[Federal Register Volume 72, Number 94 (Wednesday, May 16, 2007)]
[Rules and Regulations]
[Pages 27425-27437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9289]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2006-0517, EPA-R05-OAR-2006-0563; FRL-8314-4]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Michigan; Redesignation of 
Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, 
Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and 
Mason County 8-Hour Ozone Nonattainment Areas to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is making determinations under the Clean Air Act (CAA) 
that the nonattainment areas of Flint (Genesee and Lapeer Counties), 
Grand Rapids (Kent and Ottawa Counties), Kalamazoo-Battle Creek 
(Calhoun, Kalamazoo, and Van Buren Counties), Lansing-East Lansing 
(Clinton, Eaton, and Ingham Counties), Muskegon (Muskegon County), 
Benton Harbor (Berrien County), Benzie County, Cass County, Huron 
County, and Mason County have attained the 8-hour ozone National 
Ambient Air Quality Standard (NAAQS). For the Grand Rapids, Kalamazoo-
Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and 
Mason County areas, these determinations are based on two overlapping 
three-year periods of complete, quality-assured ambient air quality 
monitoring data for the 2002-2004 seasons and the 2003-2005 seasons 
that demonstrate that the 8-hour ozone NAAQS has been attained in the 
areas. Quality assured monitoring data for 2006 show that the areas 
continue to attain the standard. For the Flint, Muskegon, Benton 
Harbor, and Cass County areas, these determinations are based on three 
years of complete quality-assured ambient air quality monitoring data 
for the 2004-2006 seasons that demonstrate that the 8-hour

[[Page 27426]]

ozone NAAQS has been attained in the areas. In addition, quality-
assured data for 2003-2005 also demonstrate that the 8-hour NAAQS was 
attained during this period.
    EPA is approving requests from the State of Michigan to redesignate 
the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, 
Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and 
Mason County areas to attainment of the 8-hour ozone NAAQS. The 
Michigan Department of Environmental Quality (MDEQ) submitted these 
requests on May 9, 2006 and June 13, 2006, and supplemented them on May 
26, 2006, August 25, 2006, and November 30, 2006. In approving these 
requests, EPA is also approving, as revisions to the Michigan State 
Implementation Plan (SIP), the State's plans for maintaining the 8-hour 
ozone NAAQS through 2018 in these areas. EPA is also finding adequate 
and approving, for purposes of transportation conformity, the State's 
2018 Motor Vehicle Emission Budgets (MVEBs) for the Flint, Grand 
Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton 
Harbor, Benzie County, Cass County, Huron County, and Mason County 
areas.

DATES: This final rule is effective on May 16, 2007.

ADDRESSES: EPA has established a docket for this action as it relates 
to the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, 
Benzie County, Huron County, and Mason County areas under Docket ID No. 
EPA-R05-OAR-2006-0517 and a docket for this action as it relates to the 
Flint, Muskegon, Benton Harbor, and Cass County areas under Docket ID 
No. EPA-R05-OAR-2006-0563. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy. Publicly available docket materials are available either 
electronically in www.regulations.gov or in hard copy at the 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. We recommend that you telephone Kathleen D'Agostino, 
Environmental Engineer, at (312) 886-1767 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-1767, <a href="/cdn-cgi/l/email-protection#2a4e4b4d45595e43444504414b5e42464f4f446a4f5a4b044d455c"><span class="__cf_email__" data-cfemail="6b0f0a0c04181f02050445000a1f03070e0e052b0e1b0a450c041d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

Table of Contents

I. What Is the Background for This Rule?
II. What Comments Did We Receive on the Proposed Actions?
III. What Are Our Final Actions?
IV. Statutory and Executive Order Review

I. What Is the Background for This Rule?

    Ground-level ozone is not emitted directly by sources. Rather, 
emissions of nitrogen oxides (NO<INF>X</INF>) and volatile organic 
compounds (VOCs) react in the presence of sunlight to form ground-level 
ozone. NO<INF>X</INF> and VOCs are referred to as precursors of ozone.
    The CAA establishes a process for air quality management through 
the NAAQS. Before promulgation of the current 8-hour standard, the 
ozone NAAQS was based on a 1-hour standard. At the time EPA revoked the 
1-hour ozone NAAQS, on June 15, 2005, the Flint, Grand Rapids, 
Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, 
Benzie County, Cass County, Huron County, and Mason County areas were 
all designated as attainment under the 1-hour ozone NAAQS.
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm). This new standard is more stringent 
than the previous 1-hour standard. On April 30, 2004 (69 FR 23857), EPA 
published a final rule designating and classifying areas under the 8-
hour ozone NAAQS. These designations and classifications became 
effective June 15, 2004. The CAA required EPA to designate as 
nonattainment any area that was violating the 8-hour ozone NAAQS based 
on the three most recent years of air quality data, 2001-2003.
    The CAA contains two sets of provisions, subpart 1 and subpart 2, 
that address planning and control requirements for nonattainment areas. 
(Both are found in title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 (which EPA refers to as ``basic'' 
nonattainment) contains general requirements for nonattainment areas 
for any pollutant, including ozone, governed by a NAAQS. Subpart 2 
(which EPA refers to as ``classified'' nonattainment) provides more 
specific requirements for ozone nonattainment areas. Under EPA's Phase 
1 8-hour ozone implementation rule, (69 FR 23951 (April 30, 2004)), an 
area was classified under subpart 2 based on its 8-hour ozone design 
value (i.e., the 3-year average annual fourth-highest daily maximum 8-
hour average ozone concentration), if it had a 1-hour design value at 
the time of designation at or above 0.121 ppm (the lowest 1-hour design 
value in Table 1 of subpart 2) (69 FR 23954). All other areas were 
covered under subpart 1, based upon their 8-hour design values (69 FR 
23958). The Muskegon and Cass County areas were designated as subpart 
2, 1-hour ozone moderate \1\ nonattainment areas by EPA on April 30, 
2004, (69 FR 23857, 23911), based on air quality monitoring data from 
2001-2003. The Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-
East Lansing, Benton Harbor, Benzie County, Huron County, and Mason 
County areas were all designated as subpart 1, 8-hour ozone 
nonattainment areas by EPA on April 30, 2004, (69 FR 23857, 23910-
23911) based on 2001-2003 air quality monitoring data.
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    \1\ Under subpart 2 of the CAA, areas are further classified as 
marginal, moderate, serious, severe or extreme based on the design 
value for the area.
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    Under section 181(a)(4) of the CAA, EPA may adjust the 
classification of an ozone nonattainment area to the next higher or 
lower classification if the design value for the area is within five 
percent of the cut-off for that higher or lower classification. On 
September 22, 2004, EPA adjusted the classification of several 
nonattainment areas which had been designated and classified under 
subpart 2 on April 30, 2004. At that time, EPA adjusted the 
classifications of the Muskegon and Cass County nonattainment areas 
from moderate to marginal (69 FR 56697, 56708-56709). It should be 
noted that the United States Court of Appeals for the District of 
Columbia Circuit has recently vacated EPA's April 30, 2004 ``Final Rule 
to Implement the 8-Hour Ozone National Ambient Standard'' (the Phase 1 
implementation rule). South Coast Air Quality Management District v. 
EPA, No. 04-1200., 472 F.3d 882 (DC Cir. 2007). EPA issued a 
supplemental proposed rulemaking that set forth its views on the 
potential effect of the Court's ruling on these and other proposed 
redesignation actions. 72 FR 13452 (March 22, 2007) See discussion 
below.

[[Page 27427]]

    40 CFR Section 50.10 and 40 CFR Part 50, Appendix I provide that 
the 8-hour ozone standard is attained when the 3-year average of the 
annual fourth-highest daily maximum 8-hour average ozone concentration 
is less than or equal to 0.08 ppm, when rounded. The data completeness 
requirement is met when the average percent of days with valid ambient 
monitoring data is greater than 90%, and no single year has less than 
75% data completeness. See 40 CFR Part 50, Appendix I, 2.3(d).
    On May 9, 2006, Michigan requested that EPA redesignate the Grand 
Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County, 
Huron County, and Mason County areas to attainment for the 8-hour ozone 
standard. The State supplemented its redesignation requests on May 26, 
2006 and August 25, 2006. The redesignation requests included three 
years of complete, quality-assured data for the period of 2002 through 
2004, as well as complete quality assured data for 2005, indicating the 
8-hour NAAQS for ozone had been attained for all of the areas covered 
by the request. Subsequently EPA reviewed the quality assured 
monitoring data for 2004-2006. These data show that these areas 
continued to attain the standard for 2004-2006. See Table 1 below.

