[Federal Register Volume 60, Number 44 (Tuesday, March 7, 1995)]
[Rules and Regulations]
[Pages 12459-12478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5445]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81

[MI21-04-6753, MI18-03-6754; FRL-5160-6]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; State of Michigan

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: On July 21, 1994 the USEPA published a proposal to approve the 
1990 base year emission inventory, basic vehicle inspection and 
maintenance (I/M) and the redesignation to attainment and associated 
section 175A maintenance plan for the ozone National Ambient Air 
Quality Standard (NAAQS) for the seven-county Detroit-Ann Arbor, 
Michigan area as a State Implementation Plan (SIP) revisions. The 30-
day comment period concluded on August 22, 1994. A total of 72 comment 
letters were received in response to the July 21, 1994 proposal, 62 
favorable, 9 adverse and 1 request to extend the comment period. On 
September 8, 1994, however, the USEPA published a correction document 
and 15-day extension of the comment period as a result of the 
inadvertent omission of a number of lines from the July 21, 1994 
proposal. The reopened comment period concluded on September 23, 1994. 
An additional 25 comment letters were received in response to the 
September 8, 1994, extension of public comment period regarding the 
July 21, 1994 proposal approval, 2 favorable, 22 adverse and 1 
informational. This final rule summarizes all comments and USEPA's 
responses, and finalizes the approval of the 1990 base year emission 
inventory, and basic I/M, and the redesignation to attainment for ozone 
and associated section 175A maintenance plan for the Detroit-Ann Arbor 
area.

EFFECTIVE DATE: This action will be effective April 6, 1995.

ADDRESSES: Copies of the SIP revisions, public comments and USEPA's 
responses are available for inspection at the following address: (It is 
recommended that you telephone Jacqueline Nwia at (312) 886-6081 before 
visiting the Region 5 Office.) United States Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Jacqueline Nwia, Regulation 
Development Section (AT-18J), Air Toxics and Radiation Branch, Air and 
Radiation Division, United States Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, Telephone 
Number (312) 886-6081.

SUPPLEMENTARY INFORMATION:

I. Background Information

    The 1990 base year emission inventory, basic I/M, and redesignation 
[[Page 12460]] request and maintenance plan discussed in this rule were 
submitted on January 5, 1993 (with revisions on November 15, 1993), 
November 15, 1994 and November 12, 1994, respectively, by the Michigan 
Department of Natural Resources (MDNR) for the Detroit-Ann Arbor 
moderate ozone nonattainment area. The Detroit-Ann Arbor area consists 
of Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne 
counties. On July 21, 1994, (59 FR 37190) the USEPA published a 
proposal to approve the 1990 base year emission inventory, basic I/M, 
and redesignation request and associated section 175A maintenance plan 
as revisions to the Michigan ozone SIP. On September 8, 1994 (59 FR 
46479 and 46380), the USEPA published a correction notice and 15-day 
extension of the comment period as a result of the inadvertent omission 
of a number of lines from the July 21, 1994 proposal. Adverse comments 
were received regarding the proposed rule. The final rule contained in 
this Federal Register addresses the comments which were received during 
the public comment periods and announces USEPA's final action regarding 
the 1990 base year emission inventory, basic I/M, and redesignation and 
section 175A maintenance plan for the Detroit-Ann Arbor area. A more 
detailed discussion in response to each comment is contained in the 
USEPA's Technical Support Document (TSD), dated February 3, 1995 from 
Jacqueline Nwia to the Docket, entitled ``Response to Comments on the 
July 21, 1994 Proposal to Approve the 1990 Base Year Emission 
Inventory, Basic I/M, and Redesignation to Attainment for Ozone and 
Section 175A Maintenance Plan for the Detroit-Ann Arbor Area,'' which 
is available from the Region 5 office listed above.

II. Public Comments and USEPA Responses and Final Rulemaking Actions

Table of Contents

A. 1990 Base Year Emission Inventory
    I. Public Comments and USEPA Response
    II. Final Rulemaking Action
B. Inspection and Maintenance
    I. Public Comments and USEPA Response
    II. Final Rulemaking Action
    C. Redesignation
    I. Public Comments and USEPA Response
    II. Final Rulemaking Action

A. 1990 Base Year Emission Inventory

I. Public Comments and USEPA Responses
    The following discussion summarizes and responds to the comments 
received regarding the 1990 base year emission inventory.

Comment

    Two commentors note an error in the 1990 base year emission 
inventory portion of the proposed action. One of these commentors notes 
that the total tons of volatile organic compounds (VOC) per summer 
weekday emitted from non-road mobile sources is listed as 531.03 for 
this source category. The correct number submitted by MDNR is 111.67.

USEPA Response

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

                            Daily VOC Emissions From All Sources--Tons/Summer Weekday                           
----------------------------------------------------------------------------------------------------------------
                                                                On-road      Non-road                           
                                       Point     Area source     mobile       mobile      Biogenic      Total   
     Ozone nonattainment area          source     emissions      source       source     emissions    emissions 
                                     emissions                 emissions    emmissions                          
----------------------------------------------------------------------------------------------------------------
Detroit/Ann Arbor.................       167.08       252.27       327.00       111.67       113.90       971.92
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II. Final Rulemaking Action
    The USEPA approves the ozone emission inventory SIP submitted to 
the USEPA for the Detroit-Ann Arbor area as meeting the section 
182(a)(1) requirements of the Clean Air Act (Act) for emission 
inventories.

B. Inspection and Maintenance

I. Public Comments and USEPA Responses
    The following discussion summarizes and responds to the comments 
received regarding Inspection and Maintenance.

Comment

    One commentor suggests that the USEPA's redesignation decision 
should be explicitly conditioned upon the requirement for the Michigan 
Department of Transportation to implement enhanced I/M 240 as a 
contingency measure. At a bare minimum, the maintenance plan should 
include the BAR 90 emissions test with visual anti-tampering check for 
all cars newer than 1975 with no Medicaid waiver.

USEPA Response

    The Act requires that nonattainment areas classified as moderate 
adopt and submit as a SIP revision provisions for implementation of a 
basic I/M program. See sections 182(a)(2)(B)(i) and (b)(4). Since the 
Detroit-Ann Arbor area was classified as moderate nonattainment for 
ozone, the Act requires an I/M program that meets the basic I/M 
performance standard. The Detroit-Ann Arbor area has implemented an I/M 
program since 1986, as required by the pre-1990 Act. The area, 
therefore, must provide for upgrades to the current I/M program to the 
level of a basic I/M program. Under recent revisions to the national I/
M rule (January 5, 1995, 60 FR 1735), however, areas that have 
requested redesignation to attainment, and are otherwise eligible to 
obtain approval of the request, may defer adoption and implementation 
of otherwise applicable requirements established in the originally 
promulgated I/M rule<SUP>1. The State was required to submit and has 
submitted, as a contingency measure within the section 175A maintenance 
plan a commitment, legislative authority and an enforceable schedule 
for adoption and implementation of a basic I/M program. The contingency 
plan is described in detail in a subsequent USEPA response within this 
Federal Register.

    \1\I/M rule was promulgated on November 5, 1992, 57 FR 52950.
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Comment

    One commentor requests that the USEPA delay approval of the 
redesignation request until Michigan's Joint Committee on 
Administrative Rules completes its review of the I/M legislation and 
the USEPA confirms that the essential elements listed at 59 FR 
[[Page 12461]] 37193-94 regarding basic I/M, upon which redesignation 
approval relies, are still in place.

USEPA Response

    The USEPA cannot delay approval of the redesignation, since 
Michigan has submitted the elements required and necessary to establish 
basic I/M as a contingency measure in the section 175A maintenance plan 
as provided for by the revisions to the national I/M rule. As presented 
in the July 21, 1994 proposal, the State submittal contains the 
essential elements listed at 59 FR 37193-94. Basic I/M, if implemented 
as a contingency measure, may be implemented in Wayne, Oakland, and 
Macomb counties and expanded to Washtenaw county.

Comment

    One commentor is concerned that expanding upgraded<SUP>2 basic      
 I/M to Washtenaw, St. Clair, Livingston and Monroe counties is subject 
to potential legislative veto after the need for contingency measures 
is triggered. The commentor states that because Michigan's legislature 
can unilaterally rescind the provisions to extend basic
I/M programs to Washtenaw, St. Clair, Livingston and Monroe counties 
(1993 Mich. Pub. Act 232 Sec. 8(2)(c) & (d)), Michigan's provisions do 
not appear to meet even the relaxed standards proposed in the June 28, 
1994 revisions to the national I/M rule, 59 FR 33237, as being fully 
self-implementing and enforceable under all circumstances. Therefore, 
Michigan's basic I/M SIP is not complete or approvable. Consequently, 
the Detroit-Ann Arbor area is not eligible for redesignation.

    \2\The Act requires States to make changes to improve existing 
I/M programs or implement new ones. Section 182(a)(2)(B)(i) requires 
States to submit SIP revisions for any ozone nonattainment area 
which has been classified as marginal, pursuant to section 181(a) of 
the Act, with an existing I/M program that was part of a SIP prior 
to enactment of the Act or any area that was required by the Act, as 
amended in 1977, to have an I/M program, to bring the program up to 
the level required in pre-1990 USEPA guidance, or to what had been 
committed to previously in the SIP, whichever was more stringent. 
Areas classified as moderate and worse were also subject to this 
requirement to improve programs to this level. The Detroit-Ann Arbor 
area, a moderate ozone nonattainment area, had in effect an I/M 
program pursuant to the 1977 Act. The area, therefore, was required 
to improve its existing I/M program to meet the basic I/M program 
requirements.
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USEPA Response

    Sections 8(2)(c) and (d) of Michigan's Enrolled House Bill 5016 
only apply if the redesignation request is disapproved and basic I/M 
must be implemented in the entire 7-county Detroit-Ann Arbor area 
(Wayne, Oakland, Macomb, Washtenaw, St. Clair, Livingston, and Monroe 
counties). The 45-day notification period in section 8(2)(d) of 
Michigan Enrolled House Bill 5016 is only applicable, as described in 
section 8(2)(c), if the redesignation is not approved and the State 
must implement basic I/M to meet the section 182(b) requirements. 
Clearly, the 45-day notification period is not applicable for 
implementation of I/M as a contingency measure. It is important to 
acknowledge that only notification to the legislature is required, and 
that no affirmative action on the part of the legislature is necessary 
to allow the program to be implemented. In addition, States at any time 
are able to amend existing rules and/or regulations for any required 
program as a matter of State law. This ability is not a reason for 
disapproval of any State submittal because such unilateral State action 
would not affect the Federal enforceability of the version of the State 
law or regulation the USEPA had approved into the SIP. The I/M 
legislation for the Detroit-Ann Arbor area satisfies the requirements 
of the revisions to the national I/M rule.
    Sections 8(2)(a) and (b) of the legislation apply if the area is 
redesignated, and basic I/M is implemented as a contingency measure or 
as a condition for approval of the redesignation request. In 
particular, section 8(2)(a) provides that basic I/M may be implemented 
as a contingency measure in Wayne, Oakland and Macomb county and also 
expanded to Washtenaw county, if necessary. Together, the basic I/M 
submittal and redesignation request and the section 175A maintenance 
plan for the Detroit-Ann Arbor area (1) provide for the adoption of 
implementing regulations for a basic I/M program, meeting the national 
basic I/M requirements without further legislation, (2) provide for the 
implementation of basic I/M upgrades as a contingency measure in the 
maintenance plan upon redesignation, (3) contain, as a contingency 
measure within the maintenance plan, a commitment by the Governor to 
adopt regulations to implement I/M in response to a specified 
triggering event, and (4) contain a commitment including an enforceable 
schedule for adoption and implementation of a basic I/M program, as 
provided in the revisions to the national I/M rule. The revisions to 
the I/M rule do not, however, require that the basic I/M SIP be fully 
self-implementing. Consequently, contrary to the commentor's statement, 
the basic I/M SIP is complete and approvable and the Detroit-Ann Arbor 
area is eligible for redesignation.

Comment

    One commentor states that the USEPA cannot redesignate the Detroit-
Ann Arbor area because Michigan's basic       I/M SIP submission does 
not even satisfy the requirements of the USEPA's unlawful policy. In 
particular, the commentor argues that since the legislature could at 
any time amend the legislative authority, the USEPA should require the 
State to submit adopted regulations with a basic I/M SIP. The commentor 
further argues that Michigan did not submit a sufficiently specific and 
enforceable schedule for adoption and implementation of a basic I/M 
program upon a specified triggering event. The commentor also notes 
that if the State has not adopted the regulations necessary to 
implement the contingency measure, such measure will not correct any 
violation promptly as required by the Act and USEPA guidance.

