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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 ofa 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 ofsmall entities under the criteria ofthe Regulatory Flexibility Act.

Listof Subjects in 14 CFR Part97

Air traffic control, Airports, Navigation (Air).

Issued in Washington, DCon June 14, 1996. Thomas C.Accardi, Director, FlightStandardsService. Adoption of theAmendment

Accordingly, pursuant to the authority delegated to me, part 97 ofthe 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:49U.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: ***EffectiveAugust15, 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 1Cancelled Lake Providence, LA, Byerley, NDB RWY 17,

Amdt 1 Marksville, LA,Marksville Muni, NDB or

GPS RWY4, Amdt IA Cancelled Marksville, LA,Marksville Muni, NDB RWY

4, Amdt IA Mansfield, MA, Mansfield Muni,NDB or GPS

RWY 32, Amdt4 Cancelled Mansfield, MA, Mansfield Muni,NDB RWY

32, Amdt 4 Willmar, MN,WillmarMuni-John L. Rice

Field, VORor GPS RWY 10,Amdt IA Cancelled Willmar, MN,WillmarMuni-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,Amdt4 Cancelled Trenton, NJ,Mercer County, VOR/DME

RNAV RWY 16, Amdt4 Trenton, NJ,Mercer County, VOR/DME

RNAV or GPS RWY 34, Amdt 5Cancelled Trenton, NJ,Mercer County, VOR/DME

RNAV RWY 34, Amdt 5 North Kingstown, RI. Quonset State, VOR or

GPS RWY 34, OrigCancelled North Kingstown, RI, Quonset State, VOR

RWY 34, Orig. Hondo, TX,Hondo Muni, VORor GPS RWY

17L, OrigCancelled Hondo, TX,Hondo Muni, VORRWY 17L,

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

BILLING CODE 4910-13-M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52and 81 [M143-03-7258; FRL-5525-4]
Approval and Promulgation of Implementation Plans and Designation ofAreas forAir 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 aproposal 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 letterwas received in response to the April 2, 1996 proposal. On May 1, 1996, the EPA published a 14-day partial extension ofthe 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 ofpublic comment period. Thisfinal rule summarizes all
comments and EPA's responses, and finalizes the approval ofthe redesignation to attainment forozone and associated section 175A maintenance plan for the Grand Rapids

area. EFFECTIVE DATE: This action willbe effective June 21, 1996. ADDRESSES: Copies ofthe SIPrevisions, 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 ofEnvironmental Quality (MDEQ). However, the April 2, 1996 proposal and this final rule address only the Grand Rapids area, which consists ofKent and Ottawa Counties. On April 2, 1996, (61 FR 14522)the EPA published aproposal 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 apartial 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 thisFederal 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 

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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 andEPA Responses and FinalRulemaking Actions

The following discussion summarizes and responds to the comments received regarding the redesignation ofthe 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 ofa revision to the section 175A maintenance plan which was not available forpublic review until April 15, 1996; the proposed action concerns the public health ofmany ofthe requestor's members; and theproposed action incorporates new guidance and policy which have broad implications throughout the Lake Michigan basin and beyond. The commentor requested a minimum of30 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 oftheredesignation and section 175A maintenance plan pertaining to Michigan's April 11, 1996 maintenance plan SIP that did notbecome 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 ofthis rulemaking action. Comment:The commentor notes that the proposed redesignation violates the specific and general intent ofCongress in specifying requirements for redesignation. The commentor elaborates by stating that the proposed approval violates redesignation requirements ofthe Clean Air Act Amendments of 1990 (Act)by lowering the threshold forredesignation ofthese

areasby reinterpretation oflongstanding 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 ofthe reasonable further progress (RFP) requirement; waiver ofthe part DNew Source Review (NSR)requirement and waiver from the adoption ofconformity rules.

