[Federal Register Volume 60, Number 44 (Tuesday, March 7, 1995)]
[Rules and Regulations]
[Pages 12446-12451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5444]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI26-04-6805; FRL-5157-1]
Approval and Promulgation of Implementation Plan; Michigan
Detroit-Ann Arbor NOX Exemption
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency is granting an exemption
to the Detroit-Ann Arbor ozone nonattainment area from applicable
oxides of nitrogen (NOX) requirements found in the Clean Air Act
(Act). Approval of the exemption would apply for various NOX
requirements including adoption and implementation of regulations
addressing general conformity, transportation conformity, inspection
and maintenance, reasonably available control technology, and new
source review. The State of Michigan submitted a NOX exemption
request on November 12, 1993. A subsequent letter dated May 31, 1994
clarified this earlier submittal. This request is based on the fact
that ozone monitoring in the Detroit-Ann Arbor area indicates that the
average number of exceedances of the National Ambient Air Quality
Standard for ozone during the most recent 3-year period, 1991 to 1993,
is fewer than one per year. Given this monitoring data, Michigan
petitioned for an exemption from the NOX requirements based on a
demonstration that additional reductions of NOX would not
contribute to attainment of the ozone standard.
EFFECTIVE DATE: This final rule will be effective April 6, 1995.
ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,
Regulation Development Section, Air Toxics and Radiation Branch (AT-
18J), EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois
60604-3590.
Copies of the request and the EPA's analysis are available for
inspection at the following address: USEPA, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590.
(Please telephone Douglas Aburano at (312) 353-6960 before visiting the
Region 5 office.)
FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Air Toxics and
Radiation Branch (AT-18J), EPA, Region 5, Chicago, Illinois 60604,
(312) 353-6960.
SUPPLEMENTARY INFORMATION:
I. Background
On November 12, 1993 the State of Michigan submitted a petition to
the EPA requesting that the Detroit-Ann Arbor ozone nonattainment area
be exempted from the requirement to implement NOX controls
pursuant to section 182(f) of the Act. The exemption request is based
upon monitoring data which demonstrate that the average number of
exceedances of the ozone standard in the Detroit-Ann Arbor area during
the most recent 3-year period, 1991 through 1993, is fewer than one per
year.
On August 10, 1994, EPA published a direct final rulemaking
approving the NOX exemption petition for the Detroit-Ann Arbor
nonattainment area. During the 15 day public comment period, EPA
received joint adverse comments from the Natural Resources Defense
Council, Sierra Club Legal Defense Fund, and the Environmental Defense
Fund and 2 requests for additional time to comment on this rulemaking
from the State of New York and the Citizens Commission for Clean Air in
the Lake Michigan Basin. The EPA published a document announcing the
opening of a second comment period on October 6, 1994. The second
comment period lasted until November 7, 1994. During the second comment
period, the State of New York submitted adverse comments.
II. Public Comment/EPA Response
The following evaluation summarizes each comment received and EPA's
response to the comment. A more detailed discussion of the State
submittal and the rationale for the EPA's action based on the Act and
cited references appear in EPA's technical support documents dated
February 8, 1994 and December 1, 1994.
NRDC Comments
Following is a summary of comments received from the NRDC in a
letter dated August 24, 1994 signed by Sharon Buccino. After each
comment is EPA's response.
NRDC Comment 1: Certain commenters argued that NOX exemptions
are provided for in two separate parts of the Act, section 182(b)(1)
and section 182(f). Because the NOX exemption tests in subsections
182(b)(1) and 182(f)(1) include language indicating that action on such
requests should take place ``when [EPA] approves a plan or plan
revision,'' these commenters conclude that all NOX exemption
determinations by the EPA, including exemption actions taken under the
petition process established by subsection 182(f)(3), must occur during
consideration of an approvable attainment or maintenance plan, unless
the area has been redesignated as attainment. These commenters also
argue that even if the petition procedures of subsection 182(f)(3) may
be used to relieve areas of certain NOX requirements, exemptions
from the NOX conformity requirements must follow the process
provided in subsection 182(b)(1), since this is the only provision
explicitly referenced by section 176(c), the Act's conformity
provisions.
