[Federal Register Volume 61, Number 31 (Wednesday, February 14, 1996)]
[Rules and Regulations]
[Pages 5707-5711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3330]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[MI39-03-7248; FRL-5421-9]
Designation of Areas for Air Quality Planning Purposes;
Correction of Designation of Nonclassified Ozone Nonattainment Areas;
State of Michigan
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: On August 8, 1995 the USEPA simultaneously published a direct
final notice of rulemaking and notice of proposed rulemaking in which
USEPA published its decision to correct erroneous ozone designations
made in 1980 for the Allegan County, Barry County, Battle Creek
(Calhoun County), Benton Harbor (Berrien County), Branch County, Cass
County, Gratiot County, Hillsdale County, Huron County, Ionia County,
Jackson (Jackson County), Kalamazoo (Kalamazoo County), Lapeer County,
Lenawee County, Montcalm (Montcalm County), Sanilac County, Shiawassee
County, St. Joseph County, Tuscola County, and Van Buren County
nonattainment nonclassified/incomplete data areas and the Lansing-East
Lansing (Clinton County, Eaton County, and Ingham County) nonattainment
nonclassified/transitional area. Pursuant to section 110(k)(6) of the
Act, the USEPA published the designation correction of these areas to
attainment/unclassifiable for ozone. The 30-day comment period
concluded on September 7, 1995. During this comment period, the USEPA
received two comment letters in response to the August 8, 1995,
rulemaking. This final rule summarizes comments and USEPA's responses,
and finalizes the USEPA's decision to correct the designations of 20 of
these areas to attainment/unclassifiable for ozone. The USEPA will
respond to comments relevant to Allegan County, Michigan and publish a
final rulemaking on this area in a separate rulemaking action in a
future Federal Register.
EFFECTIVE DATE: This action will be effective March 15, 1996.
ADDRESSES: Copies of the documents relevant to this action 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 (AR-18J), Air Programs 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
On August 8, 1995, the USEPA published a direct final rulemaking
(60 FR 40297) correcting the designation for 21 of 23 ozone
nonattainment nonclassified incomplete/no data and transitional areas
in Michigan to attainment/unclassifiable due to the lack of in-county
ozone monitoring data showing violations of the 0.12 parts per million
(ppm) National Ambient Air Quality Standard (NAAQS).
At the same time that the USEPA published the direct final rule, a
separate notice of proposed rulemaking was published in the Federal
Register (60 FR 40338). This proposed rulemaking specified that USEPA
would withdraw the direct final rule if adverse or critical comments
were filed on the rulemaking. The USEPA received two letters containing
adverse comments regarding the direct final rule within 30 days of
publication of the proposed rule and withdrew the direct final rule on
October 2, 1995 (60 FR 51360).
The specific rationale the USEPA used to correct certain ozone
nonattainment nonclassified areas to attainment is explained in the
direct final rule and will not be restated here.
This final rule contained in this Federal Register addresses the
comments which were received during the public comment period and
announces USEPA's final action regarding these determinations, with the
exception of comments relevant to and a final determination regarding
Allegan County.
II. Public Comments and USEPA Responses
Two letters were received in response to the August 8, 1995, direct
final rulemaking. One was a letter from the Citizens Commission for
Clean Air in the Lake Michigan Basin (Citizens Commission) and the
other from the New York State Department of Environmental Conservation
(NYSDEC). The following discussion summarizes and responds to the
comments received, with the exception of those relevant to Allegan
County. Comments received relevant to and a final action on Allegan
County will be published in a future rulemaking action.
Citizens Commission Comment
The commenter states that the rulemaking is improper and an abuse
of the Administrator's authority to correct errors in designation of
areas pursuant to Clean Air Act (Act) section 110(k)(6). The commenter
restates section 110(k)(6) emphasizing the provision that
determinations pursuant to 110(k)(6) and their basis must be provided
to the State and public. The commenter further states that the basis of
the direct final rule, the lack of air quality data in the affected
areas during the 1970s and 1980s, is insufficient grounds for changing
the designation of the affected areas under the Act.
USEPA Response
The USEPA disagrees with the commentor's contention that the
rulemaking is an improper use and/or abuse of section 110(k)(6). The
commenter doesn't provide information or a rationale for this comment.
Consistent with section 110(k)(6), the USEPA determined that the
designations of these 21 nonattainment nonclassified areas were in
error based on the lack of in county monitoring data and, consequently,
acted to correct the designation in the same manner as the original
designation 1 without requiring any further submission from the
State. The determination and its basis were provided to the State and
the public through the publication of the direct final and proposed
rulemaking actions in the Federal Register.