Response:At the outset, EPA rejects the contention that its actions violate the redesignation requirements ofthe Act. The EPA has not granted the Grand Rapids area "waivers," or "exemptions" from, norreinterpreted 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 DNew Source Review (partDNSR) 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 ofcertain RFP and attainment demonstration requirements. This final rule determined that since the Grand Rapids area had demonstrated attainment ofthe ozone standard, a factual determination based on 3 years ofcomplete quality assured monitoring data, certain provisions ofthe Act, whose explicit purpose is to achieve attainment ofthe standard, do not require SIP revisions to be made by the State for so long asthe 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, alongwith certain other related provisions, so as not to require SIP submissions if an ozone nonattainment area subject to those requirements is monitoring attainment ofthe ozone standard (i.e., attainment of the NAAQS demonstrated with three consecutive years ofcomplete, qualityassured, air quality monitoring data). As explained in a memorandum from John S. Seitz, Director, Office ofAir 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 itis appropriate to interpret the more

1Hereinafter referred to as "October 1994 Nichols

memorandum."

2Hereinafter referred to as "May 1995 Seitz

memorandum." specific RFP, attainment demonstration and related provisions ofsubpart 2in the same manner as EPA had previously interpreted the general provisions of subpart 1ofpart D ofTitle I (sections 171 and 172).

EPA has explained at length in other notices, including the July 20, 1995 determination ofattainment regarding the Grand Rapids area (60 FR 37366), its rationale for the reasonableness ofthat interpretation ofthe Act and incorporates those explanations by reference here. See Approval and Promulgation ofImplementation Plans and Designation ofAreas for Air Quality Planning Purposes; Ohio, 61 FR 20458 (May7, 1996); Determination of Attainment ofOzone Standard for Salt Lake and Davis Counties, Utah, 60 FR 36723 (July 18, 1995). EPA emphasizes that ithas 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 notbeing applicable once an area has attained the standard, as long asit continues to do so. This is not awaiver ofrequirements that by their terms clearly apply; it is adetermination that certain requirements are written so as to be operative only ifthe area is not attaining the standard.

The May 1995 Seitz memorandum

was clear about the consequences ofthe policy for redesignations. First, it made plain that a determination ofattainment is not tantamount to aredesignation of

an area to attainment. Attainment is onlyone ofthe criteria set forth in section 107(d)(3)(E). To be redesignated, the State must satisfy all ofthe criteria ofsection 107(d)(3)(E), including the requirement ofa demonstration that the improvement in the area's air quality is due to permanent and enforceable reductions, and the requirements that the area have afully-approved SIP which meets all ofthe applicable section 110 and part Drequirements, and a fully approved maintenance plan.

Upon a determination ofattainment, however, the section 182(b)(1)(A)(I) requirements ofRFP and attainment plans, and the section 172(c)(9) requirement ofcontingency 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 ofthe requirement ofhaving a fully approved SIP.

EPA is not diluting theredesignation requirements ofsection 107(d).What EPA has done is make adetermination that since the area is attainingthe standard, which is a factual determination, certain provisions ofthe

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Act, whose express purpose is to achieve attainment ofthe 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 longbeen EPA's policy with respect to the section 172(c)(9) contingency

measures and section 172(c)(2) RFP requirement. See general preamble at57 FR 13498. EPAhas also made determinations regarding section 182(f) NOx waivers ator before the redesignation ofan area and therefore
not required NOx RACT submissions to approve such redesignations. See the Bay Area redesignation at 59 FR49361 and Detroit-Ann Arbor redesignation at 60 FR 12459.

EPA's statutory analysis was explained in detail in theJuly 20, 1995 final rulemaking and in the May 1995 Seitz memorandum. To the extent here pertinent, such portions ofthat notice, including the responses to comments,

are incorporated herein by reference.

Thus, EPA disagrees with the commentors' view that EPA is not complying with allthe redesignation requirements ofsection 107(d)(3)(E). EPA has interpreted SIP submission requirements ofsection 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 furtherprogress or attain the standard by the attainment date, not to apply for so longas the area continues to attain the standard. Since they are not applicable, fulfillment of these requirements is not necessary to meet theredesignation 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, theredesignation request onlypartially 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 itpoints to are the very

ones that EPAhas determined are inapplicable.

