12446 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

(A) Revisions to the TNRCC

Regulation IV (31 TAC § 114.21,

Employer Trip Reduction Program), as

adopted by the TACB on October 16,

1992.

(B) TACB Order 92–14 as adopted on

October 16, 1992.

(C) SIP narrative entitled, ‘‘Employer

Trip Reduction Program, HoustonGalveston Area,’’ adopted by the TACB

on October 16, 1992, pages 31–38,

addressing: 8.c. Quality Assurance

Measures; 9. Training and Information

Assistance; 11. Enforcement; and 12.

Notification of Employers.

(ii) Additional material.

(A) SIP narrative entitled, ‘‘Employer

Trip Reduction Program, HoustonGalveston Area,’’ adopted by the TACB

on October 16, 1992.

(B) The TACB certification letter

dated November 10, 1992, signed by

William R. Campbell, Executive

Director, TACB.

[FR Doc. 95–5439 Filed 3–6–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[MI26–04–6805; FRL–5157–1]

Approval and Promulgation of

Implementation Plan; Michigan DetroitAnn Arbor NOX Exemption

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency is granting an exemption to the

Detroit-Ann Arbor ozone nonattainment

area from applicable oxides of nitrogen

(NOX) requirements found in the Clean

Air Act (Act). Approval of the

exemption would apply for various NOX

requirements including adoption and

implementation of regulations

addressing general conformity,

transportation conformity, inspection

and maintenance, reasonably available

control technology, and new source

review. The State of Michigan submitted

a NOX exemption request on November

12, 1993. A subsequent letter dated May

31, 1994 clarified this earlier submittal.

This request is based on the fact that

ozone monitoring in the Detroit-Ann

Arbor area indicates 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 an exemption from the

NOX requirements based on a

demonstration that additional

reductions of NOX would not contribute

to attainment of the ozone standard.

EFFECTIVE DATE: This final rule will be

effective April 6, 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: USEPA, 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 November 12, 1993 the State of

Michigan submitted a petition to the

EPA requesting that the Detroit-Ann

Arbor ozone nonattainment area 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 the Detroit-Ann Arbor area

during the most recent 3-year period,

1991 through 1993, is fewer than one

per year.

On August 10, 1994, EPA published a

direct final rulemaking approving the

NOX exemption petition for the DetroitAnn Arbor nonattainment area. During

the 15 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 2

requests for additional time to comment

on this rulemaking from the State of

New York and the Citizens Commission

for Clean Air in the Lake Michigan

Basin. The EPA published a document

announcing the opening of a second

comment period on October 6, 1994.

The second comment period lasted until

November 7, 1994. During the second

comment period, the State of New York

submitted adverse comments.

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 February 8,

1994 and December 1, 1994.

NRDC Comments

Following is a summary of comments

received from the NRDC in a letter dated

August 24, 1994 signed by Sharon

Buccino. After each comment is EPA’s

response.

NRDC Comment 1: Certain

commenters argued that NOX

exemptions are provided for in two

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
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12447

1Section 302(e) of the Act defines the term

‘‘person’’ to include States.

2The final section 185B report was issued July 30,

1993.

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). Thus, EPA believes

that paragraph (3)’s reference to

paragraph (1) encompasses only the

substantive tests in paragraph (1) (and,

by extension, paragraph (2)), not the

requirement in paragraph (1) for EPA to

grant exemptions only when acting on

plan revisions.

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, areas seeking a

NOX exemption would have had to

submit their exemption requests 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 Detroit-Ann Arbor 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 three-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).

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 is revising the

previously issued guidance. As

described below, 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
12448 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 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 section 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.’’

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 Rules,’’ November 30, 1993 (58 FR 63214).

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,

certain nonattainment areas in the

modeling domain have requested

exemptions from NOX requirements

under section 182(f). Some areas

requesting an exemption 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 domainwide 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, section 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. 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 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
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12449

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

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 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.

State of New York Comment 1: The

State of New York reaffirms its objection

to this proposed rulemaking originally

stated in an August 24, 1994 letter.

According to the May 27, 1994

memorandum from Mr. John Seitz and

the December 1993 section 182(f) NOX

exemption guidance, the exemption

cannot be approved if there is evidence

that NOX exemption would interfere

with the attainment of a downwind

area.

Section 3.3 of the December 1993

guidance states;

The net air quality benefit test is not

specifically limited to an ozone

nonattainment area or ozone transport region

and may be directed at a specific set of

sources. Thus, a broad geographic area

should be considered. The area may, in some

cases, extend beyond an ozone

nonattainment area or ozone transport region

* * * Sufficient area is needed to allow for

completion of the various chemical

transformations of NOX and interaction with

other pollutants.

The latest results of the EPA regional

oxidant modeling (ROM) indicate that

emissions of NOX from stationary

sources west of the Ozone Transport

Region contribute to increased ozone

levels in the northeast, including New

York State. These results show that

control of NOX emissions throughout

the eastern United States will contribute

to significant reductions in peak ozone

levels within the ozone transport region

(OTR).

