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

judicial review; nor does it extend the time within which a petition forjudicial review may be filed, or postpone the effectiveness ofthis rule.This action may notbe challenged laterin proceedings to enforce itsrequirements (seesection 307(b)(2)).

Nothing in this action shallbe construed aspermitting, allowing, or establishing a precedent for any future request for a revision to any SIP. Each request forrevision to the SIPshall be considered separately in light ofspecific technical, economic, and environmental factors and in relation torelevant statutory andregulatory requirements.

SIP approvals under section 110 and subchapter I,part Dofthe CAA donot create any new requirements, but simply approve requirements thatthe Stateis already imposing. Therefore, because the Federal SIP-approval does not impose any new requirements. I certify that it doesnot have a significant impact on small entities. Moreover, due to the nature ofthe Federal-State relationship under the CAA, preparation ofaregulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness ofState action.The CAA forbids EPA from basing its actions concerning SIPs on such grounds. UnionElectricCo.v. U.S. 

### E.P.A.,427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section 7410(a)(2). The Office ofManagement and Budget has exempted thisaction from review under Executive Order 12866.
Lilt ofSubjects in40 CFRParts 52and 81Environmental protection, Air pollution control, Area designations, Hydrocarbons, Incorporation by reference, Intergovernmental regulations, National parks,Reporting and recordkeeping, Ozone, Volatile organic compounds,and Wilderness

areas.

Dated: February 22, 1995. 

### JaneN.Saginaw, Regional Administrator (6A). 

### 40 CFR parts 52 and 81 are amended

as follows:

PART 52--AMENDED]

1.The authority citation forpart 52 continuesto read asfollows:

Authority: 42 U.S.C. 7401-7671q. 

### Subpart SS-Texas

2. Section 52.2275 is amended by adding paragraph (e)toread as follows:
§52.2275 Control strategy and regulations:Ozone. (e) Approval-The Texas Natural Resource Conservation Commission (TNRCC) submitted an ozone redesignation request and maintenance plan on July 27, 1994, requesting that the Victoria County ozone nonattainment area beredesignated to attainment for ozone. Both the redesignation request and maintenance plan were adopted by TNRCC in Commission Order No. 94-29 on July 27, 1994. The redesignation request and maintenance plan meet the redesignation requirements in section 107(d)(3)(E) ofthe Act as amended in 1990. Theredesignation meets the Federal requirements ofsection 182(a)(1) ofthe Clean AirAct as a revision to the Texas Ozone State. Implementation Plan for Victoria County.The EPA approved the request for redesignation to attainment with respectto ozone for Victoria County on May 8, 1995.

PART 81-[AMENDED]

1.The authority citation for part 81 continues toread as follows:

Authority: 42 U.S.C. 7401-7871q.

2. In Section 81.344, the attainment
status designation table forozone is amended by revising the entry for Victoria County under "Designated Area" to read as follows:
§81.344 Texas.

* * *r * *

TEXAS--OZONE

Des- DClassification ignate Designa- ignaed dte -Date
area 

### ton date Type type

Victoria May 8, Attainment.

Area, 1995.VictoriaCounty.

IFR Doc. 95-5347 Filed 3-6-95; 8:45am]
BILUNG CODE 6860-60-P

40 CFR Parts 52 and 81

[M121-04-6753, MI18-03-6754; FRL--5160-6]
Approval and Promulgation of Implementation Plans and Designation of Areas for AirQuality Planning" Purposes; State of Michigan

AGENCY: United States Environmental Protection Agency (USEPA). ACTION: Final rule.

SUMMARY: On July 21, 1994 the USEPA published a proposal to approve the 1990 base year emission inventory, basic vehicle inspection and maintenance (I/M) and the redesignation to attainment and associated section 175A maintenance plan for the ozone National Ambient Air Quality Standard (NAAQS) for the seven-county Detroit-Ann Arbor, Michigan area as a State Implementation Plan (PIP) revisions. The 30-day
comment period concluded on August 22, 1994. A total of 72 comment letters

werereceived inresponse to theJuly 21, 1994 proposal, 62 favorable, 9 adverse and 1request to extend the comment period. On September 8, 1994, however, the USEPA published acorrection document and 15-day extension ofthe
comment period as a result ofthe inadvertent omission of anumber of lines from the July 21, 1994 proposal. The reopened comment period concluded on September 23, 1994. An additional 25 comment letters were received inresponse to the September 8, 1994, extension ofpublic comment period regarding the July 21, 1994 proposal approval, 2 favorable, 22 adverse and 1 informational. This final rule summarizes all comments and USEPA's responses, and finalizes the approval ofthe 1990 base year emission inventory, and basic I/M, and the redesignation to attainment forozone and associated section 175A maintenance plan for the Detroit-Ann Arbor area. EFFECTIVE DATE: Thisaction will be effective April 6, 1995. ADDRESSES: Copies ofthe SIP revisions, public comments and USEPA's responses are available for inspection at the following address: (It is recommended that you telephone Jacqueline Nwia at (312) 886-6081 before visiting the Region 5 Office.) United StatesEnvironmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. FOR FURTHER INFORMATION CONTACT: Jacqueline Nwia, Regulation Development Section (AT-18J), Air Toxics and Radiation Branch, Air and Radiation Division, United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312) 886-6081.

SUPPLEMENTARY INFORMATION:

I. Background Information

The 1990 base year emission inventory, basic I/M, and redesignation 

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### 12460 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

request and maintenance plan discussed in thisrule were submitted onJanuary 5, 1993 (withrevisions onNovember 15, 1993), November 15, 1994 and November 12, 1994, respectively, by the Michigan Department ofNatural Resources (MDNR) for the Detroit-Ann Arbor moderate ozone nonattainment

area. The Detroit-Ann Arbor area consists ofLivingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne counties. On July 21, 1994, (59 FR 37190) the USEPA published a proposal to approve the 1990 base'year emission inventory, basic I/M, and redesignation request and associated section 175A maintenance plan as revisions to the Michigan ozone SIP. On September 8, 1994 (59 FR 46479 and 46380), the USEPA published a correction notice and 15-day extension ofthe comment period as aresult ofthe inadvertent omission ofa number of lines from the July 21, 1994 proposal. Adverse comments were received regarding the proposed rule. The final rule contained in this Federal Register addresses the comments which were received during the public comment periods and announces USEPA's final action regarding the 1990 base year emission inventory, basic I/M, and redesignation and section 175A 

### maintenance plan for the Detroit-Ann Arbor area. A more detailed discussion in response to each comment is contained inthe USEPA's Technical Support Document (TSD), dated February 3, 1995 from Jacqueline Nwia
to the Docket, entitled "Response to Comments on the July 21, 1994 Proposal
to Approve the 1990 BaseYear Emission Inventory, Basic I/M, and Redesignation
to Attainment for Ozone and Section 175A Maintenance Plan forthe DetroitAnn ArborArea," which is available from the Region 5office listed above.

II.Public Comments andUSEPA Responses andFinal Rulemaking Actions

Table ofContents

A. 1990 BaseYear Emission Inventory

1.Public Comments and USEPA Response II.FinalRulemaking Action B.Inspection and Maintenance

I.Public Comments andUSEPA Response II.FinalRulemaking Action C.Redesignation 1.Public Comments and USEPA Response II.Final Rulemaking Action A. 1990Base YearEmissionInventory

I.Public Comments and USEPA Responses

The following discussion summarizes and responds to the comments received regarding the 1990 base year emission inventory.

Comment

Two commentors note an error in the 1990 base year emission inventory portion ofthe proposed action. One of these commentors notes that the total
tons ofvolatile organic compounds (VOC) per summer weekday emitted from non-road mobile sources is listed

as 531.03 for this source category. The
correct number submitted by MDNR is 111.67.

USEPA Response

The USEPA acknowledges this error. The VOC emissions per summer weekday fromthe non-road mobile

source category in the July 21, 1994 proposal (p. 37192) will be changed to reflect the number submitted by MDNR, 111.67. In addition, the total tons of VOC per summer weekday in the same table will bechanged to 971.92. The Daily VOC Emissions table is changed and appears as follows:

DAILY VOC EMISSIONS FROM ALL SOURCES-TONS/SUMMER WEEKDAY

On-road Non-road orc Area source mobile mobile Biogenic Total emis- emssons emissions source source emissions sions emissions emissions emmissions

Detroit/Ann Arbor

.............................................................. 167.08 252.27 327.00 111.67 113.90 971.92

II. Final Rulemaking Action

The USEPA approves the ozone emission inventory SIP submitted tothe USEPA for the Detroit-Ann Arbor area

as meeting the section 182(a)(1) requirements ofthe Clean Air Act (Act) foremission inventories.

B.InspectionandMaintenance

I. Public Comments and USEPA Responses

The following discussion summarizes and responds to thecomments received regarding Inspection and Maintenance.

Comment

One commentor suggests that the USEPA's redesignation decision should be explicitly conditioned upon the requirement for the Michigan Department ofTransportation to implement enhanced I/M 240 as a contingency measure. At abare minimum, the maintenance plan should include the BAR 90 emissions test with visual anti-tampering check forall cars

newer than 1975 with noMedicaid waiver.

USEPAResponse

The Actrequires that nonattainment

areas classified as moderate adopt and submit as a SIP revision provisions for implementation ofabasic I/M program. See sections 182(a)(2)(B)(i) and (b)(4). Since the Detroit-Ann Arbor area was classified asmoderate nonattainment for

ozone, the Act requires an I/M program that meets the basic I/M performance standard. The Detroit-Ann Arbor area has implemented an I/M program since 1986, as required by the pre-1990 Act. The area, therefore, must provide for upgrades to the current I/M program to the level ofabasic I/M program. Under
recent revisions to thenational I/M rule (January 5, 1995, 60FR 1735), however,

areas that have requested redesignation
to attainment, and are otherwise eligible
to obtain approval ofthe request, may deferadoption and implementation of 

### otherwise applicable requirements established in the originally promulgated I/Mrule'. The State was required to submit and has submitted,

as a contingency measure within the 

### section 175A maintenance plan a commitment, legislative authority and

an enforceable schedule for adoption and implementation ofabasic I/M
program. The contingency plan is described in detail in a subsequent USEPA response within this Federal 

### Register.

Comment



### One commentor requests that the USEPA delay approval ofthe redesignation request until Michigan's Joint Committee on Administrative 

### Rules completes its review ofthe I/M legislation and the USEPA confirms that the essential elements listed at 59 FR

II/M rule was promulgated on November 5, 1992. 57 FR52950.

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

37193-94 regarding basic I/M, upon which redesignation approval relies, are still in place.

USEPAResponse



### The USEPA cannot delay approval of the redesignation, since Michigan has submitted the elements required and necessary to establishbasic I/M as a contingency measure inthe section 175A maintenance plan as provided for bythe revisions to thenational I/Mrule. As presented in the July 21, 1994 proposal, theState submittal contains the essential elements listed at 59 FR 37193-94. 

### Basic I/M; ifimplemented as
a contingency measure, may be implemented inWayne, Oakland, and Macomb counties and expanded to Washtenaw county.

Comment



### One commentor is concerned that expanding upgraded 2

### basic I/Mto Washtenaw, St.Clair, Livingston and Monroe counties is subject to potential legislative veto after the need for contingency measures istriggered. The commentor states thatbecause Michigan's legislature canunilaterally rescind the provisions to extend basic I/Mprograms toWashtenaw, St.Clair, Livingston and Monroe counties (1993 

### Mich. Pub. Act 232 §8(2)(c) &(d)), Michigan's provisions do not appear to meet eventhe relaxed standards proposed'in theJune 28, 1994 revisions to the national I/Mrule, 59 FR33237,

asbeing fully self-implementing and enforceable under all circumstances. Therefore, Michigan's basic I/MSIP is not complete or approvable. Consequently, the Detroit-Ann Arbor

area is noteligible forredesignation.

USEPAResponse



### Sections 8(2)(c) and (d)ofMichigan's Enrolled House Bill 5016 only apply if the redesignation request is disapproved andbasic I/M must be implemented in the entire 7-county Detroit-Ann Arbor

area (Wayne, Oakland, Macomb,

2The Act requires States to make changes to improve existing I/M programs or implement new

ones. Section 182(a)(2)(B}{i) requires States to submit SIPrevisions for any ozone nonattainment

area which has been classified as marginal, pursuant to section 181(a) oftheAct, with an existing I/M program that was part ofa SIPprior
to enactment ofthe Act or any area thatwas required by the Act, as amended in 1977, to have

an I/M program, to bring the program up to the level required in pre-1990 USEPA guidance, or to what had been comfmitted to previously in the SIP, whichever was more stringent. Areas classified as moderate and worse were also subject to this requirement to improve programs to this level. The Detroit-Ann Arbor area, a moderate ozone nonattainment area; had in effect an I/M program pursuant to the 1977 Act. The area, therefore, was required to improve its'existing I/Mprogram to meet the basic I/M program requirements. Washtenaw, St. Clair, Livingston, and Monroe counties). The 45-day notification period in section 8(2)(d) of Michigan Enrolled House Bill 5016 is only applicable, as described in section 8(2)(c), ifthe redesignation is not approved and the State must implement basic I/M to meet the section 182(b) requirements. Clearly, the 45-day notification period is not applicable for implementation ofI/M as acontingency

measure. It is important to acknowledge that onlynotification to the legislature is required, and that no affirmative action on the part ofthe legislature is necessary to allow the program tobe implemented. In addition, States at any time are able to amend existing rules and/or regulations for any required program as amatter ofState law. This ability is not a reason for disapproval of any State submittal because such unilateral State action would not affect the Federal enforceability ofthe version ofthe State law orregulation the USEPA had approved into the SIP. The I/M legislation for the Detroit-Ann Arbor

area satisfies the requirements ofthe revisions to thenational I/Mrule.

Sections 8(2)(a) and (b) ofthe legislation apply ifthe area is redesignated, and basic I/M is implemented as a contingency measure

or as acondition for approval ofthe redesignation request. In particular, section 8(2)(a) provides that basic I/M may be implemented as a contingency

measure in Wayne, Oakland and Macomb county and also expanded to Washtenaw county, if necessary. Together, the basic I/M submittal and redesignation request and the section 175A maintenance plan for the DetroitAnn Arbor area (1) provide for the adoption ofimplementing regulations fora basicI/M program, meeting the national basic I/M requirements without further legislation, (2) provide for the implementation ofbasic I/M upgrades

as acontingency measure in the maintenance plan upon redesignation, (3) contain, as a contingency measure within themaintenance plan, a commitment by the Governor to adopt regulations to implement I/M in response to a specified triggering event, and (4) contain a commitment including

an enforceable schedule for adoption and implementation ofa basic I/M program, as provided in the revisions to the national I/M rule.The revisions to the I/M rule do not, however, require that the basic I/M SIP be fully selfimplementing. Consequently, contrary to the commentor's statement, the basic I/M SIP is complete and approvable and the Detroit-Ann Arbor areais eligible for redesignation. Comment
One commentor states that the USEPA
cannot redesignate the Detroit-Ann Arbor area because Michigan's basic I/M SIP submission does not even satisfy the requirements ofthe USEPA's unlawful policy. Inparticular, the
commentor argues that since the legislature could at any time amend the legislative authority, the USEPA should require the State to submit adopted regulations with abasic I/M SIP. The
commentor further argues that Michigan did not submit a sufficiently specific and enforceable schedule for adoption and implementation ofa basic I/M
program upon a specified triggering
event. The commentor also notes that if" the State has not adopted the regulations necessary to implement the contingency measure, such measure will
not correct any violation promptly as required by the Act and USEPA guidance.

USEPAResponse

The commentor states that the 45-day notice provided in the legislation prior
to implementation ofa required I/M program ensures that the legislature can repeal the legislative authority before it takes effect. This commentor's interpretation ofMichigan's Enrolled House Bill 5016 is incorrect. The 45-day notification period in section 8(2)(d) of Michigan Enrolled House Bill 5016 is only applicable under the scenario described in section 8(2)(c), ifthe redesignation is not approved and the State must implement basic IM to meet the section 182(b) requirements. Thus,

as discussed earlier, the 45-day notification period is not applicable for implementation ofI/M as acontingency

measure.

The USEPA further responds that Michigan has submitted as part ofthe 175A maintenance plan an enforceable schedule for adoption and implementation ofbasic I/M as a contingency measure. Section 6.8.3 of the State's submittal indicates that adoption and implementation schedules for contingency measures wouldbe consistent with those specified in the Act and any corresponding regulations and submitted as part ofthe technical urban airshed modeling (UAM) analysis. The I/M redesignation rule provides the relevant adoption and implementation schedules. Ifthe Governor chooses I/M
to be implemented as tle contingency
measure, under the schedule ofthe I/M redesignation rule Michigan incorporated by reference, the State would need to adopt I/M within one year ofthe trigger date. Michigan's submittal defined the trigger date as the 12461

### 12462 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

date that the State certifies to the USEPA thatthe air quality data are quality assured, which will be nolater than 30 days after an ambient air quality violation is monitored. Pursuant to the I/M redesignation rule, thetrigger date is the date no later than when the USEPA notifies the State ofa violation. As long asthe trigger date as defined by Michigan occurs priorto the date the USEPA notifies the State ofa violation, Michigan's timeframe for implementing I/M as a contingencymeasure is consistent with the I/Mredesignation rule Because it often takes several months for the USEPA to obtain the data and confirm a violation, it is unlikely thatthe trigger date as defined by Michigan willbe later than that defined inthe I/M redesignation rule. However, ifthe USEPA does notify the State ofa violation priorto the State certifying to the USEPA that the ambient air quality data assure a violation, then the trigger date will be the date ofthe USEPA notification to the State, consistent with the I/Mredesignation rule.The basic I/ M program, if selected as a contingency
measure, must be implemented within 24 months ofthe trigger date, or 12 months afterthe adoption of implementing regulations. This schedule is consistent with the I/M redesignation rule, which is the applicable regulation forpurposes of establishing an adoption and implementation schedule. This schedule is specific and enforceable since it will be incorporated intothe SIP

as part ofthe section 175A maintenance plan. The section 175A(d) requirement for contingency provisions is that they must promptly correct aviolation ofthe NAAQS. The USEPA believes thatthe schedule provided for implementation ofabasic I/M program within the Detroit-Ann Arbor area's section 175A maintenance plan is sufficient to address this requirement in light ofthe logistics ofadopting and implementing

abasic I/Mprogram.