EPA rejects thiskind ofcircular argument. SinceEPA has determined that the statute does notrequire 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 ofsection 107(d)(E)(3) itself, a State need only meet all applicable requirements, and have a fully approved plan that contains allrequiredelements. Thus EPA's interpretation is fully consistent with the criteria ofsection 107(d)(3). Since EPA has determined that the 15 percent, attainment demonstration, and section 172(c)(9) contingency plan requirements arenot applicable to Grand Rapids, and has found the SIP to be fully approvable without them, the Grand Rapids area has fairly met the criteria ofsection 107(d)(3). Certainly EPA, after determining that these requirements are inapplicable, could not in good faith conclude thatthe redesignation request is defective because it fails to meet them.

Thus EPA concludes that, where it has made a determination ofattainment that results in the suspension of requirements, it may rely on that determination and its consequences in considering the approvability ofa redesignation request.

For the reasons stated above and elsewhere in this document, in the July 

### 20, 1995 Federal Register notice (60FR 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 FR20468), EPA does not believe that the rulemaking violates any section ofthe Act, nordoes itdilute the redesignation requirements under section 107(d)(3)(E).

With respect to the full adoption of VOC RACT rules, it should firstbe noted that Michigan has submitted and EPA has approved all ofthe sections 182(b)(2)(B) and 182(b)(2)(C) VOC RACT requirements applicable to the Grand Rapids area on September 7, 1994 (59 FR46182) and October 23, 1995 (60FR 54308). Therefore, the EPA assumes that the commentor is concerned about the section 182(b)(2)(A) requirement ofthe Act which requires States to develop VOC RACT rules for sources "covered by a CTG document issued bythe Administrator between November 15, 1990, and the date ofattainment" for moderate and above ozone nonattainment areas. The EPAhas not granted the Grand Rapids area a "waiver" or "exemption" from this requirement either.In fact, EPA's proposed rulemaking action acknowledges the applicability ofthese rules in light ofcurrent 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

3Hereinafter referred to as "September 1992 Calcagni memorandum." since the due date for the CTG RACT rules atissue preceded the submission oftheredesignation request, and consequently, generally require full adoption, submission and approval of theserules prior to approval ofthe redesignation request.4

The EPA does, however, believe that in the context ofthe particular circumstances ofthisredesignation, that it isreasonable 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 ofthe rules prior to approval oftheredesignation. The reasons justifyingthis departure from EPA's general policy were explained in the proposed action and arepresented below.

EPA believes that several factors in combinationjustify 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 ofthe

ozone season in which Grand Rapids attained the standard and were not needed to bring about attainment ofthe

ozone standard in Grand Rapids. Second, the Statehas demonstrated continued maintenance ofthe ozone standard through 2007 withoutthe implementation ofthese measures. Third, the Statehas 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 ofcorrecting violations attributable to local emissions from the Grand Rapids area that mayoccur after redesignation. EPA's analysis ofthe emission reductions shows that the implementation ofenhanced 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 ofthese RACT rules individually. Consequently, EPA believes that the other, more effective contingency measures, should and

4The EPA also notes that the Synthetic Organic Chemical Manufacturing (SOCMI) Distillation and Reactor CTGwas issued on November 15, 1993, prior to the submission ofthe Grand Rapids redesignation request. That CTG,however, established a due date for State submittal ofthe SOCMI Distillation and Reactor rules ofMarch 23, 1995 (SeeMarch 23, 1994, 59 FR 13717), a date after submission ofa request to redesignation Grand Rapids to attainment. Thus, thoserules arenot applicable for purposes ofthis redesignation. 

