# + 2

(,1 1/,1(

Citation: 60 Fed. Reg. 12467 1995

Content downloaded/printed from HeinOnline (http://heinonline.org) Tue May 25 12:27:17 2010

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.Federal 

### Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

31238) 8.According to these rules, conformity applies to nonattainment

areas as well as maintenance areas. Once redesignated, the Detioit-Ann Arbor area will be amaintenance area which will be required to conduct emission analyses to determine thatthe VOC and NOx emissions remain below the motor vehicle emission budget established inthe maintenance plan. Transportation and general conformity apply to maintenance areas and therefore, the Detroit-Ann Arbor area must comply with these rules. 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. According tothe conformity rules and preamble, the Detroit-Ann Arbor area's conformity test will be to remain within the VOC and NOx budgets established in the section 175A maintenance plan. Michigan has established a motor V'ehicle emission budget forNOx in thearea's maintenance plan.

The commentor's suggestion that the section 182(0 exemption has no connection to the conformity requirements for transportation plans and programs contained in section 176(c)(2)(A) and 176(c)(1)(B) was made in response to the August 10, 1994 proposal to approve the section 182(f) NOx exemption for the Detroit-Ann Arbor area. The USEPA's response is, therefore, articulated in the final rulemaking approving the section 182(f) NOx exemption petition forthe DetroitAnn Arbor area published elsewhere in this Federal Register.

Comment

One commentor states that areas are requesting exemptions from theNOx control measures based on incomplete modeling studies (i.e. Lake Michigan and Southeast Michigan Ozone Studies) which do notaccurately predict the relative contribution ofmobile source emissions because the mobile source emissions inventory understates its contribution to ozone production. Furthermore, given the uncertainty of mobile source NOx contributions to

ozone and the inaccuracy ofmobile

source inventories, it is inappropriate to

remove from the SIPany NOx or VOC conformity analysis.

USEPAResponse

Exemption from the section 182(f) NOx requirements is provided for in sections 182(f)(1)(a) and 182(f)(3) ofthe

8On November 18, 1994 and November 29, 1994, Michigan submitted SIP revisions tocomply with the Transportation and General conformity rules. Act. Michigan submitted such an exemption request on November 12, 1993 forthe Detroit-Ann Arbor area based on 3consecutive years ofclean air quality monitoring data, not on a modeling study oranalysis. In addition, approval ofan exemption based on monitoring data will be contingent on thearea's maintenance ofthe ozone NAAQS. As noted previously, a section 182(f)NOx exemption will not exempt

areas fromcompliance with the conformity regulations. The USEPA refers the commentor to the final rulemaking approving the section 182(f) NOx exemption petition for the DetroitAnn Arbor area published elsewhere in this Federal Register.

Comment

One commentornotes that there is no reasonable or adequatebasis for eliminating Michigan's existing NSR
program from the current SIP. Another
commentor states thatthe USEPA
cannot redesignate theDetroit-Ann Arbor area because Michigan has not met the NSRrequirements under section 182(b)(5).

USEPAResponse

TheUSEPA believes that the DetroitAnn Arbor area may be redesignated to attainment notwithstanding the lack of

a fully-approved NSR program meeting the requirements ofthe 1990 Act amendments and the absence ofsuch an NSR program from thecontingency plan. This view, while a departure from pastpolicy, has been set forth by the USEPA as its new policy in a memorandum from Mary Nichols, Assistant Administrator for Airand Radiation, dated October 14, 1994, entitled Part DNew Source Review (part DNSR)Requirements for Areas Requesting Redesignation to Attainment.

The USEPAbelieves that its decision
notto insist on a fully-approved NSR program asa pre-requisite to redesignation isjustifiable as an exercise ofthe Agency's general authority to establish de minimis exceptions to statutory requirements. SeeAlabamaPowerCo.v. Costle,636 F.2d 323, 360-61 (D.C. Cir. 1979). Under AlabamaPowerCo. v. Castle,the USEPA has the authority to establish de minimis exceptions to statutory requirements where the application of the statutory requirements wouldbe of trivial or novalue environmentally.

