[Federal Register Volume 60, Number 137 (Tuesday, July 18, 1995)]
[Rules and Regulations]
[Pages 36722-36729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17755]
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[[Page 36723]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[UT24-1-7128; FRL-5261-1]
Determination of Attainment of Ozone Standard for Salt Lake and
Davis Counties, Utah, and Determination Regarding Applicability of
Certain Reasonable Further Progress and Attainment Demonstration
Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On June 8, 1995, the EPA published a direct final and proposed
rulemakings determining that the Salt Lake and Davis Counties, Utah,
moderate ozone nonattainment area had attained the ozone National
Ambient Air Quality Standard (NAAQS). Based on this determination, the
EPA also determined that certain reasonable further progress and
attainment demonstration requirements, along with certain other related
requirements, of part D of Title 1 of the Clean Air Act (CAA), as
amended in 1990, are not applicable to the area so long as the area
continues to attain the ozone NAAQS. The 30-day comment period
concluded on July 10, 1995. During this comment period, the EPA
received two comment letters in response to the June 8, 1995,
rulemaking. This final rule summarizes all comments and EPA's
responses, and finalizes the EPA's determination that the area has
attained the ozone standard and that certain reasonable further
progress and attainment demonstration requirements as well as other
related requirements of part D of the CAA are not applicable to these
areas as long as the area continues to attain the ozone NAAQS.
EFFECTIVE DATE: This action is effective July 18, 1995.
ADDRESSES: Copies of the documents relevant to this action are
available for inspection at the following address: United States
Environmental Protection Agency, Region 8, Air Programs Branch, 999
18th Street, Suite 500, Denver, Colorado 80202-2466.
FOR FURTHER INFORMATION CONTACT: Tim Russ, Air Programs Branch (8ART-
AP), United States Environmental Protection Agency, Region 8, 999 18th
Street, Suite 500, Denver, Colorado 80202-2466, Telephone Number (303)
293-1814.
SUPPLEMENTARY INFORMATION:
I. Background Information
On June 8, 1995, the EPA published a direct final rulemaking (60 FR
30189) determining that the Salt Lake and Davis Counties moderate ozone
nonattainment area has attained the NAAQS for ozone. In that
rulemaking, the EPA determined that, as a consequence of that
determination, the requirements of section 182(b)(1) concerning the
submission of a 15 percent reasonable further progress plan and ozone
attainment demonstration and the requirements of section 172(c)(9)
concerning contingency measures are not applicable to the area so long
as the area does not violate the ozone standard. In addition, the EPA
determined that the sanctions clock started on January 19, 1994, for
this area for failure to submit the section 182(b)(1) reasonable
further progress requirements and section 172(c)(9) contingency
measures would be stopped since the deficiencies on which it was based
no longer exist.
At the same time that the EPA published the direct final rule, a
separate notice of proposed rulemaking was published in the Federal
Register (60 FR 30217). This proposed rulemaking specified that EPA
would withdraw the direct final rule if adverse or critical comments
were filed on the rulemaking. The EPA received two letters containing
adverse comments regarding the direct final rule, within 30 days of
publication of the proposed rule, and is withdrawing the direct final
rule in a separate notice published in this Federal Register.
The specific rationale and air quality analysis the EPA used to
determine that the Salt Lake and Davis Counties ozone nonattainment
area had attained the ozone NAAQS and is not required to submit State
Implementation Plan (SIP) revisions for reasonable further progress,
attainment demonstration and related requirements are explained in the
direct final rule and will not be restated here.
This final rule contained in this Federal Register addresses the
comments which were received during the public comment period and
announces EPA's final action regarding these determinations.
II. Public Comments and EPA Responses
Two letters were received in response to the June 8, 1995, proposal
and direct final Federal Register notices. One was a joint comment from
the Utah Chapter of the Sierra Club and the Wasatch Clean Air Coalition
(Wasatch Coalition) and the other was from the Citizens Commission for
Clean Air in the Lake Michigan Basin (Citizens Commission). The
following discussion summarizes and responds to the comments received.
