Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12459

judicial review; nor does it extend the

time within which a petition for judicial

review may be filed, or postpone the

effectiveness of this rule. This action

may not be challenged later in

proceedings to enforce its requirements

(see section 307(b)(2)).

Nothing in this action shall be

construed as permitting, allowing, or

establishing a precedent for any future

request for a revision to any SIP. Each

request for revision to the SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

SIP approvals under section 110 and

subchapter I, part D of the CAA do not

create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP-approval does

not impose any new requirements. I

certify that it does not have a significant

impact on small entities. Moreover, due

to the nature of the Federal-State

relationship under the CAA, preparation

of a regulatory flexibility analysis would

constitute Federal inquiry into the

economic reasonableness of State

action. The CAA forbids EPA from

basing its actions concerning SIPs on

such grounds. Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256–66 (S.Ct.

1976); 42 U.S.C. section 7410(a)(2). The

Office of Management and Budget has

exempted this action from review under

Executive Order 12866.

List of Subjects in 40 CFR Parts 52 and

81

Environmental protection, Air

pollution control, Area designations,

Hydrocarbons, Incorporation by

reference, Intergovernmental

regulations, National parks, Reporting

and recordkeeping, Ozone, Volatile

organic compounds, and Wilderness

areas.

Dated: February 22, 1995.

Jane N. Saginaw,

Regional Administrator (6A).

40 CFR parts 52 and 81 are amended

as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart SS—Texas

2. Section 52.2275 is amended by

adding paragraph (e) to read as follows:

§ 52.2275 Control strategy and

regulations: Ozone.

* * * * *

(e) Approval—The Texas Natural

Resource Conservation Commission

(TNRCC) submitted an ozone

redesignation request and maintenance

plan on July 27, 1994, requesting that

the Victoria County ozone

nonattainment area be redesignated to

attainment for ozone. Both the

redesignation request and maintenance

plan were adopted by TNRCC in

Commission Order No. 94–29 on July

27, 1994. The redesignation request and

maintenance plan meet the

redesignation requirements in section

107(d)(3)(E) of the Act as amended in

1990. The redesignation meets the

Federal requirements of section

182(a)(1) of the Clean Air Act as a

revision to the Texas Ozone State

Implementation Plan for Victoria

County. The EPA approved the request

for redesignation to attainment with

respect to ozone for Victoria County on

May 8, 1995.

PART 81—[AMENDED]

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7871q.

2. In Section 81.344, the attainment

status designation table for ozone is

amended by revising the entry for

Victoria County under ‘‘Designated

Area’’ to read as follows:

§ 81.344 Texas.

* * * * *

TEXAS—OZONE

Designated

area

Designation date

Classification

Type Date

type

Victoria

Area,

Victoria

County.

May 8,

1995.

Attainment.

* * * * *

* * * * *

[FR Doc. 95–5347 Filed 3–6–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Parts 52 and 81

[MI21–04–6753, MI18–03–6754; FRL–5160–6]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; State of Michigan

AGENCY: United States Environmental

Protection Agency (USEPA).

ACTION: Final rule.

SUMMARY: On July 21, 1994 the USEPA

published a proposal to approve the

1990 base year emission inventory,

basic vehicle inspection and

maintenance (I/M) and the

redesignation to attainment and

associated section 175A maintenance

plan for the ozone National Ambient Air

Quality Standard (NAAQS) for the

seven-county Detroit-Ann Arbor,

Michigan area as a State Implementation

Plan (SIP) revisions. The 30-day

comment period concluded on August

22, 1994. A total of 72 comment letters

were received in response to the July 21,

1994 proposal, 62 favorable, 9 adverse

and 1 request to extend the comment

period. On September 8, 1994, however,

the USEPA published a correction

document and 15-day extension of the

comment period as a result of the

inadvertent omission of a number of

lines from the July 21, 1994 proposal.

The reopened comment period

concluded on September 23, 1994. An

additional 25 comment letters were

received in response to the September 8,

1994, extension of public comment

period regarding the July 21, 1994

proposal approval, 2 favorable, 22

adverse and 1 informational. This final

rule summarizes all comments and

USEPA’s responses, and finalizes the

approval of the 1990 base year emission

inventory, and basic I/M, and the

redesignation to attainment for ozone

and associated section 175A

maintenance plan for the Detroit-Ann

Arbor area.

EFFECTIVE DATE: This action will be

effective April 6, 1995.

ADDRESSES: Copies of the SIP revisions,

public comments and USEPA’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 (AT–18J), Air

Toxics and Radiation 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 1990 base year emission

inventory, basic I/M, and redesignation
12460 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

1 I/M rule was promulgated on November 5, 1992,

57 FR 52950.

request and maintenance plan discussed

in this rule were submitted on January

5, 1993 (with revisions on November 15,

1993), November 15, 1994 and

November 12, 1994, respectively, by the

Michigan Department of Natural

Resources (MDNR) for the Detroit-Ann

Arbor moderate ozone nonattainment

area. The Detroit-Ann Arbor area

consists of Livingston, Macomb,

Monroe, Oakland, St. Clair, Washtenaw,

and Wayne counties. On July 21, 1994,

(59 FR 37190) the USEPA published a

proposal to approve the 1990 base year

emission inventory, basic I/M, and

redesignation request and associated

section 175A maintenance plan as

revisions to the Michigan ozone SIP. On

September 8, 1994 (59 FR 46479 and

46380), the USEPA published a

correction notice and 15-day extension

of the comment period as a result of the

inadvertent omission of a number of

lines from the July 21, 1994 proposal.

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 USEPA’s final

action regarding the 1990 base year

emission inventory, basic I/M, and

redesignation and section 175A

maintenance plan for the Detroit-Ann

Arbor area. A more detailed discussion

in response to each comment is

contained in the USEPA’s Technical

Support Document (TSD), dated

February 3, 1995 from Jacqueline Nwia

to the Docket, entitled ‘‘Response to

Comments on the July 21, 1994 Proposal

to Approve the 1990 Base Year Emission

Inventory, Basic I/M, and Redesignation

to Attainment for Ozone and Section

175A Maintenance Plan for the DetroitAnn Arbor Area,’’ which is available

from the Region 5 office listed above.

II. Public Comments and USEPA

Responses and Final Rulemaking

Actions

Table of Contents

A. 1990 Base Year Emission Inventory

I. Public Comments and USEPA Response

II. Final Rulemaking Action

B. Inspection and Maintenance

I. Public Comments and USEPA Response

II. Final Rulemaking Action

C. Redesignation

I. Public Comments and USEPA Response

II. Final Rulemaking Action

A. 1990 Base Year Emission Inventory

I. Public Comments and USEPA

Responses

The following discussion summarizes

and responds to the comments received

regarding the 1990 base year emission

inventory.

Comment

Two commentors note an error in the

1990 base year emission inventory

portion of the proposed action. One of

these commentors notes that the total

tons of volatile organic compounds

(VOC) per summer weekday emitted

from non-road mobile sources is listed

as 531.03 for this source category. The

correct number submitted by MDNR is

111.67.

USEPA Response

The USEPA acknowledges this error.

The VOC emissions per summer

weekday from the non-road mobile

source category in the July 21, 1994

proposal (p. 37192) will be changed to

reflect the number submitted by MDNR,

111.67. In addition, the total tons of

VOC per summer weekday in the same

table will be changed to 971.92. The

Daily VOC Emissions table is changed

and appears as follows:

DAILY VOC EMISSIONS FROM ALL SOURCES—TONS/SUMMER WEEKDAY

Ozone nonattainment area Point source

emissions

Area source

emissions

On-road

mobile

source

emissions

Non-road

mobile

source

emmissions

Biogenic

emissions

Total emissions

Detroit/Ann Arbor ............................................................. 167.08 252.27 327.00 111.67 113.90 971.92

II. Final Rulemaking Action

The USEPA approves the ozone

emission inventory SIP submitted to the

USEPA for the Detroit-Ann Arbor area

as meeting the section 182(a)(1)

requirements of the Clean Air Act (Act)

for emission inventories.

B. Inspection and Maintenance

I. Public Comments and USEPA

Responses

The following discussion summarizes

and responds to the comments received

regarding Inspection and Maintenance.

Comment

One commentor suggests that the

USEPA’s redesignation decision should

be explicitly conditioned upon the

requirement for the Michigan

Department of Transportation to

implement enhanced I/M 240 as a

contingency measure. At a bare

minimum, the maintenance plan should

include the BAR 90 emissions test with

visual anti-tampering check for all cars

newer than 1975 with no Medicaid

waiver.

USEPA Response

The Act requires that nonattainment

areas classified as moderate adopt and

submit as a SIP revision provisions for

implementation of a basic I/M program.

See sections 182(a)(2)(B)(i) and (b)(4).

Since the Detroit-Ann Arbor area was

classified as moderate nonattainment for

ozone, the Act requires an I/M program

that meets the basic I/M performance

standard. The Detroit-Ann Arbor area

has implemented an I/M program since

1986, as required by the pre-1990 Act.

The area, therefore, must provide for

upgrades to the current I/M program to

the level of a basic I/M program. Under

recent revisions to the national I/M rule

(January 5, 1995, 60 FR 1735), however,

areas that have requested redesignation

to attainment, and are otherwise eligible

to obtain approval of the request, may

defer adoption and implementation of

otherwise applicable requirements

established in the originally

promulgated I/M rule 1. The State was

required to submit and has submitted,

as a contingency measure within the

section 175A maintenance plan a

commitment, legislative authority and

an enforceable schedule for adoption

and implementation of a basic I/M

program. The contingency plan is

described in detail in a subsequent

USEPA response within this Federal

Register.

Comment

One commentor requests that the

USEPA delay approval of the

redesignation request until Michigan’s

Joint Committee on Administrative

Rules completes its review of the I/M

legislation and the USEPA confirms that

the essential elements listed at 59 FR
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12461

2The Act requires States to make changes to

improve existing I/M programs or implement new

ones. Section 182(a)(2)(B)(i) requires States to

submit SIP revisions for any ozone nonattainment

area which has been classified as marginal,

pursuant to section 181(a) of the Act, with an

existing I/M program that was part of a SIP prior

to enactment of the Act or any area that was

required by the Act, as amended in 1977, to have

an I/M program, to bring the program up to the level

required in pre-1990 USEPA guidance, or to what

had been committed to previously in the SIP,

whichever was more stringent. Areas classified as

moderate and worse were also subject to this

requirement to improve programs to this level. The

Detroit-Ann Arbor area, a moderate ozone

nonattainment area, had in effect an I/M program

pursuant to the 1977 Act. The area, therefore, was

required to improve its existing I/M program to

meet the basic I/M program requirements.

37193–94 regarding basic I/M, upon

which redesignation approval relies, are

still in place.

USEPA Response

The USEPA cannot delay approval of

the redesignation, since Michigan has

submitted the elements required and

necessary to establish basic I/M as a

contingency measure in the section

175A maintenance plan as provided for

by the revisions to the national I/M rule.

As presented in the July 21, 1994

proposal, the State submittal contains

the essential elements listed at 59 FR

37193–94. Basic I/M, if implemented as

a contingency measure, may be

implemented in Wayne, Oakland, and

Macomb counties and expanded to

Washtenaw county.

Comment

One commentor is concerned that

expanding upgraded 2 basic I/M to

Washtenaw, St. Clair, Livingston and

Monroe counties is subject to potential

legislative veto after the need for

contingency measures is triggered. The

commentor states that because

Michigan’s legislature can unilaterally

rescind the provisions to extend basic

I/M programs to Washtenaw, St. Clair,

Livingston and Monroe counties (1993

Mich. Pub. Act 232 § 8(2)(c) & (d)),

Michigan’s provisions do not appear to

meet even the relaxed standards

proposed in the June 28, 1994 revisions

to the national I/M rule, 59 FR 33237,

as being fully self-implementing and

enforceable under all circumstances.

Therefore, Michigan’s basic I/M SIP is

not complete or approvable.

Consequently, the Detroit-Ann Arbor

area is not eligible for redesignation.

USEPA Response

Sections 8(2)(c) and (d) of Michigan’s

Enrolled House Bill 5016 only apply if

the redesignation request is disapproved

and basic I/M must be implemented in

the entire 7-county Detroit-Ann Arbor

area (Wayne, Oakland, Macomb,

Washtenaw, St. Clair, Livingston, and

Monroe counties). The 45-day

notification period in section 8(2)(d) of

Michigan Enrolled House Bill 5016 is

only applicable, as described in section

8(2)(c), if the redesignation is not

approved and the State must implement

basic I/M to meet the section 182(b)

requirements. Clearly, the 45-day

notification period is not applicable for

implementation of I/M as a contingency

measure. It is important to acknowledge

that only notification to the legislature

is required, and that no affirmative

action on the part of the legislature is

necessary to allow the program to be

implemented. In addition, States at any

time are able to amend existing rules

and/or regulations for any required

program as a matter of State law. This

ability is not a reason for disapproval of

any State submittal because such

unilateral State action would not affect

the Federal enforceability of the version

of the State law or regulation the USEPA

had approved into the SIP. The I/M

legislation for the Detroit-Ann Arbor

area satisfies the requirements of the

revisions to the national I/M rule.

Sections 8(2)(a) and (b) of the

legislation apply if the area is

redesignated, and basic I/M is

implemented as a contingency measure

or as a condition for approval of the

redesignation request. In particular,

section 8(2)(a) provides that basic I/M

may be implemented as a contingency

measure in Wayne, Oakland and

Macomb county and also expanded to

Washtenaw county, if necessary.