Inthis context, the issue presented is whether the USEPA has the authority to establish an exception to the requirements ofsection 107(d)(3)(E) that the USEPA have fully-approved a SIP meeting all ofthe requirements applicable to the area under section 110 and part Doftitle Iofthe Act. Plainly, the NSR provisions ofsection 110 and part Dare requirements that were applicable to the Michigan area seeking redesignation at the time of the submission ofthe request for redesignation. Thus, on its face, section 107(d)(3)(E) would seem to require that the Statehave submitted and the USEPA have fully-approved a part D NSR program meeting the requirements ofthe Act before the areas could be redesignated to attainment.

Under the USEPA's de minimis authority, however, it may establish an exception to an otherwise plain statutory requirement ifits fulfillment would beof little or no environmental value. In thiscontext, it is necessary to determine what would be achieved by insisting that there be a fully-approved part DNSR program in place prior to the redesignation ofthe Detroit-Ann Arbor

area. Forthe following reasons, the USEPA believes that requiring the adoption and full-approval ofa part D NSRprogram prior to redesignation would notbe ofsignificant environmental value inthis case.

Michigan has demonstrated that maintenance ofthe ozoneNAAQS will

occur even ifthe emission reductions expected to result fromthe part D NSR
program do not occur. The emission projections made by Michigan to demonstrate maintenance ofthe NAAQS considered growth in point

source emissions (along with growth for other source categories) and were premised on the assumption that the Prevention ofSignificant Deterioration (PSD) program, rather than the part D NSR, wouldbe in effect, during the maintenance period. Under NSR, significant point source emissions growth would not occur. Michigan assumed that NSR would not apply after redesignation to attainment, and therefore, assumed source growth factors based on projected growth in the
-economyand in the area's population. (It should be noted that the growth factors assumed may beoverestimates underPSD, which would restrain source growth through the application ofbest available control techniques.) Thus, contrary to the assertion ofthe commentor, Michigan has demonstrated that there is no need to retainthe part DNSR asan operative program in the SIP during the maintenance period in order to provide for continued maintenance oftheNAAQS. (Ifthis demonstration had notbeen made, NSR would have had to have beenretained in the SIP asan operative program since it would have been needed to maintain the ozone standard.) 12467

HeinOnline -- 60 Fed. Reg. 12467 199512468 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

The other purpose thatrequiring the full-approval ofapart D NSR program might serve would be to ensure that 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 ofamaintenance plan containing "such contingency provisions as the Administrator deems
necessary to assure that the State will promptly correct any violation ofthe standard which occurs after the redesignation ofthe area as an attainment area. Such provisions shall include a requirement that the State will implement all measures.with respect to the control ofthe 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 NSR program must beincluded asa contingency provision depends on whether itis a "measure" for the control ofthe pertinent air pollutants.

As the USEPA noted in the proposal regarding thisredesignation request, the
term "measure" is not defined in section 175A(d) and Congress utilized that term differently in different provisions ofthe Act with respect to the PSD and NSR permitting programs. For example, in section 110(a)(2)(A), Congress required that SIPs to include "enforceable emission limitations and other control measures, means, or techniques* * *as may be necessary or appropriate to meet the applicable requirements ofthe Act." In section 110(a)(2)(C), Congress required that SIPs include "a program to provide for the enforcement ofthe measuresdescribed in subparagraph (A), andregulation 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 asrequired in parts C and D." (Emphasis added.) If the term measures as used in section 110(a)(2) (A) and (C)had been intended
to include PSD and NSR there would have been no point to requiring that SIPs include both measures and preconstruction review underparts C and D (PSDor NSR). Unless "measures" referred to something otherthan preconstruction review underparts C and D, the reference to preconstruction review programs in section 110(a)(2)(C) would be rendered mere surplusage. Thus, in section 110(a)(2) (A) and (C), it is apparent that Congress distinguished "measures" from preconstruction review. On the other hand, in other provisions ofthe Act, such as section 161, Congress appeared to include PSD within the scope ofthe term "measures."