Comment 1.: According to the Sierra Club and Wasatch Coalition, the
procedure used by EPA unlawfully circumvents the formal redesignation
process required by section 107(d) of the CAA. The commentors stated
that Utah has not met the technical and legal requirements for
redesignation of the Salt Lake and Davis Counties nonattainment area to
attainment for ozone and that, as a result, EPA's finding that certain
CAA requirements do not apply is illegal and inappropriate. According
to the commentors, EPA may not redesignate an area to attainment unless
the criteria of section 107(d)(3) of the CAA have been satisfied and
EPA may not allow nonattainment areas to avoid requirements by meeting
only one of the five criteria of section 107(d)(3) (the requirement
that a nonattainment area has attained the standard). The commentors
assert that Part D expressly defines attainment or nonattainment
exclusively by reference to the section 107(d) redesignation process
and that the statutory provisions of Part D at issue are tied expressly
to the formal designation process of section 107(d). The commentors
conclude that the ozone nonattainment plan provisions of Part D apply
expressly to areas classified under section 181, which include all
areas designated nonattainment under section 107(d), and that all of
the requirements of section 182(b) apply to all areas designated
nonattainment and classified as moderate under section 181. The
commentors also contend that an area may be excused from sanctions only
on the basis of redesignation to attainment under section 107(d).
Response to Comment 1: In response, EPA first notes that with this
action, EPA is neither redesignating the Salt Lake and Davis Counties
nonattainment area, nor avoiding the redesignation requirements of
section 107(d). All of those requirements remain in effect and must be
satisfied for EPA to approve the pending redesignation request for the
Salt Lake and Davis Counties area. What EPA is doing is making a
determination that since the area is attaining the standard, which is a
factual determination, certain provisions of the CAA, 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. In sum, this action is not and does not purport to
be a redesignation to attainment pursusant to section 107(d).
Consequently, the criteria of section 107(d)(3) do not apply to this
action.
EPA disagrees with the commentors' analysis of the language and
structure of the CAA. EPA's statutory analysis was
[[Page 36724]]
explained in detail in the June 8, 1995, direct final rule and in the
May 10, 1995, memorandum from John Seitz, Director, Office of Air
Quality Planning and Standards, referred to in the June 8, 1995,
Federal Register notice. EPA will not recount that analysis here, but
will respond to the arguments presented by the commentors regarding the
statutory language and structure of Part D of Title I of the CAA as it
relates to EPA's action.
In sum, EPA's legal rationale is based upon the statutory
definition of ``reasonable further progress'' in section 171(1), the
concept that additional reductions are not needed to attain the
standard in an area already attaining the standard, and the language of
section 172(c)(9) requiring contingency measures ``if the area fails to
make reasonable further progress, or to attain the national primary
ambient air quality standard by the attainment date applicable under
this part.'' As the commentors acknowledge, section 171(1) defines
``reasonable further progress'' as ``such annual incremental reductions
in emissions of the relevant air pollutant as are required by this part
or may reasonably be required by the Administrator for the purpose of
ensuring attainment of the applicable national ambient air quality
standard by the applicable date.''
The commentors, however, assert that EPA is ignoring the definition
of ``nonattainment area'' in section 171(2). The commentors then
proceed to argue that as Part D ozone requirements are linked with the
classification under section 181 of areas designated nonattainment for
ozone under section 107(d), EPA cannot excuse ozone nonattainment areas
from full compliance with section 182 unless all requirements of
section 107(d)(3) are met.
In response, EPA first notes that the commentors appear to equate
the designation of an area as attainment or nonattainment with the
factual issue of whether an area, regardless of its designation, is
attaining the standard. These are two distinct issues, however. Title I
of the CAA, including Part D, contains provisions that distinguish
between the concept of whether an area is attaining a standard and an
area's designation as attainment or nonattainment.
Indeed, section 107(d)(3) itself clearly demonstrates the
distinction as 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.'' (Section
107(d)(3)((E)(i).) Plainly, the CAA clearly contemplates that there
will be areas designated nonattainment that are attaining the standard
as 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.
A provision of Part D that demonstrates the distinction between
attaining the standard and the designation of an area as attainment or
nonattainment is section 182(f), which authorizes EPA to waive NOx
reduction requirements that apply to ozone nonattainment areas by
virtue of their designation and classification if EPA determines that
the NOx reductions would ``not contribute to attainment of the''
standard. EPA has interpreted and applied this provision 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. See,
e.g., 60 FR 3760 (January 19, 1995) (final action on NOx waivers for
Toledo and Dayton, Ohio). Thus, that provision clearly contemplates
that areas designated nonattainment that have attained the standard may
have certain specified requirements waived.