Together, the basic I/M submittal and

redesignation request and the section

175A maintenance plan for the DetroitAnn Arbor area (1) provide for the

adoption of implementing regulations

for a basic I/M program, meeting the

national basic I/M requirements without

further legislation, (2) provide for the

implementation of basic I/M upgrades

as a contingency measure in the

maintenance plan upon redesignation,

(3) contain, as a contingency measure

within the maintenance plan, a

commitment by the Governor to adopt

regulations to implement I/M in

response to a specified triggering event,

and (4) contain a commitment including

an enforceable schedule for adoption

and implementation of a basic I/M

program, as provided in the revisions to

the national I/M rule. The revisions to

the I/M rule do not, however, require

that the basic I/M SIP be fully selfimplementing. Consequently, contrary

to the commentor’s statement, the basic

I/M SIP is complete and approvable and

the Detroit-Ann Arbor area is eligible for

redesignation.

Comment

One commentor states that the USEPA

cannot redesignate the Detroit-Ann

Arbor area because Michigan’s basic

I/M SIP submission does not even

satisfy the requirements of the USEPA’s

unlawful policy. In particular, the

commentor argues that since the

legislature could at any time amend the

legislative authority, the USEPA should

require the State to submit adopted

regulations with a basic I/M SIP. The

commentor further argues that Michigan

did not submit a sufficiently specific

and enforceable schedule for adoption

and implementation of a basic I/M

program upon a specified triggering

event. The commentor also notes that if

the State has not adopted the

regulations necessary to implement the

contingency measure, such measure will

not correct any violation promptly as

required by the Act and USEPA

guidance.

USEPA Response

The commentor states that the 45-day

notice provided in the legislation prior

to implementation of a required I/M

program ensures that the legislature can

repeal the legislative authority before it

takes effect. This commentor’s

interpretation of Michigan’s Enrolled

House Bill 5016 is incorrect. The 45-day

notification period in section 8(2)(d) of

Michigan Enrolled House Bill 5016 is

only applicable under the scenario

described in section 8(2)(c), if the

redesignation is not approved and the

State must implement basic I/M to meet

the section 182(b) requirements. Thus,

as discussed earlier, the 45-day

notification period is not applicable for

implementation of I/M as a contingency

measure.

The USEPA further responds that

Michigan has submitted as part of the

175A maintenance plan an enforceable

schedule for adoption and

implementation of basic I/M as a

contingency measure. Section 6.8.3 of

the State’s submittal indicates that

adoption and implementation schedules

for contingency measures would be

consistent with those specified in the

Act and any corresponding regulations

and submitted as part of the technical

urban airshed modeling (UAM) analysis.

The I/M redesignation rule provides the

relevant adoption and implementation

schedules. If the Governor chooses I/M

to be implemented as the contingency

measure, under the schedule of the I/M

redesignation rule Michigan

incorporated by reference, the State

would need to adopt I/M within one

year of the trigger date. Michigan’s

submittal defined the trigger date as the
12462 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

3September 17, 1993 memorandum from Michael

H. Shapiro, entitled SIP Requirements for Areas

Submitting Requests for Redesignation to

Attainment of the Ozone and Carbon Monoxide

NAAQS on or after November 15, 1992.

date that the State certifies to the

USEPA that the air quality data are

quality assured, which will be no later

than 30 days after an ambient air quality

violation is monitored. Pursuant to the

I/M redesignation rule, the trigger date

is the date no later than when the

USEPA notifies the State of a violation.

As long as the trigger date as defined by

Michigan occurs prior to the date the

USEPA notifies the State of a violation,

Michigan’s timeframe for implementing

I/M as a contingency measure is

consistent with the I/M redesignation

rule. Because it often takes several

months for the USEPA to obtain the data

and confirm a violation, it is unlikely

that the trigger date as defined by

Michigan will be later than that defined

in the I/M redesignation rule. However,

if the USEPA does notify the State of a

violation prior to the State certifying to

the USEPA that the ambient air quality

data assure a violation, then the trigger

date will be the date of the USEPA

notification to the State, consistent with

the I/M redesignation rule. The basic I/

M program, if selected as a contingency

measure, must be implemented within

24 months of the trigger date, or 12

months after the adoption of

implementing regulations. This

schedule is consistent with the I/M

redesignation rule, which is the

applicable regulation for purposes of

establishing an adoption and

implementation schedule. This

schedule is specific and enforceable

since it will be incorporated into the SIP

as part of the section 175A maintenance

plan. The section 175A(d) requirement

for contingency provisions is that they

must promptly correct a violation of the

NAAQS. The USEPA believes that the

schedule provided for implementation

of a basic I/M program within the

Detroit-Ann Arbor area’s section 175A

maintenance plan is sufficient to

address this requirement in light of the

logistics of adopting and implementing

a basic I/M program.

The commentor also indicated that

the Michigan submittal does not satisfy

the USEPA’s requirement of a ‘‘specified

and enforceable schedule’’ because it

does not include a timetable of steps

necessary to get the required regulations

adopted. As discussed above, because

Michigan incorporated by reference the

timetable of the I/M redesignation rule,

adoption of I/M regulations is specified

to occur within one year of the trigger

date. The only other interim step

necessary to get the required regulations

adopted is the proposal of draft

regulations. Although the Michigan

submittal did not specify a date for the

proposal, the State’s commitment to a

date for promulgation of the final rule

implies that the draft regulations will be

proposed on a date no later than that

necessary to provide for notice and

comment and a hearing on the draft

regulations. Because Michigan’s

submittal specified a timetable to get the

final regulations adopted, the Michigan

submittal has met the requirement to

provide a specified and enforceable

schedule.

A commentor also suggested that a

determination that actual emissions

from mobile sources actually exceed

those predicted in the emission

inventories should also be included as

a triggering event. This is neither a

requirement of the Act nor of USEPA

policy, although it has been suggested as

a possible triggering event in guidance,

and States are encouraged to use it.

Comment

One commentor challenges the

adequacy of Michigan’s demonstration

that its I/M program did not contribute

to Southeast Michigan’s attainment, and

urged reconsideration of the proposed

elimination of the program after 1995.

USEPA Response

Michigan did not claim that the

current I/M program did not contribute

to the Detroit-Ann Arbor’s attainment,

nor did it claim credit for the emission

reductions achieved as a result of the

program within the attainment

demonstration. Furthermore, neither the

State nor the USEPA has proposed or

suggested that the current I/M program

be eliminated after 1995. In fact, the

State must continue to implement its

current I/M program as well as all other

SIP control measures that were

contained in the SIP prior to the

submittal of a complete redesignation

request. The September Shapiro 3

memorandum reviews and reinforces

the USEPA’s policy on SIP relaxations,

particularly in the context of

redesignation. The memorandum notes

that the USEPA’s general policy is that

a State may not relax the adopted and

implemented SIP for an area upon the

area’s redesignation to attainment

unless an appropriate demonstration,

based on computer modeling, is

approved by the USEPA. Existing

control strategies must continue to be

implemented in order to maintain the

standard. Although section 175A

recognizes that SIP measures may be

moved to the contingency plan upon

redesignation, such a SIP revision may

be approved only if the State can

adequately demonstrate that such action

will not interfere with maintenance of

the standard. A demonstration for an

area redesignated to attainment for

ozone would entail submittal of an

attainment modeling demonstration

with the USEPA’s current Guideline on

Air Quality Models, showing that the

control measure is not needed to

maintain the ozone NAAQS. Also, see

memorandum from Gerald A. Emison,

April 6, 1987, entitled Ozone

Redesignation Policy.

Comment

One commentor states that the

USEPA’s policy of approving a basic I/

M SIP revision that does not include

adopted regulations is unlawful.

USEPA Response

The USEPA’s specific response to

these comments is published in the

USEPA’s final rulemaking on the

revisions to the national I/M rule. See

January 5, 1995, 60 FR 1735. In that

rulemaking, the commentor also

submitted similar remarks and the

USEPA’s responses to those comments

appear in the docket for that

rulemaking. It is appropriate for the

USEPA to rely on the final I/M rule

revisions in taking today’s final action,

and this rulemaking is not the

appropriate forum in which to challenge

the validity of the I/M rule revisions.

II. Final Rulemaking Action

The USEPA approves the basic I/M

program submitted to the USEPA for the

Detroit-Ann Arbor area as meeting the

revised national I/M rule (January 5,

1995, 60 FR 1735) for areas redesignated

from nonattainment to attainment,

consequently satisfying the

requirements of section 182(a)(2)(B)(i) of

the Act.

C. Redesignation

I. Public Comments and USEPA

Responses

The following discussion summarizes

and responds to the comments received

regarding the redesignation of the

Detroit-Ann Arbor area to attainment for

ozone.

Comment

One commentor notes that if an

expeditious review and approval of

MDNR’s request had occurred prior to

the 1994 ozone season, then any ozone

violation thereafter would have

prompted the implementation of a

contingency measure from the

maintenance plan to correct the air

quality problem.
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12463

4September 4, 1992 memorandum from John

Calcagni, entitled Procedures for Processing

Requests to Redesignate Areas to Attainment.

5The VOC RACT rules were approved in a final

rulemaking published on September 7, 1994 in the

Federal Register (59 FR 46213 and 46182).

USEPA Response

The Act authorizes the USEPA up to

18 months from submittal to act on a

State’s request to redesignate. See

section 107(d)(3)(D). The process for

redesignating areas to attainment is a

complex one which is designed not only

to identify areas which currently have

clean air, but also to assure that clean

air will be maintained in the future.

There are many statutory requirements

which must be satisfied before the

redesignation request can be processed,

including review and approval of all

revisions to the SIP for programs whose

deadlines came due prior to submittal of

the redesignation request to the USEPA.

See September Calcagni 4 memorandum

and September Shapiro. Before the

USEPA could finally redesignate the

area to attainment, all remaining items

had to be finally approved, including:

(1) the State regulations for Reasonable

Available Control Technology (RACT)

for VOC,5 (2) the section 182(f) oxides

of nitrogen (NOX) RACT exemption

petition, and 3) revisions to the national

motor vehicle I/M rule. The USEPA

could not redesignate the Detroit-Ann

Arbor area until these actions were

finalized. Because all these actions were

finalized, the Federal action on the

redesignation can be completed.

Furthermore, if a violation had occurred

during the pendency of the USEPA’s

review of the ozone redesignation

request, the USEPA could not approve

the request since the area would not

have remained in attainment. As a

consequence, further control measures

would have been required under the

Act.

In any case, the commentor’s concern

is moot, since no violations of the ozone

NAAQS occurred during the 1994 ozone

season.

Comment

One commentor suggests that

redesignation requests should be Table

I decisions to ensure national

consistency.

USEPA Response

An October 4, 1993 memorandum

from Michael H. Shapiro, Acting

Assistant Administrator for Air and

Radiation, revised the SIP tables

initially published in the Federal

Register on January 19, 1989 (54 FR

2214). The USEPA revised these tables

in conjunction with the Office of

Management and Budget (OMB). The

revisions classified all redesignation,

except those for total suspended

particulate, as Table 2 actions. These

actions require the Regional

Administrator’s decisions and

concurrence, but provide a 40-day

opportunity for Headquarters review

before concurrence by the Regional

Administrator. The 40-day Headquarters

review is intended to function as a

check for national consistency and the

USEPA believes that this system

provides adequate assurances of

consistency.

Comment

One commentor notes that the

USEPA’s proposed redesignation relies

on data from 1993 which was not

included in Michigan’s November 12,

1993 request, and was not subject to

public comment. Further, there is an

inconsistency between the years offered

by Michigan as a basis for redesignation

1990–92 and the years selected by the

USEPA as the basis for considering and

actually proposing the redesignation

(1991–1993). Therefore, Michigan’s

redesignation request was not

‘‘complete’’ on November 12, 1993.

USEPA Response

As stated in the proposed rulemaking,

Michigan submitted ambient data for

1990–1992 in its November 12, 1993

submission, but did not submit 1993

ozone data because it was not

completely quality-assured at the time

the request was being developed. Under

the guidance of the USEPA, the State

submitted the 3 most recent consecutive

years of complete air monitoring data

(1990–1992), with the understanding

that shortly thereafter, the 1993 ozone

season data would be available in AIRS

for the USEPA to review. The 1993

ozone data was considered by the

USEPA and was subject to public

comment as a result of the July 21, 1994

proposed rulemaking. Regardless of

which years of data are used, 1990–1992

or 1991–1993, Michigan has

demonstrated attainment of the ozone

NAAQS in the Detroit-Ann Arbor area

by providing monitoring data with no

violations. Completeness of a SIP

submittal is based on the criteria

established in 40 CFR part 51, appendix

V. Using these, the USEPA found the

November 12, 1993 submittal complete

in a letter to Michigan dated January 7,

1994. The use of 1993 ozone season data

that was not completely quality-assured

at the time of the November 12, 1993

submission does not alter the

conclusion that the submission, which

the USEPA found complete was based

on 3 consecutive years of air monitoring

data.

Comment

One commentator alleges that

USEPA’s notice of proposed approval of

the redesignation is a product of undue

haste since the action was incomplete

and failed to give adequate notice of

plans for verification of continued

attainment. The action skips portions of

paragraph (b) Demonstration of

Maintenance and paragraph (C)

Verification of Continued Attainment on

pages 37198–37199. In addition, three

paragraphs on page 37198 duplicate text

on page 37197.

USEPA Response

The omission of paragraph (B) and (C)

and duplicated text is acknowledged.

Unfortunately, the Office of Federal

Register, inadvertently excluded a

number of lines from these two sections

of the action. For this reason, the

comment period on the July 21, 1994,

redesignation was reopened on

September 8, 1994, (59 FR 46479 and

46380) for 15 days in order to provide

the public an opportunity to

appropriately comment on it.