USEPA Response

    The commentor states that the 45-day notice provided in the 
legislation prior to implementation of a required I/M program ensures 
that the legislature can repeal the legislative authority before it 
takes effect. This commentor's interpretation of Michigan's Enrolled 
House Bill 5016 is incorrect. The 45-day notification period in section 
8(2)(d) of Michigan Enrolled House Bill 5016 is only applicable under 
the scenario described in section 8(2)(c), if the redesignation is not 
approved and the State must implement basic I/M to meet the section 
182(b) requirements. Thus, as discussed earlier, the 45-day 
notification period is not applicable for implementation of I/M as a 
contingency measure.
    The USEPA further responds that Michigan has submitted as part of 
the 175A maintenance plan an enforceable schedule for adoption and 
implementation of basic I/M as a contingency measure. Section 6.8.3 of 
the State's submittal indicates that adoption and implementation 
schedules for contingency measures would be consistent with those 
specified in the Act and any corresponding regulations and submitted as 
part of the technical urban airshed modeling (UAM) analysis. The I/M 
redesignation rule provides the relevant adoption and implementation 
schedules. If the Governor chooses I/M to be implemented as the 
contingency measure, under the schedule of the I/M redesignation rule 
Michigan incorporated by reference, the State would need to adopt I/M 
within one year of the trigger date. Michigan's submittal defined the 
trigger date as the [[Page 12462]] date that the State certifies to the 
USEPA that the air quality data are quality assured, which will be no 
later than 30 days after an ambient air quality violation is monitored. 
Pursuant to the I/M redesignation rule, the trigger date is the date no 
later than when the USEPA notifies the State of a violation. As long as 
the trigger date as defined by Michigan occurs prior to the date the 
USEPA notifies the State of a violation, Michigan's timeframe for 
implementing I/M as a contingency measure is consistent with the I/M 
redesignation rule. Because it often takes several months for the USEPA 
to obtain the data and confirm a violation, it is unlikely that the 
trigger date as defined by Michigan will be later than that defined in 
the I/M redesignation rule. However, if the USEPA does notify the State 
of a violation prior to the State certifying to the USEPA that the 
ambient air quality data assure a violation, then the trigger date will 
be the date of the USEPA notification to the State, consistent with the 
I/M redesignation rule. The basic I/M program, if selected as a 
contingency measure, must be implemented within 24 months of the 
trigger date, or 12 months after the adoption of implementing 
regulations. This schedule is consistent with the I/M redesignation 
rule, which is the applicable regulation for purposes of establishing 
an adoption and implementation schedule. This schedule is specific and 
enforceable since it will be incorporated into the SIP as part of the 
section 175A maintenance plan. The section 175A(d) requirement for 
contingency provisions is that they must promptly correct a violation 
of the NAAQS. The USEPA believes that the schedule provided for 
implementation of a basic I/M program within the Detroit-Ann Arbor 
area's section 175A maintenance plan is sufficient to address this 
requirement in light of the logistics of adopting and implementing a 
basic I/M program.
    The commentor also indicated that the Michigan submittal does not 
satisfy the USEPA's requirement of a ``specified and enforceable 
schedule'' because it does not include a timetable of steps necessary 
to get the required regulations adopted. As discussed above, because 
Michigan incorporated by reference the timetable of the I/M 
redesignation rule, adoption of I/M regulations is specified to occur 
within one year of the trigger date. The only other interim step 
necessary to get the required regulations adopted is the proposal of 
draft regulations. Although the Michigan submittal did not specify a 
date for the proposal, the State's commitment to a date for 
promulgation of the final rule implies that the draft regulations will 
be proposed on a date no later than that necessary to provide for 
notice and comment and a hearing on the draft regulations. Because 
Michigan's submittal specified a timetable to get the final regulations 
adopted, the Michigan submittal has met the requirement to provide a 
specified and enforceable schedule.
    A commentor also suggested that a determination that actual 
emissions from mobile sources actually exceed those predicted in the 
emission inventories should also be included as a triggering event. 
This is neither a requirement of the Act nor of USEPA policy, although 
it has been suggested as a possible triggering event in guidance, and 
States are encouraged to use it.

Comment

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

USEPA Response

    Michigan did not claim that the current I/M program did not 
contribute to the Detroit-Ann Arbor's attainment, nor did it claim 
credit for the emission reductions achieved as a result of the program 
within the attainment demonstration. Furthermore, neither the State nor 
the USEPA has proposed or suggested that the current I/M program be 
eliminated after 1995. In fact, the State must continue to implement 
its current I/M program as well as all other SIP control measures that 
were contained in the SIP prior to the submittal of a complete 
redesignation request. The September Shapiro<SUP>3 memorandum reviews 
and reinforces the USEPA's policy on SIP relaxations, particularly in 
the context of redesignation. The memorandum notes that the USEPA's 
general policy is that a State may not relax the adopted and 
implemented SIP for an area upon the area's redesignation to attainment 
unless an appropriate demonstration, based on computer modeling, is 
approved by the USEPA. Existing control strategies must continue to be 
implemented in order to maintain the standard. Although section 175A 
recognizes that SIP measures may be moved to the contingency plan upon 
redesignation, such a SIP revision may be approved only if the State 
can adequately demonstrate that such action will not interfere with 
maintenance of the standard. A demonstration for an area redesignated 
to attainment for ozone would entail submittal of an attainment 
modeling demonstration with the USEPA's current Guideline on Air 
Quality Models, showing that the control measure is not needed to 
maintain the ozone NAAQS. Also, see memorandum from Gerald A. Emison, 
April 6, 1987, entitled Ozone Redesignation Policy.

    \3\September 17, 1993 memorandum from Michael H. Shapiro, 
entitled SIP Requirements for Areas Submitting Requests for 
Redesignation to Attainment of the Ozone and Carbon Monoxide NAAQS 
on or after November 15, 1992.
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Comment

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

USEPA Response

    The USEPA's specific response to these comments is published in the 
USEPA's final rulemaking on the revisions to the national I/M rule. See 
January 5, 1995, 60 FR 1735. In that rulemaking, the commentor also 
submitted similar remarks and the USEPA's responses to those comments 
appear in the docket for that rulemaking. It is appropriate for the 
USEPA to rely on the final I/M rule revisions in taking today's final 
action, and this rulemaking is not the appropriate forum in which to 
challenge the validity of the I/M rule revisions.
II. Final Rulemaking Action
    The USEPA approves the basic I/M program submitted to the USEPA for 
the Detroit-Ann Arbor area as meeting the revised national I/M rule 
(January 5, 1995, 60 FR 1735) for areas redesignated from nonattainment 
to attainment, consequently satisfying the requirements of section 
182(a)(2)(B)(i) of the Act.

C. Redesignation

I. Public Comments and USEPA Responses
    The following discussion summarizes and responds to the comments 
received regarding the redesignation of the Detroit-Ann Arbor area to 
attainment for ozone.

Comment

    One commentor notes that if an expeditious review and approval of 
MDNR's request had occurred prior to the 1994 ozone season, then any 
ozone violation thereafter would have prompted the implementation of a 
contingency measure from the maintenance plan to correct the air 
quality problem. [[Page 12463]] 

USEPA Response

    The Act authorizes the USEPA up to 18 months from submittal to act 
on a State's request to redesignate. See section 107(d)(3)(D). The 
process for redesignating areas to attainment is a complex one which is 
designed not only to identify areas which currently have clean air, but 
also to assure that clean air will be maintained in the future. There 
are many statutory requirements which must be satisfied before the 
redesignation request can be processed, including review and approval 
of all revisions to the SIP for programs whose deadlines came due prior 
to submittal of the redesignation request to the USEPA. See September 
Calcagni<SUP>4 memorandum and September Shapiro. Before the USEPA could 
finally redesignate the area to attainment, all remaining items had to 
be finally approved, including: (1) the State regulations for 
Reasonable Available Control Technology (RACT) for VOC,<SUP>5 (2) the 
section 182(f) oxides of nitrogen (NO<INF>X) RACT exemption petition, 
and 3) revisions to the national motor vehicle I/M rule. The USEPA 
could not redesignate the Detroit-Ann Arbor area until these actions 
were finalized. Because all these actions were finalized, the Federal 
action on the redesignation can be completed. Furthermore, if a 
violation had occurred during the pendency of the USEPA's review of the 
ozone redesignation request, the USEPA could not approve the request 
since the area would not have remained in attainment. As a consequence, 
further control measures would have been required under the Act.

    \4\September 4, 1992 memorandum from John Calcagni, entitled 
Procedures for Processing Requests to Redesignate Areas to 
Attainment.
    \5\The VOC RACT rules were approved in a final rulemaking 
published on September 7, 1994 in the Federal Register (59 FR 46213 
and 46182).
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    In any case, the commentor's concern is moot, since no violations 
of the ozone NAAQS occurred during the 1994 ozone season.

Comment

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

USEPA Response

    An October 4, 1993 memorandum from Michael H. Shapiro, Acting 
Assistant Administrator for Air and Radiation, revised the SIP tables 
initially published in the Federal Register on January 19, 1989 (54 FR 
2214). The USEPA revised these tables in conjunction with the Office of 
Management and Budget (OMB). The revisions classified all 
redesignation, except those for total suspended particulate, as Table 2 
actions. These actions require the Regional Administrator's decisions 
and concurrence, but provide a 40-day opportunity for Headquarters 
review before concurrence by the Regional Administrator. The 40-day 
Headquarters review is intended to function as a check for national 
consistency and the USEPA believes that this system provides adequate 
assurances of consistency.

Comment

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

USEPA Response

    As stated in the proposed rulemaking, Michigan submitted ambient 
data for 1990-1992 in its November 12, 1993 submission, but did not 
submit 1993 ozone data because it was not completely quality-assured at 
the time the request was being developed. Under the guidance of the 
USEPA, the State submitted the 3 most recent consecutive years of 
complete air monitoring data (1990-1992), with the understanding that 
shortly thereafter, the 1993 ozone season data would be available in 
AIRS for the USEPA to review. The 1993 ozone data was considered by the 
USEPA and was subject to public comment as a result of the July 21, 
1994 proposed rulemaking. Regardless of which years of data are used, 
1990-1992 or 1991-1993, Michigan has demonstrated attainment of the 
ozone NAAQS in the Detroit-Ann Arbor area by providing monitoring data 
with no violations. Completeness of a SIP submittal is based on the 
criteria established in 40 CFR part 51, appendix V. Using these, the 
USEPA found the November 12, 1993 submittal complete in a letter to 
Michigan dated January 7, 1994. The use of 1993 ozone season data that 
was not completely quality-assured at the time of the November 12, 1993 
submission does not alter the conclusion that the submission, which the 
USEPA found complete was based on 3 consecutive years of air monitoring 
data.

Comment

    One commentator alleges that USEPA's notice of proposed approval of 
the redesignation is a product of undue haste since the action was 
incomplete and failed to give adequate notice of plans for verification 
of continued attainment. The action skips portions of paragraph (b) 
Demonstration of Maintenance and paragraph (C) Verification of 
Continued Attainment on pages 37198-37199. In addition, three 
paragraphs on page 37198 duplicate text on page 37197.

USEPA Response

    The omission of paragraph (B) and (C) and duplicated text is 
acknowledged. Unfortunately, the Office of Federal Register, 
inadvertently excluded a number of lines from these two sections of the 
action. For this reason, the comment period on the July 21, 1994, 
redesignation was reopened on September 8, 1994, (59 FR 46479 and 
46380) for 15 days in order to provide the public an opportunity to 
appropriately comment on it.

Comment

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

USEPA Response

    As discussed above, the comment period was extended for the 
redesignation and section 175A maintenance plan in order to give the 
public sufficient time to review and to submit comments. The correction 
document and extension of public comment period action were published 
on September 8, 1994. The USEPA does not believe that any additional 
extension of time is necessary as an adequate comment period has 
already been provided.

Comment

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

USEPA Response

    Under the Act, States can submit proposed implementation plans (and 
revisions) to the USEPA for approval only after they have afforded 
interested parties ``reasonable notice and public hearing * * *.'' See 
Section 110(a)(1) and (a)(2). The State held a public hearing on the 
proposed redesignation to attainment for ozone and revision to 
[[Page 12464]] the Michigan SIP, i.e., maintenance plan, on October 22, 
1993. There are no provisions, however, requiring the USEPA to hold its 
own hearings. The USEPA is required to provide the opportunity for 
public comment. The USEPA announced opportunities on July 21, 1994 and 
September 8, 1994 for the public to submit comments. The USEPA believes 
those opportunities represent a more than ample opportunity for public 
input and comment on this redesignation.

Comment

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

USEPA Response

    This redesignation pertains to solely to ozone, and would not 
affect offensive odors from an incinerator, regardless of whether these 
odors are evident during slightly overcast skies or at night. 
Redesignating the area to attainment for ozone would neither solve nor 
contribute to the problem. The incinerator must continue to operate 
existing control equipment in compliance with its own applicable 
permits, rules and regulations. Ambient monitoring data from 1990 
through 1994 demonstrates that the area is attaining the ozone NAAQS. 
This evidences that the air quality has improved at least since the 
period 1987-1989, the years of air quality data which were used to 
designate the area nonattainment for ozone.

Comment

    A number of commentors urge the USEPA to reconsider the NAAQS for 
ground level ozone. One commentor notes that Canada's ozone standard' 
is 82 parts per billion (ppb) while the United States' (U.S.) is 125 
ppb.<SUP>6 This disparity in limits continues to be debated in the U.S. 
courts with the American Lung Association and others, who contend that 
the U.S. must lower its limit to 82 ppb, or lower, for health based 
reasons. Another commentor states that the current ozone NAAQS is not 
protective of the public health, and should be made more stringent to 
comply with the Congressional mandate to protect public health with an 
``adequate margin of safety.''

    \6\This is equivalent to 0.125 parts per million (ppm). This is 
the reference used by the commentor, presumably, to illustrate the 
difference between the Canadian objective and U.S. standard.
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USEPA Response

    The USEPA is currently in the process of reevaluating the ozone 
NAAQS and expects to make a final decision in mid-1997. Until any 
change is made, however, the USEPA is bound to implement the provisions 
of the Act as they relate to the current standard, including those 
relating to designations and redesignation.

Comment

    One commentor notes that MDNR has taken the position that the 
measured concentration must exceed 125 ppb before a legally actionable 
exceedance that contributes to a 3 year running average on the number 
of days with exceedances is triggered. As a result, MDNR has not 
included as excursions days with maximum numbers that actually do 
exceed the published standard of 0.12 ppm.

