[Federal Register Volume 60, Number 81 (Thursday, April 27, 1995)]
[Rules and Regulations]
[Pages 20644-20649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10247]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI34-05-6892, MI35-03-6893; FRL-5197-6]
Approval and Promulgation of Implementation Plan; Michigan, East
Lansing and Genesee County NOX Exemptions
AGENCY: United States Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is granting exemptions to the East Lansing and Genesee
County ozone nonattainment areas, both of which are classified as
transitional, from applicable oxides of nitrogen (NOX)
requirements found in the Clean Air Act (Act). For transitional areas
the NOX requirements which apply are conformity, both general and
transportation, and nonattainment new source review. Approval of these
exemption requests would relieve these areas from adopting and
implementing all of the aforementioned NOX requirements. The State
of Michigan submitted NOX exemption requests for the East Lansing
and Genesee County areas on July 1, 1994 and July 8, 1994,
respectively. These requests are based on the fact that ozone
monitoring in these areas indicate 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
exemptions from the NOX requirements based on a demonstration that
additional reductions of NOX would not contribute to attainment of
the ozone standard in these areas.
DATES: This final rule will be effective May 30, 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: U.S. EPA, 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 July 1, 1994 and July 8, 1994 the State of Michigan submitted
petitions to the EPA requesting that the East Lansing and Genesee
County ozone nonattainment areas 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 these areas
during the most recent 3-year period, 1991 through 1993, is fewer than
one per year.
On December 28, 1994, EPA published a rulemaking proposing approval
of the NOX exemption petitions. During the 30 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 also from a private party.
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
August 9, 1994 and March 10, 1995.
NRDC Comments
Following is a summary of comments received from the NRDC in a
letter dated August 24, 1994. After each comment is EPA's response.
NRDC Comment 1
Certain commenters argued that NOX exemptions are provided for
in two [[Page 20645]] 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 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).
\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, the States would have had to
submit their requests for NOX exemptions 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
East Lansing or Genesee County 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 3-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). [[Page 20646]]
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 has revised the previously issued guidance. See Memorandum,
``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised Process
and Criteria'' dated February 8, 1995, for John Seitz's signature. As
described in this memorandum, 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
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, the States have requested exemptions from NOX
requirements under section 182(f) for certain nonattainment areas in
the modeling domain. Some of these areas 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 Sec. 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, Sec. 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, and hence, is withdrawing the
guidance presently contained in Sec. 4.4. 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 [[Page 20647]] transportation conformity
rules to ensure consistency with motor vehicle emissions budgets for
NOX, but want EPA in actions on NOX exemptions to explicitly
affirm this obligation and to also avoid granting waivers until a
budget controlling future NOX increases is in place.
EPA Response
With respect to conformity, EPA's conformity rules\4\\5\ provide a
NOX waiver if an area receives a section 182(f) exemption. In its
``Conformity; General Preamble for Exemption From Nitrogen Oxides
Provisions,'' 59 FR 31238, 31241 (June 17, 1994), EPA reiterated its
view that in order to conform, nonattainment and maintenance areas must
demonstrate that the transportation plan and TIP are consistent with
the motor vehicle emissions budget for NOX even where a conformity
NOX waiver has been granted. Due to a drafting error, that view is
not reflected in the current transportation conformity rules. As the
commenters correctly note, EPA states in the June 17th notice that it
intends to remedy the problem by amending the conformity rule. Although
that notice specifically mentions only requiring consistency with the
approved maintenance plan's NOX motor vehicle emissions budget,
EPA also intends to require consistency with the attainment
demonstration's NOX motor vehicle emissions budget. However, the
exemptions were submitted pursuant to section 182(f)(3), and EPA does
not believe it is appropriate to delay the statutory deadline for
acting on these petitions until the conformity rule is amended. As
noted earlier in response to a previous issue raised by these
commenters, this issue has also been raised in a formal petition for
reconsideration of the Agency's final transportation conformity rule
and in litigation pending before the U.S. Court of Appeals for the
District of Columbia Circuit on the substance of both the
transportation and general conformity rules. This issue, thus, is under
consideration within the Agency, but at this time remains unresolved.
The EPA, therefore, believes that until a resolution of this issue is
achieved, the applicable rules governing this issue are those that
appear in the Agency's final conformity 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 Rule,'' 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.
Private Citizen Comment 1
The Rose Lake [monitoring] site is in a very rural area surrounded
by vegetation that would preclude any accurate readings from the site,
plus it is an extensive distance from a highway with a significant
volume of vehicles that would generate measurable ozone levels. I also
note this site is in the wrong direction by at least 45 degrees to pick
up any ozone levels from the East Lansing-Lansing urbanized area.