The commentor also indicated that the Michigan submittal doesnot satisfy the USEPA's requirement ofa "specified and enforceable schedule" because it does not include a timetable ofsteps necessary to getthe required regulations adopted. As discussed above, because Michigan incorporated by reference the timetable oftheI/M redesignation rule, adoption ofI/Mregulations is specified to occur within one year ofthe trigger date.The only other interim step necessary to get the required regulations adopted is the proposal ofdraft regulations. Although the Michigan submittal did not specify adate forthe proposal, the State's commitment to a date forpromulgation ofthe final rule implies that the draft regulations willbe proposed on a date nolater than that necessary to provide for notice and comment and a hearing onthe draft regulations. Because Michigan's submittal specified a timetable to get the final regulations adopted,the Michigan submittal has metthe requirement to provide a specified and enforceable schedule.

A commentor also suggested that a determination that actual emissions from mobile sources actually exceed thosepredicted in the emission inventories should also be included as
atriggering event. This is neither a requirement oftheAct nor ofUSEPA policy, although ithas been suggested as
a possible triggering event in guidance, and States are encouraged to use it.
Comment

Onecommentor challenges the adequacy ofMichigan's demonstration that its I/M program did not contribute to Southeast Michigan's attainment, and urged reconsideration ofthe proposed elimination ofthe program after 1995.
USEPAResponse

Michigan did notclaim that the current I/M program did notcontribute to the Detroit-Ann Arbor's attainment,

nor did it claim credit forthe emission reductions achieved as a result ofthe program within the attainment demonstration. Furthermore, neither the Statenor the USEPA has proposed or suggested that the current I/M program be eliminated after 1995. In fact, the State must continue to implement its current I/M program as well asall other SIPcontrol measures thatwere contained in the SIP prior to the submittal ofa complete redesignation request.The September Shapiro 3 

### memorandum reviews andreinforces the USEPA's policy on SIPrelaxations, particularly in the context of redesignation. The memorandum notes that theUSEPA's general policy is that

a Statemay notrelax the adopted and implemented SIP foran areaupon the area's redesignation to attainment unless an appropriate demonstration, based on computer modeling, is approved by the USEPA. Existing control strategies must continue to be implemented in orderto maintain the standard. Although section 175A recognizes that SIP measures may be moved to the contingency plan upon redesignation, such a SIPrevision may

3September 17, 1993 memorandum from Michael H. Shapiro, entitled SIPRequirements for Areas Submitting Requests forRedesignation to Attainment oftheOzone andCarbon Monoxide NAAQS on or afterNovember 15, 1992. be approved only ifthe State can adequately demonstrate that such action will not interfere with maintenance of the standard. A demonstration for an

area redesignated to attainment for

ozone would entail submittal ofan attainment modeling demonstration with the USEPA's current Guideline on Air Quality Models, showing that the control measure is not needed to maintain the ozone NAAQS. Also, see memorandum from Gerald A. Emison, April 6, 1987, entitled Ozone Redesignation Policy.

Comment

One commentor states that the USEPA's policy ofapproving a basic I/ M SIP revision that does not include adopted regulations is unlawful.

USEPAResponse

The USEPA's specific response to these comments is published in the USEPA's final rulemaking on the revisions to the national I/Mrule. See January 5, 1995, 60 FR 1735.,In that rulemaking, the commentor also submitted similar remarks and the USEPA's responses to those comments appear in the docket for that rulemaking. It is appropriate for the USEPA to rely on the final I/M rule revisions in taking today's final action, and this rulemaking is not the appropriate forum in which to challenge the validity ofthe I/M rule revisions.

II. Final Rulemaking Action

The USEPA approves the basic I/M program submitted to the USEPA forthe Detroit-Ann Arbor area as meeting the revised national I/M rule (January 5, 1995, 60 FR 1735) for areas redesignated from nonattainment to attainment, consequently satisfying the requirements ofsection 182(a)(2)(B)(i) of the Act.

C.Redesignation

I. Public Comments and USEPA Responses

The following discussion summarizes and responds to the comments received regarding the redesignation ofthe Detroit-Ann Arbor area to attainment for

ozone.
Comment

One commentornotes that if an expeditious review and approval of MDNR's request had occurred prior to the 1994 ozone season, then any ozone violation thereafter would have prompted the implementation ofa contingency measure from the maintenance plan to correct the air quality problem.

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

USEPAResponse

The Act authorizes the USEPA up to 18 months from submittal to act on a State's request to redesignate. See section 107(d)(3)(D). The process for redesignating areas to attainment is a complex one which is designed not only
to identify areas which currently have clean air,but also to assure that clean air willbe maintained in the future. There are many statutory requirements which must be satisfied before the redesignation request can be processed, including review and approval ofall revisions to the SIP for programs whose deadlines came due prior to submittal of the redesignation request to the USEPA. See September Calcagni 4 memorandum and September Shapiro. Before the USEPA could finally redesignate the

area to attainment, all remaining items had tobe finally approved, including: (1)the State regulations forReasonable. Available Control Tlechnology (RACT) for VOC,5 (2) the section 182(f)oxides ofnitrogen (NOx) RACT exemption petition, and 3) revisions to the national
motor vehicle I/M rule. The USEPA could notredesignate the Detroit-Ann Arbor area untilthese actions were finalized. Because all these actions were finalized, the Federal action on the redesignation can be completed. Furthermore, ifa violation had occurred during the pendency ofthe USEPA's review ofthe ozone redesignation request, the USEPA could not approve the request since the area would not have remained in attainment. As a consequence, further control measures would have been required under the Act.

In any case,the commentor's concern is moot, since no violations ofthe ozone NAAQS occurred duringthe 1994 ozone

season.

Comment

. One commentor suggests that redesignation requests should beTable I decisions to ensure national consistency.

USEPA Response

An October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, revised the SIP tables initially published in the Federal Register on January 19, 1989 (54FR 2214). The USEPA revised these tables in conjunction with the Office of

4September 4, 1992 memorandum fromJohn Calcagni, entitled Procedures forProcessing RequeststoRedesignate AreastoAttainment.

IThe VOCRACT rules were approved in a final rulemaking published on September 7, 1994 in the Federal Register (59 FR 46213 and46182). Management and Budget (OMB). The revisionsclassified allredesignation, except those for total suspended particulate, asTable 2 actions. These actions require the Regional Administrator's decisions and

concurrence, but provide a 40-day opportunity for Headquarters review before concurrence by the Regional Administrator. The 40-day Headquarters review is intended to function as a check for national consistency and the USEPA believes that this system provides adequate assurances of consistency.

Comment

One commentor notes that the USEPA's proposed redesignation relies

on data from 1993 which was not included in Michigan's November 12, 1993 request, and was not subject to public comment. Further, there is an inconsistency between the years offered by Michigan as abasis for redesignation 1990-92 and the years selected by the USEPA as the basis forconsidering and actually proposing the redesignation (1991-1993). Therefore, Michigan's redesignation request was not "complete" on.November 12, 1993..

USEPAResponse

As stated in the proposed rulemaking, Michigan submitted ambient data for 1990-1992 in its November 12, 1993 submission, butdid not submit 1993

ozone data because it was not completely quality-assured atthe time the request was being developed. Under the guidance of theUSEPA, the State submitted the 3 mostrecent consecutive years ofcomplete air monitoring data (1990-1992), with the understanding that shortly thereafter, the 1993 ozone
season data would be available in.AIRS for the USEPA to review. The 1993

ozone data was considered by the USEPA and was subject to public
comment as a result ofthe July 21, 1994 proposed rulemaking. Regardless of which years ofdata are used, 1990-1992

or 1991-1993, Michigan has demonstrated attainment ofthe ozone NAAQS in theDetroit-Ann Arbor area by providing monitoring data with no violations. Completeness ofa SIP submittal isbased on the criteria established in 40CFR part 51, appendix V. Using these, the USEPA found the November 12, 1993 submittal complete in a letter to Michigan dated January 7, 1994. The use of1993 ozone season data that was not completely quality-assured
at the time ofthe November 12, 1993 submission does not alterthe conclusion that the submission, which the USEPA found complete was based on 3 consecutive years ofair monitoring data.

Comment

One commentator alleges that USEPA's notice of proposed approval of the redesignation is a product ofundue haste since the action was incomplete and failed to give adequate notice of plans for verification ofcontinued attainment. The action skips portions of paragraph (b) Demonstration of Maintenance and paragraph (C) Verification ofContinued Attainment on pages 37198-37199. In addition, three paragraphs on page 37198 duplicate text

on page 37197.

USEPA Response

The omission ofparagraph (B) and (C) and duplicated text is acknowledged. Unfortunately, the Office ofFederal Register, inadvertently excluded a number oflines from these two sections ofthe action. For this reason, the

. comment period on the July 21, 1994, redesignation was reopened on 

### September8, 1994, (59 

### FR 46479 

### and 46380) for 15 days in order to provide thepublic an opportunity to appropriately comment on it.

Comment

One commentor requested additional time for reviewing and providing
comments on the proposed redesignation due to insufficient time to comment on such a complex proposal..

USEPA Response

As discussed above, the comment period was extended for the redesignation and section 175A maintenance plan in orderto give the public sufficient time to review and to submit comments. The correction document and extension ofpublic
comment period action were published

on September 8, 1994. The USEPA does
notbelieve that any additional extension oftime is necessary as an adequate comment period has already been provided.

Comment

One commentor requested a formal USEPA public hearing on the redesignation.

USEPAResponse

Under the Act,States can submit proposed implementation plans (and revisions) to the USEPA for approval only after they have- afforded interested parties "reasonable notice and public hearing * * *." See Section 110(a)(1) and (a)(2). The State held a public hearing on the proposed redesignation
to attainment for ozone andrevision to 

### 12463

### 12464 'Federal"Register / Vl 60, No. 44 / Tuesday, March 7,, 1995/ Rules and Regulations

the Michigan SIP, i.e., maintenance plan, on October 22, 1993. There are no provisions,however, requiring the USEPA toholdits ownhearings. The USEPA is required toprovide the opportunity forpublic comment. The USEPA announced opportunities on July 21, 1994 and September 8, 1994 for 

### the public to submit comments. The USEPA believesthose opportunities represent amore than ample opportunity forpublic input and comment onthis redesignation.

Comment

One commentor states that the air quality inthe area has been poor and has gotten worse in the past 10 years. Offensive odors are apparent when it is slightly overcast or during the night when a local incinerator is burning.
USEPAResponse

Thisredesignation pertains to solely to ozone, and would notaffect offensive odors froman incinerator, regardless of whether these odors are evident during slightly overcast skies orat night. Redesignating the area to attainment for

ozone would neither solve nor contribute to the problem. The incinerator must continue to operate existing control equipment in compliance with its own applicable permits, rules and regulations. Ambient monitoring data from 1990 through 1994 demonstrates that the area is attaining the ozone NAAQS. This evidences that the air quality has improved at least since the period 1987-1989, the years of air quality data which were usedto designate the area nonattainment for

ozone. Comment

A number ofcommentors urge the USEPA to reconsider the NAAQS for ground level ozone. One commentor notesthat Canada's ozone standard' is 82 parts perbillion (ppb)while the United States' (U.S.) is 125 ppb.6 This disparity in limitscontinues tobe debated inthe U.S. courts with the American Lung Association and others, who contendthat the U.S. must lower its limit to 82 ppb, or lower, forhealth basedreasons. Another commentor states that thecurrent ozone NAAQS is not protective ofthe public health, and should be made more stringent to comply withthe Congressional mandate toprotect public health with an "adequate margin ofsafety."

6This is equivalent to 0.125 parts per million (ppm).This is thereference used by the commentor, presumably, to illustrate the difference betweea the Canadian objective and U.S. standard. USEPAResponse
The USEPA is currently in the process ofreevaluating the ozone NAAQS and expects to make a final decision in mid1997. Until any change is made, however, the USEPA is bound to implement the provisions ofthe Act as they relate to the current standard, including those relating to designations and redesignation.

Comment

One commentornotes that MDNR has taken the position thatthe measured concentration must exceed 125 ppb before a legally actionable exceedance that contributes to a 3 yearrunning
average on the number ofdays with exceedances istriggered. As a result, MDNR has notincluded asexcursions days with maximum numbers that actually do exceed the published standard of0.12 ppm.
USEPAResponse

Published guidance (Guideline for the Interpretation ofOzone AirQuality Standards, January 1979, EPA-450/4- 79-003), which is part ofthe ozone standard by reference in 40 CFR part 50, appendix H, notes that the stated level ofthe standard is determined by defining the number of significant figures to beused in comparison With the standard. For example, a standard level of0.12 ppm means that
measurements are to berounded totwo decimal places (0.005 rounds up), and therefore, 0.125 ppm is the smallest three-decimal concentration value in

excess ofthe level ofthe standard. Therefore, MDNR is following USEPA national guidance.

Comment

The commentor objects to the USEPA's proposed disapproval ofthe redesignation request ifa monitored violation ofthe ozone NAAQS occurs prior to final USEPA action on the redesignation. The commentor notes further that since the area has reached attainment ofthe NAAQS and has requested redesignation, a requirement
to implement contingency measures to
correct the problem would be sound policy in the event of aviolation during 1994.

USEPAResponse

Section 107(d)(3)(E) ofthe Act establishes five criteria whichmust be satisfied in order for the USEPA to redesignate an area from nonattainment
to attainment. One ofthese criteria is thatthe Administrator determine that thearea has attained the NAAQS. See section 107(d)(3)(E)(i). This requirement clearly prohibits the Administrator from redesignating areas that have not attained the NAAQS. Ifa violation had occurred prior to the USEPA's final action, theDetroit-Ann Arbor area would no longer have been in attainment and the USEPA could not redesignate the area to attainment. Furthermore, only a final rulemaking action can change an mrea's designation under 40 CFR part 81. Despite the July 21, 1994 proposal, the area must continue to meetthis criterion until final rulemaking is published. As a result, the USEPA must consider air quality data that is collected until the date of final rulemaking and revision of the area's nonattainment status under 40 CFR part 81.

In addition, the USEPA's September Calcagni memorandum, page 5, states that Regions should advise States ofthe practical planning consequences ifthe USEPA disapproves the redesignation request or ifthe request is invalidated because ofviolations recorded during USEPA's review. This policy has been followed in disapproving the Richmond, Virginia redesignation, which was disapproved due to violations ofthe

ozone NAAQS occurring prior to final action on a proposed approval ofthe redesignation (May 3, 1994, 59 FR 22757)..

With respect to a requirement to implement contingency measures in the
event ofa violation prior to final approval ofa redesignation the USEPA
notes that the Detroit-Ann Arbor area, like any other nonattainment area, is subject to the contingency measure requirements ofsection 172(c)(9) until the area is redesignated to attainment.

In any case,the commentor's concern ismoot, since no violations ofthe ozone NAAQS occurred during the 1994 ozone

season.
Comment

Several commentors request that the Detroit-Ann Arbor areabe denied redesignation to attainment until it is clearly shown, using 1994 data, that the

area is in attainment. Other commentors noted that although the Detroit-Ann Arbor area experienced only one ozone exceedance from 1991 to 1993 or 1990
to 1992, it experienced at least three

ozone exceedances in 1994 alone. Commentors provided specific monitored ozone values recorded at Detroit-Ann Arbor area monitors during the 1994 ozone season. The following

ozone concentrations from Detroit-Ann Arbor area monitors were provided: 133 ppb at the Algonac monitor, 142 ppbat the New Haven monitor, 145 ppb at the Warren monitor, 178 ppb at the Port Huron monitor, and 127 ppb at the Oak Park monitor.

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

USEPAResponse

As discussed above, the USEPA could
not approve the redesignation ifa violation occurred during the USEPA's review ofthe request. Consequently, while the July 21, 1994 action proposed
to approve the redesignation, it also proposed, in the alternative, to disapprove the redesignation if violations ofthe ozone NAAQS occur before the USEPA took final action on the redesignation.

