 35109]]

solely or primarily driven by a pandemic-related decrease in emissions 
or unusually favorable meteorology, but rather by the host of permanent 
and enforceable state and federal measures that have been applied and 
will continue to apply over time.
    Further, we find no fault with Ohio's examination of 2019 emissions 
within the nonattainment area (i.e., the attainment inventory) for 
purposes of illustrating the reduction in emissions in the Area over 
time (from 2014 to 2019). To the extent that commenter is suggesting 
Ohio also should have provided emission inventories for years 2020 and 
2021, we do not agree that information was necessary to evaluate 
emission trends. The State's selection of one year of emissions during 
a design value period indicating nonattainment and one year of 
emissions during a design value period indicating attainment was 
sufficient to show that emissions had decreased substantially within 
the Area during that time period. Moreover, even though the state did 
not supply full emission inventories for years 2020 and 2021 (which 
they were not required to do), EPA performed additional analysis of the 
potential COVID-19 effects on the Area in response to the commenter's 
suggestion. As discussed in the previous comment responses, that 
analysis showed that point source precursor emissions of NOX 
and VOC in the Area did not decrease substantially from the pre-
pandemic year of 2019 to 2020. Likewise, the Ohio state-wide analysis 
by OKI concluded that overall traffic conditions in 2021 were decreased 
by a range of 3 to 7 percent compared to 2019, from June 2021 through 
January 2022, while truck traffic increased over the same time period. 
The overall mobile source modeling indicated that an increase in VMT 
does not necessarily correspond to an increase in emissions, because of 
the impact of mobile source standards.
    We therefore do not agree that it is unreasonable to redesignate 
the Ohio portion of the Cincinnati area to attainment of the 2015 ozone 
NAAQS.
    Comment: The commenter argues that this action affects an 
Environmental Justice (EJ) Community. Specifically, the commenter 
points out that Black Americans make up more than 40% of Cincinnati's 
residents, and that according to the U.S. Census, Cincinnati has twice 
the poverty rate of the United States as a whole. The commenter 
therefore argues that it is particularly incumbent upon EPA to 
thoroughly consider the monitoring time period of 2017-2019 and not the 
pandemic years of 2020 and 2021, to ensure that any redesignation to 
attainment consider the ``longstanding excessive burden experienced by 
Black and low-income communities in southwestern Ohio.''
    Response: EPA sets the NAAQS at a level to protect the public 
health, with an adequate margin of safety, including the health of at-
risk populations, and protect the public welfare from adverse effects. 
The criteria set forth in 40 CFR 50.19 and appendix U of part 50 to 
attain the 2015 ozone NAAQS establishes that the 3-year average of the 
annual fourth-highest daily maximum 8-hour average ozone concentration 
must be less than or equal to 0.070 ppm, which is true of the Area. 
While EPA recognizes the importance of assessing impacts of our actions 
on potentially overburdened communities, we believe that our approval 
of Ohio's redesignation request for the 2015 ozone NAAQS would not 
exacerbate existing pollution exposure or burdens for populations in 
the Cincinnati area.
    Even so, Executive Order 12898 (59 FR 7629, February 16, 1994) 
requires that Federal agencies, to the greatest extent practicable and 
permitted by law, identify and address disproportionately high and 
adverse human health or environmental effects of their actions on 
minority and low-income populations. Additionally, Executive Order 
13985 (86 FR 7009, January 25, 2021) directs Federal Government 
agencies to assess whether, and to what extent, their programs and 
policies perpetuate systemic barriers to opportunities and benefits for 
people of color and other underserved groups, and Executive Order 14008 
(86 FR 7619, February 1, 2021) directs Federal agencies to develop 
programs, policies, and activities to address the disproportionate 
health, environmental, economic, and climate impacts on disadvantaged 
communities. To identify environmental burdens and susceptible 
populations in communities in the Area, EPA performed a screening-level 
analysis using EPA's EJ screening and mapping tool (``EJSCREEN'').\9\ 
EPA utilized the EJSCREEN tool to evaluate environmental and 
demographic indicators at the county level for each county within the 
Area (Butler, Clermont, Hamilton and Warren). Additional indicators of 
overall pollution burden include estimates of ambient particulate 
matter (PM2.5) concentration, a score for traffic proximity 
and volume, percentage of pre-1960 housing units (lead paint 
indicator), and scores for proximity to Superfund sites, risk 
management plan (RMP) sites, and hazardous waste facilities. EPA's 
screening-level analysis indicates that communities in the Area 
affected by this action score below the national average for the 
EJSCREEN ``Demographic Index'', which is the average of an area's 
percent minority and percent low income populations, i.e., the two 
demographic indicators explicitly named in Executive Order 12898. As 
discussed in the EPA's EJ technical guidance, people of color and low-
income populations often experience greater exposure and disease 
burdens than the general population, which can increase their 
susceptibility to adverse health effects from environmental 
stressors.\10\ Additionally, EPA has provided that if any of the EJ 
indexes for the areas under consideration are at or above the 80th 
percentile nationally, then further review may be appropriate.\11\ The 
results indicate that these areas score below the 80th percentile (in 
comparison to the nation as a whole) in the twelve EJ Indexes 
established by EPA, which include a combination of environmental and 
demographic information, with one exception. In Hamilton county, the EJ 
Index for Risk Management Plan (RMP) Facility Proximity scored at the 
81st percentile. This EJ index considers the count of RMP (potential 
chemical accident management plan) facilities within 5 km (or nearest 
one beyond 5 km), each divided by distance in kilometers.
---------------------------------------------------------------------------