      Table 1.--Annual 4th High Daily Maximum 8-Hour Ozone Concentration and 3-Year Averages of 4th High Daily Maximum 8-Hour Ozone Concentrations
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                                                                                           2004 4th high   2005 4th high   2006 4th high     2004-2006
                 Area                           County                   Monitor               (ppm)           (ppm)           (ppm)      average  (ppm)
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Grand Rapids.........................  Kent....................  Grand Rapids 26-0810020           0.068           0.083           0.082           0.077
                                                                 Evans 26-0810022.......           0.072           0.083           0.081           0.078
                                       Ottawa..................  Jenison 26-1390005.....           0.069           0.086           0.083           0.079
Kalamazoo-Battle Creek...............  Kalamazoo...............  Kalamazoo 26-0770008...           0.068           0.081           0.068           0.072
Lansing-East Lansing.................  Clinton.................  Rose Lake 26-0370001...           0.070           0.078           0.071           0.073
                                       Ingham..................  Lansing-East Lansing 26-          0.068           0.082           0.071           0.073
                                                                  0650012.
Benzie...............................  Benzie..................  Frankfort 26-0190003...           0.075           0.086           0.080           0.080
Huron................................  Huron...................  Harbor Beach 26-0633006           0.068           0.077           0.073           0.072
Mason................................  Mason...................  Scottville 26-1050007..           0.071           0.085           0.076           0.077
--------------------------------------------------------------------------------------------------------------------------------------------------------

    On June 13, 2006, Michigan requested that EPA redesignate the 
Flint, Muskegon, Benton Harbor, and Cass County areas to attainment for 
the 8-hour ozone standard. The State supplemented its requests on 
August 25, 2006 and November 30, 2006. The redesignation requests 
included three years of complete, quality-assured data for 2004-2006, 
indicating the 8-hour NAAQS for ozone had been attained for all of the 
areas covered by the request. Data submitted by the State also showed 
attainment in 2003-2005. Under the CAA, nonattainment areas may be 
redesignated to attainment if sufficient complete, quality-assured data 
are available for the Administrator to determine that the area has 
attained the standard, and the area meets the other CAA redesignation 
requirements in section 107(d)(3)(E).
    On December 7, 2006 (71 FR 70915), EPA proposed to make 
determinations that the Grand Rapids, Kalamazoo-Battle Creek, Lansing-
East Lansing, Benzie County, Huron County, and Mason County areas have 
attained the 8-hour ozone NAAQS, and to approve the redesignations of 
the areas from nonattainment to attainment for the 8-hour ozone NAAQS. 
EPA also proposed to approve maintenance plan SIP revisions for the 
Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie 
County, Huron County, and Mason County areas. Additionally, EPA found 
adequate and proposed to approve the 2018 Motor Vehicle Emissions 
Budgets (MVEBs) submitted by Michigan for these areas in conjunction 
with the redesignation requests.
    On January 8, 2007 (72 FR 699), EPA proposed to make determinations 
that the Flint, Muskegon, Benton Harbor, and Cass County areas have 
attained the 8-hour ozone NAAQS, and to approve the redesignations of 
the areas from nonattainment to attainment for the 8-hour ozone NAAQS. 
EPA also proposed to approve the maintenance plan SIP revisions for the 
Flint, Muskegon, Benton Harbor, and Cass County areas. Additionally, 
EPA found adequate and proposed to approve the 2018 MVEBs submitted by 
Michigan for these areas in conjunction with the redesignation 
requests. The rationale for EPA's proposed actions is explained in the 
notices of proposed rulemaking and will not be restated here.
    In addition, as noted above, EPA issued a supplemental proposed 
rulemaking setting forth EPA's views on the potential impact of the 
Court's ruling in South Coast Air Quality Management District v EPA. 
EPA provided a 15-day review and comment period on this supplemental 
proposed rulemaking. The public comment period closed on April 6, 2007. 
EPA received six comments, all supporting EPA's supplemental proposed 
rulemaking, and supporting redesignation of the affected areas. EPA 
recognizes the support provided in these comments but does not believe 
any specific response to comments is necessary with respect to these 
comments. In addition, several of these comments included additional 
rationale for proceeding with these proposed designations. EPA had not 
requested comment on any additional rationale, does not believe any 
additional rationale is necessary, and similarly does not believe any 
specific response to these comments is necessary, and thus has not 
provided any.

II. What Comments Did We Receive on the Proposed Actions?

    EPA provided a 30-day review and comment period on the proposed 
rules. The public comment periods closed on January 1, 2007 and 
February 7, 2007. EPA received a letter from the Crystal Lake Watershed 
Association in favor of the redesignation of Benzie County. EPA 
received adverse comments from the Little River Band of Ottawa Indians 
and from three citizens. Unless an area was specifically identified by 
the commentor, EPA assumed that the

[[Page 27428]]