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would be implemented first even ifthe RACT rules were to be fully adopted prior to redesignation. The detailed analysis ofthese emission reduction estimates is contained in the TSDfor 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 policyregarding this action, the requirement for these RACT rules remains an applicable requirement for purposes ofevaluating the redesignation request since itpredated the submission ofthe request. The requirement, however, is met in the form ofthe submission and full approval ofa commitment to adopt and implement theserules as contingency

measures in the maintenance plan. (UnderEPA's existingpolicy, contingency measures in maintenance plans may consist ofcommitments to adopt and implement measures upon a violation ofthe 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 ofthe contingency measures in the maintenance plan upon approval ofthe redesignation. That could have occurred only after or upon EPA's full approval ofthe 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 ofthe combination offactors discussed above, including in particular the inclusion ofother, 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 thisbasis. The EPA believes that this exception to its general policy is legallypermissible under the statutory provisions governing redesignations. As noted above, the VOC RACT requirements remain applicable requirements under section 107 and EPAbelieves that their
treatment in the contingency plan as commitments is consistent with the

manner in which EPAhas accepted other commitments to adopt and implement contingency measures in maintenance plans under section 175A.

The EPAbelieves that the Grand Rapids area may be redesignated to attainment notwithstanding the lack of

afully-approved part DNSRprogram meeting the requirements ofthe 1990 Act amendments and the absence of such apart DNSRprogram from the contingency plan. This view has been
setforth by the EPA as its policy in the 1994 Nichols memorandum.

The EPAbelieves that its decision not to insist on a fully-approved part DNSR program as apre-requisite to redesignation isjustifiable as an exercise ofthe Agency's general authority to establish de minimis exceptions to statutory requirements. See AlabamaPowerCo. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under AlabamaPower,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. at28-29 (D.C. Cir. April 19, 1996).

Plainly, the part DNSRprovisions of section 110 and part D are requirements that were applicable to the Grand Rapids area at the time ofthe submission ofthe 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 apart DNSR 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 oflittle or no environmental value. In this context, it is necessary to determine what would be achieved by insisting that there be afully-approved part D NSRprogram in place prior to the redesignation ofthe Grand Rapids area. For the following reasons, the EPA believes that requiringthe adoption and full-approval ofapart DNSRprogram prior to redesignation would not be of significant environmental value in this

case.

The Grand Rapids area has demonstrated that maintenance ofthe

ozone NAAQS will occur even ifthe emission reductions expected to result from the part DNSRprogram do not

occur. The emission projections to 

### demonstrate maintenance ofthe NAAQS considered growth in point

source emissions (alongwith growth for other source categories) and were premised on the assumption that the Prevention ofSignificant Deterioration (PSD)program, rather than thepart D NSR, would bein effect, duringthe maintenance period. Underpart DNSR, significantpoint source emissions growth would not occur. Michigan assumed thatpart DNSRwould not apply afterredesignation to attainment and instead assumed source growth factorsbased onprojected growth in the economy and in the area's population. (Itshould benoted thatthe growth factors assumed may be overestimates under PSD, which would restrain source growth through the application ofbest available control techniques.) Thus, Michigan has demonstrated that there is

no need toretain thepart DNSR asan operativeprogram inthe SIP duringthe maintenance period toprovide for continued maintenance ofthe ozone NAAQS.

The other purpose thatrequiring the full-approval ofapart DNSRprogram might serve would beto ensure that part DNSR would become acontingency provision in themaintenance 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, itmust receive full approval ofa maintenance plan containing "such contingency provisions asthe Administrator deems necessary to assure thatthe State will promptly correct any violation ofthe standard which occurs after the redesignation ofthe area as an attainment area. Such provisions shall include arequirement that the Statewill implement all measures with respect to the control ofthe airpollutant concerned which were contained in the SIP forthe area before redesignation of the area as an attainment area." Based

on this language, itis apparent that whether an approved part DNSR program mustbe included as a contingency provision depends on whether itis a "measure" forthe control ofthepertinent airpollutants.

