### Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

current. It, therefore-(1) is not a "significant regulatory action" under Executive Order 12866; (2) is not a "significant rule" under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation ofa regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number ofsmall entities under the criteria ofthe Regulatory Flexibility Act.

Listof Subjects in 14 CFR Part97

Air traffic control, Airports, Navigation (Air).

Issued in Washington, DCon June 14, 1996. Thomas C.Accardi, Director, FlightStandardsService. Adoption of theAmendment

Accordingly, pursuant to the authority delegated to me, part 97 ofthe Federal Aviation Regulations (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

PART 97-STANDARD INSTRUMENT APPROACH PROCEDURES

1. The authority citation for part 97 is revised to read as follows:

Authority:49U.S.C.40103, 40113, 40120, 44701; 49 U.S.C. 106(g); and 14 CFR 11.49(b)(2).

2. Part 97 is amended to read as follows:
§§97.23, 97.27, 97.33,97.35 [Amended]

By amending: §97.23 VOR, VOR/ DME, or TACAN, and VOR/DME or TACAN; §97.27 NDB, NDB/DME; §97.33 RNAV SIAPs; and §97.35 COPTER SIAPs, identified as follows: ***EffectiveAugust15, 1996
Bartow, FL,Bartow Muni, VOR/DME or GPS

RWY 9L,Amdt IA Cancelled Bartow, FL,Bartow Muni, VOR/DME RWY

9L,Amdt IA Lake Providence, LA, Byerley, NDB or GPS

RWY 17, Amdt 1Cancelled Lake Providence, LA, Byerley, NDB RWY 17,

Amdt 1 Marksville, LA,Marksville Muni, NDB or

GPS RWY4, Amdt IA Cancelled Marksville, LA,Marksville Muni, NDB RWY

4, Amdt IA Mansfield, MA, Mansfield Muni,NDB or GPS

RWY 32, Amdt4 Cancelled Mansfield, MA, Mansfield Muni,NDB RWY

32, Amdt 4 Willmar, MN,WillmarMuni-John L. Rice

Field, VORor GPS RWY 10,Amdt IA Cancelled Willmar, MN,WillmarMuni-John L. Rice Field, VOR RWY 10, Amdt IA Imperial, NE, Imperial Muni,NDB or GPS

RWY 31, Amdt 2 Cancelled Imperial, NE, Imperial Muni,NDB RWY 31,

Amdt 2 Portsmouth, NH, Pease International

Tradeport, VOR or TACAN or GPS RWY 16, Amdt IA Cancelled Portsmouth, NH, Pease International

Tradeport, VOR or TACAN RWY 16, Amdt IA Trenton, NJ,Mercer County, VOR/DME

RNAV or GPS RWY 16,Amdt4 Cancelled Trenton, NJ,Mercer County, VOR/DME

RNAV RWY 16, Amdt4 Trenton, NJ,Mercer County, VOR/DME

RNAV or GPS RWY 34, Amdt 5Cancelled Trenton, NJ,Mercer County, VOR/DME

RNAV RWY 34, Amdt 5 North Kingstown, RI. Quonset State, VOR or

GPS RWY 34, OrigCancelled North Kingstown, RI, Quonset State, VOR

RWY 34, Orig. Hondo, TX,Hondo Muni, VORor GPS RWY

17L, OrigCancelled Hondo, TX,Hondo Muni, VORRWY 17L,

Orig. [FR Doc. 96 15914 Filed 6 20 96; 8:45 am]

BILLING CODE 4910-13-M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52and 81 [M143-03-7258; FRL-5525-4]
Approval and Promulgation of Implementation Plans and Designation ofAreas forAir Quality Planning Purposes; State of Michigan

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: On April 2, 1996 the Environmental Protection Agency (EPA) published aproposal to approve the redesignation to attainment and associated section 175A maintenance plan for the ozone National Ambient Air Quality Standard (NAAQS) for the twocounty Grand Rapids, Michigan area as

a State Implementation Plan (SIP) revision. The 30-day comment period concluded on May 2, 1996. A total of 1
comment letterwas received in response to the April 2, 1996 proposal. On May 1, 1996, the EPA published a 14-day partial extension ofthe comment period on the redesignation request and section 175A maintenance plan, limited
to the State's April 11, 1996 revision to the section 175A maintenance plan which was not available in EPA's docket prior to April 15, 1996. The reopened
comment period concluded on May 16, 1996. One additional comment letter

was received in response to the May 1, 1996, extension ofpublic comment period. Thisfinal rule summarizes all
comments and EPA's responses, and finalizes the approval ofthe redesignation to attainment forozone and associated section 175A maintenance plan for the Grand Rapids

area. EFFECTIVE DATE: This action willbe effective June 21, 1996. ADDRESSES: Copies ofthe SIPrevisions, public comments and EPA's responses

are available for inspection at the following address: (It is recommended that you telephone Jacqueline Nwia at (312) 886-6081 before visiting the Region 5 Office.) United States Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. FOR FURTHER INFORMATION CONTACT: Jacqueline Nwia, Regulation Development Section (AR-18J), Air Programs 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 redesignation request and maintenance plan for the Grand Rapids and Muskegon moderate ozone nonattainment areas discussed in this rule were submitted on March 9, 1995 and May 1, 1995 (with a revision on April 11, 1996), by the Michigan Department ofEnvironmental Quality (MDEQ). However, the April 2, 1996 proposal and this final rule address only the Grand Rapids area, which consists ofKent and Ottawa Counties. On April 2, 1996, (61 FR 14522)the EPA published aproposal to approve the redesignation request and associated section 175A maintenance plan as a revision to the Michigan ozone SIP. On May 1, 1996 (61 FR 19233), the EPA published apartial 14-day extension of the comment period on the redesignation request and section 175A maintenance plan, limited to the State's April 11, 1996 revision to the section 175A maintenance plan, which was not available in EPA's docket prior to April 15, 1996. The reopened comment period concluded on May 16, 1996. Adverse
comments were received regarding the proposed rule. The final rule contained in thisFederal Register addresses the
comments which were received during the public comment periods and

announces EPA's final action regarding the redesignation and section 175A maintenance plan for the Grand Rapids 

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area. A more detailed discussion in response to each comment is contained in the EPA's Technical Support Document (TSD), dated XXX, 1995 from Jacqueline Nwia to the Docket, entitled "Response to Comments on the April 2, 1996 Proposal to Approve the Redesignation to Attainment for Ozone and Section 175A Maintenance Plan for the Grand Rapids Area," which is available from the Region 5 office listed above.

II. Public Comments andEPA Responses and FinalRulemaking Actions

The following discussion summarizes and responds to the comments received regarding the redesignation ofthe Grand Rapids area to attainment for ozone. Comment:The commentor requested additional time to review and provide
comments on the proposed redesignation because: the proposal was contingent on Michigan's submittal ofa revision to the section 175A maintenance plan which was not available forpublic review until April 15, 1996; the proposed action concerns the public health ofmany ofthe requestor's members; and theproposed action incorporates new guidance and policy which have broad implications throughout the Lake Michigan basin and beyond. The commentor requested a minimum of30 days beyond the date of Michigan's most recent submittal or May 15, 1996.

Response:EPA extended the public
comment period only for those portions oftheredesignation and section 175A maintenance plan pertaining to Michigan's April 11, 1996 maintenance plan SIP that did notbecome available in EPA's docket until April 15, 1996. The 14-day extension concluded on May 16, 1996. The EPA believes this provides the commentor with an adequate opportunity to review and submit comments on the subject ofthis rulemaking action. Comment:The commentor notes that the proposed redesignation violates the specific and general intent ofCongress in specifying requirements for redesignation. The commentor elaborates by stating that the proposed approval violates redesignation requirements ofthe Clean Air Act Amendments of 1990 (Act)by lowering the threshold forredesignation ofthese

areasby reinterpretation oflongstanding redesignation guidance and granting of waivers and exemptions of applicable statutory requirements. The waivers granted to the Grand Rapids area include: waiver from adoption of volatile organic compounds (VOC) reasonably available control technology (RACT) rules;waiver ofthe reasonable further progress (RFP) requirement; waiver ofthe part DNew Source Review (NSR)requirement and waiver from the adoption ofconformity rules.

Response:At the outset, EPA rejects the contention that its actions violate the redesignation requirements ofthe Act. The EPA has not granted the Grand Rapids area "waivers," or "exemptions" from, norreinterpreted longstanding guidance pertaining to, RFP requirements or conformity. The EPA did propose an exception to current policy regarding the need to adopt certain VOC RACT rules prior to redesignation and applied the October 14, 1994 memorandum from Mary Nichols, Assistant Administrator for Air and Radiation entitled "Part DNew Source Review (partD NSR) Requirements for Areas Requesting Redesignation to Attainment," regarding the requirements for part D NSR.

With respect to the RFP requirement,

on July 20, 1995, the EPA made a determination regarding the applicability ofcertain RFP and attainment demonstration requirements. This final rule determined that since the Grand Rapids area had demonstrated attainment ofthe ozone standard, a factual determination based on 3 years ofcomplete quality assured monitoring data, certain provisions ofthe Act, whose explicit purpose is to achieve attainment ofthe standard, do not require SIP revisions to be made by the State for so long asthe area continues
to attain the standard. Those provisions include RFP, the section 172(c)(9) contingency measures and attainment demonstration. The EPA believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations, alongwith certain other related provisions, so as not to require SIP submissions if an ozone nonattainment area subject to those requirements is monitoring attainment ofthe ozone standard (i.e., attainment of the NAAQS demonstrated with three consecutive years ofcomplete, qualityassured, air quality monitoring data). As explained in a memorandum from John S. Seitz, Director, Office ofAir Quality Planning and Standards, entitled "RFP, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard," dated May 10, 1995,2 EPA believes itis appropriate to interpret the more

1Hereinafter referred to as "October 1994 Nichols

memorandum."

2Hereinafter referred to as "May 1995 Seitz

memorandum." specific RFP, attainment demonstration and related provisions ofsubpart 2in the same manner as EPA had previously interpreted the general provisions of subpart 1ofpart D ofTitle I (sections 171 and 172).

EPA has explained at length in other notices, including the July 20, 1995 determination ofattainment regarding the Grand Rapids area (60 FR 37366), its rationale for the reasonableness ofthat interpretation ofthe Act and incorporates those explanations by reference here. See Approval and Promulgation ofImplementation Plans and Designation ofAreas for Air Quality Planning Purposes; Ohio, 61 FR 20458 (May7, 1996); Determination of Attainment ofOzone Standard for Salt Lake and Davis Counties, Utah, 60 FR 36723 (July 18, 1995). EPA emphasizes that ithas not suspended or granted the Grand Rapids area an exemption from any applicable requirements. Rather, EPA has interpreted the requirements of sections 182(b)(1)(A)(I) and 172(c)(9) as notbeing applicable once an area has attained the standard, as long asit continues to do so. This is not awaiver ofrequirements that by their terms clearly apply; it is adetermination that certain requirements are written so as to be operative only ifthe area is not attaining the standard.

The May 1995 Seitz memorandum

was clear about the consequences ofthe policy for redesignations. First, it made plain that a determination ofattainment is not tantamount to aredesignation of

an area to attainment. Attainment is onlyone ofthe criteria set forth in section 107(d)(3)(E). To be redesignated, the State must satisfy all ofthe criteria ofsection 107(d)(3)(E), including the requirement ofa demonstration that the improvement in the area's air quality is due to permanent and enforceable reductions, and the requirements that the area have afully-approved SIP which meets all ofthe applicable section 110 and part Drequirements, and a fully approved maintenance plan.

Upon a determination ofattainment, however, the section 182(b)(1)(A)(I) requirements ofRFP and attainment plans, and the section 172(c)(9) requirement ofcontingency plans are no longer considered applicable requirements under section 107(d)(3)(E). They would no longer be included
among those measures whose approval is part ofthe requirement ofhaving a fully approved SIP.

EPA is not diluting theredesignation requirements ofsection 107(d).What EPA has done is make adetermination that since the area is attaining the standard, which is a factual determination, certain provisions ofthe

### Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

Act, whose express purpose is to achieve attainment ofthe standard, do
not require SIP revisions to be made by the State for so long as the area continues to attain the standard. This has longbeen EPA's policy with respect to the section 172(c)(9) contingency

measures and section 172(c)(2) RFP requirement. See general preamble at57 FR 13498. EPAhas also made determinations regarding section 182(f) NOx waivers ator before the redesignation ofan area and therefore
not required NOx RACT submissions to approve such redesignations. See the Bay Area redesignation at 59 FR49361 and Detroit-Ann Arbor redesignation at 60 FR 12459.

EPA's statutory analysis was explained in detail in the July 20, 1995 final rulemaking and in the May 1995 Seitz memorandum. To the extent here pertinent, such portions ofthat notice, including the responses to comments,

are incorporated herein by reference.

Thus, EPA disagrees with the commentors' view that EPA is not complying with allthe redesignation requirements ofsection 107(d)(3)(E). EPA has interpreted SIP submission requirements ofsection 182(b)(1) regarding reasonable further progress and attainment demonstration plans, and of section 172(c)(9) regarding contingency measures to be implemented in the event an area fails
to make reasonable furtherprogress or attain the standard by the attainment date, not to apply for so longas the area continues to attain the standard. Since they are not applicable, fulfillment of these requirements is not necessary to meet theredesignation criteria of section 107(d)(3)(E).

The commentor challenges EPA's authority to determine certain SIP requirements inapplicable, and then bootstraps that argument to complain that since Grand Rapids has not met these requirements, theredesignation request onlypartially fulfills section 107(d)(E)(v). The commentor argues that this is because the State has not met all "applicable" requirements under section 110 and part D;but the requirements itpoints to are the very

ones that EPAhas determined are inapplicable.