In sum, the CAA clearly 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 expressly contemplates
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 detract from EPA's interpretation of the language of section 171(1)
defining ``reasonable further progress'' requirements in terms of
reductions for the purpose of ``ensuring attainment.''
EPA agrees with the commentors' basic conception of the Part D
ozone nonattainment area requirements, which is that the classification
of an area designated nonattainment for ozone determines the set of
requirements of subpart 2 to which the area is subject. For example,
areas such as the Salt Lake and Davis Counties area that are classified
as moderate pursuant to section 181 are subject to the requirements of
section 182(b), while areas that are classified as serious are subject
to the requirements of section 182(c).
The question at issue in this rulemaking concerns the substance of
some of those requirements. As a general matter, section 182(b)(1) and
section 172(c)(9) apply to moderate ozone nonattainment areas. However,
in this rulemaking EPA is interpreting section 182(b)(1) and 172(c)(9)
such that they do not impose SIP submission requirements on 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 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. If, prior to the redesignation of such an area to attainment,
the area violates the ozone NAAQS, that determination will no longer
apply. That area, by virtue of its continuing designation and
classification as a moderate ozone nonattainment area, will once again
be faced with an obligation to submit SIP revisions pursuant to
sections 172(c)(9) and 182(b)(1).
Moreover, other requirements of part D that are not written in such
a way as to require submissions only if an area is not attaining the
standard continue to apply solely by virtue of the area's
classification and designation as a moderate ozone nonattainment area.
For example, the Volatile Organic Compound (VOC) Reasonably Available
Control Technology (RACT) requirements of section 182(a)(2) and
182(b)(2) apply regardless of whether an area is attaining the
standard. Similarly, the requirements of part D new source review
(e.g., sections 182(a)(2)(C) and (b)(5)) continue to apply to areas
designated nonattainment solely by virtue of their continuing
nonattainment designation.
In sum, EPA disagrees with the commentors' view that this
rulemaking is a de facto redesignation to attainment without complying
with all of the redesignation requirements of section 107(d)(3)(E). The
Salt Lake and Davis Counties area remains a moderate ozone
nonattainment area and remains subject to the requirements of the CAA
applicable to such areas pursuant to sections 172(c) and 182(b). These
include requirements such as VOC RACT and part D new source review,
whose applicability is linked solely to the area's status as a
designated ozone nonattainment area that has been classified as
moderate. What EPA is determining is that the SIP submission
requirements of section 182(b)(1) regarding 15% reasonable further
progress and attainment demonstration
[[Page 36725]]
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 can and should
be interpreted not to apply for so long as the area continues to attain
the standard. Whether the Salt Lake and Davis Counties nonattainment
area may be redesignated to attainment pursuant to section 107(d)(3)(E)
is a matter still pending before EPA and is not the subject of this
rulemaking action.
EPA also disagrees with the commentors' contentions regarding
sanctions. The basis for the initiation of a sanctions clock in this
instance was a finding that plan revisions required by the CAA were not
submitted (see section 179(a)). If EPA determines that the requirement
that led to that finding no longer applies, then the basis for the
initiation of the sanctions clock no longer exists and mandatory
sanctions under section 179 should not apply 18 months after the
finding as they would if the deficiency (the failure to make a required
SIP submission) that led to the finding still existed.
Comment 2: The Sierra Club and Wasatch Coalition commented that
EPA's procedure violates an important policy goal of the CAA--the
assurance that standards will be maintained in the future. According to
the commentors the four criteria, other than having attained the
standard, that must be satisfied for an area to be redesignated to
attainment are intended to assure continued attainment of the standard.
The commentors stated that if EPA exempts Salt Lake and Davis Counties
from the RFP and contingency plan requirements there may be little
incentive for the State to proceed with redesignation of the area and
the additional requirements would not be met. In addition, the
commentors contend that the State is having difficulty demonstrating
that the NAAQS will be maintained over the next 15 years due to
anticipated growth and that some current emission reductions are not
due to permanent and enforceable requirements. According to the
commentors, EPA's proposed action regarding the section 182(b)(1) and
section 172(c)(9) requirements and sanctions would circumvent the
preventive approach of the CAA. The commentors assert that the
nonconservative approach of having the excused requirements being
retriggered in the event of a violation is inappropriate and
inconsistent with congressional intent since it does not assure that
adequate controls are in place to prevent violations; it relies on
correcting inadequate programs only after harm occurs, which will
result in residents being required to breathe unhealthy air that should
have been prevented.
