Approval and Promulgation of Implementation Plan; Michigan, East Lansing and Genesee County NOINFX Exemptions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI34-05-6892, MI35-03-6893; FRL-5197-6]

Approval and Promulgation of Implementation Plan; Michigan, East

Lansing and Genesee County NOX Exemptions

AGENCY: United States Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is granting exemptions to the East Lansing and Genesee

County ozone nonattainment areas, both of which are classified as

transitional, from applicable oxides of nitrogen (NOX)

requirements found in the Clean Air Act (Act). For transitional areas

the NOX requirements which apply are conformity, both general and

transportation, and nonattainment new source review. Approval of these

exemption requests would relieve these areas from adopting and

implementing all of the aforementioned NOX requirements. The State

of Michigan submitted NOX exemption requests for the East Lansing

and Genesee County areas on July 1, 1994 and July 8, 1994,

respectively. These requests are based on the fact that ozone

monitoring in these areas indicate that the average number of

exceedances of the National Ambient Air Quality Standard for ozone

during the most recent 3-year period, 1991 to 1993, is fewer than one

per year. Given this monitoring data, Michigan petitioned for

exemptions from the NOX requirements based on a demonstration that

additional reductions of NOX would not contribute to attainment of

the ozone standard in these areas.

DATES: This final rule will be effective May 30, 1995.

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: U.S. EPA, Region 5, Air and

Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604-

3590. (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), EPA, Region 5, Chicago, Illinois 60604,

(312) 353-6960.

SUPPLEMENTARY INFORMATION:

I. Background

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

petitions to the EPA requesting that the East Lansing and Genesee

County ozone nonattainment areas be exempted from the requirement to

implement NOX controls pursuant to section 182(f) of the Act. The

exemption request is based upon monitoring data which demonstrate that

the average number of exceedances of the ozone standard in these areas

during the most recent 3-year period, 1991 through 1993, is fewer than

one per year.

On December 28, 1994, EPA published a rulemaking proposing approval

of the NOX exemption petitions. During the 30 day public comment

period, EPA received joint adverse comments from the Natural Resources

Defense Council, Sierra Club Legal Defense Fund, and the Environmental

Defense Fund and also from a private party.

II. Public Comment/EPA Response

The following evaluation summarizes each comment received and EPA's

response to the comment. A more detailed discussion of the State

submittal and the rationale for the EPA's action based on the Act and

cited references appear in EPA's technical support documents dated

August 9, 1994 and March 10, 1995.

NRDC Comments

Following is a summary of comments received from the NRDC in a

letter dated August 24, 1994. After each comment is EPA's response.

NRDC Comment 1

Certain commenters argued that NOX exemptions are provided for

in two [[Page 20645]] separate parts of the Act, section 182(b)(1) and

section 182(f). Because the NOX exemption tests in subsections

182(b)(1) and 182(f)(1) include language indicating that action on such

requests should take place ``when [EPA] approves a plan or plan

revision,'' these commenters conclude that all NOX exemption

determinations by the EPA, including exemption actions taken under the

petition process established by subsection 182(f)(3), must occur during

consideration of an approvable attainment or maintenance plan, unless

the area has been redesignated as attainment. These commenters also

argue that even if the petition procedures of subsection 182(f)(3) may

be used to relieve areas of certain NOX requirements, exemptions

from the NOX conformity requirements must follow the process

provided in subsection 182(b)(1), since this is the only provision

explicitly referenced by section 176(c), the Act's conformity

provisions.

EPA Response

Section 182(f) contains very few details regarding the

administrative procedure for acting on NOX exemption requests. The

absence of specific guidelines by Congress leaves EPA with discretion

to establish reasonable procedures, consistent with the requirements of

the Administrative Procedure Act (APA).

The EPA disagrees with the commenters regarding the process for

considering exemption requests under section 182(f), and instead

believes that subsections 182(f)(1) and 182(f)(3) provide independent

procedures by which the EPA may act on NOX exemption requests. The

language in subsection 182(f)(1), which indicates that the EPA should

act on NOX exemptions in conjunction with action on a plan or plan

revision, does not appear in subsection 182(f)(3). And, while

subsection 182(f)(3) references subsection 182(f)(1), the EPA believes

that this reference encompasses only the substantive tests in paragraph

(1) [and, by extension, paragraph (2)], not the procedural requirement

that the EPA act on exemptions only when acting on SIPs. Additionally,

paragraph (3) provides that ``person[s]'' (which section 302(e) of the

Act defines to include States) may petition for NOX exemptions

``at any time,'' and requires the EPA to make its determination within

6 months of the petition's submission. These key differences lead EPA

to believe that Congress intended the exemption petition process of

paragraph (3) to be distinct and more expeditious than the longer plan

revision process intended under paragraph (1).

