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Citation: 61 Fed. Reg. 31831 1996 

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Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

current. It, therefore-(1) is not a "significant regulatory action" under

Executive Order 12866; (2) is not a "significant rule" under DOT

Regulatory Policies and Procedures (44

FR 11034; February 26, 1979); and (3)

does not warrant preparation of a

regulatory evaluation as the anticipated

impact is so minimal. For the same

reason, the FAA certifies that this

amendment will not have a significant

economic impact on a substantial

number of small entities under the

criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air traffic control, Airports,

Navigation (Air).

Issued in Washington, DC on June 14,

1996.

Thomas C. Accardi,

Director, Flight Standards Service.

Adoption of the Amendment

Accordingly, pursuant to the

authority delegated to me, part 97 of the

Federal Aviation Regulations (14 CFR

part 97) is amended by establishing,

amending, suspending, or revoking

Standard Instrument Approach

Procedures, effective at 0901 UTC on

the dates specified, as follows:

PART 97-STANDARD INSTRUMENT

APPROACH PROCEDURES

1. The authority citation for part 97 is

revised to read as follows:

Authority: 49 U.S.C. 40103, 40113, 40120,

44701; 49 U.S.C. 106(g); and 14 CFR

11.49(b)(2).

2. Part 97 is amended to read as

follows:

§§97.23, 97.27, 97.33, 97.35 [Amended]

By amending: § 97.23 VOR, VOR/

DME, or TACAN, and VOR/DME or

TACAN; § 97.27 NDB, NDB/DME;

§ 97.33 RNAV SIAPs; and § 97.35

COPTER SIAPs, identified as follows:

***Effective August 15, 1996

Bartow, FL, Bartow Muni, VOR/DME or GPS

RWY 9L, Amdt IA Cancelled

Bartow, FL, Bartow Muni, VOR/DME RWY

9L, Amdt IA

Lake Providence, LA, Byerley, NDB or GPS

RWY 17, Amdt 1 Cancelled

Lake Providence, LA, Byerley, NDB RWY 17,

Amdt 1

Marksville, LA, Marksville Muni, NDB or

GPS RWY 4, Amdt IA Cancelled

Marksville, LA, Marksville Muni, NDB RWY

4, Amdt IA

Mansfield, MA, Mansfield Muni, NDB or GPS

RWY 32, Amdt 4 Cancelled

Mansfield, MA, Mansfield Muni, NDB RWY

32, Amdt 4

Willmar, MN, Willmar Muni-John L. Rice

Field, VOR or GPS RWY 10, Amdt IA

Cancelled

Willmar, MN, Willmar Muni-John L. Rice

Field, VOR RWY 10, Amdt IA

Imperial, NE, Imperial Muni, NDB or GPS

RWY 31, Amdt 2 Cancelled

Imperial, NE, Imperial Muni, NDB RWY 31,

Amdt 2

Portsmouth, NH, Pease International

Tradeport, VOR or TACAN or GPS RWY

16, Amdt IA Cancelled

Portsmouth, NH, Pease International

Tradeport, VOR or TACAN RWY 16, Amdt

IA

Trenton, NJ, Mercer County, VOR/DME

RNAV or GPS RWY 16, Amdt 4 Cancelled

Trenton, NJ, Mercer County, VOR/DME

RNAV RWY 16, Amdt 4

Trenton, NJ, Mercer County, VOR/DME

RNAV or GPS RWY 34, Amdt 5 Cancelled

Trenton, NJ, Mercer County, VOR/DME

RNAV RWY 34, Amdt 5

North Kingstown, RI. Quonset State, VOR or

GPS RWY 34, Orig Cancelled

North Kingstown, RI, Quonset State, VOR

RWY 34, Orig.

Hondo, TX, Hondo Muni, VOR or GPS RWY

17L, Orig Cancelled

Hondo, TX, Hondo Muni, VOR RWY 17L,

Orig.

[FR Doc. 96 15914 Filed 6 20 96; 8:45 am]

BILLING CODE 4910-13-M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[M143-03-7258; FRL-5525-4]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; State of Michigan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: On April 2, 1996 the

Environmental Protection Agency (EPA)

published a proposal to approve the

redesignation to attainment and

associated section 175A maintenance

plan for the ozone National Ambient Air

Quality Standard (NAAQS) for the twocounty Grand Rapids, Michigan area as

a State Implementation Plan (SIP)

revision. The 30-day comment period

concluded on May 2, 1996. A total of 1

comment letter was received in

response to the April 2, 1996 proposal.

On May 1, 1996, the EPA published a

14-day partial extension of the comment

period on the redesignation request and

section 175A maintenance plan, limited

to the State's April 11, 1996 revision to

the section 175A maintenance plan

which was not available in EPA's docket

prior to April 15, 1996. The reopened

comment period concluded on May 16,

1996. One additional comment letter

was received in response to the May 1,

1996, extension of public comment

period. This final rule summarizes all

comments and EPA's responses, and

finalizes the approval of the

redesignation to attainment for ozone

and associated section 175A

maintenance plan for the Grand Rapids

area.

EFFECTIVE DATE: This action will be

effective June 21, 1996.

ADDRESSES: Copies of the SIP revisions,

public comments and EPA's responses

are available for inspection at the

following address: (It is recommended

that you telephone Jacqueline Nwia at

(312) 886-6081 before visiting the

Region 5 Office.) United States

Environmental Protection Agency,

Region 5, Air and Radiation Division, 77

West Jackson Boulevard, Chicago,

Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

Jacqueline Nwia, Regulation

Development Section (AR-18J), Air

Programs Branch, Air and Radiation

Division, United States Environmental

Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois

60604, Telephone Number (312) 886-

6081.

