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Proposed Rule

Air Plan Approval; Ohio; Redesignation of the Cleveland Area to Attainment of the 2008 Ozone Standard

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Start Preamble

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve a July 6, 2016, request from the Ohio Start Printed Page 71445Environmental Protection Agency (Ohio EPA) to redesignate the Cleveland-Akron-Lorain, Ohio area (Cleveland area) to attainment of the 2008 ozone National Ambient Air Quality Standard (NAAQS or standard), because the request meets the statutory requirements for redesignation under the Clean Air Act (CAA). The Cleveland area includes Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage, and Summit counties. EPA is also proposing to approve, as a revision to the Ohio State Implementation Plan (SIP), Ohio's plan for maintaining the 2008 ozone standard through 2030 in the Cleveland area. Finally, EPA finds adequate and is proposing to approve Ohio's 2020 and 2030 Motor Vehicle Emission Budgets (MVEBs) for the Cleveland area.

DATES:

Comments must be received on or before November 16, 2016.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2016-0396 at http://www.regulations.gov or via email to Aburano.Douglas@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (e.g., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/​dockets/​commenting-epa-dockets.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Jenny Liljegren, Physical Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6832, Liljegren.Jennifer@epa.gov.

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SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. What are the actions EPA is proposing?

II. What is the background for these actions?

III. What are the criteria for redesignation?

IV. What is EPA's analysis of Ohio's redesignation request?

A. Has the Cleveland area attained the 2008 8-hour ozone NAAQS?

B. Has Ohio met all applicable requirements of section 110 and part D of the CAA for the Cleveland area, and does the Cleveland area have a fully approved SIP under section 110(k) of the CAA?

1. Ohio Has Met All Applicable Requirements of Section 110 and Part D of the CAA Applicable to the Cleveland Area for Purposes of Redesignation

2. The Cleveland Area Has a Fully Approved SIP for Purposes of Redesignation Under Section 110(k) of the CAA

C. Are the air quality improvements in the Cleveland area due to permanent and enforceable emission reductions?

1. Permanent and Enforceable Emission Controls Implemented

2. Emission Reductions

3. Meteorology

D. Does Ohio have a fully approvable ozone maintenance plan for the Cleveland area?

1. Attainment Inventory

2. Has the state documented maintenance of the ozone standard in the Cleveland area?

3. Continued Air Quality Monitoring

4. Verification of Continued Attainment

5. What is the maintenance plan for the Cleveland area?

V. Has the state adopted approvable Motor Vehicle Emission Budgets (MVEBs)?

A. MVEBs

B. What is the status of EPA's adequacy determination for the proposed VOC and NOX MVEBs for the Cleveland area?

C. What is a safety margin?

VI. Proposed Actions

VII. Statutory and Executive Order Reviews

I. What are the actions EPA is proposing?

EPA is proposing to take several related actions. EPA is proposing to approve Ohio EPA's request to change the legal designation of the Cleveland area from nonattainment to attainment of the 2008 ozone standard. EPA is also proposing to approve, as a revision to the Ohio SIP, the state's maintenance plan (such approval being one of the CAA criteria for redesignation to attainment status) for the area. The maintenance plan is designed to keep the Cleveland area in attainment of the 2008 ozone NAAQS through 2030. Finally, EPA finds adequate and is proposing to approve the newly-established 2020 and 2030 MVEBs for the Cleveland area. The adequacy comment period for the MVEBs began on July 22, 2016, with EPA's posting of the availability of the submittal on EPA's Adequacy Web site (at http://www.epa.gov/​otaq/​stateresources/​transconf/​adequacy.htm). The adequacy comment period for these MVEBs ended on August 22, 2016. EPA did not receive any adverse comments on this submittal during the adequacy comment period. In a letter dated August 23, 2016, EPA informed Ohio EPA that we found the 2020 and 2030 MVEBs to be adequate for use in transportation conformity analyses. See section V. B. of this rulemaking, “What is the status of EPA's adequacy determination for the proposed VOC and NOX MVEBs for the Cleveland area?” for further explanation of this process. We find adequate, and are proposing to approve, the State's 2020 and 2030 MVEBs for transportation conformity purposes.

II. What is the background for these actions?

EPA has determined that ground-level ozone is detrimental to human health. On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 ozone NAAQS is attained in an area when the 3-year average of the annual 4th high daily maximum 8-hour average ozone concentrations is equal to or less than 0.075 ppm when truncated after the thousandth decimal place at all of the ozone monitoring sites in the area. See 40 CFR 50.15 and appendix P to 40 CFR part 50.

Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) of the CAA requires EPA to designate as nonattainment any areas that are violating the NAAQS, based on the most recent three years of quality-assured ozone monitoring data. The Cleveland area was designated as a marginal nonattainment area for the 2008 ozone NAAQS on May 21, 2012 (77 FR 30088) (effective July 20, 2012).

In a final implementation rule for the 2008 ozone NAAQS (SIP Requirements Rule),[1] EPA established ozone standard Start Printed Page 71446attainment dates based on table 1 of section 181(a) of the CAA. This established an attainment date three years after the July 20, 2012, effective designation date for areas classified as marginal nonattainment for the 2008 ozone NAAQS. Therefore, the attainment date for the Cleveland area was July 20, 2015. On May 4, 2016 (81 FR 26697), based on EPA's evaluation and determination that the Cleveland area failed to attain the NAAQS by July 20, 2015, but met the attainment date extension criteria of CAA section 181(a)(5), EPA granted the Cleveland area a 1-year extension of the applicable marginal area attainment date from July 20, 2015, to July 20, 2016.

III. What are the criteria for redesignation?

Section 107(d)(3)(E) of the CAA allows redesignation of an area to attainment of the NAAQS provided that: (1) The Administrator (EPA) determines that the area has attained the NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP, applicable Federal air pollutant control regulations, and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the CAA; and (5) the state containing the area has met all requirements applicable to the area for the purposes of redesignation under section 110 and part D of the CAA.

On April 16, 1992, EPA provided guidance on redesignations in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 (57 FR 13498) and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:

1. “Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from Bill Laxton, Director, Technical Support Division, June 18, 1990;

2. “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;

3. “Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;

4. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (the “Calcagni memorandum”);

5. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;

6. “Technical Support Documents (TSDs) for Redesignation of Ozone and Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;

7. “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993 (the “Shapiro memorandum”);

8. “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993;

9. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994 (the “Nichols memorandum”); and

10. “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995.

IV. What is EPA's analysis of Ohio's redesignation request?

A. Has the Cleveland area attained the 2008 8-hour ozone NAAQS?

For redesignation of a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). An area is attaining the 2008 ozone NAAQS if it meets the 2008 ozone NAAQS, as determined in accordance with 40 CFR 50.15 and appendix P of part 50, based on three complete, consecutive calendar years of quality-assured air quality data for all monitoring sites in the area. To attain the NAAQS, the 3-year average of the annual 4th high daily maximum 8-hour average ozone concentrations (ozone design values) at each monitor must not exceed 0.075 ppm when truncated after the thousandth decimal place. The air quality data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA's Air Quality System (AQS). Ambient air quality monitoring data for the 3-year period must also meet data completeness requirements. An ozone design value is valid if daily maximum 8-hour average concentrations are available for at least 90% of the days within the ozone monitoring seasons,[2] on average, for the 3-year period, with a minimum data completeness of 75% during the ozone monitoring season of any year during the 3-year period. See section 2.3 of appendix P to 40 CFR part 50.

