20644 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Rules and Regulations

Register, May, 1992, No. 437, effective

June 1, 1992.

(E) Chapter NR 422: CONTROL OF

ORGANIC COMPOUND EMISSIONS

FROM SURFACE COATING, PRINTING

AND ASPHALT SURFACING

OPERATIONS. NR 422.01, 422.05,

422.06, 422.07, 422.08, 422.085, 422.09,

422.10, 422.11, 422.12, 422.13, 422.155

and 422.16 as published in the

(Wisconsin) Register, February, 1990,

No. 410, effective March 1, 1990. NR

422.02, 422.03, 422.04, 422.14 and

422.15 as published in the (Wisconsin)

Register, December, 1993, No. 456,

effective January 1, 1994.

(F) Chapter NR 423: CONTROL OF

ORGANIC COMPOUND EMISSIONS

FROM SOLVENT CLEANING

OPERATIONS. NR 423.01 as published

in the (Wisconsin) Register, February,

1990, No. 410, effective March 1, 1990.

NR 423.02 as published in the

(Wisconsin) Register, January, 1987, No.

385, effective February 1, 1988. NR

423.03, 423.04, and 423.05 as published

in the (Wisconsin) Register, December,

1993, No. 456, effective January 1, 1994.

(G) Chapter NR 424: CONTROL OF

ORGANIC COMPOUND EMISSIONS

FROM PROCESS LINES. NR 424.01 and

424.03 as published in the (Wisconsin)

Register, February, 1990, No. 410,

effective March 1, 1990. NR 424.02 as

published in the (Wisconsin) Register,

April, 1988, No. 388, effective May 1,

1988. NR 424.04 as published in the

(Wisconsin) Register, December, 1993,

No. 456, effective January 1, 1994.

(H) Chapter NR 425: COMPLIANCE

SCHEDULES, EXCEPTIONS,

REGISTRATION AND DEFERRALS FOR

ORGANIC COMPOUND EMISSION

SOURCES IN CHS. NR 419 TO 424. NR

425.01 and 425.02 as published in the

(Wisconsin) Register, February, 1990,

No. 410, effective March 1, 1990. NR

425.03 425.04 and 425.05 as published

in the (Wisconsin) Register, December,

1993, No. 456, effective January 1, 1994.

NR 425.035 as published in the

(Wisconsin) Register, January, 1993, No.

445, effective February 1, 1993.

(I) Chapter NR 439: REPORTING,

RECORDKEEPING, TESTING,

INSPECTION AND DETERMINATION

OF COMPLIANCE REQUIREMENTS.

NR 439.01 and 439.085 as published in

the (Wisconsin) Register, May, 1992, No.

437, effective June 1, 1992. NR 439.02,

439.03, 439.04, 439.05, 439.055, 439.06,

439.07, 439.075, 439.09, 439.095 and

439.11 as published in the (Wisconsin)

Register, December, 1993, No. 456,

effective January 1, 1994. NR 439.08 as

published in the (Wisconsin) Register,

May, 1993, No. 449, effective June 1,

1993. NR 439.10 as published in the

(Wisconsin) Register, September, 1987,

No. 381, effective October 1, 1987.

(J) Chapter NR 484:

INCORPORATION BY REFERENCE. NR

484.01 as published in the (Wisconsin)

Register, May, 1992, No. 437, effective

June 1, 1992. NR 484.02 as published in

the (Wisconsin) Register, September,

1986, No. 369, effective October 1, 1986.

NR 484.03 as published in the

(Wisconsin) Register, May, 1993, No.

449, effective June 1, 1993. NR 484.04,

484.05 and 484.06 as published in the

(Wisconsin) Register, December, 1993,

No. 456, effective January 1, 1994. NR

484.08 and 484.09 as published in the

(Wisconsin) Register, October, 1992, No.

442, effective November 1, 1992.

[FR Doc. 95–10249 Filed 4–26–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[MI34–05–6892, MI35–03–6893; FRL–5197–6]

Approval and Promulgation of

Implementation Plan; Michigan, East

Lansing and Genesee County NOX

Exemptions

AGENCY: United States Environmental

Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is granting

exemptions to the East Lansing and

Genesee County ozone nonattainment

areas, both of which are classified as

transitional, from applicable oxides of

nitrogen (NOX) requirements found in

the Clean Air Act (Act). For transitional

areas the NOX requirements which

apply are conformity, both general and

transportation, and nonattainment new

source review. Approval of these

exemption requests would relieve these

areas from adopting and implementing

all of the aforementioned NOX

requirements. The State of Michigan

submitted NOX exemption requests for

the East Lansing and Genesee County

areas on July 1, 1994 and July 8, 1994,

respectively. These requests are based

on the fact that ozone monitoring in

these areas indicate that the average

number of exceedances of the National

Ambient Air Quality Standard for ozone

during the most recent 3-year period,

1991 to 1993, is fewer than one per year.