EPA rejects thiskind ofcircular argument. SinceEPA has determined that the statute does notrequire certain submissions so long as the area is in attainment, those inapplicable requirements cannot serve as the basis for concluding that the redesignation request is defective. Under the criteria ofsection 107(d)(E)(3) itself, a State need only meet all applicable requirements, and have a fully approved plan that contains allrequiredelements. Thus EPA's interpretation is fully consistent with the criteria ofsection 107(d)(3). Since EPA has determined that the 15 percent, attainment demonstration, and section 172(c)(9) contingency plan requirements arenot applicable to Grand Rapids, and has found the SIP to be fully approvable without them, the Grand Rapids area has fairly met the criteria ofsection 107(d)(3). Certainly EPA, after determining that these requirements are inapplicable, could not in good faith conclude that the redesignation request is defective because it fails to meet them.

Thus EPA concludes that, where it has made a determination ofattainment that results in the suspension of requirements, it may rely on that determination and its consequences in considering the approvability ofa redesignation request.

For the reasons stated above and elsewhere in this document, in the July 

### 20, 1995 Federal Register notice (60 FR 37366) pertaining to the Grand Rapids
area, in the May 1995 Seitz memorandum, in the Utah notice (60 FR 36723, July 18, 1995) and in the Cleveland-Akron-Lorain notice (May 7, 1996, 61 FR20468), EPA does not believe that the rulemaking violates any section ofthe Act, nordoes itdilute the redesignation requirements under section 107(d)(3)(E).

With respect to the full adoption of VOC RACT rules, it should firstbe noted that Michigan has submitted and EPA has approved all ofthe sections 182(b)(2)(B) and 182(b)(2)(C) VOC RACT requirements applicable to the Grand Rapids area on September 7, 1994 (59 FR46182) and October 23, 1995 (60FR 54308). Therefore, the EPA assumes that the commentor is concerned about the section 182(b)(2)(A) requirement ofthe Act which requires States to develop VOC RACT rules for sources "covered by a CTG document issued bythe Administrator between November 15, 1990, and the date ofattainment" for moderate and above ozone nonattainment areas. The EPAhas not granted the Grand Rapids area a "waiver" or "exemption" from this requirement either.In fact, EPA's proposed rulemaking action acknowledges the applicability ofthese rules in light ofcurrent EPA guidance (See "Procedures for Processing Requests to Redesignate Areas to Attainment," from John Calcagni, Director, Air Quality Management Division, dated September 4, 1992), 3

3Hereinafter referred to as "September 1992 Calcagni memorandum." since the due date for the CTG RACT rules atissue preceded the submission oftheredesignation request, and consequently, generally require full adoption, submission and approval of theserules prior to approval ofthe redesignation request.4

The EPA does, however, believe that in the context ofthe particular circumstances ofthisredesignation, that it isreasonable and permissible to depart from that policy and instead accept a commitment to implement these RACT rules as contingency

measures in the maintenance plan rather than require full adoption and approval ofthe rules prior to approval oftheredesignation. The reasons justifyingthis departure from EPA's general policy were explained in the proposed action and arepresented below.

EPA believes that several factors in combinationjustify allowing this exception to current EPA policy with respect to the Grand Rapids redesignation. First, the RACT rules at issue came due after the end ofthe

ozone season in which Grand Rapids attained the standard and were not needed to bring about attainment ofthe

ozone standard in Grand Rapids. Second, the Statehas demonstrated continued maintenance ofthe ozone standard through 2007 withoutthe implementation ofthese measures. Third, the Statehas placed other contingency measures in the maintenance plan that would bring about far greater emission reductions than the VOC RACT rules and would therefore be substantially more effective in terms ofcorrecting violations attributable to local emissions from the Grand Rapids area that mayoccur after redesignation. EPA's analysis ofthe emission reductions shows that the implementation ofenhanced inspection and maintenance (I/M), Stage II or low Reid Vapor Pressure (RVP) (to 7.8 psi) programs would bring about greater reductions than VOC RACT rules for wood furniture coating,plastic parts coating and industrial clean-up solvents in aggregate, and substantially greater reductions than any ofthese RACT rules individually. Consequently, EPA believes that the other, more effective contingency measures, should and

4The EPA also notes that the Synthetic Organic Chemical Manufacturing (SOCMI) Distillation and Reactor CTGwas issued on November 15, 1993, prior to the submission ofthe Grand Rapids redesignation request. That CTG,however, established a due date for State submittal ofthe SOCMI Distillation and Reactor rules ofMarch 23, 1995 (SeeMarch 23, 1994, 59 FR 13717), a date after submission ofa request to redesignation Grand Rapids to attainment. Thus, thoserules arenot applicable for purposes ofthis redesignation. 

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## 31834 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

would be implemented first even ifthe RACT rules were to be fully adopted prior to redesignation. The detailed analysis ofthese emission reduction estimates is contained in the TSDfor the proposed rulemaking action dated March 20, 1996 entitled "TSD for the Request to Redesignate the Grand Rapids, Michigan Moderate Nonattainment Area to Attainment for Ozone and Proposed Revision to the Michigan Ozone SIP for a Section 175A Maintenance Plan" and TSD for this action dated XX, 1996, entitled "Response to Comments on the April 2, 1996 Proposal to Approve the Redesignation to Attainment for Ozone and Section 175A Maintenance Plan for the Grand Rapids Area."

EPA emphasizes that even under this departure from its policyregarding this action, the requirement for these RACT rules remains an applicable requirement for purposes ofevaluating the redesignation request since itpredated the submission ofthe request. The requirement, however, is met in the form ofthe submission and full approval ofa commitment to adopt and implement theserules as contingency

measures in the maintenance plan. (UnderEPA's existingpolicy, contingency measures in maintenance plans may consist ofcommitments to adopt and implement measures upon a violation ofthe standard. See September 1992 Calcagni Memorandum.)

EPA further notes that even without this exception to its general policy, the State would have been able to have the RACT rules become a part ofthe contingency measures in the maintenance plan upon approval ofthe redesignation. That could have occurred only after or upon EPA's full approval ofthe adopted RACT rules, however. Thus, the only difference between EPA's general policy and the exception to that policy described in this action is that a commitment to adopt and implement the RACT rules in an expeditious
manner, rather than fully-adopted RACT rules, would be among the contingency

measures in the maintenance plan. In light ofthe combination offactors discussed above, including in particular the inclusion ofother, significantly

more effective, contingency measures in the maintenance plan, EPA believes that this difference has no significant environmental consequence and that it is permissible to approve the Grand Rapids redesignation on thisbasis. The EPA believes that this exception to its general policy is legallypermissible under the statutory provisions governing redesignations. As noted above, the VOC RACT requirements remain applicable requirements under section 107 and EPAbelieves that their
treatment in the contingency plan as commitments is consistent with the

manner in which EPAhas accepted other commitments to adopt and implement contingency measures in maintenance plans under section 175A.

The EPAbelieves that the Grand Rapids area may be redesignated to attainment notwithstanding the lack of

afully-approved part D NSRprogram meeting the requirements ofthe 1990 Act amendments and the absence of such apart D NSRprogram from the contingency plan. This view has been
setforth by the EPA as its policy in the 1994 Nichols memorandum.

The EPAbelieves that its decision not to insist on a fully-approved part DNSR program as apre-requisite to redesignation isjustifiable as an exercise ofthe Agency's general authority to establish de minimis exceptions to statutory requirements. See AlabamaPowerCo. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under AlabamaPower,Co. v. Costle,the EPA has the authority to establish de minimis exceptions to statutory requirements where the application of the statutory requirements would be of trivial or no environmental value. See also EDFv.EPA, Nos. 94-1044 and 94- 1062, Slip Op. at28-29 (D.C. Cir. April 19, 1996).

Plainly, the part D NSRprovisions of section 110 and part D are requirements that were applicable to the Grand Rapids area at the time ofthe submission ofthe request for redesignation. Thus, on its face, section 107(d)(3)(E) would seem to require that the State have submitted and the EPA have fully-approved apart DNSR program meeting the requirements of the Act before the areas could be redesignated to attainment.

Under the EPA's de minimis authority, however, it may establish an exception to an otherwise plain statutory requirement if its fulfillment would be oflittle or no environmental value. In this context, it is necessary to determine what would be achieved by insisting that there be afully-approved part D NSRprogram in place prior to the redesignation ofthe Grand Rapids area. For the following reasons, the EPA believes that requiringthe adoption and full-approval ofapart D NSRprogram prior to redesignation would not be of significant environmental value in this

case.

The Grand Rapids area has demonstrated that maintenance ofthe

ozone NAAQS will occur even ifthe emission reductions expected to result from the part D NSRprogram do not

occur. The emission projections 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 thepart D NSR, would bein effect, duringthe maintenance period. Underpart DNSR, significantpoint source emissions growth would not occur. Michigan assumed thatpart DNSRwould not apply afterredesignation to attainment and instead assumed source growth factorsbased onprojected growth in the economy and in the area's population. (Itshould benoted thatthe growth factors assumed may be overestimates under PSD, which would restrain source growth through the application ofbest available control techniques.) Thus, Michigan has demonstrated that there is

no need toretain thepart DNSR asan operativeprogram inthe SIP duringthe maintenance period toprovide for continued maintenance ofthe ozone NAAQS.

The other purpose thatrequiring the full-approval ofapart DNSRprogram might serve would beto ensure that part DNSR would become acontingency provision in themaintenance 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, itmust receive full approval ofa maintenance plan containing "such contingency provisions asthe Administrator deems necessary to assure thatthe State will promptly correct any violation ofthe standard which occurs after the redesignation ofthe area as an attainment area. Such provisions shall include arequirement that the Statewill implement all measures with respect to the control ofthe airpollutant concerned which were contained in the SIP forthe area before redesignation of the area as an attainment area." Based

on this language, itis apparent that whether an approved part DNSR program mustbe included as a contingency provision depends on whether itis a "measure" forthe control ofthepertinent airpollutants.

The term "measure" isnot defined in section 175A(d) and Congress utilized thatterm differently in different provisions ofthe Actwith respect tothe part CPSDand partDNSRpermitting programs. For example,in section 110(a)(2)(A), Congress required that SIPs include "enforceable emission limitations and other control measures, means, ortechniques * * *as may be necessary or appropriate to meetthe applicable requirements ofthe Act." In section 110(a)(2)(C), Congress required

### Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

that SIPs include "a program to provide for the enforcement ofthe measures described in subparagraph (A), and regulation ofthe modification and construction ofany stationary source within the areas covered by the plan as necessary to assure that NAAQS are achieved, including a permit program as required in parts C and D." (Emphasis added.) Ifthe term measures as used in sections 110(a)(2) (A) and (C) had been intended to include part C PSD and part D NSRthere would have been nopoint
to requiring that SIPs include both

measures andpreconstruction review under parts C and D (PSD orNSR). Unless "measures" referred to something other than preconstruction review underparts Cand D, the reference to preconstruction review programs in section 110(a)(2)(C) would be rendered mere surplusage. Thus, in sections 110(a)(2) (A) and (C), itis apparent that Congress distinguished "measures" from preconstruction review. On the otherhand, in other provisions ofthe Act, such as section 161, Congress appeared to include PSD within the scope ofthe term "measures."

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

more than one interpretation and that the EPA has the discretion to interpret it in a reasonable manner in the context ofsection 175A. Inasmuch as Congress itselfhas used the term in a manner that excluded part CPSD and part DNSR from its scope, the EPA believes it is reasonable to interpret "measure," as used in section 175A(d), not to include part D NSR. That this is areasonable interpretation is further supported by the fact that PSD,a program that is the corollary ofpart D NSRfor attainment
areas, goes into effect in lieu ofpart D NSR.5 This distinguishes part DNSR from other required programs under the Act, such as inspection and

5The EPA is not suggesting that part DNSR and prevention ofsignificant (PSD)are equivalent, but merely that they arethe same type ofprogram. The PSDprogram is arequirement in attainment areas and designed to allow new source permitting, yet contains adequate provisions to protect the NAAQS. Ifany information including preconstruction monitoring, indicates that an area is not continuing to meet theNAAQS after redesignation to attainment, 40 CFR 51 appendix S (InterpretiveOffset Rule) or a40 CFR 51.165(b)
program would apply. The EPA believes that in any

area that is designated orredesignated as attainment under section 107, butexperiences violations ofthe NAAQS, these provisions should beinterpreted as requiring major new ormodified sources to obtain VOC emission offsets ofat leasta 1:1 ratio, and as presuming that 1:1 oxides ofnitrogen (NOx)offsets

are necessary. See October 1994 Nichols memorandum. maintenance and RACT programs, which have no corollary for attainment

areas. Moreover, the EPA believes that those other required programs are clearly within the scope ofthe term "measure." 6

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

As noted above, this change in policy

was detailed in the October 1994 Nichols memorandum 7. The position taken in this action is consistent with the EPA's current national policy detailed in the October 1994 Nichols memorandum. That policy permits redesignation to proceed without otherwise required part DNSR programs having been fully approved and converted to contingency provisions provided that the area demonstrates, as has been done in this case, that maintenance will be achieved with the

6The EPA also notes that in the case ofthe Michigan area, all permits to install formajor offset

sources and major offset modifications issued by the State in the moderate nonattainment areas since November 15, 1992have complied with the 1.15 to 1.0 offset ratio. In addition, permits to install cannot be issued under the PSD programunless the applicant can demonstrate that the increased emissions from the new ormodified source will not result in a violation ofthe NAAQS. Michigan's Rule 702, which ispart ofthe SIP, requires the installation ofBestAvailable Control Technology regardless ofsize or location ofall new and modified sources in the State. In addition, Michigan's Rule 207, also approved in the SIP, requires denial ofany permit to install ifoperation of the equipment will interfere with attainment or maintenance ofthe NAAQS.

7Which has been applied in other areas such as Detroit, Michigan, Preble, Columbiana, Clinton, Youngstown, Columbus, Canton, Cleveland, Toledo and Dayton, Ohio. application ofPSDrather than part D NSR.