On May 4, 2016 (81 FR 26697), based on EPA's evaluation and determination that the Cleveland area failed to attain the NAAQS by July 20, 2015, but met the attainment date extension criteria of CAA section 181(a)(5), EPA granted the Cleveland area a 1-year extension of the applicable Marginal area attainment date from July 20, 2015, to July 20, 2016. On June 27, 2016 (81 FR 41444), in accordance with section 181(b)(2)(A) of the CAA and the provisions of the SIP Requirements Rule (40 CFR 51.1103), EPA made a determination that the Cleveland area attained the standard by its July 20, 2016 attainment date based upon three years of complete, quality-assured and certified data for the 2013-2015 time period. These data are summarized in Table 1, below.Start Printed Page 71447

Table 1—Annual 4th High Daily Maximum 8-Hour Average Ozone Concentrations and 3-Year Averages of the 4th High Daily Maximum 8-Hour Average Ozone Concentrations for the Cleveland Area

CountyMonitor2013 4th high (ppm)2014 4th high (ppm)2015 4th high (ppm)2013-2015 average (ppm)
Ashtabula39-007-100170697069
Cuyahoga39-035-003469716769
39-035-006057666362
39-035-006464596663
39-035-500265617266
Geauga39-055-000465657367
Lake39-085-000370757473
39-085-000768627066
Lorain39-093-001860676263
Medina39-103-000465646364
Portage39-133-100158616461
Summit39-153-002060586561

EPA will not take final action to approve the redesignation of this area if the design value of a monitoring site in the area exceeds the NAAQS after proposal but prior to final approval of the redesignation. Preliminary 2016 data indicate that this area continues to attain the 2008 ozone NAAQS. As discussed in section IV.D.3. below, Ohio EPA has committed to continue monitoring ozone in this area to verify maintenance of the ozone standard.

B. Has Ohio met all applicable requirements of section 110 and part D of the CAA for the Cleveland area, and does the Cleveland area have a fully approved SIP under section 110(k) of the CAA?

As criteria for redesignation of an area from nonattainment to attainment of a NAAQS, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (see section 107(d)(3)(E)(v) of the CAA) and that the state has a fully approved SIP under section 110(k) of the CAA (see section 107(d)(3)(E)(ii) of the CAA). EPA proposes to find that Ohio has a fully approved SIP under section 110(k) of the CAA. Additionally, EPA proposes to find that the Ohio SIP satisfies the criterion that it meets applicable SIP requirements, for purposes of redesignation, under section 110 and part D of title I of the CAA (requirements specific to nonattainment areas for the 2008 ozone NAAQS). In making these proposed determinations, EPA ascertained which CAA requirements are applicable to the Cleveland area and the Ohio SIP and, if applicable, whether the required Ohio SIP elements are fully approved under section 110(k) and part D of the CAA. As discussed more fully below, SIPs must be fully approved only with respect to currently applicable requirements of the CAA.

The September 4, 1992, Calcagni memorandum describes EPA's interpretation of section 107(d)(3)(E) of the CAA. Under this interpretation, a state and the area it wishes to redesignate must meet the relevant CAA requirements that are due prior to the state's submittal of a complete redesignation request for the area. See also the Shapiro memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS). Applicable requirements of the CAA that come due subsequent to the state's submittal of a complete request remain applicable until a redesignation to attainment is approved, but are not required as a prerequisite to redesignation. See section 175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS).

1. Ohio Has Met All Applicable Requirements of Section 110 and Part D of the CAA Applicable to the Cleveland Area for Purposes of Redesignation

a. Section 110 General Requirements for Implementation Plans

Section 110(a)(2) of the CAA delineates the general requirements for a SIP. Section 110(a)(2) provides that the SIP must have been adopted by the state after reasonable public notice and hearing, and that, among other things, it must: (1) include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; (2) provide for establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor ambient air quality; (3) provide for implementation of a source permit program to regulate the modification and construction of stationary sources within the areas covered by the plan; (4) include provisions for the implementation of CAA title I part C Prevention of Significant Deterioration (PSD) and part D nonattainment New Source Review (NSR) permit programs; (5) include criteria for stationary source emission control measures, monitoring, and reporting; (6) include provisions for air quality modeling; and, (7) provide for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) of the CAA requires SIPs to contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address transport of certain air pollutants, e.g., Oxides of Nitrogen (NOX) SIP call.[3] However, like many of the 110(a)(2) requirements, the section 110(a)(2)(D) SIP requirements are not linked with a particular area's ozone designation and classification. EPA concludes that the SIP requirements linked with the area's ozone designation and classification are the relevant measures to evaluate when reviewing a redesignation request for the area. The section 110(a)(2)(D) requirements, Start Printed Page 71448where applicable, continue to apply to a state regardless of the designation of any one particular area within the state. Thus, we have determined these requirements are not applicable requirements for purposes of redesignation. See 65 FR 37890 (June 19, 2000), 68 FR 25418, 25426-27 (May 12, 2003).

In addition, EPA believes that other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's ozone attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated to attainment of the 2008 ozone NAAQS. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (e.g., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania proposed and final rulemakings, 61 FR 53174-53176 (October 10, 1996) and 62 FR 24826 (May 7, 1997); Cleveland-Akron-Loraine, Ohio final rulemaking, 61 FR 20458 (May 7, 1996); and Tampa, Florida final rulemaking, 60 FR 62748 (December 7, 1995). See also the discussion of this issue in the Cincinnati, Ohio ozone redesignation (65 FR 37890, June 19, 2000), and the Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, October 19, 2001).

We have reviewed Ohio's SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA, to the extent those requirements are applicable for purposes of redesignation. On October 16, 2014 (79 FR 62019), EPA approved elements of the SIP submitted by Ohio to meet the requirements of section 110 for the 2008 ozone standard. The requirements of section 110(a)(2), however, are statewide requirements that are not linked to the 2008 ozone standard nonattainment status of the Cleveland area. Therefore, EPA concludes that these infrastructure requirements are not applicable requirements for purposes of review of the state's 2008 ozone standard redesignation request.

b. Part D Requirements

Section 172(c) of the CAA sets forth the basic requirements of air quality plans for states with nonattainment areas that are required to submit them pursuant to section 172(b). Subpart 2 of part D, which includes section 182 of the CAA, establishes specific requirements for ozone nonattainment areas depending on the areas' nonattainment classifications.