USEPA Response

    Published guidance (Guideline for the Interpretation of Ozone Air 
Quality Standards, January 1979, EPA-450/4-79-003), which is part of 
the ozone standard by reference in 40 CFR part 50, appendix H, notes 
that the stated level of the standard is determined by defining the 
number of significant figures to be used in comparison with the 
standard. For example, a standard level of 0.12 ppm means that 
measurements are to be rounded to two decimal places (0.005 rounds up), 
and therefore, 0.125 ppm is the smallest three-decimal concentration 
value in excess of the level of the standard. Therefore, MDNR is 
following USEPA national guidance.

Comment

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

USEPA Response

    Section 107(d)(3)(E) of the Act establishes five criteria which 
must be satisfied in order for the USEPA to redesignate an area from 
nonattainment to attainment. One of these criteria is that the 
Administrator determine that the area has attained the NAAQS. See 
section 107(d)(3)(E)(i). This requirement clearly prohibits the 
Administrator from redesignating areas that have not attained the 
NAAQS. If a violation had occurred prior to the USEPA's final action, 
the Detroit-Ann Arbor area would no longer have been in attainment and 
the USEPA could not redesignate the area to attainment. Furthermore, 
only a final rulemaking action can change an area's designation under 
40 CFR part 81. Despite the July 21, 1994 proposal, the area must 
continue to meet this criterion until final rulemaking is published. As 
a result, the USEPA must consider air quality data that is collected 
until the date of final rulemaking and revision of the area's 
nonattainment status under 40 CFR part 81.
    In addition, the USEPA's September Calcagni memorandum, page 5, 
states that Regions should advise States of the practical planning 
consequences if the USEPA disapproves the redesignation request or if 
the request is invalidated because of violations recorded during 
USEPA's review. This policy has been followed in disapproving the 
Richmond, Virginia redesignation, which was disapproved due to 
violations of the ozone NAAQS occurring prior to final action on a 
proposed approval of the redesignation (May 3, 1994, 59 FR 22757).
    With respect to a requirement to implement contingency measures in 
the event of a violation prior to final approval of a redesignation, 
the USEPA notes that the Detroit-Ann Arbor area, like any other 
nonattainment area, is subject to the contingency measure requirements 
of section 172(c)(9) until the area is redesignated to attainment.
    In any case, the commentor's concern is moot, since no violations 
of the ozone NAAQS occurred during the 1994 ozone season.

Comment

    Several commentors request that the Detroit-Ann Arbor area be 
denied redesignation to attainment until it is clearly shown, using 
1994 data, that the area is in attainment. Other commentors noted that 
although the Detroit-Ann Arbor area experienced only one ozone 
exceedance from 1991 to 1993 or 1990 to 1992, it experienced at least 
three ozone exceedances in 1994 alone. Commentors provided specific 
monitored ozone values recorded at Detroit-Ann Arbor area monitors 
during the 1994 ozone season. The following ozone concentrations from 
Detroit-Ann Arbor area monitors were provided: 133 ppb at the Algonac 
monitor, 142 ppb at the New Haven monitor, 145 ppb at the Warren 
monitor, 178 ppb at the Port Huron monitor, and 127 ppb at the Oak Park 
monitor. [[Page 12465]] 

USEPA Response

    As discussed above, the USEPA could not approve the redesignation 
if a violation occurred during the USEPA's review of the request. 
Consequently, while the July 21, 1994 action proposed to approve the 
redesignation, it also proposed, in the alternative, to disapprove the 
redesignation if violations of the ozone NAAQS occur before the USEPA 
took final action on the redesignation.
    Title 40 CFR part 50.9 establishes the ozone NAAQS, measured 
according to appendix D, as 0.12 ppm (235 micrograms per cubic meter 
(ug/m3)). The standard is attained when the expected number of days per 
calendar year with maximum hourly average concentrations above 0.12 ppm 
(235 ug/m3) is equal to or less than 1 as determined by 40 CFR part 50 
appendix H. Further discussion of these procedures and associated 
examples are contained in the document Guideline for Interpretation of 
Ozone Air Quality Standards, January 1979, EPA-450/4-79-003. Simply, 
the number of exceedances at a monitoring site would be recorded for 
each calendar year and then averaged over the past 3 calendar years to 
determine if this average is less than or equal to 1. The net result is 
that each monitor in an area is allowed to record 3.0 expected 
exceedances in a 3 year period. More than 3.0 expected exceedances in a 
3-year period would constitute a violation of the ozone NAAQS. As 
explained in the July 21, 1994 proposed rulemaking (59 FR 37190), the 
Detroit-Ann Arbor area has attained the ozone NAAQS during the 1990-
1992 and 1991-1993 periods. The 1994 ozone season has concluded and 
while there have been some recorded ozone exceedances in the Detroit-
Ann Arbor area, they do not (in consideration with 1992 and 1993 data) 
constitute a violation of the ozone standard. Consequently, the 
Detroit-Ann Arbor area continues to attain the ozone standard at this 
time. The USEPA has considered all air quality data collected prior to 
final rulemaking on the redesignation request.

Comment

    One commentor questions whether actual attainment and maintenance 
of the standard was achieved and suggests that paper demonstrations of 
attainment and maintenance should not be given more weight in 
decisionmaking when compared to actual adverse air quality monitoring 
data showing unhealthy concentrations of ozone, or data that is 
marginally so.

USEPA Response

    The USEPA notes that it has not given ``paper'' (or more properly, 
analytical) demonstrations of attainment more weight than ambient 
monitoring data. As discussed above, the ambient air quality monitoring 
data for the Detroit-Ann Arbor area demonstrates attainment of the 
ozone NAAQS over the time periods of 1990-1992, 1991-1993, and 1992-
1994. Furthermore, continued maintenance of the ozone NAAQS will be 
determined by continued ambient monitoring.

Comment

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

USEPA Response

    The USEPA has interpreted section 107(d)(3)(E) to mean that the 
section 110 and part D provisions that are required to be fully 
approved in order for a redesignation to be approved are those which 
came due prior to or at the time of the submittal of a complete 
redesignation request. At the same time, however, the USEPA has 
maintained that States continue to be statutorily obligated to meet any 
SIP requirements that come due after the submission of the 
redesignation request before the USEPA takes final action to 
redesignate an area. As a consequence, the USEPA has also followed a 
policy of issuing findings of failure to submit if a State that has 
submitted a redesignation request fails to comply with a SIP submittal 
requirement that comes due after the submission of a redesignation 
request. See September and October Calcagni<SUP>7 memorandums, 
September Shapiro memorandum, and the memorandum dated January 7, 1994, 
from John S. Seitz to Regional Air Division Directors, entitled 
``Procedures for SIP Elements Due November 15, 1993.'' The USEPA 
believes that its approach is both reasonable and harmonizes the 
pertinent provisions of the Act in a workable manner that is consistent 
with the language and intent of the Act. Moreover, the USEPA believes 
that the interpretation advocated by the commentor would be unworkable 
and make it virtually impossible for areas to be redesignated to 
attainment.

    \7\October 28, 1992 memorandum from John Calcagni entitled SIP 
Actions Submitted in Response to Clean Air Act Deadlines.
---------------------------------------------------------------------------

    The pertinent provisions of the Act are as follows. Section 
107(d)(3)(E)(v) of the Act provides that a State must have met ``all 
requirements applicable to the area under section 110 and part D'' in 
order to be redesignated. Furthermore, section 107(d)(3)(E)(ii) 
provides that the USEPA must have fully approved the SIP for the area 
seeking redesignation. Finally, section 175A(c) provides that the 
requirements of part D remain in force and effect for an area until 
such time as it is redesignated.
    The USEPA believes that it is both logical and reasonable to 
interpret section 107(d)(3)(E)(ii) and (v) so that, for purposes of the 
evaluation of a redesignation request, the only requirements that are 
``applicable'' and for which the SIP must be fully approved before the 
USEPA may approve the redesignation request are those that came due 
prior to or at the time of the submission of a complete redesignation 
request.
    The first reason that it is reasonable to determine the 
approvability of a redesignation request on the basis of compliance 
with only Act requirements applicable prior to or at the time of the 
submission of the request is that holding the State to a continuing 
obligation to comply with subsequent requirements coming due after the 
submission of the request for purposes of the redesignation would make 
it impossible in many instances for the USEPA to act on redesignation 
requests in accordance with the 18-month deadline mandated 
[[Page 12466]] by Congress for such actions in section 107(d)(3)(C). 
This is because each Act requirement coming due during the pendency of 
the USEPA's review of a redesignation request carries with it a 
necessary implication that the USEPA must also fully approve the SIP 
submission made to satisfy that requirements in order for the area to 
be redesignated. Otherwise, the area would fail to satisfy the 
redesignation requirement of section 107(d)(3)(E)(ii) to have a fully-
approved SIP. As Congress limited the USEPA to an 18-month period to 
take final action on complete redesignation requests, Congress could 
not have intended that, for those requests to be approved, States make 
additional SIP submissions that would require the USEPA to undertake 
action that would necessarily delay action on the redesignation request 
beyond the 18-month time frame. (The delay would occur due to the time 
needed for the USEPA to take action regarding the determinations as to 
whether to find those SIP submissions complete and to approve or 
disapprove them. Congress accorded the USEPA up to 18 months from the 
submission of a SIP revision to take such action. See section 110(k).)
    Another reason that the USEPA's interpretation is reasonable is 
that the fundamental premise for a request to redesignate a 
nonattainment area to attainment is that the area has attained the 
relevant NAAQS. Thus, an area for which a redesignation request has 
been submitted should have already attained the NAAQS as a result of 
the satisfaction of Act requirements that came due prior to the 
submission of the request, and it is reasonable to view the only 
requirements applicable for purposes of evaluating the redesignation 
request as those that had already come due since those requirements 
were the ones that presumably led to attainment of the NAAQS--which is 
the primary purpose of title I of the Act. To require that a State 
continue to satisfy requirements coming due during the pendency of the 
USEPA's review of a complete redesignation request in order to have the 
redesignation approved would require the State to do more than was 
needed to attain the NAAQS.
    The USEPA's interpretation by no means eliminates the obligation of 
States to comply with requirements coming due after the submission of a 
redesignation request. Rather, it simply means that areas may be 
redesignated even though the State may not have complied with those 
requirements. As the USEPA's policy makes clear, in accordance with the 
requirements of section 175A(c), the statutory obligation of the States 
to fulfill those requirements remains in effect until the USEPA takes 
final action to redesignate an area to attainment. Thus, the USEPA's 
policy is to issue findings of failure to submit if a State fails to 
submit a SIP revision to fulfill such a requirement, thereby triggering 
a clock that will result in the imposition of mandatory sanctions, 
under section 179 of the Act, 18 months after the issuance of the 
finding unless the USEPA approves the redesignation request prior to 
the expiration of the sanctions clock.
    Thus, if a State chooses not to submit a complete and approvable 
SIP revision to comply with a requirement that comes due after the 
submission of a redesignation request, it runs the risk it will be 
sanctioned in the event that the USEPA does not approve the 
redesignation request. For example, in the case of the Detroit-Ann 
Arbor area, on January 21, 1994, the USEPA started the 18-month 
sanctions clock for the 15 percent reduction plan required by section 
182(b)(1) to be submitted by November 15, 1993 after the State had 
submitted its complete redesignation request for the Detroit-Ann Arbor 
area, by finding the area's 15 percent plan incomplete. If the USEPA 
were not now approving the redesignation request, the sanctions clock 
would continue to run and the State would continue to be subject to the 
risk that sanctions would be imposed. Notably, a State seeking 
redesignation for an area is in the same position as to the initiation 
of sanctions clocks for the failure to make a submittal as any other 
State. Thus, if Michigan had not submitted a redesignation request for 
the Detroit-Ann Arbor area and nevertheless had failed to submit a 
complete 15 percent plan by November 15, 1993, it would also have been 
subject to a finding of failure to submit and the consequent 
commencement of a sanctions clock.
    For this reason, the USEPA disagrees with the comment's contention 
that the USEPA's interpretation regarding the requirements applicable 
for purposes of evaluating redesignation requests encourages States to 
delay implementation of the Act. States seeking redesignation for areas 
are subject to sanctions for failure to submit SIP revisions in 
accordance with the Act's requirements in the same way that States not 
seeking redesignation are. To the extent that the USEPA's 
interpretation results in States not adopting measures they might 
otherwise have had to, such a result is a consequence of the only 
workable interpretation of the provisions of section 107 concerning 
applicable requirements and that result does not justify rejecting that 
interpretation. This is particularly so since the only areas that 
benefit from this interpretation are those that have attained the 
ambient air quality standards and have demonstrated that they will 
continue to maintain them in the future.
    Thus, the USEPA believes it may approve the Detroit-Ann Arbor 
redesignation request notwithstanding the lack of a fully approved 15 
percent plan. Such action is consistent with the USEPA's national 
policy and is permissible under the Act. (The commentor's contentions 
regarding the basic I/M plans and NSR review program are dealt with as 
part of the responses to other comments on those programs elsewhere in 
this document.)

Comment

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

USEPA Response

    The July 21, 1994 proposal (59 FR 37190) did state that the 
November 24, 1993 (59 FR 62188) transportation and November 30, 1993 
(59 FR 63214) general conformity rules require States to adopt 
transportation and general conformity provisions in the SIP for areas 
designated nonattainment or subject to a maintenance plan approved 
under section 175A of the Act. The proposal further explained that, 
although conformity is applicable in these areas, since the deadline 
for submittal had not come due for these rules at the time Michigan 
submitted a redesignation request, the approval of the redesignation is 
not contingent on these submittals to comply with section 
107(d)(3)(E)(v). The Detroit-Ann Arbor area must comply with the 
section 176 conformity regulations as required by the conformity rules 
and the Conformity General Preamble (June 17, 1994, 59 FR 
[[Page 12467]] 31238)<SUP>8. According to these rules, conformity 
applies to nonattainment areas as well as maintenance areas. Once 
redesignated, the Detroit-Ann Arbor area will be a maintenance area 
which will be required to conduct emission analyses to determine that 
the VOC and NO<INF>X emissions remain below the motor vehicle emission 
budget established in the maintenance plan. Transportation and general 
conformity apply to maintenance areas and therefore, the Detroit-Ann 
Arbor area must comply with these rules. The Conformity General 
Preamble to the conformity regulations further clarifies this issue, 
particularly as it pertains to areas requesting and obtaining a section 
182(f) NO<INF>X exemption. According to the conformity rules and 
preamble, the Detroit-Ann Arbor area's conformity test will be to 
remain within the VOC and NO<INF>X budgets established in the section 
175A maintenance plan. Michigan has established a motor vehicle 
emission budget for NO<INF>X in the area's maintenance plan.