SUPPLEMENTARY INFORMATION:

I. Background Information

The redesignation request and

maintenance plan for the Grand Rapids

and Muskegon moderate ozone

nonattainment areas discussed in this

rule were submitted on March 9, 1995

and May 1, 1995 (with a revision on

April 11, 1996), by the Michigan

Department of Environmental Quality

(MDEQ). However, the April 2, 1996

proposal and this final rule address only

the Grand Rapids area, which consists

of Kent and Ottawa Counties. On April

2, 1996, (61 FR 14522) the EPA

published a proposal to approve the

redesignation request and associated

section 175A maintenance plan as a

revision to the Michigan ozone SIP. On

May 1, 1996 (61 FR 19233), the EPA

published a partial 14-day extension of

the comment period on the

redesignation request and section 175A

maintenance plan, limited to the State's

April 11, 1996 revision to the section

175A maintenance plan, which was not

available in EPA's docket prior to April

15, 1996. The reopened comment period

concluded on May 16, 1996. Adverse

comments were received regarding the

proposed rule. The final rule contained

in this Federal Register addresses the

comments which were received during

the public comment periods and

announces EPA's final action regarding

the redesignation and section 175A

maintenance plan for the Grand Rapids

31831

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31832 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

area. A more detailed discussion in

response to each comment is contained

in the EPA's Technical Support

Document (TSD), dated XXX, 1995 from

Jacqueline Nwia to the Docket, entitled

"Response to Comments on the April 2,

1996 Proposal to Approve the

Redesignation to Attainment for Ozone

and Section 175A Maintenance Plan for

the Grand Rapids Area," which is

available from the Region 5 office listed

above.

II. Public Comments and EPA

Responses and Final Rulemaking

Actions

The following discussion summarizes

and responds to the comments received

regarding the redesignation of the Grand

Rapids area to attainment for ozone.

Comment: The commentor requested

additional time to review and provide

comments on the proposed

redesignation because: the proposal was

contingent on Michigan's submittal of a

revision to the section 175A

maintenance plan which was not

available for public review until April

15, 1996; the proposed action concerns

the public health of many of the

requestor's members; and the proposed

action incorporates new guidance and

policy which have broad implications

throughout the Lake Michigan basin and

beyond. The commentor requested a

minimum of 30 days beyond the date of

Michigan's most recent submittal or

May 15, 1996.

Response: EPA extended the public

comment period only for those portions

of the redesignation and section 175A

maintenance plan pertaining to

Michigan's April 11, 1996 maintenance

plan SIP that did not become available

in EPA's docket until April 15, 1996.

The 14-day extension concluded on

May 16, 1996. The EPA believes this

provides the commentor with an

adequate opportunity to review and

submit comments on the subject of this

rulemaking action.

Comment: The commentor notes that

the proposed redesignation violates the

specific and general intent of Congress

in specifying requirements for

redesignation. The commentor

elaborates by stating that the proposed

approval violates redesignation

requirements of the Clean Air Act

Amendments of 1990 (Act) by lowering

the threshold for redesignation of these

areas by reinterpretation of longstanding

redesignation guidance and granting of

waivers and exemptions of applicable

statutory requirements. The waivers

granted to the Grand Rapids area

include: waiver from adoption of

volatile organic compounds (VOC)

reasonably available control technology

(RACT) rules; waiver of the reasonable

further progress (RFP) requirement;

waiver of the part D New Source Review

(NSR) requirement and waiver from the

adoption of conformity rules.

Response: At the outset, EPA rejects

the contention that its actions violate

the redesignation requirements of the

Act. The EPA has not granted the Grand

Rapids area "waivers," or "exemptions"

from, nor reinterpreted longstanding

guidance pertaining to, RFP

requirements or conformity. The EPA

did propose an exception to current

policy regarding the need to adopt

certain VOC RACT rules prior to

redesignation and applied the October

14, 1994 memorandum from Mary

Nichols, Assistant Administrator for Air

and Radiation entitled "Part D New

Source Review (part D NSR)

Requirements for Areas Requesting

Redesignation to Attainment," 

regarding the requirements for part D

NSR.

With respect to the RFP requirement,

on July 20, 1995, the EPA made a

determination regarding the

applicability of certain RFP and

attainment demonstration requirements.

This final rule determined that since the

Grand Rapids area had demonstrated

attainment of the ozone standard, a

factual determination based on 3 years

of complete quality assured monitoring

data, certain provisions of the Act,

whose explicit purpose is to achieve

attainment of the standard, do not

require SIP revisions to be made by the

State for so long as the area continues

to attain the standard. Those provisions

include RFP, the section 172(c)(9)

contingency measures and attainment

demonstration. The EPA believes it is

reasonable to interpret provisions

regarding RFP and attainment

demonstrations, along with certain other

related provisions, so as not to require

SIP submissions if an ozone

nonattainment area subject to those

requirements is monitoring attainment

of the ozone standard (i.e., attainment of

the NAAQS demonstrated with three

consecutive years of complete, qualityassured, air quality monitoring data). As

explained in a memorandum from John

S. Seitz, Director, Office of Air Quality

Planning and Standards, entitled "RFP,

Attainment Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard," dated

May 10, 1995,2 EPA believes it is

appropriate to interpret the more

1 Hereinafter referred to as "October 1994 Nichols

memorandum." 2 Hereinafter referred to as "May 1995 Seitz

memorandum."

specific RFP, attainment demonstration

and related provisions of subpart 2 in

the same manner as EPA had previously

interpreted the general provisions of

subpart 1 of part D of Title I (sections

171 and 172).