The Cleveland area was classified as marginal nonattainment under subpart 2 for the 2008 ozone NAAQS. As such, the area is subject to the subpart 1 requirements contained in section 172(c) and section 176 and the subpart 2 requirements contained in section 182(a) (marginal nonattainment area requirements). A thorough discussion of the requirements contained in section 172(c) and 182 can be found in the General Preamble for Implementation of Title I (57 FR 13498).

i. Part D Subpart 1 Section 172 Requirements

As provided in subpart 2, for marginal ozone nonattainment areas such as the Cleveland area, the specific requirements of section 182(a) apply in lieu of the attainment planning requirements that would otherwise apply under section 172(c), including the attainment demonstration and reasonably available control measures (RACM) under section 172(c)(1), reasonable further progress (RFP) under section 172(c)(2), and contingency measures under section 172(c)(9). 42 U.S.C. 7511a(a).

Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. This requirement is superseded by the inventory requirement in section 182(a)(1) discussed below.

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Ohio's NSR program on January 10, 2003 (68 FR 1366) and February 25, 2010 (75 FR 8496). However, EPA has determined that, since PSD NSR requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a nonattainment NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D nonattainment NSR. A more detailed rationale for this determination is described in the Nichols memorandum. Ohio has demonstrated that the Cleveland area will be able to maintain the standard without part D nonattainment NSR in effect; therefore, EPA concludes that the state need not have a fully approved part D nonattainment NSR program prior to approval of the redesignation request. See rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996). Ohio's PSD NSR program will become effective in the Cleveland area upon redesignation to attainment.

Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, we have determined the Ohio SIP meets the requirements of section 110(a)(2) for purposes of redesignation.

ii. Part A Section 176 Conformity Requirements

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs and projects that are developed, funded or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that EPA promulgated pursuant to its authority under the CAA.

EPA interprets the conformity SIP requirements [4] as not applying for purposes of evaluating a redesignation request under section 107(d) because state conformity rules are still required after redesignation and Federal conformity rules apply where state conformity rules have not been approved. See Wall v. EPA, 265 F.3d Start Printed Page 71449426 (6th Cir. 2001) (upholding this interpretation); see also 60 FR 62748 (December 7, 1995) (redesignation of Tampa, Florida). Nonetheless, Ohio has an approved conformity SIP for the Cleveland area. See 80 FR 11133 (March 2, 2015).

iii. Part D Subpart 2 Section 182(a) Requirements

Section 182(a)(1) requires states to submit a comprehensive, accurate, and current inventory of actual emissions from sources of volatile organic compounds (VOC) and NOX emitted within the boundaries of the ozone nonattainment area. Ohio submitted a 2008 base year emissions inventory for the Cleveland area on July 18, 2014. EPA approved this emissions inventory as a revision to the Ohio SIP on March 10, 2016 (81 FR 12591).

Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC reasonably available control technology (RACT) rules that were required under section 172(b)(3) prior to the 1990 CAA amendments. The Cleveland area is not subject to the section 182(a)(2) RACT “fix up” requirement for the 2008 ozone NAAQS because it was designated as nonattainment for this standard after the enactment of the 1990 CAA amendments and because Ohio complied with this requirement for the Cleveland area under the prior 1-hour ozone NAAQS. See 59 FR 23796 (May 9, 1994) and 60 FR 15235 (March 23, 1995).

Section 182(a)(2)(B) requires each state with a marginal ozone nonattainment area that implemented or was required to implement a vehicle inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision for an I/M program no less stringent than that required prior to the 1990 CAA amendments or already in the SIP at the time of the CAA amendments, whichever is more stringent. For the purposes of the 2008 ozone standard and the consideration of Ohio's redesignation request for this standard, the Cleveland area is not subject to the section 182(a)(2)(B) requirement because the Cleveland area was designated as nonattainment for the 2008 ozone standard after the enactment of the 1990 CAA amendments. However, the Cleveland area established an I/M program under the 1-hour ozone standard. EPA approved Ohio's enhanced I/M program (E-Check), on April 4, 1995 (60 FR 16989) and January 6, 1997 (62 FR 646). The E-Check program continues to be implemented in the Cleveland area.

Regarding the source permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4), EPA approved Ohio's NSR program on January 22, 2003 (68 FR 2909) and February 25, 2010 (75 FR 8496). However, as discussed above, Ohio has demonstrated that the Cleveland area will be able to maintain the standard without part D nonattainment NSR in effect; therefore, EPA concludes that the state need not have a fully approved part D nonattainment NSR program prior to approval of the redesignation request. The state's PSD NSR program will become effective in the Cleveland area upon redesignation to attainment.

Section 182(a)(3) requires states to submit periodic emission inventories and a revision to the SIP to require the owners or operators of stationary sources to annually submit emission statements documenting actual VOC and NOX emissions. As discussed below in section IV.D.4. of this proposed rule, Ohio will continue to update its emissions inventory at least once every three years. With regard to stationary source emission statements, EPA approved Ohio's emission statement rule on September 27, 2007 (72 FR 54844). On July 18, 2014, Ohio certified that this approved SIP regulation remains in place and remains enforceable for the 2008 ozone standard. EPA approved Ohio's certification on March 10, 2016 (81 FR 12591).

The Cleveland area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of title I of the CAA.

2. The Cleveland Area Has a Fully Approved SIP for Purposes of Redesignation Under Section 110(k) of the CAA

Ohio has adopted and submitted and EPA has approved at various times, provisions addressing the various SIP elements applicable for the ozone NAAQS. As discussed above, EPA has fully approved the Ohio SIP for the Cleveland area under section 110(k) for all requirements applicable for purposes of redesignation under the 2008 ozone NAAQS. EPA may rely on prior SIP approvals in approving a redesignation request (see the Calcagni memorandum at page 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), plus any additional measures it may approve in conjunction with a redesignation action (see 68 FR 25426 (May 12, 2003) and citations therein).

C. Are the air quality improvements in the Cleveland area due to permanent and enforceable emission reductions?

To support the redesignation of an area from nonattainment to attainment, section 107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from the implementation of the SIP and applicable Federal air pollution control regulations and other permanent and enforceable emission reductions. EPA has determined that Ohio has demonstrated that that the observed ozone air quality improvement in the Cleveland area is due to permanent and enforceable reductions in VOC and NOX emissions resulting from state measures adopted into the SIP and Federal measures.

In making this demonstration, the state has calculated the change in emissions between 2011 and 2014. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that the Cleveland area and upwind areas have implemented in recent years. In addition, Ohio EPA provided an analysis to demonstrate the improvement in air quality was not due to unusually favorable meteorology. Based on the information summarized below, Ohio has adequately demonstrated that the improvement in air quality is due to permanent and enforceable emissions reductions.

1. Permanent and Enforceable Emission Controls Implemented

a. Regional NOX Controls

Clean Air Interstate Rule (CAIR)/Cross State Air Pollution Rule (CSAPR). CAIR created regional cap-and-trade programs to reduce sulfur dioxide (SO2) and NOX emissions in 27 eastern states, including Ohio, that contributed to downwind nonattainment and maintenance of the 1997 ozone NAAQS and the 1997 fine particulate matter (PM2.5) NAAQS. See 70 FR 25162 (May 12, 2005). EPA approved Ohio's CAIR regulations into the Ohio SIP on February 1, 2008 (73 FR 6034), and September 25, 2009 (74 FR 48857). In 2008, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR, North Start Printed Page 71450Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR and thus to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR requires substantial reductions of SO2 and NOX emissions from electric generating units (EGUs) in 28 states in the Eastern United States.