Comment

One commentor requested additional

time for reviewing and providing

comments on the proposed

redesignation due to insufficient time to

comment on such a complex proposal.

USEPA Response

As discussed above, the comment

period was extended for the

redesignation and section 175A

maintenance plan in order to give the

public sufficient time to review and to

submit comments. The correction

document and extension of public

comment period action were published

on September 8, 1994. The USEPA does

not believe that any additional

extension of time is necessary as an

adequate comment period has already

been provided.

Comment

One commentor requested a formal

USEPA public hearing on the

redesignation.

USEPA Response

Under the Act, States can submit

proposed implementation plans (and

revisions) to the USEPA for approval

only after they have afforded interested

parties ‘‘reasonable notice and public

hearing * * *.’’ See Section 110(a)(1)

and (a)(2). The State held a public

hearing on the proposed redesignation

to attainment for ozone and revision to
12464 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

6This is equivalent to 0.125 parts per million

(ppm). This is the reference used by the commentor,

presumably, to illustrate the difference between the

Canadian objective and U.S. standard.

the Michigan SIP, i.e., maintenance

plan, on October 22, 1993. There are no

provisions, however, requiring the

USEPA to hold its own hearings. The

USEPA is required to provide the

opportunity for public comment. The

USEPA announced opportunities on

July 21, 1994 and September 8, 1994 for

the public to submit comments. The

USEPA believes those opportunities

represent a more than ample

opportunity for public input and

comment on this redesignation.

Comment

One commentor states that the air

quality in the area has been poor and

has gotten worse in the past 10 years.

Offensive odors are apparent when it is

slightly overcast or during the night

when a local incinerator is burning.

USEPA Response

This redesignation pertains to solely

to ozone, and would not affect offensive

odors from an incinerator, regardless of

whether these odors are evident during

slightly overcast skies or at night.

Redesignating the area to attainment for

ozone would neither solve nor

contribute to the problem. The

incinerator must continue to operate

existing control equipment in

compliance with its own applicable

permits, rules and regulations. Ambient

monitoring data from 1990 through 1994

demonstrates that the area is attaining

the ozone NAAQS. This evidences that

the air quality has improved at least

since the period 1987–1989, the years of

air quality data which were used to

designate the area nonattainment for

ozone.

Comment

A number of commentors urge the

USEPA to reconsider the NAAQS for

ground level ozone. One commentor

notes that Canada’s ozone standard’ is

82 parts per billion (ppb) while the

United States’ (U.S.) is 125 ppb.6 This

disparity in limits continues to be

debated in the U.S. courts with the

American Lung Association and others,

who contend that the U.S. must lower

its limit to 82 ppb, or lower, for health

based reasons. Another commentor

states that the current ozone NAAQS is

not protective of the public health, and

should be made more stringent to

comply with the Congressional mandate

to protect public health with an

‘‘adequate margin of safety.’’

USEPA Response

The USEPA is currently in the process

of reevaluating the ozone NAAQS and

expects to make a final decision in mid1997. Until any change is made,

however, the USEPA is bound to

implement the provisions of the Act as

they relate to the current standard,

including those relating to designations

and redesignation.

Comment

One commentor notes that MDNR has

taken the position that the measured

concentration must exceed 125 ppb

before a legally actionable exceedance

that contributes to a 3 year running

average on the number of days with

exceedances is triggered. As a result,

MDNR has not included as excursions

days with maximum numbers that

actually do exceed the published

standard of 0.12 ppm.

USEPA Response

Published guidance (Guideline for the

Interpretation of Ozone Air Quality

Standards, January 1979, EPA–450/4–

79–003), which is part of the ozone

standard by reference in 40 CFR part 50,

appendix H, notes that the stated level

of the standard is determined by

defining the number of significant

figures to be used in comparison with

the standard. For example, a standard

level of 0.12 ppm means that

measurements are to be rounded to two

decimal places (0.005 rounds up), and

therefore, 0.125 ppm is the smallest

three-decimal concentration value in

excess of the level of the standard.

Therefore, MDNR is following USEPA

national guidance.

Comment

The commentor objects to the

USEPA’s proposed disapproval of the

redesignation request if a monitored

violation of the ozone NAAQS occurs

prior to final USEPA action on the

redesignation. The commentor notes

further that since the area has reached

attainment of the NAAQS and has

requested redesignation, a requirement

to implement contingency measures to

correct the problem would be sound

policy in the event of a violation during

1994.

USEPA Response

Section 107(d)(3)(E) of the Act

establishes five criteria which must be

satisfied in order for the USEPA to

redesignate an area from nonattainment

to attainment. One of these criteria is

that the Administrator determine that

the area has attained the NAAQS. See

section 107(d)(3)(E)(i). This requirement

clearly prohibits the Administrator from

redesignating areas that have not

attained the NAAQS. If a violation had

occurred prior to the USEPA’s final

action, the Detroit-Ann Arbor area

would no longer have been in

attainment and the USEPA could not

redesignate the area to attainment.

Furthermore, only a final rulemaking

action can change an area’s designation

under 40 CFR part 81. Despite the July

21, 1994 proposal, the area must

continue to meet this criterion until

final rulemaking is published. As a

result, the USEPA must consider air

quality data that is collected until the

date of final rulemaking and revision of

the area’s nonattainment status under 40

CFR part 81.

In addition, the USEPA’s September

Calcagni memorandum, page 5, states

that Regions should advise States of the

practical planning consequences if the

USEPA disapproves the redesignation

request or if the request is invalidated

because of violations recorded during

USEPA’s review. This policy has been

followed in disapproving the Richmond,

Virginia redesignation, which was

disapproved due to violations of the

ozone NAAQS occurring prior to final

action on a proposed approval of the

redesignation (May 3, 1994, 59 FR

22757).

With respect to a requirement to

implement contingency measures in the

event of a violation prior to final

approval of a redesignation, the USEPA

notes that the Detroit-Ann Arbor area,

like any other nonattainment area, is

subject to the contingency measure

requirements of section 172(c)(9) until

the area is redesignated to attainment.

In any case, the commentor’s concern

is moot, since no violations of the ozone

NAAQS occurred during the 1994 ozone

season.

Comment

Several commentors request that the

Detroit-Ann Arbor area be denied

redesignation to attainment until it is

clearly shown, using 1994 data, that the

area is in attainment. Other commentors

noted that although the Detroit-Ann

Arbor area experienced only one ozone

exceedance from 1991 to 1993 or 1990

to 1992, it experienced at least three

ozone exceedances in 1994 alone.

Commentors provided specific

monitored ozone values recorded at

Detroit-Ann Arbor area monitors during

the 1994 ozone season. The following

ozone concentrations from Detroit-Ann

Arbor area monitors were provided: 133

ppb at the Algonac monitor, 142 ppb at

the New Haven monitor, 145 ppb at the

Warren monitor, 178 ppb at the Port

Huron monitor, and 127 ppb at the Oak

Park monitor.
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12465

7October 28, 1992 memorandum from John

Calcagni entitled SIP Actions Submitted in

Response to Clean Air Act Deadlines.

USEPA Response

As discussed above, the USEPA could

not approve the redesignation if a

violation occurred during the USEPA’s

review of the request. Consequently,

while the July 21, 1994 action proposed

to approve the redesignation, it also

proposed, in the alternative, to

disapprove the redesignation if

violations of the ozone NAAQS occur

before the USEPA took final action on

the redesignation.

Title 40 CFR part 50.9 establishes the

ozone NAAQS, measured according to

appendix D, as 0.12 ppm (235

micrograms per cubic meter (ug/m3)).

The standard is attained when the

expected number of days per calendar

year with maximum hourly average

concentrations above 0.12 ppm (235 ug/

m3) is equal to or less than 1 as

determined by 40 CFR part 50 appendix

H. Further discussion of these

procedures and associated examples are

contained in the document Guideline

for Interpretation of Ozone Air Quality

Standards, January 1979, EPA–450/4–

79–003. Simply, the number of

exceedances at a monitoring site would

be recorded for each calendar year and

then averaged over the past 3 calendar

years to determine if this average is less

than or equal to 1. The net result is that

each monitor in an area is allowed to

record 3.0 expected exceedances in a 3

year period. More than 3.0 expected

exceedances in a 3-year period would

constitute a violation of the ozone

NAAQS. As explained in the July 21,

1994 proposed rulemaking (59 FR

37190), the Detroit-Ann Arbor area has

attained the ozone NAAQS during the

1990–1992 and 1991–1993 periods. The

1994 ozone season has concluded and

while there have been some recorded

ozone exceedances in the Detroit-Ann

Arbor area, they do not (in

consideration with 1992 and 1993 data)

constitute a violation of the ozone

standard. Consequently, the Detroit-Ann

Arbor area continues to attain the ozone

standard at this time. The USEPA has

considered all air quality data collected

prior to final rulemaking on the

redesignation request.

Comment

One commentor questions whether

actual attainment and maintenance of

the standard was achieved and suggests

that paper demonstrations of attainment

and maintenance should not be given

more weight in decisionmaking when

compared to actual adverse air quality

monitoring data showing unhealthy

concentrations of ozone, or data that is

marginally so.

USEPA Response

The USEPA notes that it has not given

‘‘paper’’ (or more properly, analytical)

demonstrations of attainment more

weight than ambient monitoring data.

As discussed above, the ambient air

quality monitoring data for the DetroitAnn Arbor area demonstrates

attainment of the ozone NAAQS over

the time periods of 1990–1992, 1991–

1993, and 1992–1994. Furthermore,

continued maintenance of the ozone

NAAQS will be determined by

continued ambient monitoring.

Comment

One commentor asserted that the

USEPA cannot redesignate the DetroitAnn Arbor area because the USEPA

must determine the relevant applicable

requirements at the time of approval of

an area’s redesignation request and the

State must satisfy them. According to

the commentor, section 175A(c) of the

Act requires that all requirements of

subpart D remain in force until an area

is redesignated. The commentor argued

that the USEPA’s interpretation of

section 107(d)(3)(E), pursuant to which

the USEPA determines whether an area

seeking redesignation has met the Act

requirements applicable prior to or at

the time of the submission of a

redesignation request, is inconsistent

with section 175A(c). Specifically, the

commentor argued that the Act

prohibits the redesignation of the

Detroit-Ann Arbor area because the area

has not submitted by November 15,

1993, an approvable SIP revision

providing for 15 percent VOC

reductions, nor satisfied the basic I/M

and New Source Review (NSR)

requirements that came due prior to the

submission of the redesignation request.

Moreover, the commentor claimed that

the USEPA’s interpretation encourages

States to delay implementation of the

Act since delay in implementing

requirements that come due after the

submission of a redesignation request

would not affect the approvability of the

request.

USEPA Response

The USEPA has interpreted section

107(d)(3)(E) to mean that the section 110

and part D provisions that are required

to be fully approved in order for a

redesignation to be approved are those

which came due prior to or at the time

of the submittal of a complete

redesignation request. At the same time,

however, the USEPA has maintained

that States continue to be statutorily

obligated to meet any SIP requirements

that come due after the submission of

the redesignation request before the

USEPA takes final action to redesignate

an area. As a consequence, the USEPA

has also followed a policy of issuing

findings of failure to submit if a State

that has submitted a redesignation

request fails to comply with a SIP

submittal requirement that comes due

after the submission of a redesignation

request. See September and October

Calcagni 7 memorandums, September

Shapiro memorandum, and the

memorandum dated January 7, 1994,

from John S. Seitz to Regional Air

Division Directors, entitled ‘‘Procedures

for SIP Elements Due November 15,

1993.’’ The USEPA believes that its

approach is both reasonable and

harmonizes the pertinent provisions of

the Act in a workable manner that is

consistent with the language and intent

of the Act. Moreover, the USEPA

believes that the interpretation

advocated by the commentor would be

unworkable and make it virtually

impossible for areas to be redesignated

to attainment.

The pertinent provisions of the Act

are as follows. Section 107(d)(3)(E)(v) of

the Act provides that a State must have

met ‘‘all requirements applicable to the

area under section 110 and part D’’ in

order to be redesignated. Furthermore,

section 107(d)(3)(E)(ii) provides that the

USEPA must have fully approved the

SIP for the area seeking redesignation.

Finally, section 175A(c) provides that

the requirements of part D remain in

force and effect for an area until such

time as it is redesignated.

The USEPA believes that it is both

logical and reasonable to interpret

section 107(d)(3)(E)(ii) and (v) so that,

for purposes of the evaluation of a

redesignation request, the only

requirements that are ‘‘applicable’’ and

for which the SIP must be fully

approved before the USEPA may

approve the redesignation request are

those that came due prior to or at the

time of the submission of a complete

redesignation request.

The first reason that it is reasonable

to determine the approvability of a

redesignation request on the basis of

compliance with only Act requirements

applicable prior to or at the time of the

submission of the request is that holding

the State to a continuing obligation to

comply with subsequent requirements

coming due after the submission of the

request for purposes of the

redesignation would make it impossible

in many instances for the USEPA to act

on redesignation requests in accordance

with the 18-month deadline mandated
12466 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

by Congress for such actions in section

107(d)(3)(C). This is because each Act

requirement coming due during the

pendency of the USEPA’s review of a

redesignation request carries with it a

necessary implication that the USEPA

must also fully approve the SIP

submission made to satisfy that

requirements in order for the area to be

redesignated. Otherwise, the area would

fail to satisfy the redesignation

requirement of section 107(d)(3)(E)(ii) to

have a fully-approved SIP. As Congress

limited the USEPA to an 18-month

period to take final action on complete

redesignation requests, Congress could

not have intended that, for those

requests to be approved, States make

additional SIP submissions that would

require the USEPA to undertake action

that would necessarily delay action on

the redesignation request beyond the 18-

month time frame. (The delay would

occur due to the time needed for the

USEPA to take action regarding the

determinations as to whether to find

those SIP submissions complete and to

approve or disapprove them. Congress

accorded the USEPA up to 18 months

from the submission of a SIP revision to

take such action. See section 110(k).)