EPA has explained at length in other

notices, including the July 20, 1995

determination of attainment regarding

the Grand Rapids area (60 FR 37366), its

rationale for the reasonableness of that

interpretation of the Act and

incorporates those explanations by

reference here. See Approval and

Promulgation of Implementation Plans

and Designation of Areas for Air Quality

Planning Purposes; Ohio, 61 FR 20458

(May 7, 1996); Determination of

Attainment of Ozone Standard for Salt

Lake and Davis Counties, Utah, 60 FR

36723 (July 18, 1995). EPA emphasizes

that it has not suspended or granted the

Grand Rapids area an exemption from

any applicable requirements. Rather,

EPA has interpreted the requirements of

sections 182(b)(1)(A)(I) and 172(c)(9) as

not being applicable once an area has

attained the standard, as long as it

continues to do so. This is not a waiver

of requirements that by their terms

clearly apply; it is a determination that

certain requirements are written so as to

be operative only if the area is not

attaining the standard.

The May 1995 Seitz memorandum

was clear about the consequences of the

policy for redesignations. First, it made

plain that a determination of attainment

is not tantamount to a redesignation of

an area to attainment. Attainment is

only one of the criteria set forth in

section 107(d)(3)(E). To be redesignated,

the State must satisfy all of the criteria

of section 107(d)(3)(E), including the

requirement of a demonstration that the

improvement in the area's air quality is

due to permanent and enforceable

reductions, and the requirements that

the area have a fully-approved SIP

which meets all of the applicable

section 110 and part D requirements,

and a fully approved maintenance plan.

Upon a determination of attainment,

however, the section 182(b)(1)(A)(I)

requirements of RFP and attainment

plans, and the section 172(c)(9)

requirement of contingency plans are no

longer considered applicable

requirements under section 107(d)(3)(E).

They would no longer be included

among those measures whose approval

is part of the requirement of having a

fully approved SIP.

EPA is not diluting the redesignation

requirements of section 107(d). What

EPA has done is make a determination

that since the area is attaining the

standard, which is a factual

determination, certain provisions of the

HeinOnline -- 61 Fed. Reg. 31832 1996
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

Act, whose express purpose is to

achieve attainment of the standard, do

not require SIP revisions to be made by

the State for so long as the area

continues to attain the standard. This

has long been EPA's policy with respect

to the section 172(c)(9) contingency

measures and section 172(c)(2) RFP

requirement. See general preamble at 57

FR 13498. EPA has also made

determinations regarding section 182(f)

NOx waivers at or before the

redesignation of an area and therefore

not required NOx RACT submissions to

approve such redesignations. See the

Bay Area redesignation at 59 FR 49361

and Detroit-Ann Arbor redesignation at

60 FR 12459.

EPA's statutory analysis was

explained in detail in the July 20, 1995

final rulemaking and in the May 1995

Seitz memorandum. To the extent here

pertinent, such portions of that notice,

including the responses to comments,

are incorporated herein by reference.

Thus, EPA disagrees with the

commentors' view that EPA is not

complying with all the redesignation

requirements of section 107(d)(3)(E).

EPA has interpreted SIP submission

requirements of section 182(b)(1)

regarding reasonable further progress

and attainment demonstration plans,

and of section 172(c)(9) regarding

contingency measures to be

implemented in the event an area fails

to make reasonable further progress or

attain the standard by the attainment

date, not to apply for so long as the area

continues to attain the standard. Since

they are not applicable, fulfillment of

these requirements is not necessary to

meet the redesignation criteria of

section 107(d)(3)(E).

The commentor challenges EPA's

authority to determine certain SIP

requirements inapplicable, and then

bootstraps that argument to complain

that since Grand Rapids has not met

these requirements, the redesignation

request only partially fulfills section

107(d)(E)(v). The commentor argues that

this is because the State has not met all

"applicable" requirements under

section 110 and part D; but the

requirements it points to are the very

ones that EPA has determined are

inapplicable.

EPA rejects this kind of circular

argument. Since EPA has determined

that the statute does not require certain

submissions so long as the area is in

attainment, those inapplicable

requirements cannot serve as the basis

for concluding that the redesignation

request is defective. Under the criteria

of section 107(d)(E)(3) itself, a State

need only meet all applicable

requirements, and have a fully approved

plan that contains all required elements.

Thus EPA's interpretation is fully

consistent with the criteria of section

107(d)(3). Since EPA has determined

that the 15 percent, attainment

demonstration, and section 172(c)(9)

contingency plan requirements are not

applicable to Grand Rapids, and has

found the SIP to be fully approvable

without them, the Grand Rapids area

has fairly met the criteria of section

107(d)(3). Certainly EPA, after

determining that these requirements are

inapplicable, could not in good faith

conclude that the redesignation request

is defective because it fails to meet

them.

Thus EPA concludes that, where it

has made a determination of attainment

that results in the suspension of

requirements, it may rely on that

determination and its consequences in

considering the approvability of a

redesignation request.

For the reasons stated above and

elsewhere in this document, in the July

20, 1995 Federal Register notice (60 FR

37366) pertaining to the Grand Rapids

area, in the May 1995 Seitz

memorandum, in the Utah notice (60 FR

36723, July 18, 1995) and in the

Cleveland -Akron -Lorain notice (May 7,

1996, 61 FR 20468), EPA does not

believe that the rulemaking violates any

section of the Act, nor does it dilute the

redesignation requirements under

section 107(d)(3)(E).