Title 40 CFR part 50.9 establishes the

ozone NAAQS, measured according to appendix D, as 0.12 ppm (235 micrograms percubic meter (ug/m3)). The standard is attained when the expected number of days per calendar year with maximum hourly average concentrations above 0.12 ppm (235 ug/ m3) is equal to or less than I as determined by40 CFR part 50 appendix H. Further discussion ofthese procedures and associated examples are contained in the document Guideline for Interpretation ofOzone Air Quality Standards, January 1979, EPA-450/4- 79-003. Simply,the number of exceedances at amonitoring site would be recorded for each calendar year and then averaged over the past 3 calendar years to determine ifthis average is less than orequal to,1.The net result is that each monitor in an area is allowed to record 3.0 expected exceedances in a 3 yearperiod. More than 3.0 expected exceedances in a 3-year period would constitute a violation ofthe ozone NAAQS. As explained in the July 21, 1994 proposed rulemaking (59FR 37190), the Detroit-Ann Arbor area has attained the ozone NAAQS during the 1990-1992 and 1991-1993 periods. The 1994 ozone season has concluded and while there have been some recorded

ozone exceedances in theDetroit-Ann Arbor area, they do not (in consideration with 1992 and 1993 data) constitute a violation ofthe ozone standard. Consequently, theDetroit-Ann Arbor area continues to attain the ozone standard at thistime. The USEPA has considered all air quality data collected prior to final rulemaking on the redesignation request.

Comment

One commentor questions whether actual attainment and maintenance of the standard was achieved and suggests that paper demonstrations ofattainment and maintenance should notbe given

more weight in decisionmaking when compared to actual adverse air quality monitoring data showing unhealthy concentrations ofozone, or data that is marginally so. USEPA Response
The USEPAnotes that it has not given "paper" (ormore properly, analytical) demonstrations ofattainment more weight than ambient monitoring data. As discussed above, the ambient air quality monitoring data for the DetroitAnn Arbor area demonstrates attainment ofthe ozone NAAQS over the time periods of 1990-1992, 1991- 1993, and 1992-1994. Furthermore, continued maintenance ofthe ozone NAAQS will be determined by continued ambient monitoring.

Comment

One commentor asserted that the USEPA cannot redesignate the DetroitAnnArbor area because the USEPA
must determine the relevant applicable requirements at the time ofapproval of

an area's redesignation request and the State must satisfy them. According to the commentor, section 175A(c) ofthe Act requires that all requirements of subpart D remain in force until an area is redesignated. The commentor argued that the USEPA's interpretation of section 107(d)(3)(E); pursuant to which the USEPA determines whether an area seeking redesignation has met the Act requirements applicable prior to or at the time ofthe submission ofa redesignation request, is inconsistent with section 175A(c). Specifically, the
commentor argued that theAct prohibits the redesignation ofthe Detroit-Ann Arbor area because the area has not submitted by November 15, 1993, an approvable SIPrevision .providing for 15 percent VOC reductions, nor satisfiedthe basic I/M and New Source Review (NSR) requirements thatcame due prior to the submission ofthe redesignation request. Moreover, the commentor claimed that the USEPA's interpretation encourages Statesto delay implementation ofthe Act since delay in implementing requirements that come due after the submission ofa redesignation request would not affect the approvability ofthe request.

USEPAResponse

The USEPA has interpreted section 107(d)(3)(E) to mean that the section 110 and part D provisions that are required
tobe fully approved in order for a redesignation to be approved are those which came due prior to or atthe time ofthe submittal ofa complete redesignation request. At the same time, however, the USEPA has maintained that States continue to be statutorily obligated to meet any SIP requirements that come due after the submission of the redesignation request before the USEPA takes final action to redesignate

an area. As a consequence, the USEPA has also followed a policy ofissuing findings offailure to submit ifa State that has submitted a redesignation request fails to comply with aSIP submittal requirement that comes due afterthe-submissionofa redesignation request. See September and October Calcagni 7 memorandums, September Shapiro memorandum, and the memorandum dated January 7, 1994, fromJohn S. Seitz toRegional Air Division Directors, entitled "Procedures for SIP Elements Due November 15, 1993." The USEPA believes that its approach is both reasonable and harmonizes the pertinent provisions of the Act in aworkable manner that is consistent with the language and intent ofthe Act. Moreover, the USEPA believes thatthe interpretation advocated by the commentor would be unworkable and make itvirtually impossible forareas tobe redesignated
to attainment.

The pertinent provisions ofthe Act

are as follows. Section 107(d}(3)(E)(v) of the Act provides that a State must have
met "all requirements applicable to the

area under section 110 and part D" in order to beredesignated. Furthermore, section 107(d)(3)(E)(ii) provides thatthe USEPA must have fully approved the SIPfor thearea seeking redesignation. Finally, section 175A(c) provides that the requirements ofpart D remain in force and effect for an area until such time as it is redesignated.

The USEPA believes that it is both logical and reasonable to interpret section 107(d)(3)(E)(ii) and (v)so that, for purposes ofthe evaluation ofa redesignation request, the only requirements that are "applicable" and for which the SIPmust be fully approved before the USEPA may approve the redesignation request are those that came due prior to or at the time ofthe submission ofa complete redesignation request.

The first reason that it isreasonable
to determine the approvability ofa redesignation request on thebasis of compliance with only Act requirements applicable prior to or at the time ofthe submission of the request isthat holding the State to a continuing obligation to comply with subsequent requirements coming due after the submission ofthe request for purposes ofthe redesignation would make it impossible in many instances for the USEPA to act

on redesignation requests in accordance with the 18-month deadline mandated

7October 28, 1992 memorandum from John Calcagni entitled SIPActionsSubmittedin Responseto CleanAirActDeadlines. 

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### 1246 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

by Congress for such actions in section 107(d)(3)(C). This is because each Act requirement coming due during the pendency ofthe USEPA's review ofa redesignation request carries with it a necessary implication thatthe USEPA
must also fully approve the"SIP submission made to satisfy that requirements in order for the areato be redesignated. Otherwise, the area would fail to satisfy the redesignation requirement ofsection 107(d)(3)(E)(ii) to have a fully-approved SIP. As Congress limited the USEPA to an 18-month period to take final action on complete redesignation requests, Congress could
not have intended that, for those requests tobe approved, States make additional SIP submissions that would require the USEPA to undertake action that would necessarily delay action on the redesignation request beyond the 18- month time frame. (The delay would

occur due to the time needed for the USEPA totake action regarding the determinations asto whether to find those SIP submissions complete and to approve ordisapprove them. Congress accorded the USEPA up to 18 months from the submission ofa SIP revision to take such action. See section 110(k).)

Another reason that the USEPA's interpretation is reasonable is that the fundamental premise for arequest to redesignate a nonattainment area to attainment is that the area has attained the relevant NAAQS. Thus, an area for which a redesignation request has been submitted should have already attained the NAAQS as aresult ofthe satisfaction ofAct requirements that

came due prior to the submission ofthe request, and it is reasonable to view the only requirements applicable for purposes ofevaluating theredesignation request asthose thathad already come due since those requirements were the

ones that presumably led to attainment ofthe NAAQS-which is the primary
purpose oftitle I oftheAct. To require that a State continue to satisfy requirements coming due during the pendency ofthe USEPA's review ofa complete redesignation request in order
to have the redesignation approved would require the State to do more than

was needed to attain the NAAQS.

The USEPA's interpretation by no

means eliminates the obligation of States to comply with requirements coming due after the submission ofa redesignation request. Rather, it simply

means that areas may beredesignated

even though the State may not have complied with those requirements. As the USEPA's policy makes clear, in accordance with the requirements of section 175A(c), the statutory obligation ofthe States to fulfill those requirements remains in effect untilthe USEPA takes final action to redesignate

an area to attainment. Thus, the USEPA's policy is to issue findings of failure to submit ifa State fails to submit a SIP revision to fulfill such a requirement, thereby triggering aclock that will result in the imposition of mandatory sanctions, under section 179 ofthe Act, 18months after the issuance ofthe finding unless the USEPA approves the redesignation request prior
to the expiration ofthe sanctions clock.

Thus, if a State chooses notto submit

a complete and approvable SIPrevision
to comply with a requirement that

comes due after the submission ofa redesignation request, it runs the risk it will be sanctioned in the event that the USEPA does not approve the redesignation request. For example, in the case ofthe Detroit-Ann Arbor area,

on January 21, 1994, the USEPA started the 18-month sanctions clock for the 15 percent reduction plan requiredby section 182(b)(1) to be submitted by November 15, 1993 after the State had submitted its complete redesignation request for the Detroit-Ann Arbor area, by finding the area's 15 percent plan incomplete. Ifthe USEPA were not now approving the redesignation request, the sanctions clock would continue to run and the State would continue to be subject to the risk that sanctions would be imposed. Notably, a State seeking redesignation for an area is in the same position as to the initiation ofsanctions clocks for the failure to make a submittal as any other State. Thus, if Michigan had notsubmitted a redesignation request for theDetroitAnn Arbor area and nevertheless had failed to submit acomplete 15 percent plan by November 15, 1993, it would also have been subject to afinding of failure to submit and the ccnsequent commencement of a sanctions clock.

For this reason, the USEPA disagrees with the comment's contention that the USEPA's interpretation regarding the requirements applicable for purposes of evaluating redesignation requests encourages States to delay implementation ofthe Act. States seeking redesignation for areas are subject to sanctions for failure to submit SIPrevisions in accordance with the Act's requirements in the same way that States not seeking redesignation are. To the extent that the USEPA's interpretation results in States not adopting measures they might otherwise have had to, such a result is a consequence ofthe only workable interpretation ofthe provisions of section 107 concerning applicable requirements and that result does not justify rejecting that interpretation. This is-particularly so since the only areas that benefit from this interpretation are those that have attained the ambient air quality standards and have demonstrated that theywill continue to maintain them in the future.

Thus, the USEPA believes it may approve the Detroit-Ann Arbor redesignation request notwithstanding the lack of a fully approved 15 percent plan. Such action is consistent with the USEPA's national policy and is permissible under the Act. (The commentor's contentions regarding the basic I/M plans and NSR review
program are dealt with as part ofthe
responses to other comments on those
programs elsewhere in this document.)

Comment

One commentor stated that the requirement ofboth general and transportation conformity is an important element ofMichigan's attainment SIP and that the USEPA's notice has not addressed conformity in the context ofthe redesignation. Adverse consequences will stem from failure to continue to require conformity analyses and measures. Another
commentor statesthat redesignation does not excuse the State from submitting a conformity SIPrevision for the Detroit-Ann Arbor area or from including a motor vehicle emission budget for NOx in the area's maintenance plan. The commentor further states that the NOx waiver available under section 182(0, has no connection with the conformity requirements for transportation plans and programs contained in section 176(c)(2)(A) and 176(c)(1)(B).

USEPA Response

The July 21, 1994 proposal (59 FR 37190) did state thatthe November 24, 1993 (59 FR 62188) transportation and November 30, 1993 (59FR 63214) general conformity rules require States
to adopt transportation and general conformity provisions inthe SIP for

areas designated nonattainment or subject to a maintenance plan approved under section 175A ofthe Act. The proposal further explained that, although conformity is applicable in these areas, since the deadline for submittal had not come due for these rules at the time Michigan submitted a redesignation request, the approval of the redesignation is not contingent on these submittals to comply with section 107(d)(3)(E)(v). The Detroit-Ann Arbor

area must comply with the section 176 conformity regulations as required by the conformity rules and the Conformity General Preamble 

### (June 17, 1994, 59 FR

### Federal 

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

31238) 8.According 

### to these rules, conformity applies to nonattainment

areas as wellas maintenance areas. Once redesignated, the Detioit-Ann Arbor area will be amaintenance area which will be required to conduct emission analyses to determine thatthe VOC and NOxemissions remain below the motor vehicle emission budget established inthe maintenance plan. Transportation and general conformity apply to maintenance areas and therefore, the Detroit-Ann Arbor area must comply with these rules. The Conformity General Preamble to the conformity regulations further clarifies thisissue, particularly as itpertains to

areas requesting and obtaining a section 182(f) NOx exemption. According tothe conformity rules and preamble, the Detroit-Ann Arbor area's conformity test will be toremain within the VOC and NOx budgetsestablished in the section 175A maintenance plan. Michigan has established a motor V'ehicle emission budget forNOx in thearea's maintenance plan.

The commentor's suggestion that the section 182(0 exemption has no connection to the conformity requirements for transportation plans 

### and programs contained in section 176(c)(2)(A) and 176(c)(1)(B) was made in response to the August 10, 1994 proposal to approve the section 182(f) NOx exemption for the Detroit-Ann Arbor area. The USEPA's response is, therefore, articulated in the final rulemaking approving the section 182(f) NOx exemption petition forthe DetroitAnn Arbor areapublished elsewhere in this Federal Register.

Comment

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

ozone and the inaccuracy ofmobile

source inventories, it is inappropriate to

remove from the SIPany NOx or VOC conformity analysis.

USEPAResponse

Exemption from the section 182(f) NOxrequirements is provided forin sections 182(f)(1)(a) and 182(f)(3) ofthe

8On November 18, 1994 and November 29, 1994, Michigan submitted SIPrevisions tocomply with the Transportation and General conformity rules. 

### Act. Michigan submitted such an exemption request on November 12, 1993 forthe Detroit-Ann Arbor area based on 3consecutive years ofclean air quality monitoring data, noton a modeling study oranalysis. In addition, approval ofan exemption based on monitoring data will be contingent on thearea's maintenance ofthe ozone NAAQS. As noted previously, a section 182(f)NOx exemption will notexempt

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

Comment

One commentornotes that there isno reasonable or adequatebasis for eliminating Michigan's existing NSR program from the current SIP. Another commentor states thatthe USEPA cannot redesignate theDetroit-Ann Arbor area becauseMichigan has not metthe NSRrequirements under section 182(b)(5).
USEPAResponse

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

a fully-approved NSR program meeting the requirements ofthe 1990 Act amendments and the absence ofsuch an NSR program from thecontingency plan. This view, while a departure from pastpolicy, has been set forth by the USEPA as its newpolicy in a memorandum from Mary Nichols, Assistant Administrator for Airand Radiation, dated October 14, 1994, 

### entitled PartDNew Source Review (part DNSR)Requirements forAreas Requesting Redesignation to Attainment.

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

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

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

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

Michigan has demonstrated that maintenance ofthe ozoneNAAQS will

occur even ifthe emission reductions expected toresult fromthe part D NSR program donot occur. The emission projections made byMichigan to demonstrate maintenance ofthe 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 the part D NSR, wouldbe in effect, during the maintenance period. Under NSR, significant point source emissions growth wouldnot occur. Michigan assumed that NSRwould not apply after redesignation to attainment, and therefore, assumed source growth factors based on projected growth in the -economyand in the area's population. (It shouldbe noted that the growth factors assumed may beoverestimates underPSD, which would restrain source growth through the application ofbest available control techniques.) Thus, contrary to the assertion ofthe commentor, Michigan has demonstrated that thereisno need toretainthe part DNSR asan operative program in the SIP during the maintenance period in order to provide forcontinued maintenance oftheNAAQS. (Ifthis demonstration had notbeen made, NSR would have had to have beenretained in the SIP asan operative program since it would have been needed to maintain the ozone standard.) 12467

### 12468 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

The other purpose thatrequiring the full-approval ofapart D NSR program might serve would be to ensure that NSR would become a contingency provision in the maintenance plan required for these areas by sections 107(d)(3)(E)iv) and 175A(d). These provisions require that,for an area to be redesignated to attainment, it must receive full approval ofamaintenance plan containing "such contingency provisions asthe Administrator deems necessary to assure that the State will promptly correct any violation ofthe standard which occurs after the redesignation ofthe area as an attainment area. Such provisions shall include a requirement that the State will implement all measures.with respect to the control ofthe air pollutant concerned which were contained in the
SIP for the area before redesignation of the area as an attainment area." Based

on this language, it is apparent that whether an approved NSR program must beincluded asa contingency provision depends on whether itis a "measure" for the control ofthe pertinent airpollutants.

As the USEPA noted in the proposal regarding thisredesignation request, the term "measure" is not defined in section 175A(d) and Congress utilized that term differently in different provisions ofthe Act with respect to the PSD and NSR permitting programs. For example, in section 110(a)(2)(A), Congress required that SIPs to include "enforceable emission limitations and other control measures, means, or techniques* * *as may be necessary or appropriate to meet the applicable requirements ofthe Act." In section 110(a)(2)(C), Congress required that SIPs include "a program to provide for the enforcement ofthe measuresdescribed in subparagraph (A), andregulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to

assure that NAAQS are achieved, including a permit program asrequired in parts C and D." (Emphasis added.) If the term measures as used in section 110(a)(2) (A) and (C)had been intended
to include PSD and NSR there would have been no point to requiring that SIPs include both measures and preconstruction review underparts C and D (PSDor NSR). Unless "measures" referred to something otherthan preconstruction review underparts C and D, the reference topreconstruction 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. Onthe other hand, inother provisions ofthe Act, such assection 161, Congress appeared to include PSD within the scope oftheterm "measures."

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

more than one interpretation and that the USEPA has the discretion to interpret it ina reasonable manner in the context of section 175A. Inasmuch

as Congress itselfhas used the term in

a manner that excluded PSD and NSR from its scope, the USEPA believes itis reasonable to interpret "measure," as used insection 175A(d), notto include NSR.That this is a reasonable interpretation is further supported by the factthat PSD, a program that isthe corollary ofpart D NSR forattainment
areas, goes into effect in lieu ofpart D NSR.9

### This distinguishes NSR from other required programs under the Act, such as inspection and maintenance and RACT programs, which have no corollary for attainment areas. Moreover, the USEPA believes that those other required programs are clearly within the scope ofthe term "measure." 10

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

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

same typeofprogram. The PSDprogram is a requirement inattainment areas anddesigned to allow new source permitting,yet contains adequate provisions to protect the NAAQS. Ifany information including preconstruction monitoring, indicates that an area is not continuingto meet the NAAQS after redesignation to attainment, 40 CFR 51 appendix S (Interpretive Offset Rule) or a 40 CFR 51.165(b) program would apply. The USEPA believes that in any areathat is designated or redesignated as attainment under section 107, but experiences violations ofthe NAAQS, these provisions shouldbe interpreted asrequiring major

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

1o

The U.S. EPAalso notes.that in thecase ofthe Michigan area, all permits to install formajor offset

sources and major offset modifications issued by the State inthe moderate nonattainment areas since November 15, 1992 havecomplied withthe 1.15 to 1.0 offset ratio. In addition,permits to install cannot be issued under the PSDprogram unless the applicant can demonstrate that the increased emissions from thenew or modified source will not result in aviolation ofthe NAAQS. Michigan's Rule 702, which is part ofthe SIP, requiresthe installation ofBest Available ControlTechnology regardless ofsize or location ofall newand modified sources in the State. In addition, Michigan's Rule 207, alsoapproved in the SIP, requires denial ofanypermit to install ifoperation ofthe equipment will interfere with attainment or maintenance ofthe NAAQS. 