The EPAhas not "waived" the requirement for adoption and implementation ofconformity regulations. Rather, EPA has determined that those requirements will continue to apply afterthe area is redesignated, and therefore need notbe fulfilled as a condition ofredesignation. The State of Michigan, in fact,has submitted transportation and general conformity SIP revisions on November 24, 1994 and November 29, 1994, respectively. The issue is full approval ofthese rules prior
to redesignation. As presented in the April 2, 1996 (61 FR 14522) proposal, the EPAbelieves that itis reasonable to interpret the conformity requirement as notbeing applicable for purpose of redesignation under section 107(d).The rationale for this is based on a combination oftwo factors. First, the requirement to submit SIP revisions to comply with the conformity provisions ofthe Act continue to apply to areas afterredesignation to attainment, since such areas would be subject to a section 175A maintenance plan. Therefore, the Stateremains obligated to adopt the transportation and general conformity rules even afterredesignation and would risk sanctions for failure to do so. While a redesignation ofan area to attainment enables the area to avoid further compliance with most requirements ofsection 110 and part D, since those requirements are linked to the nonattainment status ofan area, the conformity requirements apply to both nonattainment and maintenance areas. Second, EPA's federal conformity rules require theperformance ofconformity analyses in the absence ofstate-adopted rules. Therefore, a delay in adopting Staterules does not relieve an area from the obligation to implement conformity requirements.

Because areas are subject to the conformity requirements regardless of whether they areredesignated to attainment and must implement conformity under Federal rules if State rules are notyet adopted, the EPA believes it isreasonable to view these requirements as notbeing applicable requirements for purposes ofevaluating

aredesignation request.

For the reasonsjust discussed, the EPA believes that the ozone redesignation request forthe Grand Rapids area may be approved notwithstanding the lack offully approved State transportation and general conformity rules. This policy

was also exercised in the Tampa, Florida and Cleveland-Akron-Lorain

ozone redesignations finalized on

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December 7, 1995 (60 FR52748) and May 7, 1996 (61 FR20458),respectively.

According to the Federal transportation and general conformity rules, conformity applies to nonattainment areas as well as maintenance areas. Onceredesignated, the Grand Rapids area will be a maintenance area and will be required
to conduct emission analyses to determine that the VOC and NOx emissions remain below the motor vehicle emission budget established in the maintenance plan. The Conformity General Preamble to the conformity regulations further clarifies this issue, particularly as itpertains to areas requesting and obtaining a section 182(f) NOx exemption. Michigan has established amotor vehicle emission budget for NOxin the area's maintenance plan. Comment:The commentor notes that between December 1, 1990 and June 1, 1995, EPAhas redesignated 54 areas from nonattainment to attainment. Several ofthese redesignated areas, such

as Kansas City, Kansas/Missouri, Detroit, Michigan, San Francisco, California, Charlotte, North Carolina; Huntington-Ashland, West Virginia/ Kentucky violated the ozone standard afterredesignation. The commentor states that the EPA's "permissive" SIP revision requirements for these areas made future violations inevitable and

ensure that inadequate contingency

measures are adopted. The commentor also notes that the Grand Rapids and Muskegon areas observed 5 exceedances each after receiving a determination of attainment.

Response:To date the EPA has redesignated atotal of41 areas 8to attainment for ozone. Ofthese areas, only 4, Detroit, Michigan, Memphis, Tennessee, San Francisco, California, and Kansas City, Kansas-Missouri, subsequently violated monitored violations ofthe ozone standard. EPA believes that this, in fact, demonstrates that for the vast majority ofinstances the redesignation policy is appropriate since most ofthe redesignated areas have not violated the ozone NAAQS to date. Furthermore, the Act and Congress contemplated that such events may

occur and therefore, required that the Administrator fully approve a maintenance plan for the area consistent with therequirements ofsection 175A before the area can be redesignated to attainment. Section 107(d)(3)(E)(iv). Section 175A(d) requires that a maintenance plan contain contingency

8This includes 28 classified and 13 nonclassified

areas. The 28 classified areas include the Ohio portion ofthe Youngstown-Warren -Sharon area. provisions deemed necessary bythe Administrator to assure that the State will promptly correct aviolation ofthe standard which occurs after the redesignation ofthe area to attainment. Clearly, the Act and Congress anticipated that areas redesignated to attainment mayviolate the NAAQS in the future and ensured that control

measures to remedy the violation are available. Areas redesignated to attainment have approved maintenance plans with contingency measures that

are and will be implemented in order to address the violations monitored in the

area after redesignation. The maintenance plans for these areas were deemed appropriate and adequate for purposes ofaddressing a future violation as they were fully approved into the area's SIPs. Furthermore, ifthe contingency measures implemented by the State do not address future violations ofthe NAAQS, EPA has the authority to call for a plan revision requiring the adoption ofadditional control measures and/orredesignate the

area to nonattainment which in turn would require the area to adopt and implement additional control measures appropriate for its classification. See sections 110(k)(5) and 107(d)(3).

With respect to the adequacy ofthe maintenance plan for Grand Rapids, the EPA would like to note that all aspects ofthe maintenance plan were reviewed and deemed appropriate. The
commentor does not provide any specific arguments to support the
comment.

For clarification purposes, the number ofexceedances cited bythe commentor is the total number ofexceedances monitored in the Grand Rapids area and Muskegon area. The Grand Rapids area monitored one exceedance ateach ofthe three monitors located within the twocounty area in 1995. Taken into account with theprevious two years, 1994 and 1993, the Grand Rapids area continues
to demonstrate attainment ofthe ozone NAAQS with a number ofexpected exceedances less than or equal to 1.0. Comment:The commentor states that the April 2, 1996 proposaljeopardizes the efforts currently being undertaken by the Ozone Transport Assessment Group (OTAG).

Response:The commentor's statement is unsupported. In the April 2, 1996 proposal, the EPA specifically stated that the redesignation ofthe Grand Rapids area to attainment in no way

removes the State's obligation to get further reductions in emissions to address the broader transport phenomenon currently being investigated as part ofthe OTAG
process. The issue oftransported ozone and ozone precursors is being addressed by the OTAG which is composed of industry, environmental groups and Federal, State and local governments from the eastern part ofthe United States. The Lake Michigan States of Illinois, Indiana, Wisconsin and Michigan are all participating, at some level, in the OTAG process (PhaseI/ Phase II attainment demonstrations as provided for in the March 2, 1995 memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, entitled "Ozone Attainment Demonstrations"). Phase IIofthis analysis will assess the need for regional control strategies and refine local control strategies. Phase II will also provide the States and EPA the opportunity to determine appropriate regional strategies to resolve transport issues including any impacts the Grand Rapids area may have on ozone concentrations in its downwind areas. The EPAhas the authority under sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to require emission reductions where appropriate based on theresults ofthis effort or any other relevant information.

Comment:The commentor stated that exemptingozone nonattainment areas from compliance with part DNSR regulations presents special problems since PSD and preconstruction review rules "do not fully address how emissions ofozone precursors should be treated to assure that major new or modified sources do not cause or contribute to a NAAQS violation." In addition, the commentor contends that theA labamaPowerCo. v. Costle9court cautioned that "to exempt de minimis situations from a statutory command is
not an ability to depart from the statute, but rather a tool to be used in implementing the legislative design."

Response:EPA emphasizes that contrary to the commentor's contention,

ozone nonattainment areas are not exemptfrom compliance with part D NSRregulations. The October 1994 Nichols memorandum suggests that

areas that are otherwise eligible for redesignation need not have afully approved part D NSRprogram as a prerequisite to redesignation since the part CPSD program would apply once the area has been redesignated to attainment. The part D NSRprogram

9EPA's policy to redesignate areas notwithstanding the absence offully adopted and approved partDNSR SIPis based, in part, on EPA's authority to establish de minimis exceptions to statutory requirements when the requirement would be oftrivial orno value environmentally under theA labamaPowerCo. v. Costlecourt decision.

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requirements apply to the area until the

area is redesignated to attainment.

The October 1994 Nichols memorandum's statement that EPA regulations (40CFR 51.165(b)(3) and appendix S) "do not fully address how

ozone precursor emissions should be treated to ensure that major new or modified sources do not cause or contribute to an ozone NAAQS violation" isbased on the difficulty in modeling the impact ofemissions from specific sources on ozone formation. The policy, however, also states that for

areas with preconstruction monitoring

or other information that indicate that the area is not meeting the ozone standard afterredesignation to attainment, Appendix S or40 CFR 51.165(b) apply. These areas should then require major new or modified

sources to obtain VOC emission offsets ofat least 1:1 ratio. In addition, the PSD program allows BACT in place ofLAER if the less stringent control technology

can bejustified based on an economic, energy and environmental impacts analysis. Consequently, the State may impose a more stringent level ofcontrol other than what may be selected as BACT in an area redesignated to attainment but not meeting the NAAQS. With these elements, the preconstruction review programs can

assure that major new or modified

sources achieve the statutory goals of part D NSR.

With respect to the cautions ofthe Costlecourt oftheAlabamaPower decision, EPA believes that the exercise ofits de minimis authority in this instance is fully consistent with them. EPA is using its authority to facilitate the implementation ofthe statute and the legislative design behind it. EPA also notes that the D.C. Circuit, the court that decided theAlabamaPowercase, recently decided another case upholding EPA's exercise ofits de minimis authorityunder the Act. Referring to EPA's authority to create de minimis exceptions as being inherent in the statutory scheme, the court stated that "the same deference due to an agency's reasonable interpretation ofan ambiguous statute may also be due to an agency's creation ofa de minimis exception." EDFv. EPA, Nos. 94-1044 and 94-1062, Slip Op. at 28-29 (D.C. Cir. April 19, 1996). Comment:The commentor contends that the EPA cannot use the May 1995 Seitz memorandum to substitute its own criteria for redesignation over congressional instruction. The
commentor rationalizes that thepart D requirements are defined by the nonattainment or attainment designation ofan area. The EPA, therefore, does not have the "authority
to modify the operation ofthe Act, and substitute its ownjudgement for that of Congress." Furthermore, SIP requirements arejoined to the classification ofa nonattainment area (see sections 182 and 181).

Response:The May 1995 Seitz memorandum does not substitute EPA's criteria for congressional instruction. Instead, the May 1995 Seitz memorandum presents EPA's interpretation ofthe statutory language ofthe Act regarding RFP and related provisions asthey relate to areas demonstrating attainment ofthe ozone NAAQS.

With respect to the commentor's
statement that SIP requirements are joined to the classification ofa nonattainment area, the EPA would note that the commentor is equating the designation ofan area as attainment or nonattainment with the fact finding of whether an area is attaining the standard, regardless ofits designation. EPA believes that these are two distinct issues. Title I ofthe Act, including part D, contains provisions that distinguish between the concept ofattainment ofa NAAQS shown through monitoring data, and an area's designation as attainment ornonattainment.

The fact that only one ofthe five criteria for redesignation ofa nonattainment area to attainment is the determination that the area "has attained the national ambient air quality standard," demonstrates that section 107(d)(3)(E)(I) itselfrecognizes this distinction. Clearly, the Act anticipates there will be areas designated nonattainment that are attaining the standard, that there could be a nonattainment area that meets the air quality criterion for redesignation to attainment without satisfyingthe other criteria. Such an area would need to remain designated nonattainment even though it was attaining the standard.

In addition, the distinction between attaining the standard and the designation ofan area as attainment or nonattainment is again demonstrated in the part Dprovision ofsection 182(f), which authorizes EPA to waive the NOx reduction requirements that apply to

ozone nonattainment areas ifEPA determines that the NOxreductions would "not contribute to attainment of the" ozone NAAQS. This provision has been applied on numerous occasions to waive NOx emission reduction requirements for areas that have attained the standard, since such reductions in areas that have already attained the standard would not contribute to attainment. Thus, this provision clearly contemplates that areas designated nonattainment that have attained the standard may have certain specified requirements waived.

In conclusion, the Act does not equate the factual issue ofwhether an area is attaining the standard with the area's designation status as attainment or nonattainment. It explicitly expects situations in which areas designated nonattainment may be attaining the standard. Thus, the definition of "nonattainment area" in section 171(2), which provides that,for purposes of part D, a nonattainment area means an

area that "is designated "nonattainment" with respect to [a particular] pollutant within the meaning ofsection 107(d)" does notcontradict EPA's interpretation ofthe language of section 171(1) defining "RFP" requirements in terms ofreductions for the purpose of "ensuring attainment."

EPA believes that, in general, the classification ofan area designated nonattainment for ozone determines the
set ofrequirements ofsubpart 2to which the area is subject.

The issue becomes the substance of

some ofthose requirements. In general, section 182(b)(1) and section 172(c)(9) apply to moderate ozone nonattainment

areas. EPA, however, has interpreted section 182(b)(1) and 172(c)(9) such that additional SIP submission requirements

are not necessary for an area classified

as a moderate ozone nonattainment area that is attaining the ozone standard, for

so long as the area continues to attain the standard. This is not awaiver ofthe requirement that by theirterms clearly apply; it is a determination that certain requirements are written so asto be applicable only ifthe area is not attaining the standard. Ifprior to the redesignation of such an area to attainment, the area violated the ozone NAAQS, that determination would no longer apply. That area willonce again be faced with an obligation to submit SIP revisions pursuant to sections 172(c)(9) and 182(b)(1).

Finally, other requirements ofpart D that are not written in such away continue to apply solely by virtue ofthe area's classification and designation as a moderate ozone nonattainment area. For example, the VOC RACT requirement of section 182(a)(2) applies regardless of whether an area is attainingthe standard. Similarly, the requirements of part Dnew source review continue to apply to areas designated nonattainment solelyby virtue oftheir continuing nonattainment designation.

Comment:The Administrative Procedures Act (APA) requires that "substantive rules ofgeneral applicability" be subjected to public
comment before promulgation. EPA's 

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guidance interpreting section 107(d)(3)(E)requirements constitutes substantive rules ofgeneral applicability and thus, required to be subjected to public comment.