With respect to the full adoption of

VOC RACT rules, it should first be

noted that Michigan has submitted and

EPA has approved all of the sections

182(b)(2)(B) and 182(b)(2)(C) VOC RACT

requirements applicable to the Grand

Rapids area on September 7, 1994 (59

FR 46182) and October 23, 1995 (60 FR

54308). Therefore, the EPA assumes that

the commentor is concerned about the

section 182(b)(2)(A) requirement of the

Act which requires States to develop

VOC RACT rules for sources "covered

by a CTG document issued by the

Administrator between November 15,

1990, and the date of attainment" for

moderate and above ozone

nonattainment areas. The EPA has not

granted the Grand Rapids area a "waiver" or "exemption" from this

requirement either. In fact, EPA's

proposed rulemaking action

acknowledges the applicability of these

rules in light of current EPA guidance

(See "Procedures for Processing

Requests to Redesignate Areas to

Attainment," from John Calcagni,

Director, Air Quality Management

Division, dated September 4, 1992), 3

3 Hereinafter referred to as "September 1992

Calcagni memorandum."

since the due date for the CTG RACT

rules at issue preceded the submission

of the redesignation request, and

consequently, generally require full

adoption, submission and approval of

these rules prior to approval of the

redesignation request. 4

The EPA does, however, believe that

in the context of the particular

circumstances of this redesignation, that

it is reasonable and permissible to

depart from that policy and instead

accept a commitment to implement

these RACT rules as contingency

measures in the maintenance plan

rather than require full adoption and

approval of the rules prior to approval

of the redesignation. The reasons

justifying this departure from EPA's

general policy were explained in the

proposed action and are presented

below.

EPA believes that several factors in

combination justify allowing this

exception to current EPA policy with

respect to the Grand Rapids

redesignation. First, the RACT rules at

issue came due after the end of the

ozone season in which Grand Rapids

attained the standard and were not

needed to bring about attainment of the

ozone standard in Grand Rapids.

Second, the State has demonstrated

continued maintenance of the ozone

standard through 2007 without the

implementation of these measures.

Third, the State has placed other

contingency measures in the

maintenance plan that would bring

about far greater emission reductions

than the VOC RACT rules and would

therefore be substantially more effective

in terms of correcting violations

attributable to local emissions from the

Grand Rapids area that may occur after

redesignation. EPA's analysis of the

emission reductions shows that the

implementation of enhanced inspection

and maintenance (I/M), Stage II or low

Reid Vapor Pressure (RVP) (to 7.8 psi)

programs would bring about greater

reductions than VOC RACT rules for

wood furniture coating, plastic parts

coating and industrial clean-up solvents

in aggregate, and substantially greater

reductions than any of these RACT rules

individually. Consequently, EPA

believes that the other, more effective

contingency measures, should and

4

The EPA also notes that the Synthetic Organic

Chemical Manufacturing (SOCMI) Distillation and

Reactor CTG was issued on November 15, 1993,

prior to the submission of the Grand Rapids

redesignation request. That CTG, however,

established a due date for State submittal of the

SOCMI Distillation and Reactor rules of March 23,

1995 (See March 23, 1994, 59 FR 13717), a date

after submission of a request to redesignation Grand

Rapids to attainment. Thus, those rules are not

applicable for purposes of this redesignation.

31833

HeinOnline -- 61 Fed. Reg. 31833 1996
31834 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

would be implemented first even if the

RACT rules were to be fully adopted

prior to redesignation. The detailed

analysis of these emission reduction

estimates is contained in the TSD for the

proposed rulemaking action dated

March 20, 1996 entitled "TSD for the

Request to Redesignate the Grand

Rapids, Michigan Moderate

Nonattainment Area to Attainment for

Ozone and Proposed Revision to the

Michigan Ozone SIP for a Section 175A

Maintenance Plan" and TSD for this

action dated XX, 1996, entitled

"Response to Comments on the April 2,

1996 Proposal to Approve the

Redesignation to Attainment for Ozone

and Section 175A Maintenance Plan for

the Grand Rapids Area."

EPA emphasizes that even under this

departure from its policy regarding this

action, the requirement for these RACT

rules remains an applicable requirement

for purposes of evaluating the

redesignation request since it predated

the submission of the request. The

requirement, however, is met in the

form of the submission and full

approval of a commitment to adopt and

implement these rules as contingency

measures in the maintenance plan.

(Under EPA's existing policy,

contingency measures in maintenance

plans may consist of commitments to

adopt and implement measures upon a

violation of the standard. See September

1992 Calcagni Memorandum.)

EPA further notes that even without

this exception to its general policy, the

State would have been able to have the

RACT rules become a part of the

contingency measures in the

maintenance plan upon approval of the

redesignation. That could have occurred

only after or upon EPA's full approval

of the adopted RACT rules, however.

Thus, the only difference between EPA's

general policy and the exception to that

policy described in this action is that a

commitment to adopt and implement

the RACT rules in an expeditious

manner, rather than fully-adopted RACT

rules, would be among the contingency

measures in the maintenance plan. In

light of the combination of factors

discussed above, including in particular

the inclusion of other, significantly

more effective, contingency measures in

the maintenance plan, EPA believes that

this difference has no significant

environmental consequence and that it

is permissible to approve the Grand

Rapids redesignation on this basis. The

EPA believes that this exception to its

general policy is legally permissible

under the statutory provisions

governing redesignations. As noted

above, the VOC RACT requirements

remain applicable requirements under

section 107 and EPA believes that their

treatment in the contingency plan as

commitments is consistent with the

manner in which EPA has accepted

other commitments to adopt and

implement contingency measures in

maintenance plans under section 175A.

The EPA believes that the Grand

Rapids area may be redesignated to

attainment notwithstanding the lack of

a fully-approved part D NSR program

meeting the requirements of the 1990

Act amendments and the absence of

such a part D NSR program from the

contingency plan. This view has been

set forth by the EPA as its policy in the

1994 Nichols memorandum.

The EPA believes that its decision not

to insist on a fully-approved part D NSR

program as a pre-requisite to

redesignation is justifiable as an

exercise of the Agency's general

authority to establish de minimis

exceptions to statutory requirements.

