[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31831-31850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15881]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[MI43-03-7258; FRL-5525-4]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Michigan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On April 2, 1996 the Environmental Protection Agency (EPA)
published a proposal to approve the redesignation to attainment and
associated section 175A maintenance plan for the ozone National Ambient
Air Quality Standard (NAAQS) for the two-county Grand Rapids, Michigan
area as a State Implementation Plan (SIP) revision. The 30-day comment
period concluded on May 2, 1996. A total of 1 comment letter was
received in response to the April 2, 1996 proposal. On May 1, 1996, the
EPA published a 14-day partial extension of the comment period on the
redesignation request and section 175A maintenance plan, limited to the
State's April 11, 1996 revision to the section 175A maintenance plan
which was not available in EPA's docket prior to April 15, 1996. The
reopened comment period concluded on May 16, 1996. One additional
comment letter was received in response to the May 1, 1996, extension
of public comment period. This final rule summarizes all comments and
EPA's responses, and finalizes the approval of the redesignation to
attainment for ozone and associated section 175A maintenance plan for
the Grand Rapids area.
EFFECTIVE DATE: This action will be effective June 21, 1996.
ADDRESSES: Copies of the SIP revisions, public comments and EPA's
responses are available for inspection at the following address: (It is
recommended that you telephone Jacqueline Nwia at (312) 886-6081 before
visiting the Region 5 Office.) United States Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Jacqueline Nwia, Regulation
Development Section (AR-18J), Air Programs Branch, Air and Radiation
Division, United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)
886-6081.
SUPPLEMENTARY INFORMATION:
I. Background Information
The redesignation request and maintenance plan for the Grand Rapids
and Muskegon moderate ozone nonattainment areas discussed in this rule
were submitted on March 9, 1995 and May 1, 1995 (with a revision on
April 11, 1996), by the Michigan Department of Environmental Quality
(MDEQ). However, the April 2, 1996 proposal and this final rule address
only the Grand Rapids area, which consists of Kent and Ottawa Counties.
On April 2, 1996, (61 FR 14522) the EPA published a proposal to approve
the redesignation request and associated section 175A maintenance plan
as a revision to the Michigan ozone SIP. On May 1, 1996 (61 FR 19233),
the EPA published a partial 14-day extension of the comment period on
the redesignation request and section 175A maintenance plan, limited to
the State's April 11, 1996 revision to the section 175A maintenance
plan, which was not available in EPA's docket prior to April 15, 1996.
The reopened comment period concluded on May 16, 1996. Adverse comments
were received regarding the proposed rule. The final rule contained in
this Federal Register addresses the comments which were received during
the public comment periods and announces EPA's final action regarding
the redesignation and section 175A maintenance plan for the Grand
Rapids
[[Page 31832]]
area. A more detailed discussion in response to each comment is
contained in the EPA's Technical Support Document (TSD), dated XXX,
1995 from Jacqueline Nwia to the Docket, entitled ``Response to
Comments on the April 2, 1996 Proposal to Approve the Redesignation to
Attainment for Ozone and Section 175A Maintenance Plan for the Grand
Rapids Area,'' which is available from the Region 5 office listed
above.
II. Public Comments and EPA Responses and Final Rulemaking Actions
The following discussion summarizes and responds to the comments
received regarding the redesignation of the Grand Rapids area to
attainment for ozone.
Comment: The commentor requested additional time to review and
provide comments on the proposed redesignation because: the proposal
was contingent on Michigan's submittal of a revision to the section
175A maintenance plan which was not available for public review until
April 15, 1996; the proposed action concerns the public health of many
of the requestor's members; and the proposed action incorporates new
guidance and policy which have broad implications throughout the Lake
Michigan basin and beyond. The commentor requested a minimum of 30 days
beyond the date of Michigan's most recent submittal or May 15, 1996.
Response: EPA extended the public comment period only for those
portions of the redesignation and section 175A maintenance plan
pertaining to Michigan's April 11, 1996 maintenance plan SIP that did
not become available in EPA's docket until April 15, 1996. The 14-day
extension concluded on May 16, 1996. The EPA believes this provides the
commentor with an adequate opportunity to review and submit comments on
the subject of this rulemaking action.
Comment: The commentor notes that the proposed redesignation
violates the specific and general intent of Congress in specifying
requirements for redesignation. The commentor elaborates by stating
that the proposed approval violates redesignation requirements of the
Clean Air Act Amendments of 1990 (Act) by lowering the threshold for
redesignation of these areas by reinterpretation of longstanding
redesignation guidance and granting of waivers and exemptions of
applicable statutory requirements. The waivers granted to the Grand
Rapids area include: waiver from adoption of volatile organic compounds
(VOC) reasonably available control technology (RACT) rules; waiver of
the reasonable further progress (RFP) requirement; waiver of the part D
New Source Review (NSR) requirement and waiver from the adoption of
conformity rules.
Response: At the outset, EPA rejects the contention that its
actions violate the redesignation requirements of the Act. The EPA has
not granted the Grand Rapids area ``waivers,'' or ``exemptions'' from,
nor reinterpreted longstanding guidance pertaining to, RFP requirements
or conformity. The EPA did propose an exception to current policy
regarding the need to adopt certain VOC RACT rules prior to
redesignation and applied the October 14, 1994 memorandum from Mary
Nichols, Assistant Administrator for Air and Radiation entitled ``Part
D New Source Review (part D NSR) Requirements for Areas Requesting
Redesignation to Attainment,'' 1 regarding the requirements for
part D NSR.
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\1\ Hereinafter referred to as ``October 1994 Nichols
memorandum.''
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With respect to the RFP requirement, on July 20, 1995, the EPA made
a determination regarding the applicability of certain RFP and
attainment demonstration requirements. This final rule determined that
since the Grand Rapids area had demonstrated attainment of the ozone
standard, a factual determination based on 3 years of complete quality
assured monitoring data, certain provisions of the Act, whose explicit
purpose is to achieve attainment of the standard, do not require SIP
revisions to be made by the State for so long as the area continues to
attain the standard. Those provisions include RFP, the section
172(c)(9) contingency measures and attainment demonstration. The EPA
believes it is reasonable to interpret provisions regarding 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 explained in a memorandum from John S. Seitz, Director,
Office of Air Quality Planning and Standards, entitled ``RFP,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' dated May 10, 1995,2 EPA believes it is appropriate to
interpret the more specific RFP, attainment demonstration and related
provisions of subpart 2 in the same manner as EPA had previously
interpreted the general provisions of subpart 1 of part D of Title I
(sections 171 and 172).
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\2\ Hereinafter referred to as ``May 1995 Seitz memorandum.''
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EPA has explained at length in other notices, including the July
20, 1995 determination of attainment regarding the Grand Rapids area
(60 FR 37366), its rationale for the reasonableness of that
interpretation of the Act and incorporates those explanations by
reference here. See Approval and Promulgation of Implementation Plans
and Designation of Areas for Air Quality Planning Purposes; Ohio, 61 FR
20458 (May 7, 1996); Determination of Attainment of Ozone Standard for
Salt Lake and Davis Counties, Utah, 60 FR 36723 (July 18, 1995). EPA
emphasizes that it has not suspended or granted the Grand Rapids area
an exemption from any applicable requirements. Rather, EPA has
interpreted the requirements of sections 182(b)(1)(A)(I) and 172(c)(9)
as not being applicable once an area has attained the standard, as long
as it continues to do so. This is not a waiver of requirements that by
their terms clearly apply; it is a determination that certain
requirements are written so as to be operative only if the area is not
attaining the standard.
The May 1995 Seitz memorandum was clear about the consequences of
the policy for redesignations. First, it made plain that a
determination of attainment is not tantamount to a redesignation of an
area to attainment. Attainment is only one of the criteria set forth in
section 107(d)(3)(E). To be redesignated, the State must satisfy all of
the criteria of section 107(d)(3)(E), 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 which meets all of the applicable
section 110 and part D requirements, and a fully approved maintenance
plan.
Upon a determination of attainment, however, the section
182(b)(1)(A)(I) requirements of RFP and attainment plans, and the
section 172(c)(9) requirement of contingency plans are no longer
considered applicable requirements under section 107(d)(3)(E). They
would no longer be included among those measures whose approval is part
of the requirement of having a fully approved SIP.
EPA is not diluting the redesignation requirements of section
107(d). What EPA has done is make a determination that since the area
is attaining the standard, which is a factual determination, certain
provisions of the
[[Page 31833]]
Act, whose express purpose is to achieve attainment of the standard, do
not require SIP revisions to be made by the State for so long as the
area continues to attain the standard. This has long been EPA's policy
with respect to the section 172(c)(9) contingency measures and section
172(c)(2) RFP requirement. See general preamble at 57 FR 13498. EPA has
also made determinations regarding section 182(f) NOX waivers at
or before the redesignation of an area and therefore not required
NOX RACT submissions to approve such redesignations. See the Bay
Area redesignation at 59 FR 49361 and Detroit-Ann Arbor redesignation
at 60 FR 12459.
EPA's statutory analysis was explained in detail in the July 20,
1995 final rulemaking and in the May 1995 Seitz memorandum. To the
extent here pertinent, such portions of that notice, including the
responses to comments, are incorporated herein by reference.
Thus, EPA disagrees with the commentors' view that EPA is not
complying with all the redesignation requirements of section
107(d)(3)(E). EPA has interpreted SIP submission requirements of
section 182(b)(1) regarding reasonable further progress and attainment
demonstration plans, and of section 172(c)(9) regarding contingency
measures to be implemented in the event an area fails to make
reasonable further progress or attain the standard by the attainment
date, not to apply for so long as the area continues to attain the
standard. Since they are not applicable, fulfillment of these
requirements is not necessary to meet the redesignation criteria of
section 107(d)(3)(E).
The commentor challenges EPA's authority to determine certain SIP
requirements inapplicable, and then bootstraps that argument to
complain that since Grand Rapids has not met these requirements, the
redesignation request only partially fulfills section 107(d)(E)(v). The
commentor argues that this is because the State has not met all
``applicable'' requirements under section 110 and part D; but the
requirements it points to are the very ones that EPA has determined are
inapplicable.
EPA rejects this kind of circular argument. Since EPA has
determined that the statute does not require certain submissions so
long as the area is in attainment, those inapplicable requirements
cannot serve as the basis for concluding that the redesignation request
is defective. Under the criteria of section 107(d)(E)(3) itself, a
State need only meet all applicable requirements, and have a fully
approved plan that contains all required elements. Thus EPA's
interpretation is fully consistent with the criteria of section
107(d)(3). Since EPA has determined that the 15 percent, attainment
demonstration, and section 172(c)(9) contingency plan requirements are
not applicable to Grand Rapids, and has found the SIP to be fully
approvable without them, the Grand Rapids area has fairly met the
criteria of section 107(d)(3). Certainly EPA, after determining that
these requirements are inapplicable, could not in good faith conclude
that the redesignation request is defective because it fails to meet
them.
Thus EPA concludes that, where it has made a determination of
attainment that results in the suspension of requirements, it may rely
on that determination and its consequences in considering the
approvability of a redesignation request.
For the reasons stated above and elsewhere in this document, in the
July 20, 1995 Federal Register notice (60 FR 37366) pertaining to the
Grand Rapids area, in the May 1995 Seitz memorandum, in the Utah notice
(60 FR 36723, July 18, 1995) and in the Cleveland-Akron-Lorain notice
(May 7, 1996, 61 FR 20468), EPA does not believe that the rulemaking
violates any section of the Act, nor does it dilute the redesignation
requirements under section 107(d)(3)(E).
With respect to the full adoption of VOC RACT rules, it should
first be noted that Michigan has submitted and EPA has approved all of
the sections 182(b)(2)(B) and 182(b)(2)(C) VOC RACT requirements
applicable to the Grand Rapids area on September 7, 1994 (59 FR 46182)
and October 23, 1995 (60 FR 54308). Therefore, the EPA assumes that the
commentor is concerned about the section 182(b)(2)(A) requirement of
the Act which requires States to develop VOC RACT rules for sources
``covered by a CTG document issued by the Administrator between
November 15, 1990, and the date of attainment'' for moderate and above
ozone nonattainment areas. The EPA has not granted the Grand Rapids
area a ``waiver'' or ``exemption'' from this requirement either. In
fact, EPA's proposed rulemaking action acknowledges the applicability
of these rules in light of current EPA guidance (See ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' from John
Calcagni, Director, Air Quality Management Division, dated September 4,
1992),3 since the due date for the CTG RACT rules at issue
preceded the submission of the redesignation request, and consequently,
generally require full adoption, submission and approval of these rules
prior to approval of the redesignation request.4
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\3\ Hereinafter referred to as ``September 1992 Calcagni
memorandum.''
\4\ The EPA also notes that the Synthetic Organic Chemical
Manufacturing (SOCMI) Distillation and Reactor CTG was issued on
November 15, 1993, prior to the submission of the Grand Rapids
redesignation request. That CTG, however, established a due date for
State submittal of the SOCMI Distillation and Reactor rules of March
23, 1995 (See March 23, 1994, 59 FR 13717), a date after submission
of a request to redesignation Grand Rapids to attainment. Thus,
those rules are not applicable for purposes of this redesignation.
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The EPA does, however, believe that in the context of the
particular circumstances of this redesignation, that it is reasonable
and permissible to depart from that policy and instead accept a
commitment to implement these RACT rules as contingency measures in the
maintenance plan rather than require full adoption and approval of the
rules prior to approval of the redesignation. The reasons justifying
this departure from EPA's general policy were explained in the proposed
action and are presented below.