Given this monitoring data, Michigan

petitioned for exemptions from the NOX

requirements based on a demonstration

that additional reductions of NOX

would not contribute to attainment of

the ozone standard in these areas.

DATES: This final rule will be effective

May 30, 1995.

ADDRESSES: Written comments should

be sent to: Carlton T. Nash, Chief,

Regulation Development Section, Air

Toxics and Radiation Branch (AT–18J),

EPA, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604–

3590.

Copies of the request and the EPA’s

analysis are available for inspection at

the following address: U.S. EPA, Region

5, Air and Radiation Division, 77 West

Jackson Boulevard, Chicago, Illinois

60604–3590. (Please telephone Douglas

Aburano at (312) 353–6960 before

visiting the Region 5 office.)

FOR FURTHER INFORMATION CONTACT:

Douglas Aburano, Air Toxics and

Radiation Branch (AT–18J), EPA, Region

5, Chicago, Illinois 60604, (312) 353–

6960.

SUPPLEMENTARY INFORMATION:

I. Background

On July 1, 1994 and July 8, 1994 the

State of Michigan submitted petitions to

the EPA requesting that the East Lansing

and Genesee County ozone

nonattainment areas be exempted from

the requirement to implement NOX

controls pursuant to section 182(f) of the

Act. The exemption request is based

upon monitoring data which

demonstrate that the average number of

exceedances of the ozone standard in

these areas during the most recent 3-

year period, 1991 through 1993, is fewer

than one per year.

On December 28, 1994, EPA

published a rulemaking proposing

approval of the NOX exemption

petitions. During the 30 day public

comment period, EPA received joint

adverse comments from the Natural

Resources Defense Council, Sierra Club

Legal Defense Fund, and the

Environmental Defense Fund and also

from a private party.

II. Public Comment/EPA Response

The following evaluation summarizes

each comment received and EPA’s

response to the comment. A more

detailed discussion of the State

submittal and the rationale for the EPA’s

action based on the Act and cited

references appear in EPA’s technical

support documents dated August 9,

1994 and March 10, 1995.

NRDC Comments

Following is a summary of comments

received from the NRDC in a letter dated

August 24, 1994. After each comment is

EPA’s response.

NRDC Comment 1

Certain commenters argued that NOX

exemptions are provided for in two
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Rules and Regulations 20645

1Section 302(e) of the Act defines the

term‘‘person’’ to include States.

2The final section 185B report was issued July

30, 1993.

separate parts of the Act, section

182(b)(1) and section 182(f). Because the

NOX exemption tests in subsections

182(b)(1) and 182(f)(1) include language

indicating that action on such requests

should take place ‘‘when [EPA]

approves a plan or plan revision,’’ these

commenters conclude that all NOX

exemption determinations by the EPA,

including exemption actions taken

under the petition process established

by subsection 182(f)(3), must occur

during consideration of an approvable

attainment or maintenance plan, unless

the area has been redesignated as

attainment. These commenters also

argue that even if the petition

procedures of subsection 182(f)(3) may

be used to relieve areas of certain NOX

requirements, exemptions from the NOX

conformity requirements must follow

the process provided in subsection

182(b)(1), since this is the only

provision explicitly referenced by

section 176(c), the Act’s conformity

provisions.

EPA Response

Section 182(f) contains very few

details regarding the administrative

procedure for acting on NOX exemption

requests. The absence of specific

guidelines by Congress leaves EPA with

discretion to establish reasonable

procedures, consistent with the

requirements of the Administrative

Procedure Act (APA).

The EPA disagrees with the

commenters regarding the process for

considering exemption requests under

section 182(f), and instead believes that

subsections 182(f)(1) and 182(f)(3)

provide independent procedures by

which the EPA may act on NOX

exemption requests. The language in

subsection 182(f)(1), which indicates

that the EPA should act on NOX

exemptions in conjunction with action

on a plan or plan revision, does not

appear in subsection 182(f)(3). And,

while subsection 182(f)(3) references

subsection 182(f)(1), the EPA believes

that this reference encompasses only the

substantive tests in paragraph (1) [and,

by extension, paragraph (2)], not the

procedural requirement that the EPA act

on exemptions only when acting on

SIPs. Additionally, paragraph (3)

provides that ‘‘person[s]’’ (which

section 302(e) of the Act defines to

include States) may petition for NOX

exemptions ‘‘at any time,’’ and requires

the EPA to make its determination

within 6 months of the petition’s

submission. These key differences lead

EPA to believe that Congress intended

the exemption petition process of

paragraph (3) to be distinct and more

expeditious than the longer plan

revision process intended under

paragraph (1).

