Approval and Promulgation of Implementation Plan; Michigan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI26-01-6294B; FRL-5029-2]

Approval and Promulgation of Implementation Plan; Michigan

AGENCY: United States Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The United States Environmental Protection Agency is granting

an exemption to the Detroit-Ann Arbor ozone nonattainment area from

applicable oxides of nitrogen (NOX) requirements found in the

Clean Air Act (Act). Approval of the exemption would apply for various

NOX including adoption and implementation of regulations

addressing general conformity, transportation conformity, inspection

and maintenance, reasonably available control technology, and new

source review. A NOX exemption request was submitted by the State

of Michigan on November 12, 1993. A subsequent letter dated May 31,

1994 clarified this earlier submittal. This request is based on the

fact that the Detroit-Ann Arbor area has not monitored a violation of

the ozone standard for a 3-year period; 1991 to 1993. Given this

monitoring data, Michigan may petition for an exemption from the

NOX requirements based on a demonstration that additional

reductions of NOX would not contribute to attainment of the ozone

standard.

The rationale for this approval is set forth in this final rule;

additional information is available at the address indicated below.

Elsewhere in this Federal Register, EPA is proposing approval of, and

soliciting public comment on, this requested SIP revision. If a

comment, or a notice of intent to comment is received on this direct

final rule by August 25, 1994, EPA will then use this rulemaking as a

proposed rule. Comments received will be addressed in a separate final

rulemaking. Unless this final rule is commented upon, no further

rulemaking will occur on this requested State Implementation Plan (SIP)

revision.

This shortened comment period and expedited effective date is

needed to follow provisions found in the Act which require EPA to

either grant or deny exemption requests within 6 months of receipt.

Although this notice may not be published within the timeframe

specified by the Act, it is EPA's intention to try and publish as close

to the 6 month deadline as possible.

DATES: This final rule will be effective September 9, 1994, unless

notice is received within 15 days of this publication that someone

wishes to submit adverse comments. If the effective date is delayed,

timely notice will be published in the Federal Register.

ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,

Regulation Development Section, Air Toxics and Radiation Branch (AT-

18J), EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois

60604-3590.

Copies of the request and the EPA's analysis are available for

inspection at the following address: (It is recommended that you

telephone Douglas Aburano at (312) 353-6960 before visiting the Region

5 office.) EPA, Region 5, Air and Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois 60604-3590.

FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Air Toxics and

Radiation Branch (AT-18J), EPA, Region 5, Chicago, Illinois 60604,

(312) 353-6960.

SUPPLEMENTARY INFORMATION:

I. Background

On November 12, 1993 the State of Michigan submitted a petition to

the EPA requesting that the Detroit-Ann Arbor ozone nonattainment area

be exempted from the requirement to implement NOX RACT controls

pursuant to section 182(f) of the Act. The exemption request is based

upon monitoring data which demonstrate that the ozone standard has been

attained in the Detroit-Ann Arbor area for a 3-year period; 1991

through 1993.

II. Description and Analysis of State Submittal

The NOX RACT petition was submitted in accordance with section

182(f) of the Act and a May 27, 1994 John Seitz memorandum entitled,

``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised Process

and Criteria.'' According to this memorandum and a December 1993 EPA

guidance document entitled, Guideline for Determining the Applicability

of Nitrogen Oxides Requirements Under Section 182(f), NOX RACT and

NSR requirements of section 182(f) do not apply if additional

reductions of NOX would not contribute to attainment of the NAAQS

for ozone. In an area that did not implement the section 182(f)

NOX requirements, but did attain the ozone standard, it is clear

that the additional NOX reductions required by section 182(f)

would not contribute to attainment.

In its submittal, the State included data from ozone monitors for

the most recently recorded years, 1991-1993. These data showed that

over this 3-year period a violation of the ozone standard was not

monitored in the Detroit-Ann Arbor area. This is the main criterion by

which EPA judges 182(f) exemption petitions based on monitoring data.

Given the fact that the Detroit-Ann Arbor area has not implemented the

section 182(f) NOX requirements and has submitted adequate

monitoring data showing no violations of the ozone NAAQS over the last

3 years in the area, EPA finds that the State submittal is approvable.

Under the May 27, 1994 John Seitz memorandum and the December 1993

section 182(f) NOX guidance referenced above, the section 182(f)

demonstration cannot be approved if there is evidence, such as

photochemical grid modeling, showing that the NOX exemption would

interfere with attainment or maintenance in the area petitioning for

exemption or in any downwind areas. No such evidence exists.

III. Final Action

The EPA is granting the Detroit-Ann Arbor section 182(f) exemption

petition based upon the evidence provided by the State and the State's

compliance with the requirements outlined in the Act and in EPA

guidance. However, it should be noted that this exemption is being

granted on a contingent basis; i.e., the exemption will last for only

as long as the area's ambient monitoring data continue to demonstrate

attainment of the ozone NAAQS.

