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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 ofsection 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 ofattainment that results in the suspension of requirements, it may rely on that determination and its consequences in considering the approvability ofa redesignation request.

For the reasons stated above and elsewhere in this Notice, in the June 29, 1995 FederalRegister 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 therulemaking violates any section ofthe CAA, nordoes 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 ofUSEPA's nondiscretionary mandate "to protect and enhance the quality ofthe Nation's air resources so as to promote the public health and welfare and theproductive capacity ofits 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 ofpurpose-a purpose that USEPA is
not disregarding in this action. the area has attained theprimary ozone standard, a standard designed to protect public health with an adequate margin ofsafety. (see section 109(b)(1)). USEPA's action does not relax any of the requirements that have led to the attainment ofthe standard. Rather, its action has the effect ofsuspending requirements, for additional pollution reductions, above and beyond those that have resulted in the attainment ofthe 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commentor asserts that USEPA's action violates the Administrative Procedure Act and the CAA through its reliance on unpublished memoranda ofJohn Calcagni and John Seitz and the General Preamble for the Implementation of Title I ofthe Clean Air Act Amendments of 1990, 57 FR 13498 (April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 arenot 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 ofthe record ofthis rulemaking, is in no way illegal under provisions ofeither the CAA or the Administrative Procedures Act. (The
commentor cited no specific provisions ofeither act).USEPA agrees that such documents do not establish enforceable regulations; they do not purport to be anythingbut 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 adoptthe interpretations being proposed therein, but rather as a useful description ofthe 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 thepublic

afull 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 ofsection 307(d) ofthe 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 NSRprogram be approved prior to redesignation so [long] as they have an approved Prevention ofSignificant Deterioration (PSD) SIP or delegated PSD authority." 60 FRat 31439. USEPA apparently believes it can replace NSRwith 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 ofa fully-approved NSRprogram meeting the requirements ofthe 1990 Act amendments and the absence of such an NSRprogram from the contingency plan. This view, while a departure from pastpolicy, has been set forth bythe USEPA as its new policy in

amemorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled Part DNew SourceReview (part DNSR) Requirements forAreas RequestingRedesignationto Attainment.

The USEPA believes that its decision
notto insist on a fully-approved NSR program as aprerequisite to redesignation isjustifiable as an exercise ofthe Agency's general authority to establish de minimis exceptions to statutory requirements. SeeAlabamaPowerCo. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under AlabamaPowerCo. v. Costle,the USEPAhas 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 ofsection 107(d)(3)(E) that the USEPA have fully-approved a SIP meeting all ofthe requirements applicable to the area under section 110 and part Doftitle Iofthe Act. Plainly, the NSRprovisions ofsection 110 and part D arerequirements that were applicable to the Ohio area seeking redesignation at the timeofthe submission ofthe request for redesignation. Thus, on its face, section 107(d)(3)(E) would seem to require that the State have submitted and the USEPAhave fully-approved apart D NSRprogram meeting therequirements ofthe Actbefore the areas could be redesignated to attainment.

Under the USEPA's de minimis authority, however, it mayestablish an exception to an otherwise plain statutory requirement ifits fulfillment would be oflittle or no environmental value. In this context, it is necessary to determine what would be achieved by insisting that there be afully-approved part DNSRprogram in place prior to the redesignation ofthe CAL area. Forthe followingreasons, the USEPA believes that requiringthe adoption and fullapproval ofa part D NSRprogram prior to redesignation would notbe of significant environmental value in this

case.

Ohio has demonstrated that maintenance ofthe ozone National Ambient Air Quality Standards (NAAQS) will occur even ifthe emission reductions expected to result from the part D NSRprogram do not

occur.The emission projections made by Ohio to demonstrate maintenance of the NAAQS considered growth in point

source emissions (alongwith growth for other source categories) and were premised on the assumption that the Prevention ofSignificant Deterioration (PSD)program, rather than thepart D NSR, would 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 maybe overestimates under PSD, which would restrain source growth through the application ofbest available control techniques.) Thus, contrary to the assertion ofthe commentor, Ohio has demonstrated that there is no need to retain the part DNSR

as an operative program in the SIP during the maintenance period in order
to provide for continued maintenance of the NAAQS. (Ifthis 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 otherpurpose that requiring the full-approval ofapart D NSRprogram 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 ofa maintenance plan containing "such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation ofthe standard which occurs after the redesignation ofthe area as an attainment area. Such provisions shall include a requirement that the State will implement all measures with respect to the control ofthe airpollutant concerned which were contained in the SIP for the area before redesignation of the area as an attainment area." Based

on this language, itis apparent that whether an approved NSRprogram must be included as a contingency provision depends on whether it is a "measure" for the control ofthe pertinent airpollutants.