EPA Response: Section 182(f) contains very few details regarding
the administrative procedure for acting on NOX exemption requests.
The absence of specific guidelines by Congress leaves EPA with
discretion to establish reasonable procedures, consistent with the
requirements of the Administrative Procedure Act (APA).
The EPA disagrees with the commenters regarding the process for
considering exemption requests under section 182(f), and instead
believes that subsections 182(f)(1) and 182(f)(3) provide independent
procedures by which the EPA may act on NOX exemption requests. The
language in subsection 182(f)(1), which indicates that the EPA should
act on NOX exemptions in conjunction with action on a plan or plan
revision, does not appear in subsection 182(f)(3). And, while
subsection 182(f)(3) references subsection 182(f)(1), the EPA believes
that this reference encompasses only the substantive tests in paragraph
(1) (and, by extension, paragraph (2)), not the procedural requirement
that the EPA act on exemptions only when acting on SIPs. Additionally,
paragraph (3) provides that ``person[s]'' (which [[Page 12447]] section
302(e) of the Act defines to include States) may petition for NOX
exemptions ``at any time,'' and requires the EPA to make its
determination within 6 months of the petition's submission. These key
differences lead EPA to believe that Congress intended the exemption
petition process of paragraph (3) to be distinct and more expeditious
than the longer plan revision process intended under paragraph (1).
Section 182(f)(1) appears to contemplate that exemption requests
submitted under these paragraphs are limited to States, since States
are the entities authorized under the Act to submit plans or plan
revisions. By contrast, section 182(f)(3) provides that
``person[s]''1 may petition for a NOX determination ``at any
time'' after the ozone precursor study required under section 185B of
the Act is finalized,2 and gives EPA a limit of 6 months after
filing to grant or deny such petitions. Since individuals may submit
petitions under paragraph (3) ``at any time'' this must include times
when there is no plan revision from the State pending at EPA. The
specific timeframe for EPA action established in paragraph (3) is
substantially shorter than the timeframe usually required for States to
develop and for EPA to take action on revisions to a SIP. These
differences strongly suggest that Congress intended the process for
acting on personal petitions to be distinct--and more expeditious--from
the plan-revision process intended under paragraph (1). Thus, EPA
believes that paragraph (3)'s reference to paragraph (1) encompasses
only the substantive tests in paragraph (1) (and, by extension,
paragraph (2)), not the requirement in paragraph (1) for EPA to grant
exemptions only when acting on plan revisions.
\1\Section 302(e) of the Act defines the term ``person'' to
include States.
\2\The final section 185B report was issued July 30, 1993.
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With respect to major stationary sources, section 182(f) requires
States to adopt NOX NSR and RACT rules, unless exempted. These
rules were generally due to be submitted to EPA by November 15, 1992.
Thus, in order to avoid the Act sanctions, areas seeking a NOX
exemption would have had to submit their exemption requests for EPA
review and rulemaking action several months before November 15, 1992.
In contrast, the Act specifies that the attainment demonstrations are
not due until November 1993 or 1994 (and EPA may take 12-18 months to
approve or disapprove the demonstration). For marginal ozone
nonattainment areas (subject to NOX NSR), no attainment
demonstration is called for in the Act. For maintenance plans, the Act
does not specify a deadline for submittal of maintenance
demonstrations. Clearly, the Act envisions the submittal of and EPA
action on exemption requests, in some cases, prior to submittal of
attainment or maintenance demonstrations.
The Act requires conformity with regard to federally-supported
NOX generating activities in relevant nonattainment and
maintenance areas. However, EPA's conformity rules explicitly provide
that these NOX requirements would not apply if EPA grants an
exemption under section 182(f). In response to the comment that section
182(b)(1) should be the appropriate vehicle for dealing with exemptions
from the NOX requirements of the conformity rule, EPA notes that
this issue has previously been raised in a formal petition for
reconsideration of EPA's final transportation conformity rule and in
litigation pending before the U.S. Court of Appeals for the District of
Columbia Circuit on the substance of both the transportation and
general conformity rules. The issue, thus, is under consideration
within EPA, but at this time remains unresolved. Additionally,
subsection 182(f)(3) requires that NOX exemption petition
determinations be made by the EPA within six months. The EPA has stated
in previous guidance that it intends to meet this statutory deadline as
long as doing so is consistent with the Administrative Procedures Act.