The 220 North Pennsylvania [monitoring] site is even more protected
[than the Rose Lake monitoring site], being in the heart of a
residential area, with a low volume highway adjacent. It
[[Page 20648]] is protected from the west and central part of the
Lansing area, the prevailing wind source is from the west, and it is
also located north of any industrial ozone that could be generated by
several automotive plants.
EPA Response
As part of the State of Michigan's ozone monitoring networks, both
the Rose Lake monitoring site and the 220 North Pennsylvania monitoring
site have met the criteria established in the Code of Federal
Regulations (CFR) for probe siting, as well as other EPA guidance at
the time they were established. A follow-up review conducted on March
2, 1995 indicates they are still in compliance. These requirements can
be found in 40 CFR part 58 Appendix E.
A review of wind speed and direction data for the summer months
indicates that the Rose Lake monitor is within the area likely to be
downwind of East Lansing. Furthermore, additional monitors in Genesee
County are located in the area likely to see the maximum impact from
the formation of ozone from emissions in the East Lansing area. In
other words, the NOX emissions from sources located in the East
Lansing area will probably not generate ozone until they have reached
the Genesee County area where there is an acceptable monitoring
network.
Private Citizen Comment 2
Provisions of the Act and the provisions of the Intermodal Surface
Transportation Efficiency Act (ISTEA) should be jointly examined by EPA
and the Federal Highway Administration (FHWA) to determine the effect
of not exempting the East Lansing area as has been proposed. For
example, could this exemption be granted if these monitors were placed
in areas of high traffic volume?
EPA Response
The hypothetical question raised can only be answered if monitors
were actually placed in areas of high traffic volume. Placing a monitor
in an area of high traffic volume, where high NOX concentrations
could be expected, would most likely give erroneously low ozone
readings because of the fact that high NOX concentrations have the
effect of ``scavenging'' ozone. Therefore, there is no reason to place
a monitor in an area of high traffic volume. In addition to this, as
has already been mentioned in the previous response, the State of
Michigan already has an approved monitoring network for this area and
establishing further monitors has not been demonstrated to be
warranted.
When the EPA is presented with a NOX exemption petition, it is
faced with the task of approving or disapproving such a request solely
on the Clean Air Act provisions and guidance which is developed under
the Clean Air Act. ISTEA does not play a role in the decision making
process for NOX exemptions.
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 East Lansing and Genesee County areas section
182(f) NOX exemptions 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.
Both of these areas are classified as transitional. With a
classification of transitional, an area which has not been granted a
NOX exemption would be subject to general conformity,
transportation conformity, and nonattainment new source review NOX
requirements. Since these petitions for exemption are applicable
areawide, as opposed to source-specific, in addition to exempting these
areas from the nonattainment new source review requirements for
NOX, this action also exempts these areas from the NOX
conformity requirements of the Act (see G. T. Helms, January 12, 1995
``Scope of Nitrogen Oxides (NOX) Exemptions'' memorandum).
If, subsequent to the NOX waiver being granted, EPA determines
that either area has violated the standard, the section 182(f)
exemption for that area, 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 thereafter comply
with any applicable NOX requirements set forth in the Act, such as
those for NOX NSR 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.
This action will become effective on May 30, 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).
Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,
EPA must assess whether various actions undertaken in association with
proposed or final regulations include a Federal mandate that may result
in estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
EPA's final action will relieve requirements otherwise imposed
under [[Page 20649]] the Clean Air Act and, hence does not impose any
federal intergovernmental mandate, as defined in section 101 of the
Unfunded Mandates Act. This action also will not impose a 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.
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 June 26, 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; April 13, 1995.
Valdas V. Adamkus,
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 (e) and (f) to
read as follows:
Sec. 52.1174 Control strategy: Ozone
* * * * *
(e) Approval--On July 1, 1994, the Michigan Department of Natural
Resources submitted a petition for exemption from the oxides of
nitrogen requirements of the Clean Air Act for the East Lansing ozone
nonattainment area. The submittal pertained to the exemption from the
oxides of nitrogen requirements for conformity and new source review.
Theses are required by sections 176(c) and 182(f) of the 1990 amended
Clean Air Act, respectively. If a violation of the ozone standard
occurs in the East Lansing ozone nonattainment area, the exemption
shall no longer apply.
(f) Approval--On July 8, 1994, the Michigan Department of Natural
Resources submitted a petition for exemption from the oxides of
nitrogen requirements of the Clean Air Act for the Genesee County ozone
nonattainment area. The submittal pertained to the exemption from the
oxides of nitrogen requirements for conformity and new source review.
These are required by sections 176(c) and 182(f) of the 1990 amended
Clean Air Act, respectively. If a violation of the ozone standard
occurs in the Genesee County ozone nonattainment area, the exemption
shall no longer apply.
[FR Doc. 95-10247 Filed 4-26-95; 8:45 am]
BILLING CODE 6560-50-P
