Air quality implementation plans; approval and promulgation; various States: Ohio,

[Federal Register: November 3, 1999 (Volume 64, Number 212)]

[Rules and Regulations]

[Page 59644-59648]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr03no99-23]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[OH 129-1a; FRL-6464-5]

Approval and Promulgation of Maintenance Plan Revisions; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

SUMMARY: USEPA is approving an August 19, 1999, request from Ohio for a State Implementation Plan (SIP) revision of the Columbiana County ozone maintenance plan. The maintenance plan revision establishes a new transportation conformity mobile source emissions budget for the year 2005. USEPA is approving the allocation of a portion of the safety margin for oxides of nitrogen (NO‹INF›X‹/INF›) to the area's 2005 mobile source emissions budget for transportation conformity purposes. This allocation will still maintain the total emissions for the area at or below the attainment level required by the transportation conformity regulations. The transportation conformity budget for volatile organic compounds will remain the same as previously approved in the maintenance plan.

DATES: This rule is effective on January 3, 2000, unless USEPA receives adverse written comments by December 3, 1999. If adverse comment is received, USEPA will publish a timely withdrawal of the rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES: Send written comments to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West

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Jackson Boulevard, Chicago, Illinois, 60604.

You may inspect copies of the documents relevant to this action during normal business hours at the following location:

Regulation Development Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois, 60604.

Please contact Patricia Morris at (312) 353-8656 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Patricia Morris, Environmental Scientist, Regulation Development Section, Air Programs Branch (AR- 18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8656.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'', ``us'', or ``our'' are used we mean USEPA.

This Supplementary Information section is organized as follows:

What action is USEPA taking today? Who is affected by this action? How did the State support its request? What is transportation conformity? What is an emissions budget? What is a safety margin? How does this action change the Columbiana County ozone maintenance plan? Why is the request approvable? USEPA Action. Administrative Requirements.

What Action is USEPA Taking Today?

In this action, we are approving a revision to the ozone maintenance plan for Columbiana County, Ohio. The revision will change the mobile source emissions budget for NO‹INF›X‹/INF› that is used for transportation conformity purposes. The revision will keep the total emissions for the area at or below the attainment level required by law. This action will allow State or local agencies to maintain air quality while providing for transportation growth.

Who Is Affected by This Action?

Primarily, the transportation sector represented by Ohio Department of Transportation and persons needing to travel through Columbiana County will be affected by this revision. A proposed project to build a new 4 lane highway through a portion of Columbiana County would produce higher emissions than currently allowed in the maintenance plan. The conformity rule, however, provides that if a ``safety margin'' exists in the maintenance plan, then the safety margin can be allocated to the transportation sector via the mobile source budget.

How Did the State Support This Request?

On August 19, 1999, Ohio submitted to USEPA a SIP revision request for the Columbiana County ozone maintenance area. A public hearing on this proposal was held on September 22, 1999. No one from the public commented on the proposed revisions. At the public hearing Ohio officially changed the request from 1 ton per day of NO‹INF›X‹/INF› to 0.5 ton per day of NO‹INF›X‹/INF› to be allocated to the mobile source budget.

In the submittal, Ohio requested to establish a new 2005 mobile source emissions budget for NO‹INF›X‹/INF› for the Columbiana County, Ohio, ozone maintenance area. The State originally requested that 1 ton per day of NO‹INF›X‹/INF› be allocated from the maintenance plan's safety margin. After comment from USEPA, however, the request was changed to 0.5 ton per day of NO‹INF›X‹/INF›. The 0.5 ton per day change will accommodate the proposed highway and leave a safety margin for future use. The mobile source budgets are used for transportation conformity purposes.

What Is Transportation Conformity?

Transportation conformity means that the level of emissions from the transportation sector (cars, trucks and buses) must be consistent with the requirements in the SIP to attain and maintain the air quality standards. The Clean Air Act, in section 176(c), requires conformity of transportation plans, programs and projects to an implementation plan's purpose of attaining and maintaining the National Ambient Air Quality Standards. On November 24, 1993, USEPA published a final rule establishing criteria and procedures for determining if transportation plans, programs and projects funded or approved under Title 23 U.S.C. or the Federal Transit Act conform to the SIP.

