00-21913. Approval and Promulgation of State Implementation Plans; Michigan

AGENCY:

Environmental Protection Agency.

ACTION:

Direct final rule.

SUMMARY:

The United States Environmental Protection Agency (EPA) is adjusting the applicability date for reinstating the 1-hour ozone National Ambient Air Quality Standard (NAAQS) in Muskegon County, Michigan and is determining that the area has attained the 1-hour ozone NAAQS. This determination is based on 3 consecutive years of complete, quality-assured, ambient air monitoring data for the 1997-1999 ozone seasons that demonstrate that area has attained the ozone NAAQS. On the basis of this determination, EPA is also determining that certain attainment demonstration requirements, and certain related requirements of part D of subchapter I of the Clean Air Act (CAA), do not apply to the Muskegon area.

EPA is also approving the State of Michigan's request to redesignate Muskegon County to attainment for the 1-hour ozone NAAQS. Michigan submitted the redesignation request for the Muskegon area on March 9, 1995, and submitted two updates to the request on June 14 and July 5, 2000. In approving this redesignation request, EPA is also approving the State's plan for maintaining the 1-hour ozone standard for the next 10 years as a revision to the Michigan State Implementation Plan (SIP). In this direct final rule, EPA is also notifying the public that we believe the motor vehicle emissions budgets for volatile organic compounds (VOC) and oxides of nitrogen (NOX) in the Muskegon, MI submitted maintenance plan are adequate for conformity purposes and approvable as part of the maintenance plan.

In the proposed rules section of this Federal Register, EPA is proposing approval of, and soliciting comments on, this SIP revision. If we receive adverse comments on this action, we will withdraw this final rule and address the comments received in response to this action in a final rule based on the related proposed rule. We will not open a second public comment period. Parties interested in commenting on this action should do so at this time.

DATES:

This “direct final” rule is effective October 18, 2000, unless EPA receives adverse written or critical comments by September 29, 2000. If adverse comments are received, EPA will publish timely notice in the Federal Register and withdraw the rule.

ADDRESSES:

Send written comments to: Carlton T. Nash, Chief, Regulation Development Section, Air Programs Branch (AR-18J), United States Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. (We recommend that you telephone John Mooney at [phone] before visiting the Region 5 Office.)

A copy of the SIP revision is available for inspection at the Office of Air and Radiation (OAR) Docket and Information Center (Air Docket 6102), Room M1500, United States Environmental Protection Agency, 401 M Street S.W., Washington, D.C. 20460, [phone].

FOR FURTHER INFORMATION CONTACT:

John M. Mooney, 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, [phone].

SUPPLEMENTARY INFORMATION:

 

Table of Contents

1. Adjustment of Applicability Date for Reinstating the 1-Hour Ozone Standard

A. Why did EPA revoke the 1-hour ozone standard in Muskegon?

B. Why did EPA reinstate the 1-hour ozone standard in Muskegon?

C. What does reinstatement mean for Muskegon?

II. Determination of Attainment

A. What action is EPA taking?

B. Why is EPA taking this action?

C. What would be the effect of this action?

D. What is the background for this action?

E. Where is the public record and where do I send comments?

III. Redesignation Request

A. What action is EPA taking?

B. What would be the effect of the redesignation?

C. What is the background for this action?

D. What are the redesignation review criteria?

E. What is EPA's analysis of the request?

F. Where is the public record and where do I send comments?

IV. Disclaimer Language Approving SIP Revisions

V. What administrative requirements did EPA consider?

A. Executive Order 12866

B. Executive Order 13045

C. Executive Order 13084

D. Executive Order 13132

E. Regulatory Flexibility

F. Unfunded Mandates

G. Submission to Congress and the Comptroller General

H. National Technology Transfer and Advancement Act

I. Petitions for Judicial Review

I. Adjustment of Applicability Date for Reinstating the 1-Hour Ozone Standard

A. Why Did EPA Revoke the 1-Hour Ozone Standard in Muskegon?

On June 5, 1998 (63 FR 31014), July 22, 1998 (63 FR 39432) and June 9, 1999 (64 FR 30911), the EPA revoked the 1-hour ozone NAAQS in many areas around the country in anticipation of implementing the new 8-hour ozone NAAQS that was established in 1997. EPA revoked the 1-hour standard to allow areas that were showing attainment to redirect their focus toward meeting the new 8-hour standard. On June 9, 1999, the EPA revoked the 1-hour standard for the Muskegon area because ozone monitors were showing attainment of the ozone NAAQS.