See Alabama Power Co. v. Costle, 636

F.2d 323, 360-61 (D.C. Cir. 1979). Under

Alabama Power, Co. v. Costle, the EPA

has the authority to establish de

minimis exceptions to statutory

requirements where the application of

the statutory requirements would be of

trivial or no environmental value. See

also EDFv. EPA, Nos. 94-1044 and 94-

1062, Slip Op. at 28-29 (D.C. Cir. April

19, 1996).

Plainly, the part D NSR provisions of

section 110 and part D are requirements

that were applicable to the Grand

Rapids area at the time of the

submission of the request for

redesignation. Thus, on its face, section

107(d)(3)(E) would seem to require that

the State have submitted and the EPA

have fully-approved a part D NSR

program meeting the requirements of

the Act before the areas could be

redesignated to attainment.

Under the EPA's de minimis

authority, however, it may establish an

exception to an otherwise plain

statutory requirement if its fulfillment

would be of little or no environmental

value. In this context, it is necessary to

determine what would be achieved by

insisting that there be a fully-approved

part D NSR program in place prior to the

redesignation of the Grand Rapids area.

For the following reasons, the EPA

believes that requiring the adoption and

full-approval of a part D NSR program

prior to redesignation would not be of

significant environmental value in this

case.

The Grand Rapids area has

demonstrated that maintenance of the

ozone NAAQS will occur even if the

emission reductions expected to result

from the part D NSR program do not

occur. The emission projections to

demonstrate maintenance of the

NAAQS considered growth in point

source emissions (along with growth for

other source categories) and were

premised on the assumption that the

Prevention of Significant Deterioration

(PSD) program, rather than the part D

NSR, would be in effect, during the

maintenance period. Under part D NSR,

significant point source emissions

growth would not occur. Michigan

assumed that part D NSR would not

apply after redesignation to attainment

and instead assumed source growth

factors based on projected growth in the

economy and in the area's population.

(It should be noted that the growth

factors assumed may be overestimates

under PSD, which would restrain source

growth through the application of best

available control techniques.) Thus,

Michigan has demonstrated that there is

no need to retain the part D NSR as an

operative program in the SIP during the

maintenance period to provide for

continued maintenance of the ozone

NAAQS.

The other purpose that requiring the

full-approval of a part D NSR program

might serve would be to ensure that part

D NSR would become a contingency

provision in the maintenance plan

required for these areas by sections

107(d)(3)(E)(iv) and 175A(d). These

provisions require that, for an area to be

redesignated to attainment, it must

receive full approval of a maintenance

plan containing "such contingency

provisions as the Administrator deems

necessary to assure that the State will

promptly correct any violation of the

standard which occurs after the

redesignation of the area as an

attainment area. Such provisions shall

include a requirement that the State will

implement all measures with respect to

the control of the air pollutant

concerned which were contained in the

SIP for the area before redesignation of

the area as an attainment area." Based

on this language, it is apparent that

whether an approved part D NSR

program must be included as a

contingency provision depends on

whether it is a "measure" for the control

of the pertinent air pollutants.

The term "measure" is not defined in

section 175A(d) and Congress utilized

that term differently in different

provisions of the Act with respect to the

part C PSD and part D NSR permitting

programs. For example, in section

110(a)(2)(A), Congress required that SIPs

include "enforceable emission

limitations and other control measures,

means, or techniques * * * as may be

necessary or appropriate to meet the

applicable requirements of the Act." In

section 1 10(a)(2)(C), Congress required

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that SIPs include "a program to provide

for the enforcement of the measures

described in subparagraph (A), and

regulation of the modification and

construction of any stationary source

within the areas covered by the plan as

necessary to assure that NAAQS are

achieved, including a permit program as

required in parts C and D." (Emphasis

added.) If the term measures as used in

sections 110(a)(2) (A) and (C) had been

intended to include part C PSD and part

D NSR there would have been no point

to requiring that SIPs include both

measures and preconstruction review

under parts C and D (PSD or NSR).

Unless "measures" referred to

something other than preconstruction

review under parts C and D, the

reference to preconstruction review

programs in section 1 10(a)(2)(C) would

be rendered mere surplusage. Thus, in

sections 110(a)(2) (A) and (C), it is

apparent that Congress distinguished "measures" from preconstruction

review. On the other hand, in other

provisions of the Act, such as section

161, Congress appeared to include PSD

within the scope of the term

"measures."

The EPA believes that the fact that

Congress used the undefined term

"measure" differently in different

sections of the Act is germane. This

indicates that the term is susceptible to

more than one interpretation and that

the EPA has the discretion to interpret

it in a reasonable manner in the context

of section 175A. Inasmuch as Congress

itself has used the term in a manner that

excluded part C PSD and part D NSR

from its scope, the EPA believes it is

reasonable to interpret "measure," as

used in section 175A(d), not to include

part D NSR. That this is a reasonable

interpretation is further supported by

the fact that PSD, a program that is the

corollary of part D NSR for attainment

areas, goes into effect in lieu of part D

NSR.5 This distinguishes part D NSR

from other required programs under the

Act, such as inspection and

5 The EPA is not suggesting that part D NSR and

prevention of significant (PSD) are equivalent, but

merely that they are the same type of program. The

PSD program is a requirement in attainment areas

and designed to allow new source permitting, yet

contains adequate provisions to protect the

NAAQS. If any information including

preconstruction monitoring, indicates that an area

is not continuing to meet the NAAQS after

redesignation to attainment, 40 CFR 51 appendix S

(Interpretive Offset Rule) or a 40 CFR 51.165(b)

program would apply. The EPA believes that in any

area that is designated or redesignated as attainment

under section 107, but experiences violations of the

NAAQS, these provisions should be interpreted as

requiring major new or modified sources to obtain

VOC emission offsets of at least a 1:1 ratio, and as

presuming that 1:1 oxides of nitrogen (NOx) offsets

are necessary. See October 1994 Nichols

memorandum.