The transportation conformity rules require an ozone maintenance area, such as Columbiana County, to compare the actual projected emissions from cars, trucks and buses on the highway network, to the mobile source emissions budget established by a maintenance plan. The Columbiana County area has an approved ozone maintenance plan. Our approval of the maintenance plan established the mobile source emissions budgets for transportation conformity purposes.

What Is an Emissions Budget?

An emissions budget is the projected level of controlled emissions from the transportation sector (mobile sources) that is estimated in the SIP. The SIP controls emissions through regulations, for example, on fuels and exhaust levels for cars. The emissions budget concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish the mobile source emissions budget in the SIP and how to revise the emissions budget. The transportation conformity rule allows the mobile source emissions budget to be changed as long as the total level of emissions from all sources remains below the attainment level.

What Is a Safety Margin?

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. The attainment level of emissions is the level of emissions during one of the years in which the area met the air quality health standard. For example: Columbiana County was monitoring attainment of the one hour ozone standard during the 1988-1990 time period. The State uses 1990 as the attainment level of emissions for Columbiana County. The emissions from County point, area and mobile sources in 1990 equaled 23.98 tons per day of VOC and 11.66 tons per day of NO‹INF›X‹/INF›. The Ohio Environmental Protection Agency projected emissions out to the year 2005 and projected a total of 18.70 tons per day of VOC and 10.02 tons per day of NO‹INF›X‹/INF› from all sources in Columbiana County. The safety margin for the County is calculated to be the difference between these amounts or 5.28 tons per day of VOC and 1.64 tons per day of NO‹INF›X‹/INF›. Table 1 gives detailed information on the estimated emissions from each source category and the safety margin calculation.

The 2005 emission projections reflect the point, area and mobile source reductions and are illustrated in Table 1.

Table 1.--NO‹INF›X‹/INF› and VOC Emissions Budget; and Safety Margin Determinations, Columbiana County [Tons/day]

Source Category

1990 2005

VOC Emission Point............................................... 1.89 2.25 Mobile.............................................. 11.69 5.65 Area................................................ 10.40 10.80

Totals............................................ 23.98 18.70

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Safety Margin = 1990 total emissions--2005 total emissions = 5.28 tons/ day VOC

NO‹INF›X‹/INF› Emissions Point............................................... 0.06 0.07 Mobile.............................................. 7.00 5.05 Area................................................ 4.60 4.90

Totals............................................ 11.66 10.02 Safety Margin = 1990 total emissions--2005 total emissions = 1.64 tons/ day NO‹INF›X‹/INF›

The emissions are projected to maintain the area's air quality consistent with the air quality health standard. The safety margin credit can be allocated to the transportation sector. The total emission level, even with this allocation will be below the attainment level or safety level and thus is acceptable. The safety margin is the extra safety [points] that can be allocated as long as the total level is maintained.

How Does This Action Change the Columbiana County Zone Maintenance Plan?

It raises the NO‹INF›X‹/INF› emissions budget for mobile sources. The maintenance plan is designed to provide for future growth while still maintaining the ozone air quality standard. Growth in industries, population, and traffic is offset with reductions from cleaner cars and other emission reduction programs. Through the maintenance plan the State and local agencies can manage and maintain air quality while providing for growth.

In the submittal, Ohio requested to allocate part of the area's safety margin to the mobile source emissions budget. The Columbiana County area's safety margin is the difference between the 1990 attainment inventory year and the 2005 projected emissions inventory (5.28 tons /day VOC safety margin, and 1.64 tons/day NO‹INF›X‹/INF› safety margin) as shown in Table 1. The SIP revision requests the allocation of 0.5 ton/day NO‹INF›X‹/INF›, into the area's mobile source NO‹INF›X‹/INF› emissions budget from the safety margin. The 2005 mobile source NO‹INF›X‹/INF› emissions budget showing the safety margin allocations are outlined in Table 2. The mobile source NO‹INF›X‹/INF› emissions budget in Table 2 will be used for transportation conformity purposes.

Table 2 below illustrates that the requested portion of the safety margin can be allocated to the 2005 mobile source budget and that total emissions will still remain at or below the 1990 attainment level of total emissions for the Columbiana County maintenance area. Since the area would still be at or below the 1990 attainment level for the total emissions, this allocation is allowed by the conformity rule. The VOC budget and safety margin will remain the same.