As the USEPA noted in theproposal regarding thisredesignation request, the
term "measure" is not defined in section 175A(d) and Congress utilized that term differently in different provisions ofthe Act with respect to the PSD and NSRpermitting programs. For example, in section 110(a)(2)(A), Congress required that SIPs include "enforceable emission limitations and other control measures, means, or techniques

. . . as may be necessary or appropriate to meet the applicable requirements ofthe Act." In section 110(a)(2)(C), Congress required that SIPs include "a program to provide for the enforcement ofthe measuresdescribed in subparagraph (A), andregulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to

assure thatNAAQS 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 NSRthere would have been no point to requiring that SIPs include both measures and preconstruction review under parts C and D (PSDor NSR). Unless "measures" referred to something other than preconstruction review under parts C and D, thereference to preconstruction review programs in section 110(a)(2)(C) would be rendered mere surplusage. Thus, in section 110(a)(2) (A) and (C), it is apparent that Congress distinguished "measures" from preconstruction review. On the other hand, in other provisions ofthe Act, such as section 161, Congress appeared to include PSD within the scope ofthe term "measures."

The USEPA believes that the fact that Congress used the undefined term "measure" differently in different sections ofthe Act is germane. This indicates that the term is susceptible to

more than one interpretation and that the USEPA has the discretion to interpret itin areasonable manner in the context ofsection 175A. Inasmuch

as Congress itselfhas used the term in

amanner that excluded PSD and NSR from its scope, the USEPA believes itis reasonable to interpret "measure," as used in section 175A(d), not to include NSR. That this is areasonable interpretation is further supported by the fact that PSD, aprogram that is the corollary ofpart D NSRfor attainment
areas, goes into effect in lieu ofpart D NSR.3 This distinguishes NSRfrom other required programs under the Act, such asinspection and maintenance and

3The USEPA is not suggesting that NSR and PSD

are equivalent, butmerely that they arethe same type ofprogram. The PSD program is arequirement in attainment areas and designed to allow new

source permitting, yet contains adequate provisions
to protect the NAAQS. If anyinformation 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 a40 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 theNAAQS, these provisions should beinterpreted as requiring major

new ormodified sources to obtain VOC emission offsets ofat least a 1:1 ratio, and as presumingthat 1:1 NOx offsets are necessary. See October 14, 1994 memorandum fromMary Nichols entitled Part D New Source Review (part DNSR)Requirements for AreasRequestingRedesignationtoA ttainment. Reasonably Available Control Technology (RACT) programs, which have no corollary for attainment areas. Moreover, the USEPAbelieves that those other required programs are clearly within the scope ofthe term "measure." 4

The USEPA's logic in treating part D NSRin this mannerdoes not mean that other applicable part Drequirements, including those that have been previously met and previously relied upon in demonstrating attainment, could be eliminated without an analysis demonstrating that maintenance would be protected. As noted above, Ohio has demonstrated that maintenance would be protected with PSD in effect, rather than part D NSR. Thus, the USEPA is
notpermitting part D NSRto be removed without a demonstration that maintenance ofthe standard will be achieved. Moreover, the USEPAhas not amended its policy with respect to the conversion ofother SIP elements to contingency provisions, which is that they may be converted to contingency provisions only upon a showing that maintenance will be achieved without them being in effect. Finally, as noted above, the USEPA believes that the NSR requirement differs from other requirements, and does not believe that the rationale for the NSRexception extends to other required programs.

As the USEPAhas 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, ashas been done in this
case, that maintenance will be achieved with the application ofPSDrather than part DNSR. (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" of0.12ppm; because of rounding that terrible air wouldn't even be counted as an exceedances or violation.

4The USEPA also notes that in the case ofthe Cleveland, Ohio area, allpermits to install formajor volatile organic compound (VOC) emission sources and major VOC emission sourcemodifications issued by the State in the moderate ozone nonattainment areas sinceNovember 15, 1992have complied with the 1.15 to 1.0 VOC emissions offset ratio. In addition, permits to install cannot be issued under the Prevention ofSignificant Deterioration (PSD)program unless the applicant

can demonstrate that theincreased emissions from thenew ormodified source will not result in a violation ofthe NAAQS. 

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