    \8\On November 18, 1994 and November 29, 1994, Michigan 
submitted SIP revisions to comply with the Transportation and 
General conformity rules.
---------------------------------------------------------------------------

    The commentor's suggestion that the section 182(f) exemption has no 
connection to the conformity requirements for transportation plans and 
programs contained in section 176(c)(2)(A) and 176(c)(1)(B) was made in 
response to the August 10, 1994 proposal to approve the section 182(f) 
NO<INF>X exemption for the Detroit-Ann Arbor area. The USEPA's response 
is, therefore, articulated in the final rulemaking approving the 
section 182(f) NO<INF>X exemption petition for the Detroit-Ann Arbor 
area published elsewhere in this Federal Register.

Comment

    One commentor states that areas are requesting exemptions from the 
NO<INF>X control measures based on incomplete modeling studies (i.e. 
Lake Michigan and Southeast Michigan Ozone Studies) which do not 
accurately predict the relative contribution of mobile source emissions 
because the mobile source emissions inventory understates its 
contribution to ozone production. Furthermore, given the uncertainty of 
mobile source NO<INF>X contributions to ozone and the inaccuracy of 
mobile source inventories, it is inappropriate to remove from the SIP 
any NO<INF>X or VOC conformity analysis.

USEPA Response

    Exemption from the section 182(f) NO<INF>X requirements is provided 
for in sections 182(f)(1)(a) and 182(f)(3) of the Act. Michigan 
submitted such an exemption request on November 12, 1993 for the 
Detroit-Ann Arbor area based on 3 consecutive years of clean air 
quality monitoring data, not on a modeling study or analysis. In 
addition, approval of an exemption based on monitoring data will be 
contingent on the area's maintenance of the ozone NAAQS. As noted 
previously, a section 182(f) NO<INF>X exemption will not exempt areas 
from compliance with the conformity regulations. The USEPA refers the 
commentor to the final rulemaking approving the section 182(f) NO<INF>X 
exemption petition for the Detroit-Ann Arbor area published elsewhere 
in this Federal Register.

Comment

    One commentor notes that there is no reasonable or adequate basis 
for eliminating Michigan's existing NSR program from the current SIP. 
Another commentor states that the USEPA cannot redesignate the Detroit-
Ann Arbor area because Michigan has not met the NSR requirements under 
section 182(b)(5).

USEPA Response

    The USEPA believes that the Detroit-Ann Arbor area may be 
redesignated to attainment notwithstanding the lack of a fully-approved 
NSR program meeting the requirements of the 1990 Act amendments and the 
absence of such an NSR program from the contingency plan. This view, 
while a departure from past policy, has been set forth by the USEPA as 
its new policy in a memorandum from Mary Nichols, Assistant 
Administrator for Air and Radiation, dated October 14, 1994, entitled 
Part D New Source Review (part D NSR) Requirements for Areas Requesting 
Redesignation to Attainment.
    The USEPA believes that its decision not to insist on a fully-
approved NSR program as a pre-requisite to redesignation is justifiable 
as an exercise of the Agency's general authority to establish de 
minimis exceptions to statutory requirements. See Alabama Power Co. v. 
Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under Alabama Power Co. 
v. Costle, the USEPA has the authority to establish de minimis 
exceptions to statutory requirements where the application of the 
statutory requirements would be of trivial or no value environmentally.
    In this context, the issue presented is whether the USEPA has the 
authority to establish an exception to the requirements of section 
107(d)(3)(E) that the USEPA have fully-approved a SIP meeting all of 
the requirements applicable to the area under section 110 and part D of 
title I of the Act. Plainly, the NSR provisions of section 110 and part 
D are requirements that were applicable to the Michigan area seeking 
redesignation at the time of the submission of the request for 
redesignation. Thus, on its face, section 107(d)(3)(E) would seem to 
require that the State have submitted and the USEPA have fully-approved 
a part D NSR program meeting the requirements of the Act before the 
areas could be redesignated to attainment.
    Under the USEPA's de minimis authority, however, it may establish 
an exception to an otherwise plain statutory requirement if its 
fulfillment would be of little or no environmental value. In this 
context, it is necessary to determine what would be achieved by 
insisting that there be a fully-approved part D NSR program in place 
prior to the redesignation of the Detroit-Ann Arbor area. For the 
following reasons, the USEPA believes that requiring the adoption and 
full-approval of a part D NSR program prior to redesignation would not 
be of significant environmental value in this case.
    Michigan has demonstrated that maintenance of the ozone NAAQS will 
occur even if the emission reductions expected to result from the part 
D NSR program do not occur. The emission projections made by Michigan 
to demonstrate maintenance of the NAAQS considered growth in point 
source emissions (along with growth for other source categories) and 
were premised on the assumption that the Prevention of Significant 
Deterioration (PSD) program, rather than the part D NSR, would be in 
effect, during the maintenance period. Under NSR, significant point 
source emissions growth would not occur. Michigan assumed that NSR 
would not apply after redesignation to attainment, and therefore, 
assumed source growth factors based on projected growth in the economy 
and in the area's population. (It should be noted that the growth 
factors assumed may be overestimates under PSD, which would restrain 
source growth through the application of best available control 
techniques.) Thus, contrary to the assertion of the commentor, Michigan 
has demonstrated that there is no need to retain the part D NSR as an 
operative program in the SIP during the maintenance period in order to 
provide for continued maintenance of the NAAQS. (If this demonstration 
had not been made, NSR would have had to have been retained in the SIP 
as an operative program since it would have been needed to maintain the 
ozone standard.) [[Page 12468]] 
    The other purpose that requiring the full-approval of a part D NSR 
program might serve would be to ensure that NSR would become a 
contingency provision in the maintenance plan required for these areas 
by sections 107(d)(3)(E)(iv) and 175A(d). These provisions require 
that, for an area to be redesignated to attainment, it must receive 
full approval of a maintenance plan containing ``such contingency 
provisions as the Administrator deems necessary to assure that the 
State will promptly correct any violation of the standard which occurs 
after the redesignation of the area as an attainment area. Such 
provisions shall include a requirement that the State will implement 
all measures with respect to the control of the air pollutant concerned 
which were contained in the SIP for the area before redesignation of 
the area as an attainment area.'' Based on this language, it is 
apparent that whether an approved NSR program must be included as a 
contingency provision depends on whether it is a ``measure'' for the 
control of the pertinent air pollutants.
    As the USEPA noted in the proposal regarding this redesignation 
request, the term ``measure'' is not defined in section 175A(d) and 
Congress utilized that term differently in different provisions of the 
Act with respect to the PSD and NSR permitting programs. For example, 
in section 110(a)(2)(A), Congress required that SIPs to include 
``enforceable emission limitations and other control measures, means, 
or techniques* * *as may be necessary or appropriate to meet the 
applicable requirements of the Act.'' In section 110(a)(2)(C), Congress 
required that SIPs include ``a program to provide for the enforcement 
of the measures described in subparagraph (A), and regulation of the 
modification and construction of any stationary source within the areas 
covered by the plan as necessary to assure that NAAQS are achieved, 
including a permit program as required in parts C and D.'' (Emphasis 
added.) If the term measures as used in section 110(a)(2) (A) and (C) 
had been intended to include PSD and NSR there would have been no point 
to requiring that SIPs include both measures and preconstruction review 
under parts C and D (PSD or NSR). Unless ``measures'' referred to 
something other than preconstruction review under parts C and D, the 
reference to preconstruction review programs in section 110(a)(2)(C) 
would be rendered mere surplusage. Thus, in section 110(a)(2) (A) and 
(C), it is apparent that Congress distinguished ``measures'' from 
preconstruction review. On the other hand, in other provisions of the 
Act, such as section 161, Congress appeared to include PSD within the 
scope of the term ``measures.''
    The USEPA believes that the fact that Congress used the undefined 
term ``measure'' differently in different sections of the Act is 
germane. This indicates that the term is susceptible to more than one 
interpretation and that the USEPA has the discretion to interpret it in 
a reasonable manner in the context of section 175A. Inasmuch as 
Congress itself has used the term in a manner that excluded PSD and NSR 
from its scope, the USEPA believes it is reasonable to interpret 
``measure,'' as used in section 175A(d), not to include NSR. That this 
is a reasonable interpretation is further supported by the fact that 
PSD, a program that is the corollary of part D NSR for attainment 
areas, goes into effect in lieu of part D NSR.<SUP>9 This distinguishes 
NSR from other required programs under the Act, such as inspection and 
maintenance and RACT programs, which have no corollary for attainment 
areas. Moreover, the USEPA believes that those other required programs 
are clearly within the scope of the term ``measure.''<SUP>10

    \9\The U.S. EPA is not suggesting that NSR and PSD are 
equivalent, but merely that they are the same type of program. The 
PSD program is a requirement in attainment areas and designed to 
allow new source permitting, yet contains adequate provisions to 
protect the NAAQS. If any information including preconstruction 
monitoring, indicates that an area is not continuing to meet the 
NAAQS after redesignation to attainment, 40 CFR 51 appendix S 
(Interpretive Offset Rule) or a 40 CFR 51.165(b) program would 
apply. The USEPA believes that in any area that is designated or 
redesignated as attainment under section 107, but experiences 
violations of the NAAQS, these provisions should be interpreted as 
requiring major new or modified sources to obtain VOC emission 
offsets of at least a 1:1 ratio, and as presuming that 1:1 NO<INF>X 
offsets are necessary. See October 14, 1994 memorandum from Mary 
Nichols entitled Part D New Source Review (part D NSR) Requirements 
for Areas Requesting Redesignation to Attainment.
    \10\The U.S. EPA also notes that in the case of the Michigan 
area, all permits to install for major offset sources and major 
offset modifications issued by the State in the moderate 
nonattainment areas since November 15, 1992 have complied with the 
1.15 to 1.0 offset ratio. In addition, permits to install cannot be 
issued under the PSD program unless the applicant can demonstrate 
that the increased emissions from the new or modified source will 
not result in a violation of the NAAQS. Michigan's Rule 702, which 
is part of the SIP, requires the installation of Best Available 
Control Technology regardless of size or location of all new and 
modified sources in the State. In addition, Michigan's Rule 207, 
also approved in the SIP, requires denial of any permit to install 
if operation of the equipment will interfere with attainment or 
maintenance of the NAAQS.
---------------------------------------------------------------------------

    The USEPA's logic in treating part D NSR in this manner does not 
mean that other applicable part D requirements, including those that 
have been previously met and previously relied upon in demonstrating 
attainment, could be eliminated without an analysis demonstrating that 
maintenance would be protected. As noted above, Michigan has 
demonstrated that maintenance would be protected with PSD in effect, 
rather than part D NSR. Thus, the USEPA is not permitting part D NSR to 
be removed without a demonstration that maintenance of the standard 
will be achieved. Moreover, the USEPA has not amended its policy with 
respect to the conversion of other SIP elements to contingency 
provisions, which is that they may be converted to contingency 
provisions only upon a showing that maintenance will be achieved 
without them being in effect. Finally, as noted above, the USEPA 
believes that the NSR requirement differs from other requirements, and 
does not believe that the rationale for the NSR exception extends to 
other required programs.
    As the USEPA has recently changed its policy, the position taken in 
this action is consistent with the USEPA's current national policy. 
That policy permits redesignation to proceed without otherwise required 
NSR programs having been fully approved and converted to contingency 
provisions provided that the area demonstrates, as has been done in 
this case, that maintenance will be achieved with the application of 
PSD rather than part D NSR.

Comment

    One commentor suggests that the USEPA's rulemaking is an effort to 
permit Michigan to avoid including the 15 percent Rate-of-Progress 
(ROP) measures, required of moderate nonattainment areas in the SIP. It 
is essential to have elements of the 15 percent ROP plan available as 
contingency measure in the attainment plan. It is not clear that the 
current rulemaking procedure will allow that to happen.

USEPA Response

    As explained above, under the USEPA's interpretation of section 
107, an area need not meet all section 110 and part D requirements that 
become applicable after the submittal of a complete redesignation 
request in order to have the request approved. Therefore, the 15 
percent ROP plan, which was not due to be submitted until November 15, 
1993, after the submission of the redesignation request, is not 
required to be fully approved into the SIP before redesignating the 
area to attainment. Similarly the section 175A contingency plan need 
not include all measures that [[Page 12469]] would have been included 
in the 15 percent plan since those measures were not required to be 
included in the SIP prior to redesignation. Furthermore, some elements 
of the incomplete 15 percent ROP plan that Michigan did submit for the 
Detroit-Ann Arbor area are included in the maintenance plan and are 
available as contingency measures in the maintenance plan. These 
elements include basic I/M, Stage I expansion,<SUP>11 and Stage II 
vapor recovery. The USEPA believes that the menu of contingency 
measures is adequate and that additional contingency measures are not 
necessary.

    \11\The expanded applicability of Stage I to county boundaries 
of each nonattainment area classified as moderate and above.
---------------------------------------------------------------------------

    As for the commentor's effort to ascribe subjective motivations to 
the USEPA in acting on this redesignation, the USEPA believes such 
contentions are simply irrelevant.

