[Federal Register Volume 60, Number 106 (Friday, June 2, 1995)]
[Rules and Regulations]
[Pages 28729-28731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13461]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI42-01-7027a; FRL-5213-3]
Determination of Attainment of Ozone Standard by Grand Rapids and
Muskegon, Michigan; Determination Regarding Applicability of Certain
Reasonable Further Progress and Attainment Demonstration Requirements
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The USEPA is determining, through direct final procedure, that
the Grand Rapids (Kent and Ottawa Counties) and Muskegon (Muskegon
County) ozone nonattainment areas have attained the National Ambient
Air Quality Standard (NAAQS) for ozone. This determination is based
upon 3 years of complete, quality assured ambient air monitoring data
for the years 1992-1994 that demonstrate that the ozone NAAQS has been
attained in these areas. On the basis of this determination, USEPA is
also determining that certain reasonable further progress and
attainment demonstration requirements, along with certain other related
requirements, of part D of Title 1 of the Clean Air Act are not
applicable to the areas for so long as the areas continue to attain the
ozone NAAQS. In the proposed rules section of this Federal Register,
USEPA is proposing these determinations and soliciting public comment
on them. If adverse comments are received on this direct final rule,
USEPA will withdraw this final rule and address these comments in a
subsequent final rule on the related proposed rule which is being
published in the proposed rules section of this Federal Register. No
additional opportunity for public comment will be provided. Unless this
direct final rule is withdrawn no further rulemaking will occur on this
action.
EFFECTIVE DATE: This action will be effective July 17, 1995 unless
notice is received by July 3, 1995 that someone wishes to submit
adverse comments. If the effective date is delayed, timely notice will
be published in the Federal Register.
ADDRESSES: Written comments can be mailed to: Carlton T. Nash, Chief,
Regulation Development Section, Air Toxics and Radiation Branch, (AT-
18J), United States Environmental Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
A copy of the air quality data and USEPA's analysis are available
for inspection at the following address: (It is recommended that you
telephone Madelin Rucker at (312) 886-0661 before visiting the Region 5
office).
FOR FURTHER INFORMATION CONTACT: Madelin Rucker, Regulation Development
Section, Air Toxics and Radiation Branch (AT-18J), United States
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604. Telephone: (312) 886-0661.
SUPPLEMENTARY INFORMATION:
I. Background
Subpart 2 of part D of Title I of the Clean Air Act (Act) contains
various air quality planning and state implementation plan (SIP)
submission requirements for ozone nonattainment areas. USEPA believes
it is reasonable to interpret provisions regarding reasonable further
progress (RFP) and attainment demonstrations, along with certain other
related provisions, so as not to require SIP submissions if an ozone
nonattainment area subject to those requirements is monitoring
attainment of the ozone standard (i.e., attainment of the NAAQS
demonstrated with three consecutive years of complete, quality assured
air quality monitoring data). As described below, USEPA has previously
interpreted the general provisions of subpart 1 of part D of Title I
(sections 171 and 172) so as not to require the submission of SIP
revisions concerning RFP, attainment demonstrations, or contingency
measures. As explained in a memorandum dated May 10, 1995 from John
Seitz to the Regional Air Division Directors, entitled ``Reasonable
Further Progress, Attainment Demonstration, and Related Requirements
for Ozone Nonattainment Areas Meeting the National Ambient Air Quality
Standard,'' USEPA believes it is appropriate to interpret the more
specific RFP, attainment demonstration and related provisions of
subpart 2 in the same manner.
First, with respect to RFP, section 171(1) states that, for
purposes of part D of Title I, RFP ``means such annual incremental
reductions in emissions of the relevant air pollutant as are required
by this part or may reasonably be required by the Administrator for the
purpose of ensuring attainment of the applicable national ambient air
quality standard by the applicable date.'' Thus, whether dealing with
the general RFP requirement of section 172(c)(2), or the more specific
RFP requirements of subpart 2 for classified ozone nonattainment areas
(such as the 15 percent plan requirement of section 182(b)(1)), the
stated purpose of RFP is to ensure attainment by the applicable
attainment date.1 If an area has in fact attained the standard,
the stated purpose of the RFP requirement will have already been
fulfilled and USEPA does not believe that the area need submit
revisions providing for the further emission reductions described in
the RFP provisions of section 182(b)(1).
\1\USEPA notes that paragraph (1) of subsection 182(b) is
entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and
that subparagraph (B) of paragraph 182(c)(2) is entitled
``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it
clear that both the 15 percent plan requirement of section 182(b)(1)
and the 3 percent per year requirement of section 182(c)(2) are
specific varieties of RFP requirements.