The EPA, therefore, believes that until a resolution of this issue is
achieved, the applicable rules governing this issue are those that
appear in EPA's final conformity regulations, and EPA remains bound by
their existing terms.
NRDC Comment 2: Some commenters stated that the modeling required
by EPA is insufficient to establish that NOX reductions would not
contribute to attainment since only one level of NOX control,
i.e., ``substantial'' reductions, is required to be analyzed. They
further explained that an area must submit an approvable attainment
plan before EPA can know whether NOX reductions will aid or
undermine attainment.
EPA Response: This comment is directed towards exemption approvals
based on photochemical grid modeling. This comment does not apply in
the case of Detroit-Ann Arbor because this exemption request is based
on monitoring.
NRDC Comment 3: Three years of ``clean'' data fail to demonstrate
that NOX reductions would not contribute to attainment. EPA's
policy erroneously equates the absence of a violation for one three-
year period with ``attainment.''
EPA Response: The EPA has separate criteria for determining if an
area should be redesignated to attainment under section 107 of the Act.
The section 107 criteria are more comprehensive than the Act requires
with respect to NOX exemptions under section 182(f).
Under section 182(f)(1)(A), an exemption from the NOX
requirements may be granted for nonattainment areas outside an ozone
transport region if EPA determines that ``additional reductions of
[NOX] would not contribute to attainment'' of the ozone NAAQS in
those areas. In some cases, an ozone nonattainment area might attain
the ozone standard, as demonstrated by 3 years of adequate monitoring
data, without having implemented the section 182(f) NOX provisions
over that 3-year period. The EPA believes that, in cases where a
nonattainment area is demonstrating attainment with 3 consecutive years
of air quality monitoring data without having implemented the section
182(f) NOX provisions, it is clear that the section 182(f) test is
met since ``additional reductions of [NOX] would not contribute to
attainment'' of the NAAQS in that area. The EPA's approval of the
exemption, if warranted, would be granted on a contingent basis (i.e.,
the exemption would last for only as long as the area's monitoring data
continue to demonstrate attainment).
NRDC Comment 4: A waiver of NOX controls is unlawful if such
waiver will impede attainment and maintenance of the ozone standard in
separated downwind areas.
EPA Response: As a result of the comments, EPA reevaluated its
position on this issue and is revising the previously issued guidance.
As described below, EPA intends to use its authority under section
110(a)(2)(D) to require a State to reduce NOX emissions from
stationary and/or mobile sources where there is evidence, such as
photochemical grid modeling, showing that NOX emissions would
contribute significantly to nonattainment in, or interfere with
maintenance by, any other State. This action would be independent of
any action taken by EPA on a NOX exemption request for stationary
sources under section 182(f). That is, EPA action to grant or deny a
NOX exemption request under section 182(f) would not shield that
area from EPA action to require NOX emission reductions, if
necessary, under section 110(a)(2)(D).
Modeling analyses are underway in many areas for the purpose of
[[Page 12448]] demonstrating attainment in the 1994 SIP revisions.
Recent modeling data suggest that certain ozone nonattainment areas may
benefit from reductions in NOX emissions far upwind of the
nonattainment area. For example, the northeast corridor and the Lake
Michigan areas are considering attainment strategies which rely in part
on NOX emission reductions hundreds of kilometers upwind. The EPA
is working with the States and other organizations to design and
complete studies which consider upwind sources and quantify their
impacts. As the studies progress, EPA will continue to work with the
States and other organizations to develop mutually acceptable
attainment strategies.
At the same time as these large scale modeling analyses are being
conducted, certain nonattainment areas in the modeling domain have
requested exemptions from NOX requirements under section 182(f).