comment applied to all areas. A summary of the adverse comments 
received, and EPA's responses, follows.
    (1) Comment: Redesignation of Mason, Benzie and Muskegon Counties 
at this time would be premature because the data are misleading. 
Although the three-year averages for both Mason and Benzie Counties 
during the period of 2002-2004, 2003-2005 and 2004-2006 were less than 
0.085 parts per million (ppm), which puts both counties into attainment 
for the 8-hour ozone NAAQS, 2004 was a statistical outlier. This 
argument could be extended to other counties affected by EPA's 
proposals.
    Response: The CAA provides the requirements for redesignating a 
nonattainment area to attainment. Specifically, section 107(d)(3)(E) 
allows for redesignation provided that, among other things, the 
Administrator determines that the area has attained the applicable 
NAAQS. A determination that an area has attained the standard is based 
on an objective review of air quality data. There are no provisions in 
the CAA or in EPA redesignation policy for using monitoring data trends 
or statistical analyses as criteria for determining attainment in 
evaluating a redesignation request.
    EPA promulgated the current 8-hour ozone standard on July 18, 1997 
(62 FR 38856). As discussed in detail in the proposed rule, an area is 
considered to be in attainment of the 8-hour ozone standard if the 3-
year average of the fourth-highest daily maximum 8-hour average ozone 
concentrations measured at each monitor within an area over each year 
does not exceed 0.084 ppm. Three years of air quality data are used to 
allow for year-to-year variations in meteorology. The three year 
averaging period provides a reasoned balance between evening out 
meteorological effects and properly addressing real changes in emission 
levels. See 66 FR 53094, 53100 (October 19, 2000) (redesignation of 
Pittsburgh) and 69 FR 21717, 21719-21720 (April 22, 2004) 
(determination of attainment for the Bay Area). In the case of Mason 
and Benzie Counties, both areas have attained the standard for three 
three-year periods, which is also the case for the Grand Rapids, 
Kalamazoo-Battle Creek, Lansing-East Lansing and Huron County areas. 
The Muskegon area has attained the standard for two three-year periods, 
which is also the case for the Flint, Benton Harbor and Cass County 
areas. In all cases, these areas have demonstrated attainment for 
longer than is required. As the commentor acknowledges, the areas are 
monitoring attainment of the 8-hour standard. EPA has no basis for 
using other criteria to determine if an area is attaining the 8-hour 
ozone NAAQS.
    It should be noted that, to put recent western Michigan 
meteorological monitoring data into perspective, EPA obtained 
historical temperature data recorded at the Muskegon County Airport 
from the National Oceanic and Atmospheric Administration's (NOAA) 
National Climate Data Center. Review of average high temperatures and 
number of days with temperatures greater than or equal to 90[deg]F 
recorded over the ozone season for the past 50 years indicates that the 
year-to-year variations recorded from 2003-2006, are typical of 
historical values. Average high temperatures are above the 50 year 
average for 2003, 2005 and 2006 and slightly below the 50 year average 
for 2004. Taken together, average high temperatures for the 2003-2005 
and 2004-2006 time periods are above the 50 year average. Considering 
the number of days with temperatures of 90[deg]F or greater, values for 
the 2003-2005 and 2004-2006 time periods are above the 50 year average. 
This information does not support the commentor's contention that 
abnormal meteorology was responsible for improvements in air quality.
    In addition, as discussed at length in the proposals, the areas 
have met the separate redesignation requirement of demonstrating that 
the improvement in air quality is due to permanent and enforceable 
emissions reductions. This further refutes the contention that 
favorable meteorology accounts for attainment.
    (2) Comment: EPA should look with more scrutiny at the 4th highest 
8-hour averages for each year. Reviewing these values, it is difficult 
to predict whether Benzie, Mason, and Muskegon Counties will be able to 
maintain the ozone standard starting with the 2005-2007 data, since the 
failing values for next year are close to what the values have been for 
the past two years. Muskegon has a failing value lower than the 4th 
highest 8-hour average for every year except 2004.
    Response: As discussed above, neither the CAA nor EPA's 
interpretation of CAA requirements in policy memoranda provide for 
using monitoring data trends or statistical analyses as criteria for 
determining attainment for evaluating a redesignation request. Section 
107(d)(3)(E) of the CAA allows for redesignation provided that, among 
other things, the Administrator determines that the area has attained 
the applicable NAAQS. As described in detail in the proposed rules, the 
Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, 
Benton Harbor, Flint, Benzie County, Cass County, Huron County, and 
Mason County areas are all monitoring attainment of the 8-hour ozone 
NAAQS.
    In addition, consistent with the requirements of sections 175A and 
107(d)(3)(E) of the CAA, Michigan has submitted maintenance plans for 
the areas which show continued maintenance and continuing reductions in 
NO<INF>X</INF> and VOC emissions through 2018, further decreasing peak 
ozone levels and maintaining ozone attainment. It should also be noted 
that reductions in emissions that have occurred and that will continue 
to occur in upwind areas will contribute to maintenance of the NAAQS in 
these areas. Some of these measures include the NO<INF>X</INF> SIP 
call, stationary source NO<INF>X</INF> regulations, the National Low 
Emission Vehicle (NLEV) program, Tier 2 emission standards for vehicles 
(Tier 2), low sulfur diesel fuel standards and heavy-duty diesel engine 
standards. Additionally, Illinois, Indiana, Wisconsin, and Michigan, 
along with 25 other states and the District of Columbia, are subject to 
the Clean Air Interstate Rule, which should result in reduced 
NO<INF>X</INF> emissions and a reduction in transported ozone. 
Furthermore, as demonstrated by the contingency measure provisions 
required by section 175A(d), the CAA clearly anticipates and provides 
for situations where an area might monitor a violation of the NAAQs 
after having been redesignated to attainment. Michigan has included 
contingency measure provisions consistent with CAA requirements in 
their maintenance plans to address any possible future violation of the 
NAAQS.
    (3) Comment: The results from 2004 are abnormally low due solely to 
the weather. While we agree that there is an overall downward trend, we 
insist that the unfavorable weather for ozone formation led to 
atypically low results in 2004. The results for that year are single 
handedly dragging down the three year average and artificially bringing 
the areas into attainment before they have reached a maintainable 
situation. The commentor is particulary concerned with the Benzie 
County, Mason County, and Muskegon areas.
    Response: It should be noted that as discussed above, the year to 
year temperature variations recorded from 2003-2006, are typical of 
historical values and EPA does not believe that the 2004 data were 
abnormally low. Moreover, as discussed in greater detail above, section 
107(d)(3)(E)(i) of the CAA requires that the Administrator determine 
that the area has attained the applicable NAAQS. A determination that 
an area has attained the NAAQS is

[[Page 27429]]

based on an objective review of air quality data. An area is considered 
to be in attainment of the 8-hour ozone standard if the 3-year average 
of the fourth-highest daily maximum 8-hour average ozone concentrations 
measured at each monitor within an area over each year does not exceed 
0.084 ppm. Three years of air quality data are used to allow for year-
to-year variations in meteorology. The adequacy of the ozone standard 
is not at issue in this rulemaking. Comments regarding the adequacy of 
the ozone standard would have more appropriately been submitted in 
response to the proposal of the 8-hour standard.
    In addition, as discussed above, Michigan has submitted maintenance 
plans which show continuing reductions in NO<INF>X</INF> and VOC 
emissions through 2018, and include contingency measure provisions to 
address any possible future violation of the NAAQS. Moreover, as 
discussed in the proposals, 71 FR 70921 (December 7, 2006) and 72 FR 
704-705 (January 8, 2007), Michigan has shown that the improvement in 
air quality is due to permanent and enforceable emissions reductions, 
and not to favorable meteorology. Emission reductions from within the 
areas, as well as regional reductions from upwind areas, are 
responsible for attainment. Reductions in VOC and NO<INF>X</INF> 
emissions have occurred in Michigan, as well as in upwind areas, as a 
result of Federal emission control measures, with additional emission 
reductions expected to occur in the future. Federal emission control 
measures include: The NLEV program, Tier 2 emission standards for 
vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and 
heavy-duty diesel engine standards. In accordance with EPA's 
NO<INF>X</INF> SIP call, Michigan developed rules to control 
NO<INF>X</INF> emissions from electric generating units (EGUs), major 
non-EGU industrial boilers, and major cement kilns. Between 2000 and 
2004, this resulted in a 40,577 ton reduction in ozone season 
NO<INF>X</INF> emissions. Illinois and Indiana have also adopted 
regulations to comply with the NO<INF>X</INF> SIP call which have 
resulted in a 155,831 ton reduction in ozone season NO<INF>X</INF> 
emissions between 2000 and 2004. While Wisconsin was not subject to the 
NO<INF>X</INF> SIP call, the state has adopted NO<INF>X</INF> 
regulations to meet rate of progress requirements. The emission 
reductions from all of these programs are permanent and enforceable.
    (4) Comment: MDEQ's maintenance plans do not address the fact that 
the Lake Michigan shoreline counties are overwhelmingly impacted by 
ozone originating from sources across the lake in the Chicago-Gary-
Milwaukee area. Instead, MDEQ insists on controlling local sources when 
the reason for the problem is solely rooted in pollution traveling on 
prevailing winds across the lake. It is disingenuous for MDEQ to submit 
a maintenance plan to EPA that does not address the need for 
controlling these distant sources as they are the root cause. 
Furthermore, it is equally as wrong for EPA to accept such a request 
without reassurances from MDEQ in writing to pursue its options in 
Section 126 of the CAA regardless of the consequences. EPA should deny 
MDEQ's request unless they include Section 126 provisions in the 
maintenance plan. If EPA chooses to accept this request without 
commitments in writing from MDEQ to pursue its options under Section 
126, then the onus is on EPA to pursue those actions. The commentor is 
particularly concerned with the Benzie County, Mason County and 
Muskegon areas.
    Response: MDEQ has included in its maintenance plans, control 
measures which the State has the authority to adopt and enforce. MDEQ 
does not have the authority to adopt and enforce measures to control 
sources located in Illinois, Indiana, or Wisconsin. It would be 
inappropriate for the State to include in its maintenance plans 
contingency measures that it could neither adopt nor enforce.
    Section 110(a)(2)(D) of the CAA, which applies to all SIPs for each 
pollutant covered by a NAAQS, and for all areas regardless of their 
attainment designation, provides that a SIP must contain provisions 
preventing its sources from contributing significantly to nonattainment 
problems or interfering with maintenance in downwind States.
    Section 126 of the CAA authorizes a downwind state to petition EPA 
for a finding that any new or existing major stationary source or group 
of stationary sources upwind of the state emits or would emit in 
violation of the prohibition of section 110(a)(2)(D) because their 
emissions contribute significantly to nonattainment, or interfere with 
maintenance, of a NAAQS in the state. Michigan retains the authority, 
under section 126 of the CAA, to petition EPA should this become 
necessary in the future. It is unnecessary for Michigan to cite section 
126 of the CAA in its maintenance plans to preserve this option. Upwind 
areas will remain subject to the provisions of section 110(a)(2)(D) and 
section 126 after the areas are redesignated to attainment, and 
redesignation will not remove the protections of these provisions for 
lakeshore counties.
    Furthermore, Section 110(k)(5) authorizes EPA to find that a SIP is 
substantially inadequate to meet any CAA requirement, as well as to 
mitigate interstate transport of the type described in section 184 
(concerning ozone transport in the northeast) or section 176A 
(concerning interstate transport in general), and thereby require the 
State to submit, within a specified period, a SIP revision to correct 
the inadequacy. EPA exercised this authority in issuing the 
NO<INF>X</INF> SIP call, and would do so again, as necessary, if it 
finds that SIPs do not adequately address transport.
    In fact, upwind areas, including Chicago-Gary-Lake County, IL-IN 
and Milwaukee-Racine, WI, are continuing to implement measures to 
reduce ozone precursors; including the NO<INF>X</INF> SIP call, 
stationary source NO<INF>X</INF> regulations, NLEV, Tier 2, low sulfur 
diesel fuel standards and heavy-duty diesel engine standards. 
Additionally, Illinois, Indiana, Wisconsin, and Michigan, along with 25 
other states and the District of Columbia, are subject to the Clean Air 
Interstate Rule, which should result in reduced NO<INF>X</INF> 
emissions and a reduction in transported ozone.
    (5) Comment: One commenter disagreed with the assertion that 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, dated Nov. 6, 2000, (E.O. 13175) does not apply to the 
Region's proposed approval of MDEQ's requests to redesignate certain 
counties from ``non-attainment'' to ``attainment'' for ozone pursuant 
to Section 107(d) of the Clean Air Act. The commenter states that EPA's 
action has tribal implications under E.O. 13175.
    Response: E.O. 13175 was signed on November 6, 2000, and sets forth 
various provisions regarding consultation and coordination between 
Federal agencies undertaking ``policies that have tribal implications'' 
and Indian tribal governments. Under E.O, 13175, the term ``policies 
that have tribal implications'' refers to ``regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.''
    It is not necessary to address the scope of E.O. 13175 at this 
time. Federal policy and EPA's 1984 Indian Policy encourage the Agency 
to consult with Tribes prior to taking actions that affect Tribal 
governments. Recognizing tribal