### including those that havebeen previously met andpreviously relied upon indemonstrating attainment, could be eliminated without an analysis demonstrating that maintenance would be protected. As noted above, Michigan has demonstrated that maintenance wouldbe protected with PSD ineffect, ratherthan partD NSR. Thus, the USEPA is notpermitting.part D NSR to beremoved without a demonstration that maintenance ofthe standard willbe achieved. Moreover, theUSEPA has not amended itspolicy,with respect tothe conversion ofother SIP elements to contingency provisions, which is that they may be converted to contingency provisions only upon a showing that maintenance willbe achieved without thembeing in effect. Finally, as noted above, the USEPA believes that the NSR requirement differs from other requirements, and does notbelieve that the rationale for the NSRexception extends to otherrequired programs.

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

Comment



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

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

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

### Ftd.ezal 

## B~egisterJ. ~VQL..6~O, No~ 4.4 

### / Tuesday,. MarcW 7, 1995 / Rules a.~d Regulations 

### 12469 would have been included in the 15 

### percentplan since thosemeasures were notrequired tobe included in the SIP priortoredesignation. Furthermore,

someelements oftheincomplete 15 percent ROP plan that Michigan did submit forthe Detroit-Ann Arborarea
are included inthe maintenance plan and are available as contingency

measures in themaintenance plan. These elements includebasic I/M, Stage Iexpansion, IIand Stage IIvapor recovery. The USEPA believes that the

menu ofcontingency measures is adequate and that additional contingency measures are notnecessary.

As forthe commentor's effortto ascribe subjective motivations to the USEPA inacting onthisredesignation, the USEPA believes such contentions

are simplyirrelevant.
Comment

One commentor states that therecan be no redesignation untilMichigan submits a complete and approvable 15 percent ROP plan. The commentor alleges that since Michigan's application

was not complete onNovember 12, 1993, allmoderate area provisions includingthe 15 percent plan mustbe inplace to accomplish the redesignation. The commentor notes that Stage Hvaporrecovery and an upgraded I/M program should be in Michigan's SIP to assure continued maintenance ofthe NAAQS.
USEPA Response

After the USEPA's review, onJanuary 21, 1994, the redesignation request was found complete on thebasis ofthe completeness criteria codified in 40 CFR part 51, appendix V. As explained above, the November 12, 1993 request

was based onthree complete years of clean data, and the consideration of subsequent airquality data does not alterthe conclusion thatthat request

was complete. Thus, the November 12, 1993 redesignation request is complete and, in accordance withthe USEPA's policy onapplicable requirements (described above), the 15 percent plan need notbe submitted or approved prior to approval ofthe redesignation.

With respect tothecommentor's assertionsregarding the need for Stage IIvaporrecovery and an upgraded I/M program to assure maintenance, the USEPA notes that the State has provided an adequate demonstration -thatmaintenance will occur even inthe absence ofthose programs. The State's emissions projections underlying the

IIThe expanded applicability ofStage Ito county boundaries ofeach nonattainment area classified as moderate and above. 

### maintenance demonstration are discussed in the proposal at 59 FR 37197, and the commentor has provided

no evidence that thoseprojections are
erroneous. Furthermore, the USEPA notes that Stage IIvapor recovery and an upgraded I/M program werenot implemented inthe area inthe period ofattainment andtherefore, did not contribute to attainment ofthe ozone NAAQS. Stage IIvapor recovery and basicI/M, however, are control

measures included as contingency

measures within the maintenance plan. Thus, Stage IIand basic IMmay be implemented in the event a violation of the ozone NAAQS occurs during the maintenance period. The basic I/M program included inthe contingency plan would upgrade and expand the current I/M program being implemented in theDetroit area. As theDetroit-Ann Arbor area hasdemonstrated attainment and maintenance ofthe ozone NAAQS withoutimplementation of Stage II and

an upgradedI/M program those

measures may be made part ofthe contingency plan without implementation until such time asa violation ofthe ozone NAAQS warrants their implementation. The State, however, must continue to implement allprograms currently inplace in the Detroit-Ann Arborarea including the existing I/M program. Comment

Several commentors suggested that meteorological conditions observed in Michigan and Canada were not conducive to ozone formation. These meteorological conditions, coupled with

a general reduction ofemissions in the Detroit-Ann Arbor area resulting from

aneconomic downturn, resulted in the attainment claimed by theDetroit-Ann Arborarea. The commentors believe thatthe attainment claimedby Michigan is notbased on real reductions ofozone precursor gases (NOx and VOC).
USEPAResponse

Section 107(d)(3)(E)(iii) requires that, for the USEPA to approve a redesignation, it must determine that the improvement inair quality is due to permanent and enforceable reductions inemissions. The September Calcagni memorandum, atpage 4, clarifies this requirement by stating that "[aIttainment resulting from temporary reductions inemission rates (e.g., reduced production orshutdown due to temporary adverse economic conditions) orunusually favorable meteorology would notqualify as an air quality improvement due topermanent and enforceable emission reductions." As discussed inthe July 21, 1994 Federal Register notice, the State of Michigan has demonstrated that permanent and enforceable emission reductions are responsible for the recent improvement in air quality. This demonstration was accomplished through an estimate ofthe reductions (from the year that was used to determine the design value for designation and classification) ofVOC and NOx achieved through Federal

measures such as the Federal Motor Vehicle Control Program (FMVCP) and fuel volatility rules implemented from 1988-1993, as suggested by the September Calcagni memorandum. The total reductions achieved from 1988 to 1993 were 226 tons ofVOC and 45 tons ofNOx per day. These emission reductions were primarily the result of the FMVCP and RVPreductions from 11.0 pounds per square inch (psi)in 1988, to 9.5 in 1990 and finally, to 9.0 in 1993. The State only claimed credit for emission reductions achieved as a result ofimplementation ofthese federally enforceable control measures. These emission reductions claimed by Michigan are conservative since they do
not account for emission reductions resulting from other control measures and programs implemented during this time period such asthe current I/M
program and VOC RACT. The State, therefore, adequately demonstrated that the improvement in air quality is due to permanent and enforceable emission reductions of226 tons VOC and 45 tons ofNOx per day as a result of implementing the federally enforceable FMVCP and RVPreductions.

With respect to the issue of unusually favorable meteorology, the commentors have not supplied and the USEPA is not

aware ofdata demonstrating that the meteorological conditions in the DetroitAnn Arbor area in 1990 and subsequent
years were unusually favorable with respect to the impact on ozone formation. The USEPA examined the
average meteorological parameters of maximum monthly temperatures, monthly precipitation, and days with temperatures greater than 90 degrees Fahrenheit for the periods ofApril through September, 1991 through 1993, with the 9-year (1982-1990) averages for these parameters. The 1991-1993
averages for these parameters agreed with those for the 9-year averages with only minor differences. Based on averaged parameters, it can be concluded that the 1991-1993 period

was typically conducive to ozone formation. Further, the USEPAnotes that the Detroit-Ann Arbor area hasbeen in attainment for three consecutive three-year periods (1990-1992, 1991- 

### ... ....... e'd, calRgiser_.'o]_ 0oN0.4. /Tuesday,.,Marchl7.,1'1995 Rul san* d 'kegulations 12469

### 12470 Federal. Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

1993, and 1992-1994), and that this, along with the fact that real emission 

### reductions have occurred, indicates that attainment isnotdue tounusually favorable, temporary meteorological conditions.

Comment



### A few commentors noted that "Ozone Action!" dayswere declared on selected bad meteorology days, with extensive media publicity asking the public to reduce activities havingthe potential to emit ozone precursors. It isentirely possible that the voluntary reduction program had an effect in the summer of
1994 

### to reduce potential ozone excursions. The existence ofthe voluntary program should beconsidered in evaluatingthe summer 1994 data. In addition, one commentor stated thatthis is an attempt to deny industry's responsibility to reduce emissions by shifting the burden onto private households though these "Ozone Action!" days.

USEPAResponse



### Attainment has been demonstrated for 1990-1992, and 1991-1993, and an 

### attainment level ofemissions identified atwhich timeno such voluntary program was being implemented inthe Detroit-Ann Arbor area. Michigan has also demonstrated through emission projections that the precursor emissions will remain below the'attainment year levels thorough the year 2005 without accounting for any emission reductions that may haveresulted from implementation ofavoluntary program. With respect to any possible impactof

a voluntary emission reduction program
on 1994 emissions,the USEPA notes that the commentor has not provided and the USEPA has nobasis for attempting to assess the impact ofsuch * program on emission and monitored air quality levels. Thus, the USEPA has no basis for any determination regarding the impact ofthe program, and does not believe that speculation regarding such impacts provides abasis for disapproving the redesignation.

Comment



### Onecommentor states that emission control programs mandated bythe Act cannot be converted to contingency
measures, that the Act doesnot authorize conversion ofrequired emission reduction programs to contingency measures and that section 175A(d) imposes a mandatory duty on

an area that isredesignated to continue the emission control programs the area adopted prior toredesignation. The commentor further elaborates by stating that "the SIP implementation requirement is included in the section discussing contingency provisions because contingency provisions automatically become effective if an

area fails to implement the applicable SIP requirements- Inclusion ofthe provision in section 175A(d) does not by any stretch ofstatutory interpretation authorize converting a control measure that must be complied with now to a contingency measure that only need be complied with at some later date, if ever." The commentor also contended. that allowing the conversion of mandatory control programs to contingency measures is bad policy since the public will suffer harmful
exposure during the-time necessary to implement the program after the event triggering the contingency measures.

occurs. According to the-commentor, the delay would be exacerbated.due to the USEPA's failure torequire adopted, regulations for the programs.
USEPAResponse

The Act contains many requirements that States adopt certain measures specifically for nonattainment areas. Those requirements do not by their own terms continue to apply to an area after it has been redesignated to attainment. Moreover, nothing in section 175A itself suggests that these requirements must continue to bemet in redesignated areas..Section 175A(d) is specifically and clearly applicable to contingency provisions and their inclusion in a section 175A maintenance plan. Section 175A(d) establishes that SIP revisions submitted under 175A must contain contingency provisions, as maybe necessary, to assure that the State will promptly-correct any violation ofthe

ozoneNAAQS that occurs after redesignation to attainment. It further requires that these contingency provisions include a requirement for the State to implement all measures with respect to the control ofozone that were in the nonattainment SIPbefore the area

was redesignated. This provision clearly demonstrates that section 175A(d) contemplates that there maybe fully adopted but unimplemented control

measures in the SIPprior to redesignation that will be shifted into the maintenance plan as contingency

measures. Nothing in section 175A suggests that the measures that may be shifted into the contingency plan do not include programs mandated by the Act when the area was designated nonattainment. As section 175A(a) requires adoption and implementation ofmeasures to ensure maintenance, it indicates that measures may not be converted to contingency provisions unless the State demonstrates thatthe standard willbe maintained in the absence ofthe implementation ofsuch

measures.,

The USEPA disagrees with the commentor's assertion that its policy regarding the conversion ofemission control programs mandated by the Act
to contingency measures is bad policy due to delays that could occur. Programs required tobe adopted and submitted to the USEPA prior to the submission ofa redesignation request will already have been adopted and may be implemented with minimal delay in the event contingency measures are triggered. Suchmeasures satisfy the requirement ofsection 175A(d) that the contingency provisions "promptly correct.any violation ofthe standard which occurs afterredesignation."

With respectto the commentor's specific assertions that the USEPA. should require upgrades tobasic I/M and NSR programs to be fully adopted by the State and.approved by the USEPA prior toredesignation, the USEPA notes first that it does not interpret the Act torequire Michigan to adopt the I/M upgrades fully now if it otherwise qualifies for redesignation to attainment. Rather, asevidenced in the USEPA's final I/M rulerevisions, described above and in the proposal, Michigan is required only to adopt the upgrades as a contingency measure in orderto meet the requirements forbasic I/M in section 182(a)(2)(B)(i) and (b)(4). Michigan has done that. Under its submittal, Michigan must implement basicI/M 18 months from the date the Governor decides to implement the
program as'a contingency measure and Michigan's contingency plan contains other control measures which would result in near term emission reductions that will be more effective towards correcting a violation of the NAAQS than aNSR program, such as Stage I or Stage II vapor recovery.

The commentor also suggests that since the current ozone NAAQS is not sufficiently protective ofpublic health the USEPA should notbe concerned with over control. In response, as previously discussed, the USEPA is currently reviewing the ozone NAAQS. Unless and until the NAAQS is revised, the USEPA is to make judgements on thebasis ofthe current NAAQS, e.g., determine whether amaintenance plan

assures maintenance ofthe current

ozone NAAQS.

Comment

Onecommentor noted that Stage II vapor recovery was expected to account for atleast 22.5 tons per day (TPD)or 17 percent ofthe 15 percent ROP plan, that mobile sources account for 50

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

percent ofair toxic emissions, and that refueling automobiles is the most significant source ofbenzene exposure for the average person. As proposed, the redesignation would finally eliminate Stage II vapor recovery from the SIP.An improved I/Mprogram was expected to account for reductions of61.6 TPD or nearly halfofthe 15 percent ROP. The
commentor adds thatthese 15 percent ROP measures may be contingency

measures in the maintenance plan, rather than immediately required at any point in the future. Nevertheless, any such transfer ofa maintenance measure in the SIPto a contingency measure, to be required only ifcertain triggering
events occurred, must be accompanied by a demonstration that the SIP

measures are no longer necessary for maintenance. Any proposed transfer and demonstration ofjustification ofthe transfer must be subject to public notice and comment, as required by the Act.

USEPAResponse

Airtoxic emissions orbenzene
exposure are notrelevant to this rulemaking since it pertains to an ozone redesignation. Moreover, this redesignation in no way exempts the

area from the air toxics requirements of section 112 orother provisions ofthe Act.

Since the area was able to demonstrate maintenance through an emissions projection analysis showing that future VOC and NOx emissions will remain below the attainment year level ofemissions (the level ofemissions sufficient to attain the NAAQS), the USEPA concludes that currently required and future mandated control
programs (e.g., FMVCP) are sufficient to provide for attainment and maintenance ofthe NAAQS. However, contingency

measures in the maintenance plan are required in accordance with section 175A(d). The maintenance plan for the Detroit-Ann Arbor area contains contikigency measures which would be implemented when triggered by a violation ofthe ozone NAAQS. USEPA guidance allows thetransfer ofSIP

measures which came due prior to submittal ofa complete redesignation request to themaintenance plan as contingency measures ifthe area demonstrates attainment without implementation ofthese measures and therefore, are unnecessary for attainment. The State has adequately demonstrated that maintenance will

occur in theabsence ofthe implementation of themeasures cited by the commentor. Finally, the demonstration for the transfer was subject to public notice and comment during Michigan's public comment 

### period and hearing, as well asthe USEPA's comment period, as required bythe Act.

Comment



### One commentor notesthat tobe effective atrestoring air quality when a post-redesignation violation occurs, contingency measures must include

measures inthe 15 percent ROPplan. In elaborating, the commentor notes that a contingency plan which lacks a program for enhanced I/M, Stage IIand conformity is anempty box with no benefits. The precedent of "grandparenting" in moderate areasby allowing redesignation without requiring inclusion ofthe attainment plan's 15 percent plan as a contingency

measure in the maintenance planis a dangerous precedent forRegion .5to set. It has the potentialto result in the gutting ofthe Actnationwide by a seemingly innocuous rulemaking atthe Regional level.

It is unclear that the verification and tracking measures described at 59 FR 37199 (July21, 1994) will ever actually trigger the requirement to implement the contingency plan.

USEPAResponse



### The contingency plan contains, as contingency measures, all ofthe unimplemented SIP control measures that were required prior to submittal of the complete redesignation request, including basic I/M, Stage II, Stage I expansion, and NOxRACT. As noted in the proposal, Stage IIisno longera required measure due to the USEPA's promulgation ofon-board vapor. recovery requirements. Inaddition, the Statehas also included 7.8 RVP 12

### and intensified degreasing for degreasing operations 13

### as contingency measures. The USEPA doesnotbelieve that this contingency plan is an "empty box with

nobenefits" instead that the contingency measures inthe plan would provide very real benefits in terms of potentialemission reductions thatthe USEPA believes are adequate to deal with potential future violations. The

area is notrequired to include all

measures from its 15 percent plan in its contingency plan since the 15 percent plan wasnot an applicable requirement atthe time the State submitted a complete redesignation request.

12

Lower RVP to 7.8 psi may only be implemented

as a contingency measure if the State submits and the USEPA finds, under section 211(c)(4)(C) ofthe Act, that the lower RVP requirement is necessary for the area to achieve the ozone NAAQS.