B. Why Did EPA Reinstate the 1-Hour Ozone Standard in Muskegon?

On May 14, 1999, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision on the 8-hour ozone NAAQS that blocked EPA's ability to implement the new standard. That action left nearly 3,000 U.S. counties without any Federal public health standard for ozone. To remedy this situation, on July 20, 2000, EPA published a final rulemaking action in the Federal Register (65 FR 45181) to reinstate the 1-hour standard in areas where it had been revoked, including Muskegon.

C. What Does Reinstatement Mean for Muskegon?

For areas with clean air quality data, like Muskegon, the July 20, 2000 rulemaking specifies that reinstating the nonattainment designation will occur 180 days after EPA published the rulemaking. EPA is giving these areas extra time to develop and submit redesignation requests and the rule specifies a procedure by which EPA can accelerate the effective date of the reinstatement and redesignate at the same time. EPA is using that procedure in this action.

II. Determination of Attainment

A. What Action is EPA Taking?

The EPA is determining that the Muskegon moderate ozone nonattainment area has attained the NAAQS for ozone. On the basis of this determination, EPA is also determining that certain CAA requirements do not apply to the Muskegon area as long as it continues to attain the ozone NAAQS. These requirements are (section 172(c)(1)) attainment demonstration requirements, (section 172(c)(9)) contingency measure requirement, (section 182(b)(1)) 15 percent plan reasonable further progress (RFP) requirement, and (section 182(b)(1)) attainment demonstration requirement.

B. Why is EPA Taking This Action?

The EPA believes it is reasonable to interpret provisions regarding attainment demonstrations and certain related provisions to not require SIP submissions, as described further below, if an ozone nonattainment area subject to those requirements is monitoring attainment of the ozone standard (i.e., attainment of the NAAQS is demonstrated with three consecutive years of complete, quality-assured, air quality monitoring data). The EPA is basing this determination upon three years of complete, quality-assured, ambient air monitoring data for the 1997 to 1999 ozone seasons that demonstrate that the Muskegon area has attained the ozone NAAQS. Preliminary ozone monitoring data for 2000 continue to show that the area is attaining the ozone NAAQS.

C. What Would Be the Effect of This Action?

The requirements of sections 172(c)(1) and 182(b)(1) concerning the submission of a RFP plan and the ozone attainment demonstration and the requirements of section 172(c)(9) concerning contingency measures for RFP or attainment will not apply to the area.

D. What Is the Background for This Action?

Subpart 2 of part D of Subchapter I of the CAA contains various air quality planning and SIP submission requirements for ozone nonattainment areas. The EPA believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations and certain related provisions to not 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). EPA has interpreted the general provisions of subpart 1 of part D of Subchapter I (sections 171 and 172) to not require the submission of SIP revisions concerning RFP, attainment demonstrations, or contingency measures. As explained in a memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” dated May 10, 1995, EPA believes it is appropriate to interpret the more specific attainment demonstration and related provisions of subpart 2 (section 182) in the same manner. (See Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996))

The attainment demonstration requirements of section 182(b)(1) are that the plan provide for “such specific annual reductions in emissions * * * as necessary to attain the national primary ambient air quality standard by the attainment date applicable under the CAA.” If an area has monitored attainment of the relevant NAAQS, EPA believes there is no need for the State to submit additional measures to achieve attainment. This is consistent with the interpretation of certain section 172(c) requirements provided by EPA in State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (57 FR 13498). As EPA stated in the preamble, no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached” (57 FR 13564). Upon attaining the NAAQS, the focus of state planning efforts shifts to maintaining the NAAQS and developing a maintenance plan under section 175A.

Similarly, the EPA has previously interpreted the contingency measure requirement of section 172(c)(9) as no longer applying once an area has attained the standard since those “contingency measures are directed at ensuring RFP and attainment by the applicable date” (57 FR 13564).

The state must continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area. The air quality data relied upon to determine that the area is attaining the ozone standard must be consistent with 40 CFR part 58 requirements and other relevant EPA guidance and recorded in EPA's Aerometric Information Retrieval System (AIRS).

The determinations in this notice do not shield an area from future EPA action to require emissions reductions from sources in the area where there is evidence, such as photochemical grid modeling, showing that emissions from sources in the area contribute significantly to nonattainment in, or interfere with maintenance by, any other states with respect to the NAAQS (see section 110(a)(2)(D)). The EPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of the CAA to require such emission reductions if necessary and appropriate to deal with transport situations.

The EPA has reviewed the ambient air monitoring data for ozone (consistent with the requirements contained in 40 CFR part 58 and recorded in AIRS) for the Muskegon moderate ozone nonattainment area from the 1997 through 1999 ozone seasons. This data is summarized in Table 1 of this document covering EPA's analysis of the redesignation request. Preliminary monitoring data for 2000 show the area continues to attain the 1-hour ozone NAAQS. On the basis of this review, EPA determines that the area has attained the 1-hour ozone standard during the 1997-99 period, which is the most recent three-year time period of air quality monitoring data. The State therefore is not required to submit an attainment demonstration, 15 percent RFP, and a section 172(c)(9) contingency measure plan.