Comment

    One commentor states that there can be no redesignation until 
Michigan submits a complete and approvable 15 percent ROP plan. The 
commentor alleges that since Michigan's application was not complete on 
November 12, 1993, all moderate area provisions including the 15 
percent plan must be in place to accomplish the redesignation. The 
commentor notes that Stage II vapor recovery and an upgraded I/M 
program should be in Michigan's SIP to assure continued maintenance of 
the NAAQS.

USEPA Response

    After the USEPA's review, on January 21, 1994, the redesignation 
request was found complete on the basis of the completeness criteria 
codified in 40 CFR part 51, appendix V. As explained above, the 
November 12, 1993 request was based on three complete years of clean 
data, and the consideration of subsequent air quality data does not 
alter the conclusion that that request was complete. Thus, the November 
12, 1993 redesignation request is complete and, in accordance with the 
USEPA's policy on applicable requirements (described above), the 15 
percent plan need not be submitted or approved prior to approval of the 
redesignation.
    With respect to the commentor's assertions regarding the need for 
Stage II vapor recovery and an upgraded I/M program to assure 
maintenance, the USEPA notes that the State has provided an adequate 
demonstration that maintenance will occur even in the absence of those 
programs. The State's emissions projections underlying the maintenance 
demonstration are discussed in the proposal at 59 FR 37197, and the 
commentor has provided no evidence that those projections are 
erroneous. Furthermore, the USEPA notes that Stage II vapor recovery 
and an upgraded I/M program were not implemented in the area in the 
period of attainment and therefore, did not contribute to attainment of 
the ozone NAAQS. Stage II vapor recovery and basic I/M, however, are 
control measures included as contingency measures within the 
maintenance plan. Thus, Stage II and basic I/M may be implemented in 
the event a violation of the ozone NAAQS occurs during the maintenance 
period. The basic I/M program included in the contingency plan would 
upgrade and expand the current I/M program being implemented in the 
Detroit area. As the Detroit-Ann Arbor area has demonstrated attainment 
and maintenance of the ozone NAAQS without implementation of Stage II 
and an upgraded I/M program those measures may be made part of the 
contingency plan without implementation until such time as a violation 
of the ozone NAAQS warrants their implementation. The State, however, 
must continue to implement all programs currently in place in the 
Detroit-Ann Arbor area including the existing I/M program.

Comment

    Several commentors suggested that meteorological conditions 
observed in Michigan and Canada were not conducive to ozone formation. 
These meteorological conditions, coupled with a general reduction of 
emissions in the Detroit-Ann Arbor area resulting from an economic 
downturn, resulted in the attainment claimed by the Detroit-Ann Arbor 
area. The commentors believe that the attainment claimed by Michigan is 
not based on real reductions of ozone precursor gases (NO<INF>X and 
VOC).

USEPA Response

    Section 107(d)(3)(E)(iii) requires that, for the USEPA to approve a 
redesignation, it must determine that the improvement in air quality is 
due to permanent and enforceable reductions in emissions. The September 
Calcagni memorandum, at page 4, clarifies this requirement by stating 
that ``[a]ttainment resulting from temporary reductions in emission 
rates (e.g., reduced production or shutdown due to temporary adverse 
economic conditions) or unusually favorable meteorology would not 
qualify as an air quality improvement due to permanent and enforceable 
emission reductions.'' As discussed in the July 21, 1994 Federal 
Register notice, the State of Michigan has demonstrated that permanent 
and enforceable emission reductions are responsible for the recent 
improvement in air quality. This demonstration was accomplished through 
an estimate of the reductions (from the year that was used to determine 
the design value for designation and classification) of VOC and 
NO<INF>X achieved through Federal measures such as the Federal Motor 
Vehicle Control Program (FMVCP) and fuel volatility rules implemented 
from 1988-1993, as suggested by the September Calcagni memorandum. The 
total reductions achieved from 1988 to 1993 were 226 tons of VOC and 45 
tons of NO<INF>X per day. These emission reductions were primarily the 
result of the FMVCP and RVP reductions from 11.0 pounds per square inch 
(psi) in 1988, to 9.5 in 1990 and finally, to 9.0 in 1993. The State 
only claimed credit for emission reductions achieved as a result of 
implementation of these federally enforceable control measures. These 
emission reductions claimed by Michigan are conservative since they do 
not account for emission reductions resulting from other control 
measures and programs implemented during this time period such as the 
current I/M program and VOC RACT. The State, therefore, adequately 
demonstrated that the improvement in air quality is due to permanent 
and enforceable emission reductions of 226 tons VOC and 45 tons of 
NO<INF>X per day as a result of implementing the federally enforceable 
FMVCP and RVP reductions.
    With respect to the issue of unusually favorable meteorology, the 
commentors have not supplied and the USEPA is not aware of data 
demonstrating that the meteorological conditions in the Detroit-Ann 
Arbor area in 1990 and subsequent years were unusually favorable with 
respect to the impact on ozone formation. The USEPA examined the 
average meteorological parameters of maximum monthly temperatures, 
monthly precipitation, and days with temperatures greater than 90 
degrees Fahrenheit for the periods of April through September, 1991 
through 1993, with the 9-year (1982-1990) averages for these 
parameters. The 1991-1993 averages for these parameters agreed with 
those for the 9-year averages with only minor differences. Based on 
averaged parameters, it can be concluded that the 1991-1993 period was 
typically conducive to ozone formation. Further, the USEPA notes that 
the Detroit-Ann Arbor area has been in attainment for three consecutive 
three-year periods (1990-1992, 1991- [[Page 12470]] 1993, and 1992-
1994), and that this, along with the fact that real emission reductions 
have occurred, indicates that attainment is not due to unusually 
favorable, temporary meteorological conditions.

Comment

    A few commentors noted that ``Ozone Action!'' days were declared on 
selected bad meteorology days, with extensive media publicity asking 
the public to reduce activities having the potential to emit ozone 
precursors. It is entirely possible that the voluntary reduction 
program had an effect in the summer of 1994 to reduce potential ozone 
excursions. The existence of the voluntary program should be considered 
in evaluating the summer 1994 data. In addition, one commentor stated 
that this is an attempt to deny industry's responsibility to reduce 
emissions by shifting the burden onto private households though these 
``Ozone Action!'' days.

USEPA Response

    Attainment has been demonstrated for 1990-1992, and 1991-1993, and 
an attainment level of emissions identified at which time no such 
voluntary program was being implemented in the Detroit-Ann Arbor area. 
Michigan has also demonstrated through emission projections that the 
precursor emissions will remain below the attainment year levels 
thorough the year 2005 without accounting for any emission reductions 
that may have resulted from implementation of a voluntary program. With 
respect to any possible impact of a voluntary emission reduction 
program on 1994 emissions, the USEPA notes that the commentor has not 
provided and the USEPA has no basis for attempting to assess the impact 
of such program on emission and monitored air quality levels. Thus, the 
USEPA has no basis for any determination regarding the impact of the 
program, and does not believe that speculation regarding such impacts 
provides a basis for disapproving the redesignation.

Comment

    One commentor states that emission control programs mandated by the 
Act cannot be converted to contingency measures, that the Act does not 
authorize conversion of required emission reduction programs to 
contingency measures and that section 175A(d) imposes a mandatory duty 
on an area that is redesignated to continue the emission control 
programs the area adopted prior to redesignation. The commentor further 
elaborates by stating that ``the SIP implementation requirement is 
included in the section discussing contingency provisions because 
contingency provisions automatically become effective if an area fails 
to implement the applicable SIP requirements. Inclusion of the 
provision in section 175A(d) does not by any stretch of statutory 
interpretation authorize converting a control measure that must be 
complied with now to a contingency measure that only need be complied 
with at some later date, if ever.'' The commentor also contended that 
allowing the conversion of mandatory control programs to contingency 
measures is bad policy since the public will suffer harmful exposure 
during the time necessary to implement the program after the event 
triggering the contingency measures occurs. According to the commentor, 
the delay would be exacerbated due to the USEPA's failure to require 
adopted regulations for the programs.

USEPA Response

    The Act contains many requirements that States adopt certain 
measures specifically for nonattainment areas. Those requirements do 
not by their own terms continue to apply to an area after it has been 
redesignated to attainment. Moreover, nothing in section 175A itself 
suggests that these requirements must continue to be met in 
redesignated areas. Section 175A(d) is specifically and clearly 
applicable to contingency provisions and their inclusion in a section 
175A maintenance plan. Section 175A(d) establishes that SIP revisions 
submitted under 175A must contain contingency provisions, as may be 
necessary, to assure that the State will promptly correct any violation 
of the ozone NAAQS that occurs after redesignation to attainment. It 
further requires that these contingency provisions include a 
requirement for the State to implement all measures with respect to the 
control of ozone that were in the nonattainment SIP before the area was 
redesignated. This provision clearly demonstrates that section 175A(d) 
contemplates that there may be fully adopted but unimplemented control 
measures in the SIP prior to redesignation that will be shifted into 
the maintenance plan as contingency measures. Nothing in section 175A 
suggests that the measures that may be shifted into the contingency 
plan do not include programs mandated by the Act when the area was 
designated nonattainment. As section 175A(a) requires adoption and 
implementation of measures to ensure maintenance, it indicates that 
measures may not be converted to contingency provisions unless the 
State demonstrates that the standard will be maintained in the absence 
of the implementation of such measures.
    The USEPA disagrees with the commentor's assertion that its policy 
regarding the conversion of emission control programs mandated by the 
Act to contingency measures is bad policy due to delays that could 
occur. Programs required to be adopted and submitted to the USEPA prior 
to the submission of a redesignation request will already have been 
adopted and may be implemented with minimal delay in the event 
contingency measures are triggered. Such measures satisfy the 
requirement of section 175A(d) that the contingency provisions 
``promptly correct any violation of the standard which occurs after 
redesignation.''
    With respect to the commentor's specific assertions that the USEPA 
should require upgrades to basic I/M and NSR programs to be fully 
adopted by the State and approved by the USEPA prior to redesignation, 
the USEPA notes first that it does not interpret the Act to require 
Michigan to adopt the I/M upgrades fully now if it otherwise qualifies 
for redesignation to attainment. Rather, as evidenced in the USEPA's 
final I/M rule revisions, described above and in the proposal, Michigan 
is required only to adopt the upgrades as a contingency measure in 
order to meet the requirements for basic I/M in section 182(a)(2)(B)(i) 
and (b)(4). Michigan has done that. Under its submittal, Michigan must 
implement basic I/M 18 months from the date the Governor decides to 
implement the program as a contingency measure and Michigan's 
contingency plan contains other control measures which would result in 
near term emission reductions that will be more effective towards 
correcting a violation of the NAAQS than a NSR program, such as Stage I 
or Stage II vapor recovery.
    The commentor also suggests that since the current ozone NAAQS is 
not sufficiently protective of public health the USEPA should not be 
concerned with over control. In response, as previously discussed, the 
USEPA is currently reviewing the ozone NAAQS. Unless and until the 
NAAQS is revised, the USEPA is to make judgements on the basis of the 
current NAAQS, e.g., determine whether a maintenance plan assures 
maintenance of the current ozone NAAQS.

Comment

    One commentor noted that Stage II vapor recovery was expected to 
account for at least 22.5 tons per day (TPD) or 17 percent of the 15 
percent ROP plan, that mobile sources account for 50 
[[Page 12471]] percent of air toxic emissions, and that refueling 
automobiles is the most significant source of benzene exposure for the 
average person. As proposed, the redesignation would finally eliminate 
Stage II vapor recovery from the SIP. An improved I/M program was 
expected to account for reductions of 61.6 TPD or nearly half of the 15 
percent ROP. The commentor adds that these 15 percent ROP measures may 
be contingency measures in the maintenance plan, rather than 
immediately required at any point in the future. Nevertheless, any such 
transfer of a maintenance measure in the SIP to a contingency measure, 
to be required only if certain triggering events occurred, must be 
accompanied by a demonstration that the SIP measures are no longer 
necessary for maintenance. Any proposed transfer and demonstration of 
justification of the transfer must be subject to public notice and 
comment, as required by the Act.

USEPA Response

    Air toxic emissions or benzene exposure are not relevant to this 
rulemaking since it pertains to an ozone redesignation. Moreover, this 
redesignation in no way exempts the area from the air toxics 
requirements of section 112 or other provisions of the Act.
    Since the area was able to demonstrate maintenance through an 
emissions projection analysis showing that future VOC and NO<INF>X 
emissions will remain below the attainment year level of emissions (the 
level of emissions sufficient to attain the NAAQS), the USEPA concludes 
that currently required and future mandated control programs (e.g., 
FMVCP) are sufficient to provide for attainment and maintenance of the 
NAAQS. However, contingency measures in the maintenance plan are 
required in accordance with section 175A(d). The maintenance plan for 
the Detroit-Ann Arbor area contains contingency measures which would be 
implemented when triggered by a violation of the ozone NAAQS. USEPA 
guidance allows the transfer of SIP measures which came due prior to 
submittal of a complete redesignation request to the maintenance plan 
as contingency measures if the area demonstrates attainment without 
implementation of these measures and therefore, are unnecessary for 
attainment. The State has adequately demonstrated that maintenance will 
occur in the absence of the implementation of the measures cited by the 
commentor. Finally, the demonstration for the transfer was subject to 
public notice and comment during Michigan's public comment period and 
hearing, as well as the USEPA's comment period, as required by the Act.