Section 182(f)(1) appears to contemplate that exemption requests

submitted under these paragraphs are limited to States, since States

are the entities authorized under the Act to submit plans or plan

revisions. By contrast, section 182(f)(3) provides that

``person[s]''\1\ may petition for a NOX determination ``at any

time'' after the ozone precursor study required under section 185B of

the Act is finalized,\2\ and gives EPA a limit of 6 months after filing

to grant or deny such petitions. Since individuals may submit petitions

under paragraph (3) ``at any time'' this must include times when there

is no plan revision from the State pending at EPA. The specific

timeframe for EPA action established in paragraph (3) is substantially

shorter than the timeframe usually required for States to develop and

for EPA to take action on revisions to a SIP. These differences

strongly suggest that Congress intended the process for acting on

personal petitions to be distinct--and more expeditious--from the plan-

revision process intended under paragraph (1).

\1\Section 302(e) of the Act defines the term``person'' to

include States.

\2\The final section 185B report was issued July 30, 1993.

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With respect to major stationary sources, section 182(f) requires

States to adopt NOX NSR and RACT rules, unless exempted. These

rules were generally due to be submitted to EPA by November 15, 1992.

Thus, in order to avoid the Act sanctions, the States would have had to

submit their requests for NOX exemptions for EPA review and

rulemaking action several months before November 15, 1992. In contrast,

the Act specifies that the attainment demonstrations are not due until

November 1993 or 1994 (and EPA may take 12-18 months to approve or

disapprove the demonstration). For marginal ozone nonattainment areas

(subject to NOX NSR), no attainment demonstration is called for in

the Act. For maintenance plans, the Act does not specify a deadline for

submittal of maintenance demonstrations. Clearly, the Act envisions the

submittal of and EPA action on exemption requests, in some cases, prior

to submittal of attainment or maintenance demonstrations.

The Act requires conformity with regard to federally-supported

NOX generating activities in relevant nonattainment and

maintenance areas. However, EPA's conformity rules explicitly provide

that these NOX requirements would not apply if EPA grants an

exemption under section 182(f). In response to the comment that section

182(b)(1) should be the appropriate vehicle for dealing with exemptions

from the NOX requirements of the conformity rule, EPA notes that

this issue has previously been raised in a formal petition for

reconsideration of EPA's final transportation conformity rule and in

litigation pending before the U.S. Court of Appeals for the District of

Columbia Circuit on the substance of both the transportation and

general conformity rules. The issue, thus, is under consideration

within EPA, but at this time remains unresolved. Additionally,

subsection 182(f)(3) requires that NOX exemption petition

determinations be made by the EPA within six months. The EPA has stated

in previous guidance that it intends to meet this statutory deadline as

long as doing so is consistent with the Administrative Procedures Act.

The EPA, therefore, believes that until a resolution of this issue is

achieved, the applicable rules governing this issue are those that

appear in EPA's final conformity regulations, and EPA remains bound by

their existing terms.

NRDC Comment 2

Some commenters stated that the modeling required by EPA is

insufficient to establish that NOX reductions would not contribute

to attainment since only one level of NOX control, i.e.,

``substantial'' reductions, is required to be analyzed. They further

explained that an area must submit an approvable attainment plan before

EPA can know whether NOX reductions will aid or undermine

attainment.

EPA Response

This comment is directed towards exemption approvals based on

photochemical grid modeling. This comment does not apply in the case of

East Lansing or Genesee County because this exemption request is based

on monitoring.

NRDC Comment 3

Three years of ``clean'' data fail to demonstrate that NOX

reductions would not contribute to attainment. EPA's policy erroneously

equates the absence of a violation for one 3-year period with

``attainment.''

