[Federal Register Volume 60, Number 81 (Thursday, April 27, 1995)]
[Rules and Regulations]
[Pages 20644-20649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10247]



-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY
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 NO<INF>X 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 (NO<INF>X) 
requirements found in the Clean Air Act (Act). For transitional areas 
the NO<INF>X 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 NO<INF>X requirements. The State 
of Michigan submitted NO<INF>X 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 NO<INF>X requirements based on a demonstration that 
additional reductions of NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X exemptions are provided for 
in two [[Page 20645]] separate parts of the Act, section 182(b)(1) and 
section 182(f). Because the NO<INF>X 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 NO<INF>X 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 NO<INF>X requirements, exemptions 
from the NO<INF>X 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 NO<INF>X 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 NO<INF>X exemption requests. The 
language in subsection 182(f)(1), which indicates that the EPA should 
act on NO<INF>X 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 NO<INF>X 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 NO<INF>X 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).

    \1\Section 302(e) of the Act defines the term``person'' to 
include States.
    \2\The final section 185B report was issued July 30, 1993.
---------------------------------------------------------------------------

    With respect to major stationary sources, section 182(f) requires 
States to adopt NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 
NO<INF>X generating activities in relevant nonattainment and 
maintenance areas. However, EPA's conformity rules explicitly provide 
that these NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X reductions would not contribute 
to attainment since only one level of NO<INF>X 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 NO<INF>X 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 NO<INF>X 
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 NO<INF>X exemptions under section 182(f). [[Page 20646]] 
    Under section 182(f)(1)(A), an exemption from the NO<INF>X 
requirements may be granted for nonattainment areas outside an ozone 
transport region if EPA determines that ``additional reductions of 
[NO<INF>X] 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) NO<INF>X 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) NO<INF>X provisions, it is clear that the section 182(f) test is 
met since ``additional reductions of [NO<INF>X] 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 NO<INF>X 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 (NO<INF>X) 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 NO<INF>X emissions 
from stationary and/or mobile sources where there is evidence, such as 
photochemical grid modeling, showing that NO<INF>X 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 NO<INF>X exemption request for stationary 
sources under section 182(f). That is, EPA action to grant or deny a 
NO<INF>X exemption request under section 182(f) would not shield that 
area from EPA action to require NO<INF>X 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 NO<INF>X 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 NO<INF>X 
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 NO<INF>X 
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 NO<INF>X 
requirements may be granted for nonattainment areas outside an ozone 
transport region if EPA determines that ``additional reductions of 
[NO<INF>X] 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 
NO<INF>X emissions reductions from sources in the same nonattainment 
area.

    \3\There are 3 NO<INF>X 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 NO<INF>X 
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 NO<INF>X exemption. 
Consequently, as stated in Sec. 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) NO<INF>X requirements would not 
apply or, under the excess reductions provision, a portion of these 
requirements would not apply.''
---------------------------------------------------------------------------

    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 NO<INF>X requirements 
if needed to avoid adverse impacts in downwind areas, either intra- or 
inter-State. 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, Sec. 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 NO<INF>X 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 Sec. 4.4. Thus, if there is evidence 
that NO<INF>X 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 NO<INF>X RACT controls 
under section 182(f) and, in a separate action, require NO<INF>X 
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 
NO<INF>X 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 NO<INF>X emissions allowed under the transportation conformity 
rules and, similarly, the maximum allowable amounts of any such 
NO<INF>X 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 [[Page 20647]] transportation conformity 
rules to ensure consistency with motor vehicle emissions budgets for 
NO<INF>X, but want EPA in actions on NO<INF>X exemptions to explicitly 
affirm this obligation and to also avoid granting waivers until a 
budget controlling future NO<INF>X increases is in place.

EPA Response

    With respect to conformity, EPA's conformity rules\4\\5\ provide a 
NO<INF>X 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 NO<INF>X even where a conformity 
NO<INF>X 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 NO<INF>X motor vehicle emissions budget, 
EPA also intends to require consistency with the attainment 
demonstration's NO<INF>X 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.

    \4\Criteria 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).
---------------------------------------------------------------------------

NRDC Comment 6

    The Act does not authorize any waiver of the NO<INF>X reduction 
requirements until conclusive evidence exists that such reductions are 
counter-productive.

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 
NO<INF>X 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 NO<INF>X 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 
NO<INF>X reductions would generally not be beneficial. In subsection 
182(f)(1), Congress explicitly conditioned action on NO<INF>X 
exemptions on the results of an ozone precursor study required under 
section 185B. Because of the possibility that reducing NO<INF>X 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 NO<INF>X 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 
NO<INF>X/VOC study provision in section [185B] to serve as the basis 
for the various findings contemplated in the NO<INF>X provisions. The 
Committee does not intend NO<INF>X reduction for reduction's sake, but 
rather as a measure scaled to the value of NO<INF>X 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 NO<INF>X 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 
NO<INF>X 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 NO<INF>X exemption requests must await 
``conclusive evidence'', as the commenters argue, there is also nothing 
in the Act to prevent EPA from revisiting an approved NO<INF>X 
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 
NO<INF>X 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 NO<INF>X reductions from the sources concerned;
    (2) in nonattainment areas not within an ozone transport region, 
additional NO<INF>X reductions would not contribute to ozone attainment 
in the area; or
    (3) in nonattainment areas within an ozone transport region, 
additional NO<INF>X 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 
NO<INF>X exemption.
    Only the first test listed above is based on a showing that 
NO<INF>X reductions are ``counter-productive.'' If one of the tests is 
met (even if another test is failed), the section 182(f) NO<INF>X 
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 
[[Page 20648]] 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 NO<INF>X 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 NO<INF>X concentrations 
could be expected, would most likely give erroneously low ozone 
readings because of the fact that high NO<INF>X 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 NO<INF>X 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 NO<INF>X exemptions.

III. Final Action

    The comments received were found to warrant no changes from 
proposed to final action on this NO<INF>X exemption request. Therefore, 
EPA is granting the East Lansing and Genesee County areas section 
182(f) NO<INF>X 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 
NO<INF>X exemption would be subject to general conformity, 
transportation conformity, and nonattainment new source review NO<INF>X 
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 
NO<INF>X, this action also exempts these areas from the NO<INF>X 
conformity requirements of the Act (see G. T. Helms, January 12, 1995 
``Scope of Nitrogen Oxides (NO<INF>X) Exemptions'' memorandum).
    If, subsequent to the NO<INF>X 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 NO<INF>X requirements set forth in the Act, such as 
those for NO<INF>X 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 [[Page 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:


Sec. 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