Table 2.--Allocation of Safety Margin to the 2005 Mobile Source Emissions Budget, Columbiana County [Tons/day]

Source category

1990 2005

NO‹INF›X‹/INF› Emissions Point............................................... 0.06 0.07 Mobile.............................................. 7.00 5.55 Area................................................ 4.60 4.90

Total............................................. 11.66 10.52

Remaining Safety Margin = 1990 total emissions -2005 total emissions = 1.14 tons/day NO‹INF›X‹/INF›

Why is the Request Approvable?

After review of the SIP revision request, USEPA finds that the requested allocation of the safety margin for the Columbiana County area is approvable because the new mobile source emissions budget for NO‹INF›X‹/INF› maintains the total emissions for the area at or below the attainment year inventory level as required by the transportation conformity regulations. This allocation is allowed by the conformity rule since the area would still be at or below the 1990 attainment level for the total emissions.

USEPA Action

USEPA is approving the requested allocation of the safety margin to the mobile source NO‹INF›X‹/INF› emission budget for the Columbiana County ozone maintenance area.

USEPA is publishing this action without prior proposal because USEPA views this as a noncontroversial revision and anticipates no adverse comments. However, in a separate document in this Federal Register publication, USEPA is proposing to approve the SIP revision should adverse written comments be filed. This action will be effective without further notice unless USEPA receives relevant adverse written comment by December 3, 1999. Should the Agency receive such comments, it will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on January 3, 2000.

Administrative Requirements

1. Executive Order 12866

   The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order (E.O.) 12866, entitled ``Regulatory Planning and Review.''

2. Executive Orders on Federalism

   Under E.O. 12875, USEPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If the mandate is unfunded, USEPA must provide to the Office of Management and Budget a description of the extent of USEPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their concerns, copies of written communications from the governments, and a statement supporting the need to issue the regulation.

   In addition, E.O. 12875 requires USEPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.'' Today's rule does not create a mandate on state, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of E.O. 12875 do not apply to this rule.

   On August 4, 1999, President Clinton issued a new executive order on federalism, Executive Order 13132 (64 FR 43255 (August 10, 1999),) which will take effect on November 2, 1999. In the interim, the current Executive Order 12612 [52 FR 41685 (October 30, 1987),] on federalism still applies. This rule will not have a substantial direct effect on 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 12612. The rule affects only one State, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

3. Executive Order 13045

   Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be ``economically

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   significant'' as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that USEPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

   This rule is not subject to E.O. 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

4. Executive Order 13084

   Under E.O. 13084, USEPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, USEPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of USEPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

   In addition, E.O. 13084 requires USEPA to develop an effective process permitting elected and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

5. Regulatory Flexibility Act

   The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

   This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

   Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

6. Unfunded Mandates

   Under Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, USEPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under Section 205, USEPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires USEPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

   USEPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

7. Submission to Congress and the Comptroller General

   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. USEPA 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 rule is not a ``major'' rule as defined by 5 U.S.C. 804(2).

8. National Technology Transfer and Advancement Act

   Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, USEPA must consider and use ``voluntary consensus standards'' (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

   USEPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

   1. Petitions for Judicial Review

   Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by January 3, 2000. 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).)

   List of Subjects in 40 CFR Part 52

   Environmental protection, Air pollution control, Hydrocarbons, Intergovernmental relations, Ozone, Nitrogen oxides, Transportation conformity.

   Dated: October 20, 1999. Francis X. Lyons, Regional Administrator.

   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:

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

      Subpart KK--Ohio

   2. Section 52.1885 is amended by adding paragraph (a)(13) to read as follows:

      Sec. 52.1885 Control Strategy: Ozone.

      (a) * * *

      (13) Approval--On August 19, 1999, Ohio submitted a revision to the ozone maintenance plan for the Columbiana County area. The revision consists of allocating a portion of the Columbiana County area's NO‹INF›X‹/INF› safety margin to the transportation conformity mobile source emissions budget. The mobile source emissions budgets for transportation conformity purposes for the Columbiana County area are now: 5.65 tons per day of volatile organic compound emissions for the year 2005 and 5.55 tons per day of oxides of nitrogen emissions for the year 2005. This approval only changes the NO‹INF›X‹/INF› transportation conformity emission budget for Columbiana County.

      [FR Doc. 99-28386Filed11-2-99; 8:45 am]

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