Section 182(f)(1) appears to

contemplate that exemption requests

submitted under these paragraphs are

limited to States, since States are the

entities authorized under the Act to

submit plans or plan revisions. By

contrast, section 182(f)(3) provides that

‘‘person[s]’’ 1 may petition for a NOX

determination ‘‘at any time’’ after the

ozone precursor study required under

section 185B of the Act is finalized,2

and gives EPA a limit of 6 months after

filing to grant or deny such petitions.

Since individuals may submit petitions

under paragraph (3) ‘‘at any time’’ this

must include times when there is no

plan revision from the State pending at

EPA. The specific timeframe for EPA

action established in paragraph (3) is

substantially shorter than the timeframe

usually required for States to develop

and for EPA to take action on revisions

to a SIP. These differences strongly

suggest that Congress intended the

process for acting on personal petitions

to be distinct—and more expeditious—

from the plan-revision process intended

under paragraph (1).

With respect to major stationary

sources, section 182(f) requires States to

adopt NOX NSR and RACT rules, unless

exempted. These rules were generally

due to be submitted to EPA by

November 15, 1992. Thus, in order to

avoid the Act sanctions, the States

would have had to submit their requests

for NOX exemptions for EPA review and

rulemaking action several months before

November 15, 1992. In contrast, the Act

specifies that the attainment

demonstrations are not due until

November 1993 or 1994 (and EPA may

take 12–18 months to approve or

disapprove the demonstration). For

marginal ozone nonattainment areas

(subject to NOX NSR), no attainment

demonstration is called for in the Act.

For maintenance plans, the Act does not

specify a deadline for submittal of

maintenance demonstrations. Clearly,

the Act envisions the submittal of and

EPA action on exemption requests, in

some cases, prior to submittal of

attainment or maintenance

demonstrations.

The Act requires conformity with

regard to federally-supported NOX

generating activities in relevant

nonattainment and maintenance areas.

However, EPA’s conformity rules

explicitly provide that these NOX

requirements would not apply if EPA

grants an exemption under section

182(f). In response to the comment that

section 182(b)(1) should be the

appropriate vehicle for dealing with

exemptions from the NOX requirements

of the conformity rule, EPA notes that

this issue has previously been raised in

a formal petition for reconsideration of

EPA’s final transportation conformity

rule and in litigation pending before the

U.S. Court of Appeals for the District of

Columbia Circuit on the substance of

both the transportation and general

conformity rules. The issue, thus, is

under consideration within EPA, but at

this time remains unresolved.

Additionally, subsection 182(f)(3)

requires that NOX exemption petition

determinations be made by the EPA

within six months. The EPA has stated

in previous guidance that it intends to

meet this statutory deadline as long as

doing so is consistent with the

Administrative Procedures Act. The

EPA, therefore, believes that until a

resolution of this issue is achieved, the

applicable rules governing this issue are

those that appear in EPA’s final

conformity regulations, and EPA

remains bound by their existing terms.

NRDC Comment 2

Some commenters stated that the

modeling required by EPA is

insufficient to establish that NOX

reductions would not contribute to

attainment since only one level of NOX

control, i.e., ‘‘substantial’’ reductions, is

required to be analyzed. They further

explained that an area must submit an

approvable attainment plan before EPA

can know whether NOX reductions will

aid or undermine attainment.

EPA Response

This comment is directed towards

exemption approvals based on

photochemical grid modeling. This

comment does not apply in the case of

East Lansing or Genesee County because

this exemption request is based on

monitoring.

NRDC Comment 3

Three years of ‘‘clean’’ data fail to

demonstrate that NOX reductions would

not contribute to attainment. EPA’s

policy erroneously equates the absence

of a violation for one 3-year period with

‘‘attainment.’’

EPA Response

The EPA has separate criteria for

determining if an area should be

redesignated to attainment under

section 107 of the Act. The section 107

criteria are more comprehensive than

the Act requires with respect to NOX

exemptions under section 182(f).
20646 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Rules and Regulations

3There are 3 NOX exemption tests specified in

section 182(f). Of these, 2 are applicable for areas

outside an ozone transport region; the ‘‘contribute

to attainment’’ test described above, and the ‘‘net

air quality benefits’’ test. EPA must determine,

under the latter test, that the net benefits to air

quality in an area ‘‘are greater in the absence of NOX

reductions’’ from relevant sources. Based on the

plain language of section 182(f), EPA believes that

each test provides an independent basis for

receiving a full or limited NOX exemption.