Response to Comment 2: As discussed above, this proceeding is not a
redesignation and EPA is not required to apply the criteria of section
107(d)(3)(E) in determining whether the Salt Lake and Davis Counties
nonattainment area has attained the standard for purposes of
determining whether the area is presently required to submit SIP
revisions pursuant to sections 182(b)(1) and 172(c)(9). That does not
mean that EPA is not concerned with the area's ability to continue to
maintain the NAAQS in the future.
First, as discussed above, EPA's action applies only to certain
requirements. It does not relax any existing SIP control measures,
e.g., VOC RACT requirements. Those requirements will continue to apply,
as well as federal requirements such as the federal motor vehicle
control program, which will produce additional emission reductions in
the future due to fleet turnover, and Reid Vapor Pressure (RVP)
requirements. These measures have produced permanent and enforceable
emission reductions in the period leading to the area's attainment of
the standard and will continue to produce such emission reductions.
Second, EPA's action is contingent upon the area continuing to
attain the NAAQS. Unless the area is redesignated, it will remain an
ozone nonattainment area, subject to the risk that if a violation
occurs it will have to adopt and implement a 15% VOC emission reduction
plan and a plan that demonstrates attainment pursuant to section
182(b)(1), as well as the section 172(c)(9) contingency measures. Thus,
if it turns out that the existing SIP control measures and other
requirements are not adequate to prevent a violation, additional
control measures will be required.
EPA acknowledges the concern of the commentors that EPA's approach
may mean that those control measures would not be adopted and
implemented as quickly as they would be if EPA continued to require the
section 182(b)(1) and 172(c)(9) SIP submissions at this time. EPA
believes, however, that a countervailing policy objective is to reduce
the burden on states and sources of adopting and implementing
additional control measures that are not necessary to attain the
standard. The Salt Lake and Davis Counties nonattainment area has been
in attainment of the standard since the 1991-93 period and continues to
be in attainment. Indeed, no exceedances of the standard have been
monitored since 1991 and only one exceedance was monitored in 1991.
(For a violation to occur, the expected exceedances must amount to four
over a three-year period at the same monitoring location.) In such a
case, where an area has attained the standard, EPA believes it
appropriate and justifiable to adopt an approach that alleviates the
burdens of adopting and implementing additional control measures that
do not appear necessary to achieve the objective of attaining the
standard.
As noted previously, the Salt Lake and Davis Counties nonattainment
area will be at risk of having to adopt a 15% reasonable further
progress plan, attainment demonstration, and section 172(c)(9)
contingency measures unless it is redesignated to attainment. In order
to be redesignated to attainment, however, the area will have to
satisfy all of the criteria of section 107(d)(3)(E), including the
requirement that EPA fully approve a maintenance plan satisfying the
requirements of section 175A, which requires a plan to maintain the
standard for a period of 10 years after an area is redesignated. As the
sufficiency of the State's maintenance plan is an issue for the
proceeding that evaluates the merits of the State's pending
redesignation request, and not this rulemaking, the comments regarding
the adequacy of that plan will be considered in the redesignation
proceeding.
EPA believes that, contrary to the suggestion of the commentors,
that the State will have adequate incentives to continue to seek the
redesignation of the Salt Lake and Davis Counties area to attainment.
Those incentives include being able to eliminate the risk of being
subject to the 15% plan requirement, rather than have to address a
requirement to achieve 15% VOC emission reductions in the event of a
violation. Furthermore, if the area violates the standard prior to
redesignation, it will be subject to the ``bump-up'' provisions of
section 181(b)(2), which require the area to be ``bumped up'' to the
next higher classification (serious) and subject to additional
requirements above and beyond the requirements applicable to moderate
ozone nonattainment areas. This provides an additional substantial
incentive for the State to satisfy the requirements for redesignation
to attainment. In addition, unless an area is redesignated, part D new
source review, rather than part C prevention of significant
deterioration requirements, must continue to apply.