[[Page 27430]]

interest in this matter, the Region offered to consult with all 
Michigan Tribes with respect to the redesignation requests. Five Tribes 
accepted this offer, and consultation occurred by means of a conference 
call on August 30, 2006 and a face-to-face meeting held at the 
Nottawaseppi Huron Band of Potawatomi Indians tribal center on 
September 26, 2006. Consequently, the purposes of the executive order 
were satisfied in this case.
    (6) Comment: Even though EPA was only required to consult with 
tribes once, it is by no means prohibited from talking to them again. 
At the very least there are two requests submitted by MDEQ (May 9, 2006 
and June 13, 2006) which should translate to two consultation 
processes. Furthermore, the effectiveness of the consultation process 
has been significantly diminished since the current Regional 
Administrator and Air Division Director were not in their current 
positions or on leave when the meeting took place.
    Response: We believe that the consultation process was constructive 
and appreciate the considered comments provided by the Little River 
Band of Ottawa Indians. However, at this time we believe that the 
conference call and meeting constitute adequate consultation and do not 
believe that value would be added through additional consultation on 
this issue. Both the May 9, 2006, and June 13, 2006, redesignation 
submittals were discussed in the conference call and at the meeting. 
Furthermore, the comments do not raise any issues that were not 
discussed during the consultation. With respect to EPA management 
changes, we believe that this has no bearing on the effectiveness or 
adequacy of the consultation process. Appropriate EPA representatives 
participated in the consultation process and current management has 
been comprehensively briefed.
    (7) Comment: The CAA requires EPA to act within 18 months of the 
submission of a redesignation request. Michigan submitted the requests 
on May 9, 2006 and June 13, 2006. This means EPA does not have to 
approve or deny the requests until November 9, 2007 and December 13, 
2007, respectively. Thus, EPA could choose to wait and see what will 
happen with these counties after the end of next ozone season. More 
importantly though, EPA could see what the three-year average is 
without the abnormally low 2004 data skewing the results. EPA should 
hold off on redesignating these counties until after 2007's ozone 
season is complete.
    Response: As noted above in responses to comments, the year to year 
temperature variations recorded from 2003-2006, are typical of 
historical values and EPA does not believe that the 2004 data were 
abnormally low. Moreover, as set forth above in response to comments, 
three years of air quality data are used in determining attainment with 
the standard to allow for year-to-year variations in meteorology. In 
any event, delay of the redesignation is not necessary because the 
Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, 
Benton Harbor, Flint, Benzie County, Cass County, Huron County, and 
Mason County areas are all in attainment of the 8-hour ozone standard 
and have otherwise met all applicable requirements for redesignation. 
For the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, 
Benzie County, Huron County, and Mason County areas, attainment was 
achieved at the end of the 2004 ozone monitoring season, when each of 
the areas attained the ozone standard with quality assured 2002-2004 
monitoring data. Since that time, MDEQ has collected and reported 
quality assured monitoring data for 2005 and 2006, resulting in three 
3-year periods of monitored attainment. For the Flint, Muskegon, Benton 
Harbor, and Cass County areas, attainment was achieved at the end of 
the 2005 ozone monitoring season, when each of the areas attained the 
ozone standard with quality assured 2003-2005 monitoring data. Since 
that time, MDEQ has collected and reported quality assured monitoring 
data for 2006, resulting in two 3-year periods of monitored attainment. 
Furthermore, as demonstrated in Michigan's maintenance plans, VOC and 
NO<INF>X</INF> emissions will continue to decline through 2018, further 
decreasing peak ozone levels and maintaining attainment of the ozone 
standard. MDEQ has met all of the criteria for redesignation contained 
in the CAA; therefore EPA has no basis for delaying approval of the 
State's request.
    (8) Comment: For the Mason County ozone monitor, MDEQ discounted 
the 8-hour average value of 0.089 ppm, recorded on June 17, which was 
the 3rd highest 8-hour average for 2006. This change caused the 4th 
highest value to drop from 0.083 ppm to 0.076 ppm. The reason given for 
discounting monitoring data recorded on June 17 at the Mason County 
ozone monitor was that the shelter temperature exceeded acceptable 
limits due to a faulty air conditioner. Obviously, such failures skew 
samples results since the ozone is no doubt highest when high 
temperatures also prevail. Certainly, days discounted that are among 
the four highest are much more significant than those below it. Thus, 
it seems there should be a mechanism for documenting discounted days 
amongst the four highest for any monitor and the reason for discounting 
the data.
    Response: EPA has established specific quality assurance criteria 
for the collection of ambient data. One of these criteria, stated in 
Part 1, Section 7.1.2 of the EPA's ``Quality Assurance Handbook for Air 
Pollution Measurement Systems,'' is that ozone analyzers must be 
operated within a specific temperature range (20 [deg]C to 30 [deg]C). 
This temperature range is set because the instruments have been tested 
and qualified in this range of temperatures. Establishing a range of 
operating temperature ensures that the instrument's reported 
concentrations do not drift from actual concentration; therefore, when 
the temperature exceeds this range, data are no longer considered to 
have met the quality objectives and are considered missing for 
regulatory data calculations.
    In the EPA Air Quality Database (AQS), each hour has an ozone value 
and can be flagged for a variety of quality assurance reasons, 
including the shelter temperature being out of acceptable range. If the 
hourly value is flagged, then that hour is not used in the computation 
of the maximum 8-hour average. Every eight-hour average must have at 
least 6 hours of valid hourly values, otherwise it is assigned the 
value of missing. An ozone monitoring day is counted as a valid ozone 
monitoring day if at least 18 of the 24 possible 8-hour average periods 
are available, or the daily maximum 8-hour average concentration is 
greater than 0.08 ppm. Invalid days count against the design value 
completeness criteria; i.e., 75% per year and 90% over three years.
    MDEQ appropriately flagged its hourly ozone concentrations in the 
AQS database when the monitoring shelter temperature exceeded 30 [deg] 
C and they correctly calculated the daily and annual statistics 
according to the EPA's ``Guideline on Data Handling Conventions for the 
8-hour Ozone NAAQS.'' Furthermore, regardless of whether 0.083 ppm or 
0.076 ppm is used as the 4th highest 8-hour average for 2006, the area 
is monitoring attainment of the 8-hour ozone NAAQS for the 2004-2006 
period.
    (9) Comment: June 17 was in the top four highest days at 20 out of 
28 other Michigan sites for 2006. The Little River Band of Ottawa 
Indians operates an ozone monitor in Manistee County, which is the 
closest one to Mason

