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Citation: 61 Fed. Reg. 20469 1996 

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Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

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

that the 15%, attainment demonstration,

and contingency plan requirements are

not applicable to CAL, and has found

the SIP to be fully approvable without

them, the CAL area has fairly met the

criteria of section 107(d)(3). Certainly

USEPA, after determining that these

requirements are inapplicable, could not

in good faith conclude that the

redesignation request is defective

because it fails to meet them.

Thus USEPA concludes that, where it

has made a determination of attainment

that results in the suspension of

requirements, it may rely on that

determination and its consequences in

considering the approvability of a

redesignation request.

For the reasons stated above and

elsewhere in this Notice, in the June 29,

1995 Federal Register notices (60 FR

3372, 33781), in the May 10, 1995

memorandum, and in the 60 FR 36,723

(July 18, 1995) Utah notice, USEPA does

not believe that the rulemaking violates

any section of the CAA, nor does it

circumvent the redesignation

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

(20) Comment: Citizens Commissions

for Clean Air in the Lake Michigan Area

stated that USEPA's action is not a

reasonable interpretation of USEPA's

nondiscretionary mandate "to protect

and enhance the quality of the Nation's

air resources so as to promote the public

health and welfare and the productive

capacity of its population[.]}. section

101 (b)(1).

(20) Response: The USEPA disagrees

with the commentor's statement that its

action violates section 101(b)(1). Section

101(b)(1) does not establish a

nondiscretionary duty; it is a statement

of purpose-a purpose that USEPA is

not disregarding in this action. the area

has attained the primary ozone

standard, a standard designed to protect

public health with an adequate margin

of safety. (see section 109(b)(1)).

USEPA's action does not relax any of

the requirements that have led to the

attainment of the standard. Rather, its

action has the effect of suspending

requirements, for additional pollution

reductions, above and beyond those that

have resulted in the attainment of the

health-based standard.

(21) Comm ent: A commentor asserts

that USEPA's action violates the

Administrative Procedure Act and the

CAA through its reliance on

unpublished memoranda of John

Calcagni and John Seitz and the General

Preamble for the Implementation of

Title I of the Clean Air Act Amendments

of 1990, 57 FR 13498 (April 16, 1992).

According to the commentor, reliance

on those documents is inappropriate

and illegal since those documents were

issued without opportunity for notice

and comment and are not enforceable

regulations.

(21) Response: USEPA's reference to

and reliance on those documents, all of

which are either published or publicly

available and a part of the record of this

rulemaking, is in no way illegal under

provisions of either the CAA or the

Administrative Procedures Act. (The

commentor cited no specific provisions

of either act). USEPA agrees that such

documents do not establish enforceable

regulations; they do not purport to be

anything but guidance. That is precisely

why USEPA has performed this

rulemaking-a notice-and-comment

rulemaking to take comment on its

statutory interpretations and factual

determinations in order to make a

binding and enforceable determination

regarding the CAL area. The June 29,

1995 Federal Register notice referred to

USEPA's prior policy memoranda not as

binding the Agency to adopt the

interpretations being proposed therein,

but rather as a useful description of the

rationale underlying those proposed

interpretations. USEPA has explained

the legal and factual basis for its

rulemaking in the June 29, 1995 Federal

Register notice and afforded the public

a full opportunity to comment on

USEPA's proposed interpretation and

determination fully consistent with the

applicable procedural requirements of

the Administrative Procedures Act. (The

procedural requirements of section

307(d) of the CAA do not apply to this

rulemaking since it is not among the

rulemakings listed in section 307(d)(1).)

(22) Comment: USEPA claims that, in

accordance with the October 1994

Nichols memorandum, "that areas being

redesignated need not comply with the

requirement that a NSR program be

approved prior to redesignation so

[long] as they have an approved

Prevention of Significant Deterioration

(PSD) SIP or delegated PSD authority."

60 FR at 31439. USEPA apparently

believes it can replace NSR with PSD,

but the CAA does not grant the

Administrator such discretion.

(22) Response: The USEPA believes

that the CAL 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 forAreas

Requesting Redesignation to

Attainment.

The USEPA believes that its decision

not to insist on a fully-approved NSR

program as a prerequisite 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 Ohio 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 CAL area. For the

following reasons, the USEPA believes

that requiring the adoption and fullapproval of a part D NSR program prior

to redesignation would not be of

significant environmental value in this

case.

Ohio has demonstrated that

maintenance of the ozone National

Ambient Air Quality Standards

(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 Ohio 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

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Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

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, Ohio 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.)

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 section

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 1 10(a)(2)(A),

Congress required that SIPs include

"enforceable emission limitations and

other control measures, means, or

techniques . . . as may be necessary or

appropriate to meet the applicable

requirements of the Act." In section

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 1 10(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.3 This distinguishes NSR from

other required programs under the Act,

such as inspection and maintenance and

3 The USEPA 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 part 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 A ttainment.

Reasonably Available Control

Technology (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." 4

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, Ohio 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.

(23) Comment: A violation does not

occur until the third "exceedance", this

is deceptive and doesn't help people get

information that the air is polluted.

Even though .124 ppm is above the

"standard" of 0.12 ppm; because of

rounding that terrible air wouldn't even

be counted as an exceedances or

violation.

4 The USEPA also notes that in the case of the

Cleveland, Ohio area, all permits to install for major

volatile organic compound (VOC) emission sources

and major VOC emission source modifications

issued by the State in the moderate ozone

nonattainment areas since November 15, 1992 have

complied with the 1.15 to 1.0 VOC emissions offset

ratio. In addition, permits to install cannot be

issued under the Prevention of Significant

Deterioration (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.

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