EPA Response

The EPA has separate criteria for determining if an area should be

redesignated to attainment under section 107 of the Act. The section

107 criteria are more comprehensive than the Act requires with respect

to NOX exemptions under section 182(f). [[Page 20646]]

Under section 182(f)(1)(A), an exemption from the NOX

requirements may be granted for nonattainment areas outside an ozone

transport region if EPA determines that ``additional reductions of

[NOX] would not contribute to attainment'' of the ozone NAAQS in

those areas. In some cases, an ozone nonattainment area might attain

the ozone standard, as demonstrated by 3 years of adequate monitoring

data, without having implemented the section 182(f) NOX provisions

over that 3-year period. The EPA believes that, in cases where a

nonattainment area is demonstrating attainment with 3 consecutive years

of air quality monitoring data without having implemented the section

182(f) NOX provisions, it is clear that the section 182(f) test is

met since ``additional reductions of [NOX] would not contribute to

attainment'' of the NAAQS in that area. The EPA's approval of the

exemption, if warranted, would be granted on a contingent basis (i.e.,

the exemption would last for only as long as the area's monitoring data

continue to demonstrate attainment).

NRDC Comment 4

A waiver of NOX controls is unlawful if such waiver will

impede attainment and maintenance of the ozone standard in separated

downwind areas.

EPA Response

As a result of the comments, EPA reevaluated its position on this

issue and has revised the previously issued guidance. See Memorandum,

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

and Criteria'' dated February 8, 1995, for John Seitz's signature. As

described in this memorandum, EPA intends to use its authority under

section 110(a)(2)(D) to require a State to reduce NOX emissions

from stationary and/or mobile sources where there is evidence, such as

photochemical grid modeling, showing that NOX emissions would

contribute significantly to nonattainment in, or interfere with

maintenance by, any other State. This action would be independent of

any action taken by EPA on a NOX exemption request for stationary

sources under section 182(f). That is, EPA action to grant or deny a

NOX exemption request under section 182(f) would not shield that

area from EPA action to require NOX emission reductions, if

necessary, under section 110(a)(2)(D).

Modeling analyses are underway in many areas for the purpose of

demonstrating attainment in the 1994 SIP revisions. Recent modeling

data suggest that certain ozone nonattainment areas may benefit from

reductions in NOX emissions far upwind of the nonattainment area.

For example, the northeast corridor and the Lake Michigan areas are

considering attainment strategies which rely in part on NOX

emission reductions hundreds of kilometers upwind. The EPA is working

with the States and other organizations to design and complete studies

which consider upwind sources and quantify their impacts. As the

studies progress, EPA will continue to work with the States and other

organizations to develop mutually acceptable attainment strategies.

At the same time as these large scale modeling analyses are being

conducted, the States have requested exemptions from NOX

requirements under section 182(f) for certain nonattainment areas in

the modeling domain. Some of these areas may be upwind of and impact

upon downwind nonattainment areas. EPA intends to address the transport

issue through section 110(a)(2)(D) based on a domain-wide modeling

analysis.

Under section 182(f) of the Act, an exemption from the NOX

requirements may be granted for nonattainment areas outside an ozone

transport region if EPA determines that ``additional reductions of

[NOX] would not contribute to attainment of the national ambient

air quality standard for ozone in the area.''\3\ As described in

section 4.3 of the Guidelines for Determining the Applicability of

Nitrogen Oxides Requirements under Section 182(f), December 16, 1993

(``guidance'') document, EPA believes that the term ``area'' means the

``nonattainment area'' and that EPA's determination is limited to

consideration of the effects in a single nonattainment area due to

NOX emissions reductions from sources in the same nonattainment

area.

\3\There are 3 NOX exemption tests specified in section

182(f). Of these, 2 are applicable for areas outside an ozone

transport region; the ``contribute to attainment'' test described

above, and the ``net air quality benefits'' test. EPA must

determine, under the latter test, that the net benefits to air

quality in an area ``are greater in the absence of NOX

reductions'' from relevant sources. Based on the plain language of

section 182(f), EPA believes that each test provides an independent

basis for receiving a full or limited NOX exemption.

Consequently, as stated in Sec. 1.4 of the December 16, 1993 EPA

guidance, ``[w]here any one of the tests is met (even if another

test is failed), the section 182(f) NOX requirements would not

apply or, under the excess reductions provision, a portion of these

requirements would not apply.''