\1\ The original designations were processed in a proposal and
subsequent final Federal Register document. The direct final process
used in this instance requires a simultaneous proposal and thus,
affords the public the opportunity to comment.
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The commenter does not explain why they believe that the basis of
the correction is insufficient grounds for changing the designation of
the affected
[[Page 5708]]
areas under the Act. These areas were designated nonattainment based on
their proximity to nonattainment areas and the regional nature of the
ozone problem (45 FR 25092, April 14, 1980). This could imply that, if
the areas had monitored elevated ozone levels, the elevated levels
likely could have been a result of ozone and precursors transported
from adjacent nonattainment areas. It would be unreasonable to impose
the rigorous redesignation requirements of the Act amendments to these
areas where an ozone problem, which could be due to transport from
other areas, was not monitored but assumed.
Furthermore, the USEPA believes that this basis is appropriate
particularly in light of the 1990 Act which significantly relies on
ambient monitoring data to classify areas and establish control
requirements.
Citizens Commission Comment
The commenter states that the direct final rule is inconsistent
with prior agency policy established in the General Preamble (General
Preamble for the Implementation of Title 1, 57 FR 13501, April 16,
1992) regarding transitional and incomplete data areas. The General
Preamble establishes that incomplete data or no data areas are subject
to section 172(b) requirements and requires States to submit a
redesignation request and maintenance plan as defined in section
107(d)(3)(E) for such areas. (The commenter cited section 107(d)(1)(E).
USEPA believes that this was a typographical error since this section
of the Act does not address redesignation requirements.) According to
the General Preamble designation of such areas may be changed by
individual redesignation requests and not by a correction.
USEPA Response
Since this rulemaking is not based on the redesignation criteria of
section 107(d)(3)(E), USEPA redesignation policy or the general
preamble redesignation criteria and requirements are irrelevant to this
rulemaking. The rulemaking is consistent with section 110(k)(6) of the
Act.
Citizens Commission Comment
The commenter states the USEPA is deliberately ignoring the Lake
Michigan Ozone Study (LMOS) modeling results, which indicate that many
of these areas are not in attainment of the standard, and is,
therefore, countering efforts of neighboring nonattainment areas
struggling to satisfy the Title I requirements. The commenter states
that the current LMOS modeling, which USEPA has accepted and approved
for purposes of demonstrating attainment, predicts continued
exceedances for many of these Michigan counties in the future. The
commenter refers to Episode 4 which shows that exceedances of the NAAQS
observed in northwest Indiana can be attributed to emissions
originating from many of the Michigan counties proposed for
redesignation. The commenter maintains that this finding is verified by
recently completed back trajectories for Episode 4. (Trajectories
provided by the commenter). The commenter believes that this
redesignation is particularly outrageous, given the 6 exceedances
recorded in Michigan City, Indiana in the summer of 1995. The commenter
further suggests that USEPA use the ambient monitoring data collected
during the 1991 LMOS field study to designate Delta, Benzie, and Mason
Counties to nonattainment.
USEPA Response
The USEPA is not ignoring the LMOS. The USEPA recognizes that the
Lake Michigan States of Michigan, Wisconsin, Illinois and Indiana are
conducting urban airshed modeling (UAM) which is being coordinated by
LADCO that will be used for purposes of demonstrating attainment
throughout the Lake Michigan region. The modeling is currently being
refined. The USEPA also recognizes the importance of the modeling
effort and subsequent results. The USEPA has determined that the model
performance evaluation for UAM, Version V, submitted by LADCO on behalf
of the Lake Michigan States on October 1, 1994, could be used for
regulatory purposes. This means, however, that the method of showing
attainment has been approved, rather than that actual attainment
demonstrations have been approved.
UAM has been submitted to the USEPA on three occasions; November
14, 1994, with an attainment date extension request for the Western
Michigan moderate ozone nonattainment areas, on November 15, 1994, with
an attainment date extension request for Sheboygan, Manitowoc, and
Kewaunee Counties in Wisconsin, and on July 13, 1994, with a section
182(f) NOx exemption request for areas in Michigan, Wisconsin,
Illinois and Indiana. The UAM submitted to the USEPA to date does not
and was not intended to demonstrate attainment. The USEPA has reviewed
this modeling and cannot conclusively determine that the 20
nonclassified areas in Michigan subject to this correction are not
attaining the standard, will not be attaining the standard in the
future, or may contribute to ozone concentrations in downwind areas.