The USEPA believes that thefact 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 USEPA has the discretion to interpret it ina reasonable manner in the context of section 175A. Inasmuch

as Congress itselfhas used the term in

a manner that excluded PSD and NSR from its scope, the USEPA believes it is reasonable to interpret "measure," as used in section 175A(d), notto include NSR. That this is a reasonable interpretation is further supported by the fact that PSD, a program that isthe corollary ofpart D NSR forattainment
areas, goes into effect in lieu ofpart D NSR.9This distinguishes NSR from other required programs under the Act, such as inspection and maintenance and RACT programs, which have no corollary for attainment areas. Moreover, the USEPA believes that those other required programs are clearly within the scope ofthe term "measure." 10

The USEPA's logic in treating part D NSR in thismanner doesnot mean that other applicable part D requirements,

9The U.S. EPA is not suggesting that NSR and PSD are equivalent, but merely thatthey are the

same type ofprogram. 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 USEPA believes that in any areathat is designated or redesignated as attainment under section 107, but experiences violations ofthe NAAQS, these provisions should be interpreted asrequiring major

new ormodified sources to obtain VOC emission offsets ofatleast a 1:1 ratio, and as presuming that 1:1 NOx offsets are necessary. See October 14, 1994 memorandum from Mary Nichols entitled Part D New Source Review (partDNSR) Requirements for Areas Requesting Redesignation to Attainment.

1o

The U.S. EPAalso notes.that in thecase 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, 1992 have complied withthe 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 thenew or modified source will not result in a violation ofthe NAAQS. Michigan's Rule 702, which is part ofthe SIP, requiresthe installation ofBest Available ControlTechnology regardless ofsize or location ofall newand modified sources in the State. In addition, Michigan's Rule 207, also approved in the SIP, requires denial ofany permit to install ifoperation ofthe equipment will interfere with attainment or maintenance ofthe NAAQS. including those that have been previously met and previously relied upon indemonstrating attainment, could be eliminated without an analysis demonstrating that maintenance would be protected. As noted above, Michigan has demonstrated that maintenance wouldbe protected with PSD in effect, ratherthan partD NSR. Thus, the USEPA is notpermitting.part D NSR to beremoved without a demonstration that maintenance ofthe standard will be achieved. Moreover, the USEPA has not amended its policy,with respect tothe conversion ofother SIP elements to contingency provisions, which is that they may be converted to contingency provisions only upon a showing that maintenance willbe achieved without thembeing in effect. Finally, as noted above, the USEPA believes that the NSR requirement differs from other requirements, and does notbelieve that the rationale for the NSR exception extends to other required programs.

As the USEPA has recently changed its policy, the position taken inthis action is consistent with the USEPA's
current national policy. That policy permits redesignation to proceed without otherwise required NSR
programs having been fully approved and converted to contingency provisions provided that the area demonstrates, as hasbeen done inthis
case,that maintenance will be achieved withthe application ofPSD rather than part D NSR.

Comment

One commentor suggests that the USEPA's rulemaking is an effort to permit Michigan to avoid including the 15 percent Rate-of-Progress (ROP)
measures, required ofmoderate nonattainment areas in the SIP. It is essential to have elements ofthe 15 percent ROP plan available as contingency measure inthe attainment plan. It is notclear that the current rulemaking procedure will allow that to happen.

USEPAResponse

As explained above, under the USEPA's interpretation of section 107,

an area need notmeet all section 110 and part D requirements that become applicable afterthe submittal ofa complete redesignation request inorder
to have the request approved. Therefore, the 15 percent ROP plan, which wasnot due to be submitted until November 15, 1993, after the submission ofthe redesignation request, isnot required to be fully approved into the SIP before redesignating the area to attainment. Similarly the section 175A contingency plan need not include all measures that

HeinOnline -- 60 Fed. Reg. 12468 1995