Comment 3: The Sierra Club and Wasatch Coalition disagree that the
[[Page 36726]]
relevant data demonstrate that the Counties have attained the NAAQS for
ozone. The commentors argue that the State should have to conclusively
demonstrate that the NAAQS for ozone is being met, and, in their view,
the State has not done so. The commentors note that EPA has expressed
concern over the number and placement of monitoring stations and that
studies of the monitoring network conducted in the summers of 1993 and
1994 concluded that additional monitoring stations should be
established and that existing stations were not well placed to measure
maximum ozone concentrations. The commentors argue that only one year
of preliminary data are available from new stations established as a
result of these studies and that attainment cannot be demonstrated
based on only one year of data from the new sites. The commentors also
cite the complexity of meteorological patterns in the affected area,
which may result in variable ozone levels at different locations at
different times. Because of this meteorological complexity, the
commentors argue that it is inappropriate to extrapolate a finding of
areawide compliance from a few monitoring sites. According to the
commentors, these problems may lead to a false conclusion of attainment
throughout the nonattainment area. In the commentors' view, this
concern is far more serious because data from monitoring locations is
so close to the applicable standard and very small increases at
different locations would indicate nonattainment with the standard. The
commentors feel it is premature to conclude that the standard has been
met.
The Citizens Commission expresses similar concerns regarding the
air quality monitoring data upon which EPA based its proposal.
Response to Comment 3: EPA has approved the monitoring network for
the Salt Lake and Davis Counties nonattainment area as meeting the
requirements of its regulations. EPA has not taken any action to
disapprove the network but, as described in detail below, has been
working with the State of Utah to improve the quality of the network.
Although EPA and the State are undertaking studies that may result in
improvements to the network, that does not mean that EPA views the
monitoring data showing attainment of the standard as being inadequate
or unreliable. EPA continually reviews the monitoring networks to
determine how they can be improved. However, the fact that a monitoring
network may be able to be improved 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 support a determination
that the Salt Lake and Davis Counties area has attained the standard.
That network remains a fully approved network and EPA does not believe
that there is a basis for discounting the data showing attainment of
the standard since 1990.
EPA further notes that no exceedances have been monitored in the
area since 1991, and only one was monitored in 1991. (Contrary to the
assertion of the commentors, EPA's methodology of rounding down a
monitored reading of up to .124 to .12 is not inconsistent with 40 CFR
Part 50, App. H. That is EPA's long-standing approach to determining
whether exceedances occur and is fully justified and appropriate.)
Also, not only did the existing network fail to record an exceedance in
1994, but none of the additional monitors established as part of the
ongoing studies discussed below monitored an exceedance. While those
monitors have yet to be in operation a full three 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 Salt Lake and Davis
Counties area amply support the determination that the area has
attained the standard.
What follows is a more detailed explanation of EPA's reviews of the
ozone monitoring network and the ongoing studies being conducted to
evaluate it. The Utah Division of Air Quality conducted network reviews
and submitted packages of information describing reviews of the State's
air monitoring network (including ozone monitoring stations) covering
the period of 1991 through 1994. EPA has reviewed the submittals.
In a letter from Marshall Payne to Burnell Cordner dated September
1, 1992 regarding the State's network review submittal of May 1 and May
15, 1992, EPA concluded the network review met the requirements of 40
CFR, Part 58.20(d). In a letter from Marshall Payne to Russell Roberts
dated January 13, 1994 regarding the State's network review submittal
of June 2, 1993, EPA commented on the results of the 1993 saturation
study and requested that the State submit a plan to revise the ozone
monitoring network. The State's response to that request was dated
March 4, 1994; EPA replied in a letter from Marshall Payne and Douglas
Skie dated April 13, 1994. In the April 13, 1994 letter, EPA urged the
State to proceed with proposed additions to the ozone network for the
1994 ozone season. The State added several ozone stations, which
collected data in the 1994 ozone season.