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Section 4.3 of the guidance goes on to encourage, but not require,

States/petitioners to include consideration of the entire modeling

domain, since the effects of an attainment strategy may extend beyond

the designated nonattainment area. Specifically, the guidance

encourages States to ``consider imposition of the NOX requirements

if needed to avoid adverse impacts in downwind areas, either intra- or

inter-State. States need to consider such impacts since they are

ultimately responsible for achieving attainment in all portions of

their State (see generally section 110) and for ensuring that emissions

originating in their State do not contribute significantly to

nonattainment in, or interfere with maintenance by, any other State

[see section 110(a)(2)(D)(i)(I)].''

In contrast, Sec. 4.4 of the guidance states that the section

182(f) demonstration would not be approved if there is evidence, such

as photochemical grid modeling, showing that the NOX exemption

would interfere with attainment or maintenance in downwind areas. The

guidance goes on to explain that section 110(a)(2)(D) [not section

182(f)] prohibits such impacts. Consistent with the guidance in section

4.3, EPA believes that the section 110(a)(2)(D) and 182(f) provisions

must be considered independently, and hence, is withdrawing the

guidance presently contained in Sec. 4.4. Thus, if there is evidence

that NOX emissions in an upwind area would interfere with

attainment or maintenance in a downwind area, that action should be

separately addressed by the State(s) or, if necessary, by EPA in a

section 110(a)(2)(D) action. In addition, a section 182(f) exemption

request should be independently considered by EPA. In some cases, then,

EPA may grant an exemption from across-the-board NOX RACT controls

under section 182(f) and, in a separate action, require NOX

controls from stationary and/or mobile sources under section

110(a)(2)(D). It should be noted that the controls required under

section 110(a)(2)(D) may be more or less stringent than RACT, depending

upon the circumstances.

NRDC Comment 5

Comments were received regarding exemption of areas from the

NOX requirements of the conformity rules. They argue that such

exemptions waive only the requirements of section 182(b)(1) to

contribute to specific annual reductions, not the requirement that

conformity SIPs contain information showing the maximum amount of motor

vehicle NOX emissions allowed under the transportation conformity

rules and, similarly, the maximum allowable amounts of any such

NOX emissions under the general conformity rules. The commenters

admit that, in prior guidance, EPA has acknowledged the need to amend a

drafting error in the existing [[Page 20647]] transportation conformity

rules to ensure consistency with motor vehicle emissions budgets for

NOX, but want EPA in actions on NOX exemptions to explicitly

affirm this obligation and to also avoid granting waivers until a

budget controlling future NOX increases is in place.

EPA Response

With respect to conformity, EPA's conformity rules\4\\5\ provide a

NOX waiver if an area receives a section 182(f) exemption. In its

``Conformity; General Preamble for Exemption From Nitrogen Oxides

Provisions,'' 59 FR 31238, 31241 (June 17, 1994), EPA reiterated its

view that in order to conform, nonattainment and maintenance areas must

demonstrate that the transportation plan and TIP are consistent with

the motor vehicle emissions budget for NOX even where a conformity

NOX waiver has been granted. Due to a drafting error, that view is

not reflected in the current transportation conformity rules. As the

commenters correctly note, EPA states in the June 17th notice that it

intends to remedy the problem by amending the conformity rule. Although

that notice specifically mentions only requiring consistency with the

approved maintenance plan's NOX motor vehicle emissions budget,

EPA also intends to require consistency with the attainment

demonstration's NOX motor vehicle emissions budget. However, the

exemptions were submitted pursuant to section 182(f)(3), and EPA does

not believe it is appropriate to delay the statutory deadline for

acting on these petitions until the conformity rule is amended. As

noted earlier in response to a previous issue raised by these

commenters, this issue has also been raised in a formal petition for

reconsideration of the Agency's final transportation conformity rule

and in litigation pending before the U.S. Court of Appeals for the

District of Columbia Circuit on the substance of both the

transportation and general conformity rules. This issue, thus, is under

consideration within the Agency, but at this time remains unresolved.

The EPA, therefore, believes that until a resolution of this issue is

achieved, the applicable rules governing this issue are those that

appear in the Agency's final conformity regulations, and the Agency

remains bound by their existing terms.

\4\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).

\5\Determining Conformity of General Federal Actions to State or

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

63214).