The EPA's transportation conformity rule1 and EPA's general

conformity rule2 also reference the section 182(f) exemption

process as a means for exempting affected areas from NOX

conformity requirements, and the conformity requirements apply on an

areawide basis. Since this petition for exemption is areawide, as

opposed to source-specific, an approval would also exempt this area

from the NOX conformity requirements of the Act (see John Seitz

May 27, 1994 ``Section 182(f) Nitrogen Oxides (NOX) Exemptions--

Revised Process and Criteria'' memorandum). Additionally, the

Inspection/Maintenance (I/M) Program Final Rule (57 FR 52950) allows

for the omission of the basic I/M NOX requirements if a 182(f)

exemption is granted to an area. Michigan does not currently have--or

need--an enhanced I/M program. However, if the State did adopt such a

program (because further emissions reductions necessary to address

other portions of the Act could be obtained through an enhanced

program), it would have to be designed to offset NOX increases

resulting from the vehicle repairs due to hydrocarbon (HC) and carbon

moNOXide (CO) failures.

\1\``Criteria and Procedures for Determining Conformity to State

or Federal Implementation Plans of Transportation Plans, Programs,

and Projects Funded or Approved under Title 23 U.S.C. of the Federal

Transit Act'' November 24, 1993 (58 FR 62188).

\2\``Determining Conformity of General Federal Actions to State

or Federal Implementation Plans; Final Rule'' November 30, 1993 (58

FR 63214).

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If, subsequent to the NOX waiver being granted, EPA determines

that the area has violated the standard, the section 182(f) exemption,

as of the date of the determination, would no longer apply. EPA would

notify the State that the exemption no longer applies, and would also

provide notice to the public in the Federal Register. If an exemption

is revoked, the State must comply with any applicable NOX

requirements set forth in the Act, such as those for NOX RACT,

NSR, I/M, and conformity. The air quantity data relied on for the above

determinations must be consistent with 40 CFR part 58 requirements and

other relevant EPA guidance and recorded in EPA's Aerometric

Information Retrieval System.

The Federal Register notice revoking the NOX exemption would

also establish the schedule for adoption and implementation of those

NOX requirements the area was previously exempt from.

On November 12, 1993 the State submitted a redesignation request.

Section 175(A) requires submittal of a maintenance plan for areas that

are redesignating to attainment. This maintenance plan must contain

contingency measures which shall be implemented if a violation of the

ozone standard occurs. Consequentially, the State's redesignation

request is approved, the NOX requirements found in the maintenance

plan for that area would thereafter apply as long as the area is

designated attainment for the ozone standard.

Because EPA considers this action noncontroversial and routine, we

are approving it without prior proposal. This action will become

effective on September 9, 1994. However, if we receive a notice of

intent to comment by August 25, 1994, EPA will publish: (1) A document

that withdraws today's action, and (2) address the comments received in

the final rule on the requested SIP revision which has been proposed

for approval in the proposed rules section of this Federal Register.

The public comment will not be extended or reopened.

Miscellaneous

A. Applicability to Future SIP Decisions.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. The EPA shall consider each request for revision to the SIP in

light of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

B. Executive Order 12866.

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993

memorandum from Michael Shapiro, Acting Assistant Administrator for Air

and Radiation. The OMB has exempted this regulatory action from E.O.

12866 review.

C. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

This approval does not create any new requirements. Therefore, I

certify that this action does not have a significant impact on any

small entities affected. Moreover, due to the nature of the Federal-

State relationship under the Act, preparation of the regulatory

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of the State action. The Act forbids EPA to base its

actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256-66 (1976).

D. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by October 11, 1994. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review, nor does

it extend the time within which a petition for judicial review may be

filed and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Oxides of

nitrogen, Incorporation by reference, Intergovernmental relations,

Ozone.

Dated: July 19, 1994.

Valdas V. Adamkus,

Regional Administrator.

40 CFR part 52 is amended as follows.

PART 52--[AMENDED]

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

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

Subpart X--Michigan

2. Section 52.1174 is amended by adding paragraph (c) to read as

follows:

Sec. 52.1174 Control strategy: Ozone.

* * * * *

(c) Approval--On November 12, 1993, the Michigan Department of

Natural Resources submitted a petition for exemption from the oxides of

nitrogen requirements of the Clean Air Act for the Detroit-Ann Arbor

ozone nonattainment area. The submittal pertained to the exemption from

the oxides of nitrogen requirements for conformity, inspection and

maintenance, reasonably available control technology, and new source

review. These are required by sections 176(c), 182(b)(4), and 182(f) of

the 1990 amended Clean Air Act, respectively.

[FR Doc. 94-19450 Filed 8-9-94; 8:45 am]

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