maintenance and RACT programs,

which have no corollary for attainment

areas. Moreover, the EPA believes that

those other required programs are

clearly within the scope of the term

"measure." 6

The EPA's logic in treating part D

NSR in this manner does not mean that

other applicable part D requirements,

including those that have been

previously met and previously relied

upon in demonstrating attainment,

could be eliminated without an analysis

demonstrating that maintenance would

be protected. As noted above, Michigan

has demonstrated that maintenance

would be protected with PSD in effect,

rather than part D NSR. Thus, the EPA

is not permitting part D NSR to be

removed without a demonstration that

maintenance of the standard will be

achieved. Moreover, the EPA has not

amended its policy with respect to the

conversion of other SIP elements to

contingency provisions, which is that

they may be converted to contingency

provisions only upon a showing that

maintenance will be achieved without

them being in effect. Finally, as noted

above, the EPA believes that the part D

NSR requirement differs from other

requirements, and does not believe that

the rationale for the part D NSR

exception extends to other required

programs.

As noted above, this change in policy

was detailed in the October 1994

Nichols memorandum 7. The position

taken in this action is consistent with

the EPA's current national policy

detailed in the October 1994 Nichols

memorandum. That policy permits

redesignation to proceed without

otherwise required part D NSR programs

having been fully approved and

converted to contingency provisions

provided that the area demonstrates, as

has been done in this case, that

maintenance will be achieved with the

6 The EPA also notes that in the case of the

Michigan area, all permits to install for major offset

sources and major offset modifications issued by

the State in the moderate nonattainment areas since

November 15, 1992 have complied with the 1.15 to

1.0 offset ratio. In addition, permits to install cannot

be issued under the PSD program unless the

applicant can demonstrate that the increased

emissions from the new or modified source will not

result in a violation of the NAAQS. Michigan's Rule

702, which is part of the SIP, requires the

installation of Best Available Control Technology

regardless of size or location of all new and

modified sources in the State. In addition,

Michigan's Rule 207, also approved in the SIP,

requires denial of any permit to install if operation

of the equipment will interfere with attainment or

maintenance of the NAAQS.

7Which has been applied in other areas such as

Detroit, Michigan, Preble, Columbiana, Clinton,

Youngstown, Columbus, Canton, Cleveland, Toledo

and Dayton, Ohio.

application of PSD rather than part D

NSR.

The EPA has not "waived" the

requirement for adoption and

implementation of conformity

regulations. Rather, EPA has determined

that those requirements will continue to

apply after the area is redesignated, and

therefore need not be fulfilled as a

condition of redesignation. The State of

Michigan, in fact, has submitted

transportation and general conformity

SIP revisions on November 24, 1994 and

November 29, 1994, respectively. The

issue is full approval of these rules prior

to redesignation. As presented in the

April 2, 1996 (61 FR 14522) proposal,

the EPA believes that it is reasonable to

interpret the conformity requirement as

not being applicable for purpose of

redesignation under section 107(d). The

rationale for this is based on a

combination of two factors. First, the

requirement to submit SIP revisions to

comply with the conformity provisions

of the Act continue to apply to areas

after redesignation to attainment, since

such areas would be subject to a section

175A maintenance plan. Therefore, the

State remains obligated to adopt the

transportation and general conformity

rules even after redesignation and

would risk sanctions for failure to do so.

While a redesignation of an area to

attainment enables the area to avoid

further compliance with most

requirements of section 110 and part D,

since those requirements are linked to

the nonattainment status of an area, the

conformity requirements apply to both

nonattainment and maintenance areas.

Second, EPA's federal conformity rules

require the performance of conformity

analyses in the absence of state-adopted

rules. Therefore, a delay in adopting

State rules does not relieve an area from

the obligation to implement conformity

requirements.

Because areas are subject to the

conformity requirements regardless of

whether they are redesignated to

attainment and must implement

conformity under Federal rules if State

rules are not yet adopted, the EPA

believes it is reasonable to view these

requirements as not being applicable

requirements for purposes of evaluating

a redesignation request.

For the reasons just discussed, the

EPA believes that the ozone

redesignation request for the Grand

Rapids area may be approved

notwithstanding the lack of fully

approved State transportation and

general conformity rules. This policy

was also exercised in the Tampa,

Florida and Cleveland -Akron -Lorain

ozone redesignations finalized on

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December 7, 1995 (60 FR 52748) and

May 7, 1996 (61 FR 20458), respectively.

According to the Federal

transportation and general conformity

rules, conformity applies to

nonattainment areas as well as

maintenance areas. Once redesignated,

the Grand Rapids area will be a

maintenance area and will be required

to conduct emission analyses to

determine that the VOC and NOx

emissions remain below the motor

vehicle emission budget established in

the maintenance plan. The Conformity

General Preamble to the conformity

regulations further clarifies this issue,

particularly as it pertains to areas

requesting and obtaining a section 182(f)

NOx exemption. Michigan has

established a motor vehicle emission

budget for NOx in the area's

maintenance plan.

Comment: The commentor notes that

between December 1, 1990 and June 1,

1995, EPA has redesignated 54 areas

from nonattainment to attainment.

Several of these redesignated areas, such

as Kansas City, Kansas/Missouri,

Detroit, Michigan, San Francisco,

California, Charlotte, North Carolina;

Huntington-Ashland, West Virginia/

Kentucky violated the ozone standard

after redesignation. The commentor

states that the EPA's "permissive" SIP

revision requirements for these areas

made future violations inevitable and

ensure that inadequate contingency

measures are adopted. The commentor

also notes that the Grand Rapids and

Muskegon areas observed 5 exceedances

each after receiving a determination of

attainment.