EPA Response: With respect to the

comments regarding the latest ROM

results and downwind impacts in

general, EPA refers the commenter to its

previous responses to NRDC Comments

3 and 4.

The State of New York incorrectly

cites section 3.3 of EPA’s December

1993 guidance. Section 3.3 applies only

to those areas applying for a NOX

exemption under the ‘‘net air quality

benefit’’ test. The Detroit-Ann Arbor

petition is based on the ‘‘contribute to

attainment’’ test. The ‘‘contribute to

attainment’’ test requires that only the

emissions from the immediate

nonattainment area be considered in

evaluating the petition (see December

1993 guidance document, ‘‘Guidelines

for Determining the Applicability of

Nitrogen Oxides Requirements Under

Section 182(f)’’, section 4.3). In its

petition the State of Michigan has

demonstrated that the average number

of exceedances of the ozone standard in

the area during the past 3 years (1991–

1993, the most current monitored years

at the time the exemption request was

made) is fewer than one per year which

is sufficient to receive an exemption

under this test. In addition, the 1994

ozone season has passed and no

violation of the ozone standard has been

recorded in the area.

State of New York Comment 2: The air

quality monitoring data alone does not

support this exemption proposal. This is

supported by a July 28, 1994 letter from

the Michigan Department of Natural

Resources which states that ‘‘(we) are

nearly in violation of the ozone standard

at several monitoring sites, primarily

due to the many excursions we had in

June.’’ This proposal does not appear to

consider this data. In addition, the data

submitted for the period 1991 to 1993

(November 12, 1993 section 182(f) NOX

exemption request letter to EPA Region

V) contain the maximum number of

exceedances allowed to still be

considered attainment. This does not

provide a clear test that additional
12450 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

6 ‘‘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).

7 ‘‘Determining Conformity of General Federal

Actions to State or Federal Implementation Plans;

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

reductions would not contribute to

maintenance of attainment.

EPA Response: EPA is required to

base its SIP decisions on the

information duly submitted by a State in

fulfillment of requirements imposed by

the Act. The basis for granting this

exemption is the fact that the

information submitted by the State of

Michigan demonstrates that this area

has not experienced a violation of the

ozone standard for the most recent 3

years of monitored data. Consistent with

the established EPA policy, the fact that

the area has recorded the maximum

number of exceedances without

violating the standard is irrelevant to a

determination regarding whether an

area is showing attainment for the

period in question. What is relevant is

whether or not the standard was

violated, and the submitted data

confirms that it was not. (See 40 CFR

50.9, 40 CFR part 50, appendix H, and

Guideline for Interpretation of Ozone

Air Quality Standards, January 1979,

EPA–450/4–79–003.) In addition to the

fact that the ozone standard was not

violated for the years 1991–1993, the

years upon which this exemption

request is based, monitoring data

throughout the 1994 ozone season for

the Detroit-Ann Arbor area continues to

show attainment of the ozone standard.

State of New York Comment 3: The

State of New York strongly objects to the

guidance developed to allow these

exemptions to be processed. The May

27, 1994 memorandum ‘‘Section 182(f)

Nitrogen Oxides (NOX Exemptions—

Revised Process and Criteria’’ allows a

nonattainment area to consider only its

own air quality monitoring data and

does not require a demonstration that

the area does not negatively impact the

attainment status of downwind areas.

The guidance memorandum also allows

the nonattainment area to submit the

NOX exemption request without a

redesignation or maintenance request.

This does not provide the federal

government with the appropriate

information to make an informed

judgment on the contribution of NOX to

nonattainment. Finally, this guidance

did not undergo State review before

issuance. While not necessarily

required, it is EPA’s usual practice to

allow the States to have input in the

development of guidance.

EPA Response: EPA’s guidance

regarding both the adequacy of the

demonstration needed to qualify for a

NOX exemption and the extent to which

downwind impacts need to be

considered was developed in

accordance with what EPA considers to

be the best interpretation of the

language in section 182(f) of the Act. For

a more detailed discussion of that

interpretation see EPA’s responses to

NRDC Comments 1 and 4 above. In

addition, while it may be true that this

guidance did not undergo State review

before issuance, an opportunity for State

participation is provided when such

guidance is followed in proposed

rulemaking actions. If a State objects to

a proposed action and the guidance that

action is based on, it is free to comment

on the proposed action during the

public comment period provided, as

indeed, the State of New York has done

here.

State of New York Comment 4: The

Detroit-Ann Arbor area has been

designated as moderate ozone

nonattainment and as such requires a 15

percent rate-of-progress plan and a

modeled attainment demonstration. It is

unclear from the record whether these

requirements have been fulfilled. An

exemption request would need this

information at a minimum to determine

its validity. Please provide the status of

these State implementation plan

revisions.