Another reason that the USEPA’s

interpretation is reasonable is that the

fundamental premise for a request to

redesignate a nonattainment area to

attainment is that the area has attained

the relevant NAAQS. Thus, an area for

which a redesignation request has been

submitted should have already attained

the NAAQS as a result of the

satisfaction of Act requirements that

came due prior to the submission of the

request, and it is reasonable to view the

only requirements applicable for

purposes of evaluating the redesignation

request as those that had already come

due since those requirements were the

ones that presumably led to attainment

of the NAAQS—which is the primary

purpose of title I of the Act. To require

that a State continue to satisfy

requirements coming due during the

pendency of the USEPA’s review of a

complete redesignation request in order

to have the redesignation approved

would require the State to do more than

was needed to attain the NAAQS.

The USEPA’s interpretation by no

means eliminates the obligation of

States to comply with requirements

coming due after the submission of a

redesignation request. Rather, it simply

means that areas may be redesignated

even though the State may not have

complied with those requirements. As

the USEPA’s policy makes clear, in

accordance with the requirements of

section 175A(c), the statutory obligation

of the States to fulfill those

requirements remains in effect until the

USEPA takes final action to redesignate

an area to attainment. Thus, the

USEPA’s policy is to issue findings of

failure to submit if a State fails to

submit a SIP revision to fulfill such a

requirement, thereby triggering a clock

that will result in the imposition of

mandatory sanctions, under section 179

of the Act, 18 months after the issuance

of the finding unless the USEPA

approves the redesignation request prior

to the expiration of the sanctions clock.

Thus, if a State chooses not to submit

a complete and approvable SIP revision

to comply with a requirement that

comes due after the submission of a

redesignation request, it runs the risk it

will be sanctioned in the event that the

USEPA does not approve the

redesignation request. For example, in

the case of the Detroit-Ann Arbor area,

on January 21, 1994, the USEPA started

the 18-month sanctions clock for the 15

percent reduction plan required by

section 182(b)(1) to be submitted by

November 15, 1993 after the State had

submitted its complete redesignation

request for the Detroit-Ann Arbor area,

by finding the area’s 15 percent plan

incomplete. If the USEPA were not now

approving the redesignation request, the

sanctions clock would continue to run

and the State would continue to be

subject to the risk that sanctions would

be imposed. Notably, a State seeking

redesignation for an area is in the same

position as to the initiation of sanctions

clocks for the failure to make a

submittal as any other State. Thus, if

Michigan had not submitted a

redesignation request for the DetroitAnn Arbor area and nevertheless had

failed to submit a complete 15 percent

plan by November 15, 1993, it would

also have been subject to a finding of

failure to submit and the consequent

commencement of a sanctions clock.

For this reason, the USEPA disagrees

with the comment’s contention that the

USEPA’s interpretation regarding the

requirements applicable for purposes of

evaluating redesignation requests

encourages States to delay

implementation of the Act. States

seeking redesignation for areas are

subject to sanctions for failure to submit

SIP revisions in accordance with the

Act’s requirements in the same way that

States not seeking redesignation are. To

the extent that the USEPA’s

interpretation results in States not

adopting measures they might otherwise

have had to, such a result is a

consequence of the only workable

interpretation of the provisions of

section 107 concerning applicable

requirements and that result does not

justify rejecting that interpretation. This

is particularly so since the only areas

that benefit from this interpretation are

those that have attained the ambient air

quality standards and have

demonstrated that they will continue to

maintain them in the future.

Thus, the USEPA believes it may

approve the Detroit-Ann Arbor

redesignation request notwithstanding

the lack of a fully approved 15 percent

plan. Such action is consistent with the

USEPA’s national policy and is

permissible under the Act. (The

commentor’s contentions regarding the

basic I/M plans and NSR review

program are dealt with as part of the

responses to other comments on those

programs elsewhere in this document.)

Comment

One commentor stated that the

requirement of both general and

transportation conformity is an

important element of Michigan’s

attainment SIP and that the USEPA’s

notice has not addressed conformity in

the context of the redesignation.

Adverse consequences will stem from

failure to continue to require conformity

analyses and measures. Another

commentor states that redesignation

does not excuse the State from

submitting a conformity SIP revision for

the Detroit-Ann Arbor area or from

including a motor vehicle emission

budget for NOX in the area’s

maintenance plan. The commentor

further states that the NOX waiver

available under section 182(f), has no

connection with the conformity

requirements for transportation plans

and programs contained in section

176(c)(2)(A) and 176(c)(1)(B).

USEPA Response

The July 21, 1994 proposal (59 FR

37190) did state that the November 24,

1993 (59 FR 62188) transportation and

November 30, 1993 (59 FR 63214)

general conformity rules require States

to adopt transportation and general

conformity provisions in the SIP for

areas designated nonattainment or

subject to a maintenance plan approved

under section 175A of the Act. The

proposal further explained that,

although conformity is applicable in

these areas, since the deadline for

submittal had not come due for these

rules at the time Michigan submitted a

redesignation request, the approval of

the redesignation is not contingent on

these submittals to comply with section

107(d)(3)(E)(v). The Detroit-Ann Arbor

area must comply with the section 176

conformity regulations as required by

the conformity rules and the Conformity

General Preamble (June 17, 1994, 59 FR
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12467

8On November 18, 1994 and November 29, 1994,

Michigan submitted SIP revisions to comply with

the Transportation and General conformity rules.

31238) 8. According to these rules,

conformity applies to nonattainment

areas as well as maintenance areas.

Once redesignated, the Detroit-Ann

Arbor area will be a maintenance area

which 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.

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 it pertains to

areas requesting and obtaining a section

182(f) NOX exemption. According to the

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 vehicle emission

budget for NOX in the area’s

maintenance plan.

The commentor’s suggestion that the

section 182(f) 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 for the DetroitAnn Arbor area published elsewhere in

this Federal Register.

Comment

One commentor states that areas are

requesting exemptions from the NOX

control measures based on incomplete

modeling studies (i.e. Lake Michigan

and Southeast Michigan Ozone Studies)

which do not accurately predict the

relative contribution of mobile 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 of mobile

source inventories, it is inappropriate to

remove from the SIP any NOX or VOC

conformity analysis.

USEPA Response

Exemption from the section 182(f)

NOX requirements is provided for in

sections 182(f)(1)(a) and 182(f)(3) of the

Act. Michigan submitted such an

exemption request on November 12,

1993 for the Detroit-Ann Arbor area

based on 3 consecutive years of clean air

quality monitoring data, not on a

modeling study or analysis. In addition,

approval of an exemption based on

monitoring data will be contingent on

the area’s maintenance of the ozone

NAAQS. As noted previously, a section

182(f) NOX exemption will not exempt

areas from compliance 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 commentor notes that there is no

reasonable or adequate basis for

eliminating Michigan’s existing NSR

program from the current SIP. Another

commentor states that the USEPA

cannot redesignate the Detroit-Ann

Arbor area because Michigan has not

met the NSR requirements under section

182(b)(5).

USEPA Response

The USEPA believes that the DetroitAnn Arbor area may be redesignated to

attainment notwithstanding the lack of

a fully-approved NSR program meeting

the requirements of the 1990 Act

amendments and the absence of such an

NSR program from the contingency

plan. This view, while a departure from

past policy, has been set forth by the

USEPA as its new policy in a

memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation, dated October 14, 1994,

entitled Part D New Source Review (part

D NSR) Requirements for Areas

Requesting Redesignation to

Attainment.

The USEPA believes that its decision

not to insist on a fully-approved 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

USEPA has the authority to establish de

minimis exceptions to statutory

requirements where the application of

the statutory requirements would be of

trivial or no value environmentally.

In this context, the issue presented is

whether the USEPA has the authority to

establish an exception to the

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

the USEPA have fully-approved a SIP

meeting all of the requirements

applicable to the area under section 110

and part D of title I of the Act. Plainly,

the NSR provisions of section 110 and

part D are requirements that were

applicable to the Michigan area seeking

redesignation 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

USEPA have fully-approved a part D

NSR program meeting the requirements

of the 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 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 Detroit-Ann Arbor

area. For the following reasons, the

USEPA 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.

Michigan 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 made by Michigan 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 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

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,

contrary to the assertion of the

commentor, 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 in

order to provide for continued

maintenance of the NAAQS. (If this

demonstration had not been made, NSR

would have had to have been retained

in the SIP as an operative program since

it would have been needed to maintain

the ozone standard.)
12468 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

9The U.S. EPA is not suggesting that NSR and

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 USEPA

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 NOX offsets are necessary. See October 14, 1994

memorandum from Mary Nichols entitled Part D

New Source Review (part D NSR) Requirements for

Areas Requesting Redesignation to Attainment.

10The U.S. 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.

The other purpose that requiring the

full-approval of a part 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 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 NSR program

must be included as a contingency

provision depends on whether it is a

‘‘measure’’ for the control of the

pertinent air pollutants.

As the USEPA noted in the proposal

regarding this redesignation request, 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

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 of the Act.’’ In section

110(a)(2)(C), Congress required 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 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 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 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 of the Act, such as section

161, Congress appeared to include PSD

within the scope of the term

‘‘measures.’’

The USEPA 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 USEPA 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 PSD and NSR

from its scope, the USEPA believes it is

reasonable to interpret ‘‘measure,’’ as

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

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.9 This 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 of the term

‘‘measure.’’ 10

The USEPA’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

USEPA is not permitting part D NSR to

be removed without a demonstration

that maintenance of the standard will be

achieved. Moreover, the USEPA 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 USEPA believes that the NSR

requirement differs from other

requirements, and does not believe that

the rationale for the NSR exception

extends to other required programs.

As the USEPA has recently changed

its policy, the position taken in this

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 has been done in this

case, that maintenance will be achieved

with the application of PSD 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 of moderate

nonattainment areas in the SIP. It is

essential to have elements of the 15

percent ROP plan available as

contingency measure in the attainment

plan. It is not clear that the current

rulemaking procedure will allow that to

happen.

USEPA Response

As explained above, under the

USEPA’s interpretation of section 107,

an area need not meet all section 110

and part D requirements that become

applicable after the submittal of a

complete redesignation request in order

to have the request approved. Therefore,

the 15 percent ROP plan, which was not

due to be submitted until November 15,

1993, after the submission of the

redesignation request, is not 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
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12469

11The expanded applicability of Stage I to county

boundaries of each nonattainment area classified as

moderate and above.

would have been included in the 15

percent plan since those measures were

not required to be included in the SIP

prior to redesignation. Furthermore,

some elements of the incomplete 15

percent ROP plan that Michigan did

submit for the Detroit-Ann Arbor area

are included in the maintenance plan

and are available as contingency

measures in the maintenance plan.

These elements include basic I/M, Stage

I expansion, 11 and Stage II vapor

recovery. The USEPA believes that the

menu of contingency measures is

adequate and that additional

contingency measures are not necessary.

As for the commentor’s effort to

ascribe subjective motivations to the

USEPA in acting on this redesignation,

the USEPA believes such contentions

are simply irrelevant.

Comment

One commentor states that there can

be no redesignation until Michigan

submits a complete and approvable 15

percent ROP plan. The commentor

alleges that since Michigan’s application

was not complete on November 12,

1993, all moderate area provisions

including the 15 percent plan must be

in place to accomplish the

redesignation. The commentor notes

that Stage II vapor recovery and an

upgraded I/M program should be in

Michigan’s SIP to assure continued

maintenance of the NAAQS.

USEPA Response

After the USEPA’s review, on January

21, 1994, the redesignation request was

found complete on the basis of the

completeness criteria codified in 40 CFR

part 51, appendix V. As explained

above, the November 12, 1993 request

was based on three complete years of

clean data, and the consideration of

subsequent air quality data does not

alter the conclusion that that request

was complete. Thus, the November 12,

1993 redesignation request is complete

and, in accordance with the USEPA’s

policy on applicable requirements

(described above), the 15 percent plan

need not be submitted or approved prior

to approval of the redesignation.

With respect to the commentor’s

assertions regarding the need for Stage

II vapor recovery and an upgraded I/M

program to assure maintenance, the

USEPA notes that the State has

provided an adequate demonstration

that maintenance will occur even in the

absence of those programs. The State’s

emissions projections underlying the

maintenance demonstration are

discussed in the proposal at 59 FR

37197, and the commentor has provided

no evidence that those projections are

erroneous. Furthermore, the USEPA

notes that Stage II vapor recovery and an

upgraded I/M program were not

implemented in the area in the period

of attainment and therefore, did not

contribute to attainment of the ozone

NAAQS. Stage II vapor recovery and

basic I/M, however, are control

measures included as contingency

measures within the maintenance plan.

Thus, Stage II and basic I/M may be

implemented in the event a violation of

the ozone NAAQS occurs during the

maintenance period. The basic I/M

program included in the contingency

plan would upgrade and expand the

current I/M program being implemented

in the Detroit area. As the Detroit-Ann

Arbor area has demonstrated attainment

and maintenance of the ozone NAAQS

without implementation of Stage II and

an upgraded I/M program those

measures may be made part of the

contingency plan without

implementation until such time as a

violation of the ozone NAAQS warrants

their implementation. The State,

however, must continue to implement

all programs currently in place in the

Detroit-Ann Arbor area including the

existing I/M program.