[[Page 27431]]

County's monitor. The tribal monitor has a 4th highest 8-hour average 
of 0.083 ppm for 2006 as did Mason's before the removal of the June 17 
reading. Could data from the tribal monitor be used to supplement 
missing data at the Mason County monitor?
    Response: As explained in EPA's ``Guideline on Data Handling 
Conventions for the 8-hour Ozone NAAQS,'' in certain situations, credit 
can be given toward meeting the 75% minimum data completeness 
requirement for days with monitoring data that would have had low ozone 
concentrations. However, as long as a site meets the 75% minimum data 
completeness requirement in a given year, EPA does not require that 
data substitution from nearby monitors occur for days that are missing 
data. The Mason County monitoring site meets the 75% requirement in 
2006, so there is no requirement to assess nearby monitors on days with 
missing data. Also, as noted above, regardless of whether 0.083 ppm or 
0.076 ppm is used as the 4th highest 8-hour average for 2006, the area 
is monitoring attainment of the 8-hour ozone NAAQS for the 2004-2006 
period.
    (10) Comment: For the Grand Rapids, Kalamazoo-Battle Creek, 
Lansing-East Lansing, Benzie County, Huron County, and Mason County 
areas, Michigan used emissions data from 1999 and 2002 to show that the 
improvement in air quality was due to permanent and enforceable 
reductions in emissions. Why would the state choose a time period the 
EPA used to designate the area nonattainment?
    Response: In developing an attainment inventory, Michigan could 
have chosen any of the years that the areas were monitoring attainment 
of the standard. Michigan developed the redesignation request based on 
ambient monitoring for the 2002-2004 time period showing that the areas 
had attained the NAAQS. (The areas have continued to monitor attainment 
for the 2003-2005 and 2004-2006 time periods.) It would have been 
acceptable for MDEQ to choose any of the three years, 2002, 2003, or 
2004, as the year for the attainment inventory. (Because the areas 
continue to attain the NAAQS, 2005 or 2006 would also have been 
acceptable attainment years.) Michigan had developed a detailed 
emissions inventory for 2002 in support of regional modeling efforts, 
and chose this year for its attainment inventory. As discussed in more 
detail in the proposed rule (71 FR 70921), MDEQ demonstrated emissions 
reductions from 1999 to 2002 and detailed permanent and enforceable 
control measures over this time period that were responsible for the 
reduction in emissions. If Michigan had chosen a later year for its 
attainment inventory, it could have documented an even greater 
reduction in emissions, as the state has documented increasing 
emissions reductions from 2002 through 2018. Between 2002 and 2006, 
these areas, as well as areas upwind, have experienced further 
reductions in motor vehicle emissions due to the implementation of the 
NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur 
limits, low sulfur diesel fuel standards, and heavy-duty diesel engine 
standards. In addition, the NO<INF>X</INF> SIP call required large 
reductions in NO<INF>X</INF>, beginning in 2004, for both Michigan and 
upwind areas. The emission reductions from all of these programs are 
permanent and enforceable.
    (11) Comment: Air quality monitoring data for the Grand Rapids area 
shows an upward trend from 1997 through 2003. Why did EPA analyze 2002 
emissions data to show the area has put on controls, when monitoring 
data indicates air quality problems?
    Response: Considering monitoring data from 1999 through 2006, which 
covers the time period that the Grand Rapids area is using to 
demonstrate monitored attainment with the standard, there are year to 
year variations, but overall ozone levels appear to be declining. The 
fact that the area has continued to monitor attainment of the standard 
for the three most recent three-year periods supports this view. As 
noted above, in response to Comment 10, Michigan could have chosen for 
its attainment inventory any of the years that the area was monitoring 
attainment of the standard. The state chose 2002 as the attainment year 
and documented permanent and enforceable control measures which were 
responsible for the reduction in emissions over the 1999-2002 time 
period. Table 5 set forth in the proposal (17 FR 70922, 70924) shows 
that the Grand Rapids area reduced VOC emissions by 9,949 tpy (18%) and 
NO<INF>X</INF> emissions by 20,276 tpy (28%). Had the state chosen a 
later attainment year, an even greater reduction in emissions could 
have been shown, as the state has documented increasing emissions 
reductions from 2002 through 2018. In addition to the emissions 
reductions documented in Table 5 of the proposal, subsequent emissions 
reductions in later years were obtained from the NLEV program, Tier 2 
emission standards for vehicles, gasoline sulfur limits, low sulfur 
diesel fuel standards, heavy-duty diesel engine standards, and the 
NO<INF>X</INF> SIP call. Upwind areas have also experienced emissions 
reductions from these programs. See Response to Comment 10, above.
    (12) Comment: Levels of ozone, particulate matter and other 
pollutants remain unacceptably high. EPA should require Michigan to 
move toward policies which improve air quality and pressure the 
Chicago, Illinois and Gary, Indiana areas to reduce pollution, which is 
transported to Michigan.
    Response: Under section 109 of the CAA, EPA is charged with 
promulgating NAAQS for criteria pollutants (including ozone and 
particulate matter) at levels protective of public health and welfare. 
EPA promulgated NAAQS for 8-hour ozone on July 18, 1997 (62 FR 38856). 
The Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, 
Muskegon, Benton Harbor, Flint, Benzie County, Cass County, Huron 
County, and Mason County areas have demonstrated attainment of the 8-
hour ozone standard. It should be noted that while this action does not 
relate to particulate matter, all of these areas are designated as 
attainment for particulate matter as well.
    This rule is a redesignation action that is designed to determine 
whether an area has met the requirements for redesignation to 
attainment for 8-hour ozone. Considerations of how to address issues of 
transport from upwind areas not related to the current redesignation 
action are not relevant for purposes of this action. As discussed 
elsewhere in responses to comments, Sections 126 and 110(a)(2)(D) 
remain available as mechanisms to address transport problems regardless 
of whether an area has been redesignated to attainment.
    It should be noted, however, that considerable progress has been 
made in reducing transported pollution. EPA has adopted and implemented 
the NO<INF>X</INF> SIP call, which has significantly reduced 
NO<INF>X</INF> emissions throughout the eastern half of the United 
States. In Michigan, Illinois, and Indiana alone, the NO<INF>X</INF> 
SIP call has been responsible for a reduction in ozone season 
NO<INF>X</INF> emissions in excess of 196,400 tons between 2000 and 
2004. Other Federal measures including the NLEV program, Tier 2 
emission standards for vehicles, gasoline sulfur limits, low sulfur 
diesel fuel standards, and heavy-duty diesel engine standards continue 
to be implemented and should result in reductions in upwind emissions. 
In addition, EPA finalized the Clean Air Interstate Rule (CAIR) on May 
12, 2005. CAIR is designed to achieve large reductions of sulfur 
dioxide (SO<INF>2</INF>) and/or NO<INF>X</INF> emissions across 28 
eastern states and the District of Columbia and specifically addresses 
the transported