Response:EPA's reference to and reliance on guidance documents interpreting section 107(d)(3)(E), 1 0 all of which are either published or publicly available and apart ofthe record ofthe July 20, 1995 rulemaking and this rulemaking, is in no way illegal under provisions ofeither the Act or the APA. The commentor cites the APA's requirement that "substantive rules of general applicability" be published in the Federal Register and subject to public comment before promulgation. These documents do not purport to be anythingbut guidance. That is precisely why EPAperformed the July 20, 1995 rulemaking, and this rulemaking action,

anotice and comment rulemaking to take comment on its statutory interpretations and factual determinations in order to make a binding and enforceable determination regarding the Grand Rapids area. The April 2, 1996 notice referred to EPA's policy memorandum not as binding the Agency to adopt the interpretations being proposed therein, but rather as useful descriptions ofrationale underlying those proposed interpretations. EPA has explained the legal and factual basis for its rulemaking in the April 2, 1996 rulemaking and afforded the public a full opportunity to comment on EPA's proposed interpretation and determination fully consistent with the applicable procedural requirements ofthe APA. Comment:The 1993 Nichols and 1995 Seitz memoranda are inconsistent with earlier redesignation guidance (General Preamble, Calcagni and Shapiro memoranda) pertaining to required SIP revisions for redesignations.

Response:The October 1994 Nichols memorandum and the May 1995 Seitz memorandum represented modifications ofearlier policies. That does not necessarily mean these memoranda were by any means completely inconsistent with prior policies. Forexample, the May 1995 Seitz memorandum interpreted the

more specific RFP requirements of section 182(b)(1) in a manner consistent with EPA's previous interpretation of the more general section 171 and 172 requirements. Furthermore, EPA notes that it is permissible to revise its policies provided that the revised

1 0 tispresumed thatthecommentoris referring to such documents astheOctober 1994 Nichols, May 1995 Seitz, and September 1992 Calcagni memoranda as well astheGeneral Preamable (April 16, 1992,57 FR13498). policies, as is the case with these, are legally justified and reasonable. Comment:The commentor contends that ozone remains a significant public health threat in Grand Rapids since it fails to demonstrate attainment ofthe

ozone NAAQS. The commentor proceeds to discuss an analysis ofeight hour ozone concentration averages in the Grand Rapids Consolidated Metropolitan Statistical Area for 1995. The commentor states that on 26 days
atleast one monitorrecorded ozone concentrations at or above 80 parts per billion (ppb)and represent days when at-risk populations were exposed to unhealthy levels ofair pollution. The
commentor states that byexamining ground level wind directions and speeds and comparing results of monitors upwind (Jenison or Parnell) from Grand Rapids to downwind observations (Parnell or Jenison), the
commentor has determined that 18 of these episodes indicate that local emissions significantly exacerbate the formation ofunhealthy levels ofozone.

Response:The EPA determines attainment and nonattainment based on the current NAAQS of0.12parts per million (ppm)not 80 ppb. Therefore, the EPA must evaluate the eligibility for redesignation on the basis ofthe current, health based standard. The EPA agrees with the commentor's contention that ozone and ozone precursor emissions from the Grand Rapids urbanized area may contribute to ozone concentrations in downwind areas (downwind areas arerelative to wind directions) by virtue ofthe fact that the

area is an urbanized area. Nonetheless, the Grand Rapids area has demonstrated attainment ofthe current ozone NAAQS in the three year period 1992-1994, and continues to demonstrate attainment for the period 1993-1995.

The EPA evaluated the winds on July 13, 1995, where exceedances ofthe

ozone NAAQS were recorded at all 3 monitors in the Grand Rapids area: Jenison at0.133 ppm; Grand Rapids at 0.163 ppm; and Parnell at0.134 ppm. Given that the winds were predominantly from the southwest and west/southwest, one would deduce that the exceedances were aresult ofozone transport into the area. This is especially likely in view ofthe fact that the Jenison monitor, which is the Grand Rapids upwind monitor," recorded an

ozone concentration of0.133 ppm. Comment:The commentor acknowledges that emissions from the Milwaukee-Chicago-Gary corridor were transported north out ofthebasin on

llAn upwind monitorwould indicate background levels ofozone entering an area. June 16, 1994, under high south/southsoutheasterly winds. However, the
commentor attributes an exceedance recorded in Grand Rapids on June 17, 1994, at a level of 149 ppb, to emissions from the Grand Rapids area since winds

were stillto light.

Response:The EPA acknowledges that local emissions, those from the Grand Rapids urbanized area, may affect

ozone concentrations in the area and any downwind area. However, the
extentofany contribution to ozone levels from the Grand Rapids area cannot be determined with any degree ofcertainty based on the information provided by the commentor, particularly in light ofindications that the Grand Rapids area is the recipient of significant levels oftransported ozone. Regardless ofits origin, this exceedance does not constitute aviolation ofthe

ozone NAAQS. Thus, the area continues
to be eligible for redesignation based on monitoring data showing no violations ofthe ozone NAAQS for the periods 1992-1994 and 1993-1995.

Comment:The commentor suggests that the 1992-1994 period cannot be used to demonstrate improvements in air quality due to permanent and enforceable emission reductions. Otherwise, the Chicago-Milwaukee-Gary severe-17 ozone nonattainment area could be downgraded to moderate ozone nonattainment. The commentor also alludes to the Detroit's assessment of contingency measures necessary to reduce domain-wide peaks in Tiverton, Ontario (Canada)below 200ppb.

Response:The November 6, 1991 (56 FR 56694) classifications served to determine a control strategy adequate to achieve emissions reductions that would improve the air quality in an area to a level that would demonstrate attainment ofthe NAAQS. Consequently

as an area implemented its control strategy it is anticipated that the air quality would continually improve until the area demonstrated attainment ofthe NAAQS. Upon demonstration of attainment, an area could request redesignation pursuant to section 107(d)(3) ofthe Act. The EPA has not allowed any area to reclassify based on 1992-1994 monitoring data or any other data sets outside ofthe data sets used in the November 1991 designations and classifications. Furthermore, pursuant to the General Preamble (April 16, 1992, 57 FR 13498), it is appropriate to redesignate any area to attainment based

on the most recent consecutive 3 years ofair quality data demonstrating attainment ofthe ozone NAAQS if the

area satisfies the other redesignation criteria ofsection 107(d)(3)(E) including

a demonstration that the improvement

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in air quality was due to permanent and enforceable emission reductions. Since the Grand Rapids area demonstrated attainment ofthe ozone NAAQS in the period 1992-1994, it is an appropriate period to be used as thebasis for redesignation ofthe area to attainment particularly since the area has also satisfied the other section 107(d)(3) redesignation criteria including a reasonable demonstration that of permanent and enforceable emission reductions were the cause ofthe improvement in air quality in the area. The Grand Rapids area achieved 0.6 and 2.4 tons per day ofVOC and NOx emission reductions between 1991 and 1994. In addition, since the Grand Rapids area is therecipient of significant levels oftransported ozone, Michigan also attributes the improvement in air quality, in part, to emission reductions achieved throughout the Lake Michigan region.

The comment regarding Detroit, Michigan is unclear and irrelevant to this rulemaking action. Comment:Based on a table comparing number ofdays with temperatures above 90 degrees and number of monitored exceedances in Chicago, the
commentor states that the years for which the Grand Rapids area demonstrated attainment, 1992-1994, fail the requirement that attainment can not be due to "unusually favorable meteorology" since that time period represents "a statistically significant (Chi square=14.6, Alpha=0.005) negative deviation" from the number of days conducive to formation ofozone or days with temperatures above 90 degrees.

Response:Section 107(d)(3)(E)(iii) requires that, for the EPA to approve a redesignation, it must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions. The September 1992 Calcagni memorandum, at page 4, clarifies thisrequirement by stating that "[attainment resulting from temporary reductions in emission rates (e.g., reduced production or shutdown due to temporary adverse economic conditions) or unusually favorable meteorology would not qualify as an air quality improvement due to permanent and enforceable emission reductions." As discussed in the April 2, 1996 Federal Register notice, the Grand Rapids area has reasonably demonstrated thatpermanent and enforceable emission reductions are responsible for the recent improvement in air quality. This demonstration was accomplished through an estimate ofthe reductions (from a nonattainment year, 1991 to an attainment year, 1994) of VOC and NOx achieved primarily through implementation ofthe Federal Motor Vehicle Control Program (FMVCP) from 1991-1994, in line with the September 1992 Calcagni memorandum. The total reductions achieved from 1991 to 1994were 0.6
tons ofVOC and 2.4 tons ofNOx per day. The State claimed credit only for emission reductions achieved as a result ofimplementation ofthis federally enforceable control measure. The emission reductions claimed are conservative since they do not include the emission reductions resulting from other control measures and programs implemented during this timeperiod, such asthe VOC RACT fix-ups and catch-ups. The State, therefore, adequately demonstrated thatthe improvement in air quality is due to permanent and enforceable emission reductions. Furthermore, the State has always maintained that the Grand Rapids area is significantly affected by

ozone transported from the ChicagoMilwaukee-Gary severe-17 ozone nonattainment area. Consequently, emission reductions occurring in these

areas are also attributable to the improvement in air quality in the Grand Rapids area.

With respect to the commentor's contention that meteorological conditions were not conducive to ozone production during the 1992-1994 period, the commentor provided an analysis ofthe number ofdays with temperatures equal to or greater than 90 degrees Fahrenheit atChicago's O'Hare airport and the total number of monitored exceedance days from 1981- 1995 throughout the Lake Michigan

area. Since, the data is not limited to the Grand Rapids area, i.e. the number of90 degree days in Chicago not Grand Rapids and the number ofmonitored exceedance days throughout the Lake Michigan area not only Grand Rapids, it would not be accurate to conduct a statistical analysis or draw conclusions pertaining to the Grand Rapids area based on this data, particularly in light ofthe transport phenomena affecting Grand Rapids. EPA, however, conducted ageneral statistical analysis ofthe meteorological parameters in the Grand Rapids area ofmaximum monthly temperatures and days with temperatures greater than 90 degrees Fahrenheit for the periods ofApril through September, 1992 through 1994, with the 10-year (1982-1991) averages for these parameters. The 1992-1994 averages for these parameters agreed with those for the 10-year averages with only minor differences. Based on averaged parameters, it can be concluded that the 1992-1994 period

was typically conducive to ozone formation. Finally, the EPA notes that the Grand Rapids area has been in attainment for the two 3-year periods (1992-1994, and 1993-1995), and that this, along with the fact that real emission reductions have occurred, indicates that attainment is notdue to unusually favorable, temporary meteorological conditions.

Comment:The commentor contends that the Ottawa County ozone monitoring network is inadequate to permit redesignation. The commentor notes that every monitor located on the
eastern shoreline ofLake Michigan recorded aviolation ofthe NAAQS in 1995, and finds it inconceivable that residents ofsoutheastern Ottawa County

were not exposed to ozone at levels above the NAAQS. This, the commentor concludes, should compel the EPA to require the State to site amonitor along the lakeshore in Ottawa County. The
commentor isparticularly concerned that EPArefuses to acknowledge that violations recorded at the Holland monitor, in Allegan County, which it contends, indicates violations ofthe NAAQS in Ottawa County. The
commentor further states that it agrees with Michigan's contention that the Holland monitor "* * * is representative ofthe conditions in Ottawa County."

Response:As discussed in detail in the April 2, 1996, EPA believes that the monitoring network forthe Grand Rapids area satisfies the requirements of 40 CFRpart 58, appendix D. Michigan established a number ofmonitors on the
west side ofthe State for purposes of gathering field data for the Lake Michigan Ozone Study (LMOS) during 1989-1991. Based on the field study data, the State decided to locate an

ozone monitor in Holland, an urbanized

area in Allegan County (just south of Ottawa County).However, at the encouragement ofEPA, the State reestablished amonitor in Ottawa County, i.e. the Jenison site, in 1994. Thisin addition to the two monitors that already exist in Kent County. Thus,

an ozone monitor is established in Ottawa County,however, the monitor is
not at the lakeshore but inland and represents background ozone concentrations for the Grand Rapids urban area. The EPA has nottaken any action to disapprove the network, but continually works with the State to improve the quality ofthe ambient monitoring network throughout the State. The fact that EPA and the State undertake actions that may result in improvements to the network, does not

mean that EPA views the monitoring 

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data which shows attainment ofthe standard in the Grand Rapids area as beinginadequate orunreliable. EPA continually reviews monitoring networks todetermine how they canbe improved. However, the factthat a monitoring networkis susceptible to improvement does not mean thatthe existing network does not meetEPA's regulations, nor does it mean thatthe data collected from the existingnetwork should beignored or discounted. EPA believes that themonitoring data fully supports a determination thatthe Grand Rapids area hasattained the standard and is, therefore, eligible for redesignation to attainment. EPA does not believe that there is abasis for discounting thedata which shows attainment ofthe standard.

EPA further notes that the additional monitor established in Ottawa County

aspart ofthe ongoing network improvements did not monitoran exceedance in 1992 when it operated for part oftheozone season, and has monitored only one exceedance since the monitorwasreestablished in 1994. While thatmonitorhas yet tobe in operation for three full years, those initialresults support the findingthat the area has attained the standard. As a violation does not occurunless four exceedances occur at a single monitor

over a three-yearperiod, the data from the Grand Rapids area support the determination that the area has attained the standard and is, therefore, eligible for redesignation.

Michigan contends thatthe Holland monitor "* * * data is included in this request as representative oflevels of transported ozone cominginto the area." This can beinterpreted tomean that theHolland monitor is representative ofozone thatisbeing transported into Ottawa County. However, asexplained in theproposal, the Allegan monitor cannot be considered part oftheGrand Rapids

area since itis outside thetwo county nonattainment area and the Stateof Michigan has never formally requested that itbemade part ofthe Grand Rapids area's monitoring network.Furthermore, the Holland monitoris not representative ofozone concentrations resultingfrom ozone precursor emissions from theGrand Rapids area. The EPAis makingitsconclusion about the airquality data thathasbeen collected from the valid network that currently exists in theGrand Rapids

area.