EPA believes that several factors in combination justify allowing
this exception to current EPA policy with respect to the Grand Rapids
redesignation. First, the RACT rules at issue came due after the end of
the ozone season in which Grand Rapids attained the standard and were
not needed to bring about attainment of the ozone standard in Grand
Rapids. Second, the State has demonstrated continued maintenance of the
ozone standard through 2007 without the implementation of these
measures. Third, the State has placed other contingency measures in the
maintenance plan that would bring about far greater emission reductions
than the VOC RACT rules and would therefore be substantially more
effective in terms of correcting violations attributable to local
emissions from the Grand Rapids area that may occur after
redesignation. EPA's analysis of the emission reductions shows that the
implementation of enhanced inspection and maintenance (I/M), Stage II
or low Reid Vapor Pressure (RVP) (to 7.8 psi) programs would bring
about greater reductions than VOC RACT rules for wood furniture
coating, plastic parts coating and industrial clean-up solvents in
aggregate, and substantially greater reductions than any of these RACT
rules individually. Consequently, EPA believes that the other, more
effective contingency measures, should and
[[Page 31834]]
would be implemented first even if the RACT rules were to be fully
adopted prior to redesignation. The detailed analysis of these emission
reduction estimates is contained in the TSD for the proposed rulemaking
action dated March 20, 1996 entitled ``TSD for the Request to
Redesignate the Grand Rapids, Michigan Moderate Nonattainment Area to
Attainment for Ozone and Proposed Revision to the Michigan Ozone SIP
for a Section 175A Maintenance Plan'' and TSD for this action dated XX,
1996, entitled ``Response to Comments on the April 2, 1996 Proposal to
Approve the Redesignation to Attainment for Ozone and Section 175A
Maintenance Plan for the Grand Rapids Area.''
EPA emphasizes that even under this departure from its policy
regarding this action, the requirement for these RACT rules remains an
applicable requirement for purposes of evaluating the redesignation
request since it predated the submission of the request. The
requirement, however, is met in the form of the submission and full
approval of a commitment to adopt and implement these rules as
contingency measures in the maintenance plan. (Under EPA's existing
policy, contingency measures in maintenance plans may consist of
commitments to adopt and implement measures upon a violation of the
standard. See September 1992 Calcagni Memorandum.)
EPA further notes that even without this exception to its general
policy, the State would have been able to have the RACT rules become a
part of the contingency measures in the maintenance plan upon approval
of the redesignation. That could have occurred only after or upon EPA's
full approval of the adopted RACT rules, however. Thus, the only
difference between EPA's general policy and the exception to that
policy described in this action is that a commitment to adopt and
implement the RACT rules in an expeditious manner, rather than fully-
adopted RACT rules, would be among the contingency measures in the
maintenance plan. In light of the combination of factors discussed
above, including in particular the inclusion of other, significantly
more effective, contingency measures in the maintenance plan, EPA
believes that this difference has no significant environmental
consequence and that it is permissible to approve the Grand Rapids
redesignation on this basis. The EPA believes that this exception to
its general policy is legally permissible under the statutory
provisions governing redesignations. As noted above, the VOC RACT
requirements remain applicable requirements under section 107 and EPA
believes that their treatment in the contingency plan as commitments is
consistent with the manner in which EPA has accepted other commitments
to adopt and implement contingency measures in maintenance plans under
section 175A.
The EPA believes that the Grand Rapids area may be redesignated to
attainment notwithstanding the lack of a fully-approved part D NSR
program meeting the requirements of the 1990 Act amendments and the
absence of such a part D NSR program from the contingency plan. This
view has been set forth by the EPA as its policy in the 1994 Nichols
memorandum.
The EPA believes that its decision not to insist on a fully-
approved part D NSR program as a pre-requisite to redesignation is
justifiable as an exercise of the Agency's general authority to
establish de minimis exceptions to statutory requirements. See Alabama
Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under
Alabama Power, Co. v. Costle, the EPA has the authority to establish de
minimis exceptions to statutory requirements where the application of
the statutory requirements would be of trivial or no environmental
value. See also EDF v. EPA, Nos. 94-1044 and 94-1062, Slip Op. at 28-29
(D.C. Cir. April 19, 1996).
Plainly, the part D NSR provisions of section 110 and part D are
requirements that were applicable to the Grand Rapids area at the time
of the submission of the request for redesignation. Thus, on its face,
section 107(d)(3)(E) would seem to require that the State have
submitted and the EPA have fully-approved a part D NSR program meeting
the requirements of the Act before the areas could be redesignated to
attainment.
Under the EPA's de minimis authority, however, it may establish an
exception to an otherwise plain statutory requirement if its
fulfillment would be of little or no environmental value. In this
context, it is necessary to determine what would be achieved by
insisting that there be a fully-approved part D NSR program in place
prior to the redesignation of the Grand Rapids area. For the following
reasons, the EPA believes that requiring the adoption and full-approval
of a part D NSR program prior to redesignation would not be of
significant environmental value in this case.
The Grand Rapids area has demonstrated that maintenance of the
ozone NAAQS will occur even if the emission reductions expected to
result from the part D NSR program do not occur. The emission
projections to demonstrate maintenance of the NAAQS considered growth
in point source emissions (along with growth for other source
categories) and were premised on the assumption that the Prevention of
Significant Deterioration (PSD) program, rather than the part D NSR,
would be in effect, during the maintenance period. Under part D NSR,
significant point source emissions growth would not occur. Michigan
assumed that part D NSR would not apply after redesignation to
attainment and instead assumed source growth factors based on projected
growth in the economy and in the area's population. (It should be noted
that the growth factors assumed may be overestimates under PSD, which
would restrain source growth through the application of best available
control techniques.) Thus, Michigan has demonstrated that there is no
need to retain the part D NSR as an operative program in the SIP during
the maintenance period to provide for continued maintenance of the
ozone NAAQS.
The other purpose that requiring the full-approval of a part D NSR
program might serve would be to ensure that part D NSR would become a
contingency provision in the maintenance plan required for these areas
by sections 107(d)(3)(E)(iv) and 175A(d). These provisions require
that, for an area to be redesignated to attainment, it must receive
full approval of a maintenance plan containing ``such contingency
provisions as the Administrator deems necessary to assure that the
State will promptly correct any violation of the standard which occurs
after the redesignation of the area as an attainment area. Such
provisions shall include a requirement that the State will implement
all measures with respect to the control of the air pollutant concerned
which were contained in the SIP for the area before redesignation of
the area as an attainment area.'' Based on this language, it is
apparent that whether an approved part D NSR program must be included
as a contingency provision depends on whether it is a ``measure'' for
the control of the pertinent air pollutants.
The term ``measure'' is not defined in section 175A(d) and Congress
utilized that term differently in different provisions of the Act with
respect to the part C PSD and part D NSR permitting programs. For
example, in section 110(a)(2)(A), Congress required that SIPs include
``enforceable emission limitations and other control measures, means,
or techniques * * * as may be necessary or appropriate to meet the
applicable requirements of the Act.'' In section 110(a)(2)(C), Congress
required
[[Page 31835]]
that SIPs include ``a program to provide for the enforcement of the
measures described in subparagraph (A), and regulation of the
modification and construction of any stationary source within the areas
covered by the plan as necessary to assure that NAAQS are achieved,
including a permit program as required in parts C and D.'' (Emphasis
added.) If the term measures as used in sections 110(a)(2) (A) and (C)
had been intended to include part C PSD and part D NSR there would have
been no point to requiring that SIPs include both measures and
preconstruction review under parts C and D (PSD or NSR). Unless
``measures'' referred to something other than preconstruction review
under parts C and D, the reference to preconstruction review programs
in section 110(a)(2)(C) would be rendered mere surplusage. Thus, in
sections 110(a)(2) (A) and (C), it is apparent that Congress
distinguished ``measures'' from preconstruction review. On the other
hand, in other provisions of the Act, such as section 161, Congress
appeared to include PSD within the scope of the term ``measures.''
The EPA believes that the fact that Congress used the undefined
term ``measure'' differently in different sections of the Act is
germane. This indicates that the term is susceptible to more than one
interpretation and that the EPA has the discretion to interpret it in a
reasonable manner in the context of section 175A. Inasmuch as Congress
itself has used the term in a manner that excluded part C PSD and part
D NSR from its scope, the EPA believes it is reasonable to interpret
``measure,'' as used in section 175A(d), not to include part D NSR.
That this is a reasonable interpretation is further supported by the
fact that PSD, a program that is the corollary of part D NSR for
attainment areas, goes into effect in lieu of part D NSR.5 This
distinguishes part D NSR from other required programs under the Act,
such as inspection and maintenance and RACT programs, which have no
corollary for attainment areas. Moreover, the EPA believes that those
other required programs are clearly within the scope of the term
``measure.'' 6
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\5\ The EPA is not suggesting that part D NSR and prevention of
significant (PSD) are equivalent, but merely that they are the same
type of program. The PSD program is a requirement in attainment
areas and designed to allow new source permitting, yet contains
adequate provisions to protect the NAAQS. If any information
including preconstruction monitoring, indicates that an area is not
continuing to meet the NAAQS after redesignation to attainment, 40
CFR 51 appendix S (Interpretive Offset Rule) or a 40 CFR 51.165(b)
program would apply. The EPA believes that in any area that is
designated or redesignated as attainment under section 107, but
experiences violations of the NAAQS, these provisions should be
interpreted as requiring major new or modified sources to obtain VOC
emission offsets of at least a 1:1 ratio, and as presuming that 1:1
oxides of nitrogen (NOX) offsets are necessary. See October
1994 Nichols memorandum.
\6\ The EPA also notes that in the case of the Michigan area,
all permits to install for major offset sources and major offset
modifications issued by the State in the moderate nonattainment
areas since November 15, 1992 have complied with the 1.15 to 1.0
offset ratio. In addition, permits to install cannot be issued under
the PSD program unless the applicant can demonstrate that the
increased emissions from the new or modified source will not result
in a violation of the NAAQS. Michigan's Rule 702, which is part of
the SIP, requires the installation of Best Available Control
Technology regardless of size or location of all new and modified
sources in the State. In addition, Michigan's Rule 207, also
approved in the SIP, requires denial of any permit to install if
operation of the equipment will interfere with attainment or
maintenance of the NAAQS.
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The EPA's logic in treating part D NSR in this manner does not mean
that other applicable part D requirements, including those that have
been previously met and previously relied upon in demonstrating
attainment, could be eliminated without an analysis demonstrating that
maintenance would be protected. As noted above, Michigan has
demonstrated that maintenance would be protected with PSD in effect,
rather than part D NSR. Thus, the EPA is not permitting part D NSR to
be removed without a demonstration that maintenance of the standard
will be achieved. Moreover, the EPA has not amended its policy with
respect to the conversion of other SIP elements to contingency
provisions, which is that they may be converted to contingency
provisions only upon a showing that maintenance will be achieved
without them being in effect. Finally, as noted above, the EPA believes
that the part D NSR requirement differs from other requirements, and
does not believe that the rationale for the part D NSR exception
extends to other required programs.
As noted above, this change in policy was detailed in the October
1994 Nichols memorandum 7. The position taken in this action is
consistent with the EPA's current national policy detailed in the
October 1994 Nichols memorandum. That policy permits redesignation to
proceed without otherwise required part D NSR programs having been
fully approved and converted to contingency provisions provided that
the area demonstrates, as has been done in this case, that maintenance
will be achieved with the application of PSD rather than part D NSR.
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\7\ Which has been applied in other areas such as Detroit,
Michigan, Preble, Columbiana, Clinton, Youngstown, Columbus, Canton,
Cleveland, Toledo and Dayton, Ohio.
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The EPA has not ``waived'' the requirement for adoption and
implementation of conformity regulations. Rather, EPA has determined
that those requirements will continue to apply after the area is
redesignated, and therefore need not be fulfilled as a condition of
redesignation. The State of Michigan, in fact, has submitted
transportation and general conformity SIP revisions on November 24,
1994 and November 29, 1994, respectively. The issue is full approval of
these rules prior to redesignation. As presented in the April 2, 1996
(61 FR 14522) proposal, the EPA believes that it is reasonable to
interpret the conformity requirement as not being applicable for
purpose of redesignation under section 107(d). The rationale for this
is based on a combination of two factors. First, the requirement to
submit SIP revisions to comply with the conformity provisions of the
Act continue to apply to areas after redesignation to attainment, since
such areas would be subject to a section 175A maintenance plan.
Therefore, the State remains obligated to adopt the transportation and
general conformity rules even after redesignation and would risk
sanctions for failure to do so. While a redesignation of an area to
attainment enables the area to avoid further compliance with most
requirements of section 110 and part D, since those requirements are
linked to the nonattainment status of an area, the conformity
requirements apply to both nonattainment and maintenance areas. Second,
EPA's federal conformity rules require the performance of conformity
analyses in the absence of state-adopted rules. Therefore, a delay in
adopting State rules does not relieve an area from the obligation to
implement conformity requirements.
Because areas are subject to the conformity requirements regardless
of whether they are redesignated to attainment and must implement
conformity under Federal rules if State rules are not yet adopted, the
EPA believes it is reasonable to view these requirements as not being
applicable requirements for purposes of evaluating a redesignation
request.
For the reasons just discussed, the EPA believes that the ozone
redesignation request for the Grand Rapids area may be approved
notwithstanding the lack of fully approved State transportation and
general conformity rules. This policy was also exercised in the Tampa,
Florida and Cleveland-Akron-Lorain ozone redesignations finalized on
[[Page 31836]]
December 7, 1995 (60 FR 52748) and May 7, 1996 (61 FR 20458),
respectively.
