[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
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On-road Non-road
Point Area source mobile mobile Biogenic Total
Ozone nonattainment area source emissions source source emissions emissions
emissions emissions emmissions
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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 rule1. 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 upgraded2 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 Shapiro3 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
Calcagni4 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,5 (2) the
section 182(f) oxides of nitrogen (NOX) 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.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 Calcagni7 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 NOX in
the area's maintenance plan. The commentor further states that the
NOX 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)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 NOX 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) NOX exemption. According to the conformity rules and
preamble, the Detroit-Ann Arbor area's conformity test will be to
remain within the VOC and NOX budgets established in the section
175A maintenance plan. Michigan has established a motor vehicle
emission budget for NOX 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)
NOX exemption for the Detroit-Ann Arbor area. The USEPA's response
is, therefore, articulated in the final rulemaking approving the
section 182(f) NOX 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
NOX 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 NOX contributions to ozone and the inaccuracy of
mobile source inventories, it is inappropriate to remove from the SIP
any NOX or VOC conformity analysis.
USEPA Response
Exemption from the section 182(f) NOX 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) NOX 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) NOX
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.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.''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 NOX
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,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 (NOX 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
NOX 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 NOX 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
NOX 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 NOX
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 NOX 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 RVP12 and intensified degreasing for
degreasing operations13 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
NOX 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 NOX 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,
NOX 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 VMT14 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 NOX 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, NOX, can
scavenge ozone. For this reason, NOX controls can actually
increase ozone levels in metropolitan areas while beneficially
affecting downwind areas. The lack of NOX 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 NOX and
VOC must be controlled. Another commentor notes that there is too
little information about the interaction between VOC and NOX to
justify granting an exemption from NOX 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)
NOX requirements, if the USEPA determines that ``additional
reductions of [NOX] 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 NOX 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 NOX Requirements under Section
182(f), and the May 27, 1994 memorandum from John Seitz, Section 182(f)
NOX Exemptions--Revised Process and Criteria. In addition, the May
27, 1994 Seitz memorandum, page 3, n. 7, states that while NOX
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)
NOX 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 NOX documentation
in their redesignation maintenance plan. By doing so, the State has
demonstrated a commitment to control NOX if it is deemed necessary
to maintain the ozone standard. The USEPA approved the section 182(f)
NOX 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 NOX controls or the lack of NOX 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 NOX
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 NOX 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 NOX to justify
granting an exemption from NOX controls, the USEPA refers the
commentor to the NOX/VOC Study released by the USEPA on July 31,
1993. Congress provided that USEPA decisions on personal petitions for
NOX 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) NOX 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 NOX emissions are expected (primarily from mobile sources as a
result of FMVCP). Also, additional NOX emission reductions are
expected from implementation of the NOX 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 NOX from the
U.S. to Canada. Michigan is a significant source of the ozone and
NOX 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.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 Ontario16.
\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 NOX 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
demonstration17, [[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 NOX 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) NOX 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) NOX 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 NOX and VOC, a demonstration of
maintenance of the ozone NAAQS with projected emission inventories
(including interim years) to the year 2005 for NOX 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, NOX 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
NOX and VOC, a demonstration of maintenance of the ozone NAAQS
with projected emission inventories (including interim years) to the
year 2005 for NOX 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, NOX 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