Comment

    One commentor notes that to be effective at restoring air quality 
when a post-redesignation violation occurs, contingency measures must 
include measures in the 15 percent ROP plan. In elaborating, the 
commentor notes that a contingency plan which lacks a program for 
enhanced I/M, Stage II and conformity is an empty box with no benefits. 
The precedent of ``grandparenting'' in moderate areas by allowing 
redesignation without requiring inclusion of the attainment plan's 15 
percent plan as a contingency measure in the maintenance plan is a 
dangerous precedent for Region 5 to set. It has the potential to result 
in the gutting of the Act nationwide by a seemingly innocuous 
rulemaking at the Regional level.
    It is unclear that the verification and tracking measures described 
at 59 FR 37199 (July 21, 1994) will ever actually trigger the 
requirement to implement the contingency plan.

USEPA Response

    The contingency plan contains, as contingency measures, all of the 
unimplemented SIP control measures that were required prior to 
submittal of the complete redesignation request, including basic I/M, 
Stage II, Stage I expansion, and NO<INF>X RACT. As noted in the 
proposal, Stage II is no longer a required measure due to the USEPA's 
promulgation of on-board vapor recovery requirements. In addition, the 
State has also included 7.8 RVP<SUP>12 and intensified degreasing for 
degreasing operations<SUP>13 as contingency measures. The USEPA does 
not believe that this contingency plan is an ``empty box with no 
benefits'' instead that the contingency measures in the plan would 
provide very real benefits in terms of potential emission reductions 
that the USEPA believes are adequate to deal with potential future 
violations. The area is not required to include all measures from its 
15 percent plan in its contingency plan since the 15 percent plan was 
not an applicable requirement at the time the State submitted a 
complete redesignation request.

    \12\Lower RVP to 7.8 psi may only be implemented as a 
contingency measure if the State submits and the USEPA finds, under 
section 211(c)(4)(C) of the Act, that the lower RVP requirement is 
necessary for the area to achieve the ozone NAAQS.
    \13\Intensified RACT for degreasing operations would entail 
requiring more stringent controls than are currently specified in 
Michigan Rules 611, 612, 613, and 614.
---------------------------------------------------------------------------

    In addition, Region 5 is not setting a precedent of 
``grandparenting'' of the 15 percent ROP requirement as contingency 
measures in the maintenance plan. This is consistent with national 
policy that has already been established and has been discussed above. 
See September Calcagni and September Shapiro memorandums.
    Regarding transportation conformity, once redesignated, the 
Detroit-Ann Arbor area will be a maintenance area and, therefore, 
required to conduct emission analyses to determine whether the VOC and 
NO<INF>X emissions remain below the motor vehicle emission budget 
established in the maintenance plan. The July 21, 1994 proposal (59 FR 
37190) does address conformity with respect to the redesignation on p. 
37196. The proposal further discusses that, although conformity is 
applicable in these areas, since the deadline for submittal had not 
come due for these rules, the approval of the redesignation is not 
contingent on these submittals to comply with section 107(d)(3)(E)(v). 
However, transportation and general conformity apply to maintenance 
areas and therefore, the Detroit-Ann Arbor area must comply with these 
rules once redesignated to attainment. The June 17, 1994 Conformity 
General Preamble (59 FR 31238) to the conformity regulations further 
clarifies this issue. According to the conformity rules and preamble, 
the Detroit-Ann Arbor area's conformity test will be to remain within 
the VOC and NO<INF>X budgets established in the section 175A 
maintenance plan.
    The July 21, 1994 notice does describe a tracking plan for updating 
the emission inventory. As discussed, the redesignation request commits 
Michigan to conduct periodic inventories every 3 years, provides a 
schedule for these submittals, and lists the types of factors used in 
projecting the emission inventories. The State notes that if the 
factors change substantially, the State would reproject emissions for 
the maintenance period to determine whether apparent increases in 
emissions are due to changes in calculation techniques or actual 
emissions. Although these periodic emission inventories are not a 
mechanism to trigger implementation of contingency measures, if the 
periodic inventories exceed the attainment level of emissions in the 
maintenance plan, the USEPA may issue a SIP call to the area under 
section 110(k)(5) on the basis that the State made inadequate 
assumptions in projecting the inventory used to demonstrate 
maintenance. In this event, the USEPA may require the State to correct 
the projection inventory and, if increases are projected, propose and 
[[Page 12472]] ultimately implement maintenance measure(s) to lower the 
emissions to a level at or below the attainment year level. Since USEPA 
policy only suggests that level of emissions be included as a 
triggering mechanism or method of monitoring the area emissions, States 
are provided the flexibility not to include such a triggering 
mechanism.
    The Detroit-Ann Arbor area's contingency plan contains one trigger, 
a monitored air quality violation of the ozone NAAQS, as defined in 40 
CFR section 50.9. The trigger date will be the date that the State 
certifies to the USEPA that the air quality data are quality-assured, 
and no later than 30 days after an ambient air quality violation is 
monitored. Once the trigger is confirmed, the State will implement one 
or more appropriate contingency measures based on a technical analysis 
using a UAM analysis. The Governor will select the contingency measures 
within 6 months of the trigger. The control measures which may be used 
as contingency measures within the maintenance plan are I/M upgrades, 
NO<INF>X RACT, Stage I expansion, Stage II, RVP reduction to 7.8 psi 
and intensified RACT for degreasing operations. As explained in the 
proposal, the USEPA believes that these measures are adequate to 
restore air quality in the event of a post-redesignation violation.

Comment

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

USEPA Response

    The area is currently implementing numerous emission control 
measures and will continue to do so even after redesignation to 
attainment for ozone. While the area may be growing, the State has 
considered the impacts of growth not just in mobile sources, but also 
industrial sources of ozone precursors in its maintenance plan. The 
State has adequately shown that permanent and enforceable controls will 
continue to more than offset the impact of any such growth through the 
maintenance period as its projections indicate that emissions will 
decrease during the maintenance period. In the event, the area is 
redesignated and happens to record a violation of the ozone NAAQS, 
however, the section 175A maintenance plan specifies control measures 
which would be implemented as contingency measures in accordance with 
the schedules specified in the July 21, 1994 and this final rule.

Comment

    One commentor notes that the maintenance plan and contingency 
measures are not likely to protect maintenance of the NAAQS for ozone, 
because the timeline for implementing corrective measures is too 
protracted, providing too little protection, too late.

USEPA Response

    For clarification, the contingency measures are intended to provide 
for maintenance by addressing a violation of the ozone NAAQS; 
maintenance measures serve to provide for maintenance of the NAAQS. The 
contingency measure implementation schedules were derived from the Act 
and applicable State and Federal regulations. As explained in the 
proposal and this final action, the schedule established for the 
implementation of contingency measures provides for the implementation 
of such measures as soon as within one year of a violation. Also, as 
explained in the proposal, the USEPA believes that this schedule 
satisfies the criterion of section 175A regarding the need for 
contingency measures to promptly correct violations of the standard 
occurring during the maintenance period.

Comment

    One commentor alleges that the maintenance demonstration relies on 
fleet turnover with new cars required to have on-board canisters and 
perhaps enhanced fuel efficiency to create reductions of VOC emissions 
sufficient to compensate for the steady growth of VMT<SUP>14 and keep 
Southeast Michigan in attainment. With an average time for fleet 
turnover of 10 to 15 years, those measures will have little effect on 
maintenance of attainment in the near term.

    \14\VMT is the number of miles traveled by vehicles of various 
types, preferably for each link of the highway system.
---------------------------------------------------------------------------

USEPA Response

    The State is not relying on on-board canisters in its emission 
projections through the maintenance period. The maintenance 
demonstration through emission projections must demonstrate that the 
emissions will not exceed the attainment year inventory. See General 
Preamble (April 16, 1992, 57 FR 13498) and September Calcagni 
memorandum. Michigan has demonstrated that, by considering the effects 
of permanent and enforceable control programs (not including the on-
board vapor recovery rule), as well as, growth in the area (including 
VMT growth), through the year 2005 emissions will remain below the 
attainment year inventory. See 59 FR 37190, tables on p. 37198. Neither 
the Act nor USEPA guidance specifies or suggests that the State achieve 
other emission reductions during the maintenance period. The USEPA 
reviewed the projection inventory methodologies and found them to be 
appropriate. Furthermore, transportation conformity provides another 
emission management mechanism. The transportation conformity rules 
(November 24, 1993, 58 FR 62188) and General Preamble (June 17, 1994, 
59 FR 31238) apply to nonattainment and maintenance areas. The General 
preamble clarifies that conformity analyses must demonstrate that VOC 
and NO<INF>X emissions will remain within the motor vehicle emission 
budget as approved in a section 175A maintenance plan.

Comment

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

USEPA Response

    Section 182(f)(1)(A) of the Act allows the Administrator to exempt 
an area outside an ozone transport region from the section 182(f) 
NO<INF>X requirements, if the USEPA determines that ``additional 
reductions of [NO<INF>X] would not contribute to attainment'' of the 
ozone NAAQS in the relevant area. It is clear that if an area has 
demonstrated attainment of the ozone NAAQS with 3 consecutive complete 
years of air quality monitoring data, additional NO<INF>X reductions 
would not contribute to attainment, since the area has already 
attained. Therefore, a State may submit a petition for a section 182(f) 
exemption based on air quality monitoring data showing attainment of 
the ozone NAAQS. The USEPA's approval of such [[Page 12473]] an 
exemption is granted on a contingent basis, i.e., the exemption would 
only be valid as long as attainment of the ozone NAAQS continues. If 
prior to final action to redesignate the area to attainment the USEPA 
determines that a violation of the NAAQS occurred, the section 182(f) 
exemption would no longer apply, as of the date of such a 
determination. See December 1993 guidance document Guideline for 
Determining the Applicability of NO<INF>X Requirements under Section 
182(f), and the May 27, 1994 memorandum from John Seitz, Section 182(f) 
NO<INF>X Exemptions--Revised Process and Criteria. In addition, the May 
27, 1994 Seitz memorandum, page 3, n. 7, states that while NO<INF>X 
reductions in areas that request and are granted a section 182(f) 
exemption may not contribute to attainment, they may contribute to 
maintenance and must be addressed in the maintenance plan required for 
redesignation. The Detroit-Ann Arbor area submitted a section 182(f) 
NO<INF>X exemption on November 12, 1994 based on 3 consecutive years of 
monitoring data demonstrating attainment of the ozone NAAQS. The 
Detroit-Ann Arbor area submitted the appropriate NO<INF>X documentation 
in their redesignation maintenance plan. By doing so, the State has 
demonstrated a commitment to control NO<INF>X if it is deemed necessary 
to maintain the ozone standard. The USEPA approved the section 182(f) 
NO<INF>X exemption petition for the Detroit-Ann Arbor area in a final 
USEPA action published elsewhere in this Federal Register.
    With respect to the aspects of the comments relating to the effects 
of NO<INF>X controls or the lack of NO<INF>X controls on ambient air in 
Canada, the USEPA refers the reader to the responses to the comments 
set forth below.
    In addition, the redesignation request establishes VOC and NO<INF>X 
emission budgets, establishing emission levels adequate to attain the 
ozone NAAQS. The State has also demonstrated through emission 
projections that the area's emissions will remain below the attainment 
year inventory through the year 2005. Consequently, the State has 
demonstrated that NO<INF>X levels will not exceed current levels 
through the maintenance period.
    In response to the commentors note that there is too little 
information about the interaction between VOC and NO<INF>X to justify 
granting an exemption from NO<INF>X controls, the USEPA refers the 
commentor to the NO<INF>X/VOC Study released by the USEPA on July 31, 
1993. Congress provided that USEPA decisions on personal petitions for 
NO<INF>X exemptions under section 182(f)(3) be triggered by publication 
of this 185B report. Consequently, the USEPA believes that this 
provides evidence that Congress appears to have believed the results of 
the 185B study would supply sufficient information for the Agency to 
grant section 182(f) exemptions. The USEPA refers the commentor to the 
final rulemaking approving the section 182(f) NO<INF>X exemption 
petition for the Detroit-Ann Arbor area published elsewhere in this 
Federal Register.
    Nonetheless, as demonstrated by the emission projections for the 
10-year maintenance plan submitted by Michigan, continuing reductions 
in NO<INF>X emissions are expected (primarily from mobile sources as a 
result of FMVCP). Also, additional NO<INF>X emission reductions are 
expected from implementation of the NO<INF>X controls required by title 
IV of the Act. Designation status of an area is irrelevant in the 
applicability of title IV requirements; consequently, subject sources 
in the Detroit-Ann Arbor area will be required to comply with these 
requirements.

Comment

    One commentor notes that the action of proposed redesignation is a 
product of undue haste and that the final decision on redesignation 
should await data from Canada's study of ozone levels at its receptors 
which are down-wind of Southeast Michigan. A number of other commentors 
suggested that the USEPA respond to concerns expressed by Ontario and 
Canada prior to making any decision. Another commentor suggests that 
the USEPA obtain and assess ambient ozone levels prior to proceeding 
with the redesignation.

USEPA Response

    The USEPA has received comments and information from a number of 
Canadian interests. All comments from commentors in Canada have been 
considered as the USEPA made a final decision on this action, and are 
addressed within this final rulemaking. As explained below, the USEPA 
does not believe that these comments warrant a deferral of final action 
on this redesignation.

Comment

    One commentor states that between 60 percent-80 percent of toxic 
air pollutants in Windsor's ambient air are transported from the City 
of Detroit and other U.S. areas northwest of Windsor. Another commentor 
suggests that the technology needed to reduce ozone closely parallels 
the technology needed to abate toxic air pollutants in the region. By 
designating the area as attainment, the region will no longer be 
required to include ozone reduction technology in the State of 
Michigan's SIP under the Act. This could eliminate further 
technological improvements that would not only reduce ozone levels but 
also contribute to the abatement of toxic air pollution. Since the 
Governments of the United States and Canada, in their Reference to the 
International Joint Commission (IJC), have emphasized that the IJC 
address the impacts of toxic air pollution problems in the region, the 
IJC cannot support any move that would result in less stringent 
controls which have direct impact on minimization of ozone levels and 
reduction of toxic chemical emissions. Consequently, the commentor 
strongly disagrees with the proposed USEPA redesignation and recommends 
against it. The commentor believes that the control requirements of the 
Act for this area should be implemented.