A letter from Douglas Skie to Russell Roberts dated May 5, 1995
regarding the State's network review submittal of September 30, 1994,
stated that, in general, EPA supported the modifications to the ozone
network resulting from the 1993 and 1994 saturation studies. In the
same letter, EPA urged the State to designate National Air Monitoring
Stations both in Ogden and the Provo-Orem area. In the May 5, 1995
letter, EPA also acknowledged the State's request to discontinue the
Springville ozone station due to low observed concentrations; EPA
concurred that this station, having been established based upon the
saturation study of 1993, had fulfilled its purpose and was no longer
needed. The Salt Lake City station (610 South Second East) was
discontinued late in 1994 due to permanent structural changes on the
roof of the Health Department building.
The State submitted a report, ``Wasatch Front Ozone Saturation
Study, Summer, 1994'' under a letter dated April 3, 1995. The report
cited limitations of the passive sampling devices used in the study;
those limitations impede the ability to confidently select sites for
maximum concentration stations on the basis of saturation studies
alone. Because of differences in meteorological conditions between 1993
and 1994, EPA contends the results of the 1994 study suggest it is
important to operate a network of ozone monitoring stations with
diverse exposures in the Wasatch Front. Maximum ozone concentrations
were measured relatively close to the urban core of Salt Lake City,
while some high concentrations may still occur in the periphery. The
report suggested the possibility of establishing an ozone monitoring
station on the east bench of Salt Lake City (viz., in the vicinity of
Sandy and Draper, Utah). EPA has supported the plan to install such a
station and has urged the State to proceed.
Concentrations of air pollutants, particularly ozone, are dynamic
and air monitoring networks should continually be reviewed and
transformed to ensure pollutant concentrations are accurately reflected
in the national data base. EPA has, through the network review process,
examined submittals bearing upon the design of the ozone network in the
Wasatch Front, made comments on changes recommended in the network
design, and concurred on the design of the ozone network during the
period of
[[Page 36727]]
1991 to 1994. Results of the saturation studies of 1993 and 1994 were
also reviewed by EPA. EPA expressed concerns regarding the network
design during the period 1991 to 1994 and requested that the State make
modifications; however, the proposed changes evolved as part of the
normal process of network design review. The State took action to
address the concerns and modified the network. The ozone standard has
not been violated in the Wasatch Front during the period from 1991 to
1994; there have been no exceedances since 1991. It is EPA's position
that the State of Utah modified, sited, and operated the ozone
monitoring network consistent with 40 CFR Part 58 during those years
and that the resulting data can reasonably be relied upon to
characterize the ozone attainment status of Salt Lake and Davis
Counties.
Comment 4: The Citizens Commission stated that the rulemaking is an
abuse of agency discretion and violates sections 172(c)(9), 179(a) and
182(b)(1) of the Act. According to the commentor, EPA may suspend the
applicablility of SIP requirements only through a redesignation to
attainment pursuant to section 107(d)(3)(E).
Response to Comment 4: For the reasons stated above, in the June 8,
1995, Federal Register notice, and in the May 10, 1995, memorandum from
John Seitz, the EPA does not believe that the rulemaking violates any
section of the CAA. The commentor has not offered any persuasive
reasoning for EPA to depart from the rationale spelled out in the
previous documents. The EPA believes that since the area has attained
the ozone standard, it has achieved the stated purpose of the section
182(b)(1) reasonable further progress and attainment demonstration
requirements, as well as the section 172(c)(9) contingency measures
requirement. As described above, this action is not a redesignation,
nor does it circumvent the requirements for a redesignation under
section 107(d)(3)(E).
Comment 5: The Citizens Commission stated that EPA's action is not
a reasonable interpretation of EPA's nondiscretionary mandate under
section 101(b)(1) to ``protect and enhance the quality of the Nation's
air resources so as to promote the public health and welfare and the
productive capacity of its population.''
Response to Comment 5: The EPA disagrees with the commentor's
statement that its action violates section 101(b)(1). Section 101(b)(1)
does not establish a nondiscretionary duty; it is a statement of
purpose--a purpose that EPA is not disregarding in this action. The
area has attained the primary ozone standard, a standard designed to
protect public health with an adequate margin of safety (see section
109(b)(1)). EPA's action does not relax any of the requirements that
have led to the attainment of the standard. Rather, its action has the
effect of suspending requirements, for additional pollution reductions,
above and beyond those that have resulted in the attainment of the
health-based standard.