Some areas requesting an exemption may be upwind of and impact upon
downwind nonattainment areas. EPA intends to address the transport
issue through section 110(a)(2)(D) based on a domain-wide modeling
analysis.
Under section 182(f) of the Act, an exemption from the NOX
requirements may be granted for nonattainment areas outside an ozone
transport region if EPA determines that ``additional reductions of
(NOX) would not contribute to attainment of the national ambient
air quality standard for ozone in the area.''3 As described in
section 4.3 of the Guidelines for Determining the Applicability of
Nitrogen Oxides Requirements under section 182(f), December 16, 1993
(``guidance'') document, EPA believes that the term ``area'' means the
``nonattainment area'' and that EPA's determination is limited to
consideration of the effects in a single nonattainment area due to
NOX emissions reductions from sources in the same nonattainment
area.
\3\There are 3 NOX exemption tests specified in section
182(f). Of these, 2 are applicable for areas outside an ozone
transport region; the ``contribute to attainment'' test described
above, and the ``net air quality benefits'' test. EPA must
determine, under the latter test, that the net benefits to air
quality in an area ``are greater in the absence of NOX
reductions'' from relevant sources. Based on the plain language of
section 182(f), EPA believes that each test provides an independent
basis for receiving a full or limited NOX exemption.
Consequently, as stated in section 1.4 of the December 16, 1993 EPA
guidance, ``[w]here any one of the tests is met (even if another
test is failed), the section 182(f) NOX requirements would not
apply or, under the excess reductions provision, a portion of these
requirements would not apply.''
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Section 4.3 of the guidance goes on to encourage, but not require,
States/petitioners to include consideration of the entire modeling
domain, since the effects of an attainment strategy may extend beyond
the designated nonattainment area. Specifically, the guidance
encourages States to ``consider imposition of the NOX requirements
if needed to avoid adverse impacts in downwind areas, either intra- or
inter-State. States need to consider such impacts since they are
ultimately responsible for achieving attainment in all portions of
their State (see generally section 110) and for ensuring that emissions
originating in their State do not contribute significantly to
nonattainment in, or interfere with maintenance by, any other State
(see section 110(a)(2)(D)(i)(I)).''
In contrast, section 4.4 of the guidance states that the section
182(f) demonstration would not be approved if there is evidence, such
as photochemical grid modeling, showing that the NOX exemption
would interfere with attainment or maintenance in downwind areas. The
guidance goes on to explain that section 110(a)(2)(D) (not section
182(f)) prohibits such impacts.
Consistent with the guidance in section 4.3, EPA believes that the
section 110(a)(2)(D) and 182(f) provisions must be considered
independently. Thus, if there is evidence that NOX emissions in an
upwind area would interfere with attainment or maintenance in a
downwind area, that action should be separately addressed by the
State(s) or, if necessary, by EPA in a section 110(a)(2)(D) action. In
addition, a section 182(f) exemption request should be independently
considered by EPA. In some cases, then, EPA may grant an exemption from
across-the-board NOX RACT controls under section 182(f) and, in a
separate action, require NOX controls from stationary and/or
mobile sources under section 110(a)(2)(D). It should be noted that the
controls required under section 110(a)(2)(D) may be more or less
stringent than RACT, depending upon the circumstances.
NRDC Comment 5: Comments were received regarding exemption of areas
from the NOX requirements of the conformity rules. They argue that
such exemptions waive only the requirements of section 182(b)(1) to
contribute to specific annual reductions, not the requirement that
conformity SIPs contain information showing the maximum amount of motor
vehicle NOX emissions allowed under the transportation conformity
rules and, similarly, the maximum allowable amounts of any such
NOX emissions under the general conformity rules. The commenters
admit that, in prior guidance, EPA has acknowledged the need to amend a
drafting error in the existing transportation conformity rules to
ensure consistency with motor vehicle emissions budgets for NOX,
but want EPA in actions on NOX exemptions to explicitly affirm
this obligation and to also avoid granting waivers until a budget
controlling future NOX increases is in place.