The D.C. Circuit's initial vacatur of CSAPR [5] was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015). The remanded budgets include the Phase 2 NOX ozone season emissions budgets for Ohio. This litigation ultimately delayed implementation of CSAPR for three years, from January 1, 2012, when CSAPR's cap-and-trade programs were originally scheduled to replace the CAIR cap-and-trade programs, to January 1, 2015. Thus, while the rule's Phase 2 budgets were originally promulgated to begin on January 1, 2014, they are now scheduled to begin on January 1, 2017. CSAPR will continue to operate under the existing emissions budgets until EPA addresses the D.C. Circuit's remand.

EPA is proposing to approve the redesignation of the Cleveland area without relying on the Ohio CSAPR Phase 2 ozone season NOX emissions budget as an emission control measure having led to attainment of the 2008 ozone NAAQS or contributing to maintenance of that standard. In so doing, we are proposing to determine that the D.C. Circuit's invalidation of the Ohio CSAPR Phase 2 ozone season NOX emissions budget does not bar today's proposed redesignation.

The improvement in ozone air quality in the Cleveland area from 2011 (a year when the design value for the area was above the NAAQS) to 2014 (a year when the design value was below the NAAQS) with respect to EGUs includes changes at several facilities which resulted in NOX emissions reductions. The Cleveland Electric Illuminating Co., Eastlake Plant in Lake County permanently shut down in April of 2015. Prior to the shutdown, EGU NOX emissions had dropped from 27.27 tons per summer day (TPSD) to 5.48 TPSD (2011 to 2014). The First Energy Generation, LLC Lake Shore facility in Cuyahoga County permanently shut down in April of 2015. Prior to the shutdown, EGU NOX emissions had dropped in Cuyahoga County from 2.83 TPSD to 1.10 TPSD (2011 to 2014). The First Energy Generation, LLC Ashtabula Plant in Ashtabula County shut down coal fired boilers in April of 2015 and December of 2015. Prior to the shutdown, EGU NOX emissions in Ashtabula County had dropped from 4.21 TPSD to 1.26 TPSD (2011 to 2014). Even greater reductions than predicted will be achieved in these areas due to the shutdown of these facilities.

b. Federal Emission Control Measures

Reductions in VOC and NOX emissions have occurred statewide and in upwind areas as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include the following.

Tier 2 Emission Standards for Vehicles and Gasoline Sulfur Standards. On February 10, 2000(65 FR 6698), EPA promulgated Tier 2 motor vehicle emission standards and gasoline sulfur control requirements. These emission control requirements result in lower VOC and NOX emissions from new cars and light duty trucks, including sport utility vehicles. With respect to fuels, this rule required refiners and importers of gasoline to meet lower standards for sulfur in gasoline, which were phased in between 2004 and 2006. By 2006, refiners were required to meet a 30 ppm average sulfur level, with a maximum cap of 80 ppm. This reduction in fuel sulfur content ensures the effectiveness of low emission-control technologies. The Tier 2 tailpipe standards established in this rule were phased in for new vehicles between 2004 and 2009. EPA estimates that, when fully implemented, this rule will cut emissions from light-duty vehicles and light-duty trucks by approximately 76 and 28% for NOX and VOC, respectively. NOX and VOC reductions from medium-duty passenger vehicles included as part of the Tier 2 vehicle program are estimated to be approximately 37,000 and 9,500 tons per year, respectively, when fully implemented. In addition, EPA estimates that beginning in 2007, a reduction of 30,000 tons per year of NOX will result from the benefits of sulfur control on heavy-duty gasoline vehicles. Some of these emission reductions occurred by the attainment years and additional emission reductions will occur throughout the maintenance period, as older vehicles are replaced with newer, compliant model years.

Tier 3 Emission Standards for Vehicles and Gasoline Sulfur Standards. On April 28, 2014 (79 FR 23414), EPA promulgated Tier 3 motor vehicle emission and fuel standards to reduce both tailpipe and evaporative emissions and to further reduce the sulfur content in fuels. The rule will be phased in between 2017 and 2025. Tier 3 sets new tailpipe standards for the sum of VOC and NOX and for particulate matter. The VOC and NOX tailpipe standards for light-duty vehicles represent approximately an 80% reduction from today's fleet average and a 70% reduction in per-vehicle PM standards. Heavy-duty tailpipe standards represent about a 60% reduction in both fleet average VOC and NOX and per-vehicle PM standards. The evaporative emissions requirements in the rule will result in approximately a 50% reduction from current standards and apply to all light-duty and on-road gasoline-powered heavy-duty vehicles. Finally, the rule lowers the sulfur content of gasoline to an annual average of 10 ppm by January 2017. While these reductions did not aid the area in attaining the standard, emission reductions will occur during the maintenance period.

Heavy-Duty Diesel Engine Rules. In July 2000, EPA issued a rule for on-highway heavy-duty diesel engines that includes standards limiting the sulfur content of diesel fuel. Emissions standards for NOX, VOC, and PM were phased in between model years 2007 and 2010. In addition, the rule reduced the highway diesel fuel sulfur content to 15 ppm by 2007, leading to additional reductions in combustion NOX and VOC emissions. EPA has estimated future year emission reductions due to implementation of this rule. Nationally, EPA estimated that 2015 NOX and VOC emissions would decrease by 1,260,000 tons and 54,000 tons, respectively. In 2030 EPA estimated that NOX and VOC emissions will decrease by 2,570,000 tons and 115,000 tons, respectively. As projected by these estimates and demonstrated in the on-road emission modeling for the Cleveland area, some of these emission reductions occurred by the attainment years and additional emission reductions will occur throughout the maintenance period as older vehicles are replaced with newer, compliant model years.

Non-road Diesel Rule. On June 29, 2004 (69 FR 38958), EPA issued a rule Start Printed Page 71451adopting emissions standards for non-road diesel engines and sulfur reductions in non-road diesel fuel. This rule applies to diesel engines used primarily in construction, agricultural, and industrial applications. Emission standards are phased in for 2008 through 2015 model years based on engine size. The SO2 limits for non-road diesel fuels were phased in from 2007 through 2012. EPA estimates that when fully implemented, compliance with this rule will cut NOX emissions from these non-road diesel engines by approximately 90%. Some of these emission reductions occurred by the attainment years and additional emission reductions will occur throughout the maintenance period.

Non-road Spark-Ignition Engines and Recreational Engine Standards. On November 8, 2002 (67 FR 68242), EPA adopted emission standards for large spark-ignition engines such as those used in forklifts and airport ground-service equipment; recreational vehicles such as off-highway motorcycles, all-terrain vehicles, and snowmobiles; and recreational marine diesel engines. These emission standards are phased in from model year 2004 through 2012. When fully implemented, EPA estimates an overall 72% reduction in VOC emissions from these engines and an 80% reduction in NOX emissions. Some of these emission reductions occurred by the attainment years and additional emission reductions will occur throughout the maintenance period.