Comment:The commentor is concerned about the validity of monitoring data collected at theJenison monitor, specifically, the commentor alleges thatoftheyears 1992-1994 only the 1994data setis usable and is supplemented with 1995. In addition, the commentor questions the interpretation ofthe missing daily ozone value for July 14, 1995, from the Ottawa County ozone monitor. The commentor suggests that the missing daily ozone value for July 14, 1995 cannot be assumed to be less than the level ofthe standard since the maximum ozone concentration on the preceding day exceeded the standard.

Response:The Jenison monitor is one ofthree monitors in the Grand Rapids

area. The other two monitors have operated in Kent County since 1980 and recorded acomplete data set for 1992- 1994 that demonstrate attainment ofthe

ozone NAAQS consistent with EPA guidance including the September 1992 Calcagni memorandum and January 1979 document entitled "Guideline for the Interpretation ofOzone Air Quality Standards". The April 2, 1996 proposal noted that the Jenison monitor operated for 63 percent ofthe 1992 ozone season with no exceedances ofthe ozone NAAQS. The monitor was relocated to Holland, as discussed previously, based

on the LMOS. However, at the encouragement ofEPA, the State reestablished amonitor in Ottawa County, i.e. atJenison, in 1994. Thus, the Jenison monitorhas partial 1992 data and complete data for 1994 and 1995. No exceedances ofthe ozone NAAQS were recorded in 1992 and 1994 and one was recorded in 1995 at 0.133 ppm. As noted in the April 2, 1996 proposal, the "Guideline for the Interpretation ofOzone Air Quality Standards" suggests that evaluation

ozone data requires the use ofall ozone data collected at a siteduring the past 3 calendar years. Ifno data are available for aparticular year then the remaining years areused. Since 1992 data is incomplete and 1993 data is unavailable for this monitor, it would suffice to use

ozone monitoring data for the remaining
most recent calendar years, 1992-1995. The Ottawa County monitor demonstrates attainment ofthe ozone NAAQS with the average number of expected exceedances of0.5, a value less than 1.0.

It is unclear to EPA why the
commentor believes that the missing daily ozone value for July 14, 1995 has been assumed to be less than the level ofthe standard. AIRS reports consistently show that there were no missing days assumed to be less than the standard for the Ottawa County monitor for 1995. The monitor captured 179 ofapotential 183 days of monitoring data (98 percent data completeness). The 4missing days (183 -179=4) were notassumed to be 

### less thanthe standard, butrather were accounted for inthe calculation ofthe numberofexpected exceedances consistent with 40 CFR51 (appendix H). Thefour missingdays ofdata included July 14, 1995. Comment:Thecommentor states that Michigan fails to comply with the section 176 conformity requirements andprovides discussion to support the comment.

Response:This specific comment was submitted by the commentor toEPA in response to theEPA's February 2, 1996 (61 FR3815-3817) directfinal rulemaking to approve Michigan's general conformity SIP. As aresult the EPA withdrew the direct final rulemaking in an action published on March 25, 1996 (61 FR 12030).This comment isnot relevant to redesignation and therefore, willbe addressed in thefinalrulemaking action

onMichigan's general conformity SIP. See also the discussion above in the response on conformity requirements as theypertain toredesignation.

Comment:Thecommentor states that theMichigan City, Indiana ozone monitor(18-091-0005) in LaPorte County in northeastern Indiana recorded six exceedances during 1995, includingdaily ozonevalues of0.154 ppm and 0.149 ppm. Thecommentor argues that several oftheexceedances recorded in theMichigan City area are attributable, in part, to ozone and precursors originating in westMichigan.

The commentor notes that inresponse toEPA's June 2, 1995proposed rulemaking pertaining tothe determination ofattainment forthe Grand Rapids area,they submitted a commentregarding LMOS modelingfor June 20-21 (Episode4) which confirms thatemissions from western Michigan contribute to exceedances ofthe ozone NAAQS. Thecommentor further notes thatEpisode4 conditions are "associated with a lesser,yet significant, numberofhistorical ozone episodes."

The commentor suggests thatEPA stated that ithas an "affirmative responsibility" to address transported emissions from upwind areas that significantly contribute to airquality problems indownwind areas. See 60FR 37368.

The commentor notes thatMichigan onlycites LMOS modelingwhich shows thatozone and ozone precursors are transported intothe Grand Rapids area. Thecommentor isconcerned that Michigan refuses to acknowledge LMOS modelingthat indicates that ozone and precursor emissions originating from Grand Rapids under certain meteorological conditions which occur with regularfrequency, contribute to

### Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

exceedances in downwind areas, including Michigan City, Indiana.

Response:TheEPA hasreviewed wind speeds and wind directions in Grand Rapids and Michigan City, Indiana forthe 6days on which exceedances were recorded inMichigan City, Indiana in 1995. The winds on the days at issue in Grand Rapids were predominantly from the south/ southwest, i.e. into the Grand Rapids

area with the exception ofJune 15, 1995, when thewinds in Grand Rapids

were predominantly from the easterly. The winds inMichigan City on the same days were alsopredominately from the south/southwest. Since Michigan City, Indiana is south-southwest ofthe Grand Rapids area, the exceedances on these days in 1995 were clearly not attributable to emissions from the Grand Rapids area butlikely from theChicagoGary severe-17 nonattainment area.

The commentor has not clearly indicated what version ofthe modeling isused as thebasis oftheir comment. It must be emphasized that theversion of theLMOS modeling approved for regulatory purposes byEPA on December 15, 1994, forEpisode 4 (June 20-21), does not clearly indicate the extent ofthe contribution ofemissions from the Grand Rapids area to exceedances in the Michigan City, Indiana or any other downwind area. Since the extent ofGrand Rapids' contribution to exceedances downwind cannot be determined with any degree ofcertainty given theinformation currently available, itwould be premature for EPA to issue a finding pursuant to section 110(a)(2)(D). The commentor does not provide any additional information thatwould cause theEPA to determine that the imposition ofadditional control requirements in the area is warranted at this time. Asfurther information becomes available, however, such a finding maybe warranted.

In light ofthepreliminary information currently available, EPA does not believe that itwould bejustifiable to disapprove theredesignation request on thebasis ofconcerns regarding transported emissions. The redesignation does not mean, however, that the Grand Rapids area mightnot have to achieve additionalreductions pursuant toother provisions oftheAct ifitis determined in thefuture that such reductions are necessary to deal with transport from the Grand Rapids area to downwind areas. Finally,EPA would note thatthe issueoftransported ozone and ozone precursors isbeing addressed by EPAthrough the OTAGwhich is composed ofindustry, environmental groups, Federal, State and Local governments from the eastern halfofthe United States. The Lake Michigan States ofIllinois, Indiana, Wisconsin, and Michigan are all participating, at some level, in the OTAG process (Phase I/ Phase II attainment demonstrations as provided for in the March 2, 1995 memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, entitled "Ozone Attainment Demonstrations"). In addition, Phase II ofthis analysis will assess the need for regional control strategies and refine local control strategies. Phase IIwill also provide the States and EPA the opportunity to determine appropriate regional strategies to resolve transport issues including any impacts the Grand Rapids area may have on ozone concentrations in its downwind areas.

The commentor references the July 20, 1995 final rule regarding the determination ofapplicability ofcertain RFP and attainment demonstration requirements to the Grand Rapids area, and claims thatEPA stated that ithas an "affirmative responsibility" to address transported emissions from upwind

areas that significantly contribute to air quality problems in downwind areas. EPA was, in fact,responding to a comment from the same commentor regarding the impacts ofGrand Rapids

on downwind areas. The EPA stated that ithas the authority under sections 110(a)(2)(A) and 110(a)(2)(D) ofthe Act
to ensure that the required and necessary reductions are achieved in Grand Rapids, should subsequent modeling become available, such as the modeling that will be available through completion ofthe Phase II analysis, or any other subsequent modeling data. The EPA acknowledged in that final rule and in the April 2, 1996 proposal
to redesignate Grand Rapids that preliminary modeling indicates that
western Michigan is the recipient of transported ozone and that the area may also contribute to ozone concentrations in downwind areas. However, the LMOS modeling isbeing refined and is intertwined with the OTAG Phase I/ Phase IIprocess. Indeed, should the Phase IIor any other modeling become available that demonstrates that reductions in ozone precursor emissions from the Grand Rapids area are necessary, the EPAhas the authority to

ensure that these emission reductions

are achieved. In summary, currently no technically supportable basis exists for EPA to exercise its responsibility to take appropriate action to seek additional emission reductions in the Grand Rapids area.

Finally, Michigan submitted LMOS modeling which illustrated ozone and

ozone precursor transport into the Grand Rapids area in the context ofan overwhelming transport petition. Since Episode 4 models northeasterly wind patterns, itwould not be relevant in demonstrating overwhelming transport into the area.

Comment:The commentor states that the maintenance plan submitted by Michigan is inadequate because Michigan's attainment emission inventory does not comply with EPA requirements and implies that there are insufficient enforceable pollution control measures available to ensure attainment and promptly correct any violations. The commentor appears to be sayingthat the SIP revision requirements ofsection 110 and part D should initially reduce ozone pollution, and subsequently maintain the improvement in air quality. The
commentor also suggest that the emission inventory projections in the maintenance plan underestimate emissions growth in Grand Rapids.

Response:The commentor does not provide support for the contention that the attainment emission inventory does
notcomply with EPA requirements. EPA has reviewed Michigan's attainment emission inventory and believes that the inventory, in fact, is sufficient and meets EPA's requirements and guidance regarding emission inventories. With respect to the sufficiency ofcontrol measures necessary to ensure attainment and promptly correct a violation, the EPA would note first that Michigan has included inspection and maintenance, Stage II, low Reid Vapor Pressure fuel at 7.8psi, and VOC RACT for major plastic parts coating,wood furniture coating and industrial clean-up solvents as control measures to be implemented to address aviolation not attributable to transport. EPAbelieves that these control measures are adequate for
purposes ofcontingency measures. The control measures already implemented in the area were obviously sufficient to allow the area to attain the ozone standard. Furthermore, the State has demonstrated that VOC and NOx emissions will continue to decrease from the 1991 atttainment yearlevels through the 10year maintenance period.

EPA agrees with the commentor that emission controls under section 110 and part D should reduce ozone pollution and subsequently maintain improvements in air quality. Although Michigan did not claim permanent and enforceable emission reductions credit for emission reductions achieved as a result ofimplementing section 110 and part Drequirements, the State must continue to implement theseprograms

even afterredesignation. 

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It should berecognized that approval oftheredesignation is not expected to result in an increase in ozone precursor emissions. In fact, a decrease in both VOC and NOx emissions from the Grand Rapids area is expected over the 10-year maintenance period. See 61 FR 14522, April 2, 1996. It should be noted that redesignation does not allow States to automatically remove control programs which have contributed to an area's attainment ofaNAAQS for any pollutant. The EPA's general policy is that a State may notrelax the adopted and implemented SIP for an area upon the area's redesignation to attainment, unless an appropriate demonstration, based on modeling 12 or adequate justification 13, is approved by the EPA. In this case no previously implemented control strategies arebeing relaxed as part ofthisredesignation.

Further, apart from Title I requirements related to the cessation of the Grand Rapids area's status as an

ozone nonattainment area, the area is and will continue to be, required to satisfy all Act requirements. Other control programs required bythe Act will be implemented in the area, regardless ofthe ozone designation, such as Title IV NOx controls, section 112 toxic controls and FMVCP requirements.

The commentor does notprovide any support for its contention that the emissions growth projections in the maintenance plan are underestimated for the Grand Rapids area. The emissions projections in the maintenance plan are based on the 1991 emission inventory developed for the LMOS modeling effort. The projections

arebased on growth factors extracted from the EPA'sEconomic Growth Analysis System and supplemental information used in the development of emission projections. Point source growth factors forutilities arebased on

source specific data provided by the utility companies. Area source growth factors were supplemented with population and gasoline sales/marketing data. The stationary source emission estimates (point and area) were developed using the geocoded emissions modeling and projections system (GEMAP) which employs projection methodologies equivalent to those in the EPA's Emissions Projections System. EPA's MOBILE5a model was used to develop the mobile

12Such a demonstration must show thatremoval of a control program willnotinterfere with maintenance ofthe ozoneNAAQS and would entail submittal ofan attainment modeling demonstration with the EPA's current GuidelineonA ir Quality Models.

13 See September 1992 Calcagni memorandum. source emission estimates. Therefore, the emission projections methods are consistent with EPA's guidance. Comment:The commentor cites two separate provisions ofthe Act, sections 182(c)(9) and 175A(d) that demand that maintenance plans include "specific

measures to be undertaken if the area fails to meet any applicable milestone. Such measures shall be included in the plan revision as contingency measures to take effect without further action by the State or Administrator upon a failure by the State to meet the applicable milestone." Section 182(c)(9). The commentor argues that Michigan's triggering mechanism is patently illegal and unacceptable under the Act.

The commentor states that the triggering mechanism defeats the meaning and purpose ofthe ozone standard (40 CFR 50.9) in that the ozone standard does not account for transport, i.e. an area is either in attainment or nonattainment due to observed ozone violations and that the designation and classification arepurely a function of observed ozone values and not a function ofthe origin ofozone.

The commentor also questions the evaluation criteria utilized byMichigan, calling it "extremely suspect."