Although, a few Episode 2 modeling runs indicate that portions of
Berrien and Van Buren Counties fall between 120 ppb and 130 ppb
isopleths 2 and, in two modeling runs, possibly between the 120
ppb and 140 ppb isopleths, the actual predicted ozone concentrations in
these areas cannot be determined.
\2\ Isopleths are the lines generated by the results of the
urban airshed model indicating ozone concentrations.
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The USEPA does not agree that Episode 4 (June 21-21, 1991) shows
that exceedances of the NAAQS observed in northwest Indiana can be
attributed to emissions originating from these areas and it is unclear
how the trajectories provided by the commenter support this conclusion.
Episode 4 illustrates the scenario of north-northeasterly winds.
Although, Episode 4 modeling runs show that Michigan emissions may
impact downwind areas, the modeling does not clearly demonstrate that
the ozone precursor emissions from these counties are the cause of
exceedances in the downwind areas. Similarly, although the trajectories
may indicate north-northeasterly wind patterns and therefore, airflow
from Michigan to Indiana, the extent to which the ozone precursor
emissions from these counties contribute to ozone concentrations cannot
be determined conclusively.
The USEPA is aware of monitored ozone exceedances in Michigan City,
Indiana, during the 1995 ozone season. The USEPA does not expect this
rulemaking to have an impact on the likelihood of Michigan City being
designated to nonattainment.
Ozone monitoring data collected during the 1990 and 1991 field
studies in Delta, Benzie and Mason counties are not relevant to this
rulemaking action.
Finally, the USEPA would also note that the Lake Michigan States
are participating in the Phase I/Phase II process as provided for
within the March 2, 1995, memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation, entitled Ozone Attainment
Demonstrations. Phase II of the analysis would assess the need for
regional control strategies and refine the local control strategies.
Phase II would also provide the States and USEPA the opportunity to
determine appropriate regional strategies to resolve transport issues
including any impacts these areas may have on ozone concentrations in
their downwind areas. The USEPA has the authority under sections
110(a)(2)(A) and 110(a)(2)(D) of the Act to ensure that the required
and necessary reductions are achieved in
[[Page 5709]]
these areas should subsequent modeling become available, such as the
modeling that will be available through completion of the Phase II
analysis, or any other subsequent modeling data. USEPA has authority,
and the state has an obligation, under section 110(a)(2)(A) (in the
case of intrastate areas) and section 110(a)(2)(D) (in the case of
interstate areas), to address transported emissions from upwind areas
that significantly contribute to air quality problems in downwind
areas. This action, therefore, does not preclude the USEPA from
requiring control measures in these areas in the future.
Citizens Commission Comment
The commenter believes that the State and USEPA were correct when
they concluded in 1980 (the commenter cites 1989. However, USEPA
believes this was a typographical error and that the commenter intended
to cite 1980) that these Michigan counties should be designated as
nonattainment and reevaluated once appropriate monitoring data become
available. Appropriate monitoring data can only be obtained if the
State establishes a comprehensive monitoring network and contributes to
a comprehensive, regional attainment strategy.
USEPA Response
Michigan's November 8, 1979 analysis concluded that in light of the
new 0.12 ppm standard, changes to the March 3, 1978 designations were
not warranted and that the designations would be reevaluated as more
data on rural ozone levels became available. The USEPA approved this
submittal on June 2, 1980. Since 1979, the State of Michigan expanded
the ozone monitoring network to Branch, Cass, Clinton, Eaton, Ingham
(relocated), and Tuscola Counties and later to Benzie, Berrien, Huron,
Kalamazoo, Lenawee, Montcalm, and Van Buren Counties. Exceedances of
the 0.12 ppm NAAQS were recorded in a number of counties and violations
were recorded in Huron County in 1980 (2 exceedances in 1980 at two
separate monitors),3 and Cass County in 1980 (3 exceedances in 2
years, 1979-1980) 4 and Tuscola County in 1988 (1 exceedances in
1988).5 Subsequently, Cass, Huron and Tuscola Counties have
monitored attainment.
\3\ The monitor was established in 1980.
\4\ This monitor was established in 1979.
\5\ Poor data capture in 1980.