13Intensified RACT for degreasing operations would entail requiring more stringent controls than

are currently specified in Michigan Rules.611, 612, 613, and 614. In addition, Region 5 is not setting a precedent of "grandparenting" ofthe 15 percent ROP requirement as contingency measures inthe maintenance plan. This is consistent with national policy that has already been established and has been discussed above. See September Calcagni and September Shapiro memorandums.

Regarding transportation conformity,

once redesignated, the Detroit-Ann Arbor area will be a maintenance area and, therefore, required to conduct emissionanalyses to determine whether the VOC and NOx emissions remain below the motor vehicle emission budget established in the maintenance plan. The July 21, 1994 proposal (59FR 37190) does address conformity with respect to the redesignation onp. 37196. The proposal further discusses that, although conformity is applicable in these areas, since the deadline for submittal had not come due for these rules, the approval ofthe redesignation is not contingent on these submittals to comply with section 107(d)(3)(E)(v). However, transportation and general conformity apply to maintenance areas and therefore, the Detroit-Ann Arbor

area must comply with these rules once redesignated to attainment. The June 17, 1994 Conformity General Preamble (59 FR 31238) to theconformity regulations further clarifies this issue. According to theconformity rules and preamble, the Detroit-Ann Arbor area's conformity test will be to remain within the VOC and NOx budgets established in the section 175A maintenance plan.

The July 21, 1994 notice does describe

atracking plan for updating the emission inventory. As discussed, the redesignation request commits Michigan
to conduct periodic inventories every 3 years, provides a schedule forthese submittals, and liststhe types offactors used in projecting the emission inventories. The State notes that ifthe factors change substantially, the State would reproject emissions for the maintenance period to determine whether apparent increases inemissions

are due to changes in calculation techniques or actual emissions. Although these periodic emission inventories are not amechanism to trigger implementation ofcontingency
measures, if the periodic inventories exceed the attainment level ofemissions in the maintenance plan,the USEPA may issue a SIPcall to the area under section 110(k)(5) on the basis that the State made inadequate assumptions in projecting the inventory used to demonstrate maintenance. In thisevent, the USEPA may require the State to correct the projection inventory and, if increases are projected, propose and 

### 12471

### 12472 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

ultimately implement maintenance measure(s) to lowerthe emissions to a level ator below the attainment year level. Since USEPA policy only suggests that level ofemissions be included as a triggering mechanism or method of monitoring the area emissions, States

are provided the flexibility notto include such a triggering mechanism.

The Detroit-Ann Arbor area's contingency plan contains one trigger, a monitored air quality violation of the

ozone NAAQS, as defined in 40 CFR section 50.9. The trigger date will be the date that the State certifies to the USEPA that the air quality data are quality-assured, and no later than 30 days after an ambient airquality violation is monitored. Once the trigger is confirmed, the State will implement

one ormore appropriate contingency

measures based on a technical analysis using a UAM analysis. The Governor will selectthe contingency measures within 6months ofthe trigger. The control measures which may be used as contingency measures within the maintenance plan are I/M upgrades, NOx RACT, Stage I expansion, Stage II, RVP reduction to 7.8 psi and intensified RACT for degreasing operations. As explained in the proposal, the USEPA believes that these measures are adequate to restore air quality inthe
event ofapost-redesignation violation.

Comment

The commentor notes thatthe DetroitAnn Arbor area is the fastest growing business area in Michigan, and that "if regulations are not implemented now, it will take years for companies to comply with new regulations added later." [sic] Local industry should have to implement common-sense, costeffective, pollution-control measures to protect the people in the area.
USEPA Response

The area is currently implementing

numerous emission control measures and will continue to do so even after redesignation to attainment for ozone. While thearea may be growing, the State has considered the impacts of growth not just in mobile sources, but also industrial sources ofozone precursors in its maintenance plan. The State has adequately shown that permanent and enforceable controls will

- continue to morethan offset the impact ofany such growth through the maintenance period as its projections indicate that emissions will decrease during the maintenance period. Inthe event, the area is redesignated and happens to record aviolation ofthe

ozone NAAQS, however, the section 175A maintenance plan specifies control measures which would be implemented ascontingency measures in accordance with the schedules specified in theJuly 21, 1994 and this final rule.

Comment

One commentor notes that the maintenance plan and contingency

measures are not likely toprotect maintenance ofthe NAAQS forozone, because the timeline for implementing corrective measures is too protracted, providing too little protection, too late.

USEPAResponse

For clarification, the contingency

measures are intended to provide for maintenance by addressing a violation ofthe ozone NAAQS; maintenance

measures serve to provide for maintenance ofthe NAAQS. The contingency measure implementation schedules were derived from the Act and applicable State and Federal regulations. As explained inthe proposal and this final action, the schedule established for the implementation ofcontingency

measures provides for the implementation ofsuch measures as

soon as within one year ofa violation. Also, asexplained in the proposal, the USEPA believes that this schedule satisfies the criterion ofsection 175A regarding the need for contingency

measures to promptly correct violations ofthe standard occurring during the maintenance period.

Comment

One commentor alleges that the maintenance demonstration relies on fleet turnover with new cars required to have on-board canisters and perhaps enhanced fuel efficiency to create reductions ofVOC emissions sufficient
to compensate for the steady growth of VMT 14and keep Southeast Michigan in. attainment. With an average time for fleet turnover of10 to 15 years, those

measures will have little effect on maintenance ofattainment in the near term.

USEPA Response

The State is notrelying on on-board canisters in its emission projections through the maintenance period. The maintenance demonstration through emission projections must demonstrate that the emissions will not exceed the attainment year inventory. See General Preamble (April 16, 1992, 57 FR 13498) and September Calcagni memorandum. Michigan has demonstrated that, by

14VMT is the number ofmiles traveled by vehicles ofvarious types, preferably for each link ofthehighway system. considering the effects ofpermanent and enforceable control programs (not including the on-board vapor recovery rule), as well as, growth inthe area (including VMT growth), through the
year 2005 emissions will remain below the attainment year inventory. See 59 FR 37190, tables on p. 37198. Neither the Act norUSEPA guidance specifies

or suggests that the State achieve other emission reductions during the maintenance period. The USEPA reviewed the projection inventory methodologies and found them to be appropriate. Furthermore, transportation conformity provides another emission management mechanism. The transportation conformity rules (November 24, 1993, 58 FR 62188) and General Preamble (June 17, 1994, 59 FR 31238) apply to nonattainment and maintenance areas. The General preamble clarifies that conformity analyses must demonstrate that VOC and NOx emissions will remain within the motor vehicle emission budget as approved in a section 175A maintenance plan.

Comment

One commentor states that an ozone precursor, NOx, can scavenge ozone. Forthis reason, NOx controls can actually increase ozone levels in metropolitan areas while beneficially affecting downwind areas. The lack of NOx controls inthe Metropolitan Detroit area would help in attaining the 120 ppb ozone standard but this approach would have no net benefit downwind (southwestern Ontario). The
commentor concludes that both NOx and VOC must becontrolled. Another
commentor notes thatthere is too little information about the interaction between VOC and NOx to justify granting an exemption from NOx controls.

USEPAResponse

Section 182(f)(1)(A) ofthe Act allows the Administrator to exempt an area outside an ozone transport region from the section 182(f) NOx requirements, if the USEPA determines that "additional reductions of [NOx] would not contribute to attainment" ofthe ozone NAAQS in the relevant area. It is clear that ifan area has demonstrated attainment ofthe ozone NAAQS with 3 consecutive complete years ofair quality monitoring data, additional NOx reductions would not contribute to attainment, since the areahas already attained. Therefore, a State may submit

apetition for a section 182(f) exemption based on air quality monitoring data showing attainment ofthe ozone NAAQS. The USEPA's approval ofsuch

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

an exemption is granted on a contingent basis, i.e., the exemption would only be valid as long as attainment ofthe ozone NAAQS continues. Ifprior to final action toredesignate the area to attainment the USEPA determines that a violation ofthe NAAQS occurred, the section 182(f) exemption would no longer apply, as ofthe date ofsuch a determination. See December 1993 guidance document Guideline for Determining the Applicability ofNOx Requirements under Section 182(f), and the May 27, 1994 memorandum from 

### John Seitz, Section 182(f) NOx Exemptions-Revised Process and Criteria. In addition, the May 27, 1994 Seitz memorandum, page 3,n. 7,states that while NOx reductions in areas that request andare granted a section 182(f) exemption may not contribute to attainment, they may contribute to maintenance and must be addressed in the maintenance plan required for redesignation. The Detroit-Ann Arbor

area submitted a section 182(f) NOx exemption.on November 12, 1994based

on 3consecutive years ofmonitoring data demonstrating attainment ofthe

ozone NAAQS. The Detroit-Ann Arbor

area submitted the appropriate NOx documentation in theirredesignation maintenance plan. By doing so, the State has demonstrated a commitment to control NOx ifitis deemed necessary to maintain the ozone standard. The USEPA approved the section 182(f) NOx exemption petition forthe Detroit-Ann Arbor area in a final USEPA action published elsewhere in thisFederal Register.

With respect to the aspects ofthe commentsrelating to the effects ofNOx controls or the lack ofNOx controls on ambient air inCanada, the USEPA refers the readerto the responses to the comments set forthbelow.

In addition, the redesignation request establishes VOC and NOx emission budgets, establishing emissionlevels adequate to attain the ozone NAAQS. The State has also demonstrated through emission projections that the area's emissions will remain below the attainment yearinventory through the year2005. Consequently, the State has demonstrated that NOxlevels will not exceed current levels through the maintenance period.

Inresponse to the commentors note that there istoo little information about the interaction between VOC and NOx tojustify granting an exemption from NOx controls, the USEPA refers the commentor to the NOx/VOC Study released by the USEPA on July 31, 1993. Congress provided that USEPA decisions on personal petitions forNOx exemptions under section 182(f)(3) be triggered by publication ofthis 185B report. Consequently, the USEPA believes that this provides evidence that Congress appears to have believed the results ofthe 185B study would supply sufficient information for theAgency to grant section 182(f) exemptions. The USEPA refers the commentor to the final rulemaking approving the section 182(f) NOx exemption petition for the Detroit-Ann Arbor area published elsewhere in this Federal Register.

Nonetheless, as demonstrated by the emission projections for the 10-year maintenance plan submitted by Michigan, continuing reductions in NOx emissions are expected (primarily from mobile sources as aresult ofFMVCP). Also, additional NOx emission reductions are expected from implementation ofthe NOx controls required by title IV ofthe Act. Designation status ofan area is irrelevant in the applicability oftitle IV requirements; consequently, subject

sources in the Detroit-Ann Arbor area will be required to comply with these requirements.

Comment

One commentor notes that the action ofproposed redesignation isa product ofundue haste and that the final decision on redesignation should await data from Canada's study ofozone levels at its receptors which are downwind ofSoutheast Michigan. A number ofother commentors suggested that the USEPA respond to concerns expressed by Ontario and Canada prior to making any decision. Another commentor suggests that the USEPA obtain and

assess ambient ozone levels prior to proceeding with the redesignation.

USEPAResponse

The USEPA has received comments and information from a number of Canadian interests. All comments from
commentors in Canada have been considered as the USEPA made a final decision on this action, and are addressed within this final rulemaking. As explained below, the USEPA does
notbelieve that these comments warrant

a deferral offinal action on this redesignation.

Comment

One commentor states thatbetween 60 percent-80 percent oftoxic air pollutants in Windsor's ambient air are transported from the City ofDetroit and other U.S. areas northwest of-Windsor. Another commentor suggests that the technology needed to reduce ozone closely parallels the technology needed
to abate toxic air pollutants in the region. By designating the area as 

### attainment, the regionwill nolongerbe required to include ozone reduction technology in the State ofMichigan's SIP under the Act. This could eliminate further technological improvements that would not only reduce ozone levels but also contribute to the abatement oftoxic air pollution. Since the Governments of the United States andCanada, intheir Reference to the International Joint Commission (IJC), have emphasized that the IJCaddress the impacts oftoxicair pollution problems inthe region, the IJC cannot support any move that would result inless stringent controls which have direct impact on minimization of

ozone levels andreduction oftoxic chemical emissions.Consequently, the commentor strongly disagrees withthe proposed USEPA redesignation and recommends against it.The commentor believesthat the control requirements of the Act forthis area shouldbe implemented.

USEPAResponse



### This redesignation is for ozone. Toxic air pollutants are notrelevant to the issue ofwhether an area should be redesignated due to itsattainment ofthe

ozone NAAQS. Separate from this redesignation, the State is required to meet otherrequirements oftheAct specifically to control airtoxics emissions. The ozone redesignation would not exempt the area from implementing section 112 ofthe Act, which is intended to addressthe control ofhazardous airpollutants. Rules promulgated pursuant to section 112 are applicable to sourcesregardless ofan area's attainment status.

Inaddition, sources ofozone precursors in the Detroit-Ann Arbor area must continue to implement all control equipment and/or measures in accordance with applicable rules, regulations and permits. Consequently, the redesignation would notresult in less stringent controls than are currently being implemented in the Detroit-Ann Arbor area.

Comment



### One commentor notes that Canada and Ontario are assembling data from Canadian monitoring stations which are directly relevant to the decision as to whether the Detroit-Ann Arbor area is currently meeting the prescribed Act requirements with respect to ozone. The commentor states that this information and other points will be provided to the Department of State on October 17, 1994. (On October 17, 1994 a document 

### entitled Canada/Ontario Technical Component ofthe Canadian Comment

onthe Michigan/Ann Arbor Ozone Redesignation Request was submitted. 12473

### 12474 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

This document was prepared by Environment Canada and the Ontario Ministry oftheEnvironment and Energy). The commentor expects that this information would be considered in
any final decision. A copy ofthe September 23, 1994 letter from theIJC
to Warren Christopher, Secretary of State, was attached. Another commentor claims that the Canadians in Southern Ontario are affected by some ofthe
worst smog episodes in Canada. Many
commentors state that much, ifnot all, oftheground level ozone in Southern and Southeastern Ontario is a result of transboundary movement ofozone and NOx from the U.S. to Canada. Michigan is a significant source ofthe ozone and NOx coming from the U.S. A number of
commentors provided monitoring data from monitors located in Southwestern Ontario andthe Detroit-Ann Arbor area and assert that high ozone levels recorded in the Detroit-Ann Arbor area correspond directly with high ozone levels which exceed Ontario's ozone standard. Some commentors noted that high levels ofozone in Ontario may be the cause ofincreased respiratory problems. Another commentor noted that a recent study in southern Ontario indicates that hospital admissions for respiratory problems has increased due
to ozone and acidic air pollution. This situation is occurring at ozone levels well below the 125 ppb averaged over

one hour. Another commentor suggests that being another sovereign nation and
not a neighboring State, Canada is denied protection available to downwind States adversely affected by emissions from upwind neighbors within theU.S. Another commentor notes the damaging effect ofozone on agricultural crops.
USEPA Response

The USEPA has considered the October 17, 1994 submittal referred to and all other information provided by the Canadian Government and other
commentors on these issues.

The followingprovides a synopsis of the USEPA's review ofthe October 17, 1994 document submitted by Environment Canada and the Ontario Ministry ofthe Environment and Energy. The document contains, among other elements, some ozone monitoring data. However, the ozone monitoring data was inadequate for the USEPA to

assess whether a violation oftheU.S.

ozone NAAQS occurred in Canada. Consequently, on November 1,3 and 24, and December 14 and 19, 1994 the USEPA obtained clarifying information from the Ontario Ministry ofthe Environment and Energy on the ozone monitoring data submitted. In reviewing the Canadian ozone monitoring data, the USEPA examined each 3-year interval from 1990 through 1994 as well as associated wind patterns. Based on areview ofthe Canadian report and the clarifying information, the monitoring data demonstrates that there has notbeen a violation ofthe U.S. ozone NAAQS at the Windsor (University or South), Sarnia, Merlin, Mandaumin, London, Longwoods, orParkhill monitors for the timeframe 1990-1992, 1991-1993, or 1992-1994. In fact, the only monitors that have recorded violations ofthe U.S.

ozone NAAQS are the Grand Bend monitor and Tiverton monitor, which

are located more than 90miles and 140 miles away from the Detroit-Ann Arbor
area, respectively. The Grand Bend monitor recorded violations ofthe U.S.

ozone NAAQS during the timeframe 1990-1992 with anumber ofexpected exceedances of 1.67 and during 1991- 1993 of2.0. However, for the 1992-1994 period, there was no violation ofthe U.S. ozone NAAQS with a number of expected exceedances at0.33. The Tiverton monitor recorded violations of the U.S. ozone NAAQS during the timeframes 1990-1992 and 1991-1993 with a number ofexpected exceedance of2.0. However, during the 1992-1994 period, there was no violation ofthe U.S. ozone NAAQS.15

In addition, the modeling submitted

on October 17, 1994 is limited and insufficient for purposes ofimplicating theDetroit-Ann Arbor area as the cause ofelevated ozone levels in Ontario 16.

The ground level wind trajectories presented in the October 17, 1994 submittal, indicate that winds into Tiverton and the Windsor area pass through a number ofurbanized areas in both the U.S. and Canada (theWindsor urbanized area). The USEPA also notes that such concentration may be attributable to or fostered by ozone precursor emissions generated within Canadian borders, since Windsor itself

1 5The October 17, 1994 submittal and subsequent clarifying information revealed that the Tiverton monitor recorded one exceedance in 1994. The exceedance, a value of 136 ppb, was recorded on April 24, 1994 at 7:00 PM. However, based on clarifying information provided by theOntario Ministry ofthe Environment and Energy, this ozone value was invalidated. The strip chart recorder registered interference (electrical or otherwise) on April 24, 1994 between the hours of 5:00PM through 8:00PM and for 10:00 PM. Consequently, the data for these hours was invalidated bythe Ontario Ministry ofthe Environment and Energy.