Response:Section 182(c)(9) contains the requirements for serious and above

areas to adopt contingency measures pertaining to RFP, and is not relevant to this redesignation. Section 175A(d), however, isrelevant and states that "* * * plan revision submitted under this section shall contain such contingency provisions asthe Administrator deems necessary to

assure that the State will promptly
correct any violation ofthe standard which occurs afterthe redesignation of the area as an attainment area." The mechanism that would trigger the implementation ofcontingency

measures in the Grand Rapids area is "an actual monitored ozone violation of the NAAQS, as defined in 40 CFR 50.9, determined not to be attributable to transport from upwind areas." The EPA believes that this triggering mechanism is appropriate for the Grand Rapids area, given the overwhelming evidence demonstrating that the area is the recipient oftransported ozone and

ozone precursors from the MilwaukeeChicago-Gary severe-17 nonattainment

areas. EPA believes that this triggering mechanism satisfies the requirement of section 175A(d), because ifa violation is due to transport, then control measures implemented in the Grand Rapids area will not likely correct the violation. Thus, when violations are occurring as

aresult oftransport, an attempt to impose control measures in the Grand Rapids area would be futile. EPA believes that it is implicit in the Act that the purpose ofcontrolmeasures is to achieve attainment.

Because violations due to transport

are not accounted for in the ozone NAAQS at40 CFR 50.9 does not mean that transport cannot be taken into
account forpurposes ofimplementing a control strategy to correct a violation. Although areas are designated and classified based on monitored violations, regardless oftheir origin,

areas redesignated to attainment will be provided an opportunity to implement contingency measures to correct the violation before EPA would exercise its authority to redesignate the area back to nonattainment.

As part ofthe contingency plan for the Grand Rapids area, Michigan will conduct a technical analysis of meteorological conditions leadingup to and during the exceedances contributing to aviolation in order to determine local culpability. The
commentor is concerned about the criteria to be used to evaluate transport, although the commentor does not provide any specifics about what criteria they are concerned. Furthermore, EPA notes that any analysis conducted by Michigan to determine local culpability will be subject to apublic process. As part of the contingency plan, Michigan has incorporated procedures to involve EPA and afford the public the opportunity to review and participate in the determination ofwhether transport or local sources arereasonable for a violation.

Comment:The commentor contends that the only contingency measure actually adopted by Michigan is low RVP to 7.8psi duringthe ozone season. The commentor notes that implementation ofthe I/M program was stayed by the Governor ofMichigan on December 29, 1994, and that the Michigan legislature rescinded implementation ofthe Stage II vapor recovery program once the EPA promulgated its on board canister rule.

Response:The Grand Rapids moderate ozone nonattainment area was required to adopt and implement a basic I/Mprogram. An enhanced I/Mprogram

was adopted byMichigan and fully approved byEPA into the SIP on October 11, 1994 (59 FR51379), and

was to have commenced operation on January 1, 1995. By the end of 1994, the Grand Rapids area had attained the

ozone standard and was therefore, eligible for redesignation. The January 5, 1995 (60 FR 1735) revisions to the national I/Mrule stipulate that areas

### Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

otherwise eligible for redesignation may submit the following in order to satisfy the I/M component ofthe SIP: legislative authority for basic I/M; a provision in the SIP providing that I/M be placed in the contingency measure portion ofthe maintenance plan; and an enforceable schedule and commitment by the Governor or his designee for adoption and implementation ofabasic I/Mprogram upon a triggering event. Also, see September 17, 1993 memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, entitled, "SIP Requirements for Areas Submitting Requests for Redesignation to Attainment ofthe Ozone, Carbon Monoxide NAAQS on or afterNovember 15, 1992," 14memorandum. With this, the Governor stayed the implementation oftheI/M program in the Grand Rapids

area. The Grand Rapids area, therefore, only needs to satisfy the items noted above. The legislative authority to implement an I/M program is contained in Michigan's Enrolled House Bill No. 4165, which provides that I/Mmay be implemented as a contingency measure consistent with an area's maintenance plan if itis not necessary for maintenance. The section 175A maintenance plan provides for the implementation ofI/M as a contingency

measure and also provides an enforceable schedule for the implementation ofI/M as a contingency

measure.

With respect to the commentor's

concern regarding the rescission of Stage II, section 10c(3) ofMichigan's Enrolled Senate Bill No. 726 for Stage II suspends implementation ofthe Stage II program once EPA has promulgated the final onboard rule. However, section 10c(3) also retains the authority to implement Stage II as a contingency

measure in a maintenance plan for an

area redesignated to attainment. Thus,

once Grand Rapids is redesignated to attainment, Stage II maybe implemented by the State as a contingency measure pursuant to the maintenance plan.

In conclusion, the State has adopted legislative authority to implement I/M, Stage II and low RVP to 7.8 psi as contingency measures. Comment:The commentor notes that the January 24, 1996 letter from Dennis Drake, Chiefofthe Air Quality Division, Michigan Department ofEnvironmental Quality to Valdas Adamkus, Regional Administrator, Region 5, and the State's April 11, 1996 contingency plan SIP revision imply that the VOC non-CTG

14Hereinafter referred to as the "September 1993 Shapiro memorandum." RACT rules were atleast adopted when in fact they were not.

Response:The January 24, 1996 letter merely notified EPA ofthe State's intention to revise the Grand Rapids area's maintenance plan to include a commitment to adopt and implement non-CTG VOC RACT rules for major

sources ofplastic parts coating, wood furniture coating and industrial cleanup solvents as contingency measures for the Grand Rapids area. The actual revision to the maintenance plan SIP, dated April 11, 1996, states that rules to apply non-CTG RACT to major sources ofplastic parts coating, wood furniture coating and industrial clean up solvents have been "drafted." The State specifically notes that the promulgation process requires additional steps including "approval ofthe proposed rules by the Office ofRegulatory Reform, the Legislative Services Bureau, and the Joint Legislative Committee on Administrative Rules." The State clearly indicated that the rules are draft and additional steps are necessary for promulgation. Furthermore, EPA explained in the April 2, 1996 proposal that the contingency measure for this element is that the State would commit
to adopt and implement non-CTG VOC RACT rules for the three source categories noted previously. Comment:The commentor suggests that the State's failure to adopt and implement the VOC non-CTG RACT rules in accordance with section 182(b)(2)(A) ofthe Act violates the sections 110 and 107(d)(3)(E)(v) requirements. Section 107(d)(3)(E) requires the State to adopt acomplete part D nonattainment plan, which these non-CTG VOC RACT rules are part of, prior to redesignation.

Response:In the April 2, 1996 proposal, the EPA acknowledges that the section 182(b)(2)(A) requirement for non-CTG VOC RACT rules is an applicable requirement and that current EPA redesignation policy requires that these rules be fully adopted, and ifnot necessary for maintenance ofthe NAAQS, be moved to the contingency plan portion ofthe maintenance plan. However, the EPA, in this instance, proposed an exception to this policy based on acombination ofthree factors

aspreviously discussed. The commentor, however, has not provided
comments specific to the rationaleused

asthe basis ofthe exception.

EPA emphasizes that, even without this exception to its general policy, the State would have been able to have the RACT rules become a part ofthe contingency measures in the maintenance plan upon approval ofthe redesignation. However, that could have occurred only after or upon EPA's full approval ofthe adopted RACT rules. Therefore, the only difference between EPA's general policy and the exception
to thatpolicy proposed for Grand Rapids is that acommitment to adopt and implement the RACT rules in an expeditious manner, rather than fullyadopted RACT rules, would be among the contingency measures in the maintenance plan. As previously discussed, the EPA believes that this exception to its general policy is legally permissible under the statutory provisions governing redesignation. The VOCRACT requirements remain applicable requirements under section 107 and EPA believes that their
treatment in the contingency plan as commitments is consistent with the

mannerin which EPAhas accepted other commitments to adopt and implement contingency measures in maintenance plans under section 175A.

Comment:The commentor states that the contingency measures provided for in the maintenance plan are inadequate and illusory. The commentor further elaborates that none ofthe contingency

measures are adopted with the necessary legislative authority or described with sufficient specificity, nor do they include milestones to insure prompt implementation as required by section 175A(d) orEPA guidance.

Response:Contrary to the commentor's statement, legislative authority is adopted forthree ofthe contingency measures, I/M, Stage II and low RVP to 7.8psi. Further, the State has submitted an enforceable commitment to implement the three non-CTGVOC RACT rules. Neither the Act norredesignation guidance require milestones to track the State's compliance with adoption and implementation ofcontingency

measures. The September 1992 Calcagni memorandum suggests that the contingency plan identify the contingency measure to be adopted, provide a schedule and procedure for adoption and implementation, and provide a specific time limit for action by the State. The Grand Rapids area's contingency plan identifies the measure to be adopted, provides a procedure for adoption ofthe non-CTG VOC RACT rules ("promulgation involves * * * additional steps * * * approval ofthe proposed rules by the Office of Regulatory Reform, the Legislative Services Bureau * * * " See April 

### 11, 1996, SIP revision) and provides a schedule for implementation (e.g.20 months from the Governor's decision to employ these rules as contingency measures). It is noted that the critical component ofthis schedule is not the 

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State's internal schedule for adoption of the rule(s) but the schedule for full implementation.

It is further noted that the contingency measure implementation schedules for the Grand Rapids area

were derived from the Act, and applicable State and Federal regulations. The schedule established for the implementation ofcontingency

measures provides for the implementation ofsuch measures as

soon as within 1 year ofa violation 15. The EPA 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:The commentor states that EPA guidance requires that a maintenance plan "ensure prompt correction ofany violation ofthe NAAQS." Yet the Grand Rapids maintenance plan SIP revision ofApril 11, 1996 allows implementation ofthe non-CTG RACT rules within 26 months ofan ozone violation. The commentor is concerned that 26 months for implementation ofthe non-CTG VOC RACT rules does not ensure prompt correction ofaviolation. In addition, the maintenance plan lacks adequate milestones to track the State's compliance.

Response:The 26-month schedule to implement the non-CTG VOC RACT rules takes into account 6 months to quality assure the monitoring data indicating a violation ofthe ozone NAAQS, conduct an analysis to determine local culpability with respect to a violation, and to afford thepublic

an opportunity to participate in the determination oflocal culpability, 8 months for full adoption of any ofthe non-CTG RACT rule(s) chosen as a contingency measure, and 12 months for full implementation. 16 The EPA believes that this is an expeditious schedule for adoption and implementation ofthese rules.

Furthermore, neither the Act nor redesignation guidance requires milestones to track the State's compliance with adoption and implementation ofcontingency

measures. The September 1992 Calcagni

15Phased in implementation ofStage II

commences within 6 months ofthe Governor's decision to employ Stage IIor oneyear ofa monitored violation.

16See March 16, 1989 memorandum from John Calcagni, Director, Air Quality Management Division and John Seitz, Director, Stationary Source Compliance Division entitled "Compliance Schedules for Volatile Organic Compounds." This memorandum clarifies that the "presumptive norm" for source compliance with anew orrevised rule isrecommended to be 1year or less. memorandum suggests that the contingency plan identify the contingency measure to be adopted, provide a schedule and procedure for adoption and implementation, and provide a specific time limit for action by the State. The Grand Rapids area's contingency plan identifies the measure to be adopted, provides a procedure for adoption ofthe non-CTG VOC RACT rules ("promulgation involves * * * additional steps * * * approval ofthe proposed rules by the Office of Regulatory Reform, the Legislative Services Bureau * * *" See April 11, 1996, SIP revision) and provides a schedule for implementation (e.g.20 months from the Governor's decision to employ these rules as contingency measures). The critical component of this schedule is not the State's internal schedule for adoption ofthe rule(s) but the schedule for full implementation.

Finally, there are other more effective contingency measures than the non-CTG 

### VOC RACT rules thatcould be implemented more expeditiously such

as Stage II and low RVP gasoline (to 7.8 psi). Comment:The commentor states that allowing the State to commit to subsequent adoption ofthe three required VOC non-CTG RACT rules as contingency measures is "extraordinary and prohibited * * *preferential treatment" forMichigan and is inconsistent with EPA guidance and
recent actions on other moderate area redesignation requests. The commentor believes that such preferential treatment rewards the State for its failure to satisfy Act requirements. This is particularly
so, since the EPApenalized adjacent States that did not adopt and implement these non-CTG VOC RACT rules and other control measures. Preferential
treatment is "illegal" and undermines the cooperation ofother States implementing future control measures to reduce ozone and ozone precursor emissions and other efforts such as LMOS and OTAG. The commentor further states that the EPA's preferential
treatment is especially evident in its allowing Michigan to determine the need for implementation ofcontingency

measures based on parameters developed byMichigan.

Response:EPA again notes that, even without the exception to its general policy proposed in the April 2, 1996 rulemaking, the State would have been able to have the RACT rules become a part ofthe contingency measures in the maintenance plan upon approval ofthe redesignation. However, that could have occurred only after or upon EPA's full approval ofthe adopted RACT rules. Consequently, the only difference between EPA's general policy and the exception to that policy described in the proposal is that a commitment to adopt and implement the RACT rules in an expeditious manner, rather than fullyadopted RACT rules, would be among the contingency measures in the maintenance plan. EPA would also note that,in general, contingency measures need not be fully adopted. See September 1992 Calcagni memorandum. Thus,EPA is acknowledging that allowing Michigan to incorporate these non-CTGVOC RACT measures into the contingency plan without fully adopted rule is an exception to policy. The commentor,however, has notprovided
any basis to dispute therationale for this exception and factors presented in the April 2, 1996 proposal.

The EPA disagrees with the commentor's contention that EPAis affordingMichigan "preferential treatment." EPA guidance and policies have been, or can be, applied to all
areas, including Grand Rapids, in an equitable manner. EPA periodically will make an exception to policy where an exception is warranted and appropriate. Allowing an exception to policy for a particular area does notconstitute preferential treatment for that area but instead is a neutral determination that is available to other areas that could also demonstrate circumstances that would
warrant the same exception. This is the first instance that the issue offull adoption oftheseparticular non-CTG VOCRACT rules has arisen in the
context ofredesignation. As such, itis in this action that the exception to policy is being exercised.

The commentor does not cite any instances, nor is EPA aware ofany instances, where EPA penalized an adjacent State that did not adopt and implement these non-CTG VOC RACT rules. The commentor does not specify the "other control measures" referred to.