EPA Response: With respect to conformity, EPA's conformity
rules4,5 provide a NOX waiver if an area receives a section
182(f) exemption. In its ``Conformity; General Preamble for Exemption
From Nitrogen Oxides Provisions,'' 59 FR 31238, 31241 (June 17, 1994),
EPA reiterated its view that in order to conform, nonattainment and
maintenance areas must demonstrate that the transportation plan and TIP
are consistent with the motor vehicle emissions budget for NOX
even where a conformity NOX waiver has been granted. Due to a
drafting error, that view is not reflected in the current
transportation conformity rules. As the commenters correctly note, EPA
states in the June 17th notice that it intends to remedy the problem by
amending the conformity rule. Although that notice specifically
mentions only requiring consistency with the approved maintenance
plan's NOX motor vehicle emissions budget, EPA also intends to
require consistency with the attainment demonstration's NOX motor
vehicle emissions budget. However, the exemptions were submitted
pursuant to section 182(f)(3), and EPA does not believe it is
appropriate to delay the statutory deadline for acting on these
petitions until the conformity rule is amended. As noted earlier in
response to a previous issue raised by these commenters, this issue has
also been raised in a formal petition for reconsideration of the
Agency's final transportation conformity rule and in litigation pending
before the U.S. Court of Appeals for the District of Columbia Circuit
on the substance of both the transportation and general conformity
rules. This issue, thus, is under consideration within the Agency, but
at this time remains unresolved. The EPA, therefore, believes that
until a resolution of this issue is achieved, the applicable rules
governing this issue are those that appear in the Agency's final
conformity [[Page 12449]] regulations, and the Agency remains bound by
their existing terms.
\4\``Criteria and Procedures for Determining Conformity to State
or Federal Implementation Plans of Transportation Plans, Programs,
and Projects Funded or Approved under Title 23 U.S.C. of the Federal
Transit Act,'' November 24, 1993 (58 FR 62188).
\5\``Determining Conformity of General Federal Actions to State
or Federal Implementation Plans; Final Rules,'' November 30, 1993
(58 FR 63214).
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NRDC Comment 6: The Act does not authorize any waiver of the
NOX reduction requirements until conclusive evidence exists that
such reductions are counter-productive.
EPA Response: EPA does not agree with this comment since it ignores
Congressional intent as evidenced by the plain language of section
182(f), the structure of the Title I ozone subpart as a whole, and
relevant legislative history. By contrast, in developing and
implementing its NOX exemption policies, EPA has sought an
approach that reasonably accords with that intent. Section 182(f), in
addition to imposing control requirements on major stationary sources
of NOX similar to those that apply for such sources of VOC, also
provides for an exemption (or limitation) from application of these
requirements if, under one of several tests, EPA determines that in
certain areas NOX reductions would generally not be beneficial. In
subsection 182(f)(1), Congress explicitly conditioned action on
NOX exemptions on the results of an ozone precursor study required
under section 185B. Because of the possibility that reducing NOX
in a particular area may either not contribute to ozone attainment or
may cause the ozone problem to worsen, Congress included attenuating
language, not just in section 182(f), but throughout the Title I ozone
subpart, to avoid requiring NOX reductions where it would be
nonbeneficial or counterproductive. In describing these various ozone
provisions (including section 182(f), the House Conference Committee
Report states in pertinent part: ``[T]he Committee included a separate
NOX/VOC study provision in section [185B] to serve as the basis
for the various findings contemplated in the NOX provisions. The
Committee does not intend NOX reduction for reduction's sake, but
rather as a measure scaled to the value of NOX reductions for
achieving attainment in the particular ozone nonattainment area.'' H.R.
Rep. No. 490, 101st Cong., 2d Sess. 257-258 (1990). As noted in
response to an earlier comment by these same commenters, the command in
subsection 182(f)(1) that EPA ``shall consider'' the 185B report taken
together with the timeframe the Act provides both for completion of the
report and for acting on NOX exemption petitions clearly
demonstrate that Congress believed the information in the completed
section 185B report would provide a sufficient basis for EPA to act on
NOX exemption requests, even absent the additional information
that would be included in affected areas' attainment or maintenance
demonstrations. However, while there is no specific requirement in the
Act that EPA actions granting NOX exemption requests must await
``conclusive evidence'', as the commenters argue, there is also nothing
in the Act to prevent EPA from revisiting an approved NOX
exemption if warranted due to better ambient information.