Comment

Several commentors suggested that

meteorological conditions observed in

Michigan and Canada were not

conducive to ozone formation. These

meteorological conditions, coupled with

a general reduction of emissions in the

Detroit-Ann Arbor area resulting from

an economic downturn, resulted in the

attainment claimed by the Detroit-Ann

Arbor area. The commentors believe

that the attainment claimed by Michigan

is not based on real reductions of ozone

precursor gases (NOX and VOC).

USEPA Response

Section 107(d)(3)(E)(iii) requires that,

for the USEPA to approve a

redesignation, it must determine that

the improvement in air quality is due to

permanent and enforceable reductions

in emissions. The September Calcagni

memorandum, at page 4, clarifies this

requirement by stating that

‘‘[a]ttainment resulting from temporary

reductions in emission rates (e.g.,

reduced production or shutdown due to

temporary adverse economic

conditions) or unusually favorable

meteorology would not qualify as an air

quality improvement due to permanent

and enforceable emission reductions.’’

As discussed in the July 21, 1994

Federal Register notice, the State of

Michigan has demonstrated that

permanent and enforceable emission

reductions are responsible for the recent

improvement in air quality. This

demonstration was accomplished

through an estimate of the reductions

(from the year that was used to

determine the design value for

designation and classification) of VOC

and NOX achieved through Federal

measures such as the Federal Motor

Vehicle Control Program (FMVCP) and

fuel volatility rules implemented from

1988–1993, as suggested by the

September Calcagni memorandum. The

total reductions achieved from 1988 to

1993 were 226 tons of VOC and 45 tons

of NOX per day. These emission

reductions were primarily the result of

the FMVCP and RVP reductions from

11.0 pounds per square inch (psi) in

1988, to 9.5 in 1990 and finally, to 9.0

in 1993. The State only claimed credit

for emission reductions achieved as a

result of implementation of these

federally enforceable control measures.

These emission reductions claimed by

Michigan are conservative since they do

not account for emission reductions

resulting from other control measures

and programs implemented during this

time period such as the current I/M

program and VOC RACT. The State,

therefore, adequately demonstrated that

the improvement in air quality is due to

permanent and enforceable emission

reductions of 226 tons VOC and 45 tons

of NOX per day as a result of

implementing the federally enforceable

FMVCP and RVP reductions.

With respect to the issue of unusually

favorable meteorology, the commentors

have not supplied and the USEPA is not

aware of data demonstrating that the

meteorological conditions in the DetroitAnn Arbor area in 1990 and subsequent

years were unusually favorable with

respect to the impact on ozone

formation. The USEPA examined the

average meteorological parameters of

maximum monthly temperatures,

monthly precipitation, and days with

temperatures greater than 90 degrees

Fahrenheit for the periods of April

through September, 1991 through 1993,

with the 9-year (1982–1990) averages for

these parameters. The 1991–1993

averages for these parameters agreed

with those for the 9-year averages with

only minor differences. Based on

averaged parameters, it can be

concluded that the 1991–1993 period

was typically conducive to ozone

formation. Further, the USEPA notes

that the Detroit-Ann Arbor area has been

in attainment for three consecutive

three-year periods (1990–1992, 1991–
12470 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

1993, and 1992–1994), and that this,

along with the fact that real emission

reductions have occurred, indicates that

attainment is not due to unusually

favorable, temporary meteorological

conditions.

Comment

A few commentors noted that ‘‘Ozone

Action!’’ days were declared on selected

bad meteorology days, with extensive

media publicity asking the public to

reduce activities having the potential to

emit ozone precursors. It is entirely

possible that the voluntary reduction

program had an effect in the summer of

1994 to reduce potential ozone

excursions. The existence of the

voluntary program should be considered

in evaluating the summer 1994 data. In

addition, one commentor stated that this

is an attempt to deny industry’s

responsibility to reduce emissions by

shifting the burden onto private

households though these ‘‘Ozone

Action!’’ days.

USEPA Response

Attainment has been demonstrated for

1990–1992, and 1991–1993, and an

attainment level of emissions identified

at which time no such voluntary

program was being implemented in the

Detroit-Ann Arbor area. Michigan has

also demonstrated through emission

projections that the precursor emissions

will remain below the attainment year

levels thorough the year 2005 without

accounting for any emission reductions

that may have resulted from

implementation of a voluntary program.

With respect to any possible impact of

a voluntary emission reduction program

on 1994 emissions, the USEPA notes

that the commentor has not provided

and the USEPA has no basis for

attempting to assess the impact of such

program on emission and monitored air

quality levels. Thus, the USEPA has no

basis for any determination regarding

the impact of the program, and does not

believe that speculation regarding such

impacts provides a basis for

disapproving the redesignation.

Comment

One commentor states that emission

control programs mandated by the Act

cannot be converted to contingency

measures, that the Act does not

authorize conversion of required

emission reduction programs to

contingency measures and that section

175A(d) imposes a mandatory duty on

an area that is redesignated to continue

the emission control programs the area

adopted prior to redesignation. The

commentor further elaborates by stating

that ‘‘the SIP implementation

requirement is included in the section

discussing contingency provisions

because contingency provisions

automatically become effective if an

area fails to implement the applicable

SIP requirements. Inclusion of the

provision in section 175A(d) does not

by any stretch of statutory interpretation

authorize converting a control measure

that must be complied with now to a

contingency measure that only need be

complied with at some later date, if

ever.’’ The commentor also contended

that allowing the conversion of

mandatory control programs to

contingency measures is bad policy

since the public will suffer harmful

exposure during the time necessary to

implement the program after the event

triggering the contingency measures

occurs. According to the commentor,

the delay would be exacerbated due to

the USEPA’s failure to require adopted

regulations for the programs.

USEPA Response

The Act contains many requirements

that States adopt certain measures

specifically for nonattainment areas.

Those requirements do not by their own

terms continue to apply to an area after

it has been redesignated to attainment.

Moreover, nothing in section 175A itself

suggests that these requirements must

continue to be met in redesignated

areas. Section 175A(d) is specifically

and clearly applicable to contingency

provisions and their inclusion in a

section 175A maintenance plan. Section

175A(d) establishes that SIP revisions

submitted under 175A must contain

contingency provisions, as may be

necessary, to assure that the State will

promptly correct any violation of the

ozone NAAQS that occurs after

redesignation to attainment. It further

requires that these contingency

provisions include a requirement for the

State to implement all measures with

respect to the control of ozone that were

in the nonattainment SIP before the area

was redesignated. This provision clearly

demonstrates that section 175A(d)

contemplates that there may be fully

adopted but unimplemented control

measures in the SIP prior to

redesignation that will be shifted into

the maintenance plan as contingency

measures. Nothing in section 175A

suggests that the measures that may be

shifted into the contingency plan do not

include programs mandated by the Act

when the area was designated

nonattainment. As section 175A(a)

requires adoption and implementation

of measures to ensure maintenance, it

indicates that measures may not be

converted to contingency provisions

unless the State demonstrates that the

standard will be maintained in the

absence of the implementation of such

measures.

The USEPA disagrees with the

commentor’s assertion that its policy

regarding the conversion of emission

control programs mandated by the Act

to contingency measures is bad policy

due to delays that could occur.

Programs required to be adopted and

submitted to the USEPA prior to the

submission of a redesignation request

will already have been adopted and may

be implemented with minimal delay in

the event contingency measures are

triggered. Such measures satisfy the

requirement of section 175A(d) that the

contingency provisions ‘‘promptly

correct any violation of the standard

which occurs after redesignation.’’

With respect to the commentor’s

specific assertions that the USEPA

should require upgrades to basic I/M

and NSR programs to be fully adopted

by the State and approved by the

USEPA prior to redesignation, the

USEPA notes first that it does not

interpret the Act to require Michigan to

adopt the I/M upgrades fully now if it

otherwise qualifies for redesignation to

attainment. Rather, as evidenced in the

USEPA’s final I/M rule revisions,

described above and in the proposal,

Michigan is required only to adopt the

upgrades as a contingency measure in

order to meet the requirements for basic

I/M in section 182(a)(2)(B)(i) and (b)(4).

Michigan has done that. Under its

submittal, Michigan must implement

basic I/M 18 months from the date the

Governor decides to implement the

program as a contingency measure and

Michigan’s contingency plan contains

other control measures which would

result in near term emission reductions

that will be more effective towards

correcting a violation of the NAAQS

than a NSR program, such as Stage I or

Stage II vapor recovery.

The commentor also suggests that

since the current ozone NAAQS is not

sufficiently protective of public health

the USEPA should not be concerned

with over control. In response, as

previously discussed, the USEPA is

currently reviewing the ozone NAAQS.

Unless and until the NAAQS is revised,

the USEPA is to make judgements on

the basis of the current NAAQS, e.g.,

determine whether a maintenance plan

assures maintenance of the current

ozone NAAQS.

Comment

One commentor noted that Stage II

vapor recovery was expected to account

for at least 22.5 tons per day (TPD) or

17 percent of the 15 percent ROP plan,

that mobile sources account for 50
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12471

12Lower RVP to 7.8 psi may only be implemented

as a contingency measure if the State submits and

the USEPA finds, under section 211(c)(4)(C) of the

Act, that the lower RVP requirement is necessary

for the area to achieve the ozone NAAQS.

13 Intensified RACT for degreasing operations

would entail requiring more stringent controls than

are currently specified in Michigan Rules 611, 612,

613, and 614.

percent of air toxic emissions, and that

refueling automobiles is the most

significant source of benzene exposure

for the average person. As proposed, the

redesignation would finally eliminate

Stage II vapor recovery from the SIP. An

improved I/M program was expected to

account for reductions of 61.6 TPD or

nearly half of the 15 percent ROP. The

commentor adds that these 15 percent

ROP measures may be contingency

measures in the maintenance plan,

rather than immediately required at any

point in the future. Nevertheless, any

such transfer of a maintenance measure

in the SIP to a contingency measure, to

be required only if certain triggering

events occurred, must be accompanied

by a demonstration that the SIP

measures are no longer necessary for

maintenance. Any proposed transfer

and demonstration of justification of the

transfer must be subject to public notice

and comment, as required by the Act.

USEPA Response

Air toxic emissions or benzene

exposure are not relevant to this

rulemaking since it pertains to an ozone

redesignation. Moreover, this

redesignation in no way exempts the

area from the air toxics requirements of

section 112 or other provisions of the

Act.

Since the area was able to

demonstrate maintenance through an

emissions projection analysis showing

that future VOC and NOX emissions will

remain below the attainment year level

of emissions (the level of emissions

sufficient to attain the NAAQS), the

USEPA concludes that currently

required and future mandated control

programs (e.g., FMVCP) are sufficient to

provide for attainment and maintenance

of the NAAQS. However, contingency

measures in the maintenance plan are

required in accordance with section

175A(d). The maintenance plan for the

Detroit-Ann Arbor area contains

contingency measures which would be

implemented when triggered by a

violation of the ozone NAAQS. USEPA

guidance allows the transfer of SIP

measures which came due prior to

submittal of a complete redesignation

request to the maintenance plan as

contingency measures if the area

demonstrates attainment without

implementation of these measures and

therefore, are unnecessary for

attainment. The State has adequately

demonstrated that maintenance will

occur in the absence of the

implementation of the measures cited

by the commentor. Finally, the

demonstration for the transfer was

subject to public notice and comment

during Michigan’s public comment

period and hearing, as well as the

USEPA’s comment period, as required

by the Act.

Comment

One commentor notes that to be

effective at restoring air quality when a

post-redesignation violation occurs,

contingency measures must include

measures in the 15 percent ROP plan. In

elaborating, the commentor notes that a

contingency plan which lacks a program

for enhanced I/M, Stage II and

conformity is an empty box with no

benefits. The precedent of

‘‘grandparenting’’ in moderate areas by

allowing redesignation without

requiring inclusion of the attainment

plan’s 15 percent plan as a contingency

measure in the maintenance plan is a

dangerous precedent for Region 5 to set.

It has the potential to result in the

gutting of the Act nationwide by a

seemingly innocuous rulemaking at the

Regional level.

It is unclear that the verification and

tracking measures described at 59 FR

37199 (July 21, 1994) will ever actually

trigger the requirement to implement

the contingency plan.

USEPA Response

The contingency plan contains, as

contingency measures, all of the

unimplemented SIP control measures

that were required prior to submittal of

the complete redesignation request,

including basic I/M, Stage II, Stage I

expansion, and NOX RACT. As noted in

the proposal, Stage II is no longer a

required measure due to the USEPA’s

promulgation of on-board vapor

recovery requirements. In addition, the

State has also included 7.8 RVP 12 and

intensified degreasing for degreasing

operations 13 as contingency measures.

The USEPA does not believe that this

contingency plan is an ‘‘empty box with

no benefits’’ instead that the

contingency measures in the plan would

provide very real benefits in terms of

potential emission reductions that the

USEPA believes are adequate to deal

with potential future violations. The

area is not required to include all

measures from its 15 percent plan in its

contingency plan since the 15 percent

plan was not an applicable requirement

at the time the State submitted a

complete redesignation request.

In addition, Region 5 is not setting a

precedent of ‘‘grandparenting’’ of the 15

percent ROP requirement as

contingency measures in the

maintenance plan. This is consistent

with national policy that has already

been established and has been discussed

above. See September Calcagni and

September Shapiro memorandums.

Regarding transportation conformity,

once redesignated, the Detroit-Ann

Arbor area will be a maintenance area

and, therefore, required to conduct

emission analyses to determine whether

the VOC and NOX emissions remain

below the motor vehicle emission

budget established in the maintenance

plan. The July 21, 1994 proposal (59 FR

37190) does address conformity with

respect to the redesignation on p. 37196.