USEPA Response

    This redesignation is for ozone. Toxic air pollutants are not 
relevant to the issue of whether an area should be redesignated due to 
its attainment of the ozone NAAQS. Separate from this redesignation, 
the State is required to meet other requirements of the Act 
specifically to control air toxics emissions. The ozone redesignation 
would not exempt the area from implementing section 112 of the Act, 
which is intended to address the control of hazardous air pollutants. 
Rules promulgated pursuant to section 112 are applicable to sources 
regardless of an area's attainment status.
    In addition, sources of ozone precursors in the Detroit-Ann Arbor 
area must continue to implement all control equipment and/or measures 
in accordance with applicable rules, regulations and permits. 
Consequently, the redesignation would not result in less stringent 
controls than are currently being implemented in the Detroit-Ann Arbor 
area.

Comment

    One commentor notes that Canada and Ontario are assembling data 
from Canadian monitoring stations which are directly relevant to the 
decision as to whether the Detroit-Ann Arbor area is currently meeting 
the prescribed Act requirements with respect to ozone. The commentor 
states that this information and other points will be provided to the 
Department of State on October 17, 1994. (On October 17, 1994 a 
document entitled Canada/Ontario Technical Component of the Canadian 
Comment on the Michigan/Ann Arbor Ozone Redesignation Request was 
submitted. [[Page 12474]] This document was prepared by Environment 
Canada and the Ontario Ministry of the Environment and Energy). The 
commentor expects that this information would be considered in any 
final decision. A copy of the September 23, 1994 letter from the IJC to 
Warren Christopher, Secretary of State, was attached. Another commentor 
claims that the Canadians in Southern Ontario are affected by some of 
the worst smog episodes in Canada. Many commentors state that much, if 
not all, of the ground level ozone in Southern and Southeastern Ontario 
is a result of transboundary movement of ozone and NO<INF>X from the 
U.S. to Canada. Michigan is a significant source of the ozone and 
NO<INF>X coming from the U.S. A number of commentors provided 
monitoring data from monitors located in Southwestern Ontario and the 
Detroit-Ann Arbor area and assert that high ozone levels recorded in 
the Detroit-Ann Arbor area correspond directly with high ozone levels 
which exceed Ontario's ozone standard. Some commentors noted that high 
levels of ozone in Ontario may be the cause of increased respiratory 
problems. Another commentor noted that a recent study in southern 
Ontario indicates that hospital admissions for respiratory problems has 
increased due to ozone and acidic air pollution. This situation is 
occurring at ozone levels well below the 125 ppb averaged over one 
hour. Another commentor suggests that being another sovereign nation 
and not a neighboring State, Canada is denied protection available to 
downwind States adversely affected by emissions from upwind neighbors 
within the U.S. Another commentor notes the damaging effect of ozone on 
agricultural crops.

USEPA Response

    The USEPA has considered the October 17, 1994 submittal referred to 
and all other information provided by the Canadian Government and other 
commentors on these issues.
    The following provides a synopsis of the USEPA's review of the 
October 17, 1994 document submitted by Environment Canada and the 
Ontario Ministry of the Environment and Energy. The document contains, 
among other elements, some ozone monitoring data. However, the ozone 
monitoring data was inadequate for the USEPA to assess whether a 
violation of the U.S. ozone NAAQS occurred in Canada. Consequently, on 
November 1, 3 and 24, and December 14 and 19, 1994 the USEPA obtained 
clarifying information from the Ontario Ministry of the Environment and 
Energy on the ozone monitoring data submitted.
    In reviewing the Canadian ozone monitoring data, the USEPA examined 
each 3-year interval from 1990 through 1994 as well as associated wind 
patterns. Based on a review of the Canadian report and the clarifying 
information, the monitoring data demonstrates that there has not been a 
violation of the U.S. ozone NAAQS at the Windsor (University or South), 
Sarnia, Merlin, Mandaumin, London, Longwoods, or Parkhill monitors for 
the timeframe 1990-1992, 1991-1993, or 1992-1994. In fact, the only 
monitors that have recorded violations of the U.S. ozone NAAQS are the 
Grand Bend monitor and Tiverton monitor, which are located more than 90 
miles and 140 miles away from the Detroit-Ann Arbor area, respectively. 
The Grand Bend monitor recorded violations of the U.S. ozone NAAQS 
during the timeframe 1990-1992 with a number of expected exceedances of 
1.67 and during 1991-1993 of 2.0. However, for the 1992-1994 period, 
there was no violation of the U.S. ozone NAAQS with a number of 
expected exceedances at 0.33. The Tiverton monitor recorded violations 
of the U.S. ozone NAAQS during the timeframes 1990-1992 and 1991-1993 
with a number of expected exceedance of 2.0. However, during the 1992-
1994 period, there was no violation of the U.S. ozone NAAQS.<SUP>15

    \15\The October 17, 1994 submittal and subsequent clarifying 
information revealed that the Tiverton monitor recorded one 
exceedance in 1994. The exceedance, a value of 136 ppb, was recorded 
on April 24, 1994 at 7:00 PM. However, based on clarifying 
information provided by the Ontario Ministry of the Environment and 
Energy, this ozone value was invalidated. The strip chart recorder 
registered interference (electrical or otherwise) on April 24, 1994 
between the hours of 5:00 PM through 8:00 PM and for 10:00 PM. 
Consequently, the data for these hours was invalidated by the 
Ontario Ministry of the Environment and Energy.
---------------------------------------------------------------------------

    In addition, the modeling submitted on October 17, 1994 is limited 
and insufficient for purposes of implicating the Detroit-Ann Arbor area 
as the cause of elevated ozone levels in Ontario<SUP>16.

    \16\Among the inadequacies were that the submittal had limited 
documentation on the model input parameters. The ADOM-GESIMA model 
is not a USEPA guideline model as listed in the Guideline on Air 
Quality Models, (revised in February 1993). Further model 
documentation is necessary for a comparative evaluation against 
USEPA guideline models.
---------------------------------------------------------------------------

    The ground level wind trajectories presented in the October 17, 
1994 submittal, indicate that winds into Tiverton and the Windsor area 
pass through a number of urbanized areas in both the U.S. and Canada 
(the Windsor urbanized area). The USEPA also notes that such 
concentration may be attributable to or fostered by ozone precursor 
emissions generated within Canadian borders, since Windsor itself is an 
urban area with an estimated metropolitan population greater than 
225,000. Thus, the extent of any contribution from the Detroit-Ann 
Arbor area to monitored ozone levels in Ontario cannot be determined 
with any degree of certainty on the basis of the information presently 
available to the USEPA. The data provided in the October 17, 1994 
submittal are inadequate to provide a basis for determining the extent 
to which emissions from Michigan, and more specifically, the Detroit-
Ann Arbor area, are contributing to ambient ozone levels in Ontario. As 
a consequence, the USEPA does not believe that the presently available 
information provides any basis for affecting its decision regarding the 
redesignation of the Detroit-Ann Arbor area.
    The USEPA would like to note that the governments of the United 
States and Canada are in the process of developing a joint study of the 
transboundary ozone phenomena under the U.S.-Canada Air Quality 
Agreement. It is envisioned that this regional ozone study will provide 
the scientific information necessary to understand what contributes to 
ozone levels in the region, as well as, what control measures would 
contribute to reductions in ozone levels. Should this or other studies 
provide a sufficient scientific basis for taking action in the future, 
the USEPA will decide what is an appropriate course of action. The 
USEPA may take appropriate action notwithstanding the redesignation of 
the Detroit-Ann Arbor area. Therefore, the USEPA does not believe that 
the contentions regarding transboundary impact currently provide a 
basis for delaying action on this redesignation or disapproving the 
redesignation. This is particularly true since approval of the 
redesignation is not expected to result in an increase in ozone 
precursor emissions and is not expected to adversely affect air quality 
in Canada. In fact, a decrease in both VOC and NO<INF>X emissions from 
the Detroit-Ann Arbor area is expected over the 10-year maintenance 
period. See 59 FR 37190, July 21, 1994. It should also be noted that 
redesignation does not allow States to automatically remove control 
programs which have contributed to an area's attainment of a U.S. NAAQS 
for any pollutant. As discussed previously, the USEPA's general policy 
is that a State may not relax the adopted and implemented SIP for an 
area upon the area's redesignation to attainment unless an appropriate 
demonstration<SUP>17, [[Page 12475]] based on computer modeling, is 
approved by the USEPA. In this case, no previously implemented control 
strategies are being relaxed as part of this redesignation.

    \17\Such a demonstration must show that removal of a control 
program will not interfere with maintenance of the ozone NAAQS and 
would entail submittal of an attainment modeling demonstration with 
the USEPA's current Guideline on Air Quality Models. Also, see 
memorandum from Gerald A. Emison, April 6, 1987, entitled Ozone 
Redesignation Policy.
---------------------------------------------------------------------------

    The health effects of acidic air pollution are not relevant to this 
ozone redesignation. However, the USEPA is aware of the study 
referenced by the commentor and is considering this study in the 
process of reevaluating the ozone NAAQS.
    Further, apart from title I requirements related to the cessation 
of the Detroit-Ann Arbor area's status as an ozone nonattainment area, 
the area is and will continue to be required to satisfy all Act 
requirements. Other control programs required by the Act will be 
implemented in the area, regardless of the ozone designation, such as 
title IV NO<INF>X controls, section 112 toxic controls and on-board 
vapor recovery requirements.

Comment

    One commentor notes that recent information indicates that 
significantly high ozone readings have been recorded in the Town of 
Kincardine this summer. Kincardine is halfway up the eastern shoreline 
of Lake Huron, and therefore, the air quality in Kincardine is, for the 
most part, a result of emissions from Michigan. The commentor requests 
that the USEPA reconsider the redesignation of the area because it will 
have drastic effects on the communities on the eastern shore.

USEPA Response

    Kincardine is more than 100 miles northeast of the Detroit-Ann 
Arbor area, the subject of the redesignation to attainment for ozone. 
Consequently, attributing elevated ozone levels in Kincardine to the 
Detroit-Ann Arbor area would be a complex task. It cannot be 
conclusively stated that emissions emanating from the Detroit-Ann Arbor 
area are, ``for the most part,'' responsible for elevated ozone 
concentrations recorded at a monitor more than 100 miles away. As 
demonstrated by the wind trajectories provided by Canada as part of the 
October 17, 1994 submittal, it can be seen that air parcels travel 
through several U.S. and Canadian urbanized areas. Again, it is noted 
that the U.S. and Canada are cooperatively developing a regional ozone 
study to investigate the transboundary ozone phenomena.

Comment

    One commentor states that the transboundary ozone issue points to 
the need to manage air quality in a regional context and notes that in 
their meeting of July 25, 1994 in Washington, Carol Browner, 
Administrator of the United States Environmental Protection Agency, and 
Sheila Copps, Deputy Prime Minister, Minister of the Environment, 
Canada, agreed to cooperate in regional management of the transboundary 
ozone problem. The commentor suggests that the Great Lakes region 
provides an ideal opportunity to advance this concept.

USEPA Response

    Subsequent to the Browner/Copps meeting, the U.S. and Canadian 
Governments have met to discuss and develop a regional pilot program to 
address any potential regional transboundary ozone issue. This new 
regional pilot effort is being developed as a priority under the U.S.-
Canada Air Quality Agreement.

Comment

    One commentor states that the Southeast Michigan Council of 
Governments has discussed the redesignation at past meetings of the 
Windsor Air Quality Committee, at which local committee members pointed 
out their concerns to no avail. All information available suggests that 
the request for redesignation is without scientific merit at present, 
and is premature at best.

USEPA Response

    Ambient air monitoring data in the Detroit-Ann Arbor area 
demonstrates that the area is attaining the ozone NAAQS. In addition, 
the State has met all applicable requirements under section 107 of the 
Act. As previously discussed, the U.S. and Canada are cooperatively 
developing a regional ozone study to investigate the transboundary 
ozone phenomena.

Comment

    One commentor notes that the March 1991 formal agreement (the March 
13, 1991 U.S.-Canada Air Quality Agreement) between the U.S. and Canada 
called for other parties to take steps to avoid or mitigate the 
potential risk posed by specific actions. On this basis, it is 
requested that the USEPA reconsider the consequences of approving this 
request for southeast Michigan. Another commentor refers to the March 
13, 1991 Air Quality Agreement between Canada and the U.S. with respect 
to the effort of the two countries to address transboundary air 
pollution through ``cooperative and coordinated action.'' Alleging that 
ground level ozone production in the Detroit-Ann Arbor area by its 
movement across the U.S.-Canada border has a significant impact on 
ozone production and general air quality in the Windsor Southwestern 
Ontario region of Canada, the commentor expresses concern that the 
Department of State chose not to provide the Canadian Government with 
formal advance notice of the intention of the USEPA to act on an issue 
which would have a major impact on transboundary air pollution.