E. Where is the Public Record and Where Do I Send Comments?

The official record for this direct final rule is located at the addresses in the ADDRESSES section at the beginning of this document. The addresses for sending comments are also provided in the ADDRESSES section at the beginning of this document. If we receive adverse comments on this action, we will withdraw this final rule and address the comments received in response to this action in a final rule based on the related proposed rule. We will not open a second public comment period. Parties interested in commenting on this action should do so at this time.

III. Redesignation Request

A. What Action Is EPA Taking?

The EPA is approving the redesignation request for the Muskegon area because three years of ambient monitoring data demonstrate that the ozone NAAQS has been attained and the area has satisfied the other requirements for redesignation. The EPA is approving the maintenance plan submitted by the Michigan Department of Environmental Quality (MDEQ) as a revision to the SIP. The EPA is also notifying the public that we believe the motor vehicle emissions budgets for VOC and NO_X are adequate for conformity purposes and approvable as part of the maintenance plan.

B. What Would Be the Effect of the Redesignation?

The redesignation would change the official designation of Muskegon County from nonattainment to attainment for the 1-hour ozone standard. It would also put a plan in place to maintain the 1-hour ozone standard for the next 10 years. This plan includes contingency measures to correct any future violations of the 1-hour ozone standard. It also includes motor vehicle emissions budgets for VOC and NO_X which would be used in any conformity determination that is effective on or after the effective date of the maintenance plan approval.

C. What Is the Background For This Action?

The EPA originally designated the Muskegon area as an ozone nonattainment area under section 107 of the 1977 CAA on March 3, 1978 (43 FR 8962). The EPA revisited this original designation in 1991 to reflect new designation requirements contained in the Clean Air Act Amendments of 1990 (1990 Act). The 1990 Act authorized the EPA to designate nonattainment areas according to degree of severity of the nonattainment problem. On November 6, 1991 (56 FR 56694), the EPA designated the Muskegon area as a serious ozone nonattainment area, and later corrected that action to designate the area as a moderate ozone nonattainment area on November 30, 1992 (57 FR 56762).

The Muskegon area has since recorded three years of complete, quality-assured, ambient air quality monitoring data for 1997-1999, thereby demonstrating that the area has attained the 1-hour ozone NAAQS.

On March 9, 1995, the State of Michigan submitted a redesignation request and section 175A maintenance plan for the Muskegon ozone nonattainment area. The State updated this 1995 submittal and submitted the revised plan to the EPA on June 14, 2000, and July 5, 2000. This revised plan included updated emissions inventory calculations and air quality monitoring data.

D. What Are the Redesignation Review Criteria?

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation providing that: (1) The Administrator determines that the area has attained the NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable state implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175(A); and, (5) the State containing such area has met all requirements applicable to the area under section 110 and part D.

The EPA provided guidance on redesignation in the State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, on April 16, 1992 (57 FR 13498) and supplemented the guidance on April 28, 1992 (57 FR 18070). The EPA has provided further guidance on processing redesignation requests in the following documents:

1. “Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994. (Nichols, October 1994)

2. “Use of Actual Emissions in Maintenance Demonstrations for Ozone and Carbon Monoxide (CO) Nonattainment Areas,” D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993.

3. “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992,” Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993.

4. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act Deadlines,” John Calcagni, Director, Air Quality Management Division, October 28, 1992. (Calcagni, October 1992)

5. “Procedures for Processing Requests to Redesignate Areas to Attainment,” John Calcagni, Director, Air Quality Management Division, September 4, 1992.

6. “Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992.

E. What is EPA's Analysis of the Request?

1. The Area Must Be Attaining the 1-Hour Ozone NAAQS

For ozone, an area may be considered attaining the 1-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.9 and Appendix H, based on three complete, consecutive calendar years of quality assured monitoring data. A violation of the 1-hour ozone NAAQS occurs when the annual average number of expected daily exceedances is equal to or greater than 1.05 per year at a monitoring site. A daily exceedance occurs when the maximum hourly ozone concentration during a given day is 0.125 parts per million (ppm) or higher. The data must be collected and quality-assured in accordance with 40 CFR 58, and recorded in AIRS. The monitors should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

The MDEQ submitted ozone monitoring data for the 1996-1998 and the 1997-1999 ozone seasons. Table 1 below summarizes the air quality data.