In addition, the EPA believes (as described in EPA's December 1993
guidance) that section 182(f)(1) of the Act provides that the new
NOX requirements shall not apply (or may by limited to the extent
necessary to avoid excess reductions) if the Administrator determines
that any one of the following tests is met:
(1) In any area, the net air quality benefits are greater in the
absence of NOX reductions from the sources concerned;
(2) In nonattainment areas not within an ozone transport region,
additional NOX reductions would not contribute to ozone attainment
in the area; or
(3) In nonattainment areas within an ozone transport region,
additional NOX reductions would not produce net ozone air quality
benefits in the transport region.
Based on the plain language of section 182(f), EPA believes that each
test provides an independent basis for receiving a full or limited
NOX exemption.
Only the first test listed above is based on a showing that
NOX reductions are ``counter-productive.'' If one of the tests is
met (even if another test is failed), the section 182(f) NOX
requirements would not apply or, under the excess reductions provision,
a portion of these requirements would not apply.
State of New York Comment 1: The State of New York reaffirms its
objection to this proposed rulemaking originally stated in an August
24, 1994 letter. According to the May 27, 1994 memorandum from Mr. John
Seitz and the December 1993 section 182(f) NOX exemption guidance,
the exemption cannot be approved if there is evidence that NOX
exemption would interfere with the attainment of a downwind area.
Section 3.3 of the December 1993 guidance states;
The net air quality benefit test is not specifically limited to
an ozone nonattainment area or ozone transport region and may be
directed at a specific set of sources. Thus, a broad geographic area
should be considered. The area may, in some cases, extend beyond an
ozone nonattainment area or ozone transport region * * * Sufficient
area is needed to allow for completion of the various chemical
transformations of NOX and interaction with other pollutants.
The latest results of the EPA regional oxidant modeling (ROM)
indicate that emissions of NOX from stationary sources west of the
Ozone Transport Region contribute to increased ozone levels in the
northeast, including New York State. These results show that control of
NOX emissions throughout the eastern United States will contribute
to significant reductions in peak ozone levels within the ozone
transport region (OTR).
EPA Response: With respect to the comments regarding the latest ROM
results and downwind impacts in general, EPA refers the commenter to
its previous responses to NRDC Comments 3 and 4.
The State of New York incorrectly cites section 3.3 of EPA's
December 1993 guidance. Section 3.3 applies only to those areas
applying for a NOX exemption under the ``net air quality benefit''
test. The Detroit-Ann Arbor petition is based on the ``contribute to
attainment'' test. The ``contribute to attainment'' test requires that
only the emissions from the immediate nonattainment area be considered
in evaluating the petition (see December 1993 guidance document,
``Guidelines for Determining the Applicability of Nitrogen Oxides
Requirements Under Section 182(f)'', section 4.3). In its petition the
State of Michigan has demonstrated that the average number of
exceedances of the ozone standard in the area during the past 3 years
(1991-1993, the most current monitored years at the time the exemption
request was made) is fewer than one per year which is sufficient to
receive an exemption under this test. In addition, the 1994 ozone
season has passed and no violation of the ozone standard has been
recorded in the area.
State of New York Comment 2: The air quality monitoring data alone
does not support this exemption proposal. This is supported by a July
28, 1994 letter from the Michigan Department of Natural Resources which
states that ``(we) are nearly in violation of the ozone standard at
several monitoring sites, primarily due to the many excursions we had
in June.'' This proposal does not appear to consider this data. In
addition, the data submitted for the period 1991 to 1993 (November 12,
1993 section 182(f) NOX exemption request letter to EPA Region V)
contain the maximum number of exceedances allowed to still be
considered attainment. This does not provide a clear test that
additional [[Page 12450]] reductions would not contribute to
maintenance of attainment.