1 6 Among the inadequacies were that the submittal had limited documentation on the model input parameters. The ADOM-GESIMA model is not

a USEPA guideline model as listed in the Guideline

on Air Quality Models, (revised in February 1993). Further model documentation is necessary for a comparative evaluation against USEPA guideline models. 

### is an urban area with an estimated metropolitan population greater than 225,000. Thus, the extent of any contribution from the Detroit-Ann Arbor



### area to monitored ozone levels in Ontario cannot be determined with any degree ofcertainty on the basis ofthe information presently available to the USEPA. The data provided in the October 17, 1994 submittal are inadequate to provide a basis for determining the extent to which emissions from Michigan, and more specifically, the Detroit-Ann Arbor area,

are contributing to ambient ozone levels in Ontario. As a consequence, the USEPA does notbelieve that the presently available information provides
any basis for affecting its decision regarding the redesignation ofthe Detroit-Ann Arbor area.

The USEPA would like to note that the governments ofthe United States and Canada are in the process of developing ajoint study ofthe transboundary ozone phenomena under the U.S.-Canada Air Quality Agreement. It is envisioned that this regional ozone study will provide the scientific information necessary to understand what contributes to ozone levels in the region, as well as, what control

measures would contribute to reductions in ozone levels. Should this

or other studies provide a sufficient scientific basis for taking action inthe future, the USEPA will decide what is

an appropriate course ofaction. The USEPA may take appropriate action notwithstanding the redesignation ofthe Detroit-Ann Arbor area. Therefore, the USEPA does notbelieve that the contentions regarding transboundary impact currently provide a basis for delaying action on this redesignation or disapproving the redesignation. This is particularly true since approval ofthe redesignation is not expected to result in an increase in ozone precursor emissions and is not expected to adversely affect air quality in Canada. In fact, a decrease inboth VOC and NOx emissions from the Detroit-Ann Arbor

area is expected over the 10-year maintenance period. See 59FR 37190, July 21, 1994. It should also benoted that redesignation does not allow States
to automatically remove control
programs which have contributed to an area's attainment of a U.S. NAAQS for
any pollutant. As discussed previously, the USEPA's general policyis that a State may not relax the adopted and implemented SIP foran areaupon the area's redesignation to attainment unless an appropriate demonstration 17,

17

Such a demonstration must show that removal
ofa control program will not interfere withFederal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations



### based on computermodeling, is approved by the USEPA. Inthiscase, no previously implemented control strategies are beingrelaxed as part of thisredesignation.

The health effects ofacidic air pollution are notrelevant to thisozone redesignation. However, the USEPA is

aware ofthe studyreferenced by the
commentor and is considering this study inthe process ofreevaluating the

ozone NAAQS.

Further,apart from title I requirements related to the cessation of the Detroit-Ann Arbor area's status as an
ozonenonattainment area, the area is and will continue tobe required to satisfy all Act requirements. Other controlprograms required bythe Act will be implemented in.the area, regardless ofthe ozone designation, such astitle IV NOx controls, section 112 toxic controls and on-board vapor recovery requirements.

Comment

Onecommentor notesthat recent information indicates that significantly high ozone readings have been recorded in the Town ofKincardine this summer. Kincardine is halfway up the eastern shoreline ofLake Huron, and therefore, the air quality in Kincardine is,for the most part, a result ofemissions from Michigan. Thecommentor requests that the USEPA reconsider the redesignation ofthe areabecause itwill have drastic effects onthe communities on the eastern shore.
USEPAResponse

Kincardine is more than 100 miles northeast ofthe Detroit-Ann Arbor area, the subject ofthe redesignation to attainment for ozone. Consequently, attributing elevated ozone levels in Kincardine to the Detroit-Ann Arbor

area would be a complextask. Itcannot be conclusively statedthat emissions emanating from the Detroit-Ann Arbor

area are, "for the most part," responsible for elevated ozone concentrations recorded ata monitormore than 100 miles away. As demonstrated by the wind trajectories provided by Canada as part ofthe October 17, 1994 submittal, 

### itcan be seenthat air parcels travel through several U.S. and Canadian urbanized areas. Again, it isnoted that the U.S. and Canada are cooperatively developing a regional ozone studyto investigate the transboundary ozone phenomena.

maintenance ofthe ozone NAAQS and wouldentail submittal ofan attainment modeling demonstration with the USEPA's current Guidelineon Air Quality Models. Also, seememorandum from Gerald A. Emison, April 6, 1987,entitled Ozone Redesignation Policy. 

### Comment
One commentor states thatthe 

### transboundary ozone issue pointstothe need to manage airquality ina regional context and notes that in their meeting ofJuly 25, 1994 in Washington, Carol 

### Browner, Administrator ofthe United States Environmental Protection Agency, and Sheila Copps,Deputy Prime Minister, Minister ofthe Environment, Canada, agreed to cooperate in regional management ofthe transboundary ozone problem.The commentor suggests that the Great Lakes region provides an ideal opportunity to advance thisconcept.
USEPAResponse

Subsequent to the Browner/Copps meeting, the U.S. and Canadian Governments have met to discussand develop a regionalpilot program to address any potential regional transboundary ozone issue. This new regional pilot effort is being developed

as apriority under the U.S.-Canada Air Quality Agreement.
Comment

One commentor statesthat the Southeast Michigan Council of Governments has discussed the redesignation at pastmeetings ofthe Windsor AirQuality Committee, at which local committee members pointed out their concerns to noavail. All information available suggests that the request forredesignation is without scientific'merit at present, and is premature at best.
USEPAResponse

Ambient air monitoring data inthe Detroit-Ann Arbor area demonstrates that the area is attaining the ozone NAAQS. In addition,the Statehas met all applicablerequirements under section 107 ofthe Act. As previously discussed, the U.S. and Canada are cooperatively developing aregional

ozone study to investigate the transboundary ozone phenomena.

Comment

One commentor notes that the March 1991 formal agreement (theMarch 13, 

### i991 U.S.-Canada AirQuality Agreement)between the U.S. and Canada called for other parties to take steps to avoid or mitigate the potential riskposed by specific actions. Onthis basis,it is requested that theUSEPA reconsider the consequences of approving this request for southeast Michigan. Another commentor refersto the March 13, 1991 Air Quality 

### Agreement between Canada and the U.S. with respect to the effort ofthe two countries to address transboundary air pollution through "cooperative and coordinated action." Alleging that ground level ozone production in the Detroit-Ann Arbor areaby its movement

across the U.S.-Canada border has a significant impact on ozone production and general air quality in theWindsor Southwestern Ontario region ofCanada, the commentor expresses concern that the Department of State chose notto provide the Canadian Government with formal advance notice ofthe intention ofthe USEPA to act on an issuewhich would have amajor impact on transboundary air pollution.

USEPAResponse

Paragraph I 

### ofArticle V ofthe March 13, 1991 U.S.-Canada Air Quality 

### Agreement states that "Each Party shall,

as appropriate and asrequired by its laws, regulations andpolicies, assess those proposed actions, activities and projects within the areaunder its jurisdiction that, if carried out, would be likely to cause significant transboundary air pollution, including consideration ofappropriate mitigation measures." Paragraph 2,specifies that parties shall notify each other ofactions under paragraph 1. Since the action to redesignate the Detroit-Ann Arbor area to attainment does notresult in a relaxation ofexisting control requirements or an increase in ozone precursor emissions, the USEPA does notbelieve that formal notification was necessary nor that this action poses a potential risk. Canada is well aware of this redesignation atthis time. However, in the future, the U.S. intends tonotify Canada ofactions similarto this action

as early as possible regardless of whether notification isrequired under the U.S.-Canada AirQuality Agreement. In addition, the U.S.will work with Canada to address tropospheric ozone in the contextofthe Air Quality Agreement aspreviously discussed.

Comment

A number ofcommentors believe that the air quality inthe Detroit-Ann Arbor

area has notimproved butdeteriorated inrecent years. Recent developments havebeen detrimental to air quality, such as the operation ofa trash incinerator which emits foul smoke into the air around the clock, particularly on weekends when businesses are closed. Instead ofrecycling, the City ofDetroit chooses topollute southeast Michigan and Ontario's air.Multitudes of industrial plants are located onthe Detroit River whose smokestacks cast gray haze over everything, even on slnny days. One commentor listsa number oflocal facilities which it claims causes visibleemissions and 12475

### 12476 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

offensive odors.Another commentor states that Wayne county ranked #1 in
amount ofhazardous chemicals released through air emissions (aswell as #1in "suspected" carcinogens), and was fearful for her health and future because ofcurrent air quality. Another
commentor claimed breathing problems caused by outdoor air. Wayne County

was accused ofposing numerous pulmonary health risks for residents. Improvements in air quality are necessary for the residents' safety and health.

USEPA Response

TheJuly 21, 1994 Federal Register notice proposes to redesignate the Detroit-Ann Arbor areato attainment solely for ozone. The Detroit-Ann Arbor redesignation request satisfies the section 107(d)(3)(E) requirements. Among these requirements is that the

area demonstrate attainment ofthe

ozone NAAQS. See section 107(d)(3)(E)(i). The Detroit-Ann Arbor

area has demonstrated through 3 consecutive years ofcomplete air quality data, that the area has attained the ozone NAAQS. The areais and will continue to be required to satisfy all Act requirements pertaining to the emission ofhazardous air pollutants. Further, existing facilities must continue to operate existing air pollution control equipment in accordance with applicable rules, regulations and permits, and sources that are problematic in terms ofposing a nuisance to area residents may be referred to the State and local environmental enforcement staff for investigation. Retaining the area's
current nonattainment designation for

ozone would not affect visible emissions and/or offensive odors from the existing incinerator. In addition, certain new rules and regulations will still apply to

area sourceseven ifthe area is redesignated to attainment for ozone; for example, Maximum Achievable Control Technology and additional controls under section 112 (air toxics) ofthe Act. With respect to the commentor's contention that improvements in air quality are necessary for residents' safety and health, it shouldbe recognized thatsection 109 ofthe Act requires thatthe NAAQS, which must be based on established criteria and allow an adequate margin ofsafety, protect the public health. Unless and until it is revised, the current ozone NAAQS provides the pertinent standard for protecting public health.

Comment

Many commentors believe that designating the areato attainment 

### would exempt the area from stricter clean air regulations. Theybelieve that the USEPA should require local industry to implement common-sense, cost-effective pollution control
measures, more stringent automobile emission testing (current testing is not effective), and service-stations to install anti-pollution devices on gasoline
pumps (Stage II). The USEPA should
encourage that measures betaken to

ensure that no pollution problems occur in the future.

USEPAResponse

Redesignating the area to attainment for ozone does not exempt the State from implementing measures necessary for attainment. Further, additional regulations such as abasic I/M program, Stage II vapor recovery, or Stage I expansion are incorporated into the area's maintenance plan as contingency

measures. The contingency measures selected by the State will be implemented ifa violation is experienced.

Comment

One commentor requests the USEPA
to require, and to make public, an independent, third party, statistical verification ofair quality and related environmental health datato support or dispute claims made by local businesses, a senator and a governor. If monitoring inthe southwest section of Detroit is ongoing, then there would be

no question that tougher standards are needed.

USEPA Response

The State has established air monitoring networks, sampling and analysis procedures as well asquality

assurance and control procedures that satisfy USEPA guidelines. The State will continue to operate itsmonitoring network after redesignation. Third party statistical verification ofair quality data is notrequired by the guidelines applicable for the purposes ofthis redesignation.

Comment

One commentor stated that the USEPA should notredesignate the Detroit-Ann Arbor area because it is likely that the area will soon have to be redesignated back to nonattainment. The commentor also provided various information related to increasing VOC emissions and petroleum usage.
USEPA Response

The USEPA believes that Michigan has shown that the Detroit-Ann Arbor

area has attained and can continue to maintain theNAAQS for ozone. In the event that a violation ofthe ozone NAAQS does occur inthe future, however, themaintenance plan provides for the implementation ofthe State's contingency measures under section 175A to promptly correct any violations ofthe NAAQS, as required by the Act.

With regard to the commentor's contentions concerning VOC emissions and petroleum usage, the USEPA notes that in its showing ofmaintenance over

a 10-year period, the State has technically assessed not only the impacts ofreductions due to control
programs, but also increases due to growth in all potential sources of emissions. These potential sources include petroleum usage in the mobile

source and industrial source sectors. The State has shown in these
assessments that reductions in emissions over the maintenance period will more than offset any increases in emissions ofVOC. The USEPA's decisions must be based solely on whether Michigan's submission adequately addresses the statutory requirements applicable to redesignation. The USEPA has determined that it does, and is thus approving theredesignation request. Again, in the event that violations ofthe

ozone NAAQS occur, Michigan must promptly implement its contingency

measures such that the ozone NAAQS is

once again attained and maintained.

II. Final Rulemaking Action

The USEPA approves the redesignation ofthe Detroit-Ann Arbor, Michigan ozone area to attainment and the section 175A maintenance plan as a revision to the Michigan SIP. The State ofMichigan has satisfied all ofthe necessary requirements ofthe Act. The USEPA has also approved the section 182(f) NOx exemption for the DetroitAnn Arbor area in an action published elsewhere in this Federal Register which exempts the area from the section 182(0 NOx requirements. As a consequence ofthis action, the USEPA also stops the sanctions clocks that had been started as aresult ofthe findings made on January 21, 1994, regarding the incompleteness ofthe 15 percent ROP plan and the section 172(c)(9) contingency plan forthe Detroit-Ann Arbor area and on May 11, 1994, regarding thebasic I/Mplan for the area.

This action has been classified as a Table 2 action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air

### Federr Rester I Vol. 66" No. 44 / Tuesday: March 7, 1995 / R'agulaions

and Radiation. The OMB has exempted this regulatory action from Executive, Order 12866 review.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to any SIP shall be considered separately in lightofspecific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 etseq., USEPA must prepare a regulatory flexibility analysis assessing the impact ofany proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, USEPA may certify that the rule will not have a significant economic impact on a substantial number ofsmall entities. Small entities include smallbusinesses, small not-for-profit enterprises, and government entities with jurisdiction

over populations ofless than 50,000.

The SIP approvals under section 100 and subchapter I,part D, of the Act do
not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the Federal SEP-approval does
not impose any new requirements, I certify that it does not have a significant impact on small entities affected. Moreover, due to the nature ofthe Federal-State relationship under the Act,preparation ofa regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness ofState action. The Act forbids USEPA tobase itsactions concerning SIPs on such grounds. UnionElectricCo.v. USEPA,427 U.S. 246, 256-66 (1976).

Under section 307(b)(1) ofthe Act, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit by May 8, 1995. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for thepurposes 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 ofsuch rule

or action. This actionmay notbe challenged later inproceedings to enforce its requirements. (See Section 307(b)(2)).

List ofSubjects

40 CFRPart 52
Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Intergovernmental relations, Motor vehicle pollution, Nitrogen oxides, Ozone, Particulate 

### matter, Reporting and recordkeeping requirements, Volatile organic compounds.

40 CFRPart81



### Environmental protection, Air pollution control, Carbonmonoxide, Hydrocarbons, National parks, Nitrogen oxides, Ozone, Volatile organic compounds, Wilderness areas.

Dated: February 8, 1995. Norman R. Niedergang, ActingRegionalAdministrator.



### Chapter I,title 40 ofthe Code of Federal Regulations is amended as follows:

PART 52-fAMENDED)

1.The authority citation forpart 52 continues toread as follows:

Authority: 42 U.S.C. 7401-7671q. 

### Subpart X--Michigan

2. Section 52.1170 is amendedby adding paragraphs (c)(101) and (102) to read as follows:

552.1170 Identificationof plan.

* * * * *



### (c)* * * (101) On November 15, 1993, the State ofMichigan submitted as a revision to theMichigan State Implementation Plan for ozone a State Implementation Plan for a motor vehicle inspection and maintenance program for the Detroit-Ann Arbor area. Michigan submitted House Bill No. 5016, signed by Governor John Engler on November 

### 13, 1993.

(i)Incorporation by reference. (A) State ofMichigan HouseBill No. 5016 signed by the Governor and effective on November 13, 1993. (102) On November 12, 1993, the State ofMichigan submitted asa revision to the Michigan State Implementation Plan forozone a State Implementation Plan for a section 175A maintenance plan for theDetroit-Ann Arbor area aspart ofMichigan's request toredesignate the area from moderate nonattainment to attainment forozone. Elements ofthe section 175A maintenance plan include a base year (1993 attainment year) emission inventory for NOx and VOC, a

### demonstration ofmaintenance ofthe

ozone NAAQS with projected emission inventories (including interim years) to the year 2005 for NOx and VOC, a plan to verify continued attainment, a contingency plan, and an obligation to submit a subsequent maintenance plan revision in 8years asrequired by the Clean Air Act. Ifthe arearecords a violation ofthe ozoneNAAQS (which must beconfirmed by the State), Michigan willimplement one ormore appropriate contingency measure(s) which are contained inthe contingency plan. Appropriateness ofa contingency

measure will bedetermined by an urban airshed modeling analysis. The Governor orhis designee will select the contingency measure(s) tobe implemented based onthe analysis and theMDNR's recommendation. The

menu ofcontingency measuresincludes basic motor vehicle inspection and maintenance program upgrades, Stage I vapor recovery expansion, Stage IIvapor recovery, intensified RACT for degreasing operations, NOx RACT, and RVP reductionto 7.8 psi. Michigan submitted legislation or rulesforbasic I/M inHouse Bill No 5016, signed by Governor John Engleron November 13, 1993; Stage Iand Stage Hin Senate Bill 726 signed by Governor John Engleron November 13, 1993; and RVP reduction to 7.8 psi in HouseBill 4898 signed by Governor JohnEngler onNovember 13, 1993.