---------------------------------------------------------------------------
USEPA notes that it took this view with respect to the general RFP
requirement of section 172(c)(2) in the General Preamble for the
Interpretation of Title I of the Clean Air Act Amendments of 1990 (57
FR 13498 (April 16, 1992)), and it is now extending that interpretation
to the specific provisions of subpart 2. In the General Preamble, USEPA
stated, in the context of a discussion of the requirements applicable
to the evaluation of requests to redesignate nonattainment areas to
attainment, that the ``requirements for RFP will not apply in
evaluating a request for redesignation to attainment since, at a
minimum, the air quality data for the area must show that the area has
already attained. Showing that the State will make RFP towards
attainment will, therefore, have no meaning at that point.'' (57 FR at
13564.)2
\2\See also ``Procedures for Processing Requests to Redesignate
Areas to Attainment,'' from John Calcagni, Director, Air Quality
Management Division, to Regional Air Division Directors, September
4, 1992, at page 6 (stating that the ``requirements for reasonable
further progress * * * will not apply for redesignations because
they only have meaning for areas not attaining the standard'')
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
[[Page 28730]]
---------------------------------------------------------------------------
Second, with respect to the attainment demonstration requirements
of section 182(b)(1), an analogous rationale leads to the same result.
Section 182(b)(1) requires that the plan provide for ``such specific
annual reductions in emissions * * * as necessary to attain the
national primary ambient air quality standard by the attainment date
applicable under this Act.'' As with the RFP requirements, if an area
has in fact monitored attainment of the standard, USEPA believes there
is no need for an area to make a further submission containing
additional measures to achieve attainment. This is also consistent with
the interpretation of certain section 172(c) requirements provided by
USEPA in the General Preamble to Title I, as USEPA stated there that no
other measures to provide for attainment would be needed by areas
seeking redesignation to attainment since ``attainment will have been
reached.'' (57 FR at 13564; see also September 1992 Calcagni memorandum
at page 6.) Upon attainment of the NAAQS, the focus of State planning
efforts shifts to the maintenance of the NAAQS and the development of a
maintenance plan under section 175A.
Similar reasoning applies to other related provisions of subpart 2
such as the contingency measure requirements of section 172(c)(9).
USEPA has previously interpreted the contingency measure requirement of
section 172(c)(9) as no longer being applicable once an area has
attained the standard since those ``contingency measures are directed
at ensuring RFP and attainment by the applicable date.'' (57 FR at
13564; see also September 1992 Calcagni memorandum at page 6.)
USEPA emphasizes that the lack of a requirement to submit the SIP
revisions discussed above exists only for as long as an area designated
nonattainment continues to attain the standard. If USEPA subsequently
determines that such an area has violated the NAAQS, the basis for the
determination that the area need not make the pertinent SIP revisions
would no longer exist. The USEPA would notify the State of that
determination and would also provide notice to the public in the
Federal Register. Such a determination would mean that the area would
have to address the pertinent SIP requirements within a reasonable
amount of time, which USEPA would establish taking into account the
individual circumstances surrounding the particular SIP submissions at
issue. Thus, a determination that an area need not submit one of the
SIP submittals amounts to no more than a suspension of the requirement
for so long as the area continues to attain the standard.
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 air quality data relied upon to
determine that the area is attaining the ozone standard must be
consistent with 40 CFR Part 58 requirements and other relevant USEPA
guidance and recorded in USEPA's Aerometric Information Retrieval
System (AIRS).
The determinations that are being made with this action are not
equivalent to the redesignation of the area to attainment. Attainment
of the ozone NAAQS is only one of the criteria set forth in section
107(d)(3)(E) that must be satisfied for an area to be redesignated to
attainment. To be redesignated the State must submit and receive full
approval of a redesignation request for the area that satisfies all of
the criteria of that section, including the requirement of a
demonstration that the improvement in the area's air quality is due to
permanent and enforceable reductions and the requirements that the area
have a fully-approved SIP meeting all of the applicable requirements
under section 110 and part D and a fully-approved maintenance plan.
Furthermore, the determinations made in this action do not shield
an area from future USEPA action to require emissions reductions from
sources in the area where there is evidence, such as photochemical grid
modeling, showing that emissions from sources in the area contribute
significantly to nonattainment in, or interfere with maintenance by,
other nonattainment areas. USEPA has authority under sections
110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions if
necessary and appropriate to deal with transport situations.
II. Analysis of Air Quality Data
The USEPA has reviewed the ambient air monitoring data for ozone
(consistent with the requirements contained in 40 CFR Part 58 and
recorded in AIRS) for the Grand Rapids and Muskegon ozone nonattainment
areas in the State of Michigan from 1992 through the present time. On
the basis of that review USEPA has concluded that the area attained the
ozone standard during the 1992-1994 period and continues to attain the
standard at this time. For ozone, an area may be considered attaining
the NAAQS if there are no violations, as determined in accordance with
the regulation codified at 40 CFR 50.9, based on three (3) consecutive
calendar years of complete, quality assured monitoring data. A
violation occurs when the ozone air quality monitoring data show
greater than one (1) average expected exceedance per year at any site
in the area at issue. An exceedance occurs when the maximum hourly
ozone concentration exceeds 0.124 parts per million (ppm). The data
should be collected and quality-assured in accordance with 40 CFR part
58, and recorded in the AIRS in order for it to be available to the
public for review.