Consequently, as stated in § 1.4 of the December 16,

1993 EPA guidance, ‘‘[w]here any one of the tests

is met (even if another test is failed), the section

182(f) NOX requirements would not apply or, under

the excess reductions provision, a portion of these

requirements would not apply.’’

Under section 182(f)(1)(A), an

exemption from the NOX requirements

may be granted for nonattainment areas

outside an ozone transport region if EPA

determines that ‘‘additional reductions

of [NOX] would not contribute to

attainment’’ of the ozone NAAQS in

those areas. In some cases, an ozone

nonattainment area might attain the

ozone standard, as demonstrated by 3

years of adequate monitoring data,

without having implemented the section

182(f) NOX provisions over that 3-year

period. The EPA believes that, in cases

where a nonattainment area is

demonstrating attainment with 3

consecutive years of air quality

monitoring data without having

implemented the section 182(f) NOX

provisions, it is clear that the section

182(f) test is met since ‘‘additional

reductions of [NOX] would not

contribute to attainment’’ of the NAAQS

in that area. The EPA’s approval of the

exemption, if warranted, would be

granted on a contingent basis (i.e., the

exemption would last for only as long

as the area’s monitoring data continue to

demonstrate attainment).

NRDC Comment 4

A waiver of NOX controls is unlawful

if such waiver will impede attainment

and maintenance of the ozone standard

in separated downwind areas.

EPA Response

As a result of the comments, EPA

reevaluated its position on this issue

and has revised the previously issued

guidance. See Memorandum, ‘‘Section

182(f) Nitrogen Oxides (NOX)

Exemptions—Revised Process and

Criteria’’ dated February 8, 1995, for

John Seitz’s signature. As described in

this memorandum, EPA intends to use

its authority under section 110(a)(2)(D)

to require a State to reduce NOX

emissions from stationary and/or mobile

sources where there is evidence, such as

photochemical grid modeling, showing

that NOX emissions would contribute

significantly to nonattainment in, or

interfere with maintenance by, any

other State. This action would be

independent of any action taken by EPA

on a NOX exemption request for

stationary sources under section 182(f).

That is, EPA action to grant or deny a

NOX exemption request under section

182(f) would not shield that area from

EPA action to require NOX emission

reductions, if necessary, under section

110(a)(2)(D).

Modeling analyses are underway in

many areas for the purpose of

demonstrating attainment in the 1994

SIP revisions. Recent modeling data

suggest that certain ozone

nonattainment areas may benefit from

reductions in NOX emissions far

upwind of the nonattainment area. For

example, the northeast corridor and the

Lake Michigan areas are considering

attainment strategies which rely in part

on NOX emission reductions hundreds

of kilometers upwind. The EPA is

working with the States and other

organizations to design and complete

studies which consider upwind sources

and quantify their impacts. As the

studies progress, EPA will continue to

work with the States and other

organizations to develop mutually

acceptable attainment strategies.

At the same time as these large scale

modeling analyses are being conducted,

the States have requested exemptions

from NOX requirements under section

182(f) for certain nonattainment areas in

the modeling domain. Some of these

areas may be upwind of and impact

upon downwind nonattainment areas.

EPA intends to address the transport

issue through section 110(a)(2)(D) based

on a domain-wide modeling analysis.

Under section 182(f) of the Act, an

exemption from the NOX requirements

may be granted for nonattainment areas

outside an ozone transport region if EPA

determines that ‘‘additional reductions

of [NOX] would not contribute to

attainment of the national ambient air

quality standard for ozone in the area.’’ 3

As described in section 4.3 of the

Guidelines for Determining the

Applicability of Nitrogen Oxides

Requirements under Section 182(f),

December 16, 1993 (‘‘guidance’’)

document, EPA believes that the term

‘‘area’’ means the ‘‘nonattainment area’’

and that EPA’s determination is limited

to consideration of the effects in a single

nonattainment area due to NOX

emissions reductions from sources in

the same nonattainment area.

Section 4.3 of the guidance goes on to

encourage, but not require, States/

petitioners to include consideration of

the entire modeling domain, since the

effects of an attainment strategy may

extend beyond the designated

nonattainment area. Specifically, the

guidance encourages States to ‘‘consider

imposition of the NOX requirements if

needed to avoid adverse impacts in

downwind areas, either intra- or interState. States need to consider such

impacts since they are ultimately

responsible for achieving attainment in

all portions of their State (see generally

section 110) and for ensuring that

emissions originating in their State do

not contribute significantly to

nonattainment in, or interfere with

maintenance by, any other State [see

section 110(a)(2)(D)(i)(I)].’’