According to the Federal transportation and general conformity
rules, conformity applies to nonattainment areas as well as maintenance
areas. Once redesignated, the Grand Rapids area will be a maintenance
area and will be required to conduct emission analyses to determine
that the VOC and NOX emissions remain below the motor vehicle
emission budget established in the maintenance plan. The Conformity
General Preamble to the conformity regulations further clarifies this
issue, particularly as it pertains to areas requesting and obtaining a
section 182(f) NOX exemption. Michigan has established a motor
vehicle emission budget for NOX in the area's maintenance plan.
Comment: The commentor notes that between December 1, 1990 and June
1, 1995, EPA has redesignated 54 areas from nonattainment to
attainment. Several of these redesignated areas, such as Kansas City,
Kansas/Missouri, Detroit, Michigan, San Francisco, California,
Charlotte, North Carolina; Huntington-Ashland, West Virginia/Kentucky
violated the ozone standard after redesignation. The commentor states
that the EPA's ``permissive'' SIP revision requirements for these areas
made future violations inevitable and ensure that inadequate
contingency measures are adopted. The commentor also notes that the
Grand Rapids and Muskegon areas observed 5 exceedances each after
receiving a determination of attainment.
Response: To date the EPA has redesignated a total of 41 areas
8 to attainment for ozone. Of these areas, only 4, Detroit,
Michigan, Memphis, Tennessee, San Francisco, California, and Kansas
City, Kansas-Missouri, subsequently violated monitored violations of
the ozone standard. EPA believes that this, in fact, demonstrates that
for the vast majority of instances the redesignation policy is
appropriate since most of the redesignated areas have not violated the
ozone NAAQS to date. Furthermore, the Act and Congress contemplated
that such events may occur and therefore, required that the
Administrator fully approve a maintenance plan for the area consistent
with the requirements of section 175A before the area can be
redesignated to attainment. Section 107(d)(3)(E)(iv). Section 175A(d)
requires that a maintenance plan contain contingency provisions deemed
necessary by the Administrator to assure that the State will promptly
correct a violation of the standard which occurs after the
redesignation of the area to attainment. Clearly, the Act and Congress
anticipated that areas redesignated to attainment may violate the NAAQS
in the future and ensured that control measures to remedy the violation
are available. Areas redesignated to attainment have approved
maintenance plans with contingency measures that are and will be
implemented in order to address the violations monitored in the area
after redesignation. The maintenance plans for these areas were deemed
appropriate and adequate for purposes of addressing a future violation
as they were fully approved into the area's SIPs. Furthermore, if the
contingency measures implemented by the State do not address future
violations of the NAAQS, EPA has the authority to call for a plan
revision requiring the adoption of additional control measures and/or
redesignate the area to nonattainment which in turn would require the
area to adopt and implement additional control measures appropriate for
its classification. See sections 110(k)(5) and 107(d)(3).
---------------------------------------------------------------------------
\8\ This includes 28 classified and 13 nonclassified areas. The
28 classified areas include the Ohio portion of the Youngstown-
Warren-Sharon area.
---------------------------------------------------------------------------
With respect to the adequacy of the maintenance plan for Grand
Rapids, the EPA would like to note that all aspects of the maintenance
plan were reviewed and deemed appropriate. The commentor does not
provide any specific arguments to support the comment.
For clarification purposes, the number of exceedances cited by the
commentor is the total number of exceedances monitored in the Grand
Rapids area and Muskegon area. The Grand Rapids area monitored one
exceedance at each of the three monitors located within the two-county
area in 1995. Taken into account with the previous two years, 1994 and
1993, the Grand Rapids area continues to demonstrate attainment of the
ozone NAAQS with a number of expected exceedances less than or equal to
1.0.
Comment: The commentor states that the April 2, 1996 proposal
jeopardizes the efforts currently being undertaken by the Ozone
Transport Assessment Group (OTAG).
Response: The commentor's statement is unsupported. In the April 2,
1996 proposal, the EPA specifically stated that the redesignation of
the Grand Rapids area to attainment in no way removes the State's
obligation to get further reductions in emissions to address the
broader transport phenomenon currently being investigated as part of
the OTAG process. The issue of transported ozone and ozone precursors
is being addressed by the OTAG which is composed of industry,
environmental groups and Federal, State and local governments from the
eastern part of the United States. The Lake Michigan States of
Illinois, Indiana, Wisconsin and Michigan are all participating, at
some level, in the OTAG process (Phase I/Phase II attainment
demonstrations as provided for in the March 2, 1995 memorandum from
Mary Nichols, Assistant Administrator for Air and Radiation, entitled
``Ozone Attainment Demonstrations''). Phase II of this analysis will
assess the need for regional control strategies and refine local
control strategies. Phase II will also provide the States and EPA the
opportunity to determine appropriate regional strategies to resolve
transport issues including any impacts the Grand Rapids area may have
on ozone concentrations in its downwind areas. The EPA has the
authority under sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to
require emission reductions where appropriate based on the results of
this effort or any other relevant information.
Comment: The commentor stated that exempting ozone nonattainment
areas from compliance with part D NSR regulations presents special
problems since PSD and preconstruction review rules ``do not fully
address how emissions of ozone precursors should be treated to assure
that major new or modified sources do not cause or contribute to a
NAAQS violation.'' In addition, the commentor contends that the Alabama
Power Co. v. Costle 9 court cautioned that ``to exempt de minimis
situations from a statutory command is not an ability to depart from
the statute, but rather a tool to be used in implementing the
legislative design.''
---------------------------------------------------------------------------
\9\ EPA's policy to redesignate areas notwithstanding the
absence of fully adopted and approved part D NSR SIP is based, in
part, on EPA's authority to establish de minimis exceptions to
statutory requirements when the requirement would be of trivial or
no value environmentally under the Alabama Power Co. v. Costle court
decision.
---------------------------------------------------------------------------
Response: EPA emphasizes that contrary to the commentor's
contention, ozone nonattainment areas are not exempt from compliance
with part D NSR regulations. The October 1994 Nichols memorandum
suggests that areas that are otherwise eligible for redesignation need
not have a fully approved part D NSR program as a prerequisite to
redesignation since the part C PSD program would apply once the area
has been redesignated to attainment. The part D NSR program
[[Page 31837]]
requirements apply to the area until the area is redesignated to
attainment.
The October 1994 Nichols memorandum's statement that EPA
regulations (40 CFR 51.165(b)(3) and appendix S) ``do not fully address
how ozone precursor emissions should be treated to ensure that major
new or modified sources do not cause or contribute to an ozone NAAQS
violation'' is based on the difficulty in modeling the impact of
emissions from specific sources on ozone formation. The policy,
however, also states that for areas with preconstruction monitoring or
other information that indicate that the area is not meeting the ozone
standard after redesignation to attainment, Appendix S or 40 CFR
51.165(b) apply. These areas should then require major new or modified
sources to obtain VOC emission offsets of at least 1:1 ratio. In
addition, the PSD program allows BACT in place of LAER if the less
stringent control technology can be justified based on an economic,
energy and environmental impacts analysis. Consequently, the State may
impose a more stringent level of control other than what may be
selected as BACT in an area redesignated to attainment but not meeting
the NAAQS. With these elements, the preconstruction review programs can
assure that major new or modified sources achieve the statutory goals
of part D NSR.
With respect to the cautions of the Costle court of the Alabama
Power decision, EPA believes that the exercise of its de minimis
authority in this instance is fully consistent with them. EPA is using
its authority to facilitate the implementation of the statute and the
legislative design behind it. EPA also notes that the D.C. Circuit, the
court that decided the Alabama Power case, recently decided another
case upholding EPA's exercise of its de minimis authority under the
Act. Referring to EPA's authority to create de minimis exceptions as
being inherent in the statutory scheme, the court stated that ``the
same deference due to an agency's reasonable interpretation of an
ambiguous statute may also be due to an agency's creation of a de
minimis exception.'' EDF v. EPA, Nos. 94-1044 and 94-1062, Slip Op. at
28-29 (D.C. Cir. April 19, 1996).
Comment: The commentor contends that the EPA cannot use the May
1995 Seitz memorandum to substitute its own criteria for redesignation
over congressional instruction. The commentor rationalizes that the
part D requirements are defined by the nonattainment or attainment
designation of an area. The EPA, therefore, does not have the
``authority to modify the operation of the Act, and substitute its own
judgement for that of Congress.'' Furthermore, SIP requirements are
joined to the classification of a nonattainment area (see sections 182
and 181).
Response: The May 1995 Seitz memorandum does not substitute EPA's
criteria for congressional instruction. Instead, the May 1995 Seitz
memorandum presents EPA's interpretation of the statutory language of
the Act regarding RFP and related provisions as they relate to areas
demonstrating attainment of the ozone NAAQS.
With respect to the commentor's statement that SIP requirements are
joined to the classification of a nonattainment area, the EPA would
note that the commentor is equating the designation of an area as
attainment or nonattainment with the fact finding of whether an area is
attaining the standard, regardless of its designation. EPA believes
that these are two distinct issues. Title I of the Act, including part
D, contains provisions that distinguish between the concept of
attainment of a NAAQS shown through monitoring data, and an area's
designation as attainment or nonattainment.
The fact that only one of the five criteria for redesignation of a
nonattainment area to attainment is the determination that the area
``has attained the national ambient air quality standard,''
demonstrates that section 107(d)(3)(E)(I) itself recognizes this
distinction. Clearly, the Act anticipates there will be areas
designated nonattainment that are attaining the standard, that there
could be a nonattainment area that meets the air quality criterion for
redesignation to attainment without satisfying the other criteria. Such
an area would need to remain designated nonattainment even though it
was attaining the standard.
In addition, the distinction between attaining the standard and the
designation of an area as attainment or nonattainment is again
demonstrated in the part D provision of section 182(f), which
authorizes EPA to waive the NOX reduction requirements that apply
to ozone nonattainment areas if EPA determines that the NOX
reductions would ``not contribute to attainment of the'' ozone NAAQS.
This provision has been applied on numerous occasions to waive NOX
emission reduction requirements for areas that have attained the
standard, since such reductions in areas that have already attained the
standard would not contribute to attainment. Thus, this provision
clearly contemplates that areas designated nonattainment that have
attained the standard may have certain specified requirements waived.
In conclusion, the Act does not equate the factual issue of whether
an area is attaining the standard with the area's designation status as
attainment or nonattainment. It explicitly expects situations in which
areas designated nonattainment may be attaining the standard. Thus, the
definition of ``nonattainment area'' in section 171(2), which provides
that, for purposes of part D, a nonattainment area means an area that
``is designated ``nonattainment'' with respect to [a particular]
pollutant within the meaning of section 107(d)'' does not contradict
EPA's interpretation of the language of section 171(1) defining ``RFP''
requirements in terms of reductions for the purpose of ``ensuring
attainment.''
EPA believes that, in general, the classification of an area
designated nonattainment for ozone determines the set of requirements
of subpart 2 to which the area is subject.
The issue becomes the substance of some of those requirements. In
general, section 182(b)(1) and section 172(c)(9) apply to moderate
ozone nonattainment areas. EPA, however, has interpreted section
182(b)(1) and 172(c)(9) such that additional SIP submission
requirements are not necessary for an area classified as a moderate
ozone nonattainment area that is attaining the ozone standard, for so
long as the area continues to attain the standard. This is not a waiver
of the requirement that by their terms clearly apply; it is a
determination that certain requirements are written so as to be
applicable only if the area is not attaining the standard. If prior to
the redesignation of such an area to attainment, the area violated the
ozone NAAQS, that determination would no longer apply. That area will
once again be faced with an obligation to submit SIP revisions pursuant
to sections 172(c)(9) and 182(b)(1).
Finally, other requirements of part D that are not written in such
a way continue to apply solely by virtue of the area's classification
and designation as a moderate ozone nonattainment area. For example,
the VOC RACT requirement of section 182(a)(2) applies regardless of
whether an area is attaining the standard. Similarly, the requirements
of part D new source review continue to apply to areas designated
nonattainment solely by virtue of their continuing nonattainment
designation.
Comment: The Administrative Procedures Act (APA) requires that
``substantive rules of general applicability'' be subjected to public
comment before promulgation. EPA's
[[Page 31838]]
guidance interpreting section 107(d)(3)(E) requirements constitutes
substantive rules of general applicability and thus, required to be
subjected to public comment.
Response: EPA's reference to and reliance on guidance documents
interpreting section 107(d)(3)(E),10 all of which are either
published or publicly available and a part of the record of the July
20, 1995 rulemaking and this rulemaking, is in no way illegal under
provisions of either the Act or the APA. The commentor cites the APA's
requirement that ``substantive rules of general applicability'' be
published in the Federal Register and subject to public comment before
promulgation. These documents do not purport to be anything but
guidance. That is precisely why EPA performed the July 20, 1995
rulemaking, and this rulemaking action, a notice and comment rulemaking
to take comment on its statutory interpretations and factual
determinations in order to make a binding and enforceable determination
regarding the Grand Rapids area. The April 2, 1996 notice referred to
EPA's policy memorandum not as binding the Agency to adopt the
interpretations being proposed therein, but rather as useful
descriptions of rationale underlying those proposed interpretations.
EPA has explained the legal and factual basis for its rulemaking in the
April 2, 1996 rulemaking and afforded the public a full opportunity to
comment on EPA's proposed interpretation and determination fully
consistent with the applicable procedural requirements of the APA.