National Emission Standards for Hazardous Air Pollutants (NESHAP) for Reciprocating Internal Combustion Engines. On March 3, 2010 (75 FR 9648) with amendments finalized on January 14, 2013 (78 FR 6674), EPA issued a rule to reduce hazardous air pollutants from existing diesel powered stationary reciprocating internal combustion engines, also known as compression ignition engines. EPA estimates that, as a result of this rule, NOX and VOC emissions from these engines will be reduced by approximately 9,600 and 36,000 tons per year, respectively.

Category 3 Marine Diesel Engine Standards. On April 30, 2010 (75 FR 22896) EPA issued emission standards for marine compression-ignition engines at or above 30 liters per cylinder. Tier 2 emission standards apply beginning in 2011, and are expected to result in a 15 to 25% reduction in NOX emissions from these engines. Final Tier 3 emission standards apply beginning in 2016 and are expected to result in approximately an 80% reduction in NOX from these engines. Some of these emission reductions occurred by the attainment years and additional emission reductions will occur throughout the maintenance period.

Oil and Natural Gas Industry Standards. On August 16, 2012 (77 FR 49490) EPA finalized several rules that apply to the oil and natural gas sector. These rules set standards for natural gas wells that are hydraulically fractured along with several other sources in the oil and natural gas sector. EPA estimates that, as a result of these rules, VOC emissions will be reduced in this source sector by 190,000 to 290,000 tons annually.

2. Emission Reductions

Ohio is using a 2011 inventory as the nonattainment base year. Area, non-road mobile, airport related emissions (AIR), and point source emissions (EGUs and non-EGUs) were collected from the Ozone NAAQS Implementation Modeling platform (2011v6.1). For 2011, this represents actual data Ohio reported to EPA for the 2011 National Emissions inventory (NEI). Because emissions from state inventory databases, the NEI, and the Ozone NAAQS Emissions Modeling platform are annual totals, tons per summer day were derived according to EPA's April 29, 2002 guidance document entitled “Temporal Allocation of Annual Emissions Using EMCH Temporal Profiles” using the temporal allocation references accompanying the 2011v6.1 modeling inventory files. On-road mobile source emissions were developed in conjunction with the Ohio EPA, the Ohio Department of Transportation, the Akron Metropolitan Area Transportation Study (AMATS), and the Northeast Ohio Areawide Coordinating Agency (NOACA) and were calculated from emission factors produced by EPA's Motor Vehicle Emission Simulator (MOVES) model and data extracted from the region's travel-demand model.

For the attainment inventory, Ohio is using 2014, one of the years the Cleveland area monitored attainment of the 2008 ozone standard. Because the 2014 NEI inventory was not available at the time Ohio EPA was compiling the redesignation request, the state was unable to use the 2014 NEI inventory directly. For area, non-road mobile, and AIR, 2014 emissions were derived by interpolating between 2011 and 2018 Ozone NAAQS Emissions Modeling platform inventories. The point source sector for the 2014 inventory was developed using actual 2014 point source emissions reported to the state database, which serve as the basis for the point source emissions reported to EPA for the NEI. Summer day inventories were derived for these sectors using the methodology described above. Finally, on-road mobile source emissions were developed using the same methodology described above for the 2011 inventory.

Using the inventories described above, Ohio's submittal documents changes in VOC and NOX emissions from 2011 to 2014 for the Cleveland area. Emissions data are shown in Tables 2 through 6.

Table 2—Cleveland Area NOX Emissions for Nonattainment Year 2011 (TPSD)

CountyPointAIRNon-roadAreaOn-roadTotal
Ashtabula4.950.002.894.026.3518.21
Cuyahoga10.451.6718.8313.7850.7395.46
Geauga0.020.001.660.877.4610.01
Lake29.210.014.834.2511.9750.27
Lorain14.570.016.175.0414.1139.90
Medina0.200.022.951.9814.5919.74
Portage0.280.002.663.119.9616.01
Summit1.590.336.305.3429.1942.75
Area Totals61.272.0446.2938.39144.36292.35
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Table 3—Cleveland Area VOC Emissions for Nonattainment Year 2011 (TPSD)

CountyPointAIRNon-roadAreaOn-roadTotal
Ashtabula7.100.007.353.812.8821.14
Cuyahoga2.810.4124.8633.3627.0488.48
Geauga0.040.003.344.144.7612.28
Lake1.050.018.226.415.9421.63
Lorain2.600.028.967.547.8026.92
Medina0.640.043.605.235.4114.92
Portage0.910.004.905.924.4816.21
Summit1.220.097.3314.4413.6136.69
Area Totals16.370.5768.5680.8571.92238.27

Table 4—Cleveland Area NOX Emissions for Attainment Year 2014 (TPSD)

CountyPointAIRNon-roadAreaOn-roadTotal
Ashtabula2.000.005.953.824.2215.99
Cuyahoga8.501.8021.0313.6031.7276.65
Geauga0.020.002.890.903.737.54
Lake7.290.016.664.128.0526.13
Lorain12.140.017.404.8310.2934.67
Medina0.210.023.071.9310.3315.56
Portage0.320.004.142.986.7714.21
Summit1.330.366.255.2819.4532.67
Area Totals31.812.2057.3937.0194.56222.97

Table 5—Cleveland Area VOC Emissions for Attainment Year 2014 (TPSD)

CountyPointAIRNon-roadAreaOn-roadTotal
Ashtabula6.690.002.513.752.0915.04
Cuyahoga2.740.4315.4232.5517.8468.98
Geauga0.080.001.324.052.037.48
Lake1.060.014.146.304.3015.81
Lorain2.050.025.137.375.6920.26
Medina0.520.042.335.143.9511.98
Portage1.120.002.125.823.3812.44
Summit1.040.104.9014.1910.0730.30
Area Totals15.300.6037.8779.1749.35182.29

Table 6—Change in NOX and VOC Emissions in the Cleveland Area Between 2011 and 2014 (TPSD)

NOXVOC
20112014Net change (2011-2014)20112014Net change (2011-2014)
Point61.2731.81−29.4616.3715.30−1.07
AIR2.042.200.160.570.600.03
Non-road46.2957.3911.1068.5637.87−30.69
Area38.3937.01−1.3880.8579.17−1.68
On-road144.3694.56−49.8071.9249.35−22.57
Total292.35222.97−69.38238.27182.29−55.98

As shown in Table 6, the Cleveland area reduced NOX and VOC emissions by 69.38 TPSD and 55.98 TPSD, respectively, between 2011 and 2014.

3. Meteorology

Ohio EPA performed an analysis to further support Ohio'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 unusually favorable meteorology. Ohio EPA analyzed the maximum 4th high 8-hour average ozone values for May, June, July, August, and September for years 2000 to 2015. First, the maximum 8-hour average ozone concentration at each monitor in the Cleveland area was compared to the number of days where the maximum temperature was greater than or equal to 80 °F. While there is a clear trend in decreasing ozone concentrations at all monitors, there is no such trend in the temperature data.