The proposal further discusses that,

although conformity is applicable in

these areas, since the deadline for

submittal had not come due for these

rules, the approval of the redesignation

is not contingent on these submittals to

comply with section 107(d)(3)(E)(v).

However, transportation and general

conformity apply to maintenance areas

and therefore, the Detroit-Ann Arbor

area must comply with these rules once

redesignated to attainment. The June 17,

1994 Conformity General Preamble (59

FR 31238) to the conformity regulations

further clarifies this issue. According to

the 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.

The July 21, 1994 notice does describe

a tracking plan for updating the

emission inventory. As discussed, the

redesignation request commits Michigan

to conduct periodic inventories every 3

years, provides a schedule for these

submittals, and lists the types of factors

used in projecting the emission

inventories. The State notes that if the

factors change substantially, the State

would reproject emissions for the

maintenance period to determine

whether apparent increases in emissions

are due to changes in calculation

techniques or actual emissions.

Although these periodic emission

inventories are not a mechanism to

trigger implementation of contingency

measures, if the periodic inventories

exceed the attainment level of emissions

in the maintenance plan, the USEPA

may issue a SIP call to the area under

section 110(k)(5) on the basis that the

State made inadequate assumptions in

projecting the inventory used to

demonstrate maintenance. In this event,

the USEPA may require the State to

correct the projection inventory and, if

increases are projected, propose and
12472 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

14 VMT is the number of miles traveled by

vehicles of various types, preferably for each link

of the highway system.

ultimately implement maintenance

measure(s) to lower the emissions to a

level at or below the attainment year

level. Since USEPA policy only suggests

that level of emissions be included as a

triggering mechanism or method of

monitoring the area emissions, States

are provided the flexibility not to

include such a triggering mechanism.

The Detroit-Ann Arbor area’s

contingency plan contains one trigger, a

monitored air quality violation of the

ozone NAAQS, as defined in 40 CFR

section 50.9. The trigger date will be the

date that the State certifies to the

USEPA that the air quality data are

quality-assured, and no later than 30

days after an ambient air quality

violation is monitored. Once the trigger

is confirmed, the State will implement

one or more appropriate contingency

measures based on a technical analysis

using a UAM analysis. The Governor

will select the contingency measures

within 6 months of the trigger. The

control measures which may be used as

contingency measures within the

maintenance plan are I/M upgrades,

NOX RACT, Stage I expansion, Stage II,

RVP reduction to 7.8 psi and intensified

RACT for degreasing operations. As

explained in the proposal, the USEPA

believes that these measures are

adequate to restore air quality in the

event of a post-redesignation violation.

Comment

The commentor notes that the DetroitAnn Arbor area is the fastest growing

business area in Michigan, and that ‘‘if

regulations are not implemented now, it

will take years for companies to comply

with new regulations added later.’’ [sic]

Local industry should have to

implement common-sense, costeffective, pollution-control measures to

protect the people in the area.

USEPA Response

The area is currently implementing

numerous emission control measures

and will continue to do so even after

redesignation to attainment for ozone.

While the area may be growing, the

State has considered the impacts of

growth not just in mobile sources, but

also industrial sources of ozone

precursors in its maintenance plan. The

State has adequately shown that

permanent and enforceable controls will

continue to more than offset the impact

of any such growth through the

maintenance period as its projections

indicate that emissions will decrease

during the maintenance period. In the

event, the area is redesignated and

happens to record a violation of the

ozone NAAQS, however, the section

175A maintenance plan specifies

control measures which would be

implemented as contingency measures

in accordance with the schedules

specified in the July 21, 1994 and this

final rule.

Comment

One commentor notes that the

maintenance plan and contingency

measures are not likely to protect

maintenance of the NAAQS for ozone,

because the timeline for implementing

corrective measures is too protracted,

providing too little protection, too late.

USEPA Response

For clarification, the contingency

measures are intended to provide for

maintenance by addressing a violation

of the ozone NAAQS; maintenance

measures serve to provide for

maintenance of the NAAQS. The

contingency measure implementation

schedules were derived from the Act

and applicable State and Federal

regulations. As explained in the

proposal and this final action, the

schedule established for the

implementation of contingency

measures provides for the

implementation of such measures as

soon as within one year of a violation.

Also, as explained in the proposal, the

USEPA believes that this schedule

satisfies the criterion of section 175A

regarding the need for contingency

measures to promptly correct violations

of the standard occurring during the

maintenance period.

Comment

One commentor alleges that the

maintenance demonstration relies on

fleet turnover with new cars required to

have on-board canisters and perhaps

enhanced fuel efficiency to create

reductions of VOC emissions sufficient

to compensate for the steady growth of

VMT14 and keep Southeast Michigan in

attainment. With an average time for

fleet turnover of 10 to 15 years, those

measures will have little effect on

maintenance of attainment in the near

term.

USEPA Response

The State is not relying on on-board

canisters in its emission projections

through the maintenance period. The

maintenance demonstration through

emission projections must demonstrate

that the emissions will not exceed the

attainment year inventory. See General

Preamble (April 16, 1992, 57 FR 13498)

and September Calcagni memorandum.

Michigan has demonstrated that, by

considering the effects of permanent

and enforceable control programs (not

including the on-board vapor recovery

rule), as well as, growth in the area

(including VMT growth), through the

year 2005 emissions will remain below

the attainment year inventory. See 59

FR 37190, tables on p. 37198. Neither

the Act nor USEPA guidance specifies

or suggests that the State achieve other

emission reductions during the

maintenance period. The USEPA

reviewed the projection inventory

methodologies and found them to be

appropriate. Furthermore,

transportation conformity provides

another emission management

mechanism. The transportation

conformity rules (November 24, 1993,

58 FR 62188) and General Preamble

(June 17, 1994, 59 FR 31238) apply to

nonattainment and maintenance areas.

The General preamble clarifies that

conformity analyses must demonstrate

that VOC and NOX emissions will

remain within the motor vehicle

emission budget as approved in a

section 175A maintenance plan.

Comment

One commentor states that an ozone

precursor, NOX, can scavenge ozone.

For this reason, NOX controls can

actually increase ozone levels in

metropolitan areas while beneficially

affecting downwind areas. The lack of

NOX controls in the Metropolitan

Detroit area would help in attaining the

120 ppb ozone standard but this

approach would have no net benefit

downwind (southwestern Ontario). The

commentor concludes that both NOX

and VOC must be controlled. Another

commentor notes that there is too little

information about the interaction

between VOC and NOX to justify

granting an exemption from NOX

controls.

USEPA Response

Section 182(f)(1)(A) of the Act allows

the Administrator to exempt an area

outside an ozone transport region from

the section 182(f) NOX requirements, if

the USEPA determines that ‘‘additional

reductions of [NOX] would not

contribute to attainment’’ of the ozone

NAAQS in the relevant area. It is clear

that if an area has demonstrated

attainment of the ozone NAAQS with 3

consecutive complete years of air

quality monitoring data, additional NOX

reductions would not contribute to

attainment, since the area has already

attained. Therefore, a State may submit

a petition for a section 182(f) exemption

based on air quality monitoring data

showing attainment of the ozone

NAAQS. The USEPA’s approval of such
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12473

an exemption is granted on a contingent

basis, i.e., the exemption would only be

valid as long as attainment of the ozone

NAAQS continues. If prior to final

action to redesignate the area to

attainment the USEPA determines that a

violation of the NAAQS occurred, the

section 182(f) exemption would no

longer apply, as of the date of such a

determination. See December 1993

guidance document Guideline for

Determining the Applicability of NOX

Requirements under Section 182(f), and

the May 27, 1994 memorandum from

John Seitz, Section 182(f) NOX

Exemptions—Revised Process and

Criteria. In addition, the May 27, 1994

Seitz memorandum, page 3, n. 7, states

that while NOX reductions in areas that

request and are granted a section 182(f)

exemption may not contribute to

attainment, they may contribute to

maintenance and must be addressed in

the maintenance plan required for

redesignation. The Detroit-Ann Arbor

area submitted a section 182(f) NOX

exemption on November 12, 1994 based

on 3 consecutive years of monitoring

data demonstrating attainment of the

ozone NAAQS. The Detroit-Ann Arbor

area submitted the appropriate NOX

documentation in their redesignation

maintenance plan. By doing so, the

State has demonstrated a commitment

to control NOX if it is deemed necessary

to maintain the ozone standard. The

USEPA approved the section 182(f) NOX

exemption petition for the Detroit-Ann

Arbor area in a final USEPA action

published elsewhere in this Federal

Register.

With respect to the aspects of the

comments relating to the effects of NOX

controls or the lack of NOX controls on

ambient air in Canada, the USEPA refers

the reader to the responses to the

comments set forth below.

In addition, the redesignation request

establishes VOC and NOX emission

budgets, establishing emission levels

adequate to attain the ozone NAAQS.

The State has also demonstrated

through emission projections that the

area’s emissions will remain below the

attainment year inventory through the

year 2005. Consequently, the State has

demonstrated that NOX levels will not

exceed current levels through the

maintenance period.

In response to the commentors note

that there is too little information about

the interaction between VOC and NOX

to justify granting an exemption from

NOX controls, the USEPA refers the

commentor to the NOX/VOC Study

released by the USEPA on July 31, 1993.

Congress provided that USEPA

decisions on personal petitions for NOX

exemptions under section 182(f)(3) be

triggered by publication of this 185B

report. Consequently, the USEPA

believes that this provides evidence that

Congress appears to have believed the

results of the 185B study would supply

sufficient information for the Agency to

grant section 182(f) exemptions. The

USEPA refers the commentor to the

final rulemaking approving the section

182(f) NOX exemption petition for the

Detroit-Ann Arbor area published

elsewhere in this Federal Register.

Nonetheless, as demonstrated by the

emission projections for the 10-year

maintenance plan submitted by

Michigan, continuing reductions in NOX

emissions are expected (primarily from

mobile sources as a result of FMVCP).

Also, additional NOX emission

reductions are expected from

implementation of the NOX controls

required by title IV of the Act.

Designation status of an area is

irrelevant in the applicability of title IV

requirements; consequently, subject

sources in the Detroit-Ann Arbor area

will be required to comply with these

requirements.

Comment

One commentor notes that the action

of proposed redesignation is a product

of undue haste and that the final

decision on redesignation should await

data from Canada’s study of ozone

levels at its receptors which are downwind of Southeast Michigan. A number

of other commentors suggested that the

USEPA respond to concerns expressed

by Ontario and Canada prior to making

any decision. Another commentor

suggests that the USEPA obtain and

assess ambient ozone levels prior to

proceeding with the redesignation.

USEPA Response

The USEPA has received comments

and information from a number of

Canadian interests. All comments from

commentors in Canada have been

considered as the USEPA made a final

decision on this action, and are

addressed within this final rulemaking.

As explained below, the USEPA does

not believe that these comments warrant

a deferral of final action on this

redesignation.

Comment

One commentor states that between

60 percent-80 percent of toxic air

pollutants in Windsor’s ambient air are

transported from the City of Detroit and

other U.S. areas northwest of Windsor.

Another commentor suggests that the

technology needed to reduce ozone

closely parallels the technology needed

to abate toxic air pollutants in the

region. By designating the area as

attainment, the region will no longer be

required to include ozone reduction

technology in the State of Michigan’s

SIP under the Act. This could eliminate

further technological improvements that

would not only reduce ozone levels but

also contribute to the abatement of toxic

air pollution. Since the Governments of

the United States and Canada, in their

Reference to the International Joint

Commission (IJC), have emphasized that

the IJC address the impacts of toxic air

pollution problems in the region, the IJC

cannot support any move that would

result in less stringent controls which

have direct impact on minimization of

ozone levels and reduction of toxic

chemical emissions. Consequently, the

commentor strongly disagrees with the

proposed USEPA redesignation and

recommends against it. The commentor

believes that the control requirements of

the Act for this area should be

implemented.

USEPA Response

This redesignation is for ozone. Toxic

air pollutants are not relevant to the

issue of whether an area should be

redesignated due to its attainment of the

ozone NAAQS. Separate from this

redesignation, the State is required to

meet other requirements of the Act

specifically to control air toxics

emissions. The ozone redesignation

would not exempt the area from

implementing section 112 of the Act,

which is intended to address the control

of hazardous air pollutants. Rules

promulgated pursuant to section 112 are

applicable to sources regardless of an

area’s attainment status.

In addition, sources of ozone

precursors in the Detroit-Ann Arbor area

must continue to implement all control

equipment and/or measures in

accordance with applicable rules,

regulations and permits. Consequently,

the redesignation would not result in

less stringent controls than are currently

being implemented in the Detroit-Ann

Arbor area.

Comment

One commentor notes that Canada

and Ontario are assembling data from

Canadian monitoring stations which are

directly relevant to the decision as to

whether the Detroit-Ann Arbor area is

currently meeting the prescribed Act

requirements with respect to ozone. The

commentor states that this information

and other points will be provided to the

Department of State on October 17,

1994. (On October 17, 1994 a document

entitled Canada/Ontario Technical

Component of the Canadian Comment

on the Michigan/Ann Arbor Ozone

Redesignation Request was submitted.
12474 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

15The October 17, 1994 submittal and subsequent

clarifying information revealed that the Tiverton

monitor recorded one exceedance in 1994. The

exceedance, a value of 136 ppb, was recorded on

April 24, 1994 at 7:00 PM. However, based on

clarifying information provided by the Ontario

Ministry of the Environment and Energy, this ozone

value was invalidated. The strip chart recorder

registered interference (electrical or otherwise) on

April 24, 1994 between the hours of 5:00 PM

through 8:00 PM and for 10:00 PM. Consequently,

the data for these hours was invalidated by the

Ontario Ministry of the Environment and Energy.