---------------------------------------------------------------------------
\10\ It is presumed that the commentor is referring to such
documents as the October 1994 Nichols, May 1995 Seitz, and September
1992 Calcagni memoranda as well as the General Preamable (April 16,
1992, 57 FR 13498).
---------------------------------------------------------------------------
Comment: The 1993 Nichols and 1995 Seitz memoranda are inconsistent
with earlier redesignation guidance (General Preamble, Calcagni and
Shapiro memoranda) pertaining to required SIP revisions for
redesignations.
Response: The October 1994 Nichols memorandum and the May 1995
Seitz memorandum represented modifications of earlier policies. That
does not necessarily mean these memoranda were by any means completely
inconsistent with prior policies. For example, the May 1995 Seitz
memorandum interpreted the more specific RFP requirements of section
182(b)(1) in a manner consistent with EPA's previous interpretation of
the more general section 171 and 172 requirements. Furthermore, EPA
notes that it is permissible to revise its policies provided that the
revised policies, as is the case with these, are legally justified and
reasonable.
Comment: The commentor contends that ozone remains a significant
public health threat in Grand Rapids since it fails to demonstrate
attainment of the ozone NAAQS. The commentor proceeds to discuss an
analysis of eight hour ozone concentration averages in the Grand Rapids
Consolidated Metropolitan Statistical Area for 1995. The commentor
states that on 26 days at least one monitor recorded ozone
concentrations at or above 80 parts per billion (ppb) and represent
days when at-risk populations were exposed to unhealthy levels of air
pollution. The commentor states that by examining ground level wind
directions and speeds and comparing results of monitors upwind (Jenison
or Parnell) from Grand Rapids to downwind observations (Parnell or
Jenison), the commentor has determined that 18 of these episodes
indicate that local emissions significantly exacerbate the formation of
unhealthy levels of ozone.
Response: The EPA determines attainment and nonattainment based on
the current NAAQS of 0.12 parts per million (ppm) not 80 ppb.
Therefore, the EPA must evaluate the eligibility for redesignation on
the basis of the current, health based standard. The EPA agrees with
the commentor's contention that ozone and ozone precursor emissions
from the Grand Rapids urbanized area may contribute to ozone
concentrations in downwind areas (downwind areas are relative to wind
directions) by virtue of the fact that the area is an urbanized area.
Nonetheless, the Grand Rapids area has demonstrated attainment of the
current ozone NAAQS in the three year period 1992-1994, and continues
to demonstrate attainment for the period 1993-1995.
The EPA evaluated the winds on July 13, 1995, where exceedances of
the ozone NAAQS were recorded at all 3 monitors in the Grand Rapids
area: Jenison at 0.133 ppm; Grand Rapids at 0.163 ppm; and Parnell at
0.134 ppm. Given that the winds were predominantly from the southwest
and west/southwest, one would deduce that the exceedances were a result
of ozone transport into the area. This is especially likely in view of
the fact that the Jenison monitor, which is the Grand Rapids upwind
monitor,11 recorded an ozone concentration of 0.133 ppm.
---------------------------------------------------------------------------
\11\ An upwind monitor would indicate background levels of ozone
entering an area.
---------------------------------------------------------------------------
Comment: The commentor acknowledges that emissions from the
Milwaukee-Chicago-Gary corridor were transported north out of the basin
on June 16, 1994, under high south/south-southeasterly winds. However,
the commentor attributes an exceedance recorded in Grand Rapids on June
17, 1994, at a level of 149 ppb, to emissions from the Grand Rapids
area since winds were still to light.
Response: The EPA acknowledges that local emissions, those from the
Grand Rapids urbanized area, may affect ozone concentrations in the
area and any downwind area. However, the extent of any contribution to
ozone levels from the Grand Rapids area cannot be determined with any
degree of certainty based on the information provided by the commentor,
particularly in light of indications that the Grand Rapids area is the
recipient of significant levels of transported ozone. Regardless of its
origin, this exceedance does not constitute a violation of the ozone
NAAQS. Thus, the area continues to be eligible for redesignation based
on monitoring data showing no violations of the ozone NAAQS for the
periods 1992-1994 and 1993-1995.
Comment: The commentor suggests that the 1992-1994 period cannot be
used to demonstrate improvements in air quality due to permanent and
enforceable emission reductions. Otherwise, the Chicago-Milwaukee-Gary
severe-17 ozone nonattainment area could be downgraded to moderate
ozone nonattainment. The commentor also alludes to the Detroit's
assessment of contingency measures necessary to reduce domain-wide
peaks in Tiverton, Ontario (Canada) below 200 ppb.
Response: The November 6, 1991 (56 FR 56694) classifications served
to determine a control strategy adequate to achieve emissions
reductions that would improve the air quality in an area to a level
that would demonstrate attainment of the NAAQS. Consequently as an area
implemented its control strategy it is anticipated that the air quality
would continually improve until the area demonstrated attainment of the
NAAQS. Upon demonstration of attainment, an area could request
redesignation pursuant to section 107(d)(3) of the Act. The EPA has not
allowed any area to reclassify based on 1992-1994 monitoring data or
any other data sets outside of the data sets used in the November 1991
designations and classifications. Furthermore, pursuant to the General
Preamble (April 16, 1992, 57 FR 13498), it is appropriate to
redesignate any area to attainment based on the most recent consecutive
3 years of air quality data demonstrating attainment of the ozone NAAQS
if the area satisfies the other redesignation criteria of section
107(d)(3)(E) including a demonstration that the improvement
[[Page 31839]]
in air quality was due to permanent and enforceable emission
reductions. Since the Grand Rapids area demonstrated attainment of the
ozone NAAQS in the period 1992-1994, it is an appropriate period to be
used as the basis for redesignation of the area to attainment
particularly since the area has also satisfied the other section
107(d)(3) redesignation criteria including a reasonable demonstration
that of permanent and enforceable emission reductions were the cause of
the improvement in air quality in the area. The Grand Rapids area
achieved 0.6 and 2.4 tons per day of VOC and NOX emission
reductions between 1991 and 1994. In addition, since the Grand Rapids
area is the recipient of significant levels of transported ozone,
Michigan also attributes the improvement in air quality, in part, to
emission reductions achieved throughout the Lake Michigan region.
The comment regarding Detroit, Michigan is unclear and irrelevant
to this rulemaking action.
Comment: Based on a table comparing number of days with
temperatures above 90 degrees and number of monitored exceedances in
Chicago, the commentor states that the years for which the Grand Rapids
area demonstrated attainment, 1992-1994, fail the requirement that
attainment can not be due to ``unusually favorable meteorology'' since
that time period represents ``a statistically significant (Chi
square=14.6, Alpha=0.005) negative deviation'' from the number of days
conducive to formation of ozone or days with temperatures above 90
degrees.
Response: Section 107(d)(3)(E)(iii) requires that, for the EPA to
approve a redesignation, it must determine that the improvement in air
quality is due to permanent and enforceable reductions in emissions.
The September 1992 Calcagni memorandum, at page 4, clarifies this
requirement by stating that ``[attainment resulting from temporary
reductions in emission rates (e.g., reduced production or shutdown due
to temporary adverse economic conditions) or unusually favorable
meteorology would not qualify as an air quality improvement due to
permanent and enforceable emission reductions.'' As discussed in the
April 2, 1996 Federal Register notice, the Grand Rapids area has
reasonably demonstrated that permanent and enforceable emission
reductions are responsible for the recent improvement in air quality.
This demonstration was accomplished through an estimate of the
reductions (from a nonattainment year, 1991 to an attainment year,
1994) of VOC and NOX achieved primarily through implementation of
the Federal Motor Vehicle Control Program (FMVCP) from 1991-1994, in
line with the September 1992 Calcagni memorandum. The total reductions
achieved from 1991 to 1994 were 0.6 tons of VOC and 2.4 tons of
NOX per day. The State claimed credit only for emission reductions
achieved as a result of implementation of this federally enforceable
control measure. The emission reductions claimed are conservative since
they do not include the emission reductions resulting from other
control measures and programs implemented during this time period, such
as the VOC RACT fix-ups and catch-ups. The State, therefore, adequately
demonstrated that the improvement in air quality is due to permanent
and enforceable emission reductions. Furthermore, the State has always
maintained that the Grand Rapids area is significantly affected by
ozone transported from the Chicago-Milwaukee-Gary severe-17 ozone
nonattainment area. Consequently, emission reductions occurring in
these areas are also attributable to the improvement in air quality in
the Grand Rapids area.
With respect to the commentor's contention that meteorological
conditions were not conducive to ozone production during the 1992-1994
period, the commentor provided an analysis of the number of days with
temperatures equal to or greater than 90 degrees Fahrenheit at
Chicago's O'Hare airport and the total number of monitored exceedance
days from 1981-1995 throughout the Lake Michigan area. Since, the data
is not limited to the Grand Rapids area, i.e. the number of 90 degree
days in Chicago not Grand Rapids and the number of monitored exceedance
days throughout the Lake Michigan area not only Grand Rapids, it would
not be accurate to conduct a statistical analysis or draw conclusions
pertaining to the Grand Rapids area based on this data, particularly in
light of the transport phenomena affecting Grand Rapids. EPA, however,
conducted a general statistical analysis of the meteorological
parameters in the Grand Rapids area of maximum monthly temperatures and
days with temperatures greater than 90 degrees Fahrenheit for the
periods of April through September, 1992 through 1994, with the 10-year
(1982-1991) averages for these parameters. The 1992-1994 averages for
these parameters agreed with those for the 10-year averages with only
minor differences. Based on averaged parameters, it can be concluded
that the 1992-1994 period was typically conducive to ozone formation.
Finally, the EPA notes that the Grand Rapids area has been in
attainment for the two 3-year periods (1992-1994, and 1993-1995), and
that this, along with the fact that real emission reductions have
occurred, indicates that attainment is not due to unusually favorable,
temporary meteorological conditions.
Comment: The commentor contends that the Ottawa County ozone
monitoring network is inadequate to permit redesignation. The commentor
notes that every monitor located on the eastern shoreline of Lake
Michigan recorded a violation of the NAAQS in 1995, and finds it
inconceivable that residents of southeastern Ottawa County were not
exposed to ozone at levels above the NAAQS. This, the commentor
concludes, should compel the EPA to require the State to site a monitor
along the lakeshore in Ottawa County. The commentor is particularly
concerned that EPA refuses to acknowledge that violations recorded at
the Holland monitor, in Allegan County, which it contends, indicates
violations of the NAAQS in Ottawa County. The commentor further states
that it agrees with Michigan's contention that the Holland monitor ``*
* * is representative of the conditions in Ottawa County.''
Response: As discussed in detail in the April 2, 1996, EPA believes
that the monitoring network for the Grand Rapids area satisfies the
requirements of 40 CFR part 58, appendix D. Michigan established a
number of monitors on the west side of the State for purposes of
gathering field data for the Lake Michigan Ozone Study (LMOS) during
1989-1991. Based on the field study data, the State decided to locate
an ozone monitor in Holland, an urbanized area in Allegan County (just
south of Ottawa County). However, at the encouragement of EPA, the
State reestablished a monitor in Ottawa County, i.e. the Jenison site,
in 1994. This in addition to the two monitors that already exist in
Kent County. Thus, an ozone monitor is established in Ottawa County,
however, the monitor is not at the lakeshore but inland and represents
background ozone concentrations for the Grand Rapids urban area. The
EPA has not taken any action to disapprove the network, but continually
works with the State to improve the quality of the ambient monitoring
network throughout the State. The fact that EPA and the State undertake
actions that may result in improvements to the network, does not mean
that EPA views the monitoring
[[Page 31840]]
data which shows attainment of the standard in the Grand Rapids area as
being inadequate or unreliable. EPA continually reviews monitoring
networks to determine how they can be improved. However, the fact that
a monitoring network is susceptible to improvement does not mean that
the existing network does not meet EPA's regulations, nor does it mean
that the data collected from the existing network should be ignored or
discounted. EPA believes that the monitoring data fully supports a
determination that the Grand Rapids area has attained the standard and
is, therefore, eligible for redesignation to attainment. EPA does not
believe that there is a basis for discounting the data which shows
attainment of the standard.
EPA further notes that the additional monitor established in Ottawa
County as part of the ongoing network improvements did not monitor an
exceedance in 1992 when it operated for part of the ozone season, and
has monitored only one exceedance since the monitor was reestablished
in 1994. While that monitor has yet to be in operation for three full
years, those initial results support the finding that the area has
attained the standard. As a violation does not occur unless four
exceedances occur at a single monitor over a three-year period, the
data from the Grand Rapids area support the determination that the area
has attained the standard and is, therefore, eligible for
redesignation.
Michigan contends that the Holland monitor ``* * * data is included
in this request as representative of levels of transported ozone coming
into the area.'' This can be interpreted to mean that the Holland
monitor is representative of ozone that is being transported into
Ottawa County. However, as explained in the proposal, the Allegan
monitor cannot be considered part of the Grand Rapids area since it is
outside the two county nonattainment area and the State of Michigan has
never formally requested that it be made part of the Grand Rapids
area's monitoring network. Furthermore, the Holland monitor is not
representative of ozone concentrations resulting from ozone precursor
emissions from the Grand Rapids area. The EPA is making its conclusion
about the air quality data that has been collected from the valid
network that currently exists in the Grand Rapids area.
Comment: The commentor is concerned about the validity of
monitoring data collected at the Jenison monitor, specifically, the
commentor alleges that of the years 1992-1994 only the 1994 data set is
usable and is supplemented with 1995. In addition, the commentor
questions the interpretation of the missing daily ozone value for July
14, 1995, from the Ottawa County ozone monitor. The commentor suggests
that the missing daily ozone value for July 14, 1995 cannot be assumed
to be less than the level of the standard since the maximum ozone
concentration on the preceding day exceeded the standard.