In contrast, § 4.4 of the guidance

states that the section 182(f)

demonstration would not be approved if

there is evidence, such as

photochemical grid modeling, showing

that the NOX exemption would interfere

with attainment or maintenance in

downwind areas. The guidance goes on

to explain that section 110(a)(2)(D) [not

section 182(f)] prohibits such impacts.

Consistent with the guidance in section

4.3, EPA believes that the section

110(a)(2)(D) and 182(f) provisions must

be considered independently, and

hence, is withdrawing the guidance

presently contained in § 4.4. Thus, if

there is evidence that NOX emissions in

an upwind area would interfere with

attainment or maintenance in a

downwind area, that action should be

separately addressed by the State(s) or,

if necessary, by EPA in a section

110(a)(2)(D) action. In addition, a

section 182(f) exemption request should

be independently considered by EPA. In

some cases, then, EPA may grant an

exemption from across-the-board NOX

RACT controls under section 182(f) and,

in a separate action, require NOX

controls from stationary and/or mobile

sources under section 110(a)(2)(D). It

should be noted that the controls

required under section 110(a)(2)(D) may

be more or less stringent than RACT,

depending upon the circumstances.

NRDC Comment 5

Comments were received regarding

exemption of areas from the NOX

requirements of the conformity rules.

They argue that such exemptions waive

only the requirements of section

182(b)(1) to contribute to specific

annual reductions, not the requirement

that conformity SIPs contain

information showing the maximum

amount of motor vehicle NOX emissions

allowed under the transportation

conformity rules and, similarly, the

maximum allowable amounts of any

such NOX emissions under the general

conformity rules. The commenters

admit that, in prior guidance, EPA has

acknowledged the need to amend a

drafting error in the existing
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Rules and Regulations 20647

4Criteria and Procedures for Determining

Conformity to State or Federal Implementation

Plans of Transportation Plans, Programs, and

Projects Funded or Approved under Title 23 U.S.C.

of the Federal Transit Act,’’ November 24, 1993 (58

FR 62188).

5 Determining Conformity of General Federal

Actions to State or Federal Implementation Plans;

Final Rule,’’ November 30, 1993 (58 FR 63214).

transportation conformity rules to

ensure consistency with motor vehicle

emissions budgets for NOX, but want

EPA in actions on NOX exemptions to

explicitly affirm this obligation and to

also avoid granting waivers until a

budget controlling future NOX increases

is in place.

EPA Response

With respect to conformity, EPA’s

conformity rules 4 5 provide a NOX

waiver if an area receives a section

182(f) exemption. In its ‘‘Conformity;

General Preamble for Exemption From

Nitrogen Oxides Provisions,’’ 59 FR

31238, 31241 (June 17, 1994), EPA

reiterated its view that in order to

conform, nonattainment and

maintenance areas must demonstrate

that the transportation plan and TIP are

consistent with the motor vehicle

emissions budget for NOX even where a

conformity NOX waiver has been

granted. Due to a drafting error, that

view is not reflected in the current

transportation conformity rules. As the

commenters correctly note, EPA states

in the June 17th notice that it intends to

remedy the problem by amending the

conformity rule. Although that notice

specifically mentions only requiring

consistency with the approved

maintenance plan’s NOX motor vehicle

emissions budget, EPA also intends to

require consistency with the attainment

demonstration’s NOX motor vehicle

emissions budget. However, the

exemptions were submitted pursuant to

section 182(f)(3), and EPA does not

believe it is appropriate to delay the

statutory deadline for acting on these

petitions until the conformity rule is

amended. As noted earlier in response

to a previous issue raised by these

commenters, this issue has also been

raised in a formal petition for

reconsideration of the Agency’s final

transportation conformity rule and in

litigation pending before the U.S. Court

of Appeals for the District of Columbia

Circuit on the substance of both the

transportation and general conformity

rules. This issue, thus, is under

consideration within the Agency, but at

this time remains unresolved. The EPA,

therefore, believes that until a resolution

of this issue is achieved, the applicable

rules governing this issue are those that

appear in the Agency’s final conformity

regulations, and the Agency remains

bound by their existing terms.

NRDC Comment 6

The Act does not authorize any

waiver of the NOX reduction

requirements until conclusive evidence

exists that such reductions are counterproductive.

EPA Response

EPA does not agree with this

comment since it ignores Congressional

intent as evidenced by the plain

language of section 182(f), the structure

of the Title I ozone subpart as a whole,

and relevant legislative history. By

contrast, in developing and

implementing its NOX exemption

policies, EPA has sought an approach

that reasonably accords with that intent.