Table 1—1 -Hour Ozone Exceedances in the Muskegon Area

Site	Year	Exceedances measured	Expected exceedances
Muskegon	1996 1997	1 0	1 0
Monitor: 26-121-0039	1998 1999	0 1	0 1

This data has been quality assured and is recorded in AIRS. During the 1997-1999 time period, the monitor recorded only one exceedance of the ozone NAAQS, resulting in a three year average of .3 exceedances per year. Preliminary 2000 ambient air quality monitoring data indicates that the area continues to meet the ozone NAAQS, although an exceedance may have occurred on June 9, 2000. If this June 9, 2000 exceedance is confirmed, the area would still show attainment of the 1-hour standard.

2. The Area Must Have a Fully Approved SIP Under Section 110(k); and the Area Must Have Met All Applicable Requirements Under Section 110 and Part D

Before the Muskegon area may be redesignated to attainment for ozone, it must have fulfilled the applicable requirements of section 110 and part D. The Calcagni memorandum dated September 4, 1992, states that areas requesting redesignation to attainment must fully adopt rules and programs that come due prior to the submittal of a complete redesignation request.

Section 110 Requirements

General SIP elements are delineated in section 110(a)(2) of the CAA. These requirements include but are not limited to the following: a SIP submittal that has been adopted by the state after reasonable notice and public hearing; provisions to establish and operate appropriate apparatus, methods, systems and procedures necessary to monitor ambient air quality; implementation of a permit program, provisions for part C, Prevention of Significant Deterioration (PSD), and part D, New Source Review (NSR) permit programs; criteria for stationary source emission control measures, monitoring and reporting; provisions for modeling; and provisions for public and local agency participation.

For purposes of redesignation, EPA reviewed the Michigan SIP to ensure that it satisfied all requirements under the amended CAA through approved SIP provisions. A number of the requirements did not change in substance and, therefore, EPA believes that the pre-amendment SIP met these requirements. The EPA has analyzed the Michigan SIP and determined that it is consistent with the requirements of amended section 110(a)(2). (See also 61 FR 20458 and Southwestern Growth Alliance v. Browner, 144 F.3d 984 (6th Cir. 1998)).

Part D: General Provisions for Nonattainment Areas

Before the Muskegon area may be redesignated to attainment, it must have fulfilled the applicable requirements of part D. Under part D, an area's classification determines the requirements to which it is subject. Subpart 1 of part D sets forth the basic nonattainment requirements applicable to all nonattainment areas. Subpart 2 of part D establishes additional requirements for nonattainment areas classified under Table 1 of section 181(a). As described in EPA's general preamble for the implementing of Title 1 of the 1990 Act, specific requirements of subpart 2 may override subpart 1's general provisions (57 FR 13501, April 16, 1992). EPA classified the Muskegon area as moderate ozone nonattainment on November 6, 1991 (56 FR 56694). Therefore, to redesignate the Muskegon area, the State must meet the applicable requirements of subpart 1 of part D—specifically sections 172(c) and 176, and the applicable requirements of subpart 2 of part D.

Section 172(c) Requirements

EPA has determined that MDEQ's redesignation request for the Muskegon area has satisfied all of the requirements under section 172(c) necessary for the area's redesignation to attainment. Many of the general requirements contained in section 172(c) are addressed by the State's pre-amendment submittal which EPA approved on May 6, 1980 (45 FR 29801). In part 2 of this rulemaking, entitled “Determination of Attainment,” EPA is determining that several of the section 172(c) requirements do not apply since the area has attained the ozone NAAQS. The requirements for emissions inventories uinder section 172(c)(3) and permits programs under section(c)(5) still need to be addressed in order to redesignate the area.

Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. EPA approved the base year emissions inventory for Muskegon on July 26, 1994 (59 FR 37947).

Section 172(c)(5) requires permits to construct and operate new and modified major stationary sources anywhere in the nonattainment area (a NSR program). The EPA has determined that areas being redesignated do not need an approved NSR program prior to redesignation provided that the area demonstrates maintenance of the standard without a NSR program in effect. A memorandum from Mary Nichols dated October 14, 1994 describes the rationale for this decision. See discussion in the Grand Rapids, Michigan notice published on June 21, 1996 (61 FR 31831). EPA has also applied this policy in redesignations of Youngstown-Warren, Columbus, Canton, Cleveland-Akron-Lorain, Dayton-Springfield, Toledo, Preble County, Columbiana County, Clinton County, and Cincinnati Ohio, as well as Detroit, Michigan. Additional information on EPA's rationale is in the approval of the redesignation request for the Cincinnati area (65 FR 37879).