    \9\ See documentation on EPA's Environmental Justice Screening 
and Mapping Tool at https://www.epa.gov/ejscreen, last accessed 5/2/
2022.
    \10\ EPA, ``Technical Guidance for Assessing Environmental 
Justice in Regulatory Analysis,'' section 4 (June 2016).
    \11\ EPA, ``EJSCREEN Technical Documentation,'' appendix H 
(September 2019).
---------------------------------------------------------------------------

    Considering these results, EPA further considered forthcoming and 
existing emission reduction measures that may help to mitigate existing 
pollution issues in the Area. The Area's redesignation to attainment 
will include the continued application of the Prevention of Significant 
Deterioration (PSD) permitting requirements including installation of 
the Best Available Control Technology (BACT), air quality analysis, 
additional impacts analysis, and public involvement for new and 
modified sources. The Federal mobile source and point source emission 
reduction programs and NOX cap and trade programs through 
CSAPR, identified as the permanent and enforceable regulations which 
led to the Area's attainment, remain in place and will continue to 
achieve reductions. Further, Ohio has submitted a maintenance plan that 
shows continuing reductions in NOX and VOC

[[Page 35110]]

emissions through 2035 and includes contingency measure provisions to 
address any possible future violation of the NAAQS.
    Additionally, Ohio has adopted regulations to address the 
NOX and VOC Reasonably Available Control Technology (RACT) 
requirements that apply to moderate areas. Despite Cincinnati's current 
marginal ozone classification, Ohio voluntarily adopted these RACT 
rules for the Area after planning efforts were underway for moderate 
RACT requirements for the 2015 ozone standard in Cleveland. The 
NOX RACT Rule 3745-110 of the Ohio Administrative Code 
(OAC), which became effective March 25, 2022, applies to existing 
boilers, stationary combustion turbines, stationary internal combustion 
engines, reheat furnaces, or sources located at a facility that emits 
or has the potential to emit a total of more than 100 tpy of 
NOX emissions and specifically states applicability to 
sources located in Butler, Clermont, Hamilton or Warren county.\12\ 
Similarly, VOC RACT Rule 3745-21 of the OAC, effective March 27, 2022, 
is applicable to various source categories in Butler, Clermont, 
Hamilton and Warren counties to facilities that have a total 
uncontrolled potential to emit for VOC emissions of 100 tpy. OEPA has 
submitted the VOC RACT rules that cover both Cleveland and Cincinnati 
for approval into the Ohio SIP and have submitted the NOX 
RACT rules that apply to Cleveland for approval into the Ohio SIP. 
Hence, they will be implementing NOX RACT in both Cleveland 
and Cincinnati, and NOX RACT will be federally enforceable 
in Cleveland. These rules will be SIP strengthening and go beyond what 
is required in the Area at the Federal level and are expected to 
achieve additional emission reductions and contribute to maintenance of 
the ozone standard in the Area.
---------------------------------------------------------------------------

    \12\ See https://epa.ohio.gov/divisions-and-offices/air-pollution-control/regulations/effective-rules/dapc-effective-rules, 
last accessed 5/20/2022.
---------------------------------------------------------------------------

    EPA acknowledges that ozone problems may not be solved through 
redesignations, that regional solutions are required, and that 
coordinated cooperation between stakeholders may lead to improved air 
quality. As previously noted, OEPA has established a maintenance plan 
containing contingency measures as a safeguard designed to ensure 
compliance with the NAAQS going forward. EPA also continues to 
implement programs addressing regional and interstate transport of 
NOX, such as the Revised CSAPR Update. Finally, EPA 
encourages the commenter to remain engaged with stakeholders in the 
effort to protect human health and the environment.