Comment 6: The Citizens Commission asserts that EPA's action
violates the Administrative Procedure Act and the CAA through its
reliance on unpublished memoranda and the General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990, 57
FR 13498 (April 16, 1992). According to the commentor, reliance on
those documents is inappropriate and illegal since those documents were
issued without opportunity for notice and comment and are not
enforceable regulations. The commentor also states that EPA's action is
barren of any statement of legal authority.
Response to Comment 6: EPA's reference to and reliance on those
documents, all of which are either published or publicly available and
a part of the record of this rulemaking, is in no way illegal under
provisions of either the CAA or the Administrative Procedures Act. (The
commentor cited no specific provisions of either act.) EPA agrees that
such documents do not establish enforceable regulations; they do not
purport to be anything but guidance. That is precisely why EPA has
performed this rulemaking--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
Salt Lake and Davis Counties area. The June 8, 1995, Federal Register
notices referred to EPA's prior policy memoranda not as binding the
Agency to adopt the interpretations being proposed therein, but rather
as a useful description of the rationale underlying those proposed
interpretations. EPA has explained the legal and factual basis for its
rulemaking in the June 8, 1995, Federal Register notices 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 Administrative Procedures Act. (The
procedural requirements of section 307(d) of the CAA do not apply to
this rulemaking since it is not among the rulemakings listed in section
307(d)(1).)
Comment 7: The Citizens Commission states that the suspension of
the contingency measure requirement is particularly inappropriate given
the dubious adequacy of the monitoring network. According to the
commentor, EPA's action threatens to subject citizens to acute ozone
episodes to which neither the State nor EPA are likely to be able to
respond effectively due to the lack of implemented measures that would
otherwise have been required.
Response to Comment 7: The response to Comment 3 above contains
EPA's discussion of the adequacy of the monitoring network in the Salt
Lake and Davis Counties area. As noted in the response to Comment 2
above, EPA acknowledges the concerns of the commentors regarding the
likelihood that additional control measures may not be adopted and
implemented as quickly as if EPA continued to require their adoption
and submission at this time, but believes that countervailing policy
considerations exist. Moreover, EPA notes that additional emission
reductions will continue to occur as existing control measures are not
being relaxed and the federal motor vehicle control program will
continue to produce additional reductions through fleet turnover. As
the language quoted by the commentor from EPA's June 8, 1995, Federal
Register notice indicates, EPA would take individual circumstances into
account, which would include the severity of any problems, in
establishing the period in which the State would have to address the
SIP requirements. EPA believes that it and the State would be able to
respond effectively and promptly in the event a violation occurs.
Comment 8: The Citizens Commission states that the Salt Lake and
Davis Counties nonattainment area cannot be temporarily redesignated in
this manner, especially solely on the basis of marginal air quality
data indicating momentary achievement of the standard.
Response to Comment 8: As explained elsewhere in this notice, EPA's
action is not a redesignation and is both appropriate and legally
justified. Moreover, as explained above, the air quality data
underlying the determination is sufficient. Finally, the data are not
marginal and do not indicate ``momentary achievement'' of the standard.
No exceedances have been monitored over the most recent full 3-year
period and only one exceedance was monitored in 1991. Thus, the area
has had clean data for an extended period of time during which emission
reductions have occurred due to the
[[Page 36728]]
imposition of various control measures such as the federal motor
vehicle control program, VOC RACT requirements, and RVP requirements.
Final Rulemaking Action
The EPA is making a final determination that the Salt Lake and
Davis Counties ozone nonattainment area has attained the ozone standard
and continues to attain the standard at this time. As a consequence of
this determination, the requirements of section 182(b)(1) concerning
the submission of the 15 percent reasonable further progress plan and
ozone attainment demonstration and the requirements of section
172(c)(9) concerning contingency measures are not applicable to the
area so long as the area does not violate the ozone standard.
The EPA emphasizes that these determinations are contingent upon
the continued monitoring and continued attainment and maintenance of
the ozone NAAQS in the affected area. When and if a violation of the
ozone NAAQS is monitored in the Salt Lake and Davis Counties
nonattainment area (consistent with the requirements contained in 40
CFR Part 58 and recorded in AIRS), the EPA will provide notice to the
public in the Federal Register. Such a violation would mean that the
area would thereafter have to address the requirements of section
182(b)(1) and section 172(c)(9) since the basis for the determination
that they do not apply would no longer exist.