The State has demonstrated that the Muskegon area can maintain the standard without a NSR program in effect, and, therefore, the State need not have a fully approved NSR program prior to approval of the redesignation request for the Muskegon area. The MDEQ's federally delegated PSD program will become effective in the Muskegon area upon redesignation to attainment.

Section 176 Conformity Requirements

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. This requirement applies to transportation plans, programs and projects developed, funded or approved under title 23 U.S.C. of the Federal Transit Act (“transportation conformity”), and to all other Federally supported or funded projects (“general conformity”). Section 176(c) of the CAA requires transportation conformity. EPA's conformity rule requires that transportation plans, programs, and projects conform to state air quality implementation plans (SIPs) and establishes the criteria and procedures for determining whether or not they do. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards. Section 176 further provides that state conformity revisions must be consistent with Federal conformity regulations that the CAA required the EPA to promulgate. EPA approved Michigan's general and transportation SIPs on December 18, 1996 (61 FR 66607).

The on-highway motor vehicle budgets for Muskegon are 7 tons of NO_X/day and 5 tons of VOC/day, based on the area's 2010 level of emissions. Muskegon, MI must use the motor vehicle emissions budgets from the maintenance plan in any conformity determination that is effective on or after the effective date of the maintenance plan approval.

The EPA believes the motor vehicle emissions budgets for VOC and NO_X are adequate for conformity purposes and approvable as part of the maintenance plan. Interested parties may comment on the adequacy and approval of the budgets by submitting their comments on this direct final rule.

If EPA receives adverse written comments with respect to the approval of the Muskegon emissions budgets, or any other aspect of our approval of this SIP, by the time the comment period closes, we will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. In this case, we will either respond to the comments on the emissions budgets in our final action or proceed with the adequacy process as a separate action.

Our action on the Muskegon emissions budgets will also be announced on EPA's conformity website: http://www.epa.gov/​oms/​traq,, (once there, click on the “Conformity” button, then look for “Adequacy Review of SIP Submissions for Conformity”).

Subpart 2 Section 182 Requirements

The Muskegon area is classified moderate nonattainment; therefore, part D, subpart 2, section 182(b) requirements apply. In accordance with the September 17, 1993, EPA guidance memorandum, the requirements which came due before MDEQ submitted the redesignation request must be fully approved into the SIP before or at the time of the request to redesignate the area to attainment. Those requirements are discussed below:

1990 Base Year Inventory

The 1990 base year emission inventory was due on November 15, 1992. EPA approved the State's submittal on July 26, 1994 (59 FR 37994).

Emission Statements

EPA approved the emission statement SIP required by section 182(a)(3)(B) on March 8, 1994 (59 FR 10752).

15 Percent Plan

As noted above, the 15 percent RFP plan for VOC reductions does not apply because the area has attained the standard.

VOC RACT Requirements

SIP revisions requiring RACT for three classes of VOC sources are required under section 182(b)(2). The categories are: (1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment; (2) all sources covered by a CTG issued prior to November 15, 1990; (3) all other major non-CTG stationary sources. EPA approved the RACT corrections required by section 182(a)(2)(A) and 182(b)(2)(B) on September 7, 1994 (59 FR 46182) ^[1] ). Appendix E of EPA's general preamble for implementing Title I of the 1990 CAA provided that if EPA did not issue CTGs for those source categories by November 15, 1993, States were to submit RACT rules for those source categories by November 15, 1994, which were to be implemented by November 15, 1995. The Muskegon area does not contain sources in any of the relevant source categories. The state submitted negative declarations for these source categories in the redesignation request. As a result, this requirement is not relevant for the area.

Stage II Vapor Recovery

EPA promulgated onboard rules on April 6, 1994 (59 FR 16292); therefore, pursuant to section 202(a)(6) of the CAA, Stage II is no longer required, and a fully approved program is not a prerequisite for redesignation. Additional information on EPA's policies regarding the Stage II vapor recovery program is in the approval of the redesignation request for the Cincinnati, OH area (65 FR 37879).

Vehicle Inspection and Maintenance (I/M)

Section 182(a)(2)(B) motor vehicle inspection and maintenance (I/M) requirement does not apply to Muskegon since the area was not required to implement I/M prior to the enactment of the 1990 Amendments. The motor vehicle I/M requirement to satisfy section 182(b)(4) does not apply to the Muskegon area, since Muskegon is below the population threshold specified in EPA's I/M rule (51 CFR part 350).

NO_X Requirement

On July 13, 1994, Michigan submitted a section 182(f) NO_X petition to be relieved of the section 182(f) NO_X requirements based on urban airshed modeling (UAM). The modeling demonstrates that NO_X emission reductions would not contribute to attainment of the NAAQS for ozone in the modeled area, which includes Muskegon. The EPA approved the section 182(f) petition on January 26, 1996 (61 FR 2428).