EPA Response: EPA is required to base its SIP decisions on the
information duly submitted by a State in fulfillment of requirements
imposed by the Act. The basis for granting this exemption is the fact
that the information submitted by the State of Michigan demonstrates
that this area has not experienced a violation of the ozone standard
for the most recent 3 years of monitored data. Consistent with the
established EPA policy, the fact that the area has recorded the maximum
number of exceedances without violating the standard is irrelevant to a
determination regarding whether an area is showing attainment for the
period in question. What is relevant is whether or not the standard was
violated, and the submitted data confirms that it was not. (See 40 CFR
50.9, 40 CFR part 50, appendix H, and Guideline for Interpretation of
Ozone Air Quality Standards, January 1979, EPA-450/4-79-003.) In
addition to the fact that the ozone standard was not violated for the
years 1991-1993, the years upon which this exemption request is based,
monitoring data throughout the 1994 ozone season for the Detroit-Ann
Arbor area continues to show attainment of the ozone standard.
State of New York Comment 3: The State of New York strongly objects
to the guidance developed to allow these exemptions to be processed.
The May 27, 1994 memorandum ``Section 182(f) Nitrogen Oxides (NOX
Exemptions--Revised Process and Criteria'' allows a nonattainment area
to consider only its own air quality monitoring data and does not
require a demonstration that the area does not negatively impact the
attainment status of downwind areas. The guidance memorandum also
allows the nonattainment area to submit the NOX exemption request
without a redesignation or maintenance request. This does not provide
the federal government with the appropriate information to make an
informed judgment on the contribution of NOX to nonattainment.
Finally, this guidance did not undergo State review before issuance.
While not necessarily required, it is EPA's usual practice to allow the
States to have input in the development of guidance.
EPA Response: EPA's guidance regarding both the adequacy of the
demonstration needed to qualify for a NOX exemption and the extent
to which downwind impacts need to be considered was developed in
accordance with what EPA considers to be the best interpretation of the
language in section 182(f) of the Act. For a more detailed discussion
of that interpretation see EPA's responses to NRDC Comments 1 and 4
above. In addition, while it may be true that this guidance did not
undergo State review before issuance, an opportunity for State
participation is provided when such guidance is followed in proposed
rulemaking actions. If a State objects to a proposed action and the
guidance that action is based on, it is free to comment on the proposed
action during the public comment period provided, as indeed, the State
of New York has done here.
State of New York Comment 4: The Detroit-Ann Arbor area has been
designated as moderate ozone nonattainment and as such requires a 15
percent rate-of-progress plan and a modeled attainment demonstration.
It is unclear from the record whether these requirements have been
fulfilled. An exemption request would need this information at a
minimum to determine its validity. Please provide the status of these
State implementation plan revisions.
EPA Response: As described previously in EPA's response to NRDC
Comment 1, EPA action on NOX exemption petitions submitted
pursuant to section 182(f)(3) of the Act can be taken independently of
action on attainment or maintenance demonstration plans or
redesignation requests. Consequently, the issue of whether the State of
Michigan's independent requirements under the Act to submit a 15
percent rate-of-progress plan and an attainment demonstration plan have
been met do not affect EPA's ability to act on the State's exemption
request. (See also EPA's response to NRDC Comment 3, describing the
Agency's policy regarding the use of monitoring data to meet the
``contribute to attainment'' test).
III. Final Action
The comments received were found to warrant no changes from
proposed to final action on this NOX exemption request. Therefore,
EPA is granting the Detroit-Ann Arbor section 182(f) exemption petition
based upon the evidence provided by the State and the State's
compliance with the requirements outlined in the Act and in EPA
guidance. However, it should be noted that this exemption is being
granted on a contingent basis; i.e., the exemption will last for only
as long as the area's ambient monitoring data continue to demonstrate
attainment of the ozone NAAQS.