Response: The Jenison monitor is one of three monitors in the Grand
Rapids area. The other two monitors have operated in Kent County since
1980 and recorded a complete data set for 1992-1994 that demonstrate
attainment of the ozone NAAQS consistent with EPA guidance including
the September 1992 Calcagni memorandum and January 1979 document
entitled ``Guideline for the Interpretation of Ozone Air Quality
Standards''. The April 2, 1996 proposal noted that the Jenison monitor
operated for 63 percent of the 1992 ozone season with no exceedances of
the ozone NAAQS. The monitor was relocated to Holland, as discussed
previously, based on the LMOS. However, at the encouragement of EPA,
the State reestablished a monitor in Ottawa County, i.e. at Jenison, in
1994. Thus, the Jenison monitor has partial 1992 data and complete data
for 1994 and 1995. No exceedances of the ozone NAAQS were recorded in
1992 and 1994 and one was recorded in 1995 at 0.133 ppm. As noted in
the April 2, 1996 proposal, the ``Guideline for the Interpretation of
Ozone Air Quality Standards'' suggests that evaluation ozone data
requires the use of all ozone data collected at a site during the past
3 calendar years. If no data are available for a particular year then
the remaining years are used. Since 1992 data is incomplete and 1993
data is unavailable for this monitor, it would suffice to use ozone
monitoring data for the remaining most recent calendar years, 1992-
1995. The Ottawa County monitor demonstrates attainment of the ozone
NAAQS with the average number of expected exceedances of 0.5, a value
less than 1.0.
It is unclear to EPA why the commentor believes that the missing
daily ozone value for July 14, 1995 has been assumed to be less than
the level of the standard. AIRS reports consistently show that there
were no missing days assumed to be less than the standard for the
Ottawa County monitor for 1995. The monitor captured 179 of a potential
183 days of monitoring data (98 percent data completeness). The 4
missing days (183-179=4) were not assumed to be less than the standard,
but rather were accounted for in the calculation of the number of
expected exceedances consistent with 40 CFR 51 (appendix H). The four
missing days of data included July 14, 1995.
Comment: The commentor states that Michigan fails to comply with
the section 176 conformity requirements and provides discussion to
support the comment.
Response: This specific comment was submitted by the commentor to
EPA in response to the EPA's February 2, 1996 (61 FR 3815-3817) direct
final rulemaking to approve Michigan's general conformity SIP. As a
result the EPA withdrew the direct final rulemaking in an action
published on March 25, 1996 (61 FR 12030). This comment is not relevant
to redesignation and therefore, will be addressed in the final
rulemaking action on Michigan's general conformity SIP. See also the
discussion above in the response on conformity requirements as they
pertain to redesignation.
Comment: The commentor states that the Michigan City, Indiana ozone
monitor (18-091-0005) in LaPorte County in northeastern Indiana
recorded six exceedances during 1995, including daily ozone values of
0.154 ppm and 0.149 ppm. The commentor argues that several of the
exceedances recorded in the Michigan City area are attributable, in
part, to ozone and precursors originating in west Michigan.
The commentor notes that in response to EPA's June 2, 1995 proposed
rulemaking pertaining to the determination of attainment for the Grand
Rapids area, they submitted a comment regarding LMOS modeling for June
20-21 (Episode 4) which confirms that emissions from western Michigan
contribute to exceedances of the ozone NAAQS. The commentor further
notes that Episode 4 conditions are ``associated with a lesser, yet
significant, number of historical ozone episodes.''
The commentor suggests that EPA stated that it has an ``affirmative
responsibility'' to address transported emissions from upwind areas
that significantly contribute to air quality problems in downwind
areas. See 60 FR 37368.
The commentor notes that Michigan only cites LMOS modeling which
shows that ozone and ozone precursors are transported into the Grand
Rapids area. The commentor is concerned that Michigan refuses to
acknowledge LMOS modeling that indicates that ozone and precursor
emissions originating from Grand Rapids under certain meteorological
conditions which occur with regular frequency, contribute to
[[Page 31841]]
exceedances in downwind areas, including Michigan City, Indiana.
Response: The EPA has reviewed wind speeds and wind directions in
Grand Rapids and Michigan City, Indiana for the 6 days on which
exceedances were recorded in Michigan City, Indiana in 1995. The winds
on the days at issue in Grand Rapids were predominantly from the south/
southwest, i.e. into the Grand Rapids area with the exception of June
15, 1995, when the winds in Grand Rapids were predominantly from the
easterly. The winds in Michigan City on the same days were also
predominately from the south/southwest. Since Michigan City, Indiana is
south-southwest of the Grand Rapids area, the exceedances on these days
in 1995 were clearly not attributable to emissions from the Grand
Rapids area but likely from the Chicago-Gary severe-17 nonattainment
area.
The commentor has not clearly indicated what version of the
modeling is used as the basis of their comment. It must be emphasized
that the version of the LMOS modeling approved for regulatory purposes
by EPA on December 15, 1994, for Episode 4 (June 20-21), does not
clearly indicate the extent of the contribution of emissions from the
Grand Rapids area to exceedances in the Michigan City, Indiana or any
other downwind area. Since the extent of Grand Rapids' contribution to
exceedances downwind cannot be determined with any degree of certainty
given the information currently available, it would be premature for
EPA to issue a finding pursuant to section 110(a)(2)(D). The commentor
does not provide any additional information that would cause the EPA to
determine that the imposition of additional control requirements in the
area is warranted at this time. As further information becomes
available, however, such a finding may be warranted.
In light of the preliminary information currently available, EPA
does not believe that it would be justifiable to disapprove the
redesignation request on the basis of concerns regarding transported
emissions. The redesignation does not mean, however, that the Grand
Rapids area might not have to achieve additional reductions pursuant to
other provisions of the Act if it is determined in the future that such
reductions are necessary to deal with transport from the Grand Rapids
area to downwind areas. Finally, EPA would note that the issue of
transported ozone and ozone precursors is being addressed by EPA
through the OTAG which is composed of industry, environmental groups,
Federal, State and Local governments from the eastern half of the
United States. The Lake Michigan States of Illinois, Indiana,
Wisconsin, and Michigan are all participating, at some level, in the
OTAG process (Phase I/Phase II attainment demonstrations as provided
for in the March 2, 1995 memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation, entitled ``Ozone Attainment
Demonstrations''). In addition, Phase II of this analysis will assess
the need for regional control strategies and refine local control
strategies. Phase II will also provide the States and EPA the
opportunity to determine appropriate regional strategies to resolve
transport issues including any impacts the Grand Rapids area may have
on ozone concentrations in its downwind areas.
The commentor references the July 20, 1995 final rule regarding the
determination of applicability of certain RFP and attainment
demonstration requirements to the Grand Rapids area, and claims that
EPA stated that it has an ``affirmative responsibility'' to address
transported emissions from upwind areas that significantly contribute
to air quality problems in downwind areas. EPA was, in fact, responding
to a comment from the same commentor regarding the impacts of Grand
Rapids on downwind areas. The EPA stated that it has the authority
under sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to ensure that
the required and necessary reductions are achieved in Grand Rapids,
should subsequent modeling become available, such as the modeling that
will be available through completion of the Phase II analysis, or any
other subsequent modeling data. The EPA acknowledged in that final rule
and in the April 2, 1996 proposal to redesignate Grand Rapids that
preliminary modeling indicates that western Michigan is the recipient
of transported ozone and that the area may also contribute to ozone
concentrations in downwind areas. However, the LMOS modeling is being
refined and is intertwined with the OTAG Phase I/Phase II process.
Indeed, should the Phase II or any other modeling become available that
demonstrates that reductions in ozone precursor emissions from the
Grand Rapids area are necessary, the EPA has the authority to ensure
that these emission reductions are achieved. In summary, currently no
technically supportable basis exists for EPA to exercise its
responsibility to take appropriate action to seek additional emission
reductions in the Grand Rapids area.
Finally, Michigan submitted LMOS modeling which illustrated ozone
and ozone precursor transport into the Grand Rapids area in the context
of an overwhelming transport petition. Since Episode 4 models
northeasterly wind patterns, it would not be relevant in demonstrating
overwhelming transport into the area.
Comment: The commentor states that the maintenance plan submitted
by Michigan is inadequate because Michigan's attainment emission
inventory does not comply with EPA requirements and implies that there
are insufficient enforceable pollution control measures available to
ensure attainment and promptly correct any violations. The commentor
appears to be saying that the SIP revision requirements of section 110
and part D should initially reduce ozone pollution, and subsequently
maintain the improvement in air quality. The commentor also suggest
that the emission inventory projections in the maintenance plan
underestimate emissions growth in Grand Rapids.
Response: The commentor does not provide support for the contention
that the attainment emission inventory does not comply with EPA
requirements. EPA has reviewed Michigan's attainment emission inventory
and believes that the inventory, in fact, is sufficient and meets EPA's
requirements and guidance regarding emission inventories. With respect
to the sufficiency of control measures necessary to ensure attainment
and promptly correct a violation, the EPA would note first that
Michigan has included inspection and maintenance, Stage II, low Reid
Vapor Pressure fuel at 7.8 psi, and VOC RACT for major plastic parts
coating, wood furniture coating and industrial clean-up solvents as
control measures to be implemented to address a violation not
attributable to transport. EPA believes that these control measures are
adequate for purposes of contingency measures. The control measures
already implemented in the area were obviously sufficient to allow the
area to attain the ozone standard. Furthermore, the State has
demonstrated that VOC and NOX emissions will continue to decrease
from the 1991 atttainment year levels through the 10 year maintenance
period.
EPA agrees with the commentor that emission controls under section
110 and part D should reduce ozone pollution and subsequently maintain
improvements in air quality. Although Michigan did not claim permanent
and enforceable emission reductions credit for emission reductions
achieved as a result of implementing section 110 and part D
requirements, the State must continue to implement these programs even
after redesignation.
[[Page 31842]]
It should be recognized that approval of the redesignation is not
expected to result in an increase in ozone precursor emissions. In
fact, a decrease in both VOC and NOX emissions from the Grand
Rapids area is expected over the 10-year maintenance period. See 61 FR
14522, April 2, 1996. It should be noted that redesignation does not
allow States to automatically remove control programs which have
contributed to an area's attainment of a NAAQS for any pollutant. The
EPA's general policy is that a State may not relax the adopted and
implemented SIP for an area upon the area's redesignation to
attainment, unless an appropriate demonstration, based on modeling
12 or adequate justification 13, is approved by the EPA. In
this case no previously implemented control strategies are being
relaxed as part of this redesignation.
---------------------------------------------------------------------------
\12\ Such a demonstration must show that removal of a control
program will not interfere with maintenance of the ozone NAAQS and
would entail submittal of an attainment modeling demonstration with
the EPA's current Guideline on Air Quality Models.
\13\ See September 1992 Calcagni memorandum.
---------------------------------------------------------------------------
Further, apart from Title I requirements related to the cessation
of the Grand Rapids area's status as an ozone nonattainment area, the
area is and will continue to be, required to satisfy all Act
requirements. Other control programs required by the Act will be
implemented in the area, regardless of the ozone designation, such as
Title IV NOX controls, section 112 toxic controls and FMVCP
requirements.
The commentor does not provide any support for its contention that
the emissions growth projections in the maintenance plan are
underestimated for the Grand Rapids area. The emissions projections in
the maintenance plan are based on the 1991 emission inventory developed
for the LMOS modeling effort. The projections are based on growth
factors extracted from the EPA's Economic Growth Analysis System and
supplemental information used in the development of emission
projections. Point source growth factors for utilities are based on
source specific data provided by the utility companies. Area source
growth factors were supplemented with population and gasoline sales/
marketing data. The stationary source emission estimates (point and
area) were developed using the geocoded emissions modeling and
projections system (GEMAP) which employs projection methodologies
equivalent to those in the EPA's Emissions Projections System. EPA's
MOBILE5a model was used to develop the mobile source emission
estimates. Therefore, the emission projections methods are consistent
with EPA's guidance.
Comment: The commentor cites two separate provisions of the Act,
sections 182(c)(9) and 175A(d) that demand that maintenance plans
include ``specific measures to be undertaken if the area fails to meet
any applicable milestone. Such measures shall be included in the plan
revision as contingency measures to take effect without further action
by the State or Administrator upon a failure by the State to meet the
applicable milestone.'' Section 182(c)(9). The commentor argues that
Michigan's triggering mechanism is patently illegal and unacceptable
under the Act.
The commentor states that the triggering mechanism defeats the
meaning and purpose of the ozone standard (40 CFR 50.9) in that the
ozone standard does not account for transport, i.e. an area is either
in attainment or nonattainment due to observed ozone violations and
that the designation and classification are purely a function of
observed ozone values and not a function of the origin of ozone.
The commentor also questions the evaluation criteria utilized by
Michigan, calling it ``extremely suspect.''