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Regarding the State's contribution to a comprehensive, regional
attainment strategy, as noted previously, the Lake Michigan States are
participating in the Phase I/Phase II process. This process will
provide the States and USEPA with information to determine appropriate
regional strategies to resolve transport issues including any impacts
these Michigan areas may have on ozone concentrations in their downwind
areas. The USEPA has the authority to ensure that the required and
necessary reductions are achieved in these areas should subsequent
modeling become available.
Citizens Commission Comment
The commenter states that the direct final rule does not explain
why the June 2, 1980 designation does not remain in effect pursuant to
the general savings clause, section 193 of the Act. The general savings
clause requires that ``no control requirement in effect * * * may be
modified after such enactment in any manner unless the modification
insures equivalent or greater emission reductions of such air
pollutant.'' The commenter states that if these areas are designated to
attainment/unclassifiable, they would not achieve equivalent or greater
emission reductions in ozone precursor emissions.
USEPA Response
Section 193 of the Act states that each rule promulgated by the
Administrator, in effect before November 15, 1990, must remain in
effect, unless revised by the Administrator. This action is a
correction to a designation, it is not a revision to any control
requirement, so that section 193 is not applicable. In any event,
section 193 also stipulates that no control requirement may be modified
in any manner unless the modification insures equivalent or greater
emission reductions. This component of section 193 was intended to
preserve the control programs and measures already implemented in the
area. Since programs and measures already implemented in the area that
achieved emission reductions are not being removed, replacement
reductions are not necessary.
NYSDEC Comment
The NYSDEC disagrees that an error was made in determining the
ozone designations for the nonclassified areas in southern Michigan.
The air monitoring network used by Michigan to designate these areas
nonattainment in 1978 and uphold them in 1980, complied with the
federal Act citing criteria and provisions for establishing air quality
control regions. The NYSDEC also questions the rationale for correcting
the ozone designation fifteen years later and believes that even if an
error was made that it does not warrant a direct final rulemaking.
USEPA Response
The USEPA is not implying that the ambient monitoring network
established by the Michigan Department of Natural Resources (MDNR) at
that time was inadequate. The USEPA believes, however, that the
monitoring network that operated during the mid-1970s was not
appropriate for purposes of designating all of these areas to
nonattainment. There was no data available demonstrating that these
areas were in violation of the ozone NAAQS to warrant a nonattainment
designation. However, the State of Michigan chose this designation for
these areas based on their proximity to nonattainment areas and the
regional nature of the ozone problem (45 FR 25092, April 14, 1980). The
basis of the original designations and rationale implies that if the
areas had monitored elevated ozone levels, the elevated levels likely
would have been a result of ozone and precursors transported from
adjacent nonattainment areas. It would be unreasonable to impose the
rigorous redesignation requirements of the Act amendments to these
areas if an ozone problem, likely due to transport from other areas,
was not monitored but assumed. Furthermore, as previously noted, the
USEPA believes that this basis is appropriate, particularly in light of
the 1990 Act, which significantly relies on ambient monitoring data to
classify areas and establish control requirements.
NYSDEC Comment
The commenter cites elevated ozone levels observed in southern
Michigan and notes that the August 8, 1995, direct final rule states a
violation in Lenawee County has probably occurred in the period 1993-
1995.
USEPA Response
The correction is based on the ambient monitoring data available at
the time the original designations were promulgated. The preliminary
data which indicated that a violation may have occurred in Lenawee
County were subsequently invalidated due to a malfunctioning ambient
monitor which was replaced by the MDNR.
NYSDEC Comment
NYSDEC also requested additional time to review the AIRS data and
documentation used in the USEPA's analysis of which they recently
obtained copies.
USEPA Response
The public was afforded 30 days to comment on this rulemaking
action. The USEPA does not believe that any
[[Page 5710]]
extension of time is necessary as an adequate comment period has
already been provided.
III. Final Rulemaking Action
In this action the USEPA is promulgating a correction to correct
the ozone designation status of the Barry County, Battle Creek (Calhoun
County), Benton Harbor (Berrien County), Branch County, Cass County,
Gratiot County, Hillsdale County, Huron County, Ionia County, Jackson
(Jackson County), Kalamazoo (Kalamazoo County), Lapeer County, Lenawee
County, Montcalm (Montcalm County), Sanilac County, Shiawassee County,
St. Joseph County, Tuscola County, and Van Buren County nonattainment
nonclassified/incomplete data and the Lansing-East Lansing (Clinton
County, Eaton County, Ingham County) nonattainment nonclassified/
transitional area to attainment/unclassifiable for ozone pursuant to
section 110(k)(6).