USEPA Response

    Paragraph 1 of Article V of the March 13, 1991 U.S.-Canada Air 
Quality Agreement states that ``Each Party shall, as appropriate and as 
required by its laws, regulations and policies, assess those proposed 
actions, activities and projects within the area under its jurisdiction 
that, if carried out, would be likely to cause significant 
transboundary air pollution, including consideration of appropriate 
mitigation measures.'' Paragraph 2, specifies that parties shall notify 
each other of actions under paragraph 1. Since the action to 
redesignate the Detroit-Ann Arbor area to attainment does not result in 
a relaxation of existing control requirements or an increase in ozone 
precursor emissions, the USEPA does not believe that formal 
notification was necessary nor that this action poses a potential risk. 
Canada is well aware of this redesignation at this time. However, in 
the future, the U.S. intends to notify Canada of actions similar to 
this action as early as possible regardless of whether notification is 
required under the U.S.-Canada Air Quality Agreement. In addition, the 
U.S. will work with Canada to address tropospheric ozone in the context 
of the Air Quality Agreement as previously discussed.

Comment

    A number of commentors believe that the air quality in the Detroit-
Ann Arbor area has not improved but deteriorated in recent years. 
Recent developments have been detrimental to air quality, such as the 
operation of a trash incinerator which emits foul smoke into the air 
around the clock, particularly on weekends when businesses are closed. 
Instead of recycling, the City of Detroit chooses to pollute southeast 
Michigan and Ontario's air. Multitudes of industrial plants are located 
on the Detroit River whose smokestacks cast gray haze over everything, 
even on sunny days. One commentor lists a number of local facilities 
which it claims causes visible emissions and [[Page 12476]] offensive 
odors. Another commentor states that Wayne county ranked #1 in amount 
of hazardous chemicals released through air emissions (as well as #1 in 
``suspected'' carcinogens), and was fearful for her health and future 
because of current air quality. Another commentor claimed breathing 
problems caused by outdoor air. Wayne County was accused of posing 
numerous pulmonary health risks for residents. Improvements in air 
quality are necessary for the residents' safety and health.

USEPA Response

    The July 21, 1994 Federal Register notice proposes to redesignate 
the Detroit-Ann Arbor area to attainment solely for ozone. The Detroit-
Ann Arbor redesignation request satisfies the section 107(d)(3)(E) 
requirements. Among these requirements is that the area demonstrate 
attainment of the ozone NAAQS. See section 107(d)(3)(E)(i). The 
Detroit-Ann Arbor area has demonstrated through 3 consecutive years of 
complete air quality data, that the area has attained the ozone NAAQS. 
The area is and will continue to be required to satisfy all Act 
requirements pertaining to the emission of hazardous air pollutants. 
Further, existing facilities must continue to operate existing air 
pollution control equipment in accordance with applicable rules, 
regulations and permits, and sources that are problematic in terms of 
posing a nuisance to area residents may be referred to the State and 
local environmental enforcement staff for investigation. Retaining the 
area's current nonattainment designation for ozone would not affect 
visible emissions and/or offensive odors from the existing incinerator. 
In addition, certain new rules and regulations will still apply to area 
sources even if the area is redesignated to attainment for ozone; for 
example, Maximum Achievable Control Technology and additional controls 
under section 112 (air toxics) of the Act. With respect to the 
commentor's contention that improvements in air quality are necessary 
for residents' safety and health, it should be recognized that section 
109 of the Act requires that the NAAQS, which must be based on 
established criteria and allow an adequate margin of safety, protect 
the public health. Unless and until it is revised, the current ozone 
NAAQS provides the pertinent standard for protecting public health.

Comment

    Many commentors believe that designating the area to attainment 
would exempt the area from stricter clean air regulations. They believe 
that the USEPA should require local industry to implement common-sense, 
cost-effective pollution control measures, more stringent automobile 
emission testing (current testing is not effective), and service 
stations to install anti-pollution devices on gasoline pumps (Stage 
II). The USEPA should encourage that measures be taken to ensure that 
no pollution problems occur in the future.

USEPA Response

    Redesignating the area to attainment for ozone does not exempt the 
State from implementing measures necessary for attainment. Further, 
additional regulations such as a basic I/M program, Stage II vapor 
recovery, or Stage I expansion are incorporated into the area's 
maintenance plan as contingency measures. The contingency measures 
selected by the State will be implemented if a violation is 
experienced.

Comment

    One commentor requests the USEPA to require, and to make public, an 
independent, third party, statistical verification of air quality and 
related environmental health data to support or dispute claims made by 
local businesses, a senator and a governor. If monitoring in the 
southwest section of Detroit is ongoing, then there would be no 
question that tougher standards are needed.

USEPA Response

    The State has established air monitoring networks, sampling and 
analysis procedures as well as quality assurance and control procedures 
that satisfy USEPA guidelines. The State will continue to operate its 
monitoring network after redesignation. Third party statistical 
verification of air quality data is not required by the guidelines 
applicable for the purposes of this redesignation.

Comment

    One commentor stated that the USEPA should not redesignate the 
Detroit-Ann Arbor area because it is likely that the area will soon 
have to be redesignated back to nonattainment. The commentor also 
provided various information related to increasing VOC emissions and 
petroleum usage.

USEPA Response

    The USEPA believes that Michigan has shown that the Detroit-Ann 
Arbor area has attained and can continue to maintain the NAAQS for 
ozone. In the event that a violation of the ozone NAAQS does occur in 
the future, however, the maintenance plan provides for the 
implementation of the State's contingency measures under section 175A 
to promptly correct any violations of the NAAQS, as required by the 
Act.
    With regard to the commentor's contentions concerning VOC emissions 
and petroleum usage, the USEPA notes that in its showing of maintenance 
over a 10-year period, the State has technically assessed not only the 
impacts of reductions due to control programs, but also increases due 
to growth in all potential sources of emissions. These potential 
sources include petroleum usage in the mobile source and industrial 
source sectors. The State has shown in these assessments that 
reductions in emissions over the maintenance period will more than 
offset any increases in emissions of VOC. The USEPA's decisions must be 
based solely on whether Michigan's submission adequately addresses the 
statutory requirements applicable to redesignation. The USEPA has 
determined that it does, and is thus approving the redesignation 
request. Again, in the event that violations of the ozone NAAQS occur, 
Michigan must promptly implement its contingency measures such that the 
ozone NAAQS is once again attained and maintained.
II. Final Rulemaking Action
    The USEPA approves the redesignation of the Detroit-Ann Arbor, 
Michigan ozone area to attainment and the section 175A maintenance plan 
as a revision to the Michigan SIP. The State of Michigan has satisfied 
all of the necessary requirements of the Act. The USEPA has also 
approved the section 182(f) NO<INF>X exemption for the Detroit-Ann 
Arbor area in an action published elsewhere in this Federal Register 
which exempts the area from the section 182(f) NO<INF>X requirements. 
As a consequence of this action, the USEPA also stops the sanctions 
clocks that had been started as a result of the findings made on 
January 21, 1994, regarding the incompleteness of the 15 percent ROP 
plan and the section 172(c)(9) contingency plan for the Detroit-Ann 
Arbor area and on May 11, 1994, regarding the basic I/M plan for the 
area.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air [[Page 12477]] and Radiation. The OMB has exempted this regulatory 
action from Executive Order 12866 review.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to any SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
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, USEPA may certify that the rule will not have a 
significant economic 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.
    The SIP approvals under section 100 and subchapter I, part D, of 
the Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP-approval does not impose any new requirements, I certify 
that it does not have a significant impact on small entities affected. 
Moreover, due to the nature of the Federal-State relationship under the 
Act, preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Act forbids USEPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976).
    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

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Motor vehicle pollution, 
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

40 CFR Part 81

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

    Dated: February 8, 1995.
Norman R. Niedergang,
Acting Regional Administrator.

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

PART 52--[AMENDED]

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

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

Subpart X--Michigan

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


Sec. 52.1170  Identification of plan.

* * * * *
    (c) * * *
    (101) On November 15, 1993, the State of Michigan submitted as a 
revision to the Michigan State Implementation Plan for ozone a State 
Implementation Plan for a motor vehicle inspection and maintenance 
program for the Detroit-Ann Arbor area. Michigan submitted House Bill 
No. 5016, signed by Governor John Engler on November 13, 1993.
    (i) Incorporation by reference.
    (A) State of Michigan House Bill No. 5016 signed by the Governor 
and effective on November 13, 1993.
    (102) On November 12, 1993, the State of Michigan submitted as a 
revision to the Michigan State Implementation Plan for ozone a State 
Implementation Plan for a section 175A maintenance plan for the 
Detroit-Ann Arbor area as part of Michigan's request to redesignate the 
area from moderate nonattainment to attainment for ozone. Elements of 
the section 175A maintenance plan include a base year (1993 attainment 
year) emission inventory for NO<INF>X and VOC, a demonstration of 
maintenance of the ozone NAAQS with projected emission inventories 
(including interim years) to the year 2005 for NO<INF>X and VOC, a plan 
to verify continued attainment, a contingency plan, and an obligation 
to submit a subsequent maintenance plan revision in 8 years as required 
by the Clean Air Act. If the area records a violation of the ozone 
NAAQS (which must be confirmed by the State), Michigan will implement 
one or more appropriate contingency measure(s) which are contained in 
the contingency plan. Appropriateness of a contingency measure will be 
determined by an urban airshed modeling analysis. The Governor or his 
designee will select the contingency measure(s) to be implemented based 
on the analysis and the MDNR's recommendation. The menu of contingency 
measures includes basic motor vehicle inspection and maintenance 
program upgrades, Stage I vapor recovery expansion, Stage II vapor 
recovery, intensified RACT for degreasing operations, NO<INF>X RACT, 
and RVP reduction to 7.8 psi. Michigan submitted legislation or rules 
for basic I/M in House Bill No 5016, signed by Governor John Engler on 
November 13, 1993; Stage I and Stage II in Senate Bill 726 signed by 
Governor John Engler on November 13, 1993; and RVP reduction to 7.8 psi 
in House Bill 4898 signed by Governor John Engler on November 13, 1993.
    (i) Incorporation by reference.
    (A) State of Michigan House Bill No. 5016 signed by the Governor 
and effective on November 13, 1993.
    (B) State of Michigan Senate Bill 726 signed by the Governor and 
effective on November 13, 1993.
    (C) State of Michigan House Bill No. 4898 signed by the Governor 
and effective on November 13, 1993.
    2. Section 52.1174 is amended by adding paragraphs (h) and (i) to 
read as follows:


Sec. 52.1174  Control strategy: Ozone.

* * * * *
    (h) Approval--On January 5, 1993, the Michigan Department of 
Natural Resources submitted a revision to the ozone State 
Implementation Plan for the 1990 base year emission inventory. The 
inventory was submitted by the State of Michigan to satisfy Federal 
requirements under section 182(a)(1) of the Clean Air Act as amended in 
1990, as a revision to the ozone State Implementation Plan for the 
Detroit-Ann Arbor moderate ozone nonattainment area. This area includes 
Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne 
counties.
    (i) Approval--On November 12, 1993, the Michigan Department of 
Natural Resources submitted a request to redesignate the Detroit-Ann 
Arbor (consisting of Livingston, Macomb, Monroe, Oakland, St. Clair, 
Washtenaw, and Wayne counties) ozone nonattainment area to attainment 
for ozone. As part of the redesignation request, the State submitted a 
[[Page 12478]] maintenance plan as required by 175A of the Clean Air 
Act, as amended in 1990. Elements of the section 175A maintenance plan 
include a base year (1993 attainment year) emission inventory for 
NO<INF>X and VOC, a demonstration of maintenance of the ozone NAAQS 
with projected emission inventories (including interim years) to the 
year 2005 for NO<INF>X and VOC, a plan to verify continued attainment, 
a contingency plan, and an obligation to submit a subsequent 
maintenance plan revision in 8 years as required by the Clean Air Act. 
If the area records a violation of the ozone NAAQS (which must be 
confirmed by the State), Michigan will implement one or more 
appropriate contingency measure(s) which are contained in the 
contingency plan. Appropriateness of a contingency measure will be 
determined by an urban airshed modeling analysis. The Governor or his 
designee will select the contingency measure(s) to be implemented based 
on the analysis and the MDNR's recommendation. The menu of contingency 
measures includes basic motor vehicle inspection and maintenance 
program upgrades, Stage I vapor recovery expansion, Stage II vapor 
recovery, intensified RACT for degreasing operations, NO<INF>X RACT, 
and RVP reduction to 7.8 psi. The redesignation request and maintenance 
plan meet the redesignation requirements in sections 107(d)(3)(E) and 
175A of the Act as amended in 1990, respectively. The redesignation 
meets the Federal requirements of section 182(a)(1) of the Clean Air 
Act as a revision to the Michigan Ozone State Implementation Plan for 
the above mentioned counties.

PART 81--[AMENDED]

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

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

    2. In Sec. 81.323 the ozone table is amended by revising the entry 
for the Detroit-Ann Arbor area for ozone to read as follows:


Sec. 81.323  Michigan.

* * * * *

                                                 Michigan--Ozone                                                
----------------------------------------------------------------------------------------------------------------
                                                  Designation                            Classification         
        Designated areas        --------------------------------------------------------------------------------
                                          Date\1\                 Type           Date\1\            Type        
----------------------------------------------------------------------------------------------------------------
                                                                                                                
        *                  *                  *                  *                  *                  *        
                                                        *                                                       
 Detroit-Ann Arbor Area:                                                                                        
    Livingston County..........  April 6, 1995...........  Attainment                                           
    Macomb County..............  April 6, 1995...........  Attainment                                           
    Monroe County..............  April 6, 1995...........  Attainment                                           
    Oakland County.............  April 6, 1995...........  Attainmnet                                           
    St. Clair County...........  April 6, 1995...........  Attainment                                           
     Washtenaw County..........  April 6, 1995...........  Attainment                                           
    Wayne County...............  April 6, 1995...........  Attainment                                           
                                                                                                                
        *                  *                  *                  *                  *                  *        
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------
\1\This date is November 15, 1990, unless otherwise noted.                                                      

* * * * *
[FR Doc. 95-5445 Filed 3-6-95; 8:45 am]
BILLING CODE 6560-50-P