The Grand Rapids and Muskegon areas have demonstrated attainment of
the ozone NAAQS based on ozone monitoring data for the years 1992
through 1994. The ozone monitoring network in Grand Rapids consists of
two monitors located in Kent County. A monitor was established in
Ottawa County in 1989 and relocated to Allegan County in 1993. The
State, however, did reestablish a monitor in Ottawa county in 1994. Two
exceedances of the ozone standard have been monitored since 1992 in the
Grand Rapids area, both of these occurred at the Grand Rapids monitor
in Kent County. At this site, the first exceedance of 0.156 ppm
occurred in 1993, and the second exceedance of 0.149 ppm occurred in
1994. The ozone monitoring network in Muskegon consists of one monitor
located in Muskegon County. Three exceedances of the ozone standard
have been monitored since 1992 in the Muskegon area, all three of these
occurred at the Muskegon monitor in Muskegon County. At this site, one
exceedance was recorded during each of the years 1992, 1993, and 1994
at concentrations of 0.129 ppm, 0.141 ppm, and 0.146 ppm, respectively.
Data stored in AIRS was used to determine the annual average expected
exceedances for each area for the years 1992, 1993, and 1994. Data
contained in AIRS have undergone quality assurance review by the State
and USEPA. Since the annual average number of expected exceedances for
each monitor during the most recent three years is equal to 1.0, the
Grand Rapids and Muskegon areas are considered to have attained the
standard. A more detailed summary of the ozone monitoring data for the
area is provided in the USEPA technical support document dated May 12,
1995.
III. Final Action
USEPA determines that the Grand Rapids and Muskegon ozone
nonattainment areas have attained the ozone standard and continue to
attain the standard at this time. As a consequence of USEPA's
determination that the Grand Rapids and Muskegon [[Page 28731]] areas
have attained the ozone standard, the requirements of section 182(b)(1)
concerning the submission of the 15 percent plan and ozone attainment
demonstration and the requirements of section 172(c)(9) concerning
contingency measures are not applicable to the area so long as the area
does not violate the ozone standard.
USEPA emphasizes that these determinations are contingent upon the
continued monitoring and continued attainment and maintenance of the
ozone NAAQS in the affected areas. If a violation of the ozone NAAQS is
monitored in the Grand Rapids and Muskegon areas (consistent with the
requirements contained in 40 CFR part 58 and recorded in AIRS), USEPA
will provide notice to the public in the Federal Register. Such a
violation would mean that the area would thereafter have to address the
requirements of section 182(b)(1) and section 172(c)(9) since the basis
for the determination that they do not apply would no longer exist.
As a consequence of the determinations that the areas have attained
and that the reasonable further progress and attainment demonstration
requirements of section 182(b)(1) and contingency measure requirements
of section 172(c)(9) do not presently apply, the sanctions clocks
started by USEPA as a result of the findings made on January 21, 1994
regarding incompleteness of the section 181(b)(1) 15 percent plans and
172(c)(9) contingency plans are hereby stopped as the deficiency for
which the clocks were started no longer exists.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the State
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
This action will become effective on July 17, 1995. However, if the
USEPA receives adverse comments by July 3, 1995, then the USEPA will
publish a notice that withdraws the action, and will address these
comments in a subsequent final rule on the related proposed rule which
is being published in the proposed rules section of this Federal
Register.
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 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 action's determination does not create any new
requirements, but allows suspension of the indicated requirements.
Therefore, because the approval does not impose any new requirements, I
certify that it does not have a significant impact on any small
entities affected.
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') (signed into law on March 22, 1995) requires that the
Agency prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure by
State, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more in any one year. Section 203 requires
the Agency to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly
or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the Agency must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The Agency must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the Agency explains why
this alternative is not selected or the selection of this alternative
is inconsistent with law.
Because this final rule is estimated to result in the expenditure
by State, local, and tribal governments or the private sector of less
than $100 million in any one year, the Agency has not prepared a
budgetary impact statement or specifically addressed the selection of
the least costly, most cost-effective, or least burdensome alternative.
Because small governments will not be significantly or uniquely
affected by this rule, the Agency is not required to develop a plan
with regard to small governments.
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 1, 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, Nitrogen oxides,
Ozone, Volatile organic compounds, Intergovernmental relations,
Reporting and record keeping requirements.
Authority: 42 U.S.C. 4201-7601q.
Dated: May 18, 1995.
Valdas V. Adamkus,
Regional Administrator.
Part 52, chapter 1, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart X--Michigan
2. Section 52.1174 is amended by adding new paragraph (k) to read
as follows:
* * * * *
Sec. 52.1174 Control strategy: Ozone.
(k) Determination--EPA is determining that, as of July 17, 1995,
the Grand Rapids and Muskegon ozone nonattainment area has attained the
ozone standard and that the reasonable further progress and attainment
demonstration requirements of section 182(b)(1) and related
requirements of section 172(c)(9) of the Clean Air Act do not apply to
the area for so long as the area does not monitor any violations of the
ozone standard. If a violation of the ozone NAAQS is monitored in the
Grand Rapids and Muskegon ozone nonattainment area, these
determinations shall no longer apply.
[FR Doc. 95-13461 Filed 6-1-95; 8:45 am]
BILLING CODE 6560-50-P