[[Page 27432]]

pollution from upwind states that affects downwind air quality 
problems. (Illinois, Indiana, Wisconsin and Michigan are all subject to 
CAIR.) SO<INF>2</INF> and NO<INF>X</INF> contribute to the formation of 
fine particles and NO<INF>X</INF> contributes to the formation of 
ground-level ozone.
    (13) Comment: A commentor notes that EPA's 8-hour ozone designation 
Web site lists the 2001-2003 design value for the Grand Rapids area as 
0.089 ppm. The commentor states that the design value for the area 
should be 0.090 ppm, based on the Jennison monitor.
    Response: Yearly 4th high 8-hour ozone averages at the Jennison 
monitor for the years 2001-2003 are 0.086, 0.093, and 0.090 ppm, 
respectively. Using the calculation procedures described in 40 CFR Part 
50, Appendix I, which call for truncating after the third decimal 
place, rather than rounding, the 3-year average of the fourth-highest 
daily maximum 8-hour average ozone concentrations, i.e., the design 
value, is 0.089 ppm.
    (14) Comment: Considering the 4th highest 8-hour average for each 
year for each monitor in the Grand Rapids-Muskegon-Holland Consolidated 
Statistical Area, rather than the design value, long term trends show a 
regional air quality pattern of elevated and violating ozone 
concentrations.
    Response: It should be noted that the commentor is citing three 
separate nonattainment areas as if they were one entity. The Grand 
Rapids and Muskegon areas are monitoring attainment of the 8-hour ozone 
NAAQS and EPA has proposed to approve Michigan's requests to 
redesignate these areas to attainment. The Allegan County area 
(Holland) continues to monitor violations of the 8-hour ozone standard. 
Michigan has not requested that the Allegan County area be redesignated 
and this area is not addressed in this rulemaking.
    That being said, as discussed above, neither the CAA nor EPA's 
interpretation of CAA requirements in policy memoranda provide for 
using monitoring data trends or statistical analyses as criteria for 
ascertaining attainment for purposes of redesignation. Section 
107(d)(3)(E) of the CAA allows for redesignation provided that, among 
other things, the Administrator determines that the area has attained 
the applicable NAAQS. As described in detail in the proposed rules, the 
Grand Rapids and Muskegon areas are monitoring attainment of the 8-hour 
ozone NAAQS.
    Furthermore, maintenance plans for Grand Rapids and Muskegon 
project maintenance of the standard through 2018. For Grand Rapids, the 
maintenance plan shows that the area will maintain the standard with 
emissions reductions of 27% and 63% for VOC and NO<INF>X</INF>, 
respectively, between 2002 and 2018. For Muskegon, the maintenance plan 
shows that the area will maintain the standard with emissions 
reductions of 19% and 31% for VOC and NO<INF>X</INF>, respectively, 
between 2005 and 2018. See 71 FR 70925 and 72 FR 707. Moreover, as 
described above in responses to comments, continuing reductions in 
emissions from upwind areas will further contribute to maintenance of 
the standard.
    (15) Comment: EPA granted Michigan's requests to be exempt from 
NO<INF>X</INF> RACT regulation requirements when NO<INF>X</INF> has 
been pointedly and repeatedly implicated in the ozone formation process 
around Lake Michigan. Based on regional modeling performed by the Lake 
Michigan Air Directors Consortium, EPA should retract all 
NO<INF>X</INF> waiver requests involving the areas until such time that 
the associated NO<INF>X</INF> control measures are shown to be 
completely ineffective at addressing ozone air quality improvement in 
all areas impacted by those emissions.
    Response: EPA approved section 182(f) NO<INF>X</INF> waivers for 
the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie 
County, Huron County, and Mason County areas on June 6, 2006 (71 FR 
32448). The issuance of NO<INF>X</INF> waivers for these areas is not 
at issue in this rulemaking. This comment would have more appropriately 
been submitted in response to the proposal to grant these waivers. The 
comment is not relevant to this redesignation action.
    (16) Comment: There is not now any guarantee that a regional 
program will be adopted and implemented because areas in Region 5 are 
being allowed to be redesignated without viable maintenance plans that 
acknowledge the need for a comprehensive regional plan.
    Response: The role of a redesignation action is to address air 
quality and regulatory requirements in an individual nonattainment 
area, and not to serve as a mechanism to address regional air quality 
issues. As noted above, MDEQ has included in its maintenance plans, 
control measures which the state has the authority to adopt and 
enforce. EPA has reviewed these maintenance plans and found that they 
provide for maintenance of the ozone standard in accordance with 
sections 175A and 107(d)(3)(E). MDEQ does not have the authority to 
adopt and enforce measures to control sources located in other states. 
Neither does it have the authority to unilaterally compel other states 
to participate in the adoption and implementation of a regional control 
program. It would be inappropriate for the State to include in its 
maintenance plans contingency measures that it could neither adopt nor 
enforce.
    That being said, the redesignation of areas does not prohibit 
states from working together to ensure regional attainment and 
maintenance of the NAAQS. Indeed, it is in the states' best interest to 
do so. Section 110(a)(2)(D)(i) of the CAA requires states to include in 
their SIPs adequate provisions to prohibit any source or emissions 
activity within the state from emitting any air pollutant in amounts 
which will ``contribute significantly to nonattainment in, or interfere 
with maintenance by, any other State with respect to any such national 
primary or secondary ambient air quality standard.* * *'' The 
participation by states in multi-state regional planning facilitates 
the evaluation of states' responsibilities regarding this section of 
the CAA and promotes a cohesive plan for regional attainment and 
maintenance of the NAAQS. In fact, Michigan continues to participate in 
regional planning efforts through the Lake Michigan Air Director's 
Consortium.
    Redesignation of an area does not insulate it from the requirements 
or protection of section 110(a)(2)(D). Section 126 is also available to 
states to petition for redress if sources in an upwind state contribute 
significantly to nonattainment, or interfere with maintenance, of a 
NAAQS in the state. See prior responses to comments.
    In addition, as noted in prior responses to comments, regional 
emissions reductions due to the NO<INF>X</INF> SIP call, CAIR, and 
other regulations including the NLEV program, Tier 2 emission standards 
for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, 
and heavy-duty diesel engine standards will result in continued 
improvement in air quality throughout the region.
    (17) Comment: There are not new controls on the books that will 
provide for demonstrated permanent air quality improvement by the 
expected attainment dates of 2007, 2009 and 2010.
    Response: The Grand Rapids, Kalamazoo-Battle Creek, Lansing-East 
Lansing, Muskegon, Benton Harbor, Flint, Benzie County, Cass County, 
Huron County, and Mason County areas are all monitoring attainment of 
the 8-hour ozone NAAQS. Therefore, future attainment dates are 
irrelevant to the

[[Page 27433]]