The term "measure" isnot defined in section 175A(d) and Congress utilized thatterm differently in different provisions ofthe Actwith respect tothe part CPSDand partDNSRpermitting programs. For example,in section 110(a)(2)(A), Congress required that SIPs include "enforceable emission limitations and other control measures, means, ortechniques * * *as may be necessary or appropriate to meetthe applicable requirements ofthe Act." In section 110(a)(2)(C), Congress required

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that SIPs include "a program to provide for the enforcement ofthe measures described in subparagraph (A), and regulation ofthe modification and construction ofany 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.) Ifthe term measures as used in sections 110(a)(2) (A) and (C) had been intended to include part C PSD and part D NSRthere would have been nopoint
to requiring that SIPs include both

measures andpreconstruction review under parts C and D (PSD orNSR). Unless "measures" referred to something other than preconstruction review underparts Cand D, the reference to preconstruction review programs in section 110(a)(2)(C) would be rendered mere surplusage. Thus, in sections 110(a)(2) (A) and (C), itis apparent that Congress distinguished "measures" from preconstruction review. On the otherhand, in other provisions ofthe Act, such as section 161, Congress appeared to include PSD within the scope ofthe term "measures."

The EPA believes that the fact that Congress used the undefined term "measure" differently in different sections ofthe 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 ofsection 175A. Inasmuch as Congress itselfhas used the term in a manner that excluded part CPSD and part DNSR 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 areasonable interpretation is further supported by the fact that PSD,a program that is the corollary ofpart D NSRfor attainment
areas, goes into effect in lieu ofpart D NSR.5 This distinguishes part DNSR from other required programs under the Act, such as inspection and

5The EPA is not suggesting that part DNSR and prevention ofsignificant (PSD)are equivalent, but merely that they arethe same type ofprogram. The PSDprogram is arequirement in attainment areas and designed to allow new source permitting, yet contains adequate provisions to protect the NAAQS. Ifany information including preconstruction monitoring, indicates that an area is not continuing to meet theNAAQS after redesignation to attainment, 40 CFR 51 appendix S (InterpretiveOffset Rule) or a40 CFR 51.165(b)
program would apply. The EPA believes that in any

area that is designated orredesignated as attainment under section 107, butexperiences violations ofthe NAAQS, these provisions should beinterpreted as requiring major new ormodified sources to obtain VOC emission offsets ofat leasta 1:1 ratio, and as presuming that 1:1 oxides ofnitrogen (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 ofthe term "measure." 6

The EPA's logic in treating part D NSRin this manner does not mean that other applicable part Drequirements, 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 DNSR. Thus, the EPA is not permitting part DNSRto be removed without a demonstration that maintenance ofthe standard will be achieved. Moreover, the EPA has not amended its policy with respect to the conversion ofother 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 EPAbelieves that thepart D NSRrequirement differs from other requirements, and does not believe that the rationale for the part DNSR 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 DNSR 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

6The EPA also notes that in the case ofthe Michigan area, all permits to install formajor offset

sources and major offset modifications issued by the State in the moderate nonattainment areas since November 15, 1992have complied with the 1.15 to 1.0 offset ratio. In addition, permits to install cannot be issued under the PSD programunless the applicant can demonstrate that the increased emissions from the new ormodified source will not result in a violation ofthe NAAQS. Michigan's Rule 702, which ispart ofthe SIP, requires the installation ofBestAvailable Control Technology regardless ofsize or location ofall new and modified sources in the State. In addition, Michigan's Rule 207, also approved in the SIP, requires denial ofany permit to install ifoperation of the equipment will interfere with attainment or maintenance ofthe NAAQS.

7Which has been applied in other areas such as Detroit, Michigan, Preble, Columbiana, Clinton, Youngstown, Columbus, Canton, Cleveland, Toledo and Dayton, Ohio. application ofPSDrather than part D NSR.