Section 182(f), in addition to imposing

control requirements on major

stationary sources of NOX similar to

those that apply for such sources of

VOC, also provides for an exemption (or

limitation) from application of these

requirements if, under one of several

tests, EPA determines that in certain

areas NOX reductions would generally

not be beneficial. In subsection

182(f)(1), Congress explicitly

conditioned action on NOX exemptions

on the results of an ozone precursor

study required under section 185B.

Because of the possibility that reducing

NOX in a particular area may either not

contribute to ozone attainment or may

cause the ozone problem to worsen,

Congress included attenuating language,

not just in section 182(f), but throughout

the Title I ozone subpart, to avoid

requiring NOX reductions where it

would be nonbeneficial or

counterproductive. In describing these

various ozone provisions (including

section 182(f), the House Conference

Committee Report states in pertinent

part: ‘‘[T]he Committee included a

separate NOX/VOC study provision in

section [185B] to serve as the basis for

the various findings contemplated in the

NOX provisions. The Committee does

not intend NOX reduction for

reduction’s sake, but rather as a measure

scaled to the value of NOX reductions

for achieving attainment in the

particular ozone nonattainment area.’’

H.R. Rep. No. 490, 101st Cong., 2d Sess.

257–258 (1990). As noted in response to

an earlier comment by these same

commenters, the command in

subsection 182(f)(1) that EPA ‘‘shall

consider’’ the 185B report taken together

with the timeframe the Act provides

both for completion of the report and for

acting on NOX exemption petitions

clearly demonstrate that Congress

believed the information in the

completed section 185B report would

provide a sufficient basis for EPA to act

on NOX exemption requests, even

absent the additional information that

would be included in affected areas’

attainment or maintenance

demonstrations. However, while there is

no specific requirement in the Act that

EPA actions granting NOX exemption

requests must await ‘‘conclusive

evidence’’, as the commenters argue,

there is also nothing in the Act to

prevent EPA from revisiting an

approved NOX exemption if warranted

due to better ambient information.

In addition, the EPA believes (as

described in EPA’s December 1993

guidance) that section 182(f)(1) of the

Act provides that the new NOX

requirements shall not apply (or may by

limited to the extent necessary to avoid

excess reductions) if the Administrator

determines that any one of the following

tests is met:

(1) in any area, the net air quality

benefits are greater in the absence of

NOX reductions from the sources

concerned;

(2) in nonattainment areas not within

an ozone transport region, additional

NOX reductions would not contribute to

ozone attainment in the area; or

(3) in nonattainment areas within an

ozone transport region, additional NOX

reductions would not produce net ozone

air quality benefits in the transport

region.

Based on the plain language of section

182(f), EPA believes that each test

provides an independent basis for

receiving a full or limited NOX

exemption.

Only the first test listed above is

based on a showing that NOX reductions

are ‘‘counter-productive.’’ If one of the

tests is met (even if another test is

failed), the section 182(f) NOX

requirements would not apply or, under

the excess reductions provision, a

portion of these requirements would not

apply.

Private Citizen Comment 1

The Rose Lake [monitoring] site is in

a very rural area surrounded by

vegetation that would preclude any

accurate readings from the site, plus it

is an extensive distance from a highway

with a significant volume of vehicles

that would generate measurable ozone

levels. I also note this site is in the

wrong direction by at least 45 degrees to

pick up any ozone levels from the East

Lansing-Lansing urbanized area.

The 220 North Pennsylvania

[monitoring] site is even more protected

[than the Rose Lake monitoring site],

being in the heart of a residential area,

with a low volume highway adjacent. It
20648 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Rules and Regulations

is protected from the west and central

part of the Lansing area, the prevailing

wind source is from the west, and it is

also located north of any industrial

ozone that could be generated by several

automotive plants.

EPA Response

As part of the State of Michigan’s

ozone monitoring networks, both the

Rose Lake monitoring site and the 220

North Pennsylvania monitoring site

have met the criteria established in the

Code of Federal Regulations (CFR) for

probe siting, as well as other EPA

guidance at the time they were

established. A follow-up review

conducted on March 2, 1995 indicates

they are still in compliance. These

requirements can be found in 40 CFR

part 58 Appendix E.

A review of wind speed and direction

data for the summer months indicates

that the Rose Lake monitor is within the

area likely to be downwind of East

Lansing. Furthermore, additional

monitors in Genesee County are located

in the area likely to see the maximum

impact from the formation of ozone

from emissions in the East Lansing area.

In other words, the NOX emissions from

sources located in the East Lansing area

will probably not generate ozone until

they have reached the Genesee County

area where there is an acceptable

monitoring network.