redesignation. Moreover, as discussed in the proposals, 71 FR 70921 
(December 7, 2006) and 72 FR 704-705 (January 8, 2007), Michigan has 
shown that the improvement in air quality is due to permanent and 
enforceable emissions reductions. Emission reductions from within the 
areas as well as regional reductions from upwind areas are responsible 
for attainment. Reductions in VOC and NO<INF>X</INF> emissions have 
occurred in Michigan, as well as in upwind areas as a result of Federal 
emission control measures, with additional emission reductions expected 
to occur in the future. Federal emission control measures include: The 
NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur 
limits, low sulfur diesel fuel standards, and heavy-duty diesel engine 
standards. In compliance with EPA's NO<INF>X</INF> SIP call, Michigan 
developed rules to control NO<INF>X</INF> emissions from Electric 
Generating Units (EGUs), major non-EGU industrial boilers, and major 
cement kilns. Illinois and Indiana have also adopted and implemented 
regulations to comply with the NO<INF>X</INF> SIP call which have 
resulted in a reduction in NO<INF>X</INF> emissions. While Wisconsin 
was not subject to the NO<INF>X</INF> SIP call, the state has adopted 
NO<INF>X</INF> regulations to meet rate of progress requirements. The 
emission reductions from all of these programs are permanent and 
enforceable. Furthermore, MDEQ's maintenance plans show continued 
reductions in ozone precursor emissions through 2018. EPA believes that 
the maintenance plans meet the requirements of sections 175A and 
107(d)(3)(E). Future emissions reductions can be expected both in 
Michigan and in upwind areas from programs including the NLEV program, 
Tier 2 emission standards for vehicles, gasoline sulfur limits, low 
sulfur diesel fuel standards, heavy-duty diesel engine standards, clean 
air non-road diesel rule and CAIR.
    (18) Comment: The string of 4 monitors going into and downwind of 
the heart of the Grand Rapids metro area depends on the Holland 
(Allegan County) site being the lakeshore site. There is no lakeshore 
monitor in Ottawa County. If there were, it would clearly indicate 
ozone values closer to the levels monitored in the adjacent county 
north (Muskegon) or the adjacent county south (Allegan).
    Response: It should be noted that the ozone monitor in Muskegon 
County (the Muskegon area) is monitoring attainment of the ozone NAAQS; 
the monitor located in Allegan County is not. Michigan has not 
requested that the Allegan County area be redesignated and this area is 
not addressed in this rulemaking. EPA believes that the monitoring 
network for the Grand Rapids area satisfies the requirements of 40 CFR 
part 58, appendix D. The EPA has approved the Grand Rapids monitoring 
network as adequate and has not required a lakeshore monitor in Ottawa 
County. There is no basis on which to speculate what such a monitor 
would record if it were in place, and it would be inappropriate for EPA 
to use such speculation as a criterion for redesignation. As discussed 
above, section 107(d)(3)(E) of the CAA allows for redesignation 
provided that, among other things, the Administrator determines that 
the area has attained the applicable NAAQS. An area is considered to be 
in attainment of the 8-hour ozone standard if the 3-year average of the 
fourth-highest daily maximum 8-hour average ozone concentrations 
measured at each monitor within an area over each year does not exceed 
0.084 ppm. The Grand Rapids area is monitoring attainment of the 8-hour 
ozone NAAQS, based on that criterion.
    (19) Comment: EPA had previously approved Michigan's ozone 
monitoring plans with the understanding that the Grand Rapids metro 
area would be designated as a single area including all 4 counties 
(Allegan, Kent, Ottawa and Muskegon counties). All the counties contain 
urbanized areas and their metropolitan connections are clear in the 
driving/commuting and emissions statistics. EPA understood this when 
proposing the 8-hour designations based on the full metropolitan area. 
EPA utilized technical justifications for splitting the area into 
separate pieces that do not fit the criteria required in EPA's standing 
guidance. However, if the EPA feels the need to split the areas, then 
it should require a more protective monitor location for a monitor in 
Ottawa County. If classification is based on either the Holland or 
Muskegon site, then that test is met.
    Response: There is nothing in the record that supports the 
commentor's allegation. Michigan has been operating an approved 
monitoring network over the entire time period in question. EPA 
believes that the monitoring network for the Grand Rapids area 
satisfies the requirements of 40 CFR part 58, appendix D. EPA 
designated and classified the four counties as three separate areas 
(Grand Rapids, Muskegon, and Allegan County) under both the 1-hour 
ozone standard (56 FR 56778, November 6, 1991) and the 8-hour ozone 
standard (69 FR 23910-23911, April 30, 2004), based on the ozone 
monitoring data for each respective area. The 8-hour ozone 
designations, including area boundaries and the underlying monitoring 
data used for such designations, are not at issue in this rulemaking. 
Comments regarding the appropriateness of the 8-hour ozone designations 
would have more appropriately been submitted during the designation 
process. They are not relevant to a rulemaking on the redesignation of 
the area.
    Grand Rapids has an approved adequate monitoring network, and the 
monitors in Muskegon and Allegan are not relevant to making an 
attainment determination for Grand Rapids.
    (20) Comment: The two-year average of fourth high 8-hour averages 
for Muskegon exceeds 0.085 ppm. According to the maintenance plan for 
Muskegon, MDEQ has six months from the close of the ozone season to 
review the circumstances leading to the high monitored values. This 
review should be completed by April 1, 2007. Will the review be 
completed by this date? What has MDEQ concluded?
    Response: Neither the CAA nor EPA policy memoranda contain the 
requirement that a state begin to implement a maintenance plan that has 
not yet been approved into the SIP, much less establish its 
implementation as a criterion for redesignation. The State will be 
required to implement its maintenance plans when they are approved as 
revisions to the SIP.

III. What Are Our Final Actions?

    EPA is taking several related actions. EPA is making determinations 
that the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East 
Lansing, Muskegon, Benton Harbor, Benzie County, Cass County, Huron 
County, and Mason County areas have attained the 8-hour ozone NAAQS. 
EPA is also approving the State's requests to change the legal 
designations of the Flint, Grand Rapids, Kalamazoo-Battle Creek, 
Lansing-East Lansing, Muskegon, Benzie County, Cass County, Huron 
County, and Mason County areas from nonattainment to attainment for the 
8-hour ozone NAAQS. EPA is also approving as SIP revisions Michigan's 
maintenance plans for the areas (such approval being one of the CAA 
criteria for redesignation to attainment status). Additionally, EPA is 
finding adequate and approving for transportation conformity purposes 
the 2018 MVEBs for the Flint, Grand Rapids, Kalamazoo-Battle Creek, 
Lansing-East Lansing, Muskegon, Benzie County, Cass County, Huron 
County, and Mason County areas. With respect to EPA's approval of the 
redesignation of each area and approval of its associated maintenance 
plan and

[[Page 27434]]

MVEB's, EPA construes such actions as separate and independent from 
EPA's actions concerning the other areas subject to this rulemaking. 
Thus any challenge to EPA's action with respect to an individual area 
shall not affect EPA's actions with respect to the other areas named in 
this notice.
    EPA finds that there is good cause for these actions to become 
effective immediately upon publication because a delayed effective date 
is unnecessary due to the nature of a redesignation to attainment, 
which relieves the area from certain CAA requirements that would 
otherwise apply to it. The immediate effective date for this action is 
authorized under both 5 U.S.C. 553(d)(1), which provides that 
rulemaking actions may become effective less than 30 days after 
publication if the rule ``grants or recognizes an exemption or relieves 
a restriction'' and section 553(d)(3) which allows an effective date 
less than 30 days after publication ``as otherwise provided by the 
agency for good cause found and published with the rule.'' The purpose 
of the 30-day waiting period prescribed in 553(d) is to give affected 
parties a reasonable time to adjust their behavior and prepare before 
the final rule takes effect. Today's rule, however, does not create any 
new regulatory requirements such that affected parties would need time 
to prepare before the rule takes effect. Rather, today's rule relieves 
the State of planning requirements for these 8-hour ozone nonattainment 
areas. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) 
for these actions to become effective on the date of publication of 
these actions.

IV. Statutory and Executive Order Review

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget.

Executive Order 12898: Environmental Justice

    Executive Order 12898 establishes a Federal policy for 
incorporating environmental justice into Federal agency actions by 
directing agencies to identify and address, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority and 
low-income populations. Today's actions do not result in the relaxation 
of control measures on existing sources and therefore will not cause 
emissions increases from those sources. Overall, emissions in the areas 
are projected to decline following redesignation. Thus, today's actions 
will not have disproportionately high or adverse effects on any 
communities in the area, including minority and low-income communities

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

    This action merely approves state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Redesignation of an area to attainment under 
section 107(d)(3)(E) of the Clean Air Act does not impose any new 
requirements on small entities. Redesignation is an action that affects 
the status of a geographical area and does not impose any new 
regulatory requirements on sources. Accordingly, the Administrator 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1505).

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    Executive Order 13175 (65 FR 67249, November 9, 2000) requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' EPA has consulted with interested 
tribes in Michigan to discuss the redesignation process and the impact 
of a change in designation status of these areas on the tribes. 
Accordingly, EPA has complied with Executive Order 13175 to the extent 
that it applies to the action.

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). Redesignation is an action that merely affects the status of 
a geographical area, does not impose any new requirements on sources, 
or allows a state to avoid adopting or implementing other requirements, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it approves a state rule implementing a 
Federal Standard.