In addition, with respect to the Grand Rapids maintenance plan, Michigan has incorporated a process notonly to involve the EPA but to afford the public

an opportunity to participate in the
process to determine the necessity to select and implement contingency

measures based on atechnical analysis
to determine local culpability. Thus, although Michigan will be conducting the analysis an opportunity forthe public review and participate will be provided. Comment:The commentor states that the non-CTG VOC RACT rules should have been adopted and implemented by November 15, 1994. The commentor also notes that neitherMichigan nor EPA acknowledges this. The commentor adds that EPAhas failed to enforce

### Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

sections 182(b)(2)(A) at thattime and is failing to enforce section 175A ofthe Act, now.

Response:Although EPA's general redesignation policy requires that rules 

### and programs forrequirements that

come due prior to submittal ofa complete redesignation requestbe adopted and fully approved into the area's SIP,it also allows for these

measures tobe moved into the area's maintenance plan as contingency

measures ifthey are not yet implemented and not necessary for maintenance ofthe standard. September 1993 Shapiro memorandum. Thus, the non-CTG VOCRACT rules should have been adopted butnot necessarily implemented. The rules wouldhave been moved overinto the area's maintenance plan since theywere not needed for maintenance.

The April 2, 1996proposal to approve the Grand Rapids redesignation does, in fact, acknowledge thatthe non-CTG VOC RACT rules were required tobe submitted to EPAbyNovember 15, 1994 and implemented by November 15, 1995. See 61 FR 14526. The State's April 11, 1996 submittal also acknowledges thatthese rules were due

on November 15, 1994.

For the reasons explained above, however, EPA believes that its treatment oftheserules in thisredesignation is 

### justifiable and appropriate. Comment:The commentor is concerned that Michigan's contingency plan lacks milestones and is inconsistent with the specificity that the EPA required ofcontingency plans in other areas such as the Toledo, Ohio contingency plan, which included a number ofmilestones to gauge the State'sprogress.

Response:Neither the Act nor redesignation guidance require milestones to track the State's compliance with adoption and implementation ofcontingency

measures. The September 1992 Calcagni memorandum suggests that the contingency plan identify the contingency measure to be adopted, provide a schedule and procedure for adoption and implementation, and provide a specific time limit for action by the State. The Grand Rapids area's contingency plan identifies the measure to be adopted, provides aprocedure for adoption ofthe non-CTG VOC RACT rules ("promulgation involves * * * additional steps * * * approval ofthe proposed rules by the Office of Regulatory Reform, the Legislative Services Bureau * * * " See April 11, 1996, SIPrevision) and provides a schedule for implementation (e.g. 20 months from the Governor's decision to employ these rules as contingency measures). The critical component of this schedule is not the State's internal schedule for adoption ofthe rule(s),but the schedule for full implementation. Comment:The commentor is concerned that the schedule for implementation ofthe non-CTG VOC RACT rules for the three source categories identified would not "promptly correct any violation ofthe standard" since it allows over 2 years after an ozone violation before adopting and implementing a selected contingency measure.

Response:As noted previously, the 26-month schedule to implement the non-CTG VOC RACT rules takes into
account: 6 months to quality assure the monitoring data indicating aviolation of the ozone NAAQS, conduct an analysis
to determine local culpability with respect to the violation, and afford the public an opportunity to participate in the determination oflocal culpability; 8 months for full adoption ofany ofthe non-CTG RACT rule(s) chosen as a contingency measure; and 12months for full implementation. The EPAbelieves that this is an adequate and expeditious schedule for adoption and implementation ofthese rules. In addition, the contingency plan contains other measures that provide for implementation ofameasure as soon as within 1 year ofaviolation.17
Comment:The commentor suggests that the September 1992 Calcagni memorandum requires States to implement all the control measures prior to redesignation but that arevision
to the SIP to remove measures may be submitted. The commentor interprets this to mean that the State musthave adopted and implemented the "applicable control measures" in the

area. The commentor notes that Michigan did not adopt and implement the non-CTG VOC RACT rules for plastic parts coating, wood furniture coating and clean-up solvents as required by section 182(b)(2)(A). In addition, Michigan did not adopt rules for non-CTG source categories which it deemed unnecessary due to the absence ofexisting sources.

Response:The September 1992 Calcagni memorandum interprets section 175A(d) asrequiring the continued implementation ofall

measures contained in the area's part D nonattainment plan and thatremoval of these implemented measures would require ademonstration thatthe

measures are not necessary for attainment or maintenance. In addition,

once removed those measures are

17See footnote 15. required to be incorporated into the area's contingency plan as contingency



### measures. The non-CTG VOCRACT rules, however, were not adopted bythe State or approved byEPA into the area's part Dnonattainment SIP. As such, the 

### non-CTGVOC RACT rules werenot required to be implemented as a prerequisite for redesignation since they

were not incorporated into the part D nonattainment SIP.Furthermore, EPA's general redesignation policy does not require the implementation ofall

measures that were applicable to the

area instead, it allows unimplemented

measures to be moved into an area's maintenance plan as contingency

measures ifthey are notnecessary for maintenance. SeeDetroit redesignation with respect to Stage I (March 7, 1995, 60 FR 12459).

It is unclear to EPA why the
commentor would be concerned that the State did not adopt rules applicable to

sources which donot existin the State. Appendix Eofthe supplement to the General Preamble (April 28, 1992, 57 FR 

### 18070) stipulated thatthe States submit

a list ofmajor stationary sources that are expected to be subject to one ofthe 11

source categories forwhich EPA was to issue a CTG.Michigan submitted such

a list on November 15, 1992. States have
notbeen required to adopt rules for nonCTG source categories for which no

sources exist in the State.

Comment:The commentor states that EPA noted to Michigan, in its 

### preliminary review ofthe Grand Rapids area's redesignation request, that adopted rules for the applicable source categories in Appendix E should be submitted. In response, the State committed to adopt these non-CTG VOC RACT rules as contingency measures should they be chosen as contingency

measures. The commentor believes this is an "inadequate and unacceptable substitute" for adoption and implementation oftheserules.

Response:EPA's comments merely represented apreliminary review ofthe State's redesignation request. As 

### discussed in theApril 2, 1996 proposal,
current EPApolicy, in fact, would require the State to have submitted adopted non-CTGVOC RACT rules for the 3 source categories atissue before the area could be redesignated to attainment. As discussed previously, however, EPA proposed to make an exception to policy in this instance for 

### several reasons, including thefactthat the RACT rules atissue came due after the end ofthe ozone season in which Grand Rapids attained the standard and

were not needed to bring about attainment ofthe ozone standard in Grand Rapids. In addition, the State has 

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demonstrated continued maintenance of the ozone standard through 2007 without the implementation ofthese

measures and other contingency

measures are included in the maintenance plan thatwould bring about fargreater emission reductions than the VOCRACT rules, and would therefore be substantially more effective in terms ofcorrecting violations attributable to local emissions from the Grand Rapids area thatmay occur after redesignation. Again, the commentor does not challenge therationalused to make the exception topolicy pertaining to thenon-CTG RACTrules.

EPA's general redesignation policy requires that rules andprograms for requirements that come due priorto submittal ofa complete redesignation request be adopted and fully approved into the area's SIP. Thepolicy also allows forthese measures tobemoved into the area's maintenance plan as contingency measures iftheyare not necessary for maintenance ofthe standard. September 1993 Shapiro memorandum. Thus, the non-CTG VOC RACT rules should have been adopted but may have been moved overinto the area's maintenance plan, ifthearea demonstrated that themeasure(s) was not necessary formaintenance. Comment:The commentor submits that theEPA isprohibited from acceptingcommitments by a State to adopt and implement contingency

measures in place offully adopted and implemented rules as required for SIP revisions pursuant to section 110(k)(4). Natural ResourcesDefense Counsel (NRDC)v. U.S. EPA.

Response:EPA does notbelieve that the D.C.Circuit's decision inNRDCv. U.S. EPA, 22F.3d 1125 (D.C. Cir. 1994) concerning theuse ofcommitments under section 110(k)(4) prohibitsEPA from fully approving commitments by a Stateto adopt and implement contingency measures in a section 175A maintenance plan. TheNRDCdecision concerned theuse ofthe section 110(k)(4) conditional approval mechanism, which contemplates the conversion ofa conditional approval to

adisapproval ifa Statefails to comply with a commitment to adopt specific enforceable measures by a date certain, which may be no later than oneyear afterthe conditional approval. In contrast, the commitments regarding contingency measures in a section 175A maintenance planbecome enforceable commitments once they are fullyapproved into themaintenance plan. As these commitments are fully approved into the SIP, they, like otherprovisions ofa fully-approved plan, are enforceable pursuant totheprovisions ofthe Act. See September 1992Calcagni memorandum at p. 12 (stating that "the contingency plan is considered to be an enforceable part ofthe SIP").EPA notes that ithas not relied on the section 110(k)(4) conditional approval mechanism for dealing with commitments regarding maintenance plan contingency measures either before

or aftertheNRDCdecision, but has consistently fully-approved such commitments, thereby makingthem an enforceable part ofthe SIP.In sum, EPA does not believe that its authority to accept such commitments was affected by theNRDCdecision. Comment:The commentor cites the September 1992Calcagni memorandum which provides that, "for purposes of section 175A, a State is notrequired to have fully adopted contingency

measures that will take effect without further action by the State in order for the maintenance plan to be approved," and interprets this language to imply that contingency measures need not be self-executing and provides the State discretion in selection ofacontingency

measure from ahost of "adopted contingency measures."

Response:The September 1992 Calcagni memorandum citation noted by the commentor is valid. However, the September 1992 Calcagni memorandum goes on to say in the next sentences that "the contingency plan * * * should

ensure that the contingency measures

are adopted expediently once they are triggered." Clearly, this indicates that contingency measures need not be fully adopted since the contingency plan should ensure expeditious adoption of contingency measures. Comment:The commentor is concerned that the State did not implement an enhanced I/Mprogram as scheduled in December 1994 and that the State has partially rescinded the legal authority for theI/Mprogram.

Response:TheGrand Rapids moderate

ozone nonattainment area was required
to adopt and implement a basic I/M program. An enhanced I/M program was adopted by Michigan and fully approved byEPA into the SIP on October 11, 1994 (59 FR51379) and was to have commenced implementation on January 1, 1995. By the end of 1994, the Grand Rapids area had attained the

ozone standard and therefore, was eligible for redesign ation. The January 5, 1995 (60 FR 1735) revisions to the national I/Mrule stipulate that areas otherwise eligible for redesignation, may submit the following in order to satisfy the I/Mcomponent ofthe SIP: legislative authority for basic I/M; a provision in the SIP providing that I/M be placed in the contingency measure portion ofthe maintenance plan; and an enforceable schedule and commitment by the Governor or his designee for adoption and implementation ofa basic I/Mprogram upon a triggering event. Also, see September 1993 Shapiro memorandum. With this, the Governor stayed the implementation ofthe I/M program in the Grand Rapids area. In order to satisfy the I/Mcomponent of the SIP, therefore, the State needs to satisfy only the items noted above. The legislative authority to implement an I/ M program is contained in Michigan's Enrolled House Bill No. 4165 which provides that I/M may be implemented

as a contingency measure consistent with an area's maintenance plan ifit is
notnecessary for maintenance. The 175A maintenance plan provides for the implementation ofI/Mas a contingency
measure, and also provides an enforceable schedule for the implementation ofI/Mas a contingency

measure.

Finally, EPA is not aware ofany revocation ofthe legal authority ofthe I/Mprogram. In fact, discussions with the State verified that Michigan's Enrolled House Bill No. 4165 has not been revoked or repealed but is still valid.

Comment:Thecommentor conducted

an analysis of 1995 ambient monitoring data and concluded that the emissions from the Grand Rapids area produces tropospheric ozone. Adoption and implementation ofthe non-CTG VOC RACT rules for plastic parts coating, wood furniture coating and industrial clean-up solvents would have achieved considerable, cost-effective reduction in local VOC emissions as well as lessened the exposure ofthe community to toxic air pollutants. The commentor states that,if EPA had enforced part D nonattainment plan requirements for the Grand Rapids area, significant VOC emission reductions would have occurred.

Response:The EPA does not dispute the commentor's contention that ozone and ozone precursor emissions from the Grand Rapids urbanized area contribute
to the formation ofozone northat implementation ofthe non-CTG VOC RACT rules for the three source categories would have achieved reductions in local VOCemissions. Based on the current ozone standard, 0.12ppm, however, the Grand Rapids

area has demonstrated attainment ofthe
current ozone NAAQS in the three year period 1992-1994 and continues to demonstrate attainment for the period 1993-1995 even without the implementation oftheserules.

With respect to the EPA's enforcement ofpart D nonattainment

### Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

plan requirements, EPA's general redesignation policy provides thatpart D nonattainment plan requirements that have been adopted but unimplemented may be moved into the area's maintenance plan as contingency

measures if the area demonstrates that these rules are not necessary for maintenance ofthe ozone NAAQS. Even if EPAhad made a finding offailure to submit afterthe State ofMichigan's failure to submit the non-CTG VOC RACT rules at issue, there is no

assurance that those rules would have been adopted and implemented prior to redesignation ofthe Grand Rapids area. Assuming that the State ofMichigan would have adopted and submitted such rules to EPA after a finding of failure to submit, such rules would not have had to havebeen implemented prior to thisredesignation. Indeed, as explained above, since maintenance of the standard hasbeen demonstrated in the Grand Rapids area without such rules, the State would probably have simply included such rules on the list ofcontingency measures in the maintenance plan and not implemented them prior to the redesignation. In sum,

no environmental benefit, and no reduction ofemissions would have been realized by EPA's enforcement of section 182(b)(2)(A) in this case.