Response: To date the EPA has

redesignated a total of 41 areas 8 to

attainment for ozone. Of these areas,

only 4, Detroit, Michigan, Memphis,

Tennessee, San Francisco, California,

and Kansas City, Kansas-Missouri,

subsequently violated monitored

violations of the ozone standard. EPA

believes that this, in fact, demonstrates

that for the vast majority of instances

the redesignation policy is appropriate

since most of the redesignated areas

have not violated the ozone NAAQS to

date. Furthermore, the Act and Congress

contemplated that such events may

occur and therefore, required that the

Administrator fully approve a

maintenance plan for the area consistent

with the requirements of section 175A

before the area can be redesignated to

attainment. Section 107(d)(3)(E)(iv).

Section 175A(d) requires that a

maintenance plan contain contingency

8 This includes 28 classified and 13 nonclassified

areas. The 28 classified areas include the Ohio

portion of the Youngstow n-Warren -Sharon area.

provisions deemed necessary by the

Administrator to assure that the State

will promptly correct a violation of the

standard which occurs after the

redesignation of the area to attainment.

Clearly, the Act and Congress

anticipated that areas redesignated to

attainment may violate the NAAQS in

the future and ensured that control

measures to remedy the violation are

available. Areas redesignated to

attainment have approved maintenance

plans with contingency measures that

are and will be implemented in order to

address the violations monitored in the

area after redesignation. The

maintenance plans for these areas were

deemed appropriate and adequate for

purposes of addressing a future

violation as they were fully approved

into the area's SIPs. Furthermore, if the

contingency measures implemented by

the State do not address future

violations of the NAAQS, EPA has the

authority to call for a plan revision

requiring the adoption of additional

control measures and/or redesignate the

area to nonattainment which in turn

would require the area to adopt and

implement additional control measures

appropriate for its classification. See

sections 1 10(k)(5) and 107(d)(3).

With respect to the adequacy of the

maintenance plan for Grand Rapids, the

EPA would like to note that all aspects

of the maintenance plan were reviewed

and deemed appropriate. The

commentor does not provide any

specific arguments to support the

comment.

For clarification purposes, the number

of exceedances cited by the commentor

is the total number of exceedances

monitored in the Grand Rapids area and

Muskegon area. The Grand Rapids area

monitored one exceedance at each of the

three monitors located within the twocounty area in 1995. Taken into account

with the previous two years, 1994 and

1993, the Grand Rapids area continues

to demonstrate attainment of the ozone

NAAQS with a number of expected

exceedances less than or equal to 1.0.

Comment: The commentor states that

the April 2, 1996 proposal jeopardizes

the efforts currently being undertaken

by the Ozone Transport Assessment

Group (OTAG).

Response: The commentor's statement

is unsupported. In the April 2, 1996

proposal, the EPA specifically stated

that the redesignation of the Grand

Rapids area to attainment in no way

removes the State's obligation to get

further reductions in emissions to

address the broader transport

phenomenon currently being

investigated as part of the OTAG

process. The issue of transported ozone

and ozone precursors is being addressed

by the OTAG which is composed of

industry, environmental groups and

Federal, State and local governments

from the eastern part of the United

States. The Lake Michigan States of

Illinois, Indiana, Wisconsin and

Michigan are all participating, at some

level, in the OTAG process (Phase I/

Phase II attainment demonstrations as

provided for in the March 2, 1995

memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation, entitled "Ozone Attainment

Demonstrations"). Phase II of this

analysis will assess the need for regional

control strategies and refine local

control strategies. Phase II will also

provide the States and EPA the

opportunity to determine appropriate

regional strategies to resolve transport

issues including any impacts the Grand

Rapids area may have on ozone

concentrations in its downwind areas.

The EPA has the authority under

sections 1 10(a)(2)(A) and 1 10(a)(2)(D) of

the Act to require emission reductions

where appropriate based on the results

of this effort or any other relevant

information.

Comment: The commentor stated that

exempting ozone nonattainment areas

from compliance with part D NSR

regulations presents special problems

since PSD and preconstruction review

rules "do not fully address how

emissions of ozone precursors should be

treated to assure that major new or

modified sources do not cause or

contribute to a NAAQS violation." In

addition, the commentor contends that

the A labam a Power Co. v. Costle 9 court

cautioned that "to exempt de minimis

situations from a statutory command is

not an ability to depart from the statute,

but rather a tool to be used in

implementing the legislative design."

Response: EPA emphasizes that

contrary to the commentor's contention,

ozone nonattainment areas are not

exempt from compliance with part D

NSR regulations. The October 1994

Nichols memorandum suggests that

areas that are otherwise eligible for

redesignation need not have a fully

approved part D NSR program as a

prerequisite to redesignation since the

part C PSD program would apply once

the area has been redesignated to

attainment. The part D NSR program

9

EPA's policy to redesignate areas

notwithstanding the absence of fully adopted and

approved part D NSR SIP is based, in part, on EPA's

authority to establish de minimis exceptions to

statutory requirements when the requirement

would be of trivial or no value environmentally

under the A labama Power Co. v. Costle court

decision.

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requirements apply to the area until the

area is redesignated to attainment.

The October 1994 Nichols

memorandum's statement that EPA

regulations (40 CFR 51.165(b)(3) and

appendix S) "do not fully address how

ozone precursor emissions should be

treated to ensure that major new or

modified sources do not cause or

contribute to an ozone NAAQS

violation" is based on the difficulty in

modeling the impact of emissions from

specific sources on ozone formation.