The EPAhas not "waived" the requirement for adoption and implementation ofconformity regulations. Rather, EPA has determined that those requirements will continue to apply afterthe area is redesignated, and therefore need notbe fulfilled as a condition ofredesignation. 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 ofthese rules prior
to redesignation. As presented in the April 2, 1996 (61 FR 14522) proposal, the EPAbelieves that itis reasonable to interpret the conformity requirement as notbeing applicable for purpose of redesignation under section 107(d).The rationale for this is based on a combination oftwo factors. First, the requirement to submit SIP revisions to comply with the conformity provisions ofthe Act continue to apply to areas afterredesignation to attainment, since such areas would be subject to a section 175A maintenance plan. Therefore, the Stateremains obligated to adopt the transportation and general conformity rules even afterredesignation and would risk sanctions for failure to do so. While a redesignation ofan area to attainment enables the area to avoid further compliance with most requirements ofsection 110 and part D, since those requirements are linked to the nonattainment status ofan area, the conformity requirements apply to both nonattainment and maintenance areas. Second, EPA's federal conformity rules require theperformance ofconformity analyses in the absence ofstate-adopted rules. Therefore, a delay in adopting Staterules does not relieve an area from the obligation to implement conformity requirements.

Because areas are subject to the conformity requirements regardless of whether they areredesignated to attainment and must implement conformity under Federal rules if State rules are notyet adopted, the EPA believes it isreasonable to view these requirements as notbeing applicable requirements for purposes ofevaluating

aredesignation request.

For the reasonsjust discussed, the EPA believes that the ozone redesignation request forthe Grand Rapids area may be approved notwithstanding the lack offully 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 FR52748) and May 7, 1996 (61 FR20458),respectively.

According to the Federal transportation and general conformity rules, conformity applies to nonattainment areas as well as maintenance areas. Onceredesignated, 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 itpertains to areas requesting and obtaining a section 182(f) NOx exemption. Michigan has established amotor vehicle emission budget for NOxin the area's maintenance plan. Comment:The commentor notes that between December 1, 1990 and June 1, 1995, EPAhas redesignated 54 areas from nonattainment to attainment. Several ofthese 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 afterredesignation. 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 atotal of41 areas 8to attainment for ozone. Ofthese areas, only 4, Detroit, Michigan, Memphis, Tennessee, San Francisco, California, and Kansas City, Kansas-Missouri, subsequently violated monitored violations ofthe ozone standard. EPA believes that this, in fact, demonstrates that for the vast majority ofinstances the redesignation policy is appropriate since most ofthe 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 therequirements ofsection 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

8This includes 28 classified and 13 nonclassified

areas. The 28 classified areas include the Ohio portion ofthe Youngstown-Warren -Sharon area. provisions deemed necessary bythe Administrator to assure that the State will promptly correct aviolation ofthe standard which occurs after the redesignation ofthe area to attainment. Clearly, the Act and Congress anticipated that areas redesignated to attainment mayviolate 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 ofaddressing a future violation as they were fully approved into the area's SIPs. Furthermore, ifthe contingency measures implemented by the State do not address future violations ofthe NAAQS, EPA has the authority to call for a plan revision requiring the adoption ofadditional control measures and/orredesignate the

area to nonattainment which in turn would require the area to adopt and implement additional control measures appropriate for its classification. See sections 110(k)(5) and 107(d)(3).

With respect to the adequacy ofthe maintenance plan for Grand Rapids, the EPA would like to note that all aspects ofthe maintenance plan were reviewed and deemed appropriate. The
commentor does not provide any specific arguments to support the comment.

For clarification purposes, the number ofexceedances cited bythe commentor is the total number ofexceedances monitored in the Grand Rapids area and Muskegon area. The Grand Rapids area monitored one exceedance ateach ofthe three monitors located within the twocounty area in 1995. Taken into account with theprevious two years, 1994 and 1993, the Grand Rapids area continues
to demonstrate attainment ofthe ozone NAAQS with a number ofexpected exceedances less than or equal to 1.0. Comment:The commentor states that the April 2, 1996 proposaljeopardizes 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 ofthe 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 ofthe OTAG process. The issue oftransported 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 ofthe United States. The Lake Michigan States of Illinois, Indiana, Wisconsin and Michigan are all participating, at some level, in the OTAG process (PhaseI/ 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 IIofthis 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 EPAhas the authority under sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to require emission reductions where appropriate based on theresults ofthis effort or any other relevant information.