### (i) Incorporation byreference. (A) StateofMichigan House Bill No. 5016 signedby the Governor and effective onNovember 13, 1993.

(B)State ofMichigan Senate Bill 726 signed by the Governor andeffective on November 13, 1993.

(C) State ofMichigan House Bill No. 4898 signed by the Governor and effective on November 13, 1993.

2. Section 52.1174 isamended by adding paragraphs (h)and (i) toread as follows:

552.1174 Control strategy: Ozone.

* * * * *



### (h)Approval-On January 5, 1993, the MichiganDepartment ofNatural Resources submitted a revision to the

ozone State Implementation Plan forthe 1990 base year emission inventory. The inventory was submitted bythe State of Michigan to satisfy Federal requirements under section 182(a)(1) of the Clean AirAct asamended in 1990,

as a revision to the ozone State Implementation Planfor the DetroitAnn Arbor moderate ozone nonattainment area. This area includes Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne counties.

(i) Approval-On November 12, 1993, the Michigan Department ofNatural Resources submitted a request to redesignate the Detroit-Ann Arbor (consistingofLivingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne counties) ozone nonattainment area to attainment for

ozone. As part ofthe redesignation request,the State submitted a 12477

"11 [ Illlla II 1111

### 12478 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

maintenance plan asrequired by 175A ofthe CleanAir Act, as amended in 1990. Elements ofthe section 175A maintenance plan include a baseyear (1993 attainment year) emission inventory for NOx and VOC, a demonstration ofmaintenance ofthe

ozone NAAQS with projected emission inventories (including interim years) to the year 2005 for NOx and VOC, aplan
to verify continued attainment, a contingency plan, and an obligation to submit a subsequent maintenance plan revision in 8 years as required by the Clean Air Act. Ifthe area records a violation ofthe ozone NAAQS (which
must be confirmed by the State), Michigan will implement one or more appropriate contingency measure(s) which are contained in the contingency plan. Appropriateness ofacontingency

measure will be determined by an urban airshed modeling analysis. The Governor orhis designee will select the contingency measure(s) to be implemented based on the analysis and the MDNR's recommendation. The

menu ofcontingency measures includes basic motor vehicle inspection and maintenance program upgrades, Stage I
vaporrecovery expansion, Stage II vapor recovery, intensified RACT for degreasing operations, NOx RACT, and RVP reduction to 7.8 psi. The redesignation request and maintenance plan meet the redesignation requirements in sections 107(d)(3)(E) and 175A ofthe Act as amended in 1990, respectively. The redesignation mgets the Federal requirements of section 182(a)(1) ofthe Clean AirAct as

arevision to the Michigan Ozone State Implementation Plan forthe above mentioned counties.

PART 81-AMENDED]

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

Authority:42 U.S.C. 7401-7671q.

2. In § 81.323 the ozone table is amended byrevising the entry for the Detroit-Ann Arbor area forozone toread

as follows:
§81.323 Michigan.

MICHIGAN--OZONE
Designation Classification Designated areas Date' Type Date' Type

Detroit-Ann Arbor Area: Livingston County

............................................................................. April 6, 1995

........... Attainment Macomb County

............................................................................... April.6, 1995

.......... Attainment Monroe County

................................................................................. April 6,1995

.......... Attainment Oakland County

.............................................................................. April 6, 1995

.......... Attainmnet St. Clair County

............................................................................. April 6, 1995

........... Attainment Washtenaw County

.......................................................................... April 6,1995

.......... Attainment Wayne County

....................................... April 6, 1995

.......... Attainment:

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

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

BILUNG CODE 6560-80-P

40 CFR Part 70 [1L001; FRL-6164-6]

Clean AirAct Final InterimApproval of Operating Permits Program; Illinois
AGENCY: Environmental Protection Agency (EPA). ACTION: Final interim approval.

SUMMARY: The EPA is promulgating interim approval ofthe Operating Permits Program submitted by Illinois for the purpose ofcomplying with Federal requirements for an approvable State program to issue operating permits
to all major stationary sources, and to certain other sources. EFFECTIVE DATE: March 7,1995. ADDRESSES: Copies of the State's submittal and other supporting information used in developing the final interim approval are available for inspection during normal business 

### hours at the.following ,location:United StatesEnvironmental Protection Agency, Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Jennifer Buzecky, 77West Jackson Boulevard, Permits and Grants Section AR-18J, Chicago, Illinois.60604, (312) 886-3194.

SUPPLEMENTARY INFORMATION:
I. Background andPurpose

A. Introduction

Title V ofthe 1990 CleanAir Act Amendments (sections 501-507 ofthe Clean AirAct ("the Act")), and implementing regulations at 40 Code of Federal Regulations (CFR) Part 70 require that States develop and submit operating permits programs to EPA by November 15, 1993, and thatEPA act to approve or-disapprove each program within 1 year after receiving the submittal. The EPA's program review

occurs pursuant to section 502 ofthe Act and the part 70regulations, which together outline criteria for approval or disapproval. Where a program substantially, but not fully, meets the requirements ofpart 70, EPA may grant the program interim approval fora period ofup to 2 years. IfEPA has not fully approved a program by 2 years after the November 15, 1993 date, orby the end ofan interim program, it must establish and implement a Federal program.

On September 30, 1994, EPA proposed interim approval ofthe. operating permits-program for Illinois. See 59 FR 49882. The EPA received public commenton the proposal, and compiled aTechnical Support Document (TSD) which describes the operating permits program in greater detail. In thisnotice EPA is taking final action topromulgate interim approval of the operating permits program for Illinois.

II. Final Action and Implications

A. AnalysisofState Submission

The EPA received comments from a total offour organizations. The EPA's response to these comments is summarized inthis section. Comments

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

supporting EPA's proposal are not addressed in this notice; however, EPA's response to all comments is available in a document contained in the docket at the address noted in the ADDRESSES section above.

1. Section 112(G) Implementation

The EPA received several comments regarding the proposed approval of Illinois' preconstruction permitting program for the purpose of implementing section 112(g) during the transition period between title V approval and adoption ofa State rule implementing EPA's section 112(g) regulations. Two commentors argued that Illinois should not, and cannot, implement section .112(g)until: (1)EPA has promulgated asection 112(g) regulation, and (2) the State has a section 112(g) program in place. The
commentors also argued that Illinois' preconstruction review program cannot

serve as a means to implement section 112(g) because it was not designed for that purpose. One commentor also asserted that such a regulatory program is unconstitutional because the section 112(g) requirements are vague.

Inits proposed interim approval of Illinois' part 70 program, EPA also proposed to approve Illinois' preconstruction review program for the purpose of implementing section 112(g) during the transition period before promulgation ofa Federal rule implementing section 112(g). This proposal wasbased in part on an interpretation of theAct that would require sources to comply with section 112(g) beginning on the date ofapproval ofthe title V program, regardless of whether EPA had completed its section 112(g) rulemaking. The EPA has since revised this interpretation ofthe Act in

a Federal Register notice published on February 14, 1995. 60 FR 8333. The revised interpretation postpones the effective date ofsection 112(g) until after EPA has promulgated a rule addressing thatprovision. The revised notice sets forth in detail the rationale for the revised interpretation.

The section 112(g) interpretive notice explains that EPA is still considering whether the effective date of section 112(g) should be delayed beyond the date ofpromulgation ofthe Federal rule

so as to allow States time to adopt rules implementing the Federal rule, and that EPA willprovide for any such additional delay in the final section 112(g) rulemaking. Unless and until EPA provides for such an additional postponement ofsection 112(g), Illinois
must be able to implement section 112(g) during the period between promulgation ofthe Federal section 

### 112(g) rule and adoption of im lementing State regulations.

?or this reason, EPA is finalizing its, approval ofIllinois' preconstruction 

### review program. This approval clarifies that the preconstruction review program is available as a mechanism to implement section 112(g) during the transition period between promulgation ofthe section 112(g) rule and adoption by Illinois ofrules established to implement section 112(g). However, since the approval is for the single purpose ofproviding a mechanism to implement section 112(g) during the transition period, the approval itself will be without effect ifEPA decides in 

### the final section 112(g) rule that sources
are not subject to the requirements of therule until State regulations are adopted. Furthermore, EPA is limiting the duration ofthis approval to 18 months following promulgation by EPA ofthe section 112(g) rule.

The EPA believes that, although Illinois currently lacks a program designed specifically to implement section 112(g), Illinois' preconstruction review program will serve as an adequate implementation vehicle during

atransition period because itwill allow Illinois to select control measures that would meet MACT, as defined in section 112, and incorporate these

measures into a federally enforceable preconstruction permit. Illinois will be able to impose federally enforceable

measures reflecting MACT formost if not all changes qualifying as a modification, construction, or reconstruction under section 112(g) because Illinois' preconstruction permitting program is not limited to criteria pollutants. 415 ILCS 5/9.1(d).

Another consequence ofthe fact that Illinois lacks a program designed specifically to implement section 112(g) is that the applicability criteria found in its preconstruction review program may differ from those inthe section 112(h) rule. However, whether a particular

source change qualifies as a modification, construction, or reconstruction for section 112(g) purposes duringany transition period will be determined according to the final section 112(g) rule. The EPA would expect Illinois tobe able to issue

a preconstruction permit containing a case-by-case determination ofMACT where necessary for purposes ofsection 112(g) even ifreview under its own preconstruction review program would notbe triggered.

Inaddition, one commentor incorporated by reference its comments

on the proposed section 112(g) rule, and 

### stated that the proposed rule has technical, legal, and constitutional defects that disqualify it asa valid or workable approach to section 112(g) implementation. The EPAbelieves the appropriate forum forpursuing objections to the legal validity of Federal regulations isby: (1)Submitting comments on a proposed rulemaking during the public comment period for that particular rulemaking, or (2) petitioning forreview ofthe promulgated rule inthe D.C. Circuit Court ofAppeals. Ifthe commentor has

concerns with the final section 112(g) rule, thecommentor will have the opportunity topursue such action once the section 112(g) rule is promulgated.

Two commentors assumedthat EPA would delegate the section 112(g) requirements to the State. The EPA wishes to clarify that the implementation ofsection 112(g) bythe State, including case-by-case MACT determinations, is arequirement for approval ofa State title V program. In other words, approval ofthe title V operatingpermits program confers on the State responsibility to implement section 112(g). Since the requirement to implement section 112(g) lies withthe State inthe first instance, there is no need for a delegation action apart from thetitle V program approval mechanism, except where the State seeks approval ofa "no less stringent" program under 40 CFRpart 63 subpart E.EPA's approval ofIllinois' program for delegation of section 112 standards

aspromulgated does notaffect this responsibility to implement section 112(g).
2. Variance

EPA received two comments regarding the variance provisions contained inIllinois' existing regulations. Thecommentors objected to EPA's position that State variances are not recognized by EPA unless a variance is issued in accordance with part 70 procedures. Thecommentors stated that dismissing all State-issued variances would conflict with part 70. The commentors also stated that while part 70's requirements for compliance schedules do notsanction noncompliance by a source, variances provided by the state are consistent with the recognition ofnon-complying

sources and the requirement for compliance schedules in the permit application.

EPA agreeswith the commentors that variances provided by the State could be consistent withthe issuance ofa part 70 permit. The inclusion ofa compliance schedule in apart 70 permit is apart 70 requirement and, therefore, a State variance fromthe applicable requirements at the time ofpermit 

### 1247912480 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations



### issuance that is provided to a noncomplying sourcemay notbe inconsistent with part 70. EPAwould not, however, recognize variances that grant relieffrom the duty to comply with the terms of an issued federally enforceable part 70 permit except where such relief is granted through procedures allowed bypart 70. Once again, EPA is.not taking anyaction on Illinois' variance procedures. The Agency is only clarifying that all variances provided by the State for title Vsources must be granted in accordance with part 70.
3.Insignificant Activities

Four commentors responded toEPA's proposed concerns regarding Illinois' draft insignificant activities regulations. In response to these comments EPA reviewed the draft regulations a second time. On February 2, 1995, EPA formallyreceived a final copy ofthese regulations for inclusion inthe State's CAAPP submittal. Please see the docket for amore detailed review ofthe Illinois rule.

All commentors objected toEPA's interpretation thatthe threshold levels of1.0 pound per hour (lb/hr)ofcriteria pollutants and .1lb/hrofHAP in 35 Illinois Administrative Code (IAC) Part 201.211 are not acceptable. These cut

### offrates mentioned above are contained in the State's provision, "Application for Classification as an Insignificant Activity." 35IAC 201.211. One commentor stated that the more appropriate classification of insignificant activities lies in different sections ofthe State's regulations. The section referred to by thecommentor distinguishes between HAP and nonHAP emissions. ForHAP calculations, the rule relies on concentrations of HAPs inthe form ofraw material fedto

an emission unit.35 IAC 201.209(a)(1) (A)-(C). Fornon-HAPs, the rule refers to emission units that never exceed .1

### lb/ hr or .44 tpy. 35 IAC 201.210(a) (2)and (3). Although EPA cannot now determine whether or not the HAP calculations would result inemissions in amounts greater than the significance limits thatwill ultimately be finalized in the section 112(g)rulemaking, EPA alsobelieves that the non-HAP provisions in 35 IAC 201.210(a) (2) and (3)donot now pose a problem for approval ofthe State's submittal. The Agency, therefore, is taking noaction on these provisions. EPA originally objected to 35 IAC 201.210(a)(1), however, because thisprovision includes emissions determined tobe insignificant according to the provisions in 35IAC 201.211 (allowing sources to apply for insignificant activities that are granted by IEPA's discretion). The regulatory sections offered by the commentor, therefore, are not entirely dispositive ofthe issue.

upon further reflection, EPA generally agrees with the commentors '
that the rate itselfof 1.0 lb/hr ofcriteria pollutant emission cut-offcontained in 35 IAC 201.211 need not be amended for full approval. Emission cut-offs approved for insignificant activities are based upon State-specific circumstances and analysis. One State's cut-offs may notbeappropriate for another State's programs due to variations in local factors such as non-attainment areas, State Implementation Plans (SIP),

source types, and emissions. EPA believes the State should be given substantial deference in this matter and finds the insignificance levels established by Illinois will not, in and ofthemselves, interfere with the State's ability to ensure that part 70 sources meet all applicable requirements ofthe SIP. Although a severe ozone nonattainment area exists in the State, EPA believes that it is reasonable in this

case to project that the insignificant levels established in the State ofIllinois' regulations will not interfere with its effort to be reclassified as attainment. Illinois believes that this level will not only reduce its administrative burden, but allow it to eventually meet its attainment demonstrations.

The Agency, however, is still concerned with the development of these regulations and continues to believe that interim approval is appropriate for these rules at thistime. 35 IAC 201.208 of the State's rule does
not meet the requirements of40 CFR 70.5(c), which requires that an application may not omitinformation needed to determine the applicability of, orto impose, any applicable requirements, or to evaluate the fee
amount required under the schedule approved pursuant to 40 CFR 70.9. These provisions are intended to ensure that sources do not file incomplete permit applications due to inadvertent
usage ofa State's insignificant activity provisions. In addition, 35 IAC 201.210(b) must be amended to clarify that a source must specifically list in its permit application the activities present at its facility and notjust rely on a general statement that denotes the
presence ofactivities.

Although the emission cut-offs for criteria pollutants are not a concern at this time,revisions to the State's insignificant regulations will still be
necessary for full approval ofthe State's
program. EPA believes the State must make the following changes for full approval: (1) the language of 201.208 

### mustworded to statethat at thetime of filing an application, the application must include all necessary information
to determine the applicability oforto impose anyapplicable requirements or fees and (2)201.210(b) mustbe amended so that sources specifically list the insignificant activities present at their facilities.
4. Administrative Amendments

EPA received threecomments on the inclusion ofthe State's incorporation of emission trades based upon a SIPapproved trading program intoa title V permit based upon the administrative amendment procedure. Two ofthe commentors requested clarification as to whether EPA intends to subject emissions trading that occurs under an emissions cap established in a part 70 permit to significant modification procedures. One commentor stated that itisnotnecessary forEPA to consider thisprovision now since Illinois has no such regulations developed concerning emissions trading.

Responding to the commentors' request for clarification, EPA does not interpret part 70 torequire states to subject emissions trades that occur under an emissions cap established in a part 70 permitto significant modification procedures. These trades

are established by a part 70 permit and, therefore, sources do not need torevise their part 70 permits when utilizing these trading provisions.

Part 70, however, does not allowthe

use of an administrative permit amendment to accomplish incorporation ofemissions trades resulting fromthe application ofan approved economic incentives rule, a marketable permits rule ora generic emissionstrading rule into a part 70 permit. 40 CFR 70.7(d). Any substantive change to a permit term or condition must follow the permit revision procedures ofpart 70. Future part 70 rulemakings may change this requirement, but forthe present, EPA

can only review State submittals in accordance with the promulgated part 70rulemaking ofJuly 21, 1992.