III. Final Action

    In accordance with Ohio's December 21, 2021, request, EPA is 
redesignating the Cincinnati Ohio-Kentucky nonattainment area from 
nonattainment to attainment of the 2015 ozone NAAQS. EPA finds that the 
Area is attaining the 2015 ozone NAAQS and meets the statutory 
requirements for redesignation under the CAA. EPA is also approving 
Ohio's maintenance plan, which is designed to ensure that the Area will 
continue to maintain the ozone NAAQS through 2035. Lastly, EPA is 
approving the state's 2026 and 2035 NOX and VOC motor 
vehicle emission budgets for the Ohio portion of the Area.
    In accordance with 5 U.S.C. 553(d) of the Administrative Procedure 
Act (APA), EPA finds there is good cause for this action to become 
effective immediately upon publication. The immediate effective date 
for this action is authorized under both 5 U.S.C. 553(d)(1).\13\
---------------------------------------------------------------------------

    \13\ See https://www.govinfo.gov/content/pkg/USCODE-2020-title5/pdf/USCODE-2020-title5-partI-chap5-subchapII-sec553.pdf, last 
accessed 3/16/2022.
---------------------------------------------------------------------------

    Section 553(d)(1) of the APA provides that final rules shall not 
become effective until 30 days after publication in the Federal 
Register ``except . . . a substantive rule which grants or recognizes 
an exemption or relieves a restriction.'' The purpose of this provision 
is to ``give affected parties a reasonable time to adjust their 
behavior before the final rule takes effect.'' Omnipoint Corp. v. Fed. 
Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United 
States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting 
legislative history). However, when the agency grants or recognizes an 
exemption or relieves a restriction, affected parties do not need a 
reasonable time to adjust because the effect is not adverse. EPA has 
determined that this rule relieves a restriction because this rule 
relieves sources in the area of Nonattainment New Source Review (NNSR) 
permitting requirements; instead, upon the effective date of this 
action, sources will be subject to less restrictive PSD permitting 
requirements. For this reason, EPA finds good cause under 5 U.S.C. 
553(d)(1) for this action to become effective on the date of 
publication of this action.

IV. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of a maintenance plan under section 107(d)(3)(E) 
are actions that affect the status of a geographical area and do not 
impose any additional regulatory requirements on sources beyond those 
imposed by state law. A redesignation to attainment does not in and of 
itself create any new requirements, but rather results in the 
applicability of requirements contained in the CAA for areas that have 
been redesignated to attainment. Moreover, the Administrator is 
required to approve a SIP submission that complies with the provisions 
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For these reasons, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as

[[Page 35111]]

appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 8, 2022. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

40 CFR Part 81

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

    Dated: June 2, 2022.
Debra Shore,
Regional Administrator, Region 5.

    For the reasons stated in the preamble, EPA amends 40 CFR parts 52 
and 81 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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


0
2. In Sec.  52.1870, the table in paragraph (e) is amended under 
``Summary of Criteria Pollutant Maintenance Plan'' by adding an entry 
for ``Ozone (8-Hour, 2015)'' before the entry for ``PM-10'' to read as 
follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (e) * * *

                         EPA-Approved Ohio Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     Applicable
                                   geographical or
             Title                 non-attainment      State date       EPA approval             Comments
                                        area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                 Summary of Criteria Pollutant Maintenance Plan
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Ozone (8-Hour, 2015)...........  Cincinnati              12/21/2021  6/9/2022, [INSERT   EPA is approving the
                                  (Butler,                            FEDERAL REGISTER    following elements: a
                                  Clermont,                           CITATION].          determination that the
                                  Hamilton, and                                           Cincinnati area has
                                  Warren Counties).                                       attained the 2015 8-
                                                                                          Hour ozone standard, a
                                                                                          maintenance plan for
                                                                                          the 2015 a8-Hour ozone
                                                                                          NAAQS, 2026 and 2035
                                                                                          VOC and NOX motor
                                                                                          vehicle emission
                                                                                          budgets for the
                                                                                          Cincinnati area.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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 in the table entitled ``Ohio-2015 8-Hour 
Ozone NAAQS [Primary and Secondary]'' by revising the entry for 
``Cincinnati, OH-KY'' to read as follows:


Sec.  81.336  Ohio.

* * * * *

                                                              Ohio--2015 8-Hour Ozone NAAQS
                                                                 [Primary and secondary]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Designation                                             Classification
         Designated area \1\         -------------------------------------------------------------------------------------------------------------------
                                                Date \2\                       Type                       Date \2\                       Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Cincinnati, OH-KY...................  June 9, 2022...............  Attainment.................  ...........................  Marginal.
    Butler County.
    Clermont County.
    Hamilton County.

[[Page 35112]]

 
    Warren County.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the boundaries of any area of Indian country
  in this table, including any area of Indian country located in the larger designation area. The inclusion of any Indian country in the designation
  area is not a determination that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.

* * * * *
[FR Doc. 2022-12318 Filed 6-8-22; 8:45 am]
BILLING CODE 6560-50-P