Ohio EPA also examined the relationship between the average summer temperature for each year of the 2000-2015 period and the 4th Start Printed Page 71453maximum 8-hour average ozone concentration. While there is some correlation between average summer temperatures and ozone concentrations, this correlation does not exist over the study period. The linear regression lines for each data set demonstrate that the average summer temperatures have increased, while ozone concentrations have decreased. Because the correlation between temperature and ozone formation is well established, these data suggest that reductions in precursors are responsible for the reductions in ozone concentrations in the Cleveland area and not unusually favorable summer temperatures.

Finally, Ohio EPA analyzed the relationship between average summertime relative humidity and average 4th maximum 8-hour average ozone concentrations. The data did not show a correlation between relative humidity and ozone concentrations.

Ohio EPA's analyses of meteorological variables associated with ozone formation further support Ohio's demonstration that the improvement in air quality in the Cleveland area between the year violations occurred and the year attainment was achieved is due to permanent and enforceable emission reductions and not on unusually favorable meteorology.

D. Does Ohio have a fully approvable ozone maintenance plan for the Cleveland area?

As one of the criteria for redesignation to attainment, section 107(d)(3)(E)(iv) of the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the maintenance plan must demonstrate continued attainment of the NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates that attainment of the NAAQS will continue for an additional 10 years beyond the initial 10 year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, as EPA deems necessary, to assure prompt correction of the future NAAQS violation.

The Calcagni memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emission inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. In conjunction with its request to redesignate the Cleveland area to attainment for the 2008 ozone standard, Ohio submitted a SIP revision to provide for the maintenance of the 2008 ozone standard through 2030, more than 10 years after the expected effective date of the redesignation to attainment. As discussed more fully below, EPA proposes to find that Ohio's ozone maintenance plan includes the necessary components, and EPA is proposing to approve the maintenance plan as a revision of the Ohio SIP.

1. Attainment Inventory

EPA has determined that the Cleveland area attained the 2008 ozone NAAQS based on monitoring data for the period of 2013-2015 (81 FR 41444). Ohio selected 2014 as the attainment emissions inventory year to establish attainment emission levels for VOC and NOX. The attainment emissions inventory identifies the levels of emissions in the Cleveland area that are sufficient to attain the 2008 ozone NAAQS. The derivation of the attainment year emissions was discussed above in section IV.C.2. of this proposed rule. The attainment level emissions, by source category, are summarized in tables 4 and 5 above.

2. Has the state documented maintenance of the ozone standard in the Cleveland area?

Ohio has demonstrated maintenance of the 2008 ozone standard through 2030 by assuring that current and future emissions of VOC and NOX for the Cleveland area remain at or below attainment year emission levels. A maintenance demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003).

Ohio is using emissions inventories for the years 2020 and 2030 to demonstrate maintenance. 2030 is more than 10 years after the expected effective date of the redesignation to attainment and 2020 was selected to demonstrate that emissions are not expected to spike in the interim between the attainment year and the final maintenance year. The emissions inventories were developed as described below.

To develop the 2020 and 2030 inventories, the state collected data from the Ozone NAAQS Emissions Modeling platform (2011v6.1) inventories for years 2011, 2018 and 2025. 2020 emissions for area, non-road mobile, AIR, and point source sectors were derived by interpolating between 2018 and 2025. 2030 emissions for area, non-road mobile, AIR, and point source sectors were derived using the TREND function in Excel. If the trend function resulted in a negative value the emissions were assumed not to change. Summer day inventories were derived for these sectors using the methodology described in section IV.C.2. above. Finally, on-road mobile source emissions were developed using the same methodology described in section IV.C.2. above for the 2011 inventory. Emissions data are shown in Tables 7 through 11 below.

Table 7—Cleveland Area Projected NOX Emissions for Interim Maintenance Year 2020 (TPSD)

CountyPointAIRNon-roadAreaOn-roadTotal
Ashtabula1.030.001.953.402.288.66
Cuyahoga6.462.1011.0013.1017.6550.31
Geauga0.030.000.900.942.204.07
Lake4.930.013.203.824.7116.67
Lorain1.950.013.704.355.7615.77
Medina0.210.021.501.825.859.40
Portage0.290.001.392.693.938.30
Summit0.750.443.135.0811.1520.55
Area Totals15.652.5826.7735.2053.53133.73
Start Printed Page 71454

Table 8—Cleveland Area Projected VOC Emissions for Interim Maintenance Year 2020 (TPSD)

CountyPointAIRNon-roadAreaOn-roadTotal
Ashtabula7.070.004.013.661.3816.12
Cuyahoga2.570.4916.6631.5612.1863.46
Geauga0.040.002.373.941.457.80
Lake0.660.014.566.152.8514.23
Lorain2.500.025.367.143.7918.81
Medina0.620.042.455.032.7810.92
Portage0.910.003.185.692.3912.17
Summit1.140.115.0913.876.9627.17
Area Totals15.510.6743.6877.0433.78170.68

Table 9—Cleveland Area Projected NOX Emissions for Maintenance Year 2030 (TPSD)

CountyPointAIRNon-roadAreaOn-roadTotal
Ashtabula1.420.001.362.671.567.01
Cuyahoga6.062.687.6612.0312.0140.44
Geauga0.030.000.610.951.593.18
Lake4.950.012.363.243.2513.81
Lorain1.960.012.403.493.8611.72
Medina0.280.020.791.584.306.97
Portage0.290.000.792.152.906.13
Summit0.770.581.864.668.6216.49
Area Totals15.763.3017.8330.7738.09105.75

Table 10—Cleveland Area Projected VOC Emissions for Maintenance Year 2030 (TPSD)

CountyPointAIRNon-roadAreaOn-roadTotal
Ashtabula7.150.012.183.581.0613.98
Cuyahoga2.490.6014.8630.939.3758.25
Geauga0.040.002.133.871.117.15
Lake0.650.012.776.062.1511.64
Lorain2.500.033.786.952.8616.10
Medina0.630.042.114.972.229.97
Portage0.890.002.525.612.0011.02
Summit1.100.134.8013.626.0125.68
Area Totals15.470.8235.1575.5926.78153.81

Table 11—Projected Change in NOX and VOC Emissions in the Cleveland Area Between 2014 and 2030 (TPSD)

NOXVOC
201420202030Net change (2014-2030)201420202030Net change (2014-2030)
Point31.8115.6515.76−16.0515.3015.5115.470.17
AIR2.202.583.301.100.600.670.820.22
Non-road57.3926.7717.83−39.5637.8743.6835.15−2.72
Area37.0135.2030.77−6.2479.1777.0475.59−3.58
Onroad94.5653.5338.09−56.4749.3533.7826.78−22.57
Total222.97133.73105.75−117.22182.29170.68153.81−28.48

In summary, the maintenance demonstration for the Cleveland area shows maintenance of the 2008 ozone standard by providing emissions information to support the demonstration that future emissions of NOX and VOC will remain at or below 2014 emission levels when taking into account both future source growth and implementation of future controls. In the Cleveland area, NOX and VOC emissions are projected to decrease by 117.22 TPSD and 28.48 TPSD, respectively, between 2014 and 2030.