Private Citizen Comment 2

Provisions of the Act and the

provisions of the Intermodal Surface

Transportation Efficiency Act (ISTEA)

should be jointly examined by EPA and

the Federal Highway Administration

(FHWA) to determine the effect of not

exempting the East Lansing area as has

been proposed. For example, could this

exemption be granted if these monitors

were placed in areas of high traffic

volume?

EPA Response

The hypothetical question raised can

only be answered if monitors were

actually placed in areas of high traffic

volume. Placing a monitor in an area of

high traffic volume, where high NOX

concentrations could be expected,

would most likely give erroneously low

ozone readings because of the fact that

high NOX concentrations have the effect

of ‘‘scavenging’’ ozone. Therefore, there

is no reason to place a monitor in an

area of high traffic volume. In addition

to this, as has already been mentioned

in the previous response, the State of

Michigan already has an approved

monitoring network for this area and

establishing further monitors has not

been demonstrated to be warranted.

When the EPA is presented with a

NOX exemption petition, it is faced with

the task of approving or disapproving

such a request solely on the Clean Air

Act provisions and guidance which is

developed under the Clean Air Act.

ISTEA does not play a role in the

decision making process for NOX

exemptions.

III. Final Action

The comments received were found to

warrant no changes from proposed to

final action on this NOX exemption

request. Therefore, EPA is granting the

East Lansing and Genesee County areas

section 182(f) NOX exemptions based

upon the evidence provided by the State

and the State’s compliance with the

requirements outlined in the Act and in

EPA guidance. However, it should be

noted that this exemption is being

granted on a contingent basis; i.e., the

exemption will last for only as long as

the area’s ambient monitoring data

continue to demonstrate attainment of

the ozone NAAQS.

Both of these areas are classified as

transitional. With a classification of

transitional, an area which has not been

granted a NOX exemption would be

subject to general conformity,

transportation conformity, and

nonattainment new source review NOX

requirements. Since these petitions for

exemption are applicable areawide, as

opposed to source-specific, in addition

to exempting these areas from the

nonattainment new source review

requirements for NOX, this action also

exempts these areas from the NOX

conformity requirements of the Act (see

G. T. Helms, January 12, 1995 ‘‘Scope of

Nitrogen Oxides (NOX) Exemptions’’

memorandum).

If, subsequent to the NOX waiver

being granted, EPA determines that

either area has violated the standard, the

section 182(f) exemption for that area, as

of the date of the determination, would

no longer apply. EPA would notify the

State that the exemption no longer

applies, and would also provide notice

to the public in the Federal Register. If

an exemption is revoked, the State must

thereafter comply with any applicable

NOX requirements set forth in the Act,

such as those for NOX NSR and

conformity. The air quality data relied

on for the above determinations must be

consistent with 40 CFR part 58

requirements and other relevant EPA

guidance and recorded in EPA’s

Aerometric Information Retrieval

System. Additionally, the State must

continue to operate an appropriate air

quality monitoring network, in

accordance with 40 CFR part 58, to

verify the attainment status of the area.

This action will become effective on

May 30, 1995.

IV. Miscellaneous

A. Applicability to Future SIP Decisions

Nothing in this action should be

construed as permitting, allowing or

establishing a precedent for any future

request for revision to any SIP. The EPA

shall consider each request for revision

to the SIP in light of specific technical,

economic, and environmental factors

and in relation to relevant statutory and

regulatory requirements.

B. Executive Order 12866

This action has been classified as a

Table 2 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993

memorandum from Michael Shapiro,

Acting Assistant Administrator for Air

and Radiation. The OMB has exempted

this regulatory action from E.O. 12866

review.

C. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

This approval does not create any

new requirements. Therefore, I certify

that this action does not have a

significant impact on any small entities

affected. Moreover, due to the nature of

the Federal-State relationship under the

Act, preparation of the regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of the State action. The

Act forbids EPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427

U.S. 246, 256–66 (1976).

Under Sections 202, 203 and 205 of

the Unfunded Mandates Reform Act of

1995 (‘‘Unfunded Mandates Act’’),

signed into law on March 22, 1995, EPA

must assess whether various actions

undertaken in association with

proposed or final regulations include a

Federal mandate that may result in

estimated costs of $100 million or more

to the private sector, or to State, local,

or tribal governments in the aggregate.

EPA’s final action will relieve

requirements otherwise imposed under
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Rules and Regulations 20649

the Clean Air Act and, hence does not

impose any federal intergovernmental

mandate, as defined in section 101 of

the Unfunded Mandates Act. This

action also will not impose a mandate

that may result in estimated costs of

$100 million or more to either State,

local, or tribal governments in the

aggregate, or to the private sector.