Despite the fact that Illinois does not currently have an approved trading program, it is appropriate forEPA to

now consider thisState legislative provision allowing emission trades tobe incorporated through the administrative amendment procedure. EPA cannot approve regulations in a State program that would conflict with provisions in the part 70 regulations.
5.Compliance Certification

Three commentors objected to EPA's proposed interim approval regarding the

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

State's legislation concerning compliance certification by a responsible official. The Illinois statute requires that applications be certified fortruth, accuracy, and completeness by

a responsible official in accordance with applicable regulations. 415 ILCS 5/ 39.5(5)(e). Part 70 requires that certifications be based upon a "reasonable belief" or that statements be basedupon "information and belief." 40 CFR 70.5(d) and 70.6(c)(1).



### EPA agrees withthe commentors to the extent that interim approval forthis issue isnot appropriate. Upon further review, Illinois' legislative authority for certification ofresponsible officials carries the same meaning as part 70. A responsible official ofthe permit applicant would presumably needto make some inquiry intothe document being certified to ensure that the official's certification meets the requirements ofthe Illinois statute. In light ofthis, EPA will remove the compliance certification issue from the items needing further State action for final approval.

6. Enhanced NSR



### Three commentors objected to EPA's proposal ofinterim approval forIllinois' inclusion ofpreconstruction review permits into part 70 permits via the administrative amendment procedures ofpart 70.To summarize, all three commentors object torequiring the development ofspecific regulations that would outline the substantive, procedural and compliance requirements necessary for incorporation ofa preconstruction permit into a part 70 permit through the administrative amendment procedure. This incorporation ofa preconstruction permit into a part 70 permit is known

as "enhanced new source review (NSR)."



### In EPA's proposal, EPA statedthat 40 CFR 70.7(d)(1)(v) allows such incorporation only when the State's preconstruction review program meets procedural and compliance requirements substantially equivalent to the requirements of40 CFR 70.7 and 70.8 andcompliance requirements substantially equivalent to those contained in 40 CFR 70.6. To utilize 40 CFR 70.7(d)(1)(v), the state must develop regulations which outline the actual requirements necessary for preconstruction permitsto qualify for inclusion in part 70 permits using the administrative amendment procedure and forEPA toapprove these regulations as "substantially equivalent." Withoutthese regulations, the public and EPA cannottrack the issuance and amendments ofpart 70 permits to ensure thatthe permits contain all requirements. The public also needs assurance that a source will not be able to avoid the requirements of the part 70process through a different permittingprogram such as preconstruction review.

Although 40 CFR70.7(d)(1)(v) isnot

anecessary element ofa part 70 program, the State ofIllinois submitted

atitle V permit program that p~ovides fortheuse ofthis procedure..EPA, therefore, must determine the adequacy ofthisaspect ofthe State's submittal. Because Illinois' existing legislative authority allows theuse ofenhanced NSR, without any furtherregulations defining substantially equivalent procedures to40 CFR 70.6, 70.7 and 70.8, thisprovision is currently deficient. To cure this deficiency, the State must: (1)develop regulations outlining the exact substantive, procedural and compliance requirements for incorporation of preconstruction permits intopart 70 permits and (2)submitthese regulations to EPA forreview and approval to

ensure thatthese regulations are "substantially equivalent" to the part 70 regulations.

415 ILCS 5/39.5(13)(c)(v), therefore, will remain onthe interim approval list until the Statecorrects this deficiency. Until regulations are developed outlining the elements ofan enhanced NSR program, the State willbe expected to interpret "substantially equivalent" in 415 ILCS 5/39.5(13)(c)(v) consistently with part 70.
7.Knowingly Tampering with Monitoring Devices

Two commentors objected to EPA's inclusion ofIllinois' statutoryprovision concerning enforcement ofknowingly tampering with any "monitoring device

or record." 415 ILCS 5/44(j)(4)(D). Part 70 requires that criminal fines be imposed upon onewho knowingly renders inaccurate anyrequired "monitoring device ormethod." 40 CFR 70.11(a)(3)(iii). One commentor stated that Illinois' enforcement provision is identical in meaning and effect to the language in part 70 and is appropriate in the context ofIllinois' law.

Upon further review, EPA agrees with the commentors that the Illinois legislative provisions forenforcement forknowingly tampering with monitoring devices orrecords is equivalent in meaning to the requirements ofpart 70.EPA will, therefore, remove from the list of interim approval issues the requirement that the State make a legislative change to its enforcement provisions. 8. Prompt Reporting ofDeviations
EPA received two comments supporting its review ofIllinois' submittal concerning the prompt reporting ofdeviations from permit conditions required by 40 CFR 70.6(a)(3)(iii)(B). Because Illinois did
not include a definition of "prompt" in its legislation orregulations, an acceptable alternative is for the State to define "prompt" in each part 70 permit. This definition will be dependent upon the individual circumstances ofeach

source.

The commentors, however, believe that the EPA must revise several ofits earlier interim approval notices, in which the Agency conditioned final approval on including a definition of prompt in the State program, in order to provide a consistent application ofthe appropriate interpretation ofits rules. EPA is not aware ofany program approval notices that need to be corrected at this time.

B. AdditionalIssues

The Illinois Environmental Protection Agency (IEPA)informed the EPA, after publication ofthe proposed interim approval ofthe State's title V program, that the State cannot meet its January 1, 1995, commitment for an effective acid rain program. In light ofthe structure of existing state legislation, in order for an eventual full approval ofthe State's CAAPP, the State must incorporate by reference the Federal acid rainprogram into the State's existing CAAPP legislation. 415 ILCS 5/39.5(17). IEPA requested an extension ofits commitment to incorporate by reference the Federal program so that the State

can combine this incorporation by reference with the amendments to its CAAPP legislation required for interim approval. This presentation to the legislature would occur in the January, 1996, legislative session, rather than the January, 1995, session originally contemplated. IEPA argues that amending its CAAPP legislation once rather than twice would not interfere with the State's implementation of Phase II ofthe Acid Rain Program.

On January 9, 1994, EPA received a letter from Bharat Mathur, Chief,Bureau ofAir, IEPA, to Stephen Rothblatt, Chief, Regulation Development Branch, EPA Region 5, detailing why the State
cannot meet itsJanuary 1, 1995, commitment and reiterating its commitment to implement the Acid Rain program.

Due to the State's existing enabling legislation for titles IV and V and its commitment to implement the acid rain program inthe interim period between 

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### 12482 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

this final notice and an effective incorporation byreference ofthe Federal acidrain program into the State's legislation, EPAbelieves an extension ofthe State's commitment to adopt acid rain legislation is appropriate. Existing State legislation allows the State to collect applications forPhase IIaffected source and allows the State toprocess these applications and evidences the State's ability to implement the Federal acid rain program in accordance with allFederal regulations. 415 ILCS5/39.5(17)} Until 

### the State officially incorporates the Federal acid rain program byreference, EPA expectsthe State touse itsbroad legislative authority for the receipt and processing ofphase II applications in accordance with allFederal regulations.
C.Final Action TheEPA is promulgating interim approval oftheoperating permits program submitted by Illinois on. November 15, 1993. The State must make the following changes toreceive full approval:

1.The Statemust correct all deficiencies in its insignificant activities regulations (referto previous discussion ofinsignificant activities for actual changes);

2. The Statemust amend 415 ILCS 5/ 39.5(13)(c)(vi) to requirethe use ofthe significant modification procedure to incorporate emission trades into a CAAPP permit;

3.The Statemust develop regulations defining enhanced NSR for the purposes ofimplementing 40 CFR 70.7(d)(1)(v); and

4.Dueto the State's present legislative provisions concerning the Acid Rainprogram, the State must incorporate by reference the federal regulations for implementation ofthe acid rain program.

Thescope ofIllinois' part 70 program approved inthisnotice applies to all part 70 sources (asdefined in the approved program) within the State of Illinois, except any sources ofair pollution overwhich an Indian Tribe hasjurisdiction. See, e.g., 59 FR 55813, 55815-55818 (Nov.9, 1994). The term 

### "Indian Tribe" is defined under the Act

as "any Indian tribe, band,nation, or other organized group or community, including any AlaskaNative village, which is Federally recognized as eligible for the special programs and services provided by the United States to Indiansbecause oftheir status as Indians." See section 302(r) ofthe CAA;

seealso 59FR 43956, 43962 (Aug. 25, 1994); 58FR 54364 (Oct. 21, 1993).

This interim approval, which may not be renewed, extends until March 7, 1997. During this interim approval period, the State ofIllinois is protected from sanctions, and EPA isnot obligated
to promulgate, administer and enforce a Federal operating permits program in Illinois. Permits issued under a program with interim approval have full standing with respect to part 70, and the 1-year time period for submittal ofpermit applications by subject sources begins
upon the effective date ofthis interim approval,-as does the 3-year time period for processing theinitial permit applications. fthe State ofIllinois failsto submit

acomplete corrective program for full approval by September 9, 1996, EPA will start an 18-month clock for mandatory sanctions. IfIllinoisthen fails to submit acorrective program that EPA finds complete before the expiration ofthat 18-month period, EPA will be required to apply one ofthe sanctions in section 179(b) ofthe Act, which will remain in effect untilEPA determines that Illinoishas corrected the deficiency by submitting a complete corrective program. Moreover, ifthe Administrator finds a lack ofgood faith

on the part ofthe State ofIllinois, both sanctions under section 179(b) will apply after the expiration ofthe 18- month period until the Administrator determined that Illinois had come into compliance. In any case, if, sixmonths after application ofthe first sanction, Illinois still has not submitted a corrective program that EPA has found complete, a second sanction will be required.

IfEPA disapproves Illinois' complete

corrective program, EPA will be required to apply one ofthe section 179(b) sanctions on the date 18 months after the effective date ofthe disapproval, unless prior to that date the State ofIllinois has submitted a revised
program and EPAhas determined that it corrected the deficiencies thatprompted the disapproval. Moreover, ifthe Administrator finds a lack ofgood faith

on the part ofIllinois, both sanctions under section 179(b) shall apply after the expiration ofthe 18-month period until the Administrator determines that Illinois has come into compliance. In all

cases, if,six months after EPA applies the first sanction, Illinois has not submitted arevised program thatEPA has determined corrects the deficiencies, a second sanction is required.

Ie addition, discretionary sanctions

may be applied where warranted any time after the expiration ofan interim approval period if Illinois hasnot timely submitted acomplete corrective program orEPA has disapproved its submitted corrective program. Moreover, ifEPA has not granted full approval to the Illinois program by the expiration ofthis interim approval and that expiration occurs after November 15, 1995, EPA must promulgate, administer and enforce a Federal permits program for Illinois upon interim approval expiration.

Requirements for approval, specified in 40 CFR 70.4(b), encompass section 112(l)(5) requirements for approval ofa program for delegation ofsection 112 standards as promulgatedby EPA as they apply to Part 70 sources. Section 112(l)(5) requires that the State's
program contain adequate authorities, adequate resources for implementation, and an expeditious compliance schedule, which are also requirements under part 70. Therefore, the EPA is also promulgating approval under section 112(l)(5) and 40 CFR 63.91 ofthe State's program for receiving delegation of section 112 standards that are unchanged from Federal standards as promulgated. This program for delegations only applies to sources covered by the Part 70 program.

The EPA is also promulgating approval ofIllinois' federally enforceable state operating permit program (FESOP) forthe purposes of creating federally enforceable limitations on the potential to emit of Hazardous AirPollutants (HAP) -regulatedunder section 112 ofthe CAA. The EPA is approving this program as' meeting the criteria articulated in the June 28, 1989, Federal Register notice for State operating permit programs to establish limits federally enforceable on potential to emit and the criteria established in section 112(1).

The EPA is also promulgating approval ofIllinois's preconstruction permitting program found in 35 Ill. Adm. Code 201-203, under the authority oftitle V and part 70 solely for the purpose of implementing section 112(g) to the extent necessary during the period between final promulgation of section 112(g) and adoption ofany necessary State rules to implement EPA's section 112(g) regulations. However, since the approval is for the single purpose ofproviding a mechanism to implement section 112(g) during thetransition period, the approval itselfwill be without effect if EPA decides in the final section 112(g) rule that sources are not subject to the requirements ofthe rule until State regulations are adopted. Although section 112(1) generally provides authority for approval of State air programs to implement section 112(g), title V and section 112(g)provide authority for this limited approval because ofthe direct linkage between

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

the implementation of section 112(g) and title V.The scope ofthis approval is narrowly limited to section 112(g) and does not confer or implyapproval for purposes ofany otherprovision under the Act, forexample, section 110.The duration ofthis approval is limited to 18 months following promulgation by EPA of section 112(g) regulations, toprovide Illinois adequate time forthe State to adopt any necessary regulations 

### consistent with the Federal requirements.
III. Administrative Requirements

A. Docket



### Copies ofthe State's submittal and other information relied upon forthe final interim approval, including four public comments received and reviewed byEPA on the proposal, are contained in a docket maintained at the EPA Regional Office. The docket is an organized and complete file ofall the information submitted to, orotherwise considered by, EPA inthe development ofthis final interim approval. The docket is available forpublic inspection at the location listed under the ADDRESSES section ofthis document.

B. Executive Order12866



### The Office ofManagement and Budget has exempted this action from Executive Order 12866 review.

C.RegulatoryFlexibility Act 

### The EPA's actions under section 502 ofthe Act donot create any new requirements, butsimply address operating permits programs submitted to satisfy the requirements of40 CFR Part 70. Because this action does not impose any new requirements, itdoes not have a significant impact on a substantial number ofsmall entities.

D.Effective Date



### An administrative agency engaging in rulemaking must comport with the requirements ofsection 553 ofthe Administrative Procedures Act (5 U.S.C.A., chapter 5). Section 553 

### requires that an agency allow at.least 30 days from the date of publication before 

### the effective date ofa substantive rulemaking. If, however, good cause can be shown, then the agency may impose

an effective date ofless than 30 days after publication. Good cause exists to 

### initiate an effective date less than 30 days after publication when it is in the public interest and the shorter time 

### period does not cause prejudice to those regulated by therule. BritishAmerican Commodity OptionsCorp.v. Bagley,552 F.2d 482, at 488-89 (1977). For the



### reasons explained below, EPA believes that good cause exists for the effective date of Illinois' CAAPP to bethe date of publication of this rulemaking.

An immediate effective date is in the public's interest for several reasons. The requirement for sources to submit CAAPP applications to the State is contingent in the Illinois regulations upon the effective date ofthe program, not the date ofpublication. All sources subject to title V in Illinois must submit their title V applications to.the state within one year ofthe..effective date of the State's program. Likewise, the collection of fees, hiring ofpermit engineers and analysis ofapplicants' permits cannot begin until the State's program is effective. Illinois' program, therefore, should be adopted without any further delay inasmuch as the public has been without theprotection ofthiscomprehensive regulatory program and because any further delay would not serve the public interest.

Although it is in the public's interest to commence Illinois' title Vprogram upon the date ofpublication, EPA must

ensure that this action will not have any prejudicial effects upon the regulated community. Rowellv. Andrus,631 F.2d 699, at 702-703 (1980). For example, EPA must ensure that the regulated community has sufficient notice ofthis rulemaking and ample opportunity to comment. EPA believes that all interested parties have had sufficient notice ofthis rulemaking and ample time to comment. The development of the State's CAAPP occurred over the last few years. As such, it contains a combination oflegislation and regulations. These.regulations were all previously subjected to public comment at the State level. The State's legislation has been effective and fully enforceable

as a matter ofState law since September 26, 1992, and the first set of State CAAPP regulations became effective on June 10, 1993. Illinois' CAAPP program, therefore, hasbeen fully effective and enforceable as a matter ofState law for

over the past year. In addition, EPA also subjected these same regulations and legislation topublic comment when it published its proposed interim approval ofthe State's CAAPP on September 30, 1994. From the preceding facts, it is obviousthat all interested parties have had ample time both to participate in therulemaking process and to ready themselves to comply with this
program.
List ofSubjects in 40 CFR Part 70

Environmental Protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements. Dated: February 24, 1995. Valdas V.Adamkus, RegionalAdministrator

40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

1.The authority citation for part 70 continues to read as follows:

Authority: 42 U.S.C. sections 7401 et seq. 2. Appendix A to part 70 is amended by adding the entry for Illinois in alphabetical order to read as follows:
Appendix A to Part 70-Approval Status of State and LocalOperating Permits Programs

Illinois

(a) The Illinois Environmental Protection Agency: submitted on November 15. 1993. interim approval effective on March 7. 1995, interim approval expires March 7, 1997

(b) Reserved

4FR Doc. 95-5516 Filed 3-6-95; 8:45 am!

BILLING CODE 6560-60-P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17
RIN 1018-AC28
Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for Gesneria pauciflora

AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule.

SUMMARY: The Service determines Gesneriapauciflora(no common name)
to be a threatened species pursuant to the Endangered Species Act (Act) of 1973, as amended. This small shrub is endemic to Puerto Rico, where only three populations are known to exist in the western mountains in the municipalities ofMaricao and Sabana Grande. The species is threatened by the potential for natural disasters and modification ofits highly restricted habitat. This final rule extends theAct's protection and recovery provisions to Gesneriapauciflora.

EFFECTIVE DATE: April 6, 1995.
ADDRESSES: The complete file for this rule is available for inspection, by appointment, during normal business hours, at the Caribbean Field Office, U.S. Fish and Wildlife Service, P 0 Box 

### 12483