Approval and Promulgation of Implementation Plan: Michigan; NOINFX Exemption Request for East Lansing and Genesee County Transitional Areas

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI34-01-6662, MI35-01-6663; FRL-5126-3]

Approval and Promulgation of Implementation Plan: Michigan;

NOX Exemption Request for East Lansing and Genesee County

Transitional Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to grant oxides of nitrogen (NOX)

exemptions to the East Lansing (Ingham, Eaton and Clinton Counties) and

Genesee County transitional ozone nonattainment areas. This proposed

approval would exempt these areas from the NOX provisions of the

general conformity and transportation conformity requirements of the

Clean Air Act (Act).

The State of Michigan submitted NOX exemption requests on July

1, 1994 and July 8, 1994 for the East Lansing and Genesee County

transitional areas, respectively. Ozone monitors in these areas

indicated that the average number of exceedances of the National

Ambient Air Quality Standard for ozone (ozone standard) during the most

recent 3-year monitoring period, 1991 through 1993, is fewer than one

per year. Based upon this demonstration that additional reductions of

NOX would not contribute to attainment of the ozone standard,

Michigan requested that EPA approve a revision to Michigan's State

Implementation Plan (SIP) exempting these areas from the requirement to

provide conformity analyses for NOX.

Additional information is available at the address indicated.

DATES: Comments must be received by January 27, 1995.

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

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

18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604-3590. Copies of the request and

EPA's analysis are available for inspection at the same address. Please

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

5 office.

FOR FURTHER INFORMATION CONTACT:

Douglas Aburano, Air Toxics and Radiation Branch (AT-18J), U.S.

Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,

Chicago, Illinois 60604-3590, (312) 353-6960.

SUPPLEMENTARY INFORMATION:

I. Background

Section 176 of the Act, 42 U.S.C. 7506, prohibits the Federal

Government from engaging in, supporting, providing financial

assistance, licensing, permitting or approving any activity which does

not conform to a SIP after the SIP is promulgated pursuant to section

110 of the Act, 42 U.S.C. 7410. Regulations promulgated pursuant to

section 176 of the Act provide for the granting of exemptions from

certain NOX requirements of section 176 for a specific

nonattainment area, if the Administrator of EPA determines under

section 182(f) of the Act that additional reductions of NOX would

not contribute to attainment of the ozone standard in the area. 58 FR

62188, 62218 (November 24, 1993) (to be codified at 40 CFR

51.394(b)(3)(i)) and 58 FR 63214, 63248 (November 30, 1993) (to be

codified at 40 CFR 51.852).

Section 182(f) of the Act, 42 U.S.C. 7511a(f), requires that major

stationary sources of NOX in marginal and above ozone

nonattainment areas comply with SIP provisions required for major

stationary sources of volatile organic compounds unless, inter alia,

the Administrator of EPA determines that an exemption from these

requirements is appropriate. The EPA has determined that it would grant

to a State an exemption from the NOX requirements of section

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

requirements, if the average number of exceedances of the ozone

standard in the area over the prior 3-year period was less than or

equal to one per year. See memo entitled, ``Section 182(f) Nitrogen

Oxides (NOX) Exemptions--Revised Process and Criteria'' signed by

John S. Seitz, Director, Office of Air Quality Planning and Standards

(May 27, 1994).

EPA adopted this position based upon the theory that the section

182(f) controls were not necessary for an area which already had

attained the ozone standard without the controls. A State could prove

that the section 182(f) controls were not necessary by demonstrating

that the nonattainment area in question had not experienced any

violations of the ozone standard for the most recent 3 years. However,

in order for EPA to approve an exemption request, the air quality data

relied upon for this demonstration must be consistent with 40 CFR part

58 requirements and other relevant EPA guidance, and must be recorded

in EPA's Aerometric Information Retrieval System. Moreover, EPA will

not approve the exemption request 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. See ``Guideline for Determining the

Applicability of Nitrogen Oxides requirements Under Section 182(f)''

(December 1993).

Section 182(f) of the Act applies only to ozone nonattainment areas

classified as marginal and above. Because section 176(c) applies to all

ozone nonattainment areas, EPA has extended the procedure for

exemptions under section 182(f) to areas not affected by the section

182(f) requirements, that is, submarginal, transitional, and

incomplete/no data areas. See ``Conformity; General Preamble for

Exemption from Nitrogen Oxides Provisions,'' 59 FR 31238 (June 17,

1994).

On July 1, 1994 and July 8, 1994 the State of Michigan submitted to

EPA petitions requesting that EPA approve SIP revisions which would, in

effect, exempt the East Lansing and Genesee County transitional ozone

nonattainment areas from the NOX conformity requirements of

section 176(c).

II. Description and Analysis of State Submittal

The State of Michigan submitted petitions in accordance with

section 182(f) of the Act and the Federal Register document entitled

``Conformity; General Preamble for Exemption from Nitrogen Oxides'' (59

FR 31238). In its submittals, the State included data for the most

recent 3 year monitoring period, 1991-1993, from ozone monitors located

in the two nonattainment areas. These data showed that, over the 3-year

period, the monitors recorded that the average number of violations of

the ozone standard in either the East Lansing or Genesee County areas

was fewer than one per year.

Given that these areas have not implemented the section 182(f)

NOX requirements and have submitted adequate monitoring data

demonstrating that there have been no violations of the ozone standard

over the last 3 years, EPA finds that the State requests for exemption

are approvable. Furthermore, EPA does not possess any evidence that the

exemptions will interfere with attainment or maintenance of the ozone

standard in the petitioning or any downwind areas.

III. Proposed Action

EPA is proposing approval of Michigan's SIP revision request

granting the East Lansing and Genesee County transitional ozone

nonattainment areas section 182(f) NOX exemptions. This proposed

approval would allow these areas exemption from the section 176(c)

NOX conformity requirements. This proposed approval for exemption

is 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, EPA is granting these exemptions only on a

contingent basis, that is, each exemption will continue only as long as

the respective area's monitoring data continue to demonstrate

attainment of the ozone standard. The State must continue to operate an

appropriate air quality monitoring network, in accordance with 40 CFR

part 58, to verify attainment status of the area (see ``Conformity;

General Preamble for Exemption from Nitrogen Oxides'' (59 FR 31238)).

If, subsequent to granting NOX exemptions to the East Lansing

and Genesee County transitional nonattainment areas, EPA determines

that either area has violated the ozone standard, the exemption for the

area in which the violation occurred will no longer be valid. EPA will

notify the State of Michigan that the exemption no longer applies to

the area in which the violation occurred, and also will 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. The Federal Register notice revoking the NOX exemption

also would establish the schedule for adoption and implementation of

NOX RACT.

Miscellaneous

I. Applicability to Future SIP Decision

Nothing in this action should be construed as permitting, allowing

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

SIP. 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.

II. 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.

III. Regulatory Impact

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, 604).

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

significant impact on a substantial number of small businesses, small

not-for-profit enterprises, and government entities with jurisdiction

over populations of fewer 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. United

States Environmental Protection Agency, 427 U.S. 246, 256-66 (S.Ct.

1976); 42 U.S.C. 7410(a)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intragovernmental

relations, Oxides of nitrogen, Ozone.

Dated: December 9, 1994

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 94-31741 Filed 12-27-94; 8:45 am]

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