3. The Improvement in Air Quality Must Be Due to Permanent and Enforceable Reductions in Emissions

Michigan maintains that the Muskegon area is the recipient of overwhelming amounts of ozone transported from the upwind Gary-Chicago-Milwaukee severe ozone nonattainment areas as demonstrated by its November 14, 1994 petition. The overwhelming transport demonstration includes UAM which shows that there is minimal to no change in ozone concentrations in Western Michigan even when the Grand Rapids and Muskegon VOC and NO_X emissions are entirely eliminated. The State, therefore, concludes that emission reductions within the Grand Rapids and Muskegon areas would have little or no impact on ozone concentrations within these two areas. The State maintains that the improvement in air quality in Muskegon is largely due to emission reductions achieved throughout the Lake Michigan region.

Nonetheless, the redesignation request demonstrates that permanent and enforceable emission reductions have occurred in the Muskegon area as a result of the Federal Motor Vehicle Emission Control Program (FMVCP) and controls on industrial sources. The submittal provides a general discussion of developing of the emission inventories for ozone precursors from 1991-1996 which the Lake Michigan Air Directors Consortium (LADCO) prepared for use in the Lake Michigan Ozone Study (LMOS). Although 1991 was not one of the years used to designate and classify the area, it was a nonattainment year. The VOC and NO_X emission inventories for the years 1991 and 1996 submitted by the State show a declining trend in emissions. The 1996 emission inventory is provided as the attainment year emission inventory.

Based on the State's analysis, Muskegon County reduced VOC emissions by 2 tons per day and NO_X emissions by 3 tons per day between 1991 and 1996. The emission reductions are due to a combination of FMVCP and industrial source controls.

4. The Area Must Have a Fully Approved Maintenance Plan Meeting the Requirements of Section 175A

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the EPA approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates attainment for the 10 years following the initial 10-year period. To address potential future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for implementation adequate to assure prompt correction of any air quality problems.

Section 175A(d) requires that the contingency provisions include a requirement that the State will implement all control measures that were in the SIP prior to redesignation as an attainment area.

An ozone maintenance plan should address the following five elements: attainment inventory, demonstration of maintenance, monitoring network, verification of continued attainment, and a contingency plan.

Attainment Inventory

The State has adequately developed an attainment emissions inventory for 1996 that identifies VOC and NO_X emissions for the Muskegon nonattainment area. EPA has determined that 1996 is an appropriate year on which to base attainment level emissions because monitors in the area showed attainment of the ozone NAAQS at the time. The methodologies used in developing these inventories are discussed in EPA's TSD, dated July 31, 2000 and in further detail in the State's redesignation submittal.

The attainment level of emissions are summarized below:

Table 2.—Muskegon 1996 Attainment Inventory—VOC and NO_X (tons per day)

Source type	VOC	NOX
Onroad mobile	5	8
Area	19	6
Point	5	16
Total	29	30

Demonstration of Maintenance

The 1991 emission inventory developed by LADCO for the LMOS modeling effort also served as the basis for calculations to demonstrate maintenance by projecting emissions forward to the years 1996 and 2007. The State has also made adjustments to the inventory to project emissions levels for 2010. These adjustments were made using 2010 growth factors generated by the Economic Growth Analysis (EGAS) model for stationary sources (for point, stationary area, and nonroad mobile source categories). The State made onroad mobile estimates for 2010 using the 1996 LADCO modeling inventory, local speeds and vehicle miles traveled estimates for 2010, and EPA's MOBILE 5a emissions model. Detailed information on the assumptions made in the inventory calculations are found in EPA's TSD and in the State's submittal.

To demonstrate continued attainment, the State projected anthropogenic 1991 emissions of VOC and NO_X to the years 1996, 2007, and 2010. These emission estimates are in the tables below and demonstrate that the VOC and NO_X emissions will decrease in future years. The results of this analysis show that the area is expected to maintain the air quality standard for at least ten years into the future. In fact, the emissions projections show that emissions will be reduced from 1996 levels by 6 tons of VOC and 4 tons of NO_X per day by 2010 in the Muskegon area. These emission reductions will result from the implementation of FMVCP, Federal on-board vapor recovery rules, Title IV NO_X controls, and other Federal rules expected to be promulgated for nonroad engines, autobody refinishing, commercial/consumer solvents, and architectural and industrial maintenance coatings. These estimates are conservative as they do not reflect additional Federal regulations on motor vehicles and fuels that will be in place prior to 2010, nor do they include NO_X reductions that would result from EPA's October 27, 1998 (63 FR 57356) rulemaking which requires states to reduce statewide NO_X emissions to address the regional transport of ground level ozone (NO_X SIP call).