As a consequence of the determination that these areas have
attained the NAAQS and that the reasonable further progress and
attainment demonstration requirements of section 182(b)(1) and
contingency measure requirement of section 172(c)(9) do not presently
apply, these are no longer requirements within the meaning of 40 CFR
Sec. 52.31(c)(1). Consequently, the sanctions clock started by EPA on
January 19, 1994, for failure to submit SIP revisions required by the
provisions of the CAA is hereby stopped.
Specific to the Salt Lake and Davis Counties' ozone nonattainment
area, Governor Michael Leavitt submitted a Redesignation Request and
Maintenance Plan on November 12, 1993. On January 13, 1995, the
Governor submitted revisions to that initial submittal that included
revised emission inventories.
Because the State submitted an Ozone Redesignation Request and
Maintenance Plan SIP revision for Salt Lake and Davis Counties, in lieu
of a 15 percent SIP revision, Salt Lake and Davis Counties have been
subject to the motor vehicle emissions budget in the Ozone
Redesignation Request and Maintenance Plan SIP revision for
transportation conformity purposes (see 40 CFR 93.128(i)).
Pursuant to EPA's new May 10, 1995, policy, the State may continue
to demonstrate conformity to this submitted motor vehicle emissions
budget, or the State may choose to withdraw the applicability of the
motor vehicle emissions budget in the Ozone Redesignation Request and
Maintenance Plan SIP revision for transportation conformity purposes,
through the submittal of a letter from the Governor. If the
applicability of the submitted motor vehicle emissions budget is
withdrawn for transportation conformity purposes, only the build/no-
build and less-than-1990 tests will apply until the Ozone Redesignation
Request and Maintenance Plan are approved. If the applicability of the
submitted motor vehicle emissions budget is not withdrawn for
transportation conformity purposes, it will continue to apply.
The EPA finds that there is good cause for this action to become
effective immediately upon publication because a delayed effective date
is unnecessary due to the nature of this action, which is a
determination that certain Act requirements do not apply for so long as
the areas continue to attain the standard. The immediate effective date
for this action is authorized under both 5 U.S.C. Sec. 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 Sec. 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.''
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. Today's determination does not create any new
requirements, but suspends the indicated requirements. Therefore,
because this notice does not impose any new requirements, I certify
that it does not have a significant impact on small entities affected.
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the 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.
The EPA has determined that this final rule action does not include
a Federal mandate that may result in estimated costs of $100 million or
more to either State, local or tribal governments in the aggregate, or
to the private sector. This Federal action imposes no new Federal
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
Under section 307(b)(1) of the Act, petitions for judicial review
of this final rule action determining that the Salt Lake and Davis
Counties ozone nonattainment area has attained the NAAQS for ozone and
that certain reasonable further progress and attainment demonstration
requirements of section 182(b)(1) and the contingency measures
provisions of section 172(c)(9) no longer apply must be filed in the
United States Court of Appeals for the appropriate circuit by September
18, 1995. Filing a petition for reconsideration by the Administrator of
this final rule does not affect the finality of this rule for the
purposes of judicial review nor does it extend the time within which a
petition for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See CAA section
307(b)(2)).
Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen oxides,
Ozone, Volatile organic compounds,
[[Page 36729]]
Intergovernmental relations, Reporting and record keeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: July 13, 1995.
Jack W. McGraw,
Acting Regional Administrator.
40 CFR part 52, Subpart TT, is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart TT--Utah
2. Section 52.2332 is added to read as follows:
Sec. 52.2332 Control Strategy: Ozone.
Determinations--EPA is determining that, as of July 18, 1995, the
Salt Lake and Davis Counties ozone nonattainment area has attained the
ozone standard based on air quality monitoring data from 1992, 1993,
and 1994, and that the reasonable further progress and attainment
demonstration requirements of section 182(b)(1) and related
requirements of section 172(c)(9) of the Clean Air Act do not apply to
the area for so long as the area does not monitor any violations of the
ozone standard. If a violation of the ozone NAAQS is monitored in the
Salt Lake and Davis Counties ozone nonattainment area, these
determinations shall no longer apply.
[FR Doc. 95-17755 Filed 7-17-95; 8:45 am]
BILLING CODE 6560-50-P