16Among the inadequacies were that the

submittal had limited documentation on the model

input parameters. The ADOM-GESIMA model is not

a USEPA guideline model as listed in the Guideline

on Air Quality Models, (revised in February 1993).

Further model documentation is necessary for a

comparative evaluation against USEPA guideline

models.

17Such a demonstration must show that removal

of a control program will not interfere with

This document was prepared by

Environment Canada and the Ontario

Ministry of the Environment and

Energy). The commentor expects that

this information would be considered in

any final decision. A copy of the

September 23, 1994 letter from the IJC

to Warren Christopher, Secretary of

State, was attached. Another commentor

claims that the Canadians in Southern

Ontario are affected by some of the

worst smog episodes in Canada. Many

commentors state that much, if not all,

of the ground level ozone in Southern

and Southeastern Ontario is a result of

transboundary movement of ozone and

NOX from the U.S. to Canada. Michigan

is a significant source of the ozone and

NOX coming from the U.S. A number of

commentors provided monitoring data

from monitors located in Southwestern

Ontario and the Detroit-Ann Arbor area

and assert that high ozone levels

recorded in the Detroit-Ann Arbor area

correspond directly with high ozone

levels which exceed Ontario’s ozone

standard. Some commentors noted that

high levels of ozone in Ontario may be

the cause of increased respiratory

problems. Another commentor noted

that a recent study in southern Ontario

indicates that hospital admissions for

respiratory problems has increased due

to ozone and acidic air pollution. This

situation is occurring at ozone levels

well below the 125 ppb averaged over

one hour. Another commentor suggests

that being another sovereign nation and

not a neighboring State, Canada is

denied protection available to

downwind States adversely affected by

emissions from upwind neighbors

within the U.S. Another commentor

notes the damaging effect of ozone on

agricultural crops.

USEPA Response

The USEPA has considered the

October 17, 1994 submittal referred to

and all other information provided by

the Canadian Government and other

commentors on these issues.

The following provides a synopsis of

the USEPA’s review of the October 17,

1994 document submitted by

Environment Canada and the Ontario

Ministry of the Environment and

Energy. The document contains, among

other elements, some ozone monitoring

data. However, the ozone monitoring

data was inadequate for the USEPA to

assess whether a violation of the U.S.

ozone NAAQS occurred in Canada.

Consequently, on November 1, 3 and 24,

and December 14 and 19, 1994 the

USEPA obtained clarifying information

from the Ontario Ministry of the

Environment and Energy on the ozone

monitoring data submitted.

In reviewing the Canadian ozone

monitoring data, the USEPA examined

each 3-year interval from 1990 through

1994 as well as associated wind

patterns. Based on a review of the

Canadian report and the clarifying

information, the monitoring data

demonstrates that there has not been a

violation of the U.S. ozone NAAQS at

the Windsor (University or South),

Sarnia, Merlin, Mandaumin, London,

Longwoods, or Parkhill monitors for the

timeframe 1990–1992, 1991–1993, or

1992–1994. In fact, the only monitors

that have recorded violations of the U.S.

ozone NAAQS are the Grand Bend

monitor and Tiverton monitor, which

are located more than 90 miles and 140

miles away from the Detroit-Ann Arbor

area, respectively. The Grand Bend

monitor recorded violations of the U.S.

ozone NAAQS during the timeframe

1990–1992 with a number of expected

exceedances of 1.67 and during 1991–

1993 of 2.0. However, for the 1992–1994

period, there was no violation of the

U.S. ozone NAAQS with a number of

expected exceedances at 0.33. The

Tiverton monitor recorded violations of

the U.S. ozone NAAQS during the

timeframes 1990–1992 and 1991–1993

with a number of expected exceedance

of 2.0. However, during the 1992–1994

period, there was no violation of the

U.S. ozone NAAQS.15

In addition, the modeling submitted

on October 17, 1994 is limited and

insufficient for purposes of implicating

the Detroit-Ann Arbor area as the cause

of elevated ozone levels in Ontario 16.

The ground level wind trajectories

presented in the October 17, 1994

submittal, indicate that winds into

Tiverton and the Windsor area pass

through a number of urbanized areas in

both the U.S. and Canada (the Windsor

urbanized area). The USEPA also notes

that such concentration may be

attributable to or fostered by ozone

precursor emissions generated within

Canadian borders, since Windsor itself

is an urban area with an estimated

metropolitan population greater than

225,000. Thus, the extent of any

contribution from the Detroit-Ann Arbor

area to monitored ozone levels in

Ontario cannot be determined with any

degree of certainty on the basis of the

information presently available to the

USEPA. The data provided in the

October 17, 1994 submittal are

inadequate to provide a basis for

determining the extent to which

emissions from Michigan, and more

specifically, the Detroit-Ann Arbor area,

are contributing to ambient ozone levels

in Ontario. As a consequence, the

USEPA does not believe that the

presently available information provides

any basis for affecting its decision

regarding the redesignation of the

Detroit-Ann Arbor area.

The USEPA would like to note that

the governments of the United States

and Canada are in the process of

developing a joint study of the

transboundary ozone phenomena under

the U.S.-Canada Air Quality Agreement.

It is envisioned that this regional ozone

study will provide the scientific

information necessary to understand

what contributes to ozone levels in the

region, as well as, what control

measures would contribute to

reductions in ozone levels. Should this

or other studies provide a sufficient

scientific basis for taking action in the

future, the USEPA will decide what is

an appropriate course of action. The

USEPA may take appropriate action

notwithstanding the redesignation of the

Detroit-Ann Arbor area. Therefore, the

USEPA does not believe that the

contentions regarding transboundary

impact currently provide a basis for

delaying action on this redesignation or

disapproving the redesignation. This is

particularly true since approval of the

redesignation is not expected to result

in an increase in ozone precursor

emissions and is not expected to

adversely affect air quality in Canada. In

fact, a decrease in both VOC and NOX

emissions from the Detroit-Ann Arbor

area is expected over the 10-year

maintenance period. See 59 FR 37190,

July 21, 1994. It should also be noted

that redesignation does not allow States

to automatically remove control

programs which have contributed to an

area’s attainment of a U.S. NAAQS for

any pollutant. As discussed previously,

the USEPA’s general policy is that a

State may not relax the adopted and

implemented SIP for an area upon the

area’s redesignation to attainment

unless an appropriate demonstration 17,
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12475

maintenance of the ozone NAAQS and would entail

submittal of an attainment modeling demonstration

with the USEPA’s current Guideline on Air Quality

Models. Also, see memorandum from Gerald A.

Emison, April 6, 1987, entitled Ozone

Redesignation Policy.

based on computer modeling, is

approved by the USEPA. In this case, no

previously implemented control

strategies are being relaxed as part of

this redesignation.

The health effects of acidic air

pollution are not relevant to this ozone

redesignation. However, the USEPA is

aware of the study referenced by the

commentor and is considering this

study in the process of reevaluating the

ozone NAAQS.

Further, apart from title I

requirements related to the cessation of

the Detroit-Ann Arbor area’s status as an

ozone nonattainment area, the area is

and will continue to be required to

satisfy all Act requirements. Other

control programs required by the Act

will be implemented in the area,

regardless of the ozone designation,

such as title IV NOX controls, section

112 toxic controls and on-board vapor

recovery requirements.

Comment

One commentor notes that recent

information indicates that significantly

high ozone readings have been recorded

in the Town of Kincardine this summer.

Kincardine is halfway up the eastern

shoreline of Lake Huron, and therefore,

the air quality in Kincardine is, for the

most part, a result of emissions from

Michigan. The commentor requests that

the USEPA reconsider the redesignation

of the area because it will have drastic

effects on the communities on the

eastern shore.

USEPA Response

Kincardine is more than 100 miles

northeast of the Detroit-Ann Arbor area,

the subject of the redesignation to

attainment for ozone. Consequently,

attributing elevated ozone levels in

Kincardine to the Detroit-Ann Arbor

area would be a complex task. It cannot

be conclusively stated that emissions

emanating from the Detroit-Ann Arbor

area are, ‘‘for the most part,’’ responsible

for elevated ozone concentrations

recorded at a monitor more than 100

miles away. As demonstrated by the

wind trajectories provided by Canada as

part of the October 17, 1994 submittal,

it can be seen that air parcels travel

through several U.S. and Canadian

urbanized areas. Again, it is noted that

the U.S. and Canada are cooperatively

developing a regional ozone study to

investigate the transboundary ozone

phenomena.

Comment

One commentor states that the

transboundary ozone issue points to the

need to manage air quality in a regional

context and notes that in their meeting

of July 25, 1994 in Washington, Carol

Browner, Administrator of the United

States Environmental Protection

Agency, and Sheila Copps, Deputy

Prime Minister, Minister of the

Environment, Canada, agreed to

cooperate in regional management of the

transboundary ozone problem. The

commentor suggests that the Great Lakes

region provides an ideal opportunity to

advance this concept.

USEPA Response

Subsequent to the Browner/Copps

meeting, the U.S. and Canadian

Governments have met to discuss and

develop a regional pilot program to

address any potential regional

transboundary ozone issue. This new

regional pilot effort is being developed

as a priority under the U.S.-Canada Air

Quality Agreement.

Comment

One commentor states that the

Southeast Michigan Council of

Governments has discussed the

redesignation at past meetings of the

Windsor Air Quality Committee, at

which local committee members

pointed out their concerns to no avail.

All information available suggests that

the request for redesignation is without

scientific merit at present, and is

premature at best.

USEPA Response

Ambient air monitoring data in the

Detroit-Ann Arbor area demonstrates

that the area is attaining the ozone

NAAQS. In addition, the State has met

all applicable requirements under

section 107 of the Act. As previously

discussed, the U.S. and Canada are

cooperatively developing a regional

ozone study to investigate the

transboundary ozone phenomena.

Comment

One commentor notes that the March

1991 formal agreement (the March 13,

1991 U.S.-Canada Air Quality

Agreement) between the U.S. and

Canada called for other parties to take

steps to avoid or mitigate the potential

risk posed by specific actions. On this

basis, it is requested that the USEPA

reconsider the consequences of

approving this request for southeast

Michigan. Another commentor refers to

the March 13, 1991 Air Quality

Agreement between Canada and the

U.S. with respect to the effort of the two

countries to address transboundary air

pollution through ‘‘cooperative and

coordinated action.’’ Alleging that

ground level ozone production in the

Detroit-Ann Arbor area by its movement

across the U.S.-Canada border has a

significant impact on ozone production

and general air quality in the Windsor

Southwestern Ontario region of Canada,

the commentor expresses concern that

the Department of State chose not to

provide the Canadian Government with

formal advance notice of the intention

of the USEPA to act on an issue which

would have a major impact on

transboundary air pollution.

USEPA Response

Paragraph 1 of Article V of the March

13, 1991 U.S.-Canada Air Quality

Agreement states that ‘‘Each Party shall,

as appropriate and as required by its

laws, regulations and policies, assess

those proposed actions, activities and

projects within the area under its

jurisdiction that, if carried out, would

be likely to cause significant

transboundary air pollution, including

consideration of appropriate mitigation

measures.’’ Paragraph 2, specifies that

parties shall notify each other of actions

under paragraph 1. Since the action to

redesignate the Detroit-Ann Arbor area

to attainment does not result in a

relaxation of existing control

requirements or an increase in ozone

precursor emissions, the USEPA does

not believe that formal notification was

necessary nor that this action poses a

potential risk. Canada is well aware of

this redesignation at this time. However,

in the future, the U.S. intends to notify

Canada of actions similar to this action

as early as possible regardless of

whether notification is required under

the U.S.-Canada Air Quality Agreement.

In addition, the U.S. will work with

Canada to address tropospheric ozone in

the context of the Air Quality

Agreement as previously discussed.

Comment

A number of commentors believe that

the air quality in the Detroit-Ann Arbor

area has not improved but deteriorated

in recent years. Recent developments

have been detrimental to air quality,

such as the operation of a trash

incinerator which emits foul smoke into

the air around the clock, particularly on

weekends when businesses are closed.

Instead of recycling, the City of Detroit

chooses to pollute southeast Michigan

and Ontario’s air. Multitudes of

industrial plants are located on the

Detroit River whose smokestacks cast

gray haze over everything, even on

sunny days. One commentor lists a

number of local facilities which it

claims causes visible emissions and
12476 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

offensive odors. Another commentor

states that Wayne county ranked #1 in

amount of hazardous chemicals released

through air emissions (as well as #1 in

‘‘suspected’’ carcinogens), and was

fearful for her health and future because

of current air quality. Another

commentor claimed breathing problems

caused by outdoor air. Wayne County

was accused of posing numerous

pulmonary health risks for residents.

Improvements in air quality are

necessary for the residents’ safety and

health.

USEPA Response

The July 21, 1994 Federal Register

notice proposes to redesignate the

Detroit-Ann Arbor area to attainment

solely for ozone. The Detroit-Ann Arbor

redesignation request satisfies the

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

Among these requirements is that the

area demonstrate attainment of the

ozone NAAQS. See section

107(d)(3)(E)(i). The Detroit-Ann Arbor

area has demonstrated through 3

consecutive years of complete air

quality data, that the area has attained

the ozone NAAQS. The area is and will

continue to be required to satisfy all Act

requirements pertaining to the emission

of hazardous air pollutants. Further,

existing facilities must continue to

operate existing air pollution control

equipment in accordance with

applicable rules, regulations and

permits, and sources that are

problematic in terms of posing a

nuisance to area residents may be

referred to the State and local

environmental enforcement staff for

investigation. Retaining the area’s

current nonattainment designation for

ozone would not affect visible emissions

and/or offensive odors from the existing

incinerator. In addition, certain new

rules and regulations will still apply to

area sources even if the area is

redesignated to attainment for ozone; for

example, Maximum Achievable Control

Technology and additional controls

under section 112 (air toxics) of the Act.