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NRDC Comment 6

The Act does not authorize any waiver of the NOX reduction

requirements until conclusive evidence exists that such reductions are

counter-productive.

EPA Response

EPA does not agree with this comment since it ignores Congressional

intent as evidenced by the plain language of section 182(f), the

structure of the Title I ozone subpart as a whole, and relevant

legislative history. By contrast, in developing and implementing its

NOX exemption policies, EPA has sought an approach that reasonably

accords with that intent. Section 182(f), in addition to imposing

control requirements on major stationary sources of NOX similar to

those that apply for such sources of VOC, also provides for an

exemption (or limitation) from application of these requirements if,

under one of several tests, EPA determines that in certain areas

NOX reductions would generally not be beneficial. In subsection

182(f)(1), Congress explicitly conditioned action on NOX

exemptions on the results of an ozone precursor study required under

section 185B. Because of the possibility that reducing NOX in a

particular area may either not contribute to ozone attainment or may

cause the ozone problem to worsen, Congress included attenuating

language, not just in section 182(f), but throughout the Title I ozone

subpart, to avoid requiring NOX reductions where it would be

nonbeneficial or counterproductive. In describing these various ozone

provisions (including section 182(f), the House Conference Committee

Report states in pertinent part: ``[T]he Committee included a separate

NOX/VOC study provision in section [185B] to serve as the basis

for the various findings contemplated in the NOX provisions. The

Committee does not intend NOX reduction for reduction's sake, but

rather as a measure scaled to the value of NOX reductions for

achieving attainment in the particular ozone nonattainment area.'' H.R.

Rep. No. 490, 101st Cong., 2d Sess. 257-258 (1990). As noted in

response to an earlier comment by these same commenters, the command in

subsection 182(f)(1) that EPA ``shall consider'' the 185B report taken

together with the timeframe the Act provides both for completion of the

report and for acting on NOX exemption petitions clearly

demonstrate that Congress believed the information in the completed

section 185B report would provide a sufficient basis for EPA to act on

NOX exemption requests, even absent the additional information

that would be included in affected areas' attainment or maintenance

demonstrations. However, while there is no specific requirement in the

Act that EPA actions granting NOX exemption requests must await

``conclusive evidence'', as the commenters argue, there is also nothing

in the Act to prevent EPA from revisiting an approved NOX

exemption if warranted due to better ambient information.

In addition, the EPA believes (as described in EPA's December 1993

guidance) that section 182(f)(1) of the Act provides that the new

NOX requirements shall not apply (or may by limited to the extent

necessary to avoid excess reductions) if the Administrator determines

that any one of the following tests is met:

(1) in any area, the net air quality benefits are greater in the

absence of NOX reductions from the sources concerned;

(2) in nonattainment areas not within an ozone transport region,

additional NOX reductions would not contribute to ozone attainment

in the area; or

(3) in nonattainment areas within an ozone transport region,

additional NOX reductions would not produce net ozone air quality

benefits in the transport region.

Based on the plain language of section 182(f), EPA believes that each

test provides an independent basis for receiving a full or limited

NOX exemption.

Only the first test listed above is based on a showing that

NOX reductions are ``counter-productive.'' If one of the tests is

met (even if another test is failed), the section 182(f) NOX

requirements would not apply or, under the excess reductions provision,

a portion of these requirements would not apply.

Private Citizen Comment 1

The Rose Lake [monitoring] site is in a very rural area surrounded

by vegetation that would preclude any accurate readings from the site,

plus it is an extensive distance from a highway with a significant

volume of vehicles that would generate measurable ozone levels. I also

note this site is in the wrong direction by at least 45 degrees to pick

up any ozone levels from the East Lansing-Lansing urbanized area.

The 220 North Pennsylvania [monitoring] site is even more protected

[than the Rose Lake monitoring site], being in the heart of a

residential area, with a low volume highway adjacent. It

[[Page 20648]] is protected from the west and central part of the

Lansing area, the prevailing wind source is from the west, and it is

also located north of any industrial ozone that could be generated by

several automotive plants.

EPA Response

As part of the State of Michigan's ozone monitoring networks, both

the Rose Lake monitoring site and the 220 North Pennsylvania monitoring

site have met the criteria established in the Code of Federal

Regulations (CFR) for probe siting, as well as other EPA guidance at

the time they were established. A follow-up review conducted on March

2, 1995 indicates they are still in compliance. These requirements can

be found in 40 CFR part 58 Appendix E.