3. Continued Air Quality Monitoring

Ohio has committed to continue to operate the ozone monitors listed in Table 1 above. Ohio has committed to consult with EPA prior to making changes to the existing monitoring network should changes become necessary in the future. Ohio remains Start Printed Page 71455obligated to meet monitoring requirements and to continue to perform quality assurance of monitoring data in accordance with 40 CFR part 58 and to enter all data into the AQS in accordance with Federal guidelines.

4. Verification of Continued Attainment

The State of Ohio has certified that it has the legal authority to enforce and implement the requirements of the maintenance plan for the Cleveland area. This includes the authority to adopt, implement, and enforce any subsequent emission control measures determined to be necessary to correct future ozone attainment problems.

Verification of continued attainment is accomplished through operation of the ambient ozone monitoring network and the periodic update of the area's emissions inventory. Ohio will continue to operate the current ozone monitors located in the Cleveland area. There are no plans to discontinue operation, relocate, or otherwise change the existing ozone monitoring network other than through revisions in the network approved by the EPA.

In addition, to track future levels of emissions, Ohio will continue to develop and submit to EPA updated emission inventories for all source categories at least once every three years, consistent with the requirements of 40 CFR part 51, subpart A, and in 40 CFR 51.102. The Consolidated Emissions Reporting Rule (CERR) was promulgated by EPA on June 10, 2002 (67 FR 39602). The CERR was replaced by the Air Emissions Reporting Requirements (AERR) on December 17, 2008 (73 FR 76539). The most recent triennial inventory for Ohio was compiled for 2014. Point source facilities covered by Ohio's emission statement rule, Ohio Administrative Code, Chapter 3745-24, will continue to submit VOC and NOX emissions on an annual basis.

5. What is the maintenance plan for the Cleveland area?

Section 175A of the CAA requires that the state must adopt a maintenance plan, as a SIP revision, that includes such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation of the area to attainment of the NAAQS. The maintenance plan must identify: The contingency measures to be considered and, if needed for maintenance, adopted and implemented; a schedule and procedure for adoption and implementation; and, a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be considered, adopted, and implemented. The maintenance plan must include a commitment that the state will implement all measures with respect to the control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d) of the CAA.

As required by section 175A of the CAA, Ohio has adopted a maintenance plan for the Cleveland area including contingency measures to address possible future ozone air quality problems. The specific indicators adopted by Ohio to be used to determine when the contingency measures need to be considered have two levels of response, a warning level response and an action level response.

In Ohio's plan, a warning level response will be triggered when an annual 4th high 8-hour average ozone monitored value of 0.079 ppm or higher is monitored within the maintenance area. A warning level response will consist of Ohio EPA conducting a study to determine whether the ozone value indicates a trend toward higher ozone values or whether emissions appear to be increasing. The study will evaluate whether the trend, if any, is likely to continue and, if so, the control measures necessary to reverse the trend. The study will consider ease and timing of implementation as well as economic and social impacts. Implementation of necessary controls in response to a warning level response trigger will take place within 10 months from the conclusion of the most recent ozone season.

In Ohio's plan, an action level response is triggered when a two-year average of the annual 4th high 8-hour average ozone concentrations is 0.076 ppm or greater is monitored within the maintenance area. A violation of the standard within the maintenance area also triggers an action level response. When an action level response is triggered, Ohio EPA, in conjunction with the metropolitan planning organization or regional council of governments, will determine what additional control measures are needed to assure future attainment of the ozone standard. Control measures selected will be adopted and implemented within 18 months from the close of the ozone season that prompted the action level. Ohio EPA may also consider if significant new regulations not currently included as part of the maintenance provisions will be implemented in a timely manner and would thus constitute an adequate contingency measure response.

Ohio EPA included the following list of potential contingency measures in its maintenance plan:

1. Tighten VOC RACT on existing sources covered by EPA Control Technique Guidelines issued after the 1990 CAA.

2. Apply VOC RACT to smaller existing sources.

3. One or more transportation control measures sufficient to achieve at least half a percent reduction in actual area-wide VOC emissions. Transportation measures will be selected from the following, based upon the factors listed above, after consultation with affected local governments:

a. Trip reduction programs, including, but not limited to, employer-based transportation management plans, area wide rideshare programs, work schedule changes, and telecommuting;

b. traffic flow and transit improvements; and

c. other new or innovative transportation measures, not yet in widespread use, that affected local governments deem appropriate.

4. Alternative fuel and diesel retrofit programs for fleet vehicle operations.

5. Require VOC or NOX emission offsets for new and modified major sources.

6. Increase the ratio of emission offsets required for new sources.

7. Require VOC or NOX controls on new minor sources (less than 100 tons).

8. Adopt additional NOX RACT for existing combustion sources.

EPA finds that the maintenance plan adequately addresses the five basic components of a maintenance plan: Attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and contingency measures. In addition, as required by section 175A(b) of the CAA, Ohio has committed to submit to EPA an updated ozone maintenance plan eight years after redesignation of the Cleveland area to cover an additional ten years beyond the initial 10 year maintenance period. Thus, EPA proposes to find that the maintenance plan SIP revision submitted by Ohio for the Cleveland area meets the requirements of section 175A of the CAA.

V. Has the state adopted approvable Motor Vehicle Emission Budgets (MVBEs)?

A. MVEBs

Under section 176(c) of the CAA, new transportation plans, programs, or projects that receive Federal funding or Start Printed Page 71456support, 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 new air quality violations, worsen existing air quality problems, or delay timely attainment of the NAAQS or interim air quality milestones. Regulations at 40 CFR part 93 set forth criteria and procedures for demonstrating and assuring conformity of transportation activities to a SIP. Transportation conformity is a requirement for nonattainment and maintenance areas. Maintenance areas are areas that were previously nonattainment for a particular NAAQS, but that have been redesignated to attainment with an approved maintenance plan for the NAAQS.

Under the CAA, states are required to submit, at various times, control strategy SIPs for nonattainment areas and maintenance plans for areas seeking redesignations to attainment of the ozone standard and maintenance areas. See the SIP requirements for the 2008 ozone standard in EPA's March 6, 2015 implementation rule (80 FR 12264). These control strategy SIPs (including RFP plans and attainment plans) and maintenance plans must include MVEBs for criteria pollutants, including ozone, and their precursor pollutants (VOC and NOX for ozone) to address pollution from on-road transportation sources. The MVEBs 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. See 40 CFR 93.101.

Under 40 CFR part 93, an MVEB for an area seeking a redesignation to attainment must be established, at minimum, for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB 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 MVEB in the SIP and how to revise the MVEB, if needed, subsequent to initially establishing a MVEB in the SIP.

B. What is the status of EPA's adequacy determination for the proposed VOC and NOX MVEBs for the Cleveland area?

When reviewing submitted control strategy SIPs or maintenance plans containing MVEBs, EPA must affirmatively find that the MVEBs contained therein are adequate for use in determining transportation conformity. Once EPA affirmatively finds that the submitted MVEBs are adequate for transportation purposes, the MVEBs must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.

EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: Public notification of a SIP submission; provision for a public comment period; and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change,” on July 1, 2004 (69 FR 40004). Additional information on the adequacy process for transportation conformity purposes is available in the proposed rule titled, “Transportation Conformity Rule Amendments: Response to Court Decision and Additional Rule Changes,” 68 FR 38974, 38984 (June 30, 2003).

As discussed above, Ohio's maintenance plan includes NOX and VOC MVEBs for the Cleveland area for 2030 and 2020, the last year of the maintenance period and the interim year, respectively. EPA reviewed the VOC and NOX MVEBs through the adequacy process. Ohio's April 21, 2016, maintenance plan SIP submission, including the Cleveland area VOC and NOX MVEBs was open for public comment on EPA's adequacy Web site on July 22, 2016, found at: http://www.epa.gov/​otaq/​stateresources/​transconf/​currsips.htm. The EPA public comment period on adequacy of the 2020 and 2030 MVEBs for the Cleveland area closed on August 22, 2016. No comments on the submittal were received during the adequacy comment period. The submitted maintenance plan, which included the MVEBs, was endorsed by the Director of the Ohio EPA and was subject to a state public hearing held on June 27, 2016, in Cleveland, Ohio. Ohio EPA received no comments during this public hearing. The MVEBS were developed as part of an interagency consultation process which includes Federal, state, and local agencies. The MVEBS were clearly identified and precisely quantified. These MVEBs, when considered together with all other emissions sources, are consistent with maintenance of the 2008 ozone standard.

Table 12—MVEBs for the Cleveland Area, TPSD

Attainment year 2014 on-road emissions2020 Estimated on-road emissions2020 Mobile safety margin allocation2020 MVEBs2030 Estimated on-road emissions2030 Mobile safety margin allocation2030 MVEBs
VOC49.3533.785.0738.8526.784.0230.80
NOX94.5653.538.0361.5638.105.7243.82

As shown in Table 12, the 2020 and 2030 MVEBs exceed the estimated 2020 and 2030 on-road sector emissions. In an effort to accommodate future variations in travel demand models and vehicle miles traveled forecast, Ohio EPA allocated a portion of the safety margin (described further below) to the mobile sector. Ohio has demonstrated that the Cleveland area can maintain the 2008 ozone NAAQS with mobile source emissions in the area of 38.85 TPSD and 30.80 TPSD of VOC and 61.56 TPSD and 43.82 TPSD of NOX in 2020 and 2030, respectively, since despite partial allocation of the safety margin, emissions will remain under attainment year emission levels. EPA, has found adequate and is proposing to approve the MVEBs for use to determine transportation conformity in the Cleveland area, because EPA has determined that the area can maintain attainment of the 2008 ozone NAAQS Start Printed Page 71457for the relevant maintenance period with mobile source emissions at the levels of the MVEBs.

C. 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. As noted in Table 11, the emissions in the Cleveland area are projected to have safety margins of 117.22 TPSD for NOX and 28.48 TPSD for VOC in 2030 (the total net change between the attainment year, 2014, emissions and the projected 2030 emissions for all sources in the Cleveland area). Similarly, there is a safety margin of 89.24 TPSD for NOX and 11.61 TPSD for VOC in 2020. Even if emissions reached the full level of the safety margin, the counties would still demonstrate maintenance since emission levels would equal those in the attainment year.

As shown in Table 12 above, Ohio is allocating a portion of that safety margin to the mobile source sector. Specifically, in 2020, Ohio is allocating 5.07 TPSD and 8.03 TPSD of the VOC and NOX safety margins, respectively. In 2030, Ohio is allocating 4.02 TPSD and 5.72 TPSD of the VOC and NOX safety margins, respectively. Ohio EPA is not requesting allocation to the MVEBs of the entire available safety margins reflected in the demonstration of maintenance. In fact, the amount allocated to the MVEBs represents only a small portion of the 2020 and 2030 safety margins. Therefore, even though the State is requesting MVEBs that exceed the projected on-road mobile source emissions for 2020 and 2030 contained in the demonstration of maintenance, the increase in on-road mobile source emissions that can be considered for transportation conformity purposes is well within the safety margins of the ozone maintenance demonstration. Further, once allocated to mobile sources, these safety margins will not be available for use by other sources.

VI. Proposed Actions

EPA is proposing to determine that the Cleveland area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve Ohio's request to change the legal designation of the Cleveland area from nonattainment to attainment for the 2008 ozone standard. EPA is also proposing to approve, as a revision to the Ohio SIP, the state's maintenance plan for the area. The maintenance plan is designed to keep the Cleveland area in attainment of the 2008 ozone NAAQS through 2030. Finally, EPA finds adequate and is proposing to approve the newly-established 2020 and 2030 MVEBs for the Cleveland area.

VII. 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 that reason, 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 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone NAAQS in tribal lands.

Start List of Subjects

List of Subjects in 40 CFR Part 52

  • Environmental protection
  • Air pollution control
  • Incorporation by reference
  • Intergovernmental relations
  • Oxides of nitrogen
  • Ozone
  • Volatile organic compounds
End List of Subjects Start Signature

Dated: October 5, 2016.

Robert A. Kaplan,

Acting Regional Administrator, Region 5.

End Signature End Supplemental Information

Footnotes

1.  The rule, titled “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” and published at 80 FR 12264 (March 6, 2015), addresses nonattainment area SIP requirements for the 2008 ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology (RACT), reasonably available control measures (RACM), new source review (NSR), emission inventories, and the timing requirements for SIP submissions and compliance with emission control measures in the SIP. This rule also addresses the revocation of the 1997 ozone NAAQS and the anti-backsliding requirements that apply when the 1997 ozone NAAQS is revoked.

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2.  The ozone season is defined by state in 40 CFR 58 appendix D. For the 2012-2014 and 2013-2015 time periods, the ozone season for Ohio was April-October. Beginning in 2016, the ozone season for Ohio is now March-October. See, 80 FR 65292, 65466-67 (October 26, 2015).

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3.  On October 27, 1992 (63 FR 57356), EPA issued a NOX “SIP call” requiring the District of Columbia and 22 states to reduce emissions of NOX in order to reduce the transport of ozone and ozone precursors. In compliance with EPA's NOX SIP call, Ohio developed rules governing the control of NOX emissions from Electric Generating Units (EGUs), major non-EGU industrial boilers and turbines, and major cement kilns. EPA approved Ohio's rules as fulfilling Phase I of the NOX SIP Call on August 5, 2003 (68 FR 46089) and June 27, 2005 (70 FR 36845), and as meeting Phase II of the NOX SIP Call on February 4, 2008 (73 FR 6427).

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4.  CAA section 176(c)(4)(E) requires states to submit revisions to their SIPs to reflect certain Federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from SIPs requiring the development of Motor Vehicle Emission Budgets (MVEBs), such as control strategy SIPs and maintenance plans.

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5.  EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012).

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[FR Doc. 2016-24914 Filed 10-14-16; 8:45 am]

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