Response: Section 182(c)(9) contains the requirements for serious
and above areas to adopt contingency measures pertaining to RFP, and is
not relevant to this redesignation. Section 175A(d), however, is
relevant and states that `` * * * plan revision submitted under this
section shall contain such contingency provisions as the Administrator
deems necessary to assure that the State will promptly correct any
violation of the standard which occurs after the redesignation of the
area as an attainment area.'' The mechanism that would trigger the
implementation of contingency measures in the Grand Rapids area is ``an
actual monitored ozone violation of the NAAQS, as defined in 40 CFR
50.9, determined not to be attributable to transport from upwind
areas.'' The EPA believes that this triggering mechanism is appropriate
for the Grand Rapids area, given the overwhelming evidence
demonstrating that the area is the recipient of transported ozone and
ozone precursors from the Milwaukee-Chicago-Gary severe-17
nonattainment areas. EPA believes that this triggering mechanism
satisfies the requirement of section 175A(d), because if a violation is
due to transport, then control measures implemented in the Grand Rapids
area will not likely correct the violation. Thus, when violations are
occurring as a result of transport, an attempt to impose control
measures in the Grand Rapids area would be futile. EPA believes that it
is implicit in the Act that the purpose of control measures is to
achieve attainment.
Because violations due to transport are not accounted for in the
ozone NAAQS at 40 CFR 50.9 does not mean that transport cannot be taken
into account for purposes of implementing a control strategy to correct
a violation. Although areas are designated and classified based on
monitored violations, regardless of their origin, areas redesignated to
attainment will be provided an opportunity to implement contingency
measures to correct the violation before EPA would exercise its
authority to redesignate the area back to nonattainment.
As part of the contingency plan for the Grand Rapids area, Michigan
will conduct a technical analysis of meteorological conditions leading
up to and during the exceedances contributing to a violation in order
to determine local culpability. The commentor is concerned about the
criteria to be used to evaluate transport, although the commentor does
not provide any specifics about what criteria they are concerned.
Furthermore, EPA notes that any analysis conducted by Michigan to
determine local culpability will be subject to a public process. As
part of the contingency plan, Michigan has incorporated procedures to
involve EPA and afford the public the opportunity to review and
participate in the determination of whether transport or local sources
are reasonable for a violation.
Comment: The commentor contends that the only contingency measure
actually adopted by Michigan is low RVP to 7.8 psi during the ozone
season. The commentor notes that implementation of the I/M program was
stayed by the Governor of Michigan on December 29, 1994, and that the
Michigan legislature rescinded implementation of the Stage II vapor
recovery program once the EPA promulgated its on board canister rule.
Response: The Grand Rapids moderate ozone nonattainment area was
required to adopt and implement a basic I/M program. An enhanced I/M
program was adopted by Michigan and fully approved by EPA into the SIP
on October 11, 1994 (59 FR 51379), and was to have commenced operation
on January 1, 1995. By the end of 1994, the Grand Rapids area had
attained the ozone standard and was therefore, eligible for
redesignation. The January 5, 1995 (60 FR 1735) revisions to the
national I/M rule stipulate that areas
[[Page 31843]]
otherwise eligible for redesignation may submit the following in order
to satisfy the I/M component of the SIP: legislative authority for
basic I/M; a provision in the SIP providing that I/M be placed in the
contingency measure portion of the maintenance plan; and an enforceable
schedule and commitment by the Governor or his designee for adoption
and implementation of a basic I/M program upon a triggering event.
Also, see September 17, 1993 memorandum from Michael H. Shapiro, Acting
Assistant Administrator for Air and Radiation, entitled, ``SIP
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone, Carbon Monoxide NAAQS on or after November 15,
1992,'' 14 memorandum. With this, the Governor stayed the
implementation of the I/M program in the Grand Rapids area. The Grand
Rapids area, therefore, only needs to satisfy the items noted above.
The legislative authority to implement an I/M program is contained in
Michigan's Enrolled House Bill No. 4165, which provides that I/M may be
implemented as a contingency measure consistent with an area's
maintenance plan if it is not necessary for maintenance. The section
175A maintenance plan provides for the implementation of I/M as a
contingency measure and also provides an enforceable schedule for the
implementation of I/M as a contingency measure.
---------------------------------------------------------------------------
\14\ Hereinafter referred to as the ``September 1993 Shapiro
memorandum.''
---------------------------------------------------------------------------
With respect to the commentor's concern regarding the rescission of
Stage II, section 10c(3) of Michigan's Enrolled Senate Bill No. 726 for
Stage II suspends implementation of the Stage II program once EPA has
promulgated the final onboard rule. However, section 10c(3) also
retains the authority to implement Stage II as a contingency measure in
a maintenance plan for an area redesignated to attainment. Thus, once
Grand Rapids is redesignated to attainment, Stage II may be implemented
by the State as a contingency measure pursuant to the maintenance plan.
In conclusion, the State has adopted legislative authority to
implement I/M, Stage II and low RVP to 7.8 psi as contingency measures.
Comment: The commentor notes that the January 24, 1996 letter from
Dennis Drake, Chief of the Air Quality Division, Michigan Department of
Environmental Quality to Valdas Adamkus, Regional Administrator, Region
5, and the State's April 11, 1996 contingency plan SIP revision imply
that the VOC non-CTG RACT rules were at least adopted when in fact they
were not.
Response: The January 24, 1996 letter merely notified EPA of the
State's intention to revise the Grand Rapids area's maintenance plan to
include a commitment to adopt and implement non-CTG VOC RACT rules for
major sources of plastic parts coating, wood furniture coating and
industrial clean-up solvents as contingency measures for the Grand
Rapids area. The actual revision to the maintenance plan SIP, dated
April 11, 1996, states that rules to apply non-CTG RACT to major
sources of plastic parts coating, wood furniture coating and industrial
clean up solvents have been ``drafted.'' The State specifically notes
that the promulgation process requires additional steps including
``approval of the proposed rules by the Office of Regulatory Reform,
the Legislative Services Bureau, and the Joint Legislative Committee on
Administrative Rules.'' The State clearly indicated that the rules are
draft and additional steps are necessary for promulgation. Furthermore,
EPA explained in the April 2, 1996 proposal that the contingency
measure for this element is that the State would commit to adopt and
implement non-CTG VOC RACT rules for the three source categories noted
previously.
Comment: The commentor suggests that the State's failure to adopt
and implement the VOC non-CTG RACT rules in accordance with section
182(b)(2)(A) of the Act violates the sections 110 and 107(d)(3)(E)(v)
requirements. Section 107(d)(3)(E) requires the State to adopt a
complete part D nonattainment plan, which these non-CTG VOC RACT rules
are part of, prior to redesignation.
Response: In the April 2, 1996 proposal, the EPA acknowledges that
the section 182(b)(2)(A) requirement for non-CTG VOC RACT rules is an
applicable requirement and that current EPA redesignation policy
requires that these rules be fully adopted, and if not necessary for
maintenance of the NAAQS, be moved to the contingency plan portion of
the maintenance plan. However, the EPA, in this instance, proposed an
exception to this policy based on a combination of three factors as
previously discussed. The commentor, however, has not provided comments
specific to the rationale used as the basis of the exception.
EPA emphasizes that, even without this exception to its general
policy, the State would have been able to have the RACT rules become a
part of the contingency measures in the maintenance plan upon approval
of the redesignation. However, that could have occurred only after or
upon EPA's full approval of the adopted RACT rules. Therefore, the only
difference between EPA's general policy and the exception to that
policy proposed for Grand Rapids is that a commitment to adopt and
implement the RACT rules in an expeditious manner, rather than fully-
adopted RACT rules, would be among the contingency measures in the
maintenance plan. As previously discussed, the EPA believes that this
exception to its general policy is legally permissible under the
statutory provisions governing redesignation. The VOC RACT requirements
remain applicable requirements under section 107 and EPA believes that
their treatment in the contingency plan as commitments is consistent
with the manner in which EPA has accepted other commitments to adopt
and implement contingency measures in maintenance plans under section
175A.
Comment: The commentor states that the contingency measures
provided for in the maintenance plan are inadequate and illusory. The
commentor further elaborates that none of the contingency measures are
adopted with the necessary legislative authority or described with
sufficient specificity, nor do they include milestones to insure prompt
implementation as required by section 175A(d) or EPA guidance.
Response: Contrary to the commentor's statement, legislative
authority is adopted for three of the contingency measures, I/M, Stage
II and low RVP to 7.8 psi. Further, the State has submitted an
enforceable commitment to implement the three non-CTG VOC RACT rules.
Neither the Act nor redesignation guidance require milestones to track
the State's compliance with adoption and implementation of contingency
measures. The September 1992 Calcagni memorandum suggests that the
contingency plan identify the contingency measure to be adopted,
provide a schedule and procedure for adoption and implementation, and
provide a specific time limit for action by the State. The Grand Rapids
area's contingency plan identifies the measure to be adopted, provides
a procedure for adoption of the non-CTG VOC RACT rules (``promulgation
involves * * * additional steps * * * approval of the proposed rules by
the Office of Regulatory Reform, the Legislative Services Bureau * * *
'' See April 11, 1996, SIP revision) and provides a schedule for
implementation (e.g. 20 months from the Governor's decision to employ
these rules as contingency measures). It is noted that the critical
component of this schedule is not the
[[Page 31844]]
State's internal schedule for adoption of the rule(s) but the schedule
for full implementation.
It is further noted that the contingency measure implementation
schedules for the Grand Rapids area were derived from the Act, and
applicable State and Federal regulations. The schedule established for
the implementation of contingency measures provides for the
implementation of such measures as soon as within 1 year of a violation
15. The EPA believes that this schedule satisfies the criterion of
section 175A regarding the need for contingency measures to promptly
correct violations of the standard occurring during the maintenance
period.
---------------------------------------------------------------------------
\15\ Phased in implementation of Stage II commences within 6
months of the Governor's decision to employ Stage II or one year of
a monitored violation.
---------------------------------------------------------------------------
Comment: The commentor states that EPA guidance requires that a
maintenance plan ``ensure prompt correction of any violation of the
NAAQS.'' Yet the Grand Rapids maintenance plan SIP revision of April
11, 1996 allows implementation of the non-CTG RACT rules within 26
months of an ozone violation. The commentor is concerned that 26 months
for implementation of the non-CTG VOC RACT rules does not ensure prompt
correction of a violation. In addition, the maintenance plan lacks
adequate milestones to track the State's compliance.
Response: The 26-month schedule to implement the non-CTG VOC RACT
rules takes into account 6 months to quality assure the monitoring data
indicating a violation of the ozone NAAQS, conduct an analysis to
determine local culpability with respect to a violation, and to afford
the public an opportunity to participate in the determination of local
culpability, 8 months for full adoption of any of the non-CTG RACT
rule(s) chosen as a contingency measure, and 12 months for full
implementation.16 The EPA believes that this is an expeditious
schedule for adoption and implementation of these rules.
---------------------------------------------------------------------------
\16\ See March 16, 1989 memorandum from John Calcagni, Director,
Air Quality Management Division and John Seitz, Director, Stationary
Source Compliance Division entitled ``Compliance Schedules for
Volatile Organic Compounds.'' This memorandum clarifies that the
``presumptive norm'' for source compliance with a new or revised
rule is recommended to be 1 year or less.
---------------------------------------------------------------------------
Furthermore, neither the Act nor redesignation guidance requires
milestones to track the State's compliance with adoption and
implementation of contingency measures. The September 1992 Calcagni
memorandum suggests that the contingency plan identify the contingency
measure to be adopted, provide a schedule and procedure for adoption
and implementation, and provide a specific time limit for action by the
State. The Grand Rapids area's contingency plan identifies the measure
to be adopted, provides a procedure for adoption of the non-CTG VOC
RACT rules (``promulgation involves * * * additional steps * * *
approval of the proposed rules by the Office of Regulatory Reform, the
Legislative Services Bureau * * * '' See April 11, 1996, SIP revision)
and provides a schedule for implementation (e.g. 20 months from the
Governor's decision to employ these rules as contingency measures). The
critical component of this schedule is not the State's internal
schedule for adoption of the rule(s) but the schedule for full
implementation.
Finally, there are other more effective contingency measures than
the non-CTG VOC RACT rules that could be implemented more expeditiously
such as Stage II and low RVP gasoline (to 7.8 psi).
Comment: The commentor states that allowing the State to commit to
subsequent adoption of the three required VOC non-CTG RACT rules as
contingency measures is ``extraordinary and prohibited * * *
preferential treatment'' for Michigan and is inconsistent with EPA
guidance and recent actions on other moderate area redesignation
requests. The commentor believes that such preferential treatment
rewards the State for its failure to satisfy Act requirements. This is
particularly so, since the EPA penalized adjacent States that did not
adopt and implement these non-CTG VOC RACT rules and other control
measures. Preferential treatment is ``illegal'' and undermines the
cooperation of other States implementing future control measures to
reduce ozone and ozone precursor emissions and other efforts such as
LMOS and OTAG. The commentor further states that the EPA's preferential
treatment is especially evident in its allowing Michigan to determine
the need for implementation of contingency measures based on parameters
developed by Michigan.
Response: EPA again notes that, even without the exception to its
general policy proposed in the April 2, 1996 rulemaking, the State
would have been able to have the RACT rules become a part of the
contingency measures in the maintenance plan upon approval of the
redesignation. However, that could have occurred only after or upon
EPA's full approval of the adopted RACT rules. Consequently, the only
difference between EPA's general policy and the exception to that
policy described in the proposal is that a commitment to adopt and
implement the RACT rules in an expeditious manner, rather than fully-
adopted RACT rules, would be among the contingency measures in the
maintenance plan. EPA would also note that, in general, contingency
measures need not be fully adopted. See September 1992 Calcagni
memorandum. Thus, EPA is acknowledging that allowing Michigan to
incorporate these non-CTG VOC RACT measures into the contingency plan
without fully adopted rule is an exception to policy. The commentor,
however, has not provided any basis to dispute the rationale for this
exception and factors presented in the April 2, 1996 proposal.