A review of wind speed and direction data for the summer months

indicates that the Rose Lake monitor is within the area likely to be

downwind of East Lansing. Furthermore, additional monitors in Genesee

County are located in the area likely to see the maximum impact from

the formation of ozone from emissions in the East Lansing area. In

other words, the NOX emissions from sources located in the East

Lansing area will probably not generate ozone until they have reached

the Genesee County area where there is an acceptable monitoring

network.

Private Citizen Comment 2

Provisions of the Act and the provisions of the Intermodal Surface

Transportation Efficiency Act (ISTEA) should be jointly examined by EPA

and the Federal Highway Administration (FHWA) to determine the effect

of not exempting the East Lansing area as has been proposed. For

example, could this exemption be granted if these monitors were placed

in areas of high traffic volume?

EPA Response

The hypothetical question raised can only be answered if monitors

were actually placed in areas of high traffic volume. Placing a monitor

in an area of high traffic volume, where high NOX concentrations

could be expected, would most likely give erroneously low ozone

readings because of the fact that high NOX concentrations have the

effect of ``scavenging'' ozone. Therefore, there is no reason to place

a monitor in an area of high traffic volume. In addition to this, as

has already been mentioned in the previous response, the State of

Michigan already has an approved monitoring network for this area and

establishing further monitors has not been demonstrated to be

warranted.

When the EPA is presented with a NOX exemption petition, it is

faced with the task of approving or disapproving such a request solely

on the Clean Air Act provisions and guidance which is developed under

the Clean Air Act. ISTEA does not play a role in the decision making

process for NOX exemptions.

III. Final Action

The comments received were found to warrant no changes from

proposed to final action on this NOX exemption request. Therefore,

EPA is granting the East Lansing and Genesee County areas section

182(f) NOX exemptions 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.

Both of these areas are classified as transitional. With a

classification of transitional, an area which has not been granted a

NOX exemption would be subject to general conformity,

transportation conformity, and nonattainment new source review NOX

requirements. Since these petitions for exemption are applicable

areawide, as opposed to source-specific, in addition to exempting these

areas from the nonattainment new source review requirements for

NOX, this action also exempts these areas from the NOX

conformity requirements of the Act (see G. T. Helms, January 12, 1995

``Scope of Nitrogen Oxides (NOX) Exemptions'' memorandum).

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

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

exemption for that area, 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 thereafter comply

with any applicable NOX requirements set forth in the Act, such as

those for NOX NSR and conformity. The air quality 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. Additionally, 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.

This action will become effective on May 30, 1995.

IV. 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).

Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act

of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,

EPA must assess whether various actions undertaken in association with

proposed or final regulations include a Federal mandate that may result

in estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

EPA's final action will relieve requirements otherwise imposed

under [[Page 20649]] the Clean Air Act and, hence does not impose any

federal intergovernmental mandate, as defined in section 101 of the

Unfunded Mandates Act. This action also will not impose a 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.

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 June 26, 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 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; April 13, 1995.

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 (e) and (f) to

read as follows:

Sec. 52.1174 Control strategy: Ozone

* * * * *

(e) Approval--On July 1, 1994, the Michigan Department of Natural

Resources submitted a petition for exemption from the oxides of

nitrogen requirements of the Clean Air Act for the East Lansing ozone

nonattainment area. The submittal pertained to the exemption from the

oxides of nitrogen requirements for conformity and new source review.

Theses are required by sections 176(c) and 182(f) of the 1990 amended

Clean Air Act, respectively. If a violation of the ozone standard

occurs in the East Lansing ozone nonattainment area, the exemption

shall no longer apply.

(f) Approval--On July 8, 1994, the Michigan Department of Natural

Resources submitted a petition for exemption from the oxides of

nitrogen requirements of the Clean Air Act for the Genesee County ozone

nonattainment area. The submittal pertained to the exemption from the

oxides of nitrogen requirements for conformity and new source review.

These are required by sections 176(c) and 182(f) of the 1990 amended

Clean Air Act, respectively. If a violation of the ozone standard

occurs in the Genesee County ozone nonattainment area, the exemption

shall no longer apply.

[FR Doc. 95-10247 Filed 4-26-95; 8:45 am]

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