Table 3.—Muskegon: VOC Maintenance Emission Inventory Summary

[tons per day]

Source type	Year
	1991	1996	2007	2010
Point	7	5	8	4
Area	18	19	15	14
Onroad Mobile	6	5	5	5
Total	31	29	28	23

Table 4.—Muskegon: NO_X Maintenance Emission Inventory Summary

[tons per day]

Source type	Year
	1991	1996	2007	2010
Point	20	16	14	15
Area	5	6	5	4
Onroad Mobile	8	8	7	7
Total	33	30	26	26

The emission projections show that the emissions are not expected to exceed the level of the base year 1996 inventory during the 10-year maintenance period.

Monitoring network

The State has committed to operate the ozone monitoring network in the Muskegon area in accordance with 40 CFR part 58.

Verification of Continued Attainment

Tracking—Continued attainment of the ozone NAAQS in the Muskegon area depends, in part, on the State's efforts toward tracking indicators of continued attainment during the maintenance period. The tracking plan for the Muskegon area consists of continued ambient ozone monitoring in accordance with the requirements of 40 CFR part 58.

Triggers— Michigan contends that the high concentrations of ozone monitored and modeled in the Muskegon area are due to transport from upwind areas such as Chicago and Milwaukee. The State also submits that modeling to date indicates that total elimination of anthropogenic VOC and NO_X emission sources in Muskegon would not affect ozone concentrations in the area. The State concludes that continued maintenance of the ozone NAAQS is dependent on continued emission reductions from upwind areas. Consequently, the State identifies 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, as the triggering event that will cause implementation of a contingency measure. The State's June 14, 2000, supplement to the redesignation request establishes that if the State monitors a violation, the State will inform EPA that a violation has occurred, review 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. The State will submit a preliminary analysis to the EPA and afford the public the opportunity for review and comment. The State will also solicit and consider EPA's technical advice and analysis before making a final determination on the cause of the violation. The trigger date will be the date that the State certifies to the EPA that the State air quality data are quality assured, and that the State has determined the exceedances contributing to the violation are not attributable to transport from upwind areas. The trigger date will be within 120 days after the violation is monitored.

If the EPA disagrees with the State's final determination and believes that the violation was not attributable to transport, but to the area's own emissions, authority exists under section 179(a) and 110(k), to require the area to implement contingency measures, and section 107, to redesignate the area to nonattainment.

Contingency Plan

Despite the best efforts to demonstrate continued compliance with the NAAQS, the ambient air pollutant concentrations may exceed or violate the NAAQS. Therefore, as required by section 175A of the CAA, Michigan has provided contingency measures with a schedule for implementation if a future ozone air quality problem occurs. Once the triggering event is confirmed, the State will implement one or more appropriate contingency measures. The Governor or the Governor's designee will select the contingency measure within 6 months of the triggering event. Contingency measures contained in the plan include a motor vehicle I/M program, gasoline RVP reduction to 7.8 pounds per square inch (psi), Stage II gasoline vapor recovery, an industrial cleanup solvent rule, a plastic parts coating rule, and a wood furniture coating rule. The State has provided legislative authority for implementation of the first three measures. In addition, the State will develop rules for the three additional measures should they be necessary to address a violation of the ozone NAAQS. The State provided following schedule for implementation of contingency measures:

Table 5—Schedule for Contingency Measure Implementation

Measure	Date
Stage II	6 months from decision to employ Stage II or 12 months from triggering event at gasoline dispensing facilities of any size constructed after November 15, 1990. 12 months from decision to employ Stage II or 18 months from triggering event at existing gasoline dispensing facilities dispensing 100,000 gallons of gasoline per month. 24 months from decision to employ Stage II or 30 months from triggering event at existing gasoline dispensing facilities dispensing less than 100,000 gallons of gasoline a month.
Vehicle emissions testing will commence	24 months from decision to employ I/M.
Implement VOC RACT rules for plastic parts coating, wood furniture coating, or industrial cleanup solvents	20 months from Governor's decision to implement one or more of the measures.
Implement 7.8 RVP gasoline during summer ozone season	No later than 12 months after decision to employ 7.8 RVP or no later than 18 months from triggering event.

Commitment to Submit Subsequent Maintenance Plan Revisions

In accordance with section 175A(b) of the Act, the State has committed to submit a revised maintenance SIP 8 years after the area is redesignated to attainment. Such revised SIP will provide for maintenance for an additional 10 years.