The commentor's calculations of emission reductions resulting from the implementation ofnon-CTG VOC RACT in the plastic parts, wood furniture and industrial clean up solvents are somewhat unclear and inaccurate. However, the EPA agrees with the commentor's assumption that in the calculations to determine the emissions

on atons per day basis from a tonsper year basis, the tons per year figure should be divided by 365 days. Since the tonsper year figures were based on

atheoretical emission value, assuming the facilities are operating 365 days per year, dividingby 365 is more accurate and appropriate than dividingby 250. In its original calculations, the EPA erroneously divided by 250 days assuming that the tonsper year figure

was based on actual emissions and the facilities only operated on weekdays and not on weekends orholidays.

The commentor references two documents as the basis ofits calculations, the "Lake Michigan Ozone Control Program Evaluation ofPossible Control Measures: Control ofSurface Coating ofPlastic Parts; Control of Emissions from Wood Furniture Coating [VOC], Evaluation ofPossible Control Measures for Solvent Metal Cleaning," developed through the Lake Michigan Air Directors Consortium, April 16, 

### 1993 18 

### and "Meetingthe 15-Percent Rate-of-Progress Requirement Under the Clean AirAct: AMenu ofOptions," from STAPPA/ALAPCO, September 1993.19

In calculating potential emission reductions fortheplastic parts coating

source category, EPA believes thatthe commentor assumed a95 percent reduction in emissions. This value appears tobebased on the LADCO document, which estimates apotential 40-95 percent emission reduction depending on thelevel ofcontrol applied to the source category. The 95 percent reduction assumesthat these

sources are uncontrolled and thatthe State's rule would require themost stringent ofthree control options that represent RACT. Since Michigan has a rule applicable toplastic parts coating
sources, the emission reductions would befar less than the 95percent assumed by the commentor. In fact, accordingto Michigan's calculations, anon-CTG VOC RACT rule would achieve, approximately, an additional 7percent reduction to the reductions already achieved byMichigan's Rule 632. The7 percent reduction represents the additional reductions thatwould be achieved from thelevel ofcontrols required byMichigan's current Rule 632 and alevel ofRACT between thefirst and second control options available in the draft CTGforthis source category.

With respect to thewood furniture

source category, the commentor assumed a 70percent emission reduction. It appears that this value, again, was based on theLADCO document, which estimates a50-70 percent emission reduction in thewood furniture coating source category. In its calculation ofthe emission reductions for this source category, EPA assumed a 30percent emission reduction. This was based on an emission reduction estimate from the non-CTG document "Control of Volatile Organic Compound Emissions from Wood Furniture Manufacturing Operations," September 7, 1995. Furthermore, the STAPPA/ALAPCO document referred to bythe commentor alsoestimates an emission reduction of approximately 36 percent. While EPA's assumption isnot asoptimistic as that assumed bythe commentor, EPA believes that the 30percent emission reduction is areasonable assumption based on EPA guidance and documentation, which estimates arange ofreductions between 20 and 47percent depending on theprocessbeing controlled. Furthermore, even ifthe

18Hereinafter referred to as "LADCO document." 19Hereinafter referred to as "STAPPA/ALAPCO
document." optimistic 70 percent emission reduction is assumed, emission reductions from the implementation of I/Mor low RVP (to 7.8 psi), atvarious timeintervals, would achieve greater reductions than the plastic parts coating, wood furniture coating and industrial clean-up solvents in aggregate. In addition, emission reductions from the implementation of I/M, low RVP or Stage II would bring about far greater reductions than any of these non-CTGVOC RACT rules individually, even with the 70 percent emission reduction assumed by the
commentor.

The commentor appears to be assuming a 15percent emission reduction for the industrial clean-up solvents source category. The EPA based its calculations on an assumption of25 percent reduction. Since the basis ofthe 15 percent assumption is unclear and EPA assumed ahigher percentage emission reduction than did the commentor, this does not appear to be

an issue ofcontention.

Consequently, EPA's conclusion that the other, more effective contingency
measures, should and would be implemented first even ifthese RACT rules were to be fully adopted prior to redesignation, is not affected.

Il. FinalRulemaking Action

The EPA approves the redesignation ofthe Grand Rapids, 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.

EPA finds that there is good cause for thisredesignation to attainment, and SIP revision to become effective immediately upon publication because a delayed effective date is unnecessary due to the nature ofa redesignation to attainment which relieves the area from certain Clean Air Actrequirements that would otherwise apply to it. The immediate effective date forthis redesignation is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication iftherule "grants or recognizes an exemption or relieves a restriction" and section 553(d)(3), which allows an effective date lessthan 30 days afterpublication "as otherwise provided by the agency for good cause found and published with the rule."

Nothing in this action should be construed as permitting or allowing or establishing aprecedent for any future request for revision to any SIP. Each request for revision to any SIP shall be considered separately in light ofspecific 

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## 31848 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

technical, economic, and environmental factors and in relation torelevant statutory and regulatory requirements.

Ozone SIPs are designed to satisfy the requirements ofpart Dofthe Act and to provide for attainment and maintenance oftheozone NAAQS. This final redesignation should notbe interpreted

as authorizing the State to delete, alter,

orrescind any ofthe VOC orNOx emission limitations and restrictions contained in the approved ozone SIP. Changes to ozone SIP VOCregulations rendering them less stringent than those contained in theEPA approved plan cannot bemade unless arevised plan for attainment and maintenance is submitted to and approved byEPA. Unauthorized relaxations, deletions, and changes could result in both a finding ofnonimplementation [section 173(b) ofthe Act] and in a SIP deficiency callmade pursuant to section 110(a)(2)(H) oftheAct.

This action has been classified as a Table 3action by theRegional Administrator under the procedures published in the FederalRegister on January 19, 1989 (54FR2214-2225), as revised bya July 10, 1995, memorandum fromMary Nichols, Assistant Administrator forAir and Radiation. The Office ofManagement and Budget has exempted this regulatory action fromExecutive Order 12866 review.

Under theRegulatory Flexibility Act, 5 U.S.C.600 et seq.,EPA must prepare
aregulatory flexibility analysis assessing theimpact ofanyproposed or finalrule on small entities. 5 U.S.C.603 and 604. Alternatively, EPAmay certify that therule will not have a significant economic impact on a substantial number ofsmall entities. Small entities include small businesses, small not-forprofit enterprises, and government entities withjurisdiction over populations ofless than 50,000. This determination does not create any new requirements, but suspends the indicated requirements. Therefore, because this action does not impose any
new requirements, Icertify that itdoes not have asignificant impact on small entities affected.

TheEPA has determined thattoday's final action does not include a Federal mandate that mayresult in estimated costs of$100 million ormore to either State, localortribal governments in the aggregate, orto theprivate sector. This Federal action imposes no new Federal requirements. Accordingly, no additional costs to State, local, or tribal governments, orto theprivate sector, result from this action.

The SIP approvals under section 110 and subchapterI,part DoftheAct do not create any new requirements, but simply approve requirements that the State is already imposing.Therefore, because the Federal SIP approval does
not impose any new requirements, I certify that itdoes not have a significant impact on any 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 EPAto base its actions on such grounds. UnionElectricCo. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section 7401(a)(2).

Under section 801(a)(1)(A) ofthe APA

as amended bythe Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report constraining this rule and other required information to the U.S. Senate, the U.S. House ofRepresentative and the Comptroller General ofthe General Accounting Office prior to publication oftherule in today's Federal Register. This rule is not a "major rule" as defined by section 804(2) ofthe APA as amended.

Under section 202 ofthe Unfunded Mandates Reform Act of 1995 ("Unfunded Mandates Act"), signed into law on March 22, 1995, the EPA
must prepare abudgetary impact
statement to accompany any proposed

or final rulemaking that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of$100 million or more. Section 203 requires the EPA to establish aplan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. Under section 205, the EPA must select the most costeffective and least burdensome alternative that achieves the objectives oftherule and is consistent with statutory requirements.

Redesignation ofan area to attainment under section 107(d)(3)(E) ofthe Act does not impose any new requirements

on small entities. Redesignation is an action that affects the status ofa geographical area and does not impose
any regulatory requirements on sources. The Administrator certifies that the approval ofthe redesignation request will not affect a substantial number of small entities.

Under section 307(b)(1) ofthe Act, petitions forjudicial review ofthis final action must be filed in the United States Court ofAppeals for the appropriate circuit by August 20, 1996. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicialreview may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

ListofSubjects

40 CFRPart 52
Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Nitrogen oxides, Ozone, Volatile organic compounds, Motor vehicle pollution, and reporting and record keeping requirements.

40 CFRPart 81
Environmental protection, Air pollution control, Carbon monoxide, National parks, Wilderness areas, Hydrocarbons, Nitrogen oxides, Ozone, and Volatile organic compounds.

Authority: 42U.S.C. 7401 7671q. Dated:June 17, 1996. David A. Ullrich, ActingRegionalAdministrator.

Part 52, chapter I, title 40 ofthe Code ofFederal Regulations is amended as follows:



### PART52-[AMENDED]
SubpartX-Michigan

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

Authority: 42U.S.C. 7401 7671q.
2. Section 52.1170 is amended by addingparagraph (c)(106) to read as follows: 

### §52.1170 Identificationofplan.

(c) * * * (106) On March 9, 1995, the State of Michigan submitted as a revision to the Michigan State Implementation Plan for

ozone a State Implementation Plan for a section 175A maintenance plan forthe Grand Rapids area as part ofMichigan's request to redesignate the area from moderate nonattainment to attainment for ozone. Elements ofthe section 175A maintenance plan include an attainment emission inventory for NOx and VOC, a demonstration ofmaintenance ofthe

ozone NAAQS with projected emission inventories to the year 2007 for NOx and VOC, a plan to verify continued attainment, a contingency plan, and a commitment to submit a subsequent maintenance plan revision in 8 years as required by the Clean Air Act. Ifa violation ofthe ozone NAAQS,

### Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

determined not tobe attributable to transport from upwind areas, is monitored, Michigan will implement

one ormore appropriate contingency measure(s) contained in thecontingency plan. Once a violation ofthe ozone NAAQS isrecorded, the State will notify EPA, review the data forquality
assurance, and conduct a technical analysis, includingan analysis of meteorological conditions leading up to and during the exceedances contributing to the violation, to determine localculpability. This preliminary analysis willbe submitted toEPA and subjected topublic review and comment. The Statewill solicit and consider EPA's technical advice and analysisbefore making afinal determination on the cause ofthe violation. The Governor orhis designee will selectthe contingency measure(s) tobe implemented within six months of

amonitored violation attributable to

ozone and ozone precursors from the Grand Rapids area. The menu of contingency measures includes a motor vehicle inspection and maintenance program, Stage II vaporrecovery, gasoline RVPreduction to 7.8 psi, RACT

on major non-CTG VOC sources in the categories ofcoating ofplastics, coating ofwood furniture, and industrial cleaning solvents. Michigan submitted legislation orrules forI/Min House Bill No 4165, signed by Governor John Engler on November 13, 1993; Stage II in Senate Bill 726 signed by Governor John Engler onNovember 13, 1993; and RVP reduction to 7.8psi in HouseBill 4898 signed by GovernorJohn Engler on November 13, 1993.

(i) Incorporation byreference. (A) State ofMichigan House BillNo. 4165 signed by theGovernor and effective on November 13, 1993. (B) State ofMichigan Senate Bill 726 signed by the Governor and effective 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 is amended by addingparagraph (o) to read as follows: 

### §52.1174 Controlstrategy:Ozone.

(o) Approval-On March 9, 1996, the Michigan Department ofEnvironmental Quality submitted a request to redesignate the Grand Rapids ozone nonattainment area (consistingofKent and Ottawa Counties) to attainment for

ozone. As part oftheredesignation request, the State submitted a maintenance plan as required by 175A ofthe Clean Air Act, as amended in 1990. Elements ofthe section 175A maintenance plan include an attainment emission inventory for NOx and VOC, a demonstration ofmaintenance ofthe

ozone NAAQS with projected emission inventories to the year 2007 for NOx and VOC, a plan to verify continued attainment, a contingency plan, and a commitment to submit a subsequent maintenance plan revision in 8 years as required bythe Clean Air Act. Ifa violation ofthe ozone NAAQS, determined not to be attributable to transport from upwind areas, is monitored, Michigan will implement

one or more appropriate contingency measure(s) contained in the contingency plan. Once a violation ofthe ozone NAAQS is recorded, the State will notify EPA, review the data for quality
assurance, and conduct a technical analysis, including an analysis of meteorological conditions leading up to and during the exceedances contributing to the violation, to determine local culpability. This preliminary analysis will be submitted
to EPA and subjected to public review and comment. The State will solicit and consider EPA's technical advice and analysis before making a final determination on the cause ofthe violation. The Governor or his designee will select the contingency measure(s)
to be implemented within 6 months of

a monitored violation attributable to

ozone and ozone precursors from the Grand Rapids area. The menu of contingency measures includes a motor vehicle inspection and maintenance program, Stage II vapor recovery, RVP reduction to 7.8 psi, RACT on major non-CTGVOC sources in the categories ofcoating ofplastics, coating ofwood furniture, and industrial cleaning solvents. The redesignation request and maintenance plan meet the redesignation requirements in section 107(d)(3)(E) and 175A ofthe Act as amended in 1990, respectively. The redesignation meets the Federal requirements ofsection 182(a)(1) ofthe Clean Air Act as arevision to the Michigan Ozone State Implementation Plan for the above mentioned counties.

Part 81, chapter I, title 40 ofthe Code ofFederal Regulations is amended as follows:



### PART81-[AMENDED]

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

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

2. Section 81.323 is amended by revising the attainment status designation table entry forthe Grand Rapids area for ozone to read as follows: 

### §81.323 Michigan.

*< *< *< *

MICHIGAN-OZONE

Designation Classification Designated areas Date 1 Type Date Type

Grand Rapids Area: Kent County

................................................................. June 21, 1996

........... Attainment. Ottawa County

............................................................. June 21, 1996

........... Attainment.

'This date is November 15, 1990, unlessotherwise noted. 

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