Comment:The commentor stated that exemptingozone nonattainment areas from compliance with part DNSR regulations presents special problems since PSD and preconstruction review rules "do not fully address how emissions ofozone 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 theA labamaPowerCo. v. Costle9court 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 exemptfrom compliance with part D NSRregulations. The October 1994 Nichols memorandum suggests that

areas that are otherwise eligible for redesignation need not have afully approved part DNSRprogram as a prerequisite to redesignation since the part CPSD program would apply once the area has been redesignated to attainment. The part D NSRprogram

9EPA's policy to redesignate areas notwithstanding the absence offully adopted and approved partDNSR SIPis based, in part, on EPA's authority to establish de minimis exceptions to statutory requirements when the requirement would be oftrivial orno value environmentally under theA labamaPowerCo. v. Costlecourt 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 (40CFR 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" isbased on the difficulty in modeling the impact ofemissions 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 afterredesignation to attainment, Appendix S or40 CFR 51.165(b) apply. These areas should then require major new or modified

sources to obtain VOC emission offsets ofat least 1:1 ratio. In addition, the PSD program allows BACT in place ofLAER if the less stringent control technology

can bejustified based on an economic, energy and environmental impacts analysis. Consequently, the State may impose a more stringent level ofcontrol 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 ofthe Costlecourt oftheAlabamaPower decision, EPA believes thatthe exercise ofits de minimis authority in this instance is fully consistent with them. EPA is using its authority to facilitate the implementation ofthe statute and the legislative design behind it. EPA also notes that the D.C. Circuit, the court that decided theAlabamaPowercase, recently decided another case upholding EPA's exercise ofits de minimis authorityunder 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 ofan ambiguous statute may also be due to an agency's creation ofa de minimis exception." EDFv. 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 thepart D requirements are defined by the nonattainment or attainment designation ofan area. The EPA, therefore, does not have the "authority
to modify the operation ofthe Act, and substitute its ownjudgement for that of Congress." Furthermore, SIP requirements arejoined to the classification ofa 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 ofthe statutory language ofthe Act regarding RFP and related provisions asthey relate to areas demonstrating attainment ofthe ozone NAAQS.

With respect to the commentor's
statement that SIP requirements are joined to the classification ofa nonattainment area, the EPA would note that the commentor is equating the designation ofan area as attainment or nonattainment with the fact finding of whether an area is attaining the standard, regardless ofits designation. EPA believes that these are two distinct issues. Title I ofthe Act, including part D, contains provisions that distinguish between the concept ofattainment ofa NAAQS shown through monitoring data, and an area's designation as attainment ornonattainment.

The fact that only one ofthe five criteria for redesignation ofa 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) itselfrecognizes 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 redesignation to attainment without satisfyingthe 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 ofan area as attainment or nonattainment is again demonstrated in the part Dprovision ofsection 182(f), which authorizes EPA to waive the NOx reduction requirements that apply to

ozone nonattainment areas ifEPA determines that the NOxreductions 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 ofwhether 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 ofsection 107(d)" does notcontradict EPA's interpretation ofthe language of section 171(1) defining "RFP" requirements in terms ofreductions for the purpose of "ensuring attainment."

EPA believes that, in general, the classification ofan area designated nonattainment for ozone determines the
set ofrequirements ofsubpart 2to which the area is subject.

The issue becomes the substance of

some ofthose 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 awaiver ofthe requirement that by theirterms clearly apply; it is a determination that certain requirements are written so asto be applicable only ifthe area is not attaining the standard. Ifprior to the redesignation of such an area to attainment, the area violated the ozone NAAQS, that determination would no longer apply. That area willonce again be faced with an obligation to submit SIP revisions pursuant to sections 172(c)(9) and 182(b)(1).

Finally, other requirements ofpart D that are not written in such away continue to apply solely by virtue ofthe 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 attainingthe standard. Similarly, the requirements of part Dnew source review continue to apply to areas designated nonattainment solelyby virtue oftheir continuing nonattainment designation.

Comment:The Administrative Procedures Act (APA) requires that "substantive rules ofgeneral applicability" be subjected to public
comment before promulgation. EPA's 

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