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272, requires Federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing program submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. Absent a 
prior existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a program submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program submission that otherwise satisfies the provisions of the 
Act. Redesignation is an action that affects the status of a 
geographical area but does not impose any new requirements on sources. 
Thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

[[Page 27435]]

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under Section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 16, 2007. 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Volatile 
organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: May 8, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart X--Michigan

0
2. Section 52.1170(e) is amended by adding entries to the table to read 
as follows:


Sec.  52.1170  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
  Name of nonregulatory SIP    Applicable geographic                         EPA approval
          provision            or nonattainment area  State submittal date       date             Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
8-hour ozone maintenance plan  Grand Rapids (Kent     5/9/06, 5/26/06, and       5/16/2007
                                and Ottawa             8/25/06
                                Counties), Kalamazoo-
                                Battle Creek
                                (Calhoun, Kalamazoo,
                                and Van Buren
                                Counties), Lansing-
                                East Lansing
                                (Clinton, Eaton, and
                                Ingham Counties),
                                Benzie County, Huron
                                County, and Mason
                                County.
8-hour ozone maintenance plan  Flint (Genesee and     6/13/06, 8/25/06,          5/16/2007  ....................
                                Lapeer Counties),      and 11/30/06
                                Muskegon (Muskegon
                                County), Benton
                                Harbor (Berrien
                                County), and Cass
                                County.
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.1174 is amended by adding paragraphs (x) and (y) to read 
as follows:


Sec.  52.1174  Control strategy: Ozone.

* * * * *
    (x) Approval--On May 9, 2006, Michigan submitted requests to 
redesignate the Grand Rapids (Kent and Ottawa Counties), Kalamazoo-
Battle Creek (Calhoun, Kalamazoo, and Van Buren Counties), Lansing-East 
Lansing (Clinton, Eaton, and Ingham Counties), Benzie County, Huron 
County, and Mason County areas to attainment of the 8-hour ozone 
National Ambient Air Quality Standard (NAAQS). The State supplemented 
its redesignation requests on May 26, 2006, and August 25, 2006. As 
part of its redesignation requests, the State submitted maintenance 
plans as required by section 175A of the Clean Air Act. Elements of the 
section 175 maintenance plan include a contingency plan and an 
obligation to submit subsequent maintenance plan revisions in 8 years 
as required by the Clean Air Act. If monitors in any of these areas 
record a violation of the 8-hour ozone NAAQS, Michigan will adopt and 
implement one or more contingency measures. The list of possible 
contingency measures includes: Lower Reid vapor pressure gasoline 
requirements; reduced volatile organic compound (VOC) content in 
architectural, industrial, and maintenance coatings rule; auto body 
refinisher self-certification audit program; reduced VOC degreasing 
rule; transit improvements; diesel retrofit program; reduced VOC 
content in commercial and consumer products rule; and a program to 
reduce idling. Also included in the Michigan's submittal were motor 
vehicle emission budgets (MVEBs) for use to determine transportation 
conformity in the areas. For the Grand Rapids area, the 2018 MVEBs are 
40.70 tpd for VOC and 97.87 tpd for oxides of nitrogen 
(NO<INF>X</INF>). For the Kalamazoo-Battle Creek area, the 2018 MVEBs 
are 29.67 tpd for VOC and 54.36 tpd for NO<INF>X</INF>. For the 
Lansing-East Lansing area, the 2018 MVEBs are 28.32 tpd for VOC and 
53.07 tpd for NO<INF>X</INF>. For the Benzie County area, the 2018 
MVEBs are 2.24 tpd for VOC and 1.99 tpd for NO<INF>X</INF>. For the 
Huron County area, the 2018 MVEBs are 2.34 tpd for VOC and 7.53 tpd for 
NO<INF>X</INF>. For the Mason County area, the 2018 MVEBs are 1.81 tpd 
for VOC and 2.99 tpd for NO<INF>X</INF>.
    (y) Approval--On June 13, 2006, Michigan submitted requests to 
redesignate the Flint (Genesee and Lapeer Counties), Muskegon (Muskegon 
County), Benton Harbor (Berrien County), and Cass County areas to 
attainment of the 8-hour ozone National Ambient Air Quality Standard 
(NAAQS). The State supplemented its redesignation requests on August 
25, 2006, and November 30, 2006. As part of its redesignation requests, 
the State

[[Page 27436]]

submitted maintenance plans as required by section 175A of the Clean 
Air Act. Elements of the section 175 maintenance plan include a 
contingency plan and an obligation to submit subsequent maintenance 
plan revisions in 8 years as required by the Clean Air Act. If monitors 
in any of these areas record a violation of the 8-hour ozone NAAQS, 
Michigan will adopt and implement one or more contingency measures. The 
list of possible contingency measures includes: Lower Reid vapor 
pressure gasoline requirements; reduced volatile organic compound (VOC) 
content in architectural, industrial, and maintenance coatings rule; 
auto body refinisher self-certification audit program; reduced VOC 
degreasing rule; transit improvements; diesel retrofit program; reduced 
VOC content in commercial and consumer products rule; and a program to 
reduce idling. Also included in the Michigan's submittal were motor 
vehicle emission budgets (MVEBs) for use to determine transportation 
conformity in the areas. For the Flint area, the 2018 MVEBs are 25.68 
tpd for VOC and 37.99 tpd for oxides of nitrogen (NO<INF>X</INF>). For 
the Muskegon area, the 2018 MVEBs are 6.67 tpd for VOC and 11.00 tpd 
for NO<INF>X</INF>. For the Benton Harbor area, the 2018 MVEBs are 9.16 
tpd for VOC and 15.19 tpd for NO<INF>X</INF>. For the Cass County area, 
the 2018 MVEBs are 2.76 tpd for VOC and 3.40 tpd for NO<INF>X</INF>.

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

0
2. Section 81.323 is amended by revising the entries for Benton Harbor, 
MI: Berrien County; Benzie Co., MI: Benzie County; Cass County, MI:, 
Cass County; Flint, MI: Genesee and Lapeer Counties; Grand Rapids, MI: 
Kent and Ottawa Counties; Huron Co., MI: Huron County; Kalamazoo-Battle 
Creek, MI: Calhoun, Kalamazoo, and Van Buren Counties; Lansing-East 
Lansing, MI: Clinton Eaton, and Ingham Counties; Mason Co., MI, Mason 
County; Muskegon, MI: Muskegon County in the table entitled 
``Michigan--Ozone (8-Hour Standard)'' to read as follows:


Sec.  81.323  Michigan.

* * * * *

                                        Michigan--Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
                                             Designation a                           Classification
         Designated area         -------------------------------------------------------------------------------
                                     Date \1\             Type               Date \1\                Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Benton Harbor, MI:
    Berrien County..............       5/16/2007  Attainment.........
Benzie County, MI:
    Benzie County...............       5/16/2007  Attainment.........
 
                                                  * * * * * * *
Cass County, MI:
    Cass County.................       5/16/2007  Attainment.........
 
                                                  * * * * * * *
Flint, MI:
    Genesee County..............       5/16/2007  Attainment.........
    Lapeer County...............
Grand Rapids, MI:
    Kent County.................       5/16/2007  Attainment.........
    Ottawa County...............
 
                                                  * * * * * * *
Huron County, MI:
    Huron County................       5/16/2007  Attainment.........
 
                                                  * * * * * * *
Kalamazoo-Battle Creek, MI:
    Calhoun County..............       5/16/2007  Attainment.........
    Kalamazoo County............
    Van Buren County............
Lansing-East Lansing, MI:
    Clinton County..............       5/16/2007  Attainment.........
    Eaton County................
    Ingham County...............
Mason County, MI:
    Mason County................       5/16/2007  Attainment.........
 
                                                  * * * * * * *
Muskegon, MI:
    Muskegon County.............       5/16/2007  Attainment.........
 
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
a Includes Indian Country located in each county or area, except as otherwise specified.
1 This date is June 15, 2004, unless otherwise noted.



[[Page 27437]]

 [FR Doc. E7-9289 Filed 5-15-07; 8:45 am]
BILLING CODE 6560-50-P


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