F. Where Is the Public Record and Where Do I Send Comments?

The official record for this direct final rule is located at the addresses in the ADDRESSES section at the beginning of this document. The addresses for sending comments are also provided in the ADDRESSES section at the beginning of this document. If EPA receives adverse written comments on this action, we will withdraw this final rule and address the comments received in response to this action in a final rule on the related proposed rule. We will not open a second public comment period. Parties interested in commenting on this action should do so at this time.

If we receive adverse written comments with respect to the approval of the Muskegon emissions budgets, or any other aspect of our approval of this SIP, by the time the comment period closes, we will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. In this case, we will either respond to the comments on the emissions budgets in our final action or proceed with the adequacy process as a separate action.

IV. Disclaimer Language Approving SIP Revisions

Ozone SIPs are designed to satisfy the requirements of part D of the CAA and to provide for attainment and maintenance of the ozone NAAQS. This redesignation should not be interpreted as authorizing the State to delete, alter, or rescind any of the ozone emission limitations and restrictions in the approved ozone SIP. The State cannot make changes to ozone SIP regulations which will render them less stringent than those in the EPA approved plan unless it submits to EPA a revised plan for attainment and maintenance and EPA approves the revision. Unauthorized relaxations, deletions, and changes could result in both a finding of nonimplementation (section 173(b) of the CAA) and in a SIP deficiency call made pursuant to section 110(a)(2)(H) of the CAA.

V. What Administrative Requirements Did EPA Consider?

1. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

C. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies 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 small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the CAA do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the CAA, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule 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. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated 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 approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective October 18, 2000 unless EPA receives adverse written comments by September 29, 2000.

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

I. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 30, 2000. 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
• Incorporation by reference
• Intergovernmental relations
• Hydrocarbons
• Ozone
• Volatile organic compounds

40 CFR Part 81

Environmental protection, Air pollution control, Intergovernmental relations, Hydrocarbons, Ozone, Volatile organic compounds.

Authority: 42 U.S.C. 7401-7671 et seq.

Dated: August 14, 2000.

Francis X. Lyons,

Regional Administrator, Region 5.

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart X—Michigan

2. Section 52.1170 is amended by adding paragraph (c)(113) to read as follows:

§ 52.1170

Identification of plan.

* * * * *

(c) * * *

(113) On March 9, 1995, the State of Michigan submitted a revision to the Michigan State Implementation Plan for ozone containing a section 175A maintenance plan for the Muskegon County area as part of Michigan's request to redesignate the area from nonattainment to attainment for ozone. Elements of the section 175A maintenance plan include a contingency plan, and an obligation to submit a subsequent maintenance plan revision in 8 years as required by the Clean Air Act. If the area records a violation of the 1-hour ozone NAAQS, determined not to be attributable to transport from upwind areas, Michigan will implement one or more appropriate contingency measure(s) which are in the contingency plan. The menu of contingency measures includes a motor vehicle inspection and maintenance program, stage II vapor recovery, a low Reid vapor pressure gasoline program, and rules for industrial cleanup solvents, plastic parts coating, and wood furniture coating.

(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 House Bill No. 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.

3. Section 52.1174 is amended by adding paragraph (r) to read as follows:

§ 52.1174

Control strategy: Ozone.

* * * * *

(r) Approval—On March 9, 1995, the Michigan Department of Environmental Quality submitted a request to redesignate the Muskegon County ozone nonattainment area to attainment. 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 a contingency plan, and an obligation to submit a subsequent maintenance plan revision in 8 years as required by the Clean Air Act. If the area records a violation of the 1-hour ozone NAAQS, determined not to be attributable to transport from upwind areas, Michigan will implement one or more appropriate contingency measure(s) which are in the contingency plan. The menu of contingency measures includes a motor vehicle inspection and maintenance program, stage II vapor recovery, a low Reid vapor pressure gasoline program, and rules for industrial cleanup solvents, plastic parts coating, and wood furniture coating.

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401-7871 et seq.

2. In § 81.323 the table entitled “Michigan—Ozone (1-hour standard)” is amended by revising the entry for “Muskegon Area: Muskegon County” to read as follows:

§ 81.323

Michigan.

* * * * *

Michigan—Ozone

[1-Hour Standard]

Designated areas	Designation		Classification
	Date1	Type	Date1	Type
*         *         *         *         *         *         *
Muskegon Area:
Muskegon County	October 18, 2000	Attainment
*         *         *         *         *         *         *
1 This date is October 18, 2000, unless otherwise noted.

* * * * *

Footnotes

1.  EPA issued the Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation and Reactor CTG on November 15, 1993, prior to the submission of the Muskegon 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 redesignate Muskegon to attainment. Thus, those rules are not applicable requirements for purposes of this redesignation.