The EPA disagrees with the commentor's contention that EPA is
affording Michigan ``preferential treatment.'' EPA guidance and
policies have been, or can be, applied to all areas, including Grand
Rapids, in an equitable manner. EPA periodically will make an exception
to policy where an exception is warranted and appropriate. Allowing an
exception to policy for a particular area does not constitute
preferential treatment for that area but instead is a neutral
determination that is available to other areas that could also
demonstrate circumstances that would warrant the same exception. This
is the first instance that the issue of full adoption of these
particular non-CTG VOC RACT rules has arisen in the context of
redesignation. As such, it is in this action that the exception to
policy is being exercised.
The commentor does not cite any instances, nor is EPA aware of any
instances, where EPA penalized an adjacent State that did not adopt and
implement these non-CTG VOC RACT rules. The commentor does not specify
the ``other control measures'' referred to.
In addition, with respect to the Grand Rapids maintenance plan,
Michigan has incorporated a process not only to involve the EPA but to
afford the public an opportunity to participate in the process to
determine the necessity to select and implement contingency measures
based on a technical analysis to determine local culpability. Thus,
although Michigan will be conducting the analysis an opportunity for
the public review and participate will be provided.
Comment: The commentor states that the non-CTG VOC RACT rules
should have been adopted and implemented by November 15, 1994. The
commentor also notes that neither Michigan nor EPA acknowledges this.
The commentor adds that EPA has failed to enforce
[[Page 31845]]
sections 182(b)(2)(A) at that time and is failing to enforce section
175A of the Act, now.
Response: Although EPA's general redesignation policy requires that
rules and programs for requirements that come due prior to submittal of
a complete redesignation request be adopted and fully approved into the
area's SIP, it also allows for these measures to be moved into the
area's maintenance plan as contingency measures if they are not yet
implemented and not necessary for maintenance of the standard.
September 1993 Shapiro memorandum. Thus, the non-CTG VOC RACT rules
should have been adopted but not necessarily implemented. The rules
would have been moved over into the area's maintenance plan since they
were not needed for maintenance.
The April 2, 1996 proposal to approve the Grand Rapids
redesignation does, in fact, acknowledge that the non-CTG VOC RACT
rules were required to be submitted to EPA by November 15, 1994 and
implemented by November 15, 1995. See 61 FR 14526. The State's April
11, 1996 submittal also acknowledges that these rules were due on
November 15, 1994.
For the reasons explained above, however, EPA believes that its
treatment of these rules in this redesignation is justifiable and
appropriate.
Comment: The commentor is concerned that Michigan's contingency
plan lacks milestones and is inconsistent with the specificity that the
EPA required of contingency plans in other areas such as the Toledo,
Ohio contingency plan, which included a number of milestones to gauge
the State's progress.
Response: Neither the Act nor redesignation guidance require
milestones to track the State's compliance with adoption and
implementation of contingency measures. The September 1992 Calcagni
memorandum suggests that the contingency plan identify the contingency
measure to be adopted, provide a schedule and procedure for adoption
and implementation, and provide a specific time limit for action by the
State. The Grand Rapids area's contingency plan identifies the measure
to be adopted, provides a procedure for adoption of the non-CTG VOC
RACT rules (``promulgation involves * * * additional steps * * *
approval of the proposed rules by the Office of Regulatory Reform, the
Legislative Services Bureau * * * '' See April 11, 1996, SIP revision)
and provides a schedule for implementation (e.g. 20 months from the
Governor's decision to employ these rules as contingency measures). The
critical component of this schedule is not the State's internal
schedule for adoption of the rule(s), but the schedule for full
implementation.
Comment: The commentor is concerned that the schedule for
implementation of the non-CTG VOC RACT rules for the three source
categories identified would not ``promptly correct any violation of the
standard'' since it allows over 2 years after an ozone violation before
adopting and implementing a selected contingency measure.
Response: As noted previously, the 26-month schedule to implement
the non-CTG VOC RACT rules takes into account: 6 months to quality
assure the monitoring data indicating a violation of the ozone NAAQS,
conduct an analysis to determine local culpability with respect to the
violation, and afford the public an opportunity to participate in the
determination of local culpability; 8 months for full adoption of any
of the non-CTG RACT rule(s) chosen as a contingency measure; and 12
months for full implementation. The EPA believes that this is an
adequate and expeditious schedule for adoption and implementation of
these rules. In addition, the contingency plan contains other measures
that provide for implementation of a measure as soon as within 1 year
of a violation.17
---------------------------------------------------------------------------
\17\ See footnote 15.
---------------------------------------------------------------------------
Comment: The commentor suggests that the September 1992 Calcagni
memorandum requires States to implement all the control measures prior
to redesignation but that a revision to the SIP to remove measures may
be submitted. The commentor interprets this to mean that the State must
have adopted and implemented the ``applicable control measures'' in the
area. The commentor notes that Michigan did not adopt and implement the
non-CTG VOC RACT rules for plastic parts coating, wood furniture
coating and clean-up solvents as required by section 182(b)(2)(A). In
addition, Michigan did not adopt rules for non-CTG source categories
which it deemed unnecessary due to the absence of existing sources.
Response: The September 1992 Calcagni memorandum interprets section
175A(d) as requiring the continued implementation of all measures
contained in the area's part D nonattainment plan and that removal of
these implemented measures would require a demonstration that the
measures are not necessary for attainment or maintenance. In addition,
once removed those measures are required to be incorporated into the
area's contingency plan as contingency measures. The non-CTG VOC RACT
rules, however, were not adopted by the State or approved by EPA into
the area's part D nonattainment SIP. As such, the non-CTG VOC RACT
rules were not required to be implemented as a prerequisite for
redesignation since they were not incorporated into the part D
nonattainment SIP. Furthermore, EPA's general redesignation policy does
not require the implementation of all measures that were applicable to
the area instead, it allows unimplemented measures to be moved into an
area's maintenance plan as contingency measures if they are not
necessary for maintenance. See Detroit redesignation with respect to
Stage I (March 7, 1995, 60 FR 12459).
It is unclear to EPA why the commentor would be concerned that the
State did not adopt rules applicable to sources which do not exist in
the State. Appendix E of the supplement to the General Preamble (April
28, 1992, 57 FR 18070) stipulated that the States submit a list of
major stationary sources that are expected to be subject to one of the
11 source categories for which EPA was to issue a CTG. Michigan
submitted such a list on November 15, 1992. States have not been
required to adopt rules for non-CTG source categories for which no
sources exist in the State.
Comment: The commentor states that EPA noted to Michigan, in its
preliminary review of the Grand Rapids area's redesignation request,
that adopted rules for the applicable source categories in Appendix E
should be submitted. In response, the State committed to adopt these
non-CTG VOC RACT rules as contingency measures should they be chosen as
contingency measures. The commentor believes this is an ``inadequate
and unacceptable substitute'' for adoption and implementation of these
rules.
Response: EPA's comments merely represented a preliminary review of
the State's redesignation request. As discussed in the April 2, 1996
proposal, current EPA policy, in fact, would require the State to have
submitted adopted non-CTG VOC RACT rules for the 3 source categories at
issue before the area could be redesignated to attainment. As discussed
previously, however, EPA proposed to make an exception to policy in
this instance for several reasons, including the fact that the RACT
rules at issue came due after the end of the ozone season in which
Grand Rapids attained the standard and were not needed to bring about
attainment of the ozone standard in Grand Rapids. In addition, the
State has
[[Page 31846]]
demonstrated continued maintenance of the ozone standard through 2007
without the implementation of these measures and other contingency
measures are included in the maintenance plan that would bring about
far greater emission reductions than the VOC RACT rules, and would
therefore be substantially more effective in terms of correcting
violations attributable to local emissions from the Grand Rapids area
that may occur after redesignation. Again, the commentor does not
challenge the rational used to make the exception to policy pertaining
to the non-CTG RACT rules.
EPA's general redesignation policy requires that rules and programs
for requirements that come due prior to submittal of a complete
redesignation request be adopted and fully approved into the area's
SIP. The policy also allows for these measures to be moved into the
area's maintenance plan as contingency measures if they are not
necessary for maintenance of the standard. September 1993 Shapiro
memorandum. Thus, the non-CTG VOC RACT rules should have been adopted
but may have been moved over into the area's maintenance plan, if the
area demonstrated that the measure(s) was not necessary for
maintenance.
Comment: The commentor submits that the EPA is prohibited from
accepting commitments by a State to adopt and implement contingency
measures in place of fully adopted and implemented rules as required
for SIP revisions pursuant to section 110(k)(4). Natural Resources
Defense Counsel (NRDC) v. U.S. EPA.
Response: EPA does not believe that the D.C. Circuit's decision in
NRDC v. U.S. EPA, 22 F.3d 1125 (D.C. Cir. 1994) concerning the use of
commitments under section 110(k)(4) prohibits EPA from fully approving
commitments by a State to adopt and implement contingency measures in a
section 175A maintenance plan. The NRDC decision concerned the use of
the section 110(k)(4) conditional approval mechanism, which
contemplates the conversion of a conditional approval to a disapproval
if a State fails to comply with a commitment to adopt specific
enforceable measures by a date certain, which may be no later than one
year after the conditional approval. In contrast, the commitments
regarding contingency measures in a section 175A maintenance plan
become enforceable commitments once they are fully-approved into the
maintenance plan. As these commitments are fully approved into the SIP,
they, like other provisions of a fully-approved plan, are enforceable
pursuant to the provisions of the Act. See September 1992 Calcagni
memorandum at p. 12 (stating that ``the contingency plan is considered
to be an enforceable part of the SIP''). EPA notes that it has not
relied on the section 110(k)(4) conditional approval mechanism for
dealing with commitments regarding maintenance plan contingency
measures either before or after the NRDC decision, but has consistently
fully-approved such commitments, thereby making them an enforceable
part of the SIP. In sum, EPA does not believe that its authority to
accept such commitments was affected by the NRDC decision.
Comment: The commentor cites the September 1992 Calcagni memorandum
which provides that, ``for purposes of section 175A, a State is not
required to have fully adopted contingency measures that will take
effect without further action by the State in order for the maintenance
plan to be approved,'' and interprets this language to imply that
contingency measures need not be self-executing and provides the State
discretion in selection of a contingency measure from a host of
``adopted contingency measures.''
Response: The September 1992 Calcagni memorandum citation noted by
the commentor is valid. However, the September 1992 Calcagni memorandum
goes on to say in the next sentences that ``the contingency plan * * *
should ensure that the contingency measures are adopted expediently
once they are triggered.'' Clearly, this indicates that contingency
measures need not be fully adopted since the contingency plan should
ensure expeditious adoption of contingency measures.
Comment: The commentor is concerned that the State did not
implement an enhanced I/M program as scheduled in December 1994 and
that the State has partially rescinded the legal authority for the I/M
program.
Response:The Grand Rapids moderate ozone nonattainment area was
required to adopt and implement a basic I/M program. An enhanced I/M
program was adopted by Michigan and fully approved by EPA into the SIP
on October 11, 1994 (59 FR 51379) and was to have commenced
implementation on January 1, 1995. By the end of 1994, the Grand Rapids
area had attained the ozone standard and therefore, was eligible for
redesignation. The January 5, 1995 (60 FR 1735) revisions to the
national I/M rule stipulate that areas otherwise eligible for
redesignation, may submit the following in order to satisfy the I/M
component of the SIP: legislative authority for basic I/M; a provision
in the SIP providing that I/M be placed in the contingency measure
portion of the maintenance plan; and an enforceable schedule and
commitment by the Governor or his designee for adoption and
implementation of a basic I/M program upon a triggering event. Also,
see September 1993 Shapiro memorandum. With this, the Governor stayed
the implementation of the I/M program in the Grand Rapids area. In
order to satisfy the I/M component of the SIP, therefore, the State
needs to satisfy only the items noted above. The legislative authority
to implement an I/M program is contained in Michigan's Enrolled House
Bill No. 4165 which provides that I/M may be implemented as a
contingency measure consistent with an area's maintenance plan if it is
not necessary for maintenance. The 175A maintenance plan provides for
the implementation of I/M as a contingency measure, and also provides
an enforceable schedule for the implementation of I/M as a contingency
measure.
Finally, EPA is not aware of any revocation of the legal authority
of the I/M program. In fact, discussions with the State verified that
Michigan's Enrolled House Bill No. 4165 has not been revoked or
repealed but is still valid.
Comment:The commentor conducted an analysis of 1995 ambient
monitoring data and concluded that the emissions from the Grand Rapids
area produces tropospheric ozone. Adoption and implementation of the
non-CTG VOC RACT rules for plastic parts coating, wood furniture
coating and industrial clean-up solvents would have achieved
considerable, cost-effective reduction in local VOC emissions as well
as lessened the exposure of the community to toxic air pollutants. The
commentor states that, if EPA had enforced part D nonattainment plan
requirements for the Grand Rapids area, significant VOC emission
reductions would have occurred.
Response: The EPA does not dispute the commentor's contention that
ozone and ozone precursor emissions from the Grand Rapids urbanized
area contribute to the formation of ozone nor that implementation of
the non-CTG VOC RACT rules for the three source categories would have
achieved reductions in local VOC emissions. Based on the current ozone
standard, 0.12 ppm, however, the Grand Rapids area has demonstrated
attainment of the current ozone NAAQS in the three year period 1992-
1994 and continues to demonstrate attainment for the period 1993-1995
even without the implementation of these rules.