D. Petitions for Judicial Review

Under section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by June 26, 1995. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review, nor does it

extend the time within which a petition

for judicial review may be filed and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Oxides of nitrogen,

Incorporation by reference,

Intergovernmental relations, Ozone.

Dated; April 13, 1995.

Valdas V. Adamkus,

Regional Administrator.

40 CFR part 52 is amended as follows.

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671(q).

Subpart X—Michigan

2. Section 52.1174 is amended by

adding paragraph (e) and (f) to read as

follows:

§ 52.1174 Control strategy: Ozone

* * * * *

(e) Approval—On July 1, 1994, the

Michigan Department of Natural

Resources submitted a petition for

exemption from the oxides of nitrogen

requirements of the Clean Air Act for

the East Lansing ozone nonattainment

area. The submittal pertained to the

exemption from the oxides of nitrogen

requirements for conformity and new

source review. Theses are required by

sections 176(c) and 182(f) of the 1990

amended Clean Air Act, respectively. If

a violation of the ozone standard occurs

in the East Lansing ozone

nonattainment area, the exemption shall

no longer apply.

(f) Approval—On July 8, 1994, the

Michigan Department of Natural

Resources submitted a petition for

exemption from the oxides of nitrogen

requirements of the Clean Air Act for

the Genesee County ozone

nonattainment area. The submittal

pertained to the exemption from the

oxides of nitrogen requirements for

conformity and new source review.

These are required by sections 176(c)

and 182(f) of the 1990 amended Clean

Air Act, respectively. If a violation of

the ozone standard occurs in the

Genesee County ozone nonattainment

area, the exemption shall no longer

apply.

[FR Doc. 95–10247 Filed 4–26–95; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 64

[Docket No. FEMA–7615]

List of Communities Eligible for the

Sale of Flood Insurance

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Final rule.

SUMMARY: This rule identifies

communities participating in the

National Flood Insurance Program

(NFIP). These communities have

applied to the program and have agreed

to enact certain floodplain management

measures. The communities’

participation in the program authorizes

the sale of flood insurance to owners of

property located in the communities

listed.

EFFECTIVE DATES: The dates listed in the

third column of the table.

ADDRESSES: Flood insurance policies for

property located in the communities

listed can be obtained from any licensed

property insurance agent or broker

serving the eligible community, or from

the NFIP at: Post Office Box 6464,

Rockville, MD 20849, (800) 638–6620.

FOR FURTHER INFORMATION CONTACT:

Robert F. Shea, Jr., Division Director,

Program Implementation Division,

Mitigation Directorate, 500 C Street,

SW., room 417, Washington, DC 20472,

(202) 646–3619.

SUPPLEMENTARY INFORMATION: The NFIP

enables property owners to purchase

flood insurance which is generally not

otherwise available. In return,

communities agree to adopt and

administer local floodplain management

measures aimed at protecting lives and

new construction from future flooding.

Since the communities on the attached

list have recently entered the NFIP,

subsidized flood insurance is now

available for property in the community.

In addition, the Director of the

Federal Emergency Management Agency

has identified the special flood hazard

areas in some of these communities by

publishing a Flood Hazard Boundary

Map (FHBM) or Flood Insurance Rate

Map (FIRM). The date of the flood map,

if one has been published, is indicated

in the fourth column of the table. In the

communities listed where a flood map

has been published, Section 102 of the

Flood Disaster Protection Act of 1973, as

amended, 42 U.S.C. 4012(a), requires

the purchase of flood insurance as a

condition of Federal or federally related

financial assistance for acquisition or

construction of buildings in the special

flood hazard areas shown on the map.

The Director finds that the delayed

effective dates would be contrary to the

public interest. The Director also finds

that notice and public procedure under

5 U.S.C. 553(b) are impracticable and

unnecessary.

National Environmental Policy Act

This rule is categorically excluded

from the requirements of 44 CFR Part

10, Environmental Considerations. No

environmental impact assessment has

been prepared.

Regulatory Flexibility Act

The Associate Director certifies that

this rule will not have a significant

economic impact on a substantial

number of small entities in accordance

with the Regulatory Flexibility Act, 5

U.S.C. 601 et seq., because the rule

creates no additional burden, but lists

those communities eligible for the sale

of flood insurance.

Regulatory Classification

This final rule is not a significant

regulatory action under the criteria of

section 3(f) of Executive Order 12866 of

September 30, 1993, Regulatory

Planning and Review, 58 FR 51735.

Paperwork Reduction Act

This rule does not involve any

collection of information for purposes of

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq.

Executive Order 12612, Federalism

This rule involves no policies that

have federalism implications under

Executive Order 12612, Federalism,

October 26, 1987, 3 CFR, 1987 Comp.,

p. 252.