With respect to the commentor’s

contention that improvements in air

quality are necessary for residents’

safety and health, it should be

recognized that section 109 of the Act

requires that the NAAQS, which must

be based on established criteria and

allow an adequate margin of safety,

protect the public health. Unless and

until it is revised, the current ozone

NAAQS provides the pertinent standard

for protecting public health.

Comment

Many commentors believe that

designating the area to attainment

would exempt the area from stricter

clean air regulations. They believe that

the USEPA should require local

industry to implement common-sense,

cost-effective pollution control

measures, more stringent automobile

emission testing (current testing is not

effective), and service stations to install

anti-pollution devices on gasoline

pumps (Stage II). The USEPA should

encourage that measures be taken to

ensure that no pollution problems occur

in the future.

USEPA Response

Redesignating the area to attainment

for ozone does not exempt the State

from implementing measures necessary

for attainment. Further, additional

regulations such as a basic I/M program,

Stage II vapor recovery, or Stage I

expansion are incorporated into the

area’s maintenance plan as contingency

measures. The contingency measures

selected by the State will be

implemented if a violation is

experienced.

Comment

One commentor requests the USEPA

to require, and to make public, an

independent, third party, statistical

verification of air quality and related

environmental health data to support or

dispute claims made by local

businesses, a senator and a governor. If

monitoring in the southwest section of

Detroit is ongoing, then there would be

no question that tougher standards are

needed.

USEPA Response

The State has established air

monitoring networks, sampling and

analysis procedures as well as quality

assurance and control procedures that

satisfy USEPA guidelines. The State will

continue to operate its monitoring

network after redesignation. Third party

statistical verification of air quality data

is not required by the guidelines

applicable for the purposes of this

redesignation.

Comment

One commentor stated that the

USEPA should not redesignate the

Detroit-Ann Arbor area because it is

likely that the area will soon have to be

redesignated back to nonattainment.

The commentor also provided various

information related to increasing VOC

emissions and petroleum usage.

USEPA Response

The USEPA believes that Michigan

has shown that the Detroit-Ann Arbor

area has attained and can continue to

maintain the NAAQS for ozone. In the

event that a violation of the ozone

NAAQS does occur in the future,

however, the maintenance plan

provides for the implementation of the

State’s contingency measures under

section 175A to promptly correct any

violations of the NAAQS, as required by

the Act.

With regard to the commentor’s

contentions concerning VOC emissions

and petroleum usage, the USEPA notes

that in its showing of maintenance over

a 10-year period, the State has

technically assessed not only the

impacts of reductions due to control

programs, but also increases due to

growth in all potential sources of

emissions. These potential sources

include petroleum usage in the mobile

source and industrial source sectors.

The State has shown in these

assessments that reductions in

emissions over the maintenance period

will more than offset any increases in

emissions of VOC. The USEPA’s

decisions must be based solely on

whether Michigan’s submission

adequately addresses the statutory

requirements applicable to

redesignation. The USEPA has

determined that it does, and is thus

approving the redesignation request.

Again, in the event that violations of the

ozone NAAQS occur, Michigan must

promptly implement its contingency

measures such that the ozone NAAQS is

once again attained and maintained.

II. Final Rulemaking Action

The USEPA approves the

redesignation of the Detroit-Ann Arbor,

Michigan ozone area to attainment and

the section 175A maintenance plan as a

revision to the Michigan SIP. The State

of Michigan has satisfied all of the

necessary requirements of the Act. The

USEPA has also approved the section

182(f) NOX exemption for the DetroitAnn Arbor area in an action published

elsewhere in this Federal Register

which exempts the area from the section

182(f) NOX requirements. As a

consequence of this action, the USEPA

also stops the sanctions clocks that had

been started as a result of the findings

made on January 21, 1994, regarding the

incompleteness of the 15 percent ROP

plan and the section 172(c)(9)

contingency plan for the Detroit-Ann

Arbor area and on May 11, 1994,

regarding the basic I/M plan for the area.

This action has been classified as a

Table 2 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993,

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12477

and Radiation. The OMB has exempted

this regulatory action from Executive

Order 12866 review.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to any SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., USEPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, USEPA may

certify that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

government entities with jurisdiction

over populations of less than 50,000.

The SIP approvals under section 100

and subchapter I, part D, of the Act do

not create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP-approval does

not impose any new requirements, I

certify that it does not have a significant

impact on small entities affected.

Moreover, due to the nature of the

Federal-State relationship under the

Act, preparation of a regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of State action. The Act

forbids USEPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. USEPA, 427 U.S.

246, 256–66 (1976).

Under section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by May 8, 1995. Filing a petition

for reconsideration by the Administrator

of this final rule does not affect the

finality of this rule for the purposes of

judicial review nor does it extend the

time within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements. (See Section

307(b)(2)).

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental

relations, Motor vehicle pollution,

Nitrogen oxides, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Volatile organic

compounds.

40 CFR Part 81

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, National parks, Nitrogen

oxides, Ozone, Volatile organic

compounds, Wilderness areas.

Dated: February 8, 1995.

Norman R. Niedergang,

Acting Regional Administrator.

Chapter I, title 40 of the Code of

Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart X—Michigan

2. Section 52.1170 is amended by

adding paragraphs (c) (101) and (102) to

read as follows:

§ 52.1170 Identification of plan.

* * * * *

(c) * * *

(101) On November 15, 1993, the

State of Michigan submitted as a

revision to the Michigan State

Implementation Plan for ozone a State

Implementation Plan for a motor vehicle

inspection and maintenance program for

the Detroit-Ann Arbor area. Michigan

submitted House Bill No. 5016, signed

by Governor John Engler on November

13, 1993.

(i) Incorporation by reference.

(A) State of Michigan House Bill No.

5016 signed by the Governor and

effective on November 13, 1993.

(102) On November 12, 1993, the

State of Michigan submitted as a

revision to the Michigan State

Implementation Plan for ozone a State

Implementation Plan for a section 175A

maintenance plan for the Detroit-Ann

Arbor area as part of Michigan’s request

to redesignate the area from moderate

nonattainment to attainment for ozone.

Elements of the section 175A

maintenance plan include a base year

(1993 attainment year) emission

inventory for NOX and VOC, a

demonstration of maintenance of the

ozone NAAQS with projected emission

inventories (including interim years) to

the year 2005 for NOX and VOC, a plan

to verify continued attainment, a

contingency plan, and an obligation to

submit a subsequent maintenance plan

revision in 8 years as required by the

Clean Air Act. If the area records a

violation of the ozone NAAQS (which

must be confirmed by the State),

Michigan will implement one or more

appropriate contingency measure(s)

which are contained in the contingency

plan. Appropriateness of a contingency

measure will be determined by an urban

airshed modeling analysis. The

Governor or his designee will select the

contingency measure(s) to be

implemented based on the analysis and

the MDNR’s recommendation. The

menu of contingency measures includes

basic motor vehicle inspection and

maintenance program upgrades, Stage I

vapor recovery expansion, Stage II vapor

recovery, intensified RACT for

degreasing operations, NOX RACT, and

RVP reduction to 7.8 psi. Michigan

submitted legislation or rules for basic

I/M in House Bill No 5016, signed by

Governor John Engler on November 13,

1993; Stage I and Stage II in Senate Bill

726 signed by Governor John Engler on

November 13, 1993; and RVP reduction

to 7.8 psi in House Bill 4898 signed by

Governor John Engler on November 13,

1993.

(i) Incorporation by reference.

(A) State of Michigan House Bill No.

5016 signed by the Governor and

effective on November 13, 1993.

(B) State of Michigan Senate Bill 726

signed by the Governor and effective on

November 13, 1993.

(C) State of Michigan House Bill No.

4898 signed by the Governor and

effective on November 13, 1993.

2. Section 52.1174 is amended by

adding paragraphs (h) and (i) to read as

follows:

§ 52.1174 Control strategy: Ozone.

* * * * *

(h) Approval—On January 5, 1993, the

Michigan Department of Natural

Resources submitted a revision to the

ozone State Implementation Plan for the

1990 base year emission inventory. The

inventory was submitted by the State of

Michigan to satisfy Federal

requirements under section 182(a)(1) of

the Clean Air Act as amended in 1990,

as a revision to the ozone State

Implementation Plan for the DetroitAnn Arbor moderate ozone

nonattainment area. This area includes

Livingston, Macomb, Monroe, Oakland,

St. Clair, Washtenaw, and Wayne

counties.

(i) Approval—On November 12, 1993,

the Michigan Department of Natural

Resources submitted a request to

redesignate the Detroit-Ann Arbor

(consisting of Livingston, Macomb,

Monroe, Oakland, St. Clair, Washtenaw,

and Wayne counties) ozone

nonattainment area to attainment for

ozone. As part of the redesignation

request, the State submitted a
12478 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

maintenance plan as required by 175A

of the Clean Air Act, as amended in

1990. Elements of the section 175A

maintenance plan include a base year

(1993 attainment year) emission

inventory for NOX and VOC, a

demonstration of maintenance of the

ozone NAAQS with projected emission

inventories (including interim years) to

the year 2005 for NOX and VOC, a plan

to verify continued attainment, a

contingency plan, and an obligation to

submit a subsequent maintenance plan

revision in 8 years as required by the

Clean Air Act. If the area records a

violation of the ozone NAAQS (which

must be confirmed by the State),

Michigan will implement one or more

appropriate contingency measure(s)

which are contained in the contingency

plan. Appropriateness of a contingency

measure will be determined by an urban

airshed modeling analysis. The

Governor or his designee will select the

contingency measure(s) to be

implemented based on the analysis and

the MDNR’s recommendation. The

menu of contingency measures includes

basic motor vehicle inspection and

maintenance program upgrades, Stage I

vapor recovery expansion, Stage II vapor

recovery, intensified RACT for

degreasing operations, NOX RACT, and

RVP reduction to 7.8 psi. The

redesignation request and maintenance

plan meet the redesignation

requirements in sections 107(d)(3)(E)

and 175A of the Act as amended in

1990, respectively. The redesignation

meets the Federal requirements of

section 182(a)(1) of the Clean Air Act as

a revision to the Michigan Ozone State

Implementation Plan for the above

mentioned counties.

PART 81—[AMENDED]

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. In § 81.323 the ozone table is

amended by revising the entry for the

Detroit-Ann Arbor area for ozone to read

as follows:

§ 81.323 Michigan.

* * * * *

MICHIGAN—OZONE

Designated areas

Designation Classification

Date1 Type Date1 Type

* * * * * * *

Detroit-Ann Arbor Area:

Livingston County ............................................................................. April 6, 1995 .......... Attainment

Macomb County ............................................................................... April 6, 1995 .......... Attainment

Monroe County ................................................................................. April 6, 1995 .......... Attainment

Oakland County ................................................................................ April 6, 1995 .......... Attainmnet

St. Clair County ................................................................................ April 6, 1995 .......... Attainment

Washtenaw County .......................................................................... April 6, 1995 .......... Attainment

Wayne County .................................................................................. April 6, 1995 .......... Attainment

* * * * * * *

1This date is November 15, 1990, unless otherwise noted.

* * * * *

[FR Doc. 95–5445 Filed 3–6–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 70

[IL001; FRL–5164–6]

Clean Air Act Final Interim Approval of

Operating Permits Program; Illinois

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final interim approval.

SUMMARY: The EPA is promulgating

interim approval of the Operating

Permits Program submitted by Illinois

for the purpose of complying with

Federal requirements for an approvable

State program to issue operating permits

to all major stationary sources, and to

certain other sources.

EFFECTIVE DATE: March 7, 1995.

ADDRESSES: Copies of the State’s

submittal and other supporting

information used in developing the final

interim approval are available for

inspection during normal business

hours at the following location: United

States Environmental Protection

Agency, Region 5, 77 West Jackson

Boulevard, AR–18J, Chicago, Illinois

60604.

FOR FURTHER INFORMATION CONTACT:

Jennifer Buzecky, 77 West Jackson

Boulevard, Permits and Grants Section

AR–18J, Chicago, Illinois 60604, (312)

886–3194.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

Title V of the 1990 Clean Air Act

Amendments (sections 501–507 of the

Clean Air Act (‘‘the Act’’)), and

implementing regulations at 40 Code of

Federal Regulations (CFR) Part 70

require that States develop and submit

operating permits programs to EPA by

November 15, 1993, and that EPA act to

approve or disapprove each program

within 1 year after receiving the

submittal. The EPA’s program review

occurs pursuant to section 502 of the

Act and the part 70 regulations, which

together outline criteria for approval or

disapproval. Where a program

substantially, but not fully, meets the

requirements of part 70, EPA may grant

the program interim approval for a

period of up to 2 years. If EPA has not

fully approved a program by 2 years

after the November 15, 1993 date, or by

the end of an interim program, it must

establish and implement a Federal

program.

On September 30, 1994, EPA

proposed interim approval of the

operating permits program for Illinois.

See 59 FR 49882. The EPA received

public comment on the proposal, and

compiled a Technical Support

Document (TSD) which describes the

operating permits program in greater

detail. In this notice EPA is taking final

action to promulgate interim approval of

the operating permits program for

Illinois.

II. Final Action and Implications

A. Analysis of State Submission

The EPA received comments from a

total of four organizations. The EPA’s

response to these comments is

summarized in this section. Comments