The policy, however, also states that for

areas with preconstruction monitoring

or other information that indicate that

the area is not meeting the ozone

standard after redesignation to

attainment, Appendix S or 40 CFR

51.165(b) apply. These areas should

then require major new or modified

sources to obtain VOC emission offsets

of at least 1:1 ratio. In addition, the PSD

program allows BACT in place of LAER

if the less stringent control technology

can be justified based on an economic,

energy and environmental impacts

analysis. Consequently, the State may

impose a more stringent level of control

other than what may be selected as

BACT in an area redesignated to

attainment but not meeting the NAAQS.

With these elements, the

preconstruction review programs can

assure that major new or modified

sources achieve the statutory goals of

part D NSR.

With respect to the cautions of the

Costle court of the Alabama Power

decision, EPA believes that the exercise

of its de minimis authority in this

instance is fully consistent with them.

EPA is using its authority to facilitate

the implementation of the statute and

the legislative design behind it. EPA

also notes that the D.C. Circuit, the court

that decided the Alabama Power case,

recently decided another case

upholding EPA's exercise of its de

minimis authority under the Act.

Referring to EPA's authority to create de

minimis exceptions as being inherent in

the statutory scheme, the court stated

that "the same deference due to an

agency's reasonable interpretation of an

ambiguous statute may also be due to an

agency's creation of a de minimis

exception." EDF v. EPA, Nos. 94-1044

and 94-1062, Slip Op. at 28-29 (D.C.

Cir. April 19, 1996).

Comment: The commentor contends

that the EPA cannot use the May 1995

Seitz memorandum to substitute its own

criteria for redesignation over

congressional instruction. The

commentor rationalizes that the part D

requirements are defined by the

nonattainment or attainment

designation of an area. The EPA,

therefore, does not have the "authority

to modify the operation of the Act, and

substitute its own judgement for that of

Congress." Furthermore, SIP

requirements are joined to the

classification of a nonattainment area

(see sections 182 and 181).

Response: The May 1995 Seitz

memorandum does not substitute EPA's

criteria for congressional instruction.

Instead, the May 1995 Seitz

memorandum presents EPA's

interpretation of the statutory language

of the Act regarding RFP and related

provisions as they relate to areas

demonstrating attainment of the ozone

NAAQS.

With respect to the commentor's

statement that SIP requirements are

joined to the classification of a

nonattainment area, the EPA would note

that the commentor is equating the

designation of an area as attainment or

nonattainment with the fact finding of

whether an area is attaining the

standard, regardless of its designation.

EPA believes that these are two distinct

issues. Title I of the Act, including part

D, contains provisions that distinguish

between the concept of attainment of a

NAAQS shown through monitoring

data, and an area's designation as

attainment or nonattainment.

The fact that only one of the five

criteria for redesignation of a

nonattainment area to attainment is the

determination that the area "has

attained the national ambient air quality

standard," demonstrates that section

107(d)(3)(E)(I) itself recognizes this

distinction. Clearly, the Act anticipates

there will be areas designated

nonattainment that are attaining the

standard, that there could be a

nonattainment area that meets the air

quality criterion for redesign ation to

attainment without satisfying the other

criteria. Such an area would need to

remain designated nonattainment even

though it was attaining the standard.

In addition, the distinction between

attaining the standard and the

designation of an area as attainment or

nonattainment is again demonstrated in

the part D provision of section 182(f),

which authorizes EPA to waive the NOx

reduction requirements that apply to

ozone nonattainment areas if EPA

determines that the NOx reductions

would "not contribute to attainment of

the" ozone NAAQS. This provision has

been applied on numerous occasions to

waive NOx emission reduction

requirements for areas that have

attained the standard, since such

reductions in areas that have already

attained the standard would not

contribute to attainment. Thus, this

provision clearly contemplates that

areas designated nonattainment that

have attained the standard may have

certain specified requirements waived.

In conclusion, the Act does not equate

the factual issue of whether an area is

attaining the standard with the area's

designation status as attainment or

nonattainment. It explicitly expects

situations in which areas designated

nonattainment may be attaining the

standard. Thus, the definition of

"nonattainment area" in section 171(2),

which provides that, for purposes of

part D, a nonattainment area means an

area that "is designated "nonattainment" with respect to [a

particular] pollutant within the meaning

of section 107(d)" does not contradict

EPA's interpretation of the language of

section 171(1) defining "RFP"

requirements in terms of reductions for

the purpose of "ensuring attainment."

EPA believes that, in general, the

classification of an area designated

nonattainment for ozone determines the

set of requirements of subpart 2 to

which the area is subject.

The issue becomes the substance of

some of those requirements. In general,

section 182(b)(1) and section 172(c)(9)

apply to moderate ozone nonattainment

areas. EPA, however, has interpreted

section 182(b)(1) and 172(c)(9) such that

additional SIP submission requirements

are not necessary for an area classified

as a moderate ozone nonattainment area

that is attaining the ozone standard, for

so long as the area continues to attain

the standard. This is not a waiver of the

requirement that by their terms clearly

apply; it is a determination that certain

requirements are written so as to be

applicable only if the area is not

attaining the standard. If prior to the

redesignation of such an area to

attainment, the area violated the ozone

NAAQS, that determination would no

longer apply. That area will once again

be faced with an obligation to submit

SIP revisions pursuant to sections

172(c)(9) and 182(b)(1).

Finally, other requirements of part D

that are not written in such a way

continue to apply solely by virtue of the

area's classification and designation as a

moderate ozone nonattainment area. For

example, the VOC RACT requirement of

section 182(a)(2) applies regardless of

whether an area is attaining the

standard. Similarly, the requirements of

part D new source review continue to

apply to areas designated nonattainment

solely by virtue of their continuing

nonattainment designation.

Comment: The Administrative

Procedures Act (APA) requires that

"substantive rules of general

applicability" be subjected to public

comment before promulgation. EPA's

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