EPA Response: As described

previously in EPA’s response to NRDC

Comment 1, EPA action on NOX

exemption petitions submitted pursuant

to section 182(f)(3) of the Act can be

taken independently of action on

attainment or maintenance

demonstration plans or redesignation

requests. Consequently, the issue of

whether the State of Michigan’s

independent requirements under the

Act to submit a 15 percent rate-ofprogress plan and an attainment

demonstration plan have been met do

not affect EPA’s ability to act on the

State’s exemption request. (See also

EPA’s response to NRDC Comment 3,

describing the Agency’s policy

regarding the use of monitoring data to

meet the ‘‘contribute to attainment’’

test).

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

Detroit-Ann Arbor section 182(f)

exemption petition 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.

The EPA’s transportation conformity

rule 6 and EPA’s general conformity

rule 7 also reference the section 182(f)

exemption process as a means for

exempting affected areas from NOX

conformity requirements, and the

conformity requirements apply on an

areawide basis. Since this petition for

exemption is areawide, as opposed to

source-specific, an approval would also

exempt this area from the NOX

conformity requirements of the Act (see

John Seitz May 27, 1994 ‘‘Section 182(f)

Nitrogen Oxides (NOX) Exemptions—

Revised Process and Criteria’’

memorandum). Additionally, the

Inspection/Maintenance (I/M) Program

Final Rule (57 FR 52950) allows for the

omission of the basic I/M NOX

requirements if a 182(f) exemption is

granted to an area. Michigan does not

currently have—or need—an enhanced

I/M program. If the State did adopt such

a program (because further emissions

reductions necessary to address other

portions of the Act could be obtained

through an enhanced program), it would

have to be designed to offset NOX

increases resulting from the vehicle

repairs due to hydrocarbon (HC) and

carbon monoxide (CO) failures.

If, subsequent to the NOX waiver

being granted, EPA determines that the

area has violated the standard, the

section 182(f) exemption, 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 comply with

any applicable NOX requirements set

forth in the Act, such as those for NOX

RACT, NSR, I/M, 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.

The Federal Register document

revoking the NOX exemption would also

establish the schedule for adoption and

implementation of those NOX

requirements the area was previously

exempt.
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12451

On November 12, 1993 the State

submitted a redesignation request.

Section 175(A) requires submittal of a

maintenance plan for areas that are

redesignating to attainment. This

maintenance plan must contain

contingency measures which shall be

implemented if a violation of the ozone

standard occurs. Consequently, if the

State’s redesignation request is

approved, the NOX requirements found

in the maintenance plan for that area

would, thereafter, apply as long as the

area is designated attainment for the

ozone standard.

This action will become effective on

April 6, 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).

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 May 8, 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: February 8, 1995.

Norman R. Niedergang,

Acting 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 (j) to read as follows:

§ 52.1174 Control strategy: Ozone.

* * * * *

(j) Approval—On November 12, 1993,

the Michigan Department of Natural

Resources submitted a petition for

exemption from the oxides of nitrogen

requirements of the Clean Air Act for

the Detroit-Ann Arbor ozone

nonattainment area. The submittal

pertained to the exemption from the

oxides of nitrogen requirements for

conformity, inspection and

maintenance, reasonably available

control technology, and new source

review. These are required by sections

176(c), 182(b)(4), and 182(f) of the 1990

amended Clean Air Act, respectively. If

a violation of the ozone standard occurs

in the Detroit-Ann Arbor ozone

nonattainment area, the exemption shall

no longer apply.

[FR Doc. 95–5444 Filed 3–6–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[CA 102–8–6860a; FRL–5160–4]

Approval and Promulgation of

Implementation Plans; California State

Implementation Plan Revision, Bay

Area Air Quality Management District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final

action on revisions to the California

State Implementation Plan. The

revisions concern rules from the Bay

Area Air Quality Management District

(BAAQMD). This approval action will

incorporate these rules into the federally

approved SIP. The intended effect of

approving these rules is to regulate

emissions of volatile organic

compounds (VOCs) in accordance with

the requirements of the Clean Air Act,

as amended in 1990 (CAA or the Act).

In addition, the final action on these

rules serves as a final determination that

any deficiencies in these rules noted in

prior proposed rulemakings have been

corrected. The rules control VOC

emissions from pump and compressor

seals at petroleum refineries, chemical

plants, bulk plants, and bulk terminals;

large commercial bakeries; and

polyester resin operations. Thus, EPA is

finalizing the approval of these rules

into the California SIP under provisions

of the CAA regarding EPA action on SIP

submittals, SIPs for national primary

and secondary ambient air quality

standards and plan requirements for

nonattainment areas.

DATES: This final rule is effective on

May 8, 1995 unless adverse or critical

comments are received by April 6, 1995.

If the effective date is delayed, a timely

notice will be published in the Federal

Register.

ADDRESSES: Copies of the rules and

EPA’s evaluation report for each rule are

available for public inspection at EPA’s

Region IX office during normal business

hours. Copies of the submitted rules are

available for inspection at the following

locations:

Rulemaking Section (A–5–3), Air and

Toxics Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105.

Environmental Protection Agency, Air

Docket (6102), 401 ‘‘M’’ Street SW.,

Washington, DC 20460,

California Air Resources Board,

Stationary Source Division, Rule

Evaluation Section, 2020 ‘‘L’’ Street,

Sacramento, CA 95814.