With respect to the EPA's enforcement of part D nonattainment
[[Page 31847]]
plan requirements, EPA's general redesignation policy provides that
part D nonattainment plan requirements that have been adopted but
unimplemented may be moved into the area's maintenance plan as
contingency measures if the area demonstrates that these rules are not
necessary for maintenance of the ozone NAAQS. Even if EPA had made a
finding of failure to submit after the State of Michigan's failure to
submit the non-CTG VOC RACT rules at issue, there is no assurance that
those rules would have been adopted and implemented prior to
redesignation of the Grand Rapids area. Assuming that the State of
Michigan would have adopted and submitted such rules to EPA after a
finding of failure to submit, such rules would not have had to have
been implemented prior to this redesignation. Indeed, as explained
above, since maintenance of the standard has been demonstrated in the
Grand Rapids area without such rules, the State would probably have
simply included such rules on the list of contingency measures in the
maintenance plan and not implemented them prior to the redesignation.
In sum, no environmental benefit, and no reduction of emissions would
have been realized by EPA's enforcement of section 182(b)(2)(A) in this
case.
The commentor's calculations of emission reductions resulting from
the implementation of non-CTG VOC RACT in the plastic parts, wood
furniture and industrial clean up solvents are somewhat unclear and
inaccurate. However, the EPA agrees with the commentor's assumption
that in the calculations to determine the emissions on a tons per day
basis from a tons per year basis, the tons per year figure should be
divided by 365 days. Since the tons per year figures were based on a
theoretical emission value, assuming the facilities are operating 365
days per year, dividing by 365 is more accurate and appropriate than
dividing by 250. In its original calculations, the EPA erroneously
divided by 250 days assuming that the tons per year figure was based on
actual emissions and the facilities only operated on weekdays and not
on weekends or holidays.
The commentor references two documents as the basis of its
calculations, the ``Lake Michigan Ozone Control Program Evaluation of
Possible Control Measures: Control of Surface Coating of Plastic Parts;
Control of Emissions from Wood Furniture Coating [VOC], Evaluation of
Possible Control Measures for Solvent Metal Cleaning,'' developed
through the Lake Michigan Air Directors Consortium, April 16,
1993 \18\ and ``Meeting the 15-Percent Rate-of-Progress Requirement
Under the Clean Air Act: A Menu of Options,'' from STAPPA/ALAPCO,
September 1993.\19\
---------------------------------------------------------------------------
\18\ Hereinafter referred to as ``LADCO document.''
\19\ Hereinafter referred to as ``STAPPA/ALAPCO document.''
---------------------------------------------------------------------------
In calculating potential emission reductions for the plastic parts
coating source category, EPA believes that the commentor assumed a 95
percent reduction in emissions. This value appears to be based on the
LADCO document, which estimates a potential 40-95 percent emission
reduction depending on the level of control applied to the source
category. The 95 percent reduction assumes that these sources are
uncontrolled and that the State's rule would require the most stringent
of three control options that represent RACT. Since Michigan has a rule
applicable to plastic parts coating sources, the emission reductions
would be far less than the 95 percent assumed by the commentor. In
fact, according to Michigan's calculations, a non-CTG VOC RACT rule
would achieve, approximately, an additional 7 percent reduction to the
reductions already achieved by Michigan's Rule 632. The 7 percent
reduction represents the additional reductions that would be achieved
from the level of controls required by Michigan's current Rule 632 and
a level of RACT between the first and second control options available
in the draft CTG for this source category.
With respect to the wood furniture source category, the commentor
assumed a 70 percent emission reduction. It appears that this value,
again, was based on the LADCO document, which estimates a 50-70 percent
emission reduction in the wood furniture coating source category. In
its calculation of the emission reductions for this source category,
EPA assumed a 30 percent emission reduction. This was based on an
emission reduction estimate from the non-CTG document ``Control of
Volatile Organic Compound Emissions from Wood Furniture Manufacturing
Operations,'' September 7, 1995. Furthermore, the STAPPA/ALAPCO
document referred to by the commentor also estimates an emission
reduction of approximately 36 percent. While EPA's assumption is not as
optimistic as that assumed by the commentor, EPA believes that the 30
percent emission reduction is a reasonable assumption based on EPA
guidance and documentation, which estimates a range of reductions
between 20 and 47 percent depending on the process being controlled.
Furthermore, even if the optimistic 70 percent emission reduction is
assumed, emission reductions from the implementation of I/M or low RVP
(to 7.8 psi), at various time intervals, would achieve greater
reductions than the plastic parts coating, wood furniture coating and
industrial clean-up solvents in aggregate. In addition, emission
reductions from the implementation of I/M, low RVP or Stage II would
bring about far greater reductions than any of these non-CTG VOC RACT
rules individually, even with the 70 percent emission reduction assumed
by the commentor.
The commentor appears to be assuming a 15 percent emission
reduction for the industrial clean-up solvents source category. The EPA
based its calculations on an assumption of 25 percent reduction. Since
the basis of the 15 percent assumption is unclear and EPA assumed a
higher percentage emission reduction than did the commentor, this does
not appear to be an issue of contention.
Consequently, EPA's conclusion that the other, more effective
contingency measures, should and would be implemented first even if
these RACT rules were to be fully adopted prior to redesignation, is
not affected.
III. Final Rulemaking Action
The EPA approves the redesignation of the Grand Rapids, Michigan
ozone area to attainment and the section 175A maintenance plan as a
revision to the Michigan SIP. The State of Michigan has satisfied all
of the necessary requirements of the Act.
EPA finds that there is good cause for this redesignation to
attainment, and SIP revision to become effective immediately upon
publication because a delayed effective date is unnecessary due to the
nature of a redesignation to attainment which relieves the area from
certain Clean Air Act requirements that would other wise apply to it.
The immediate effective date for this redesignation is authorized under
both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may
become effective less than 30 days after publication if the rule
``grants or recognizes an exemption or relieves a restriction'' and
section 553(d)(3), which allows an effective date less than 30 days
after publication ``as otherwise provided by the agency for good cause
found and published with the rule.''
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to any SIP shall be
considered separately in light of specific
[[Page 31848]]
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
Ozone SIPs are designed to satisfy the requirements of part D of
the Act and to provide for attainment and maintenance of the ozone
NAAQS. This final redesignation should not be interpreted as
authorizing the State to delete, alter, or rescind any of the VOC or
NOX emission limitations and restrictions contained in the
approved ozone SIP. Changes to ozone SIP VOC regulations rendering them
less stringent than those contained in the EPA approved plan cannot be
made unless a revised plan for attainment and maintenance is submitted
to and approved by EPA. Unauthorized relaxations, deletions, and
changes could result in both a finding of nonimplementation [section
173(b) of the Act] and in a SIP deficiency call made pursuant to
section 110(a)(2)(H) of the Act.
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995,
memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation. The Office of Management and Budget has exempted this
regulatory action from Executive Order 12866 review.
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 economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000. This determination does not create any new
requirements, but suspends the indicated requirements. Therefore,
because this action does not impose any new requirements, I certify
that it does not have a significant impact on small entities affected.
The EPA has determined that today's final action does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local or tribal governments in the aggregate, or
to the private sector. This Federal action imposes no new Federal
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
The SIP approvals under section 110 and subchapter I, part D of the
Act do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Act forbids EPA to base its actions on such grounds. Union Electric Co.
v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section
7401(a)(2).
Under section 801(a)(1)(A) of the APA as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a
report constraining this rule and other required information to the
U.S. Senate, the U.S. House of Representative and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by section 804(2) of the APA as amended.
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rulemaking that includes a Federal mandate that may result in
estimated costs to State, local, or tribal governments in the
aggregate; or to the private sector, of $100 million or more. Section
203 requires the EPA to establish a plan for informing and advising any
small governments that may be significantly or uniquely impacted by the
rule. Under section 205, the EPA must select the most cost-effective
and least burdensome alternative that achieves the objectives of the
rule and is consistent with statutory requirements.
Redesignation of an area to attainment under section 107(d)(3)(E)
of the Act does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. The
Administrator certifies that the approval of the redesignation request
will not affect a substantial number of small entities.
Under section 307(b)(1) of the Act, petitions for judicial review
of this final action must be filed in the United States Court of
Appeals for the appropriate circuit by August 20, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2)).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Nitrogen oxides, Ozone,
Volatile organic compounds, Motor vehicle pollution, and reporting and
record keeping requirements.
40 CFR Part 81
Environmental protection, Air pollution control, Carbon monoxide,
National parks, Wilderness areas, Hydrocarbons, Nitrogen oxides, Ozone,
and Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 17, 1996.
David A. Ullrich,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
Subpart X--Michigan
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1170 is amended by adding paragraph (c)(106) to read
as follows:
Sec. 52.1170 Identification of plan.
* * * * *
(c) * * *
(106) On March 9, 1995, the State of Michigan submitted as a
revision to the Michigan State Implementation Plan for ozone a State
Implementation Plan for a section 175A maintenance plan for the Grand
Rapids area as part of Michigan's request to redesignate the area from
moderate nonattainment to attainment for ozone. Elements of the section
175A maintenance plan include an attainment emission inventory for
NOX and VOC, a demonstration of maintenance of the ozone NAAQS
with projected emission inventories to the year 2007 for NOX and
VOC, a plan to verify continued attainment, a contingency plan, and a
commitment to submit a subsequent maintenance plan revision in 8 years
as required by the Clean Air Act. If a violation of the ozone NAAQS,
[[Page 31849]]
determined not to be attributable to transport from upwind areas, is
monitored, Michigan will implement one or more appropriate contingency
measure(s) contained in the contingency plan. Once a violation of the
ozone NAAQS is recorded, the State will notify EPA, review the data for
quality assurance, and conduct a technical analysis, including an
analysis of meteorological conditions leading up to and during the
exceedances contributing to the violation, to determine local
culpability. This preliminary analysis will be submitted to EPA and
subjected to public review and comment. The State will solicit and
consider EPA's technical advice and analysis before making a final
determination on the cause of the violation. The Governor or his
designee will select the contingency measure(s) to be implemented
within six months of a monitored violation attributable to ozone and
ozone precursors from the Grand Rapids area. The menu of contingency
measures includes a motor vehicle inspection and maintenance program,
Stage II vapor recovery, gasoline RVP reduction to 7.8 psi, RACT on
major non-CTG VOC sources in the categories of coating of plastics,
coating of wood furniture, and industrial cleaning solvents. Michigan
submitted legislation or rules for I/M in House Bill No 4165, signed by
Governor John Engler on November 13, 1993; Stage II in Senate Bill 726
signed by Governor John Engler on November 13, 1993; and RVP reduction
to 7.8 psi in House Bill 4898 signed by Governor John Engler on
November 13, 1993.
(i) Incorporation by reference.
(A) State of Michigan House Bill No. 4165 signed by the Governor
and effective on November 13, 1993.
(B) State of Michigan Senate Bill 726 signed by the Governor and
effective on November 13, 1993.
(C) State of Michigan House Bill No. 4898 signed by the Governor
and effective on November 13, 1993.
2. Section 52.1174 is amended by adding paragraph (o) to read as
follows:
Sec. 52.1174 Control strategy: Ozone.
* * * * *
(o) Approval--On March 9, 1996, the Michigan Department of
Environmental Quality submitted a request to redesignate the Grand
Rapids ozone nonattainment area (consisting of Kent and Ottawa
Counties) to attainment for ozone. As part of the redesignation
request, the State submitted a maintenance plan as required by 175A of
the Clean Air Act, as amended in 1990. Elements of the section 175A
maintenance plan include an attainment emission inventory for NOX
and VOC, a demonstration of maintenance of the ozone NAAQS with
projected emission inventories to the year 2007 for NOX and VOC, a
plan to verify continued attainment, a contingency plan, and a
commitment to submit a subsequent maintenance plan revision in 8 years
as required by the Clean Air Act. If a violation of the ozone NAAQS,
determined not to be attributable to transport from upwind areas, is
monitored, Michigan will implement one or more appropriate contingency
measure(s) contained in the contingency plan. Once a violation of the
ozone NAAQS is recorded, the State will notify EPA, review the data for
quality assurance, and conduct a technical analysis, including an
analysis of meteorological conditions leading up to and during the
exceedances contributing to the violation, to determine local
culpability. This preliminary analysis will be submitted to EPA and
subjected to public review and comment. The State will solicit and
consider EPA's technical advice and analysis before making a final
determination on the cause of the violation. The Governor or his
designee will select the contingency measure(s) to be implemented
within 6 months of a monitored violation attributable to ozone and
ozone precursors from the Grand Rapids area. The menu of contingency
measures includes a motor vehicle inspection and maintenance program,
Stage II vapor recovery, RVP reduction to 7.8 psi, RACT on major non-
CTG VOC sources in the categories of coating of plastics, coating of
wood furniture, and industrial cleaning solvents. The redesignation
request and maintenance plan meet the redesignation requirements in
section 107(d)(3)(E) and 175A of the Act as amended in 1990,
respectively. The redesignation meets the Federal requirements of
section 182(a)(1) of the Clean Air Act as a revision to the Michigan
Ozone State Implementation Plan for the above mentioned counties.
Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7871q.
2. Section 81.323 is amended by revising the attainment status
designation table entry for the Grand Rapids area for ozone to read as
follows:
Sec. 81.323 Michigan.
* * * * *
Michigan--Ozone
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated areas ----------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Grand Rapids Area:
Kent County.................. June 21, 1996.................. Attainment...................
Ottawa County................ June 21, 1996.................. Attainment...................
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\This date is November 15, 1990, unless otherwise noted.
[[Page 31850]]
[FR Doc. 96-15881 Filed 6-20-96; 8:45 am]
BILLING CODE 6560-50-P