The EPA's transportation conformity rule6 and EPA's general
conformity rule7 also reference the section 182(f) exemption
process as a means for exempting affected areas from NOX
conformity requirements, and the conformity requirements apply on an
areawide basis. Since this petition for exemption is areawide, as
opposed to source-specific, an approval would also exempt this area
from the NOX conformity requirements of the Act (see John Seitz
May 27, 1994 ``Section 182(f) Nitrogen Oxides (NOX) Exemptions--
Revised Process and Criteria'' memorandum). Additionally, the
Inspection/Maintenance (I/M) Program Final Rule (57 FR 52950) allows
for the omission of the basic I/M NOX requirements if a 182(f)
exemption is granted to an area. Michigan does not currently have--or
need--an enhanced I/M program. If the State did adopt such a program
(because further emissions reductions necessary to address other
portions of the Act could be obtained through an enhanced program), it
would have to be designed to offset NOX increases resulting from
the vehicle repairs due to hydrocarbon (HC) and carbon monoxide (CO)
failures.
\6\``Criteria and Procedures for Determining Conformity to State
or Federal Implementation Plans of Transportation Plans, Programs,
and Projects Funded or Approved under Title 23 U.S.C. of the Federal
Transit Act'' November 24, 1993 (58 FR 62188).
\7\``Determining Conformity of General Federal Actions to State
or Federal Implementation Plans; Final Rule'' November 30, 1993 (58
FR 63214).
---------------------------------------------------------------------------
If, subsequent to the NOX waiver being granted, EPA determines
that the area has violated the standard, the section 182(f) exemption,
as of the date of the determination, would no longer apply. EPA would
notify the State that the exemption no longer applies, and would also
provide notice to the public in the Federal Register. If an exemption
is revoked, the State must comply with any applicable NOX
requirements set forth in the Act, such as those for NOX RACT,
NSR, I/M, and conformity. The air quality data relied on for the above
determinations must be consistent with 40 CFR part 58 requirements and
other relevant EPA guidance and recorded in EPA's Aerometric
Information Retrieval System. Additionally, the State must continue to
operate an appropriate air quality monitoring network, in accordance
with 40 CFR part 58, to verify the attainment status of the area.
The Federal Register document revoking the NOX exemption would
also establish the schedule for adoption and implementation of those
NOX requirements the area was previously exempt. [[Page 12451]]
On November 12, 1993 the State submitted a redesignation request.
Section 175(A) requires submittal of a maintenance plan for areas that
are redesignating to attainment. This maintenance plan must contain
contingency measures which shall be implemented if a violation of the
ozone standard occurs. Consequently, if the State's redesignation
request is approved, the NOX requirements found in the maintenance
plan for that area would, thereafter, apply as long as the area is
designated attainment for the ozone standard.
This action will become effective on April 6, 1995.
IV. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
B. Executive Order 12866
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993
memorandum from Michael Shapiro, Acting Assistant Administrator for Air
and Radiation. The OMB has exempted this regulatory action from E.O.
12866 review.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
This approval does not create any new requirements. Therefore, I
certify that this action does not have a significant impact on any
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids EPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976).
D. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 8, 1995. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Oxides of
nitrogen, Incorporation by reference, Intergovernmental relations,
Ozone.
Dated: February 8, 1995.
Norman R. Niedergang,
Acting Regional Administrator.
40 CFR part 52 is amended as follows.
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671(q).
Subpart X--Michigan
2. Section 52.1174 is amended by adding paragraph (j) to read as
follows:
Sec. 52.1174 Control strategy: Ozone.
* * * * *
(j) Approval--On November 12, 1993, the Michigan Department of
Natural Resources submitted a petition for exemption from the oxides of
nitrogen requirements of the Clean Air Act for the Detroit-Ann Arbor
ozone nonattainment area. The submittal pertained to the exemption from
the oxides of nitrogen requirements for conformity, inspection and
maintenance, reasonably available control technology, and new source
review. These are required by sections 176(c), 182(b)(4), and 182(f) of
the 1990 amended Clean Air Act, respectively. If a violation of the
ozone standard occurs in the Detroit-Ann Arbor ozone nonattainment
area, the exemption shall no longer apply.
[FR Doc. 95-5444 Filed 3-6-95; 8:45 am]
BILLING CODE 6560-50-P