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. Today's determination does not create any new
requirements, but suspends the indicated requirements. Therefore,
because this notice does not impose any new requirements, I certify
that it does not have a significant impact on small entities affected.
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the
USEPA must prepare a budgetary impact statement to accompany any
proposed or final rulemaking that includes a Federal mandate that may
result in estimated costs to State, local, or tribal governments in the
aggregate; or to the private sector, of $100 million or more. Section
203 requires the USEPA to establish a plan for informing and advising
any small governments that may be significantly or uniquely impacted by
the rule. Under section 205, the USEPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements.
The USEPA has determined that today's final action does not include
a Federal mandate that may result in estimated costs of $100 million or
more to either State, local or tribal governments in the aggregate, or
to the private sector. This Federal action imposes no new Federal
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
Under section 307(b)(1) of the Act, petitions for judicial review
of this final action must be filed in the United States Court of
Appeals for the appropriate circuit by April 15, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2)).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control.
Dated: February 7, 1996.
Carol M. Browner,
Administrator.
40 CFR Part 81 is amended as follows:
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PURPOSES
1. The authority citation of 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
entries for Barry County Area, Battle Creek Area, Benton Harbor Area,
Branch County Area, Cass County Area, Gratiot County Area, Hillsdale
County Area, Huron County Area, Ionia County Area, Jackson Area,
Kalamazoo Area, Lapeer County Area, Lenawee County Area, Montcalm Area,
Sanilac County Area, Shiawassee County Area, St. Joseph County Area,
Tuscola County Area, Van Buren County Area and Lansing-East Lansing
Area to read as follows:
Sec. 81.323 Michigan.
* * * * *
Michigan--Ozone
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Designation Classification
Designated areas ---------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date Type
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* * * * * * *
Barry County Area, Barry County... Mar. 15, 1996.................. Unclassifiable/Attainment.............
Battle Creek Area, Calhoun County. Mar. 15, 1996.................. Unclassifiable/Attainment.............
Benton Harbor Area, Berrien County Mar. 15, 1996.................. Unclassifiable/Attainment.............
Branch County Area, Branch County. Mar. 15, 1996.................. Unclassifiable/Attainment.............
Cass County Area, Cass County..... Mar. 15, 1996.................. Unclassifiable/Attainment.............
* * * * * * *
Gratiot County Area, Gratiot Mar. 15, 1996.................. Unclassifiable/Attainment.............
County.
Hillsdale County Area, Hillsdale Mar. 15, 1996.................. Unclassifiable/Attainment.............
County.
Huron County Area, Huron County... Mar. 15, 1996.................. Unclassifiable/Attainment.............
Ionia County Area, Ionia County... Mar. 15, 1996.................. Unclassifiable/Attainment.............
Jackson Area, Jackson County...... Mar. 15, 1996.................. Unclassifiable/Attainment.............
Kalamazoo Area, Kalamazoo County.. Mar. 15, 1996.................. Unclassifiable/Attainment.............
Lansing-East Lansing Area:
Clinton County................ Mar. 15, 1996.................. Unclassifiable/Attainment.............
Eaton County.................. Mar. 15, 1996.................. Unclassifiable/Attainment.............
Ingham County................. Mar. 15, 1996.................. Unclassifiable/Attainment.............
Lapeer County Area, Lapeer County. Mar. 15, 1996.................. Unclassifiable/Attainment.............
Lenawee County Area, Lenawee Mar. 15, 1996.................. Unclassifiable/Attainment.............
County.
[[Page 5711]]
Montcalm Area, Montcalm County.... Mar. 15, 1996.................. Unclassifiable/Attainment.............
* * * * * * *
Sanilac County Area, Sanilac Mar. 15, 1996.................. Unclassifiable/Attainment.............
County.
Shiwassee County Area, Shiwassee Mar. 15, 1996.................. Unclassifiable/Attainment.............
County.
St. Joseph County Area, St. Joseph Mar. 15, 1996.................. Unclassifiable/Attainment.............
County.
Tuscola County Area, Tuscola Mar. 15, 1996.................. Unclassifiable/Attainment.............
County.
Van Buren County Area, Van Buren Mar. 15, 1996.................. Unclassifiable/Attainment.............
County.
* * * * * * *
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\1\ This date is November 15, 1990, unless otherwise noted.
[FR Doc. 96-3330 Filed 2-13-96; 8:45 am]
BILLING CODE 6560-50-P
